THE HON’BLE SRI JUSTICE N.V. RAMANA + W.P. No. 9198 of 2001 and W.P. No. 26206 of 2009 % 08-10-2010 # G. V. Mohan and others. … Petitioners Vs. $ The State of Andhra Pradesh, Rep. By its Secretary to Government, Revenue Department, Urban Land Ceiling, Hyderabad and others. … Respondents ! Counsel for the petitioners: Sri C.R. Pratap Reddy for petitioners in W.P.No.9198 of 2001 Sri Y. Rama Rao for petitioners in W.P.No.26206 of 2009 Counsel for the Respondents:Special Government Pleader < Gist: > Head Note: ? Cases referred: 1. 2009 (6) ALD 169 2. (2000) 6 SCC 325 3. 2004) 10 SCC 130 4. (2004) 13 SSCC 452 5. Civil Appeal 632 of 2001, dated 13.07.2007 6. AIR 1970 SC 802 7. AIR 1971 SC 1021 8. (2005) 3 SCC 632 9. 2009 (6) ALD 169 10. AIR 1988 GUJARAT 52 THE HON’BLE SRI JUSTICE N.V. RAMANA W.P. No. 9198 of 2001 and W.P. No. 26206 of 2009 Common order: Since the subject-matter of both the writ petitions is inter- connected, they are heard together and are being disposed of by this common order. For the sake of convenience, the parties shall be referred to by their status in W.P. No. 9198 of 2001. BRIEF FACTS OF THE CASE IN W.P. No. 9198 of 2001 The petitioners, who are the sons and grand-daughter of one late Sri. G.V.L.S. Sarma respectively, filed writ petition in W.P. No. 9198 of 2001, praying the Court to grant the following relief: To issue a Writ, order or direction, preferably one in the nature of Writ of Mandamus declaring the orders passed by the 2nd respondent in ULC Appeal No. Hyd. 17/2001 dated 28.04.2001, confirming the order of the 3rd respondent in proceedings No.E2/382/74, dated 08.11.2000, as illegal, void and arbitrary and consequently set aside the same and pass such other order or orders as the Hon’ble Court may deem fit and proper in the circumstances of the case. Petitioner No.1, who swore to the affidavit filed in support of the writ petition states that his father late Sri. G.V.L.S. Sarma had purchased land in an extent of Acs. 16.23 guntas and 115 Sq. yds., in Sy. Nos. 105, 110, 113, 114 and 149/3 of Yousufguda village, Khairtabad mandal, (Old Golconda Mandal), Ranga Reddy District, corresponding to T.S. Nos. 16/1 and 16/2, in the month of December, 1960, and since then cultivated the same and also raised several structures therein. That after the death of his father and after coming into force of the Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as ‘the ULC Act’), himself and his brother, namely petitioner No. 2, filed declarations in Form-I under Section 6(1) of the ULC Act before respondent No.3, namely the Special Officer and Competent Authority. Respondent No.3 after conducting necessary enquiry, passed orders dated 07.05.1980 under Section 8(4) of the ULC Act. Questioning the said order, petitioner Nos. 1 and 2 filed statutory appeal under Section 33 of the ULC Act before respondent No. 2-appellate authority, who by orders dated 27.01.1997 allowed the appeal and remanded the matter to respondent No.2 for conducting de novo enquiry. Pursuant to the order of remand, respondent No.3 conducted de novo enquiry, and ultimately, on 08.11.2000, passed orders under Section 8(4) of the ULC Act, declaring petitioner Nos. 1 and 2 to be surplus holders of land to an extent of 23,930.38 Sq. mts. each in T.S. No. 16/1 and 16/2 of Yousufguda village, in excess of the ceiling limit. Questioning the said order, the petitioners filed statutory appeal, under Section 33 of the ULC Act before respondent No.2, accompanied by stay application. As no orders were passed by respondent No.2 on the stay application pending disposal of the appeal, and as during the pendency of the appeal, respondent No.3 was taking steps to dispossess them, the petitioners filed writ petition in W.P. No. 3878 of 2001. The said writ petition, having regard to the statement made by the learned Government Pleader for Assignments that possession of the land was already taken on 23.02.2001, this Court by order dated 07.03.2001, while observing that as the notice dated 15.02.2001 under Section 10(5) of the ULC Act was served on the petitioner on 23.02.2001, possession of the land could not have been taken by the respondents before 23.03.2001, disposed of the writ petition, directing maintenance of status quo with respect to possession pending disposal of the appeal by respondent No.2, and further directed that the respondents therein shall not alienate or make any constructions whatsoever on the land in question on the ground that possession had been taken over by them on 23.02.2001. Pursuant to the said order, respondent No.2, vide orders dated 28.04.2001, dismissed the appeal. Questioning the said order, the petitioners filed the present writ petition in W.P. No. 9198 of 2001. This Court vide orders dated 08.05.2001, while admitting the writ petition, granted status quo with regard to possession of the petitioners. Thereafter, vide orders dated 17.02.2006 passed in W.P.M.P. No. 10042 of 2003, M/s. Sri Lakshmi Co-op. Housing Society Limited (hereinafter referred to as ‘the Society), was ordered to be impleaded as respondent No. 8 in the writ petition, and on the very same day, vide orders passed in W.V.M.P. No. 741 of 2005, the status quo order granted earlier was made absolute. BRIEF FACTS OF THE CASE IN W.P. No. 26206 of 2009 While the said writ petition is pending, the Society represented by its Secretary, which got itself impleaded as respondent No.8 in W.P. No. 9198 of 2001, filed writ petition in W.P. No. 26206 of 2009, praying the Court to grant the following relief: To issue writ, order or direction, more particularly one in the nature of Writ of Mandamus by declaring the proceedings in Appeal No. Hyd/17/2001 dated 28.04.2001 as abated in pursuance of the repealed Urban Land (Ceiling & Regulation) Act, 1976 came into effect from 27.03.2008 by declaring the land to an extent of 67,173 Sq.mts. in Sy. No. 105, 110, 113, 114 and 149/3 situated at Yousufguda, Hyderabad, is not attracted by the provisions of the Act and consequently declare that the petitioner has substantial rights over the land to an extent of 67,173 Sq.mts. in Sy. No. 105, 110, 113, 114 and 149/3 situated at Yousufguda, Hyderabad, under agreement of sale dated 09.12.1980 pending adjudication in O.S. No. 118/2003 on the file of II Additional Chief Judge, City Civil Court, Hyderabad, and pass such other order or orders as the Hon’ble Court may deem fit and proper. The Society states that the Government in G.O. Ms. No. 4270, dated 10.09.1980, framed guidelines for grant of exemption under Section 20(1) of the ULC Act, to vacant lands held by persons who were declared surplus and sought to transfer to registered Co-operative Housing Societies or Group Housing Co-operative Societies. So as to take advantage of the provisions of the G.O., the Society states that petitioner Nos. 1 and 2 executed agreement dated 09.12.1980 for alienation of the vacant land in question in favour of the Society, with an understanding that regular sale deed would be executed after obtaining necessary exemption under the provisions of the ULC Act. Subsequent to the entering into agreement, the Society states that the Government in supersession of the guidelines framed in G.O. Ms. No.4270, dated 10.09.1980, issued fresh guidelines for processing the exemption applications, in G.O. Ms. No. 136, dated 28.01.1981. In pursuance thereof, petitioner Nos. 1 and 2 and the Society made applications, for grant of exemption, but the same were rejected by the Government vide orders issued in Memo dated 10.02.1983. Questioning the rejection order, the Society filed writ petition in W.P. No. 2658 of 1984, and this Court by order dated 05.04.1989 set aside the said orders and directed the Government to consider the application of the Society on merits in terms of G.O. Ms. No. 4270, dated 10.09.1980 as modified by G.O. Ms. No. 136, dated 28.01.1981. Pursuant to the above order of this Court, the Government took up the application of the Society for grant of exemption. The Society as well as petitioner Nos. 1 and 2 filed their written arguments. As no orders were passed on their applications, the Society filed writ petition in W.P. No. 5609 of 2004, and this Court by order dated 25.03.2004, disposed of the said writ petition directing the Government to pass appropriate orders on the application of the Society. Thereafter, the Government having considered the applications, vide orders issued in Memo dated 01.03.2005 rejected the claim of the Society and petitioner Nos. 1 and 2. Questioning the said order, the Society filed writ petition in W.P. No. 36281 of 2005, and this Court by order dated 18.09.2006, dismissed the same granting liberty to the Society to enforce their rights, if any, under the agreement in civil suit. The writ appeal in W.A. No. 347 of 2007, filed questioning the order in the writ petition, was dismissed by a Division Bench of this Court vide order dated 06.08.2007. The Society on coming to know that ULC proceedings in relation to the land in question were being held behind their back and as petitioner Nos. 1 and 2 having executed an agreement in their favour, were acting in detriment to their interests, filed suit in O.S. No. 118 of 2003 against them for specific performance of agreement dated 09.12.1980 and for perpetual injunction. The Society states pursuant to the agreement entered into by them with petitioner Nos. 1 and 2, they carved out plots and allotted them to their members, who are now in possession of their respective plots, and inasmuch as during the pendency of the ULC proceedings between the petitioners and the Government before this Court, the ULC Act has been repealed, and as the members of the Society are in possession of their respective plots, the orders dated 28.04.2001, passed by the Commissioner, Urban Land Ceiling, confirming the orders of the Special Officer and Competent Authority, declaring the petitioners as surplus land holders, from whom the Society purchased the land under agreement, should be declared as abated with a further declaration that the provisions of the ULC Act are not applicable to the land in question. ARGUMENTS OF THE PETITIONERS The learned counsel for the petitioners submitted that pursuant to the notice dated 5.02.201 under Section 10(5) of the ULC Act, petitioner No. 1 did not surrender the surplus land on 23.02.2001, on which day he was served with the notice. Petitioner No.1 neither surrendered the land on his behalf nor on behalf of petitioner Nos. 2 and 3, who were not served with notices. He submitted that as per the notice under Section 10(5) of the ULC Act, petitioner No.1 had 30 days time to surrender the land, and therefore, no possession of the land can be taken before expiry of the statutory period, and if it is taken, the same would be irregular and arbitrary. In support of this argument, the learned counsel placed reliance on the judgment of this Court in Singireddy Narasimha Reddy v. Government of A.P.[1]. He submitted that when as against the order dated 08.11.2000, passed by the Special Officer and Competent Authority, determining the surplus land, the petitioners preferred appeal along with stay application before respondent No.2-appellate authority. When pending disposal of the appeal, respondent No.3 tried to dispossess, the petitioners filed writ petition in W.P. No. 3878 of 2001, and this Court by order dated 07.03.2001, while observing that possession of the land could not have been taken before expiry of 30 days and that if it is taken it is only on paper and not physical, directed maintenance of status quo with respect to possession, pending disposal of the appeal by respondent No.2 and further directed the respondents therein not to alienate or make any construction therein. Since after disposal of the appeal by respondent No.2, the petitioners filed the present writ petition and obtained status quo order, which is still continuing, and having regard to the fact that the order dated 07.03.2001, passed in W.P. No. 3878 of 2001, attained finality, because the review petition in Rev. W.P.M.P. No. 11732 of 2009 and writ appeal in W.A. No. 340 of 2010, filed by respondent No. 3, were dismissed by a learned single Judge on 18.06.2009 and a Division Bench of this Court on 15.04.2010 respectively, the possession of surplus land cannot be said to have been taken by respondent No.3 from the petitioners. He further submitted that no final order under Section 10(6) of the ULC Act, having followed the notice under Section 10(5) of the ULC Act, the possession of surplus land, even assuming, is taken by respondent No.3, is irregular and invalid. He denied the contention of respondent Nos. 1 to 3 that petitioner No.1 has himself surrendered the surplus land on 23.02.2001 upon receipt of the notice dated 15.02.2001 under Section 10(5) of the ULC Act, and contended that if petitioner No.1 had himself surrendered the land voluntarily before expiry of 30 days notice period, the petitioners would not have availed the legal remedies available to them against the order of respondent No.3, which the petitioners have availed and are now vigorously prosecuting. He submitted that respondent No. 3, to overcome the stand taken by them in W.P. No. 3878 of 2001, that “possession of the land in question was taken over on 23.02.2001 itself under a cover of panchanama”, have taken contrary stand in the counter filed in the present writ petition that “they have not taken possession of the land, but petitioner No.1 has voluntarily surrendered the surplus land, and since petitioner No.1 had himself surrendered the surplus land voluntarily, even before expiry of the statutory period of 30 days, no panchanama was conducted”. He further submitted that merely because petitioner No.1 signed on the sketch map annexed to the alleged panchanama stating “I agree to retain the land existing within the green boundary”, it does not mean that he has impliedly consented to surrender the rest of the land, much less on his behalf and on behalf of petitioner Nos. 2 and 3 also. He submitted that respondent No.3 has fabricated the panchanama for the purpose of this case, and the conduct of the panchanama itself is doubtful, because it does not contain the signatures of any of the petitioners, much less petitioner No.1, who is said to have voluntarily surrendered the surplus land. He further submitted that since the proceedings relating to the order made by the Special Officer and Competent Authority are pending before this Court, having regard to the provisions of Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as “the Repeal Act”), which are made applicable to the State of Andhra Pradesh w.e.f. 28.04.2008, they stand abated, and in support of this argument, he placed reliance on the judgments of the apex Court in Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P.[2], Shanti Bhardwaj v. State of U.P.[3], Ghasitey Lal Sahu v. Competent Authority[4] and Mukarram Ali Khan v. State of U.P.[5]. Hence, he prayed that the writ petition be allowed. ARGUMENTS OF THE RESPONDENT-GOVERNMENT Respondent No. 3 filed counter-affidavit in W.P. No. 9198 of 2001 on 21.11.2007, which is sworn to by Sri. Syed Omer Jaleel, the then Special Officer and Competent Officer. Thereafter, respondent No. 3 filed two additional affidavits. The first additional affidavit, which is dated 06.04.2009, is filed by Smt. A. Vani Prasad, to deny the stand taken by the petitioners that in view of the provisions of Repeal Act, the present proceedings under the ULC Act, would stand abated. While the second affidavit, which is dated 29.05.2010, is filed by Sri. M. Ravinder Reddy, to clarify about the signature of Smt. J. Sudha Rani, the then Special Officer and Competent Authority, on the sketch produced by the petitioners. On behalf of respondent Nos. 1 and 3, counter-affidavit is filed in W.P. No. 26206 of 2009 by the Deputy Secretary to the Government in the Revenue Department. The learned Special Government Pleader appearing on behalf of respondent Nos. 1 to 5, based on the above counter-affidavits and additional affidavits, advanced his arguments. He submitted that respondent No.3 served the notice dated 15.02.2001 under Section 10(5) of the Act on petitioner No.1 on 23.02.2001, and as petitioner No.1 had voluntarily surrendered the surplus land on the same day, respondent No.3 took possession thereof from him under a cover of panchanama, and handed over the same to the Deputy Tahsildar, Khairtabad Mandal, who in turn handed over the same to respondent No.6. However, contrary to the submission that possession of land was taken under a cover of panchanama, he submitted that the sub-division record was prepared on 23.02.2001 and as at the time of drawing the panchanama, petitioner No.1 signed on the sketch plan annexed to the panchanama stating that he agrees to retain the land existing within the green boundary, there was no need to conduct panchanama. He submitted that the petitioners suppressing the factum of voluntary surrender of surplus land by petitioner No.1, and without asserting that they are in possession of the land, filed writ petition in W.P. No. 3787 of 2001 contending that the respondents are trying to dispossess them, and this Court, by order dated 07.03.2001, while disposing of the writ petition, directed status quo with regard to possession be maintained till the disposal of appeal by respondent No.2. He submitted that the surplus land having been surrendered voluntarily, the petitioners cannot claim that they are in possession of the surplus land by taking advantage of the observations made by this Court in W.P. No. 3878 of 2001, dated 07.03.2001, that “the possession, if at all is taken, is only on paper and not physical possession of the land in question”, particularly when the ULC Act does not prescribe the procedure for taking over possession of surplus land, and when in law, there is no such thing like “paper possession”, and the Courts have held that “symbolic possession” also meant “taking possession”. He submitted that respondent No.2, by order dated 28.04.2001 dismissed the appeal filed by the petitioners holding “that possession of the land has already been taken on 23.02.2001 and petitioner No.1 has also signed on the sketch plan prepared at the time of taking possession on 23.02.2001”, and since the petitioners did not question the said finding, they are not entitled to contend that physical possession of the land has not been taken. He submitted that the stand taken by petitioner No.1 in the writ petition that he is not authorized to surrender any land for and on behalf of petitioner Nos. 2 and 3, itself suggests that petitioner No.1 had surrendered the surplus land, but suppressing the factum of surrender, the petitioners filed the present writ petition. The learned Special Government Pleader though disputed the genuineness of the sub-division sketch produced by the petitioners, but later admitted the signature available on the sub-division sketch dated 02.01.2001 to be that of Smt. J. Sudha Rani, the then Special Officer and Competent Authority, and submitted that the sub-division sketch was prepared by the then Surveyor on 16.12.2000, and the petitioners appear to have obtained copy of the same with the signature of Smt. J. Sudha Rani, the then Special Officer and Competent Authority on 02.01.2001, and since petitioner No.1 had himself surrendered the land on 23.03.2001, the said sub-division sketch produced by the petitioners, would not be of any significance. He submitted that petitioner No.1 having surrendered the surplus land voluntarily and they not being in possession of the surplus land, and they having not pleaded in the affidavit filed in support of the writ petition that they are in possession of the surplus land, are not entitled to claim the benefit of the Repeal Act, and contend that the ULC proceedings stand abated. Hence, he prayed that the writ petition be dismissed. ARGUMENTS OF RESPONDENT No. 6 Hyderabad Urban Development Authority (Now Hyderabad Metro Development Authority), filed W.P.M.P. No. 30724 of 2001, and got itself impleaded as respondent No.6 vide orders dated 07.12.2001. Respondent No. 6 filed counters in both the writ petitions. They also filed reply to the additional affidavit filed by the petitioners, and also adopted the stand taken by respondent Nos. 1 to 3. The learned Attorney General of India, appearing on behalf of respondent No.6 primarily took exception to the manner in which the petitioners advanced arguments on the basis of affidavits and additional affidavits, and submitted that the procedure adopted by the petitioners is irregular. He submitted that respondent No. 3 having served the notice dated 15.02.2001 under Section 10(5) of the ULC Act on petitioner No. 1 on 23.02.2001, took possession of the surplus land on the same day, under a cover of panchanama, and handed over the same to the Deputy Tahsildar, Khairtabad, who in turn handed over the land to respondent No.6, and since then respondent No.6 is in possession thereof. He further submitted that since petitioner No.1 had himself surrendered the surplus land voluntarily upon receipt of the notice dated 15.02.2001 under Section 10(5) of the ULC Act on 23.02.2001, without waiting for the statutory period of 30 days to expire, there was no need for respondent No.3 to pass final order under Section 10(6) of the ULC Act. According to him, the question of passing final order under Section 10(6) of the ULC Act, would arise, only if the declarant or holder of excess vacant land fails to surrender the surplus land within 30 days of receipt of notice under Section 10(5) of the ULC Act. He submitted that the petitioners having surrendered the surplus land, filed the writ petition in W.P. No. 3878 of 2001 stating that the respondents therein are threatening to dispossess them from the land, pending disposal of the appeal by respondent No.2. Since this Court, based on the submission made by the learned Government Pleader for Assignment, by order dated 07.03.2001, disposed of the said writ petition directing the respondents to maintenance of status quo till the appeal is disposed of, it cannot be said to be an order passed upon adjudication of the merits of the case. Hence, he contends that the petitioners cannot claim to derive any benefit of the observations made therein by this Court, that “possession could not have been taken before 23.03.2001 and possession if any taken is only on paper and not physical”, and contend that they have not surrendered the land, and more so when this stand taken by them runs counter to the stand taken by petitioner No.1 in the affidavit, filed in support of the present writ petition, wherein he has stated that he is not authorized to retain or surrender any land for and on behalf of petitioner Nos. 2 and 3. He submitted that since the petitioners did not file any counter rebutting the stand taken by respondent No.6 in the implead application in W.P.M.P. No. 30724 of 2001, that “possession of the surplus land was handed over to them by the Revenue Department on 23.02.2001 and since then they are in possession and occupation of the same”, it has to be construed that the petitioners have admitted the surrender of surplus land to respondent No.3, under a cover of panchanama. He further submitted that the petitioners also did not file any counter to the application in W.P.M.P. No. 5742 of 2005, filed by A.P. Housing Development and Finance Corporation Limited, Hyderabad, seeking to implead them as respondent No. 7 and also to the vacate stay petition in W.V.M.P. No. 741 of 2005, filed praying to vacate the status quo order, on the ground that the Government sought to transfer the land in question to them by invoking the provisions of the Land Acquisition Act, 1894. He submitted that the said vacate stay petition, by order dated 17.02.2006, was disposed of by this Court,