IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRD DAY OF DECEMBER, TWO THOUSAND EIGHT ONLY PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION Nos.6668, 7315, 18353 & 26478 OF 2006, 3395, 3396, 6623, 6705, 6750, 6774, 7089, 7090 & 14980 OF 2008 Between: Rajeshwar Lalwani & another. … Petitioners (in WP.No.6668 of 2006) V. Markandeya Raju & others. … Petitioners (in WP.No.7315 of 2006) Dr. Grace Sathyavathy Shashikant & others. … Petitioners (in WP.No.18353 of 2006) Dr. Grace Sathyavathy Shashikant & others. … Petitioners (in WP.No.26478 of 2006) Mrs. Premlatha Devi & others. … Petitioners (in WP.No.3395 of 2008) Mrs. Premlatha Devi & others. … Petitioners (in WP.No.3396 of 2008) Sri Sohanlal Jain & another. … Petitioners (in WP.No.6623 of 2008) Sri B. Venkateswarlu & another. … Petitioners (in WP.No.6705 of 2008) Sri B. Venkateswarlu & another. … Petitioners (in WP.No.6750 of 2008) Sri Sohanlal Jain & another. … Petitioners (in WP.No.6774 of 2008) Sri Mohanlal Lakhotia & others. … Petitioners (in WP.No.7089 of 2008) Sri Mohanlal Lakhotia & others. … Petitioners (in WP.No.7090 of 2008) Smt. Azizia Bee & others. … Petitioners (in WP.No.14980 of 2008) AND The Chief Settlement Commissioner, Govt., of India, Ministry of Home Affairs Dept., Rehabilitation Settlement Wing, Jaisalmar House, Man Singh Road, New Delhi & others. … Respondents (in all writ petitions) Counsel for the petitioners : Sri D. Prakash Reddy, Sri N. Sridhar Reddy for Sri C.V. Bhaskar Reddy & Sri A. Rajasekhar Reddy. Counsel for the respondents: Sri A. Satyaprasad Spl. Government Pleader Sri P. Sri Raghuram & Smt. D. Geeta This Court made the following: THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION Nos.6668, 7315, 18353 & 26478 OF 2006, 3395, 3396, 6623, 6705, 6750, 6774, 7089, 7090 & 14980 OF 2008 COMMON JUDGMENT:- As this batch of writ petitions involves common issues, they are heard and being disposed of together. WP.No.26478 of 2006 is filed by Dr. Grace Sathyavathy Shashikanth and four others for a Writ of Certiorari to quash order dated 28.10.2006 passed by respondent No.1 under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (for short, ‘the 1976 Act’), wherein while purporting to determine the excess land held by the petitioners, he held that the extent of 10,016 square yards of land forming part of plot No.129/45/D is Evacuee property. The same petitioners filed WP.No.18353 of 2006 for a Writ of Mandamus to declare G.O.Ms.No.1570, Revenue (Assn.III) Department, dated 19.08.2005 issued by respondent No.1, allotting the land claimed by them to respondent No.4 (hereinafter referred to as “Andhra Prabha Publications”), as illegal and violative of Article 300-A of the Constitution of India. The petitioners in WP.No.6623 of 2008 are the purchasers of land from the petitioners in WP.No.26478 of 2006 and WP.No.18353 of 2006 (hereinafter referred to as the original owners). They filed this writ petition challenging the validity of G.O.Ms.No.1570 dated 19.08.2005 issued by respondent No.1. The petitioners in WP.No.6750 of 2008 are also the purchasers of the property from the original owners and they filed the said writ petition assailing proceedings dated 28.10.2006. The same petitioners also filed WP.No.6705 of 2008 questioning G.O.Ms.No.1570 dated 19.08.2005. Similarly, the petitioners in WP.No.3395 of 2008, who are also the purchasers from the original owners, filed the said writ petition assailing the validity of proceedings dated 28.10.2006. The said petitioners also filed WP.No.3396 of 2008 questioning G.O.Ms.No.1570 dated 19.08.2005. The petitioners in WP.No.7090 of 2008, who are the purchasers from the original owners, filed the said writ petition assailing proceedings dated 28.10.2006 and the said petitioners also filed WP.No.7089 of 2008 challenging the validity of G.O.Ms.No.1570 dated 19.08.2005. The petitioners in WP.No.6774 of 2008, who are also the purchasers from the original owners, filed the said writ petition questioning order dated 28.10.2006. WP.No.7315 of 2006 is filed by the persons, who purchased the properties from one Sri Amoodi. They filed this writ petition questioning G.O.Ms.No.1570 dated 19.08.2005. WP.No.14980 of 2008 is filed by Smt. Azizia Bee and her family members assailing the validity of G.O.Ms.No.1570 dated 19.08.2005. WP.No.6668 of 2006 is filed by Sri Rajeshwar Lalwani and another questioning G.O.Ms.No.1570 dated 19.08.2005 on the ground that the part of the land allotted to Andhra Prabha publications is claimed by them towards unsatisfied balance of the land claimed by them as legal representatives of Sri Persumal, son of Kaman Mal under the provisions of the Displaced persons (Compensation & Rehabilitation) Act, 1954 (for short, ‘the 1954 Act’) and that while their claim for the said land was pending adjudication, the impugned G.O. has been issued allotting the land to the Andhra Prabha Publications. From the nature of the reliefs claimed in the various writ petitions referred to above, they can be divided into two categories. The first category pertains to challenge to order dated 20.10.2006 passed by the Special Officer and Competent Authority (for short, ‘the Special Officer’) under the 1976 Act. They are WP.Nos.26478 of 2006, 3395, 6750, 6774 and 7090 of 2008. In the second category, G.O.Ms.No.1570 dated 19.08.2005 has been questioned. These writ petitions are WP.Nos.18353 of 2006, 3396, 6623, 6705 and 7089 of 2008, 7315 of 2006, 14980 of 2008 and 6668 of 2006. As far as the first category of the writ petitions is concerned, they relate to the land claimed by the original owners from whom some of the plots were purchased by the petitioners in WP.Nos.3395, 6750, 6774 and 7090 of 2008. The original owners filed Form-I under Section 6(1) of the 1976 Act, which was taken on file as CC. No.E1/10320/76. A draft statement under Section 8(1) and notice under Section 8(3) of the 1976 Act were issued on 29.03.1993 determining an extent of 9,081 square metres as excess land in TS.No.19/2, Block-K, Ward No.12, Plot No.129/45/D situated at Banjara Hills, Hyderabad. A final order under Section 8(4) was passed on 27.06.2000 determining an extent of 241.14 square metres as excess land in respect of each of the five declarants - land owners. While the case was under process, the land owners and the District Collector, Hyderabad filed their respective appeals before the Chief Commissioner of Land Administration, A.P., Hyderabad partly aggrieved by the final orders. The said appeals were disposed of by the appellate authority by order dated 16.01.2006 remanding the cases to the Special Officer by directing him to give a proper opportunity of hearing to the declarants. The case was keenly contested on behalf of the declarants. The Special Officer by his order dated 28.10.2006 held that the property was allotted to one Sri Mohd. Taquiuddin under memo dated 16.02.1967, that as seen from the registered sale deed produced by the original owners, sales were effected in the year 1962, i.e., before the title of Sri Taquiuddin was confirmed and that the verification of records reveals that Sri Taquiuddin, Ex-Secretary to Government, was declared as an evacuee and that consequently the plot allotted to him became evacuee property, as declared vide notification No.5 dated 15.09.1949. He also took note of the written submission of the learned Special Government Pleader that the earlier proceedings dated 05.12.2001 of the Chief Commissioner of Land Administration, wherein he certified that the land of an extent of Ac.3.21 guntas purchased by the land owners was not an evacuee property, was withdrawn vide proceedings dated 12.07.2004. On these grounds, the Special Officer held the entire property as an evacuee property. Sri D. Prakash Reddy, learned Senior Counsel appearing for the land owners, who are petitioners in WP.No.26478 of 2006, mounted a serious challenge to this order of the Special Officer on multiple grounds. According to the learned counsel, the Special Officer had no jurisdiction to declare the property as evacuee property and his only function under the provisions of the 1976 Act is to decide whether the property was held in excess of the ceiling limit or not. He also submitted that even on merits there was absolutely no material to show that it was an evacuee property. However, the necessity of adjudicating the validity of the order of the Special Officer is obviated, because during the pendency of these writ petitions, the Andhra Pradesh State Legislature passed resolution dated 27.03.2008 adopting the Urban Land (Ceiling and Regulation) Repeal Act, 1999. Section 2 of the said Act repealed the principal Act of 1976. Section 3(1) of the said Act declared that repeal of the principal Act shall not affect inter alia the vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over by the State Government or any person duly authorized by the State Government in that behalf or the competent authority. It is agreed by the learned Special Government Pleader representing the respondents that the action under Section 10(6) of the Act was not initiated and possession was not taken. In view of this admitted position, the proceedings under the said Act stand abated and order dated 28.10.2006 of the Special Officer impugned in these five writ petitions has no effect in law and is consequently not enforceable. Coming to the second category of writ petitions, WP.Nos.18353 of 2006, 6623 of 2008, 6705 of 2008, 3396 of 2008 and 7089 of 2008 pertain to 10,016 Sq. yards of land over which rights are claimed either by the original owners or their vendees, as the case may be. WP.Nos.14980 of 2008 has been filed by Smt. Azizia Bee, wife of late Shaik Ahmed Bin Mohammed Amoodi and her sons and daughters and WP.No.7315 of 2006 has been filed by the purchasers of a part of the land from the said Amoodi. Thus, in the second category of writ petitions, three sets of persons questioned G.O.Ms.No.1570 dated 19.08.2005. The first set of persons have interest over 10,016 Sq. yards forming part of Ac.3.31 guntas, which was the subject matter of urban land ceiling proceedings. The second set of persons comprises the legal heirs of late Amoodi and his purchasers and the lands claimed by them are the subject matter of LGC.No.118 of 1989. WP.No.6668 of 2008 is filed by the third set of persons, who claimed a part of the land, which was allotted to the Andhra Prabha Publications, as legal representatives of a displaced person under the provisions of the 1954 Act. All these persons questioned G.O.Ms.No.1570 dated 19.08.2005 on a common ground, namely; that while bona fide disputes pertaining to their respective claims over the land are pending, the State Government issued the impugned G.O. on a totally erroneous and factually incorrect report of the District Collector, Hyderabad that the land admeasuring 4,046 square metres in Sy.No.403 part in TS.No.19/p, Block-K, Ward No.12, Road No.12, Banjara Hills is Government land and that the same is vacant on ground and free from litigation. Sri D. Prakash Reddy, Sri A. Rajasekhar Reddy and Smt. D. Geetha, learned counsel appearing for the petitioners in their respective writ petitions strenuously contended that the entire basis on which the land is allotted to the Andhra Prabha Publications being fundamentally erroneous, the impugned G.O. is liable to be quashed. Learned Special Government Pleader, while defending the G.O., stated that the land, which is allotted to the Andhra Pradesh Publications, is found to be free from litigation. Referring to WP.No.14980 of 2008, he submitted that the State Government filed LGC against late Amoodi for declaration that an extent of Ac.15.00 in Sy.No.403, TS.No.7/3, Parts 18, 19, 20, 22, 23 and 24, Block-K, Ward No.12 was grabbed by him. The said LGC was allowed by the Special Court on 16.10.1997 and Amoodi filed WP.No.1751 of 1998. In pursuance of order dated 02.02.1998 issued by this Court directing maintenance of status quo and the Collector to protect the lands from encroachment, a fence was erected around 9,906 square metres, which was found available on ground. Learned Special Government Pleader further submitted that the said writ petition was initially dismissed for default on 29.07.2002 and that the writ petition was consequently restored to its file and once again the same was dismissed on 06.02.2004 for non-prosecution, that on 26.08.2004, Form-V under Rule 15(2) was issued and possession was taken on 16.10.2004 under a panchanama. He further submitted that the writ petition was restored once again on 04.03.2005 and the impugned G.O. was issued on 19.08.2005. As regards WP.No.7315 of 2006, the learned Special Government Pleader submitted that the petitioners in the said writ petition applied for regularization of their possession under G.O.Ms.No.508 dated 20.10.1995 and that since the said G.O. requires fulfillment of certain conditions which the petitioners failed to fulfill, they are not entitled for regularization. He, however, submitted that no order has been passed rejecting the petitioners’ application and the same is pending. After completion of the hearing, judgment was reserved on 04.11.2008. At the request of the learned Special Government Pleader made on 06.11.2008, the cases were posted again on 10.11.2008. On that day the learned Advocate General appeared and submitted that even assuming that the land allotted to the Andhra Prabha Publications includes the land claimed by all the petitioners herein, that by itself cannot be a ground to invalidate the impugned G.O. He submitted that until the petitioners conclusively establish their rights over the land, they cannot prevent the Government from utilizing the land, which is in its possession. Sri P. Sriraghuram, learned counsel for Andhra Prabha Publications, while defending G.O.Ms.No.1570 dated 19.08.2005, contended that the petitioners failed to produce any material to show that the land allotted to his client includes the land over which they have interest. Alternatively, he submitted that even assuming that the lands claimed by the petitioners are included in the impugned G.O., unless the petitioners establish that their claims are bona fide, the Government cannot be precluded from utilizing the land in their occupation. Before considering the respective submissions of the learned counsel, it is necessary to refer to the contents of the impugned G.O. It is stated in the said G.O. that a representation was made by the Executive Director of Andhra Prabha Publications requesting for allotment of Government land as was done in the case of other newspapers such as The Hindu, Andhra Jyothi, Vaartha etc., that he indicated three different parcels of land to be chosen therefrom. One of the parcels of land is described as “Amoodi land approximately 8,000 square metres on Road No.12, Banjara Hills”. It is further mentioned in the said G.O. that the District Collector, Hyderabad, has reported that an extent of 4046 square metres of Government land in Sy.No.403 part in TS.No.19/p, Block-K, Ward No.12 at Road No.12, Banjara Hills, Shaikpet Village and Mandal is vacant on ground and free from litigation. He therefore recommended the said land as suitable for allotment. The said recommendation of the Collector was forwarded through the Special Chief Secretary and Chief Commissioner of Land Administration, who recommended to sell the land at Rs.25,000/- per square yard. The Government, however, decided to alienate the land admeasuring 8,000 square metres “from the land available on Road No.12, Banjara Hills, Hyderabad” at a concessional rate of Rs.8,000/- per square yard. With this background in view, it is necessary to consider the submissions of the learned counsel with reference to each set of cases. WP.Nos.18353/2006, 3396, 6623, 6705 & 7089 of 2008: The case of the petitioners is that the land owners derived title over 10,616 square yards bearing plot No.129/45-D having succeeded to the estate of Mercy Sona Bai Chellappa, who purchased the said property under sale deed bearing document No.1020/1962 dated 17.07.1962. They traced the title to Sri Mohd. Taquiuddin whose right over Ac.3.21 guntas, which includes the land admeasuring 10,616 square yards, was confirmed by the State Government vide its Memo No.3933/Q2/64-17 dated 06.12.1967 on the recommendations made by the District Collector, Hyderabad. The petitioners in WP.Nos.3396, 6623, 6705 & 7089 of 2008 are the purchasers of some of the plots from the land owners, who are the petitioners in WP.No.18353 of 2006. The facts noted in detail in the earlier part of this judgment clearly show that the declaration filed by the land owners under the 1976 Act was considered and orders under Section 8(4) were passed, wherein it was held that all the legal representatives of the deceased declarant Mercy Sona Bai Chellappa were found eligible to get equal share in property forming part of Ac.3.21 guntas, (14,289 square metres ) out of which 8866.61 square metres were purchased by late Mercy Sona Bai Chellappa and out of the balance land, 2,599 square metres is vested in the Government. It was further held that each of the five legal heirs (land owners) was entitled to 1241.14 square metres out of which each of them is entitled to hold an extent of 1000 square metres towards retainable area. Thus, 241.14 square metres in case of each of the five land owners is determined as surplus. The appeals filed by both the declarants and the District Collector against the said order were considered by the appellate authority and the cases were remanded to the Special Officer for fresh consideration. The Special Officer passed order dated 28.10.2006, wherein he took the view for the first time after remand to the effect that the property is an evacuee property and vested in the Government. The impugned G.O. was issued when the cases were pending before the Special Officer after remand. Indeed, by that time, the only question before the Special Officer was about the extent of retainable area, which the land owners were entitled to hold and there was no dispute whatsoever about the ownership of the land. On these admitted facts, the report of the District Collector that an extent of 4,046 square metres was free from litigation is required to be understood. In saying so, the District Collector did not appear to have given any details as to the identity of the said extent of 4,046 square metres in Sy.No.403 with reference to the boundaries. The very fact that the land admeasuring 10,616 square metres was a subject matter of serious dispute under the provisions of the 1976 Act and pending before the Special Officer was well within the knowledge of the District Collector as he was also a party to the litigation. It is therefore reasonable to presume that the District Collector would not have included in the said extent of 4,046 square metres, any part of the land over which the land owners have been making a claim. If for any reason he included this land, there is absolutely no justification therefor and in such an event his very statement itself is contrary to the admitted facts. Neither the learned Advocate General and the Special Government Pleader nor the learned counsel for the Andhra Prabha Publications are able to state whether the land claimed by the land owners and their successors-in-interest, who are the petitioners in these five writ petitions, forms part of the extent of 4,046 square metres. Adding to this confusion, the State Government included further extent of 3,954 square metres to the extent of 4,046 square metres, which is purported to be litigation free and allotted 8,000 square metres to the Andhra Prabha Publications. Even if the Collector’s statement that 4,046 square metres are free from litigation is accepted as correct, it is very much implied from his own statement that the balance extent of 3,954 square metres of land is the subject matter of litigation. The Government has thus included 3,954 square metres in the extent of 8,000 square metres, over and above the extent of 4, 046 square metres, which alone is free from litigation according to the District Collector’s report. In my considered view, the District Collector and the Government did not apply their mind properly in the whole affair. The admitted facts of the case, clearly reveal that the land owners have been making bona fide claim over the extent of 10,616 square yards and the said land is the subject matter of a long drawn litigation, which was neither vested in the Government nor available for being allotted to a third party like the Andhra Prabha Publications. If it is found that any part of this land forms part of the extent of 8,000 square metres that has been allotted to the Andhra Prabha Publications, the same is liable for being excluded and the Government cannot exercise any rights over the said land until such time as the dispute between the land owners and the Government is finally adjudicated by the competent Court of law. In this regard, I see no merit in the contention of the learned Advocate General that even if there is a dispute, the Government is not precluded from making allotment and that it is for the land owners to get their rights established. Such a stand coming as it did from the Government cannot be appreciated because as evident from order dated 27.06.2000 passed by the Special Officer, the land owners’ rights over the property were recognized and it is only in order dated 28.10.2006 that for the first time the Special Officer made a complete volte face and held that the land was an evacuee property. As the entire proceedings under the 1976 Act have abated in view of the Repeal Act of 1999, the parties to the dispute have to get their rights adjudicated before the competent forum. Pending such adjudication, it cannot be said that the claims made by the land owners are either speculative, baseless or frivolous. They traced their title to a registered sale deed of the year 1967 executed by Sri Mohd. Taquiuddin whose title was confirmed by the Government by proceedings dated 06.12.1967. While this Court is not expressing any final opinion on the title of the land owners, it is, however, satisfied that the land owners’ claim over the property is genuine and bona fide, which is required to be resolved by the competent forum. But till resolution of such dispute, the action of the State Government to allot any part of this land cannot be countenanced in law as the property is not duly vested in it. WP.Nos.14980 of 2008 and 7315 of 2006:- In WP.No.14980 of 2008, petitioner No.1 is the wife, 2 to 5, 9 and 10 are the sons and 6 to 8 are the daughters of late Shaik Ahmed Bin Mohammed Amoodi. They have set up their title through the said Amoodi in respect of Ac.25.00 of land in Sy.No.129 of Shaikpet Village, Banjara Hills, Hyderabad. They relied on the judgment and decree in O.S.No.90 of 1968 on the file of the Court of III Additional Judge, City Civil Court, Hyderabad filed by one R. Bhaskar Rao against the said Amoodi and confirmed by the judgments of this Court in CCCA.No.122 of 1979 and LPA.No.99 of 1988. According to the petitioners, under the said judgments the Courts recognized the title of late Amoodi. However, in LGC No.118 of 1980, filed by the State Government, the Special Court constituted under the Land Grabbing (Prohibition) Act, 1982 declared the said Amoodi as land grabber. The petitioners filed WP.No.1751 of 1998. The facts relating to this writ petition were already noted hereinbefore. However, in the present context, it will suffice to note that as the said writ petition was dismissed for non-prosecution for the second time on 06.02.2004, the respondents claimed to have taken possession of 9,906 square metres of land and laid a fencing around the same. The writ petition was restored to file on 04.03.2005. Thereafter, on 19.08.2005, the State Government issued the impugned G.O. On 25.05.2007, the said writ petition was dismissed against which SLP.Nos.19243 and 19244 of 2007 were filed in the Supreme Court and it is admitted at the bar that the Supreme Court granted interim injunction restraining the State Government from creating third party interest over the property. It is the common case that the subject matter of LGC, which is now pending before the Supreme Court, is Ac.15.00. When