Andhra HC (Pre-Telangana)
The State Of Andhra Pradesh,Rep., By Its ... vs G.V.Mohan And 5 Others on 27 March, 2014
Bench: G. Rohini, T.Sunil Chowdary
THE HON'BLE Ms. JUSTICE G. ROHINI AND THE HON'BLE SRI JUSTICE T.SUNIL CHOWDARY
WRIT APPEAL No.1150 OF 2010,
27-03-2014
The State of Andhra Pradesh,Rep., by its Secretary, Hyderabad and 4 others.
...Petitioners
G.V.Mohan and 5 others..Respondents
Counsel for the Petitioner:Sri N.Sridhar Reddy, Spl. Government
Pleader
Counsel for respondents 1 to 3: Sri S.R.Ashok senior counsel for
K.Govardhan Reddy
Counsel for respondent No.4 : Sri M.Surender Rao, Standing
counsel for HMDA
Counsel for respondent No.5 : Sri Y.Madhusudhan
Counsel for respondent No.6 : Sri Y.Rama Rao
<GIST:
>HEAD NOTE:
?Cases cited:
1 AIR 1987 SC 2179=(1987) 3 SCC 711
2 (2003) 8 SCC 740
3 (1999) 8 SCC 692
4 (2003) 4 SCC 161
5 (1999) 4 SCC 403
6 (2002) 5 SCC 337
7 (2008) 4 SCC 615
8 (1987) 2 SCC 555
9 AIR 1966 SC 735
10 (2010) 3 SCC 470
THE HON'BLE Ms. JUSTICE G. ROHINI
AND
THE HON'BLE SRI JUSTICE T. SUNIL CHOWDARY
WRIT APPEAL No.1150 OF 2010,
WRIT APPEAL No.1151 OF 2010
AND
WRIT APPEAL No.30 OF 2011
COMMON JUDGMENT:(Per G. Rohini,J) The common order dated 8.10.2010 passed by the learned Single Judge in W.P.Nos.9198 of 2001 and 26206 of 2009 is assailed in these three appeals.
By the said order, both W.P.Nos.9198 of 2001 and 26206 of 2009 were allowed holding that the proceedings under the Urban Land (Ceiling & Regulation) Act, 1976 (for short, 'ULC Act') pursuant to the declarations made by the petitioners in W.P.No.9198 of 2001 stood abated by virtue of Section 4 of the Urban Land (Ceiling & Regulation) Repeal Act, 1999 (for short, 'ULC Repeal Act').
The petitioners in W.P.No.9198 of 2001 (three in number), who filed statements as required under Section 6 (1) of the ULC Act were held to be excess land holders by the Special Officer and Competent Authority, Urban Land Ceilings, Hyderabad by order dated 8.11.2000 as confirmed on appeal by the Commissioner, Appeals, Office of the Commissioner of Land Administration, A.P., Hyderabad by order dated 28.4.2001. Aggrieved by the said orders, they filed W.P.No.9198 of 2001.
The petitioner in W.P.No.26206 of 2009 is a Housing Co-operative Society which claims title and possession of the excess vacant land under an Agreement of Sale, dated 9.12.1980 executed by the petitioners in W.P.No.9198 of 2001 (hereinafter referred to as 'the declarants'). The said Housing Cooperative Society filed W.P.No.26206 of 2009 seeking a declaration that the proceedings in Appeal No.HYD/17/2001, disposed of by order dated 28.04.2001, are abated in pursuance of the ULC Repeal Act which came into force w.e.f. 27.03.2008 and consequently to declare that the petitioner society acquired substantial rights over 67173 sq.mts. of land situated at yousufguda, Hyderabad having purchased under Agreement of Sale dated 9.12.1980.
Both W.P.No.9198 of 2001 and W.P.No.26206 of 2009 were heard together and allowed by the learned Single Judge by common order dated 8.10.2010 which is the subject-matter of the appeals before us.
Writ Appeal No.1150 of 2010 and Writ Appeal No.1151 of 2010 are filed by the State against the orders in W.P.No.9198 of 2001 and W.P.No.26206 of 2009 respectively, whereas Writ Appeal No.30 of 2011 is filed by the Hyderabad Metropolitan Development Authority, which claims that the excess vacant land was put in their possession.
Since common questions of fact and law arise for consideration and the parties to all the three appeals are also common, we have heard all the appeals together.
Though the facts have been narrated elaborately in the order under appeal, we deem it necessary to refer to the essential facts for proper appreciation of the controversy involved in the case.
The petitioners in W.P.No.9198 of 2001 claim to be the legal heirs of one G.V.L.S. Sharma who was the owner of Ac.16-23 guntas of land and 115 sq.yards of land in Sy.Nos.105, 110, 113, 114 & 149/3 of Yousufguda Village, Khairatabad Mandal (Old Golconda Mandal), Rangareddy District corresponding to TS Nos.16/1 and 16/2. After his death on 8.2.1975, ULC Act came into force and accordingly the petitioners in W.P.No.9198 of 2001 filed their Statements under Section 6 (1) of the ULC Act. The Special Officer and Competent Authority, Urban Land Ceilings (hereinafter referred to as 'the Special Officer') by order dated 7.5.1980 held that they are surplus land holders. Against the said order, the declarants preferred an appeal and the same was allowed by order dated 27.1.1997 and de no enquiry by the Special Officer was ordered. After conducting such enquiry, the Special Officer passed an order on 8.11.2000 under Section 8 (4) of the ULC Act holding that the declarants were surplus holders of land to an extent of 23930.38 sq. mts. each.
Against the said order, the declarants preferred an appeal along with an application for stay before the Commissioner of Urban Land Ceiling-cum- Commissioner of Appeals (hereinafter referred to as 'the Appellate Authority'). Alleging that the appellate authority failed to consider the application for stay, the declarants filed W.P.No.3878 of 2001. The said writ petition was disposed of by this Court by order dated 7.3.2001 directing to maintain status quo with regard to possession of the land in question during the pendency of the appeal and that the appeal itself shall be heard and disposed of expeditiously. Ultimately the appeal was dismissed by the appellate authority by order dated 28.4.2001.
Aggrieved by the same, the declarants filed W.P.No.9198 of 2001 contending inter alia that each of them is entitled to hold 1/3rd share in the land in question which is the coparcenery joint family property and that the orders passed by the Special Officer as well as the Appellate Authority are vitiated since no opportunity was afforded to them to produce the necessary evidence in support of the objections filed under Section 8 (4) of the ULC Act. It was also contended that the impugned orders came to be passed in haste to defeat the rights of the declarants acquired under ULC Repeal Act, 1999 which was about to be enforced in the State of Andhra Pradesh. It was also specifically pleaded in the writ petition that the action of the Special Officer in issuing the notice under Section10 (5) of the ULC Act is arbitrary, illegal and unwarranted.
The Special Officer filed the counter-affidavit on 21.11.2007 denying the petitioners' plea that the impugned orders were passed without affording them proper opportunity to adduce evidence. While asserting that the land in question is a vacant land covered by the statutory Master Plan as on the date of the commencement of ULC Act i.e., 17.2.1976 and thus the same is covered by the provisions of ULC Act, it was contended that the declarants were rightly determined as surplus land holders. It was also contended that the ULC Act, 1976 was very much in force since ULC Repeal Act had not been adopted by the State of Andhra Pradesh at the relevant point of time. It was further contended that the notice under Section 10 (5) of the ULC Act, dated 15.2.2001 was served on the petitioner on 23.2.2001 with a direction to surrender the surplus land that the sub-division record was shown to the petitioner upon which he had given written consent on 23.2.2001 to retain the land existing within the green boundaries.
On 6.4.2009 the Special Officer filed an additional counter-affidavit contending that the petitioner No.1 had surrendered the possession of the surplus land on 23.2.2001, that he had signed on the sketch prepared at the time of taking over possession on 23.02.2001 after agreeing to retain the land within the boundaries shown in green ink. It was alleged that suppressing the said fact he filed W.P.No.3878 of 2001 on 5.3.2001 asserting that he is in possession of the property and thus the petitioner No.1 played fraud on the Court.
The writ petitioners/declarants in their reply affidavit denied the plea in the additional counter-affidavit that the possession of the surplus land was surrendered on 23.2.2001 by the petitioner No.1.
To substantiate their claim that the possession of the excess land was never surrendered by them, the declarants filed the letter dated 28.03.2010 addressed by the HMDA furnishing certain particulars with regard to allotment of the land in question in response to an application made under the Right to Information Act, 2005.
While W.P.No.9198 of 2001 was pending, the Housing Co-operative Society, which claims to be in possession of the excess vacant land having purchased the same from the declarants under an Agreement of Sale, filed W.P.No.26206 of 2009. It was pleaded in the said writ petition that the said Housing Cooperative Society (hereinafter referred to as 'Society') entered into an agreement of sale dated 9.12.1980 with the petitioners 1 & 2 in W.P.No.9198 of 2001 for sale of the excess vacant land in terms of the guidelines under G.O.Ms.No.4270, dated 10.09.1980 for transfer of vacant lands held by the excess land holders to the Registered Cooperative Societies by granting exemption under Section 20 (1) (a) of the ULC Act; that the society was put in possession of the land in question and made applications seeking exemption. However by order dated 10.2.1983 the Government had rejected the application of the society and the declarants for grant of exemption. Aggrieved by the same, they filed W.P.No.2658 of 1984 and the same was disposed of by order dated 5.4.1989 setting aside the order dated 10.2.1983 and directing to reconsider the application for exemption in terms of G.O.Ms.No.4270, dated 10.09.1980 as modified by G.O.Ms.No.136, dated 28.1.1981. The request was again rejected by Memo dated 1.3.2005 and challenging the same the society filed W.P.No.36281 of 2005. Though the said writ petition was dismissed by order dated 18.11.2006 it was left open to the society to seek enforcement of their rights, if any, under the agreement of sale. The said order was confirmed by a division bench of this Court in Writ Appeal No.347 of 2007 and also by the Supreme Court. However it was claimed that as the ULC Act itself was repealed w.e.f. 27.3.2008, there is no need for grant of exemption for sale of excess land. It was further stated that O.S.No.118 of 2003 filed by the society against the declarants for specific performance of agreement of sale dated 9.12.1980 is pending on the file of the II-Addl. Chief Judge, City Civil Court, Hyderabad and the interim injunction granted in I.A.No.1019 of 2003 restraining the declarants or anybody claiming through them from transferring or alienating or changing the nature of the suit property has been in operation. It is also pleaded that an advocate- commissioner was appointed in O.S.No.118 of 2003 to inspect the land in question and as per the Commissioner's report dated 16.5.2003 it is clear that the petitioner society is in possession of the land in question. Thus it was contended that the possession was never taken by the State and that by virtue of the ULC Repeal Act, the entire proceedings are liable to be declared as abated.
The HMDA which was impleaded as respondent No.5 to W.P.No.26206 of 2009 filed a counter-affidavit contending that the society has no locus standi to file the writ petition since no rights are accrued to it over the land in question. It was further pleaded that the concerned Mandal Revenue Officer had taken possession of the land in question from the declarant and as per the instructions of the Special Officer vide letter dated 15.2.2001 the Mandal Revenue Officer, Khairatabad had delivered possession of the land to an extent of 47860 sq. mts. in TS Nos.16/1 & 16/2 to the HUDA under a panchanama dated 23.02.2001 and from then onwards the HUDA/HMDA is in possession and enjoyment of the said land.
On behalf of the State, the Deputy Secretary to Government, Revenue Department, filed a counter-affidavit contending that the application of the society for exemption having been rejected and W.P.No.36281 of 2005 and Writ Appeal No.347 of 2007 preferred against the order of rejection were dismissed, the society had no locus standi to file the present writ petition. It was also reiterated that the possession of the land in question was taken over by the Enquiry Officer and was handed to the Deputy Tahsildar, Khairatabad, who in turn handed over the same to the Estate Officer, HUDA on 23.2.2001 itself. The learned Single Judge heard both W.P.Nos.9198 of 2001 and 26206 of 2009 together and the following questions were formulated for consideration:
1. Whether pursuant to the notice dated 15.02.2001 under Section 10(5) of the ULC Act, respondent No.3 has taken possession of the surplus land from petitioner No.1 under a cover of panchanama or petitioner No.1 has voluntarily surrendered the land on 23.02.2001, and if so, whether taking over possession of the surplus land is valid?
2. Whether respondent No.6, who claims possession through respondent Nos. 1 to 3, can be said to have locus standi to contest the claim of the petitioners, and claim that he got possession of the surplus land lawfully?
3. Whether respondent No.8, who claims to be in vacant possession of the land by virtue of agreement of sale dated 09.12.1980, was entitled to be issued notices under Section 8, 9 and 10 of the ULC Act?
4. Whether respondent No.8 has locus standi to file writ petition to declare the ULC proceedings as having abated in view of the provisions of Section 4 of the Repeal Act?
5. Whether, in the facts and circumstances of the case, and considering the claim of the petitioners and respondent No.8, that they are in possession of the vacant surplus land, by virtue of the provisions of the Repeal Act, the ULC proceedings stand abated?
All the questions formulated were answered in favour of the writ petitioners by assigning elaborate reasons and it was concluded by the learned Single Judge that ULC proceedings in relation to the land in question stood abated. As could be seen, specific findings were recorded in the order under appeal that the panchanama conducted by the enquiry officer dated 23.2.2001 is invalid; that as the possession of the land could not have been taken before expiry of 30 days notice period the theory of voluntary surrender of surplus land by petitioner No.1 was invented; that the petitioners did not surrender the surplus land and that they are still in possession of the said land; that the proceedings did not reach the stage of Section 10 (6) of the ULC Act but ended at Section 10 (5) and that the declarants and the society being in possession are entitled to claim the benefit of ULC Repeal Act, 1999.
Assailing the abovesaid order, it is vehemently contended by Sri N. Sridhar Reddy, the learned Special Government Pleader appearing for the State (appellant in W.A.Nos.1150 & 1151 of 2010) that the conclusion of the learned Single Judge that the proceedings stood abated by virtue of Section 4 of ULC Repeal Act, 1999 is unsustainable and unwarranted as there was absolutely no pleading in the writ petitions that the petitioners are in possession of the land in question. Placing much reliance upon the endorsement stated to have been made by the petitioner No.1 in the sketch map that he agreed to retain the land existing within green boundaries, it is further contended by the learned Government Pleader that there is no reason to disbelieve the plea of the Special Officer that the surplus land was surrendered by the declarants themselves on 23.2.2001.
It is also contended that once the declarant identifies the retainable land, the possession of the remaining land shall be deemed to have been taken over by the State and therefore the learned Single Judge ought not to have held that the panchanama dated 23.2.2011 is invalid merely on the ground that it was prior to expiry of the statutory period of 30 days.
According to the learned Government Pleader, under the panchanama dated 23.2.2011 the land which was already surrendered by the declarants was merely handed over to the Deputy Tahsildar, Khairatabad and in turn to HUDA. Therefore, the learned Government Pleader would submit that the panchanama cannot be held to be invalid and bad in law on the ground that the panchanama was conducted behind the back of the petitioners.
It is further contended that even assuming without conceding that the society is in possession, the same cannot be enured to the benefit of the declarants to hold that the proceedings stood abated since no lawful rights can be said to have been acquired by the society which admittedly claims to have purchased the excess vacant land under an agreement of sale and more particularly in view of the request of the society and the declarants for exemption is rejected by the Government and that the said order of rejection has become final. In support of his submission that the pleadings of the parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case, the learned Government Pleader relied upon the decisions in VINOD KUMAR ARORA v. SURJIT KAUR1, KASHI NATH v. JAGANNATH2, T.H. MUSTHAFFA v. M.P. VARGHESE3, BONDAR SINGH v. NIHAL SINGH4, PRATAPRAI N. KOTHARI v. JOHN BRAGANZA5 and A.V.G.P. CHETTIAR & SONS v. T. PALANISAMY GOUNDER6.
On the other hand, it is submitted by Sri S.R. Ashok, the learned Senior Counsel appearing for the respondents/ declarants/petitioners in W.P.No.9198 of 2001 that the well considered order passed by the learned Single Judge warrants no interference on any ground whatsoever.
Sri M. Surender Rao, the learned Senior Counsel appearing for HMDA (appellant in Writ Appeal No.30 of 2011) contended that as no amendment was sought to the prayer in W.P.No.9198 of 2001 to declare the proceedings as abated by virtue of the repeal Act, the learned Single Judge ought not to have allowed the writ petition on the ground that the proceedings stood abated. The further contention is that having regard to the finding that the taking over of possession under panchanama dated 22.3.2001 is invalid, the learned Single Judge ought to have set aside the proceedings only to the extent of taking over possession.
In the light of the rival submissions noticed above, the only question that requires consideration is whether the possession of the land in question has been taken over by the State as on the date of the enforcement of ULC Repeal Act, 1999 so as to hold that the ULC proceedings stood abated.
The ULC Repeal Act, 1999 has been made applicable to the State of Andhra Pradesh w.e.f. 28.04.2008. As per Section 4 of the said Act, all proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of the repeal Act before any Court, Tribunal or other Authority shall abate where the possession has not been taken over by the State.
As noticed above, the writ petitioners claim that they have been continuing in possession of the surplus land, whereas it is contended by the State that the petitioner No.1 in W.P.No.9198 of 2001 (one of the declarants) had voluntarily surrendered the surplus land on 23.2.2001 on receipt of the notice under Section 10 (5) of ULC Act, dated 15.2.2001. It is their case that on the same day i.e., 23.2.2001 the Special Officer handed over the possession to the Deputy Tahsildar under a panchanama and in turn it was handed over to HUDA which has subsequently been constituted as HMDA under Hyderabad Metropolitan Development Authority Act, 2008.
According to the appellants/State and HMDA (HUDA), the possession of the surplus land vested with the Government on 23.02.2001 itself long prior to the date of enforcement of repeal Act in the State i.e., 28.04.2008 and therefore the conclusion in the order under appeal that the ULC proceedings stood abated by virtue of Section 4 of the repeal Act is unsustainable.
Section 9 of the ULC Act, 1976 provides that after considering the objections, if any, received to the draft statement the competent authority shall make the necessary alterations in the draft statement and shall determine the vacant land held by the declarant in excess of the ceiling limits and a copy of such altered final statement shall be served on the person concerned. The procedure to be followed thereafter for acquisition of the vacant land in excess of the ceiling limits is provided under Section 10 and the same may be extracted hereunder for ready reference:
10. Acquisition of vacant land in excess of ceiling limit:-
(1) As soon as may be after the service of the statement under section 9 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and staling that-
(i) such vacant land is to be acquired by the concerned State Government : and
(ii) the claims of all persons interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land, to be published for the information of the general public in the Official Gazette of the State concerned and in such other manner as maybe prescribed.
(2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under sub- section (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit. (3) At any time after the publication of the notification under sub-section (1) the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant land referred to in the notification published under sub-section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified.
(4) During the period commencing on the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made under sub-section (3) :
(i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and
(ii) no person shall alter or cause to be altered the use of such excess vacant land.
(5) Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice.
(6) If any person refuses or fails to comply with an order made under sub-
section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be necessary.
Explanation.- In this section, in sub-section (1) of section 11 and in section 14 and section 23 , "State Government", in relation to-
(a) any vacant land owned by the Central Government, means the Central Government;
(b) any vacant land owned by any State Government and situated in a Union territory or within the local limits of a cantonment declared as such under S.3 of the Cantonments Act, 1924 , means that State Government.
A plain reading of the above provision shows that the competent authority under sub-section (1) shall cause a notification giving the particulars of vacant land in excess of ceiling limit and inviting claims from the persons interested in such vacant land. As per sub-section (2) the competent authority shall pass an appropriate order after considering the claims of persons interested.
Sub-section (3) provides for publication of a notification in the Official Gazette of a State declaring that the excess vacant land referred to in the notification published under sub-section (1) shall be deemed to have been acquired by the State Government with effect from the date specified therein and upon publication of such declaration the land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified.
Sub-section (5) further provides for issuance of a notice in writing by the competent authority directing any person who may be in possession of the vacant land which is vested in the State Government under sub-section (3) to surrender or deliver possession thereof to the State Government within 30 days of service of the said notice.
In the event of the person on whom such notice is served refuses or fails to comply with the order made under sub-section (5), the competent authority is empowered under sub-section (6) to take possession of the vacant land.
It is clear from the scheme of Section 10 of the ULC Act that after publication of the notification under Section 10 (3) declaring that the excess land shall be deemed to have vested absolutely in the State Government with effect from the date specified therein, the competent authority will issue a notice under Section 10 (5) calling upon the person in possession of such excess vacant land to surrender or deliver possession thereof to the State Government within 30 days of service of the notice and in the event of the failure of such person to surrender, the possession of the excess vacant land may be taken over by the competent authority.
In the case on hand, the notification under Section 10 (3) of the ULC Act, dated 25.01.2001 was published in the Official Gazette on 03.02.2001. Thereafter, the Special Officer issued the notice under Section 10 (5) on 15.2.2001 calling upon the petitioners in W.P.No.9198 of 2001 to surrender the land in question within 30 days from the service of the said notice. Even according to the Special Officer, the said notice was served only on 23.02.2001. Thus clear 30 days time is available to the declarants from 23.02.2001 to surrender the possession of the excess land if they so choose. However the case of the Special Officer is that on 23.02.2001 itself the petitioner No.1 in W.P.No.9198 of 2001 was shown the sub division sketch of TS Nos.16/1 & 16/2 and thereupon on the same day the petitioner No.1 gave his consent in writing to retain the land existing within the green boundaries. In this context, it would be appropriate to extract the relevant paragraph from the counter-affidavit filed by the Special Officer in the first instance on 21.11.2007:
".. ... The declarants were determined as surplus land holders to an extent of 23,930.38 sq. mts. each in T.S. Numbers 16/1 and 16/2 Yousufguda Village vide this office proceedings No.E2/382/76, dated 8.11.2000. It is submitted that after completion of statutory formalities notice under Section 10 (3) of the Act was issued on 15.2.2001 and served on the petitioner on 23.2.2001 with a direction to surrender the excess surplus land. After preparing the sub division record the same was shown to the petitioner and the petitioner has given written consent to retain the land existing within the green boundaries on 23.2.2001.
... .."
As could be seen, there was neither a plea that the petitioner No.1 had surrendered the land nor it was pleaded that the possession was handed over to HUDA on 23.02.2001 itself under the cover of panchanama. The additional counter came to be filed by the Special Officer on 6.4.2009 in which the version of the respondents with regard to the possession was made more specific stating as under:
"... ... I submit that a notice under Section 10 (5) of the Act has been served on the petitioner Nos.1 & 2 vide Notice No.E2/382/76, dated 15.2.2001 asking the petitioners to surrender an extent of 23930.38 sq. mts. within one month from 15.2.2001. I state on receipt of the said notice the 1st petitioner herein has surrendered the possession on 23.2.2001 and also has signed on the sketch prepared at the time of taking over possession on 23.2.2001 and has also agreed to retain the land within the boundaries shown in the green ink. ... ..."
(emphasis supplied) It may be mentioned at the outset that the operative portion of Section 10 (5) notice dated 15.2.2001 reads as under:
"Now, therefore, in exercise of the power conferred by sub-section (5) of Section 10 of Urban Land (Ceiling & Regulation) Act,1976 (Central Act 33 of 1976) I hereby order you to surrender/deliver possession of the said land to Sri K.Narsi Reddy, Deputy Tahsildar of this office within 30 days of the service of this notice."
(emphasis supplied) Thus on the face of it the stand taken in the counter-affidavit dated 6.4.2009 that the petitioners were asked to surrender the excess land within one month from 15.2.2001 is factually incorrect. This strengthens the plea of the writ petitioners that the version in the additional counter-affidavit that the petitioners themselves surrendered the surplus land is an afterthought. We have carefully gone through the sub division sketch of TS Nos.16/1 & 16/2 placed before this Court by the appellants. The said sketch contains the signature of the petitioner No.1 alone below the endorsement "I agree to retain the land existing within the green boundary. Sd/- dated 23.2.2001." Admittedly the panchanama dated 23.2.2001 does not contain the signature of any one of the declarants and even according to the panchanama none of the declarants was present when the panchanama was drafted. It is no doubt true that the above said endorsement by the petitioner No.1 on the sub-division sketch has not been disputed by the declarants. However their contention is that the said endorsement does not amount to surrendering the excess vacant land. It is also the specific case of the declarants that the excess land was never surrendered by them.
It is relevant to note that as against the order dated 8.11.2000 passed by the Special Officer the declarants preferred the appeal under Section 33 of the Act on 27.12.2000 itself. Thus by the date of the service of Section 10 (5) notice on 23.2.2001, their appeal was already pending before the appellate authority. Apprehending dispossession pursuant to Section 10(5) notice they filed W.P.No.3878 of 2001 on 7.3.2001 challenging the inaction of the appellate authority in considering their application for stay pending the appeal. Admittedly W.P.No.3878 of 2001 was disposed of on 7.3.2001. Though it was contended before this Court by the learned Government Pleader that the respondents had taken over the possession of the land in question on 23.2.2001 under a panchanama, the said plea was disbelieved by this Court having regard to the fact that the notice under Section 10 (5) dated 15.2.2001 requires the petitioner to surrender/deliver possession of the land to the Deputy Tahsildar within 30 days after service of the notice. It was also observed by this Court that the possession if at all is taken is only on paper and not physical possession. Thus the writ petition was disposed of with a direction that status quo in all respects should be maintained during the pendency of the appeal. It is relevant to note that the said order dated 7.3.2001 in W.P.No.3878 of 2001 became final. Though the Special Officer preferred a petition to review the said order dated 7.3.2001, the same was dismissed by this Court by order dated 18.6.2009 and the same was confirmed by a Division Bench by judgment dated 15.4.2010 in Writ Appeal No.340 of 2010.
Under the circumstances, we find force in the submission of the learned Senior Counsel Sri S.R. Ashok that the order in WP No.3878 of 2001 holding that the respondents could not have taken physical possession of the land in question on 23.2.2001 operates as res judicata and it is not open to the appellants to reagitate the said question in W.P.No.9198 of 2001 while considering the question as to whether the provisions of ULC Repeal Act are attracted to the case on hand.
As held in BARKAT ALI v. BADRINARAIN7 the principles of res judicata not only apply in respect of separate proceedings but the general principles also apply at the subsequent stage of the same proceedings also and the same court is precluded to go into that question again which has been decided or deemed to have been decided by it at an early stage.
It is relevant to note that during the pendency of W.P.No.9198 of 2001 an order of status quo was in operation and ULC Repeal Act has come into force in the State of Andhra Pradesh w.e.f. 28.04.2008 i.e., during the pendency of W.P.No.9198 of 2001.
For the reasons stated supra, it is clear to our mind that there was neither surrender of surplus land by the declarants nor the physical possession was taken over by the Special Officer on 23.2.2001.
We do not find any substance even in the contention of the learned Special Government Pleader that there was no plea at all in W.P.No.9198 of 2001 as to the possession of the declarants and that the same has been invented at a later stage only to claim the benefit of abatement of proceedings under the ULC Repeal Act and that W.P.No.26206 of 2009 came to be filed by the society which is altogether a third party to the proceedings only to substantiate the claim of the declarants.
It is to be noticed that in W.P.No.9198 of 2001 itself there was a specific plea by the petitioners as under:
9. Since the Government of India and the Parliament have consented and repealed the Urban Land Ceiling and Regulation Act, 1976 and the State Government also declared that the State would be repealed by substituting a new Act in its place. The proceedings taken with hasty decision without providing proper opportunity depriving the rights of the 2nd and 3rd petitioners of the valuable Urban property the State Government has no power to proceed further under the Act, the matter is sub judice.
10. It is further submitted that the 1st petitioner is not authorized to retain or surrender any land for and on behalf of the 2nd and 3rd petitioners.
Therefore, 2nd and 3rd petitioners along with 1st petitioner, who have their property undivided should sign jointly and deliver the surplus land if any. Therefore, the statement that the 1st petitioner signed on a plan retainable area is not binding. It is the land which is surplus has to be demarcated and surrendered by the declarants is not that the declarants are given a portion of the land and the rest of the land was taken arbitrarily without the same being surrendered. No opportunity was given to the 2nd and 3rd petitioners. As such, the action of the 3rd respondent under Section 10 (5) is totally illegal, unwarranted, arbitrary and liable to be set aside.
On a careful reading of the affidavit filed in support of W.P.No.9198 of 2001, particularly the above extracted paragraphs it appears to us that the contents of the affidavit are more than sufficient to enable the respondents in the writ petition to know that the petitioners are claiming possession and that the ULC proceedings shall stand abated on account of their possession. In RAM SARUP GUPTA v. BISHUN NARAIN INTER COLLEGE8 it is held:
6. The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the licence was irrevocable as contemplated by Section 60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Some times, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question.
It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence in that event it would not be open to a party to raise the question of absence of pleadings in appeal.
In BHAGAWATI PRASAD v. CHANDRAMOULI9 it is held by a Constitution Bench as under:
"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the court cannot do injustice to another."
In the light of the settled legal position noticed above, we are unable to agree with the contention of the learned Special Government Pleader that the arguments advanced before the learned Single Judge that the proceedings stood abated by virtue of Section 4 of ULC Repeal Act are contrary to the pleadings of the writ petitioners. The contention that the conclusions of the learned Single Judge are not supported by any pleadings is equally untenable.
We do not find any substance even in the contention that the society has no locus standi to file W.P.No.26206 of 2009 and that the said writ petition is not bona fide.
Admittedly the society has been asserting its rights over the land in question right from 1980. It is no doubt true that the society is claiming title and possession only under an agreement of sale executed by the declarants. However, the said transaction took place long back in the year 1980 and immediately thereafter the society made application along with the declarants seeking exemption under Section 20 (1) (a) of ULC Act. In view of the admitted fact that the society has been prosecuting the proceedings in different forums for declaration of their title and possession, it is not open to the appellants to contend that W.P.No.26206 of 2009 is only an afterthought. At any rate, for deciding the issue whether the provisions of the ULC Repeal Act are attracted to the case on hand it is not necessary to go into the question whether the possession of the excess vacant land remained with the declarants or not, but what is required is whether the possession has been taken over by the State Government or any person duly authorized by the State Government in that behalf or by the competent authority by the date of enforcement of the said Act. According to us, the question whether the society acquired lawful rights or not in respect of the excess vacant land is also irrelevant for deciding the issue whether the proceedings stood abated by virtue of the provisions of the repeal Act.
In the light of the discussion made above, it is clear to our mind that the appellants failed to establish that the possession of the land in question has been taken over by the State Government by the date of enforcement of ULC Repeal Act in the State of Andhra Pradesh.
So far as the contention advanced by the learned counsel for HMDA that in the absence of the specific prayer this Court ought not to have declared the proceedings as abated is concerned, the law is well settled that it is always open to this Court while exercising the jurisdiction under Article 226 of the Constitution of India to take note of the subsequent events and to mould the relief to meet the exigencies of the circumstances.
The well settled principle of law as to moulding the relief suitably taking into consideration the subsequent events has been reiterated in SHESHAMBAL v. CHELUR CORPN. CHELUR BUILDING10 as under:
17. While it is true that the right to relief must be judged by reference to the date suit or the legal proceedings were instituted, it is equally true that if subsequent to the filing of the suit, certain developments take place that have a bearing on the right to relief claimed by a party, such subsequent events cannot be shut out from consideration. What the court in such a situation is expected to do is to examine the impact of the said subsequent development on the right to relief claimed by a party and, if necessary, mould the relief suitably so that the same is tailored to the situation that obtains on the date the relief is actually granted.
Having regard to the admitted fact that the repeal Act came into force during the pendency of the writ petition, there is no bar to grant the appropriate relief taking judicial note of the legal position existing as on the date of the disposal of the writ petition. Therefore, in our considered opinion, the learned Single Judge is justified in deciding the matter on application of the provisions of the repeal Act. Having recorded a specific finding that no valid possession of the excess vacant land was taken by the Government on 23.2.2001, the learned Single Judge has rightly proceeded to declare that the ULC proceedings stood abated by virtue of Section 4 of the repeal Act. The said conclusion in our considered opinion cannot be held to be erroneous on any ground whatsoever.
Accordingly, all the three Writ Appeals are dismissed. No costs. Consequently the miscellaneous petitions, if any, pending in the writ appeals shall stand closed.
_________________ Justice G. Rohini _________________________ Justice T. Sunil Chowdary Date: 27.03.2014