Andhra HC (Pre-Telangana)
Special Officer, Urban Land Ceilings, ... vs M. Vijayalakshmi And Others on 28 October, 1998
Equivalent citations: 1998(6)ALD824, 1998(6)ALT627, 1999 A I H C 753, (1998) 6 ANDHLD 824 (1998) 6 ANDH LT 627, (1998) 6 ANDH LT 627
Author: Umesh Chandra Banerjee
Bench: Chief Justice
ORDER Umesh Chandra Banerjee, C.J.
1. In order to prevent concentration of urban land in the hands of a few individuals, the Legislative, in its wisdom thought it prudent to introduce in the statute book the Urban Land (Ceiling and Regulation) Act, 1976. From the 'statement of objects and reasons', it appears that the Act envisages prevention of speculation and profiteering in the vacant land in urban agglomeration. Admittedly, the land is scarce and there is, in fact, a tremendous pressure in that regard, specially in urban areas. This legislation of 1976 is, however, a socialistic piece of legislation and has been introduced to subserve the common social aim and objective not to allow acquisition of excess land in the urban area. The Legislature felt the necessity of having such a legislation in order to subserve out constitutional goal.
2. The object of the legislation being beneficial, in our view, the endeavour of the Law-Courts also should be to give effect to the intention of the legislation as far as practicable rather than thwart it since the Legislature is in a better position to appreciate the need of the society and the Law-Courts also exist for lhe society. In the event, however, the Law-Courts do not live up to the expectation of the society, the Law-Courts will lose its efficacy and the entire democratic icrvour of our Constitution will be lost and it is in this perspective that this matter ought to be dealt with by the Law-Courts.
3. On the factual score, it appears that one Smt. Indira Rai was having a substantial immovable property within the Hyderabad urban agglomeration by reason of which, after the commencement of the Act, a statement under Section 6(1) of the Act of 1976 was filed before the Special Officer and Competent Authority on 14th September, 1976, wherein there has been a declaration of vacant land of 14,863.55 square metres in Survey No.22 of Somajiguda, Hyderabad District. The Special Officer in his order did allow the declarant an area of 1000 square metres and determined the 13,863.55 square metres of vacant land as the surplus land being held by her. The fectual score further depicts that Smt. Indira Rai being aggrieved by the order of the Special Officer did file an appeal under Section 33 of the Act before the Commissioner of Land Reforms and the appellate authority relying on the information furnished by Hyderabad Urban Development Authority as to the land use classification of the vacant land in question did in fat set aside the order impugned in the appeal and directed the Special Officer and Competent Authority to get the land surveyed. The relevant extract of the order of the appellate authority is set out herein below:
"2. The short point that arises for consideration is whether the land in question can be treated as vacant land within the meaning of Section 2(q) of the Act."
2 ".............It is not clear from the extract showing the proposed land use of Zone-IV whether the entire extent in Sy.No.22 is reserved for recreation purpose. The Plan shows a major portion marked in green lies in the recreation zone and a small portion in the residential zone. It is not clear from the extract the extent of area lying in recreation zone and the extent lying in residential zone. The Special Officer and Competent Authority, should get it surveyed and exclude from the compulation of the holding of the appellant the extent of land lying in the recreation zone and land reserved for the road. With these observations, the appeal is remitted to the Special Officer and Competent Authority for recomputation of the holding"
Upon such remand of the matter, the contextual facts depict that the Special Officer did get the land measured and recomputed the total area with a finding that only 914.98 square metres can be termed to be vacant land and since the same docs not fall within the ambit of the Ceiling Act, the Special Officer held that the declarant is not a surplus land holder, subject to condition, however, as appears from the order, that:
"......... Any change in land use will attract the provisions of Section 15 of the Urban Land (Ceiling and Regulation) Act."
4. Subsequent, however, to the order of the Special Officer, there were, as a matter of fact, dealings and transactions between February 1993 and May, 1996, and as a matter of fact, admittedly 23 sale-deeds were executed for sale of the property including that of the recreational area. Be it noted that there are certain disputes as regards the contents of those sale-deeds, but we do not feel it convenient to deal with the same in cxtenso or to embark upon any factual enquiry at this stage of the proceedings. The fact remains, however, that the purchasers did, in fact,change the nature and character of land-use and constructions on the portion of the recreational facilities and other area have started and it is at this juncture, the State Government thought it fit to invoke the power in terms of Section 34 of the Act of 1976 and issued a show-cause notice as to why the order of the Special Officer and Competent Authority in his proceedings dated 31st May, 1993 determining the declarant as non-surplus land-holder should not be set aside and a denovo enquiry be made for determination of the holding of the declarant under the provisions of the Act. It is not out of place to put on record, however, that as a matter of fact, this change of land-use has been sanctioned by appropriate agencies. Be it noted that against this factual backdrop the petitioners thought it prudent to move this Court against the issuance of the show-cause notice under Article 226 of the Constitution on the ground that the same was issued wholly without jurisdiction and the learned single Judge, upon consideration, did, in fact, record a finding that the show-cause notice was, in fact, issued without jurisdiction and as such quashed the same and hence the appeal.
5. Two principal issues arise for consideration; Firstly the power of the State Government to review the order in terms of the provisions of Section 34 of the Act and secondly, the jurisdiction of the High Court under Article 226 of the Constitution in the matter of interference at a stage of the proceeding when the governmental authority did deem it fit to exercise its statutory power and has issued a show-cause notice in terms therewith. Turning attention on to the second count first, it is rather pertinent to note that scope of judicial review ability in a situation like the present one is extremely limited and the High Court would be rather slow and loath to intervene at this stage of proceedings since the authority ought to be given a free hand and a full play in the matter of enquiring into the circumstances which prompted the authority concerned to issue the show-cause notice. It is in this context, the observations of a learned single Judge of the Calcutta High Court in the case of ITC Ltd, v. Union of India, seem to be rather apposite wherein the learned single Judge observed that ordinarily, a writ petition is not maintainable against a show-cause notice inasmuch as, when a show-cause notice is issued, the parly gets an opportunity to place his case before the authority concerned and there arc elaborate procedures by way of an appeal and/or revision against such order passed in such proceedings. Incidentally, the judgment of the learned singe Judge was also affirmed by an Appellate Bench of the Calcutta High Court and the law is, so well settled on this score, that we do not feel it inclined to dilate much on this score excepting what has been noted above.
6. Before adverting on to the first count, it would, however, be convenient to note the provisions of Section 34 of the Act of 1976. Section 34 reads as below:
"34. Revision by State Government ;- The State Government may, on its own motion call for and examine the records of any order passed or proceedings taken under the provisions of this Act and against which no appeal has been preferred under Section 12 or Section 30 or Section 33 for the purpose of satisfying itself as to the legality, propriety of such order or as to the regularity of such procedure and pass such order with respect thereto as it may think fit:
Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard in the matter."
7. Mr.Majumdar, upon reliance onto the language of Section 34 itself, contended that the Section itself precludes any revision in view of there being an appeal under Sections 12,30 and 33 and since in the instant matter there was in fact such an appeal, question of any revision docs not and cannot arise. Mr. Majumdar contended that, as a matter of fact, any other interpretation would lead to a tremendous anamolous situation by reason of the fact that in that event the Government would be allowed to sit in appeal over the order of Tribunal in terms of Section 12 which is neither feasible nor practicable nor can either be ascribed to be a permissible state of affairs. At the first blush, the submission of Mr. Majumdar seems to be rather interesting. But on the closer scrutiny of facts and as contended by the learned Advocate-General appearing in support of the appeal, the same, however, loses its efficacy in the contextual facts. The facts reveal that there was, in fact, a determination by a Special Officer declaring certain quantum of land as an excess land in the urban agglomeration of Hyderabad City. The appeal taken there from resulted in an order of remission of the matter by the appellate authority to the Special Officer being the competent authority and the Competent Authority subsequently, however, passed an order declaring that, in feet, the declarant docs not hold any excess land capable of being within the purview of excess land in terms of the provisions of Act 1976. It is on this score, the issue, therefore, arises as to whether the order, in fact, takes the shape of finality by reason of the same being passed on remand? In our view, however, the answer cannot but be in the negative. As a matter of fact, Mr. Majumdar himself contended that in the event the order has gone against the declarant, the declarant could have taken the matter before the appellate authority in terms of the provisions of Section 33 of the Act. We do feel it inclined to record, therefore, that the order passed on remand cannot be said to have lost its independence and as such the same can and, in fact, ought to be treated as an independent order having all the facets and subject to correction in an appeal. The appellate remedy as conferred in terms of Section 33 cannot be said to have been taken away by reason of the remand order. Strong reliance has been placed on the decision of a learned single Judge of the Gujarat High Court in the case of N.K. Mehta v. Competent Authority and Dy. Collector, Rajkot, AIR 1998 Guj. 162 and in particular paragraph 21 thereof. Before referring to the same we do deem it fit to note the observations of the learned single Judge of the Gujarat High Court in paragraph 16 of the report. Paragraph 16 reads as follows:
"16. The scheme of the Act appears to be that the orders passed by the competent authority may not become final at the level of competent authority only. Even the orders which are appealable under Sections 12, 30 and 33 and against which appeal is not preferred are subject to revision by the Government under Section 34. Moreover, all other orders except to orders passed under Section 11 and Section 30 (1) of the Act can be challenged in appeal under Section 33 of the Act by any person aggrieved by such order. These orders would be examined by the appellate authority in appeal. Thus, as pet- the scheme of the Act each and every order passed by the competent authority will come up for scrutiny either at the level of the appellate authority tinder Section 33 of the Act or at the level of the Government under Section 34 of the Act, Be it noted that appellate authority exercising powers under Section 33 and revisional authority exercising powers under Section 34 of the Act are conferred with almost the same width of powers. Under Section 34 of the Act, the Government has powers to pass orders 'as it may think fit'. As held by the Supreme Court in the case of Babulal Nagar (supra) the two phrases "as it may think fit" and "as it deems fit" have same connotation unless the context otherwise indicates. Thus the revisional powers conferred upon the State Government under Section 34 of the Act and the appellate powers conferred upon the appellate authority under Section 33 of the Act are almost equal as for as the nature of the order to be passed by the respective authority is concerned. The intention of the Legislature appears to be that the order passed by the competent authority is not to be treated as final. Wherever the land holder prefers an appeal, the appellate authority exercises powers under Section 33 of the Act. In other cases the Government may suo motu take up proceedings in revision under Section 34 of the Act and may pass the same or similar orders as may be passed by the appellate authority under the Act. The object of keeping check on the powers exercised by the competent authority is thus achieved by making almost similar provisions under Section 33 and Section 34 of the Act."
The learned single Judge, therefore, in no uncertain terms categorically recorded that the intention of the Legislature by reason of incorporation of Sections 33 and 34 is apparently clear to the effect that the order passed by the competent authority is not to be treated as final but the same is subject to the scrutiny either by the appellate authority in terms of Section 33 or by the State Government in review in terms of Section 34. Admittedly, there is an order passed by the Special Officer-cum-Conipetent authority and the factum of there being no further appeal pending in terms of Section 33, prompted the Government to take steps in terms of provisions of Section 34 and as the law enjoins, as show-cause notice was issued.
8. Turning attention on to paragraph 21 of the judgment as noted above (supra), the learned single Judge observed as below:
"21. It is submitted that if the appellate authority sets aside an order passed by the competent authority which may be in favour of the landholder at whose instance the appeal is preferred, it would amount to suo motu exercise of powers. This is not correct. The appellate authority exercises powers only after an appeal is preferred before it. The appellate authority gets powers to decide the appeal only after the appeal is received by it. This is clear from the following words occurring in subsection (2) of Section 33 of the Act. "On receipt of an appeal under sub-section (I), the appellate authority shall, after giving the appellant an opportunity of being heard, pass such orders thereon as it deems fit as expeditiously as possible." If the landholder or any other person aggrieved by the order passed by the competent authority does not prefer appeal against an order passed by the competent authority, and if the appellate authority does not receive an appeal, it has no power to call for the papers suo motu. These powers are conferred upon the Government under Section 34 of the Act. While exercising powers under Section 33 of the Act, the appellate authority does not exercise suo motu powers, but it exercises powers in appeals which have been received by it. Therefore, to say that the appellate authority exercises suo motu powers which arc conferred upon the Government is not correct. It may be that ultimately the order that may be passed by the appellate authority may be the same as that may be passed by the Government under Section 34 of the Act. But that does not mean that the appellate authority exercises suo motu powers when it sets aside an order passed by the competent authority and remands the matter to the competent authority for deciding the same in accordance with law."
The observations contained therein do not advance the matter any further. As such no further discussion need be had in the matter. Suffice it to record that in the contextual facts, question of there being a bar in the matter of invocation of power under Section 34 by the , State Government does not and cannot arise. I The issuance of the show-cause notice, thus cannot be said to be without jurisdiction as has been contended by the learned counsel appearing in support of the appeal.
9. In the premises, we are not in a position to record our concurrence with the finding of the learned single Judge in the contextual facts that the issuance of the notice was without jurisdiction for the reasons as above.
10. A faint attempt has been made by Mr. Majumdar that by reason of the order passed from time to time culminating in the order of die Government dated 25-2-1997, question of issuance of a fresh show-cause notice does not and cannot arise. In order to appreciate this contention, however, relevant extract of the letter dated 25th February, 1997, is set out herein below:
"With reference to the letter cited, the Special Officer and Competent Authority, Urban Land Ceiling, Hyderabad is informed that there are no grounds to reopen the case of Smt. Indira Rai and he is requested to direct the purchasers to file declarations under Section 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976.
The connected CC record bearing No.R.Dis Fl/ENOE/7626 containing pages 237 CF and 21 NF are returned herewith and he is requested to acknowledge the records.
R.M. Gonela, Joint Secretary to Government"
While it is true that Joint Secretary to the Government, Department of Revenue, did write that no grounds existed to reopen the case of . Smt. Indira Rai, but we do feel it inclined to observe that these issues can, in fact, be raised as and by way of a defence in reply to the show-cause notice. The Court ought not to embark upon an enquiry as to whether the same would amount to a bar or not. The appropriate authority would wholly be within its jurisdiction to deal with the matter appropriately.
11, In that view of the matter, the order of the learned single Judge cannot be sustained. The appeal is therefore allowed. The order of the learned single Judge, therefore, thus stands set aside and quashed. The writ petitioner-respondent is directed to file a reply to the show-cause notice within a period of six weeks from the date hereof and the appellate authority is directed to deal with the matter in accordance with law upon affording an opportunity of hearing to the writ petitioner within a further period of four weeks. It is desired that the appellate authority while dealing with the matter should pass a reasoned order in the matter. Be it noted that we have not gone into the merits of the matter and any observations made herein will not have any effect and bearing on to the adjudication of disputes as may be raised before the adjudicating authority and the latter would be at liberty to deal with the matter on its own merits in accordance with law.
There shall be no order as to costs.