Telangana High Court
Smt. Kasireddy Haritha, vs State Of Telangana, Rep. By Its ... on 6 June, 2023
Author: B. Vijaysen Reddy
Bench: B. Vijaysen Reddy
THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
WRIT PETITION No.42206 of 2017
ORDER:
This writ petition is filed seeking the following relief:
a) to declare that the proceedings initiated in CC.No.F1/19/95 and batch in respect of plotNo.65 Jubilee Enclave in Survey Nos.66 & 67, part of Madhapur Village, Serlingampally Mandal, Ranga Reddy District as contrary to Section 10(5) and 10(6) of the Urban Land Ceiling Act, illegal, unlawful, arbitrary, malafide and the same would not affect the settled rights of ownership and peaceful possession of the petitioner;
b) to declare that the action of the respondents in causing any sort of illegal interferences in the possession and enjoyment of plot No.65 Jubilee Enclave in Survey Nos.66 & 67, part of Madhapur Village, Serlingampally Mandal, Ranga Reddy District, as violative of Articles 14, 19, 21, 300-A of the Constitution of India.
c) declare that the petitioner is entitled for refund of Rs.15,80,095/- from the respondents, which was erroneously collected from the petitioner on the assumption that the land is vested with the State and required to be regularized, in view of the repeal of the Urban Land Ceiling Act.
2. The petitioner claims to have purchased an extent of 600.00 square yards equivalent to 501.60 square meters situated at Jubilee Enclave, Madhapur Village, Serilingampally Mandal, Ranga Reddy 2 District under registered Sale Deed bearing No.1459/1995 dated 31.01.1995. That the vendors of the petitioner sold the plot after obtaining sanction of layout plan from HUDA. As per the recitals of the said sale deed, the vendors owned the vacant land admeasuring Ac.17.17 guntas in the peripheral area of Hyderabad Urban Agglomeration and after issuance of G.O.Ms.No.733 dated 31.10.1988, availed exemption under the said G.O., and transferred an extent of 600 sq. yards to the petitioner. Ever since the execution of sale deed, the petitioner had been in possession of the subject plot.
3. It is submitted that the petitioner was wrongly advised to make an application to the respondent No.2 on 31.12.2008, under G.O.Ms.No.747 Revenue (UCT) Department dated 18.06.2008, seeking regularization of the land by paying necessary charges of Rs.15,80,095/- by way of Demand Draft No. 181507, dated 30.12.2008. The petitioner had been in actual and physical and uninterrupted possession of the subject plot for the past 22 years. There was no master plan covering the plot of the petitioner (Madhapur Village) as on 17.02.1976, which is the appointed date under the Urban Land (Ceiling and Regularization) Act, 1976 (for short 'the Act'). As per the judgment of the Supreme Court in SMT. 3 ATIA MOHAMMED BEGUM v. STATE OF UP1, the ULC Act was not applicable to Madhapur village. Subsequently, the decision in ATIA MOHAMMED BEGUM's case (1 supra) was overruled by the Supreme Court in STATE OF AP AND OTHERS v. N. AUDIKESAVA REDDY2. The sale deed of the petitioner was executed after the decision in ATIA MOHAMMED BEGUM's case (1 supra) and before the decision in N. AUDIKESAVA REDDY's case (2 supra). Thus, the sale deed of the petitioner is valid. The petitioner was in possession of the subject plot, the same cannot be computed to the holding of his vendors. The petitioner was not issued any notice under Section 10(5) of the ULC Act and if any proceedings are initiated under Section 10(6) of the ULC Act behind the back of the petitioner, the same are null and void. The land did not vest in the Government under the ULC Act. Thus, there was no necessity for the petitioner to pay regularization amount of Rs.15,80,095/-.
4. As there was delay in disposal of the application of the petitioner, the petitioner filed W.P. No.23231 of 2016, which was disposed of by this Court on 03.08.2016 with a direction to the respondent No.3 to dispose of the application within four months from the date of receipt of the copy of the order. As the direction in the writ petition was not complied with, petitioner filed CC.No.1385 1 AIR 1993 SC 2465 2 AIR 2002 SC 5 4 of 2017. When the contempt proceedings were pending, the respondent No.3 issued the impugned proceedings dated 29.06.2017 taking an altogether different stand that the application of the petitioner cannot be considered since there is a cloud regarding the exact extent of the ceiling land that is fixed on the ground and whether the plot No.65 falling in Sy.Nos.66 & 67 of Madhapur Village, Serilingampally Mandal, Ranga Reddy District, claimed by the petitioner is located within the ceiling surplus land and link is established from the declarant; That, a comprehensive survey has to be done to ascertain whether the subject plot falls in Survey Nos.65, 66 & 67 or in Government land in Sy.No.64. The contempt case was closed in view of the proceedings of the third respondent giving liberty to question the proceedings dated 29.6.2017.
5. It is the case of the respondents that one Smt. Rameeza Bee and others through their G.P.A. holder Sri. G. Venkat Reddy as well as the other individuals have filed declarations in Form -I U/s 6(1) of ULIC&R) Act, 1976 declaring the following properties vide C.C.No.F1/19/95, F1/4063/6(1)/03, 4064, 4065, 4066, 4067, 4068, 4069, 4070, 4071 & 4072 /6(1)/03.
5 Sl. Name of the declarant & Description of Locality Extent No C.C. No. property Ac.Gts. 1 Smt. Rameeza Bee and Sy.No.65, 66 & 67 Madhapur 2.00 Others through G.P.A D. 10.08 Venkata Reddy in C.C. No. 18.02 19/95 Total 30.10 2 Smt. Rameeza Bee Sy.No.65, 66 & 67 Madhapur 35.31 4063/6(1)/03 3 Shaik Chand Pasha Sy.No.65, 66 & 67 Madhapur 35.31 4064/6/(1)/03 4 Shaik Sabeer, S/o Late. Sy.No.65, 66 & 67 Madhapur 35.31 Jahangir Miya 4065/6(1)/03 5 Shaik Nazeer S/o Late. Sy.No.65, 66 & 67 Madhapur 35.31 Jahangir Miya 6 Shaik Moinuddin Sy.No.65, 66 & 67 Madhapur 35.31 7 Shaik Basheeruddin S/o Sy.No.65, 66 & 67 Madhapur 35.31 Late. Jahangir Miya 8 Shaik Bhagdad S/o Late. Sy.No.65, 66 & 67 Madhapur 35.31 Jahangir Miya 4069/6(1)/03 9 Jahangir Bee, W/o Late. Sy.No.65, 66 & 67 Madhapur 35.31 Jani Miya 4070/6/(1)/03 10 Shaik Hameed S/o Late. Sy.No.65, 66 & 67 Madhapur 35.31 Jahangir Miya 4072/6(1)/03
6. Ten (10) declarations were clubbed into 2 groups i.e. (1) Sri Jahangir Miya (died per L.Rs) Smt Rameeza Bee and others, (2) Sri Jani Miya (died per L.Rs) Smt. Jahangir Bee and others, and allowed 1000 sq. meters each under Section 4(1)(b) of the ULC Act, i.e. 2000.00 sq. meters and were declared as surplus holders to an extent of 1,42,653.08 sq. meters. The draft statement under Section 8(1) and notice under Section 8(3) were issued on 19.12.2003 wherein it is stated that Sri Madar Saheb and Sri Jani Miya are joint pattadars of land declared and both expired after the commencement of the ULC Act and their legal representatives have been declared as surplus land holders as detailed below: 6
Sl. Name of the C.C. No. Description Extent
No Holder/ declarant of property Sq. Mtrs.
1. Jahangir Miya died F2/4063/6(1)/03 to Sy.No.65, 66 & 72336.55 per L.R. Smt. F2/4064/76 67 Rameeza Bee and Other
2. Janimiya died per F2/4067/6(1)/03 to Sy.No.65, 66 & 72336.55 L.R. Jahangir Bee F2/ 4070/6(1) 03 67 and Others Total 144673.10
7. That out of the total vacant land to an extent of 72336.55 sq. meters held by each individual, an extent of 1000.00 sq. meters was allowed to retain under Section 4(1)(b) of the ULC Act and each individual was determined as holding provisionally an extent of 71336.55 sq. meters in excess of the ceiling limit. As no objections have been received to Section 8(1) order, final order under Section 8(4) was passed and statement under Section 9 of the ULC Act was issued on 03.02.2004. Subsequently, it has come to the notice of the Government that the Special Deputy Collector (Industries) & Land Acquisition officer vide Proceedings No.B/737/96 dated 31.03.2003 issued orders permitting exchange of land in Sy.No.65 (which includes land declared surplus) with equal extent of land in Sy.No.64 held by APIIC as the exchange has been done before determination of surplus land. The Government has advised to take possession of land in Sy.No.64 in lieu of land declared surplus in Sy.No.65 vide Government Memo No.19748/UC-II/(3)/04-2 dated 14.03.2005.
7
8. It is further stated that on receipt of the clarification from the Government, Section 8(4) orders issued earlier on 03.02.2004 were modified under Section 45 of the ULC Act and revised final order under Section 8(4) of the ULC Act was passed on 03.05.2005 declaring the original holders as surplus vacant landholders as under:
Sl. Name of the C.C. No. Location Sy. Total Extent Extent Extent No. declarant & No. ext. in fallen to allowed declared C.C. No. Sq. Mtrs. the share to retain in surplus in Sq. U/s in Sq. Mtrs Mtrs 4(1)(b) of the Act in Sq. Mtrs 1 Sri. Jahangir F1/4063/6(1) Madhapur 64 10924.85 5462.43 0.00 5462.43 Miya died per / 03 to L.Rs. Smt F1/4066/6(1) 66 53005.74 26502.87 1000.00 25502.87 Rameeza Bee / 03 and Others 67 80722.49 40361.24 0.00 40361.24 Total 72326.54 1000.00 71326.54 2 Sri. Jani Miya F1/40676(1)/ Madhap 64 10924.85 5462.42 0.00 5462.42 died per L.Rs. 03, to ur 66 53005.74 26502.87 1000.00 25502.87 Smt. Jahangir 4070 & Bee and Others 40726(1)/03 67 80722.49 40361.25 0.00 40361.25 Total 72326.54 1000.00 71326.54 Grand Total 144653.08 144653.08 2000.00 142653.08 Thereafter, a notification under Section 10(1) of the ULC Act was published in A.P. Gazette No.99 dated 27.05.2005 and the declaration under Section 10(3) of the ULC Act was published in A.P. Gazette No.184 dated 22.08.2005. Notice under Section 10(5) of the ULC Act was issued to the declarant on 15.11.2005 and Section 10(6) of the ULC Act was issued on 27.09.2006 and 8 possession was taken over on 13.10.2006 under cover of panchanama.
9. Thus, it is contended that the Village Madhapur was listed in Moosapet Gram Panchayat, which is a notified Gram Panchayat and falls within the core area of Hyderabad Urban Agglomeration and not under pheriperal area. So far an extent of 1,00,442.69 sq. meters in 160 cases are regularized and only 6,547.12 sq. meters is available for further regularization. Another 25 applications covering an extent of 20,372.82 sq. meters are pending for regularization including the plot of the petitioner. However, third party occupants similar to the petitioner have also filed applications for regularization of their plots falling in the Government land in Sy.No.64 claiming it to be part of the surplus land. On enquiry into such applications, their occupation was found to be falling in Sy.No.64 (Government Land). As such without conducting the comprehensive survey, it is not feasible to find out whether the present writ petitioner's plot No.65 is falling in surplus land in Sy.Nos.66 and 67 of Madhapur village or falling in Government land bearing Sy.No.64 of Madhapur village. Therefore, the then District Collector, Ranga Reddy District has passed orders in file No.F1/747/18357/2008 dated 29.06.2017 in C.C.No.F1/19795 & batch. That the application filed by the petitioner for regularization was not considered at this stage until 9 the cloud about the exact extent of ceiling land is fixed on the ground to locate whether the plot of the petitioner is falling within surplus land declared in this case or in the Government land. The petitioner is a third party purchaser and sale deed dated 07.02.1995 is null and void under Section 5(3) of the ULC Act. The petitioner is neither a declarant nor legal representative of the declarant and is not entitled to any notice under Section 10(5) of the ULC Act.
10. Section 10(5) of the ULC Act reads as under:
"10. Acquisition of vacant land in excess of ceiling limit.-- ...
...
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."
11. It is the contention of the learned counsel for the petitioner that even assuming that the land was declared surplus, possession of the land was never taken at any point of time. The alleged panchanama is a paper panchanama. The petitioner, who purchased the land on 07.02.2005 under registered sale deed, should have been issued notice under Section 10(5) of the UL Act. 10 The learned counsel relied on the judgment of the Hon'ble Supreme Court in State of Uttar Pradesh v. Hariram3.
12. It is not disputed by the learned Government Pleader for Assignment that Madhapur Village was included in the extended master plan of Hyderabad City vide G.O. Ms. No.391 Municipal Administration dated 23.06.1980, which came into force from 29.09.1980. The sale deed of the petitioner dated 07.02.1995 was registered as it was declared by the vendor that the plot, being sold, is exempted under G.O.Ms.No.733 dated 31.10.1988. So also it is not the case of the learned Government Pleader that the sale deeds, which were executed between 1993 till 2002 when the judgment of the Supreme Court in ATIA MOHAMMED BEGUM's case (1 supra), was holding the field, is invalid. In the said decision, it was held that the master plan which was in existence on the appointed day under the ULC Act (17.02.1976) is relevant for determination of holding of the declarant and not the land included in the subsequent master plan. The learned Government Pleader has not cited decision of any High Court or the Supreme Court to contend that the sale deeds executed between 1993 and 2002 and until the judgment in ATIA MOHAMMED BEGUM's case (1 supra) was overruled by the judgment in N. AUDIKESAVA REDDY's case (2 supra) are void. Thus, in the opinion of this Court, the petitioner 3 (2013) 4 SCC 280 11 has locus standi to institute this writ petition as her sale deed was registered without any objection raised by the Sub-Registrar and also after the judgment in ATIA MOHAMMED BEGUM's case (1 supra). Even otherwise, the petitioner was in physical possession of the land as on 09.02.2006 and when notice under Section 10(5) of the ULC Act was allegedly issued. The notice was not issued to the petitioner, who was in physical possession of the land under valid sale deed.
13. I have carefully perused the record produced by the learned Government Pleader. It discloses that even prior to 13.10.2006 (date of panchanama of allegedly taken over possession of the surplus lands) several applications have been filed by the individual plot owners under G.O. Ms. No.455 dated 29.07.2002 for regularisation of their plots, which have been favourably considered by the respondents and as admitted in 'paragraph No.9' of their counter affidavit. Some of the applicants are stated to have availed G.O. Ms. No.747 dated 18.06.2008. But, there is no dispute that several applications were filed under G.O. Ms. No.455 which proves beyond any doubt that several third parties were in possession of the alleged surplus lands before the date of panchanama (13.10.2006). The petitioner is one such third-party purchaser under the sale deed dated 31.01.1995 and possession of the petitioner is neither disputed nor any material is produced to 12 disbelieve the same. In fact, petitioner initially filed the application dated 31.12.2008 under G.O. Ms. No.747 dated 18.06.2008 for regularisation of the plot by depositing requisite charges, but later in her wisdom chose to withdraw the application on being informed that the subject plot did not vest in the Government under the ULC Act.
14. By following the decision of the Hon'ble Supreme Court in Hariram (Supra 3), this Court in Rajkumar Surana v. Government of Andhra Pradesh4 at Paragraph Nos.17 and 22 to 25 held as under:
"17. In Hari Ram (supra), the Supreme Court on a detailed examination of the provisions of the principal Act and the Repeal Act, inter alia, has held as under:
(a) vest/vested under Section 10(3), may or may not include "transfer of possession", the meaning of which depends on the context in which it has been placed and the interpretation of various other related provisions (para-28).
(b) Acquisition of vacant land does not take into its fold possession unless there is an indication to the contrary. under Section 10(3), what is vested is de jure possession not de facto because the expression "vested" is tested on a statutory hypothesis and such a hypothesis can be carried only to the extent necessary to achieve the legislative intent. (para-30)
(c) The "vesting" in sub-section (3) of Section 10, means vesting of title absolutely and not possession though nothing 4 2014 (2) ALD 125 13 stands in the way of a person voluntarily surrendering or delivering possession. (para-31)
(d) sub-section 5 of Section 10 speaks of "possession" which occurs by surrendering or transfer of possession voluntarily by the person in possession, while Section 10(6) speaks of forceful dispossession i.e., where a person in possession does not respond to the notice under Section 10(5) and does not voluntarily surrender possession (paras-34 to 36)
(e) The requirement of giving notice under sub-sections 5 and 6 of Section 10 is mandate though the word "may" has been used therein." (para-37)
22. As noted above, Section 10(5) of the Act mandates service of notice to the persons in physical possession of the land.
Forceful possession can be taken only if the persons in occupation of the land do not voluntarily surrender the same. As held by the Supreme Court forceful dispossession can be resorted to under Section 10(6) of the Act only after issuing notice under Section 10(5) of the Act which was held to be mandatory. Admittedly, the petitioners were not given notices. Therefore, the panchanama set up by the respondents, under which physical possession of the land was purportedly taken, has no legitimacy in law.
23. Further more, the very theory of taking physical possession of the subject land is contradicted by the respondents' own showing. The respondents did not dispute that the petitioners are in physical possession of the subject land. Indeed, to some of the petitioners, notices in writing were given calling upon them to apply for regularisation of possession of their lands. It is not the pleaded case of the respondents that after physical possession was taken on 04.03.2008, the petitioners have illegally occupied the subject land. Thus, the very plea set up by the respondents that they have taken physical possession of the land on 14 04.03.2008 is self-contradictory and the same cannot be accepted. On the respondents' own showing, the petitioners are continuing in physical possession of the subject land and what was evidently taken was only a symbolic possession on paper.
24. As held by the Supreme Court in Hari Ram (supra), the Repeal Act will save only in such cases where the de facto possession (physical possession) was taken and mere vesting of the land under Section 10 (3) of the Act or symbolic possession on paper would not save the proceedings under the Act from getting lapsed under the Repeal Act as and when the same is adopted by the respective State legislatures.
25. On the above analysis, this Court has no option other than holding that the ULC proceedings initiated in respect of the subject land have lapsed as, the respondents failed to take physical possession of the subject land as on the date on which the Andhra Pradesh legislature has adopted the Repeal Act or even subsequent thereof. Consequently, there is no need for the petitioners to seek regularisation of their possession over the subject land. The respondents cannot retain the amounts collected from the petitioners in the name of regularisation."
15. It is interesting to notice that in the panchanama dated 13.10.2006 itself, it is noted that "plots of purchasers have been regularised under G.O.455" which indicates in clear terms that several third parties were in possession of surplus lands much prior to 13.10.2006 and it was a paper panchanama. There is no subdivision record prepared to demarcate individual plots including that of the petitioner. Thus, contention of the respondents that 1,42,653.7 square meters of surplus land in C.C. 15 Nos.F1/40676(1)/03, to 4070 & 40726(1)/03 was taken pursuant to Section 10(5) notice dated 29.07.2006 allegedly issued to the declarants, even when third parties are admittedly in possession and got their plots regularised prior to 13.10.2006, is absurd and unacceptable. The alleged notice under Section 10(5) was to be issued to the person in possession as mandated under Section 10(5) of the Act. The learned Government Pleader has not cited any judicial precedent which holds that a person in possession other than the declarant or their legal representatives are not entitled for notice under Section 10(5) of the Act. A plain reading of the said provision indicates that notice has to be issued to any person in possession which is not done in this case. Thus, the impugned notices / proceedings under Section 10(5) and 10(6) are non-est, null and void. The ULC Repeal Act 1999 was adopted in the State of Andhra Pradesh with effect from 27.03.2008 and as per Section 4 of the Repeal Act, the ULC proceedings of lands possession of which is not taken are abated. As observed, the actual possession is not taken and the panchanama dated 13.10.2006 is a paper panchanama, the impugned proceedings in respect of the subject plot are abated.
16. For the aforesaid reasons, the writ petition is allowed as prayed for. The respondents are directed to refund a sum of Rs.15,80,095/- paid by the petitioner towards regularization fee 16 vide application No.18357/747/2008 (CC.No.F1/19/95). There shall be no order as to costs.
Miscellaneous Applications, if any, pending in this writ petition shall stand closed.
____________________ B. VIJAYSEN REDDY, J June 6, 2023.
DSK