*THE HONOURABLE SRI JUSTICE V.V.S.RAO +WRIT PETITION No.26416 of 2008 % 19-12-2008 # Banda Sattaiah S/o. Late Banda Mallaiah and others ...PETITIONERS Vs. $ The Secretary to Government of Andhra Pradesh, Department of Revenue (U.C.), Secretariat, Hyderabad. and others. ...RESPONDENTS ! COUNSEL FOR PETITIONERS: Sri A.Ravinder Reddy ^COUNSEL FOR RESPONDENTS: Government Pleader for Revenue <GIST >HEAD NOTE: ? CASES REFERRED: 1. 2006(5) ALD 132 (DB) IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINETEENTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION No.26416 of 2008 Between: 1 Banda Sattaiah S/o. Late Banda Mallaiah R/o. 8-1-74, Mylardevarpalli, Rajendra Nagar Mandal, R.R. Dist. 2 Banda Shankar S/o. Late Banda Jangaiah R/o. 8-1-74, Mylardevarpalli, Rajendra Nagar Mandal, R.R. Dist. 3 Banda Mohan S/o. Late Banda Jangaiah R/o. 8-1-74, Mylardevarpalli, Rajendra Nagar Mandal, R.R. Dist. 4 Banda Ilaiah S/o. Late Banda Jangaiah R/o. 8-1-74, Mylardevarpalli, Rajendra Nagar Mandal, R.R. Dist. 5 Smt. Komaramma W/o. Late Banda Jangaiah R/o. 8-1-74, Mylardevarpalli, Rajendra Nagar Mandal, R.R. Dist. 6 Banda Jangalaiah S/o. Late Banda Balaiah R/o. 8-1-74, Mylardevarpalli, Rajendra Nagar Mandal, R.R. Dist. 7 Banda Ramulu S/o. Late Banda Balaiah R/o. 8-1-74, Mylardevarpalli, Rajendra Nagar Mandal, R.R. Dist. 8 Banda Naga Bhushanam S/o. Late Banda Balaiah R/o. 8-1-74, Mylardevarpalli, Rajendra Nagar Mandal, R.R. Dist. 9 Banda Raju S/o. Late Banda Balaiah R/o. 8-1-74, Mylardevarpalli, Rajendra Nagar Mandal, R.R. Dist. 10 Banda Shobha W/o. Late Babu Rao R/o. 8-1-74, Mylardevarpalli, Rajendra Nagar Mandal, R.R. Dist. 11 Banda Krishna S/o. Late Mallesh R/o. 8-1-74, Mylardevarpalli, Rajendra Nagar Mandal, R.R. Dist. 12 Banda Shivraj S/o. Late Mallesh R/o. 8-1-74, Mylardevarpalli, Rajendra Nagar Mandal, R.R. Dist. 13 Banda Mallesh S/o. Late B. Komaraiah R/o. 8-1-74, Mylardevarpalli, Rajendra Nagar Mandal, R.R. Dist. ..... PETITIONERS AND 1 Govt. of A.P. Rep. by its Secretary, Department of Revenue (U.C.), Secretariat, Hyderabad. 2 Commissioner of Appeals Office of Chief Commissioner Land Administration, Nampally, Hyderabad. 3 Special Officer & Competent Authority Urban Land Ceiling Chandra Vihar, Nampally, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate Writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the Respondents in treating the land in Sy. No.145/1 of Mailardevarpally, Rajendra Nagar Mandal, R.R. Dist. as surplus land by not applying G.O.Ms.No.733 dt.31-10-1988 of the Government of A.P., as illegal, arbitrary, unreasonable and violative of Art. 14 of the Constitution of India, besides being violative of provisions of Urban Land Ceiling Act, and consequently direct the Respondents to treat the land in Sy.No. 145/1 of Mailardevarpally, Rajendra Nagar Mandal, R.R. Dist. as non surplus land. Counsel for the Petitioners: MR.A.RAVINDER REDDY Counsel for the Respondents: GP FOR REVENUE The Court made the following: THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.26416 of 2008 ORDER: Petitioners filed instant writ petition seeking a writ of Mandamus declaring action of respondents, namely, Government of Andhra Pradesh in Department of Revenue (Urban Land Ceiling), Commissioner of Appeals in office of Chief Commissioner, Land Administration, and Special Officer and Competent Authority, Urban Land Ceiling (ULC), Hyderabad, in treating land comprised in survey No.145/1, Mailardevarpally village of Rajendranagar Mandal, as surplus vacant land by not applying Government order in G.O.Ms.No.733, dated 31.10.1988, as illegal, arbitrary and violative of Article 14 of Constitution of India besides being violative of provisions of Urban Land Ceiling (Ceiling and Regulation) Act, 1976 (ULC Act), and for a consequential direction to respondents to treat land in survey No.145/1 as non-surplus land. There are thirteen petitioners. All of them belong to one family and are closely related. It is their case that family of petitioners purchased an extent of Acs.3.30 guntas in survey No.145/1 (petition schedule land) from Nawab (in writ affidavit, it is described as Nawar) Chandra Reddy, original pattadar. The sale is under unregistered sale deed. One Banda Mallaiah (father of first petition) appears to be purchaser. He approached Mandal Revenue Officer (MRO), Rajendranagar Mandal, under Section 5A of Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (RoR Act) for regularization of sale. It is alleged that by proceedings No.D/404/3483/89, dated 27.2.1991, MRO regularized sale in favour of Mallaiah (father of first petitioner), Jangaiah (father of petitioners 2 to 5), Banda Bhushan (petitioner No.8), Raju (petitioner No.9), Mallesh (father of petitioners 11 and 12) and three others. Nawab Chandra Reddy from whom Mallaiah allegedly purchased petition schedule land filed a declaration under Section 6(1) of ULC Act, claiming it as ancestral property of declarant. Third respondent declared Nawab Chandra Reddy as surplus vacant landholder to the extent of 15,175.68 Sq.Mts. Aggrieved by the declaration, Chandra Reddy filed appeal before second respondent. During pendency of appeal, he died and his legal representatives joined in appeal. Alleging that Nawab Chandra Reddy ceased to be holder of land, and therefore, computation of petition schedule land in his holding without conducting enquiry is not proper. Petitioners therefore filed W.P.No.13794 of 1999 questioning notice dated 22.9.1998. The High Court disposed of the said writ petition giving liberty to petitioners to get impleaded in appeal, which was directed to be disposed of. Petitioners got impleaded in the appeal before second respondent. By order dated 16.12.2003, the appeal was dismissed observing that possession of surplus land to an extent of 14,373.68 Sq.Mts., was taken over and handed over to MRO, Rajendranagar Mandal, on 20.5.1999. It is alleged that Mailardevarpally village forms part of Hyderabad Urban Agglomeration. As per G.O.Ms.No.733, land to an extent of Acs.5.00 in peripheral area of Urban Agglomeration is exempted from the provisions of ULC Act, and therefore, petition schedule land stands exempted. The order passed by respondents was not communicated to petitioners and after several years officials from the office of second respondent visited land in October 2008, when petitioners came to know about dismissal of appeal. As orders are not communicated, petitioners are in possession of the land, and therefore, they did not question orders of second respondent immediately. It is further stated that an extent of Acs.0.23 guntas out of petition schedule land was acquired by Government vide proceedings No.C/68/07, dated 10.1.2008 for P7 road and its alignment. As per the Award, Acs.0.0½ guntas belongs to petition schedule land belongs to Pride Estate & Farms Administration, Acs.0.18½ guntas belongs to petitioners’ family and compensation was paid to them. Respondents all along treated land as non-surplus land, and therefore, without issuing any notice, respondents cannot take possession of the land. Learned Counsel for petitioners made submissions with reference to various contentions raised in affidavit accompanying writ petition. His main contention is that when land is within peripheral area of Hyderabad Urban Agglomeration, even without there being any application of petitioners (land owners), respondents ought to have given benefit of exemption to such land under G.O.Ms.No.733, dated 31.10.1988. He also contends that the order passed by second respondent in exercise of appellate jurisdiction cannot be treated as final and petitioners can enforce their rights conferred by G.O.Ms.No.733. Per contra, learned Assistant Government Pleader for Revenue (ULC), submits that by the time petitioners’ vendors obtained regularization of sale under Section 5A of RoR Act, proceedings under ULC Act attained finality, and therefore, G.O. Ms.No.733, has no application. He secondly submits that when a declaration is filed by landholder claiming petition schedule land, subsequent purchasers cannot seek exemption under G.O.Ms.No.733. Lastly he contends that when the matter was considered by second respondent, petitioners 1, 7, 8, 9, 13 and predecessor of petitioners 2 to 5 were parties in appeal and when appeal was dismissed on 16.12.2003 rejecting their plea, petitioners did not choose to challenge the same. He points out that copy of the order was communicated to petitioners’ lawyer, and therefore, plea of ignorance cannot be accepted. He placed strong reliance on Division Bench judgment of this Court in Parchuri Ratnakar Rao v State of Andhra Pradesh[1], to contend that when land is declared surplus by a declarant subsequent purchasers cannot seek exemption. In the declaration filed by Nawab Chandra Reddy, he claimed land in survey Nos.145/1 and 156/1 of Mailardevarpally village. He claimed that Government gave patta for petition schedule land and that he is also in possession of land in survey No.156/1 (Acs.3.00) for over forty years. He appears to have claimed that as he has five major sons and three daughters constituting joint family, that he has no surplus land. The claim was rejected and third respondent issued final orders/statement under Section 8(4) of ULC Act in proceedings No.D1/12892/76, dated 31.7.1987. Nawab Chandra Reddy was determined to be surplus holder to an extent of 14,373.69 Sq.Mts., of vacant land in survey No.145/1 in excess of ceiling limit. He filed appeal. As noticed, he died during pendency of appeal and his five sons were brought on record in appeal. After obtaining order dated 10.4.2000 from this Court in W.P.No.13794 of 1999, petitioners or their predecessors in title filed application to get impleaded in appeal. Their claim was not accepted by second respondent observing that, “impleading parties did not produce any documentary evidence to establish their title over the land in survey No.145/1 on the date of commencement of ULC Act.” Accordingly appeal filed against the proceedings of third respondent was dismissed. The appellate order has become final. A look at the second page of order of second respondent would show that a copy of appellate order was communicated to petitioners through their lawyer. Except making allegation that copy was not received, no effort is made to produce any material like an affidavit of lawyer or information from the office of second respondent to prove their allegation. Therefore, the Court has to proceed on the premise that though petitioners were parties to appeal before second respondent, they did not choose to challenge the order. The writ petition is therefore belated and without challenging appeal order dated 16.12.2003, petitioners cannot be permitted to file writ petition for declaration that petition schedule land stands exempted under G.O.Ms.No.733. It is admitted by petitioners that Nawab Chandra Reddy claimed land in his declaration though he had allegedly sold the land to them or predecessors under unregistered sale deed. It is also admitted that they got regularized under Section 5A of RoR Act vide Proceedings dated 27.2.1991 issued by MRO, Rajendranagar Mandal. This conclusively shows that petitioners’ inchoate right if any got regularized in 1991 long after coming into force of ULC Act. It goes without saying that they allegedly got orders of regularization of sale only after issue of G.O.Ms.No.733, dated 31.10.1988, and therefore, they cannot seek exemption under the said order. As noticed by appellate authority pursuant to orders of third respondent, surplus land was taken over possession and the same was handed over to MRO, Rajendranagar Mandal. It appears the petitioners started agitating for their alleged rights only after all proceedings are concluded under ULC Act. In Parchuri Ratnakar Rao (supra), Division Bench considered question, whether purchaser of land declared surplus under ULC Act can sell benefit of policy contained in G.O.Ms.No.733 and seek exemption under Section 20 of ULC Act. Answering the question in the negative, Division Bench held that, “subsequent purchaser cannot have any right to claim benefit under G.O.Ms.No.733.” While holding that when land is declared by land owner, which was declared surplus, subsequent purchaser cannot seek exemption, Division Bench made following observations. Thus, the decisional law is to the effect that the exemption under G.O.Ms.No.733 is automatic notwithstanding vesting of surplus land in the Government, if the proceedings under Chapter-III of the Act remained inconclusive by 31.10.1988, the date of G.O.Ms.No.733. However, the preponderance of judicial opinion is that any sale of the surplus land after the Act is null and void and it is only the original owner that can seek exemption under G.O.Ms.733 and not any purchaser after the Act. If the statutory proceedings become final and conclusive, in the absence of any statutory appeal or objection by the original owner, the purchaser under a null and void sale cannot challenge such proceedings. In this case, petitioners’ affidavit is silent as to when they purchased petition schedule land under unregistered sale deed from Nawab Chandra Reddy. They only approached this Court in 1999 by filing W.P.No.13794 of 1999, long after ULC Act came into force. By that date, land was declared as surplus and it was also taken possession. From this, it becomes clear that petitioners purchased petition schedule land after coming into force of ULC Act and as per Section 5(2) of ULC Act, any sale of urban vacant land, after 14.2.1975 (in State of Andhra Pradesh), is null and void. Petitioners cannot seek declaration in respect of transaction, which is null and void, especially when competent Statutory Authority declared land surplus and took possession of the same. The writ petition is misconceived and is accordingly dismissed. _____________ (V.V.S.RAO,J) December , 2008. NOTE: L.R. Copy be marked. (By order) YS [1] 2006(5) ALD 132 (DB)