Andhra HC (Pre-Telangana)
The State Of Andhra Pradesh, Rep. By Its ... vs Smt. A. Bharathi And Ors. on 18 February, 2002
Equivalent citations: 2002(4)ALT334
Author: I. Venkatanarayana
Bench: Ar. Lakshmanan, I. Venkatanarayana
JUDGMENT I. Venkatanarayana, J.
1. State of Andhra Pradesh is the appellant herein. The present Writ Appeal has been preferred by the State of Andhra Pradesh aggrieved by the order of the learned single Judge dated 13-9-2001 passed in W.P. No.12823 of 2000 holding that the writ petitioner is entitled to have possession of 453 Square Yards in Survey No.135/1 of Gudimalkapur village, Asif Nagar Mandal, Hyderabad.
2. The facts leading to the filing of this Writ Appeal are briefly set out as hereunder:- The writ petitioner (1st respondent in the Writ Appeal) purchased an extent of 453 square yards of land situated in Survey No.135/1 of Gudimalkapur village, Asifnagar Mandal, Hyderabad from the vendor, one D.Mallaiah. An agreement of sale was entered into between the parties on 1-12-1975 and the writ petitioner was put into possession of the said property. The Urban Land (Ceiling and Regulation) Act 1976 (Act No.33 of 1976) (for short 'the Urban Land Ceiling Act') came into force in the State of Andhra Pradesh with effect from12-7-1976. Therefore, on 13-5-1976 the vendor of the writ petitioner issued a notice under Section 26 of the Urban Land Ceiling Act to the Competent Authority of the Urban Land Ceilings expressing his intention to dispose of the above said property and seeking the authority to exercise its option. Since the Competent Authority did not exercise its option within the statutory period of six days in response to the notice dated 13-5-1976 issued by the vendor of the writ petitioner under Section 26 of the Urban Land Ceiling Act, a registered sale deed was executed on 5-7-1976. It is the case of the writ petitioner that the vendor filed his declaration on 15-9-1976 and thereafter the holding of the vendor was assessed under the provisions of the Urban Land Ceiling Act and ultimately he was declared as surplus land holder. It is the case of the writ petitioner that after the issuance of the notice under Section 8 (4), final settlement order under Section 9 and 10 (3) notification and 10 (5) notice, further proceedings were sought to be taken under the Urban Land Ceiling Act. At that juncture, the writ petitioner came to know that her vendor was declared as surplus land holder and consequently she was sought to be dispossessed. Hence the writ petitioner filed W.P. No.12823 of 2000 for issue of a Writ of Certiorari seeking to quash the impugned order issued under Section 8 (4), final statement under Section 9, Section 10 (1) notification, Section 10 (3) publication and Section 10 (5) notice in C.C. Nos.B1/8220/76, B1/8221/76 and B1/8222/76 and the consequential order under Section 10 (6) of the Urban Land Ceiling Act, if any.
3. It was contended before the learned single Judge that the declarant could not have included this piece of land in his holding as he cannot be said to be validly holding the said land under the provisions of the Urban Land Ceiling Act and therefore if any land which is not includable is included by the declarant it cannot be taken cognizance under the provisions of the Urban Land Ceiling Act. It is also submitted before us that all the statutory notices issued were issued in the name of dead person and hence they are all void ab initio. It was also contended before the learned single Judge that it is incumbent on the part of the Enquiry Officer to have enquired into the matter as to whether the declarant possessed the land as declared by him or whether he had created any encumbrance or alienated the property in question. The learned single Judge relying on the Apex Court judgment reported in GOVERNMENT OF ANDHRA PRADESH Vs. HEH. THE NIZAM, HYDERABAD1 held that the original vendor of the writ petitioner could not have been holding the land on the date of the enactment of the Urban Land Ceiling Act and that he lost possession by virtue of the agreement of sale on 1-12-1975 and subsequent registration of the sale deed. Accordingly the Writ Petition was disposed of by the learned single Judge holding that the writ petitioner is entitled to have possession of the land in question. Aggrieved by the said order passed by the learned single Judge, the State of Andhra Pradesh (Respondent No.1 in the Writ Petition) has preferred this Writ Appeal.
4. The learned Government Pleader for Assignment appearing on behalf of the Appellant-State contended that the Writ Petitioner is not a person holding the property as defined under Section 2 (l) of the Urban Land Ceiling Act and that the agreement of sale does not confer any title in favour the writ petitioner. It is his contention that the sale deed was executed after the commencement of the Act and hence it is hit by Section 5 (7) of the Urban Land Ceiling Act.
5. The only point that arises for consideration in this Writ Appeal is whether the order passed by the Commissioner of Urban Land Ceiling (2nd respondent in the Writ Petition) is in accordance with law.
6. It is evident from the record that the original owner D.Mallaiah has entered into an agreement of sale on 1-12-1975 agreeing to sell an extent of 453 square yards of land in favour of the writ petitioner and that the writ petitioner was put into possession of the said land on the date of agreement of sale and subsequently sale deed was executed on 5-12-1976. Even as per the recitals in the sale deed it is evident that in pursuance of the agreement of sale possession of the land was given to the petitioner on the date of execution of the agreement of sale itself. It is also not in dispute that notice was issued under Section 26 of the Act by the vendor of the writ petitioner to the Competent Authority and it is only after waiting for the statutory period registered sale deed was executed. It is pertinent to note that notice under Section 26 of the Urban Land Ceiling Act was issued by the vendor of the writ petitioner to the Competent Authority expressing his intention to dispose of the land in question and seeking the Competent Authority to exercise their option and it is also made clear from a reading of Section 26 that in the event of non-exercising of their option or failing to exercise their option within the statutory period of sixty days, permission is deemed to have been granted. The learned Government Pleader appearing for the appellant-State is unable to explain as to why the option pursuant to the notice issued by the vendor of the writ petitioner was not exercised except stating that notice issued under Section 26 does not bar the competent authority to take action under the Urban Land Ceiling Act. We are unable to countenance his argument. The crux of the issue is whether the declarant was holding the property, which is the subject matter of agreement of sale and subsequent registered sale deed, when the Urban Land Ceiling Act came into force. The Apex Court in GOVERNMENT OF ANDHRA PRADESH Vs. HEH. THE NIZAM, HYDERABAD1 (referred to supra) has held that the phrase "to hold' connotes two concepts i.e., physical possession or legal title to the vacant land and that both the concepts stand attracted to the concept 'hold' under the Land Ceiling Act. Even as on the date of the Act coming into force, the vendor of the writ petitioner has parted with possession of the land under the agreement of sale and subsequently the registered sale deed, executed after issuing the statutory notice under Section 26 of the Urban Land Ceiling Act, confers absolute title on the writ petitioner. Even otherwise it was brought to our notice that the statutory notices under the Act were issued in the name of dead person which is nonest in the eye of law. Therefore, it has to be held that the original vendor did not hold possession of the land in question as on the date of coming into force of the Urban Land Ceiling Act and that therefore the said land cannot be included in his declaration.
Taking into consideration the totality of the facts and circumstances of the case and the established legal position, we are in entire agreement with the view taken by the learned single Judge and hold that the impugned notice issued under Section 8 (4), final statement under Section 9, Section 10 (1) notification, 10 (3) publication and 10 (5) notice in C.C Nos.B1/8220/76, B1/8221/76 and B1/8222/76 and the consequential Section 10 (6) order, if any, are liable to be quashed and are accordingly quashed. We do not see any ground to disturb the findings of the learned single Judge and no case is made out warranting interference with the judgment of the learned single Judge. The Writ Appeal fails and is accordingly dismissed. There will be no order as to costs.