HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 7762 OF 2007 . DATED 29th April, 2011 BETWEEN Manu Bhai Shankar Bhai Patel and ors …Petitioner And The Chief Commissioner of Land Administration, Commissioner of Appeals under the Urban Land Ceiling Act, 1976, Nampally, Hyderabad, and ors ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No.7762 of 2007 ORDER: The petitioners seek to assail the order dated 15.12.2006 passed in ULC Appeal No.Hyd.59/2005 by the Commissioner, Appeals, Office of the Chief Commissioner of Land Administration, Andhra Pradesh, Hyderabad, the first respondent herein, whereunder the statutory appeals preferred by both the petitioners herein were dismissed while confirming the proceedings bearing Nos.B1/11240/76 dated 24.02.1993 and B1/11241/76 dated 17.02.1993 issued by the Special Officer and Competent Authority, Urban Land Ceiling, Hyderabad, the second respondent herein, in respect of the petitioners’ lands in Survey Nos.222/3 to 5 and 236/2 admeasuring 20,943.23 sq. meters and 21,868.13 sq. meters respectively situated at Gudimalkapur Village, Golconda Mandal, Hyderabad District. It is the case of the petitioners that they had filed declarations in the year 1976 under Section 6 of the Urban Land (Ceiling and Regulation) Act, 1976 (for short, ‘the ULC Act’). However, the competent authority/second respondent, after a long lapse of 17 years, declared that the first petitioner is holding excess land in an extent of 18,375.29 sq. meters by his order dated 24.02.1993 and the second petitioner is holding excess vacant land in an extent of 20,368.83 sq. meters by his order dated 17.02.1993. Being aggrieved by the said orders, the petitioners have preferred statutory appeals under Section 33 of the ULC Act before the appellate authority/first respondent. The appellate authority granted status quo order on 16.04.1993 in Appeal No.Hyd/76/93 filed by the first petitioner herein. Thereafter, both the appeals were dismissed by his order dated 27.06.2002. Challenging the same, the petitioners had filed Writ Petition No.18851 of 2003 before this Court. Initially this Court granted order o f status quo on 17.09.2003. Subsequently, by order dated 08.08.2005 this Court allowed the said writ petition remitting the matter to the first respondent for disposal afresh after hearing both the parties. However, this Court made it clear that the status quo as on 08.08.2005 should be continued till the disposal of the matter afresh by the appellate authority/first respondent. Pursuant thereto, the first respondent once again dismissed the said appeals by his order dated 15.12.2006 duly confirming the orders passed by the second respondent. The competent authority/second respondent did not choose to file a counter. However, the appellate authority/first respondent filed a counter stating that there is no irregularity or illegality in the impugned order passed by it. It is further averred therein that the petitioners have filed their declarations under Section 6(1) of the Act and after due enquiry draft statement under Section 8(1) and notice under Section 8(3) of the ULC Act were issued on 21.05.1982 and after considering the objections filed by the declarants, the competent authority/first respondent issued orders under Section 8(4) and final statement under Section 9 of the ULC Act determining the declarants as surplus vacant land holders to an extent of 18,375.29 sq. meters and 20,368.83 sq. meters respectively in Sy.Nos.222/4, 236/2 and 222/3 of Gudimalkapur village and the appeals filed by them were dismissed on 27.06.2002 on the ground that there are status quo orders of this Court covering the entire subject land and therefore the first respondent could not adjudicate the matter till the disposal of the said case by this Court. Aggrieved thereby, the petitioners have filed Writ Petition No.18851 of 2003 before this Court. This Court, by order dated 08.08.2005, set aside the above order of the first respondent and remanded the matter to the appellate authority for disposal afresh. Pursuant thereto, notice was issued to the appellants, who are the petitioners herein, to appear for hearing. While so, respondents 4 to 20 have filed various implead petitions on 21.12.2005 on the ground that they have purchased the land from the owners for a valuable consideration and that they have also paid the requisite amount under G.O.Ms.No.455 dated 29.07.2002 for regularization of plots. The implead petitions filed by respondents 4 to 20 were ordered and the counsels representing them prayed for dismissal of the appeals. The impleaded respondents stated that they have been in possession in respect of their individual plots and their applications under G.O.Ms.No.455 dated 29.07.2002 were pending consideration and thus there are no merits in the appeals as the competent authority/first respondent after due consideration of the case determined in an extent of 18,375.29 sq. meters in respect of premises bearing No.13-6-342 in Sy.Nos.222/3 and 222/4 of Gudimalkapur as surplus land held by the first petitioner after excluding the protected area of 558.66 sq. meters under Section 4(9) of the Act and the retainable vacant land of 1000 sq. meters under Section 4(1)(b) of the Act. Similarly, the second petitioner was declared as having surplus vacant land in an extent of 20,368.83 sq. meters in Sy.No.222/3 of Gudimalkapur after excluding the protected area of 262.08 sq. meters under Section 4(9) of the Act and the retainable vacant land of 1,000 sq. meters under Section 4(1)(b) of the Act. The petitioners in their grounds of appeal mainly raised that the land is recreation zone and no construction is possible. They have sold the land to various purchasers, but trying to prolong the process by not attending the Court even after issuance of notices and the first respondent provided all the benefits available under the Act to the petitioners. The appellate authority/first respondent, after considering the contentions raised by the respective parties, dismissed both the appeals by observing that there are no grounds to interfere with the orders passed by the competent authority/second respondent. It accordingly prayed for dismissal of the writ petition. Respondent 20-society filed a counter stating that it had entered into an agreement of sale in the month of March, 1982 with the owners of the subject land. It is further stated that on conclusion of the ULC proceedings under Sections 10(1) and 10(5) of the ULC Act, the Government had taken possession of the surplus land under a cover of Panchanama dated 04.11.1999. It is however stated that such taking possession of the surplus land only remained on paper as respondent 20-society and its members have been in physical and actual possession of their respective plots. Therefore, it stated that the land is vested in the Government and the first respondent rightly dismissed the appeals. As such, it sought the dismissal of the writ petition. Respondents 5 to 18, who also filed separate counter claiming to be the members of respondent 4-association, raised the above similar contentions. Counter was also filed by respondent 4 averring the self- same contentions. However, it is stated that taking over possession of surplus land remained on paper as the petitioners had sold in an extent of Ac.7-00 guntas of land to various individuals through their GPA Holder. Separate reply affidavits were filed by the petitioners specifically denying various allegations made by the respondents. It is stated therein that no possession was taken over by the second respondent at any point of time and the alleged panchanama dated 04.11.1999 was only on paper and the petitioners never executed any GPA in favour of Bhaskara Rao as claimed and the said documents were fabricated and forged and no part of the subject land is alienated to any individual and the petitioners have been in continuous possession and enjoyment of the subject land all along. The appellate authority/first respondent granted status quo order on 16.04.1993 and ultimately the appeals were dismissed on 27.06.2002. The alleged panchanama was dated 04.11.1999 when the order of status quo was very much in force. Therefore, the alleged panchanama, if any, is of no consequence as the said proceedings were inoperative and non est in the eye of law. The physical possession remained with the petitioners throughout. Therefore, respondents 4 to 20 were neither necessary nor proper parties to ULC proceedings and their claim cannot be adjudicated in the ULC proceedings in as much as respondent 20 had already instituted a suit for specific performance in O.S.No.1209 of 1993, which was decreed by the trial Court on 14.11.2003. Questioning the said decree, appeal in CCCA No.40 of 2006 had been preferred by the petitioners which was allowed by this Court. The petitioners therefore prayed that this writ petition be allowed. Heard Sri D.Prakash Reddy, learned senior counsel for the petitioners, Sri N.Sreedhar Reddy, learned Special Government Pleader appearing for R-1 to R-3, Sri K.Ramakrishna Reddy, learned senior counsel appearing for Respondent 20. Perused the case file along with the material placed on record. Sri D.Prakash Reddy, learned senior counsel for the petitioners contended that the proceedings were abated as per the Repealing Act by the State in the month of March 2008. Therefore, the very contention of the first respondent that the land is vested in the State Government pursuant to the panchanama dated 04.11.1999 and on that basis the other respondents are claiming that the land is vested in the Government and that they have applied for regularization of their plots pursuant to G.O.Ms.No.455 dated 29.07.2002 cannot be sustained. The learned senior counsel pointed out that the alleged panchanama dated 04.11.1999 is of no consequence as the same has taken place during the pendency of the appeal, more particularly when the status quo order granted in the year 1993 was in fact in force. He further argued that the appellate authority/first respondent also admitted that there was status quo order right from the year 1993 upto 2002, i.e., till the dismissal of the appeals; and that the proceedings under ULC Act are in the nature of expropriatory and strict adherence is to be given to the provisions of the ULC Act and any violation thereof has to be viewed very seriously. The learned senior counsel also contended that even otherwise also, the Mandal Revenue Inspector is not authorized to take over possession under the provisions of the ULC Act and the authorized person is only the Tahsildar. Therefore, the proceedings are vitiated for the said reason and the alleged panchas were not of the same village and their detailed descriptions were not given as required. It is thus submitted that as the panchanama is drafted in the office and remained on paper only, the physical possession remained with the petitioners only. In support of his contentions, the learned senior counsel placed reliance on case law. Sri N.Sreedhan Reddy, learned Special Government Pleader, contended that the status quo order was granted by the appellate authority in the appeal filed by first petitioner and no possession was taken over in respect of the land in an extent of 18,375.29 sq. meters and as there was no status quo order granted in respect of the appeal filed by the second petitioner, possession was taken in respect of the land of the second petitioner in an extent of 20,366.83 sq. meters. It is further submitted that with regard to the second petitioner is concerned the land is vested in the Government and the proceedings have become final. Sri K.Rama Krishna Reddy, learned senior counsel appearing on behalf of respondent 20, contended that in spite of the status quo order granted by the appellate authority, the State has got power to take possession in pursuance of the proceedings under Sections 10(1), 10(3) and 10(5) of the ULC Act and that accordingly the Government took over possession under a cover of panchanama and further stated that though the land is vested in the State the fourth respondent society and its members are in possession of their respective plots as stated in their counter affidavit. It is also argued that the status quo order granted by the appellate authority is not binding on the competent authority/second respondent. Therefore, it is contended that the proceedings of the second respondent are legal. The other unofficial respondents have adopted the arguments of the learned senior counsel appearing for respondent No.20. In reply thereto, Sri D.Prakash Reddy, learned senior counsel, appearing on behalf of the petitioners, referred to the proceedings filed by respondent 20 along with the counter affidavit dated 02.08.2010 and stated that the said proceedings under Sections 10(1), 10(3) and 10(5) of the ULC Act are in respect of the first petitioner and the same were issued during the subsistence of the status quo order in the appeal filed by him. In so far as the second petitioner is concerned, no notifications under Sections 10(1), 10(3) and 10(5) of the ULC Act were issued. Therefore, the alleged taking over of possession of the land in respect of the second petitioner is illegal and unsustainable. The admission on the part of the learned Special Government Pleader to the effect that possession of the first petitioner’s land was not taken over by the competent authority/second respondent goes to show that no notifications as contemplated under Sections 10(1), 10(3) and 10(5) of the ULC Act were issued. Had the notifications been issued by the competent authority/second respondent, nothing prevented it to produce the same before this Court to substantiate their plea. However, they failed to do so for the reasons best known to it. Further, the second respondent in the counter affidavit filed in the earlier writ petition categorically admitted that the appellate authority granted status quo orders in both the appeals and therefore the alleged panchanama is not legal and binding and the same is liable to be set aside. During the pendency of this writ petition in the month of March, 2008 the Government of Andhra Pradesh repealed the ULC Act which came into force from 27.03.2008 by way of a notification issued under G.O.Ms.No.603, Revenue (U.C.I) Department, dated 22.04.2008. Therefore, the petitioners contended that all the proceedings have been abated. But the Special Government Pleader stated that so far as the first petitioner is concerned, an extent of 18,375.29 sq. meters was not taken over the possession by the authorities, but in respect of the second petitioner, an extent of 20,368.83 sq. meters was taken over possession by the authorities. Notwithstanding the several opportunities afforded to them and in the light of the directions by this Court, the authorities have failed to place the original record for perusal of this Court and did not choose to even file a counter. It is the case of the petitioners that there were serious lapses on the part of the authorities as no notices or opportunity was given to them at every stage, more particularly, before dismissing the statutory appeals preferred by the petitioners on remand from this Court under the order which is now impugned in this writ petition and in the light thereof, the proceedings have become in operative and non est in the eye of law. The order dated 16.04.1993 passed by the Commissioner of Land Reforms and Urban Land Ceiling, Hyderabad, makes it abundantly clear that while admitting the appeal preferred by the first petitioner, the order of status quo as on 13.04.1993 was granted. In the counter filed by the competent authority/second respondent herein in W.P.No.18851 of 2003 also admitted that both the declarants have filed separate appeals aggrieved by the orders of the competent authority/second respondent before the appellate authority/the first respondent. The said appeals were numbered as Hyd/76/93 and Hyd/58/93 respectively. However, they were dismissed on 27.06.2002 at the first instance. In the said counter it is further stated that no land is in possession and enjoyment of the petitioners (declarants) as per ground position stating that during the pendency of the ULC cases itself the declarants have disposed of the lands to the individuals and also entered into an agreement of sale with Tirumala Venkateswara Cooperative Society and Netaji Nagar Co-operative Housing Society, i.e., respondents 20 and 19 respectively. In the said counter, the Government did not claim that the State is in possession of the subject property. The unofficial respondents in their counters also stated the panchanama is only on paper and no physical possession is taken over by the authorities. Originally, the appeals were disposed of by an order dated 27.06.2002 after a long lapse of 17 years of filing declarations and the appellate authority dismissed the said appeals on the sole ground that the entire area is covered by the status quo order passed by this Court and that matter is stated to be pending before the this Court. Being aggrieved by the same, the petitioners have filed W.P. No.18851 of 2003 and also challenged the notices under Sections 10(1) dated 18.05.1994, 10(3) dated 06.08.1994 and 10(5) dated 15.07.1998 in respect of the properties held by the first petitioner and also proceedings B1/11240/76 dated 24.02.1993 and notices under Sections 10(1) dated 10.07.1998, 10(3) dated 24.08.1998 and 10(5) dated 26.10.1998 of the ULC Act. The complaint of the petitioners is that the said proceedings were initiated behind their back and no notices under Sections 10(1), 10(3) and 10(5) was served on them and in addition to that, the said proceedings were initiated during the subsisting of status quo orders granted by the appellate authority. The petitioners stated that they have learnt about the said possession only on dismissal of their appeals as such to declare the said possession under Sections 10(1), 10(3) and 10(5) as null and void. The third respondent filed counter in the said writ petition and admitted that th e status quo orders were granted on 16.04.1993 in the said appeals and the same were dismissed only on 27.06.2002. The said writ petition was allowed by this Court and remanded the matter to the first respondent to consider the matter afresh. On remand, the appeals were dismissed by order dated 15.12.2006 holding that there are no grounds to interfere with the orders passed by the competent authority/second respondent and further held that the claim of the unofficial respondents, who are impleaded parties and are stated to have paid the amount under G.O.Ms.Nos.455 dated 29.07.2002 and 640 dated 28.05.2003, is regularization of their plots only and they have no claim before this Court. It is further observed that the declarants having sold the properties to various purchasers but trying to prolong the process by not attending to the Court even after issuance of notices and that the competent authority/ second respondent extended the benefits available under the ULC Act to the petitioners and thereby the appellate authority/first respondent dismissed the appeals. The very claim of the petitioners is that no notice of date of hearing was sent to them before dismissing the statutory appeals. Though the appellate authority filed a counter stating that notices were sent but no material is placed before this Court to show that the notices were in fact served on the petitioners. In the impugned order it was stated that the petitioners (declarants) have sold the land to various individuals and unofficial respondents who have applied for regularization under G.O.Ms.No.455 dated 29.07.2002 and 640 dated 28.05.2003 and thereby came to an erroneous conclusion that the petitioners are protracting the litigation and that the appellate authority/first respondent, having observed that the unofficial respondents have not claimed any relief before it as such, ought not to have entertained their claims and their remedy, if any, is elsewhere. It was further argued that their suit for specific performance was decreed. However, on appeal filed by the petitioners, was allowed by this Court. Respondent No.20 filed a counter that even though the possession was taken over by the authorities as per the records, the Society and its members are in physical and actual possession of their respective plots and at the instance of the society the land allotted to APSRTC is set aside. Therefore, from the records as well as the counter affidavits filed by the respondents establish the fact that the ULC authorities have not taken physical possession of the subject land and it remained only on paper and that the petitioners are in continuous possession and enjoyment of the subject property. The notice dated 31.08.1999 in proceedings No.B1/11240/76 in respect of the first petitioner discloses that notice issued under Section 10(5) of the Act expired on 04.09.1998 and directed Enquiry Officer of the ULC to take over possession under Section 10(6) of the Act and hand over the same to the MRO concerned and report compliance. The consolidated panchanama dated 04.11.1999 reveals that surplus vacant land measuring 96479.36 sq. mts., partly covered by structures handed over to Mandal Revenue Inspector of Asifnagar Mandal, who is not an authorized person, but as per the proceedings dated 31.08.1999 the authorized person is the Mandal Revenue Officer but not the Mandal Revenue Inspector. Therefore, he is not authorized person to take possession of the subject land and as such the alleged proceedings are illegal and non est. In the absence of such authority, it cannot be treated that valid possession is taken over. Another aspect is that the panchanama is cyclostyled panchanama and blanks were filled up and panchas names were shown as (1) R. Mallesh, resident of Jiyaguda, (2) K. Rajendar, resident of Bajarghat and (3) K. Jagannadham, resident of Jiyaguda and none of the residents of Gudimalkapur were called. It is not known who brought those panchas from the other areas. Further the learned counsel pointed out that the first pancha-Mallesh’s occupation is shown as labour, who signed in English and also contended that signatures of panch witnesses are of the same handwriting. On close scrutiny the panchanama supports the contentions of the petitioners and further it is not known when the sub-division has taken place. The second respondent being the competent authority did not choose to file a counter to controvert all the allegations. The counter affidavit filed by the competent authority in W.P.No.18851 of 2003 discloses that the Government is not in possession of the land. Firstly, the very notices issued under Sections 10(3), (5) and (6) during the pendency of the appeals and alleged taking over of paper possession under a cover of panchanama is illegal and in violation of the status quo orders granted by the appellate authority. Be that as it may, no record has been placed to show that a notice or opportunity was given to the petitioners at the stage of the proceedings initiated under Sections 9, 10, 10(3), 10(5) and 10(6) of the ULC Act and all these proceedings were initiated behind the back of the petitioners and therefore the earlier writ petition was allowed by this Court. Even otherwise while pending the statutory appeals, the initiation of the said proceedings are inoperative and non est in the eye of law. Respondent 20 claiming to be the agreement holder had filed a suit for specific performance and the said suit was decreed. However, being aggrieved by the same, the writ petitioners have filed CCCA No.40 of 2006 and the same was allowed by this Court. The unofficial respondents are now contending that the land is vested in the State by operation of law. Respondent 20 and other respondents are claiming that they have entered into agreement with the owners and that they now cannot turn around and claim that the land is vested in the government to take advantage of the benefits of G.O.Ms.No.456. Admittedly, the appeals were dismissed by the statutory authority in the year 2002 and status quo was in force during the pendency of the appeals. Therefore, any subsequent steps taken by the competent authority under the ULC Act are non est and inoperative while the State of Andhra Pradesh repealed the ULC Act in the month of March, 2008. Therefore, the petitioners are claiming that in view of the repealing Act all the proceedings were abated and the alleged paper panchanama dated 04.11.1999 is of no consequence as the said proceedings were inoperative and non-est in the eye of law. The Supreme Court in State of Gujarat vs. Shantilal Mangaldas[1] held as follows: “55. ……… for it is a