HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.24532 of 2008 Date : 05.08.2011 Between : Gottamukkala Ramulu. …..Petitioner And The State of A.P., rep. by Prl. Secretary to Government, Revenue Department & others. …..Respondents HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.24532 of 2008 ORDER : This writ petition is filed, seeking the following reliefs : “(a) to declare the actions of the State and its authorities in arriving the petitioner land to an extent of Ac.1-34 guntas in Sy.No.120 part of Kukatpally Village, Balanagar Mandal, Ranga Reddy District as an excess vacant land under the Repealed Act in proceedings No.F1/12165/1976, dated 08.02.2008 behind back of petitioner and steps to take forcible possession of the petitioner’s land under the provisions of the Repealed Act are without jurisdiction, illegal, arbitrary, malafide and such orders are null and void in the eye of law; (b) to declare that the said orders in proceedings No.F1/12165/1976, dated 08.02.2008 under Section 8(4), final statement U/s.9, 10(1), 10(3), 10(5) and 10(6) would not effect the rights, title, interest and possession of the petitioner’s land to an extent of Ac.1-34 guntas equivalent to 6486.96 Sq. metres in Sy.No.120 part of Kukatpally Village, Balanagar Mandal, Ranga Reddy District.” The petitioner herein was the declarant, who has declared the lands held by him in Sy.Nos.117 to 120 and 121 to 129, situated at Kukatpally village in Ranga Reddy District, under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as ‘the Act’). On the declaration filed by him, preliminary statements were issued as required under Sections 8(1) and 8(3) of the Act, and after filing objections by the petitioner, order was passed under Section 8(4) of the Act, declaring that the petitioner is holding excess land to an extent of 35421.73 square metres. In the declaration, the petitioner has also stated that he sold an extent of Ac.14.18 gts. of land in Sy.Nos.117 to 121, to a registered Co-operative Society in the year 1974 and also delivered possession of the same. On the application filed before the Government for grant of exemption, orders were issued in G.O.Ms.No.1496, dated 16.10.1982, granting exemption to an extent of 28935 square metres held by the petitioner. After deleting the lands covered by exemption proceedings, further steps were taken by the respondents under Section 10 of the Act, in respect of an extent of 6486.69 square metres. After issuing notifications/orders under Sections 10(1) and 10(3) of the Act, respondents have issued notice under Section 10(5) of the Act on 02.01.2008, which is stated to have been served by affixture. On the ground that the petitioner has failed to surrender the land pursuant to the notice/order issued under Section 10(5) of the Act, orders are issued under Section 10(6) of the Act on 08.02.2008. Pursuant thereto, panchanama, dated 14th February 2008 is prepared for taking possession of land into the custody of the Government. In this writ petition, it is the case of the petitioner that he was not served with any notice as contemplated under Section 10(5) of the Act, and without even serving notice under Section 10(5) of the Act, by issuing proceedings under Section 10(6) of the Act, on the ground that the excess land in question covered by Sy.No.120 is already taken possession, respondents started interfering with the same. It is submitted that the petitioner is in actual and physical possession of the land. It is submitted that as much as the respondents have not followed the procedure as contemplated under the Act, the orders issued under Section 10(6) of the Act on 08.02.2008 are illegal and arbitrary. It is submitted that in view of repealing of the Urban Land (Ceiling and Regulation) Act, 1976, all proceedings stand abated, and as such, the same are fit to be quashed. The Special Officer and competent authority, Urban Land Ceiling, Hyderabad, has filed counter affidavit giving the particulars like the survey numbers and the extent of land held by the petitioner. It is stated that pursuant to the declaration filed by the petitioner, final statement is issued under Section 9 of the Act on 29.09.1981, finally determining that the petitioner is the surplus land holder to an extent of 35421.73 square metres. Referring to the orders issued by the Government in G.O.Ms.No.1496, dated 16.10.1982, by which the Government has exempted an extent of 28935 square metres, it is stated that after passing necessary orders under Sections 10(3), 10(5) and 10(6) of the Act, possession of excess land to an extent of 6486.69 square metres was taken possession on 14.02.2008. It is stated that as notice under Section 10(5) of the Act was issued on 02.01.2008, which was served by way of affixture at conspicuous place by the inquiry officer and as the petitioner has failed to surrender the land within the period prescribed in the order dated 02.01.2008, the inquiry officer has taken possession of land by conducting panchanama on 14.02.2008. Heard learned counsel for petitioner as well as the learned Government Pleader appearing for respondents. In this writ petition, it is contended by the learned counsel Sri C.Hanumantha Rao, appearing for petitioner that the respondents have not followed the mandatory provisions, particularly, as contemplated under Section 10 of the Act. It is submitted that without serving copy of orders/notice issued under Section 10(5) of the Act, it is not open for the respondents to issue notice under Section 10(6) of the Act and to take possession by conducting panchanama. It is stated that when excess land is determined and after issuing notification under Sections 10(1) and 10(3) of the Act, it is obligatory on the part of the Special Officer to serve notice under Section 10(5) of the Act, directing the declarant to deliver possession of excess land within a period of 30 days from the date of service of notice. As the said copy was not at all served, all consequential steps of issuing notice under Section 10(6) of the Act and taking possession are, per se, illegal and arbitrary. It is submitted that in view of repeal of the Urban Land (Ceiling and Regulation) Act, 1976 itself, all the proceedings shall stand abated and are fit to be quashed. It is also submitted by the learned counsel that the power of authorities to take possession on their own under Section 10(6) of the Act will arise only in cases where the declarant failed to deliver possession within a period of 30 days after service of notice/order issued under Section 10(5) of the Act. It is submitted that in that view of the matter, the entire proceedings are illegal and the petitioner cannot be deprived of valuable land in this lawless and illegal manner. On the other hand, it is submitted by the learned Government Pleader appearing for respondents that as the petitioner has failed to furnish his address in the declaration filed by him, an attempt was made to serve notice under Section 10(5) of the Act by the inquiry officer and as the inquiry officer has failed to locate the address of the petitioner, it was affixed on 04.01.2008. It is further submitted that as the petitioner/declarant did not deliver possession of vacant land within 30 days after the notice dated 04.01.2008, possession of excess land to an extent of 6486.64 square metres, covered by Sy.No.120, was taken by conducting panchanama on 14.02.2008. It is submitted that as the possession was already taken, the Urban Land (Ceiling and Regulation) Repeal Act, 1999 will not apply, and as such, the petitioner is not entitled for any relief. On earlier occasion, when the matter was heard, the learned Government Pleader was directed to produce the record. Today, the entire record is produced before this Court and I have carefully perused the same. A perusal of the file relating to the declaration filed by the petitioner indicate that after filing of the declaration, at the stage of inquiry, preliminary statement was prepared and was served on the petitioner by a special messenger by taking his endorsement. Similarly, orders issued under Section 8(4) of the Act were also served on the petitioner through a special messenger. The file also contains the representations filed by the petitioner, objecting to the computing of lands declared by him as excess lands, in which, full address of the petitioner is shown, including the door number as 1-49, Kukatpally. From a perusal of the file, it is clear that all the orders sent to the petitioner were served in person through a special messenger, but surprisingly, respondents have taken the stand that as the address of the petitioner is not available, notice under Section 10(5) of the Act was served by affixture. From the record, it is clear that no attempt is made to send the said order issued under Section 10(5) of the Act either by a messenger or by way of registered post to the address of the petitioner, which is available in the record itself. Basing on the affixture of notice issued under Section 10(5) of the Act, further steps were taken by issuing notice under Section 10(6) of the Act. At this stage, it is apt to refer to a judgment of this Court in the case of G.V.Mohan and others Vs. State of Andhra Pradesh and others[1]. In the aforesaid judgment, while interpreting the various provisions of the Act and its binding nature to follow the procedure, a learned Single Judge of this Court has held as under : “We are a country, governed by "rule of law". It applies equally to all. As rule of law is fundamental in the governance of the country, every authority, exercising his power under a statute, must exercise the power vested in him in accordance with the law framed in the statute and not contrary thereto. Any contravention of the law by the authority, would render his action/s, irregular or illegal. The ULC Act is an Act, to provide for the imposition of a ceiling on vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations to subserve the common good. Under the ULC Act, Respondent No. 3, namely the Special Officer and Competent Authority, is vested with the power of determining surplus land of the individuals, issuing notices to the declarants and persons interested in the land in the matter of taking over possession of the surplus land. That being so, when Respondent No. 3, being a statutory authority under the ULC Act, seeks to deprive the citizens of their right in Immovable property, by way of taking over possession of the surplus land, pursuant to they being declared as surplus holders, he is required to follow the procedure prescribed thereunder, in letter and spirit, and any act of his taking over possession of the land, in deviation or violation thereof, should render his action irregular and illegal. If according to Respondent Nos. 1 to 3 and 6, possession of the land was taken in the presence of Petitioner No. 1, then nothing prevented the Enquiry Officer from recording the presence of Petitioner No. 1 and taking his signature on the panchanama and also recording about the taking of possession of the surplus land from him. In the absence of the panchanama recording the presence of the Petitioners, much less Petitioner No. 1, non- taking of his signatures, non-recording about the factum of surrender made by the Petitioners, it can be said that the taking over of possession of the land by the Enquiry Officer, under the panchanama, is invalid and is bad, particularly when the panchanama was not conducted in the presence of the Petitioners, but was conducted behind their back. Applying the ratio referred above, there appears no reason or justification for the respondents for not service the notice/order issued under Section 10(5) of the Act, on the petitioner. The submission made by the learned Government Pleader that as the address of the petitioner was not available notice under Section 10(5) of the Act was served by way of affixture, cannot be accepted, for the reason that in the very same inquiry proceedings, earlier orders were served on the petitioner through a special messenger, as such, there is no reason for not serving notice under Section 10(5) of the Act on the petitioner. A perusal of the file shows that no attempt is made either to serve the notice through a messenger or by sending it by way of registered post to the address of the petitioner as stated in the representation filed by him, which was in the file. As much as this Court is of the view that the respondents have not followed the mandatory procedure prescribed under Section 10(5) of the Act by not serving the notices as contemplated under the law, all consequential proceedings, including the proceedings issued under Section 10(6) of the Act and the alleged taking possession of the land from the petitioner by conducting panchanama, are fit to be declared as void ab initio. In normal course, it is a case to be remanded to the authorities concerned for taking steps from the stage of proceedings under Section 10(5) of the Act, but in view of further developments that took place i.e. as the Act itself is repealed in the State of Andhra Pradesh from the month of March 2008, there cannot be any reason to remand the matter. As per the provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, all the proceedings shall stand abated. For the aforesaid reasons, all the impugned proceedings declaring the land admeasuring Ac.1.34 gts., equivalent to 6486.69 square metres, covered by Sy.No.120 part, Kukatpally village, belonging to the petitioner, as excess land, and the consequential proceedings of taking possession of land pursuant to the notice under Section 10(6) of the Act, are hereby quashed, by declaring that all the proceedings issued under the Act with regard to the aforesaid piece of land stand abated. The writ petition is allowed to the extent indicated above. No order as to costs. ______________________ R. SUBHASH REDDY, J 5th August 2011 prv/ajr [1] 2011 (1) ALD 761