*THE HON’BLE SRI JUSTICE N.V. RAMANA +WRIT PETITION NO.5088 OF 2008 %Dated 30.09.2008 # Mrs. Tahera Yousuf Kadri and another. ..... PETITIONERS VERSUS $ The Govt. of Andhra Pradesh, Revenue, Urban Land Ceiling Department, Secretariat, Hyderabad, rep. by its Prl. Secretary and 5 others. .....RESPONDENTS ! Counsel for Petitioners: Sri S. Venkat Reddy ^ Counsel for Respondents 1 to 3: Advocate-General Counsel for Respondent Nos. 4 and 5: Sri S.R. Ashok Counsel for Respondent No.6: Sri C. Kodandaram < GIST: > HEAD NOTE: ? Cases referred: 1. 1977 ALT 644 2. (1990) 1 SCC 193 3. (1993) 2 SCC 507 4. AIR 1970 SC 838 5. (1991) SCC 494 6. AIR 1963 SC 827 7. AIR 1980 SC 1037 8. AIR 1969 SC 634 9. AIR 1976 SC 789 10. (1969) 3 SCC 769 11. (1998) 8 SCC 749 12. (2004) 3 SCC 553 13. (1991) Supp (2) SCC 464 14. AIR 1966 SC 1942 15. (2000) 1 SCC 666 16. (2002) 1 SCC 227 17. (1998) 4 SCC 387 18. (2003) 4 SCC 485 19. (2002) 5 SCC 383 20. (1996) 6 SCC 445 21. (2007) 6 SCC 120 22. (2007) 8 SCC 449 23. AIR 1993 SC 1472 24. AIR 1962 SC 199 25. (1996) 1 SCC 435 26. AIR 2000 SC 2723 27. AIR 1996 AP 157 28. AIR 1974 SC 2271 29. AIR 1979 SC 1628 30. AIR 1995 SC 1991(1) 31. AIR 2007 SC 924(1) 32. (1996) 6 SCC 445 THE HON’BLE SRI JUSTICE N.V. RAMANA W.P. No. 5088 of 2008 O r d e r: BRIEF CASE OF THE PETITIONERS 1. One Shri Mohd. Amjad Ali Khan, was the owner of agricultural land in an extent of Ac. 481.61 situate in Sy. Nos. 270, 284 to 300, 302, 304, 306, 307 and 311 to 317, Bachupalli village, Medchal Taluq, Ranga Reddy District. He died in the year 1950. After his death, his wife, namely Smt. Rabia Begum, his two sons, namely Ahsan Ali Khan and Akram Ali Khan, and his two daughters, namely Tahera Yousuf Kadri and Qudsia Sajjad, the petitioners herein succeeded to his property, and since then they were in enjoyment and possession thereof. 2. While so, the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (hereinafter referred to as ‘the Land Reforms Act’) came into force w.e.f. 01.01.1975. The petitioners state that their mother, their two brothers and themselves, ﬁled declarations separately under Section 8(1) of the Land Reforms Act, in respect of an extent of Ac. 481.697 cents of land in the above mentioned survey numbers, before the Land Reforms Tribunal, Hyderabad East Division, on 14.04.1975. The Land Reforms Tribunal, after hearing the petitioners, who were represented by a counsel, passed common order dated 31.08.1976 in C.C. Nos. 1995/M/75, 1972/M/75, 1997/M/75, 1954/M/75 and 2001/M/75, under Section 9 of the Land Reforms Act, determining their standard holding as per muslim law. The Land Reforms Tribunal found that the mother of the petitioners, namely Rabia Begum, was holding surplus land at 0.1619, their brothers, Ahsan Ali Khan and Akram Ali Khan each at 1.7111 and the petitioners each at 0.3555, and further held that they are liable to surrender the said excess land under Section 10(1) of the Land Reforms Act. 3. While the declarations ﬁled by the mother of the petitioners, their brothers and themselves were pending before the Land Reforms Tribunal, the Government of India enacted the Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as ‘the ULC Act’), which came into force w.e.f. 17.02.1976. After the Land Reforms Tribunal passed order dated 31.08.1976, the petitioners state that on legal advise, their mother, their brothers and themselves, also ﬁled declarations under Section 6(1) of the ULC Act on 16.09.1976 before respondent No. 3, namely the Special Oﬃcer and Competent Authority, declaring the entire extent of agricultural land owned by them. 4. While the matters stood thus, the petitioners state that their mother died on 30.10.1990, and as they did not hear anything with regard to the declarations ﬁled by them under Section 6(1) of the ULC Act, they made enquiries with the revenue oﬃcials and came to know that respondent No. 3 has suo motu taken up proceedings under the ULC Act, as if the land owners did not ﬁle any declarations, and passed orders dated 21.07.2004, which was published in oﬃcial gazette on 15.11.2005, determining the holding of the mother of the petitioner, namely late Smt. Rabia Begum at Ac.471.14, and further holding that she is entitled to keep an extent of 21,234.30 Sq. mtrs., and surrender the remaining extent of 18,86,253.16 Sq. mtrs., which was found to be in excess of the ceiling limit, to the Government. The petitioners further state that they were informed by the officials of the State Government that the declarations ﬁled by them and their brothers under the ULC Act were not available, and since by virtue of the gazette notiﬁcation dated 15.11.2005, the land in question, was deemed to have been vested in the Government, they can make applications for regularization of the land in terms of G.O. Ms. No. 456, (Revenue (UC-I) Department, dated 29.07.2002, which provided that the excess land owned by the individuals can be got regularized on payment of compensation to the State. 5. As advised, the petitioners state that they ﬁled separate applications dated 26.11.2005 and paid compensation of Rs. 1,82,00,000/- and Rs.1,98,00,000/- as provided in G.O. Ms. No. 456, dated 29.07.2002 and requested respondent No.3 to regularize the excess land, which was deemed to have been surrendered to the Government. However, the petitioners state that on coming to know that the land in question was allotted to some third parties, they made representations to respondent Nos. 1 to 3 requesting them to consider and pass appropriate orders on the applications ﬁled by them for regularization, but no action thereon had been taken. The petitioners state that on further enquiries, they came to know that respondent No.2, namely the Government through their Revenue Department have vide orders issued in G.O. Ms. No. 1381, Revenue (Asn.V) Department, dated 26.10.2007, alienated the land in question to respondent No.4, namely A.P. Housing Board, which in turn had alienated the same to respondent No.5, namely M/s. Deccan Infrastructure and Land Holdings Limited (joint venture of respondent No.4) and that respondent No.5 had alienated a part of the land in question to respondent No.6, namely M/s. Indu Projects Limited. 6. Hence, they filed the writ petition, seeking the following relief: PRAYER SOUGHT INITIALLY “this Hon’ble Court may be pleased to issue an appropriate writ, order or direction, more particularly one in the nature of Writ of Certiorari declaring: (i) that the proceedings No.G1/485/2002 dated 21.07.2004 issued by the 3rd respondent wherein ﬁnal order under Section 8 of the Urban Land (Ceiling and Regulation) Act, 1976 was passed against a dead person, petitioners’ mother who expired on 30.10.1990, on an erroneous assumption that the entire extent of 457.14 acres of land situate in Sy. Nos. 270, 284 to 300, 302, 304, 306, 307 and 311 to 317 of Bachupalli village, Medchal Taluq, Ranga Reddy District was owned by her alone, are null and void and are of no consequence. (ii) that the action of the 3rd respondent in not passing any orders on the declarations dated 16.09.1976 ﬁled by the petitioners in respect of 67.37 acres each from out of the total extent of 457.14 acres of land situated in Sy. Nos.270, 284 to 300, 302, 304, 306, 307 and 311 to 317 OF Bachupally village, Medchal Taluq, Ranga Reddy District under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, as arbitrary, illegal, unjust, violative of the fundamental and constitutional rights guaranteed under the Constitution of India as well as violative of the provisions of the Urban Land (Ceiling and Regulation) Act, 1976. (iii) that the action of the 2nd respondent in issuing G.O. Ms. No. 1381, Revenue (Asn.V) Department dated 26.10.2007 alienating an extent of 119 acres of land situate in Sy. Nos. 285/1, 286/1, 287/1, 289/2, 294, 295, 296 and 297/1, Bachupalli village, Medchal Taluq, Ranga Reddy District in favour of the 4 th respondent, who in turn alienated the same in favour of the 5th respondent and further action of the 5th respondent in alienating a part of the same in favour of the 6th respondent, without awaiting orders that are to be passed by the 1st and 3rd respondents on the applications dated 26.11.2005 bearing Nos. G1/456/28/2005 and G1/456/29/2005 ﬁled by the petitioners before the 3rd respondent seeking regularization under the provisions of G.O. Ms. No. 456, Revenue (U.C.I) Department, dated 29.07.2002 is arbitrary, illegal, unjust, discriminatory, without jurisdiction, violative of the fundamental and constitutional rights guaranteed to the petitioners under Articles 14 and 300-A of the Constitution of India, violative of the principles of natural justice as well as the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 and the provisions of G.O. Ms. No. 456, Revenue (U.C.I) Department, dated 29.07.2002 and also destructive of our legitimate expectation, and issue a consequential direction to the 3rd respondent herein to forthwith dispose of the declarations submitted by the petitioners herein on 16.09.1976 in Form-I under the provisions of Section 6(1) of the ULC Act duly taking into consideration the provisions of G.O. Ms. No. 733 (U.C.II) Revenue Department, dated 31.10.1988 and Section 4(1)(b) of the ULC Act and further issue a consequential direction to the 1st respondent herein to dispose of the applications dated 26.11.2005 ﬁled by the petitioners under the provisions of G.O. Ms. No. 456, Revenue (U.C.I) Department, dated 29.07.2002 and pass such other order or orders as are deemed ﬁt and proper in the circumstances of the case. 7. On 11.03.2008, this Court while ordering notice before admission, and considering the fact that the applications dated 26.11.2005 of the petitioners for regularization of the land in terms of G.O. Ms. No. 456, dated 29.07.2002 in their favour were pending, passed orders directing status quo obtaining as on the said day to be maintained by the parties with respect to possession of the land in question. On 25.03.2008, as it was reported by the counsel for the petitioners that respondent Nos. 5 and 6 were going ahead with making construction in the land in question, this Court directed them not to go ahead with any construction in the land in question until further orders. Thereafter, respondent Nos. 4, 5 and 6 ﬁled separate applications seeking to vacate the interim orders passed by this Court supported by counters. 8. Considering the stand taken by respondent Nos. 4 to 6 in their respective counters, the petitioners on 25.04.2008, ﬁled W.P.M.P. No. 12506 of 2008, inter alia stating that since respondent No.3 has not passed any orders on the declarations ﬁled by the petitioners under Section 6(1) of the ULC Act, and having regard to the fact that the ULC Act has since been repealed in the State of Andhra Pradesh w.e.f. 27.03.2008, respondent No.3 is not entitled to pass any orders on the declarations ﬁled by them, and as such, the prayer sought for by them in paragraph 14(ii) of the writ aﬃdavit, has become infructuous. They further stated that since respondent No.1 had rejected their applications dated 26.11.2005 for regularization in terms of G.O. Ms. No. 456, dated 29.07.2002, and ordered refund of the amount of compensation paid by them for the said purpose, they state that they are entitled to claim interest on the amount to be refunded to them. 9. The petitioners state that they have not surrendered any land in terms of the order dated 31.08.1976 passed by the Land Reforms Tribunal, and in fact, they have ﬁled declarations under Section 6(1) of the ULC Act in respect of the entire extent of land held by them. Respondent No.1 is not entitled to alienate the land alleged to have been surrendered in terms of the order of the Land Reforms Tribunal by receiving consideration, and as such, the alienation made by respondent No.1 in favour of respondent No.4, which through respondent No.5 has entered into agreement with respondent No.6 for development into an integrated township, is contrary to the provisions of Section 14 of the Land Reforms Act, and therefore, null and void. 10. So stating, they prayed this Court to permit them to substitute the following as the main prayer in the writ petition: PRAYER SUBSTITUTED SUBSEQUENTLY “It is therefore prayed that this Hon’ble Court may be pleased to issue an appropriate writ, order or direction, more particularly one in the nature of Writ of Mandamus declaring: A. (I) that the ﬁnal order in proceedings No. G1/485/2002 dated 21.07.2004 passed by the 3rd respondent herein, treating the entire extent of Ac. 457.14 of land situate in Sy. Nos. 270, 284 to 300, 302, 304, 306, 307 and 311 to 317 of Bachupalli village, Medchal Taluq, Ranga Reddy District was owned by Smt. Rabia Begum alone, who died on 30.10.1990, are null and void and are of no consequence. A. (ii) that the action of the 2nd respondent in issuing G.O. Ms. No. 1381, Revenue (Asn.V) Department dated 26.10.2007 alienating an extent of Ac.119.00 of land situate in Sy. Nos. 285/1, 286/1, 287/1, 289/2, 294, 295, 296 and 297/1, Bachupalli village, Medchal Taluq, Ranga Reddy District, in favour of the 4 th respondent who in turn alienated the same in favour of the 5th respondent and further action of the 5th respondent in alienating the same in favour of 6th respondent, are contrary to the provisions of A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 and the same are therefore null and void ab initio; and A. (iii) issue consequential direction to the respondents to restore the possession of the aforesaid Ac.457.14 of land to the petitioners and their brothers and a further consequential direction to the 3rd respondent to refund the sum of Rs.1,82,00,000/- and Rs.1,98,00,000/- deposited by the 1st and 2nd petitioners respectively on 26.11.2005 together with interest @ 18% p.a. with quarterly rests forthwith and pass such other order or orders as are deemed ﬁt and proper in the circumstances of the case” and pass such other order or orders as are deemed fit and proper in the circumstances of the case. 11. Before close of Courts for summer vacation from 02.05.2008, this Court heard the vacate stay petitions and reserved the matter for orders. However, during summer vacation, the counsel for respondent No.6 in USR No. 4495 of 2008 on 28.05.2008, ﬁled additional material papers, namely sale deeds, said to have been executed by petitioner No.2, inter alia stating that she had alienated the entire land that fell to her share in the division of properties, and that petitioner No.1 had not alienated any land that fell to her share. In view of this, at his request, the matter was listed “for being mentioned” on re-opening of the Courts after summer recess, and with a view to provide opportunity to all the parties, the matter was heard. And at this stage, all the counsel requested that the writ petition itself be disposed of ﬁnally, and accordingly, at their request, the writ petition itself was heard ﬁnally and at length on different dates. 12. As the respondents did not oppose the above petition, the petitioners, by order dated 04.07.2008 were permitted to substitute the above prayer as the main prayer in the writ petition. Thereafter, respondent Nos. 1 to 3 also ﬁled detailed counter. To all the counters ﬁled by the respective respondents, the petitioners filed writ petitions. STAND OF RESPONDENT NOS. 1 TO 3 IN THEIR COUNTER 13. The Principal Secretary to the Government in their Revenue Department, in the counter ﬁled on behalf of respondent No. 1 and 2 and 3, stated that the petitioners, their mother and brothers, ﬁled declarations under Section 8(1) of the Land Reforms Act, in respect of a total extent of Ac. 481.31 guntas of agricultural land in Sy. Nos. 270, 284 to 300, 302, 304, 306, 307 and 311 to 317 of Bachupalli village, Qutbullapur Mandal. The Land Reforms Tribunal, by common order dated 31.08.1976 passed under Section 9 of the Land Reforms Act, declared them to be holding surplus land (Rabia Begum – mother of the petitioner 0.1619 standard holding; Ahsan Ali Khan – eldest brother of the petitioners 1.7111 standard holding; Akram Ali Khan – younger brother of the petitioners, 1.7111 standard holding; Qudsia Sajjadd - 2nd petitioner 0.3555 standard holding, and the 1st petitioner – Tahera Yousuf Quadri 0.3555 standard holding), and under Section 10(1) of the Land Reforms Act, they were directed to surrender the said excess land to the government. 14. Pursuant to the said order, notices under Rule 7(1) of the Rules made under the Land Reforms Act, were issued on calling upon the petitioners to surrender the surplus land on or before 22.09.1976. Accordingly, the petitioners, their mother and brothers, surrender the excess land. Thereafter, objections under Rule 7(4) of the Land Reforms Act, were called. As no objections were received, the Land Reforms Tribunal, vide order dated 03.11.1976 under Section 10(1) requested the Assistant Collector to take possession of the surplus land. In terms thereof, on 23.11.1976, the possession of the surplus land was taken. The land having been vested in the government, was also recorded as government land in the revenue records. Thereafter, the petitioners mother, namely Rabia Begum, was paid an amount of Rs.737/-, the brothers of the petitioners, namely Ahsan Ali Khan and Akram Ali Khan, were paid an amount of Rs.5,000/- each and the petitioners namely, Tahera Yousuf Kadri and Qudsia Sajjad, were paid an amount of Rs.1,620/- each vide CDRs dated 18.09.1987. The petitioners having made the joint surrender cannot contend that they have not surrendered the land. The factum of surrender, is evident from the mutation proceedings, eﬀected in terms of the Deed of Settlement, whereunder the left over properties after surrender, were divided. 15. It is contended by respondent No.1 that agricultural land even though in urban agglomeration, is excluded from the purview of the Urban Land Ceiling Act, and the land of the petitioners which formed part of subject survey numbers of Bachupalli village, continued to be agricultural land, and as such, the petitioners could not have ﬁled declarations under the Urban Land Ceiling Act, since the provisions thereof, were not applicable to them when they ﬁled the declarations. The land that was surrendered by the petitioners, their mother and brothers, have to be excluded from the purview of the declarations under the Urban Land Ceiling Act. In the declarations ﬁled under Section 6(1) of the Land Reforms Act, the petitioners have claimed that they are entitled to 7/48th share in the property. In fact, notices under the provisions of the Urban Land Ceiling Act were issued, but as there was no response, the Special Oﬃcer and Competent Authority, did not proceed further in the matter and did not pass any orders on the said declarations. However, on the basis of a report submitted by the Enquiry Oﬃcer, who was enquiring into some other matter in relation to other survey numbers, it was found that declarations in respect of the lands in question were not ﬁled. The Special Oﬃcer and Competent Authority, was not apprised about the declarations ﬁled by the petitioners and their brothers also. However, as the name of the mother of the petitioners, was found in the revenue records, he issued notice dated 27.06.2003 under Section 6(2) of the Urban Land Ceiling Act, calling upon her to ﬁle statement in Form-I. In fact, the Special Oﬃcer and Competent Authority, was not aware of the death of the said Rabia Begum. As obviously, she was no more, there was no response, and in those circumstances, the Special Oﬃcer and Competent Authority, assuming that Rabia Begum is owner of the entire extent of Ac.471.14 guntas of land and unaware of the land surrendered by them in terms of the Land Reforms Act, and the land which she is entitled to retain under G.O. Ms. No. 733, dated 31.10.1988, has passed order dated 21.07.2004. Thereafter, gazette publication was issued, and the land stood absolutely vested in the government w.e.f. 25.11.2005. It, is however, stated that since the order dated 21.07.2004 has been passed by the Special Oﬃcer and Competent Authority, against Rabia Begum, who is a dead person, the same excluding the land in an extent of Ac.214.76 cents, already surrendered in terms of the order dated 31.09.1976 of the Land Reforms Tribunal, are non est in the eye of law. 16. The petitioners have not approached the Court with clean hands, they have ﬁled the writ petition suppressing the factum of surrender of surplus land in terms of the order of the Land Reforms Tribunal and receipt of compensation, and claimed as if they are entitled to the entire extent of land. In fact, the order dated 31.08.1976 passed by the Land Reforms Tribunal attained ﬁnality, since no appeal was ﬁled against the same. Mere repealing of the Urban Land Ceiling Act w.e.f. 26.03.2008, will not have any eﬀect on the proceedings, which concluded under the Land Reforms Act. The lands in question are agricultural land, and they were brought under “urban agglomeration area” only in the year 1980. 17. It is stated that the land that was given to respondent No.4, which through respondent No.5 had given possession some portion thereof to respondent No.6 is the land that was surrendered and taken possession of by the government in terms of the order dated 31.08.1976 passed by the Land Reforms Tribunal. The land was alienated in terms of a policy decision taken by the government to construct 1,00,000 dwelling houses in and around the twin cities for the poor free of cost. Respondent No.4 has been given the task of developing the Integrated Township either by itself or through its agency, namely respondent No.5. Respondent No.4 had paid an amount of Rs.1,000/- crores for the land in an extent of Ac.178.03 alienated in its favour vide G.O. Ms. No. 1381, dated 16.10.2007. In fact, land in an extent of Ac.639.03 guntas, including land in an extent of Ac. 119.00 in Bachupalli village, was alienated to respondent No.4 at the rate of Rs.90.00 lakhs per acre. 18. The applications dated 26.11.2005 of the petitioners for regularization of land in terms of G.O. Ms. No. 456, dated 29.07.2002, was rejected by the government vide orders passed in Memo dated 26.03.2008 and the amounts paid by the petitioners were directed to be refunded. It is contended that the lands, which the petitioners sought regularization, were not alienated, and in fact, the lands that are alienated in favour of respondent No.4 are the lands that were surrendered and taken possession of by the government under the Land Reforms Act. The petitioners without disclosing the true facts, have ﬁled the writ petition, with a view to take undue advantage, and thus prayed that the writ petition be dismissed with costs. STAND OF RESPONDENT NO.4 IN THEIR COUNTER 19. In the counters ﬁled by respondent No.4, it is stated that the government vide G.O. Ms. No. 42, Housing Department, dated 27.10.2006, permitted them to ﬂoat respondent No.5 for taking up integrated township either on its own or by joint ventures. Initially, respondent No.4 was having 51% stake while the government was holding 49% stake, but later, the ratio has been ﬁxed at 57:43. It is stated that respondent No.2, vide G.O. Ms. No. 1381, dated 26.10.2007, accorded sanction for alienation of land in an extent of Ac.119 in Sy. Nos. 285/1, 286/1, 287/1, 289/2, 294, 295, 296 and 297/1 at Bachupalli village, Qutbullapur, at Rs.90.00 lakhs per acre. Advance possession of the land was given on 12.09.2005 in their favour, and in turn, they have alienated the same in favour of respondent No.5. STAND OF RESPONDENT NO.5 IN THEIR COUNTER 20. Respondent No.5, in its counter, while stating the facts as stated by respondent