HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.7628 of 1996 Date : 27.07.2011 Between : Koyya Gunnamma (died) per LRs. …..Petitioners And The Special Officer and Competent Authority, Urban Land Ceiling, Visakhapatnam & others. …..Respondents HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.7628 of 1996 ORDER: This writ petition is filed seeking directions by way of Mandamus, declaring the action of respondents in computing an extent of 2.0478 hectares of land situated in Sy.No.2/1 of Kancharapalem village of Visakhapatnam District, in holding of Late Smt. Gunnamma, as illegal, with a consequential direction to the respondents to declare that Smt.Gunnamma does not have any excess land in Visakhapatnam Urban Area. Petitioners 2 to 5 are the sons of the deceased 1st petitioner. The husband of the 1st petitioner, during his lifetime, has filed declaration under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, (hereinafter referred to as ‘the ULC Act’), including the lands covered by Sy.No.2/1 of Kancharapalem village. After the death of the declarant, petitioner No.1 herein was served draft notification and she has also filed objections to the said draft notification. The Special Officer and competent authority, Urban Land Ceiling, Visakhapatnam, has passed orders, dated 24th January 1986 in C.C.No.8(4)/6(1)/4921/76, declaring that the declarant is a surplus land holder to an extent of 2.0653 hectares. As against the said order, the petitioners preferred an appeal under Section 33 of the ULC Act before the appellate authority, who has dismissed the appeal by an order dated 30.03.1986, passed in Proceedings C.No.AUC1/ 648/86. In the objections filed before the competent authority and in the grounds of appeal filed before the appellate authority, it was the case of the declarant that the land covered by Sy.No.2/1 of Kancharapalem village, admeasuring Ac.5.06 cents, was taken possession by Visakhapatnam Port Trust by way of advance possession vide proceedings initiated under the Land Acquisition Act. Such an objection raised by the petitioners was not accepted and the aforesaid land was computed to the holding of declarant and it was declared as excess land. On the requisition sent by the Visakhapatnam Port Trust for acquisition of about Ac.45.33 cents, situated in Kancharapalem village, proceedings were also initiated under the Land Acquisition Act. The said notification covers the land admeasuring Ac.5.06 cents in Sy.No.2/1 of Kancharapalem village. In this writ petition, it is the case of the petitioners that as much as the said land was taken possession for the purpose of Visakhapatnam Port Trust to construct staff quarters, the said land ought not to have been computed to the holding of the petitioners in the proceedings under the ULC Act. In the counter filed by the Land Acquisition Officer, who is respondent No.4 herein, it is stated that the land covered by Sy.No.2/1 of Kancharapalem village is part of the land requisitioned by Visakhapatnam Port Trust in the year 2002 for acquisition for the purpose of construction of staff quarters. It is stated that the aforesaid land admeasuring about Ac.5.06 cents was notified by the Government in G.O.Rt.No.824, Transport & Buildings (Ports) Department, dated 13.09.1985, and the same was published in A.P.Gazette No.433, dated 30.10.1985, Inquiry under Section 5-A of the Land Acquisition Act was conducted on 22.12.1985 and the preliminary valuation proposals were also sent to the Collector for approval, on 06.08.1986. It is stated that at that stage, the Special Officer, Urban Land Ceiling, Visakhapatnam, in letter Rc.No.9/87C.1, dated 14.01.1987, informed that the 1st petitioner Smt.Koyya Gunnamma was declared as surplus land holder to an extent of 2.0478 hectares in Sy.No.2/1 of Kancharapalem village and the notification under Section 10(1) of the ULC Act was sent for publication in C.C.No.4921, dated 05.05.1986. It is further stated that the Collector, Visakhapatnam submitted proposals to withdraw the notification in respect of the aforesaid land, as the said lands were declared as surplus lands under the ULC Act. It is stated that the Government, in G.O.Rt.No.215, Transport and Buildings (Ports) Department, dated 06.03.1987, approved the withdrawal notification under Section 48(1) of the Land Acquisition Act to the draft notification and draft declaration, and the same was published in A.P. Gazette on 04.10.1988 and the withdrawal notification has become final as the petitioners have not questioned the said G.O.Rt.No.215, dated 06.03.1987, withdrawing the lands of the petitioners from acquisition. In the counter, it is categorically stated that the possession of land was not taken under the Land Acquisition Act. The allegation of the petitioners that Visakhapatnam Port Trust had taken advance possession of the land, is denied in the counter, and it is further stated that the Visakhapatnam Port Trust itself has denied the fact of taking over possession. A separate counter affidavit is filed by the 1st respondent-Special Officer and competent authority under the ULC Act. In the counter filed by the 1st respondent, it is denied that the land to an extent of 2.05 hectares was acquired and advance possession was taken over by Visakhapatnam Port Trust. It is further stated that as the tenants did not handover the possession, though the lands were taken over by the Visakhapatnam Port Trust on paper, the Visakhapatnam Port Trust was not in actual possession of the said land and the land was not put to use by Visakhapatnam Port Trust, and as such, the objections of petitioners were rightly overruled by the authorities under the ULC Act. In the counter, it is further stated that as much as Visakhapatnam Port Trust is not in physical possession of the land in question, the orders passed by the competent authority, as confirmed by the appellate authority, are legal and valid. When the matter was taken up on 21.06.2011, 01.07.2011 and 08.07.2011, it was adjourned to enable the learned Government Pleader obtain specific instructions as to whether possession of the land in question was taken under the ULC Act. For the said query, it is represented by the learned Government Pleader that consequent to the proceedings under Section 8(4) of the ULC Act, only proceedings were taken up by issuing notice under Section 10(1) of ULC Act, but no further steps are taken for taking possession under Sections 10(3), 10(4), 10(5) and 10(6) of the ULC Act. From the counters filed by the respondents, it is clear that though notification was issued to acquire the aforesaid piece of land belonged to the petitioners, at the stage of inquiry under Section 5-A of Land Acquisition Act, on the proposals sent by the Special Officer, Urban Land Ceiling, Visakhapatnam in letter Rc.No.9/87C.1, dated 14.01.1987, no further steps were taken, and ultimately, notification was withdrawn by issuing notification under Section 48(1) of the Land Acquisition Act, vide G.O.Rt.No.215, dated 06.03.1987. From the aforesaid averment made in the counter of respondent No.4, it is clear that possession of land was not taken under the Land Acquisition Act and proceedings initiated under the aforesaid Act were withdrawn by virtue of notification issued under Section 48(1) of the Act. At the same time, it is not in dispute that possession of land in question was not taken as excess land, pursuant to the orders passed under Section 8(4) of the ULC Act, as confirmed by the appellate authority, by taking steps under Sections 10(3), 10(4), 10(5) and 10(6) of the ULC Act. As per Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, all proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any Court, tribunal or other authority, shall abate. As per the proviso to the said Section, the Repeal Act will not apply only to the proceedings where possession of land was taken over by the State Government or by any person authorized by the State Government on their behalf. The said Act is adopted by the State of Andhra Pradesh, pursuant to orders in G.O.Ms.No.603, dated 22.04.2008, with effect from 27.03.2008. Although the petitioners are seeking directions questioning the computation of land admeasuring 2.0478 hectares, covered by Sy.No.2/1 of Kancharapalem village, as surplus land, as much as possession of the land in question is not taken under the provisions of the ULC Act, the proceedings of the primary authority, dated 24.01.1986, issued in C.C.No.8(4)/6(1)/4921/76 and the order of the appellate authority, dated 30.03.1996, passed in C.No.AUC1/648/86, shall stand abated in view of the provision under Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. In that view of the matter, this writ petition is disposed of, declaring that the order, dated 24.01.1986, passed by the primary authority in Proceedings C.C.No.8(4)/6(1)/4921/76 and the further order of the appellate authority, dated 30.03.1996, passed in C.No.AUC1/648/86, shall stand abated and no further steps shall be taken to take possession of the land covered by Sy.No.2/1 of Kancharapalem village of Visakhapatnam District. However, it is made clear that if the said land is required for any public purpose, this order will not preclude the respondents from either notifying the land, or if already notified, from taking further steps in accordance with law. No costs. _____________________ R.SUBHASH REDDY, J 27th July 2011 ajr