IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SIXTH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.5268 of 2001 Between: Gompa Suryaprakasha Rao and 2 others ..... PETITIONERS AND The Government of Andhra Pradesh, Rep.by its Principal Secretary, Revenue (UC-III) Department, Secretariat, Hyderabad and 2 others .....RESPONDENTS The Court made the following: THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.5268 of 2001 O R D E R: It is the case of the petitioners that the father of the petitioners Gompa Dalinaidu filed a declaration under Urban Land (Ceiling and Regulation) Act, 1976 in CC.6421/76/B2, dated 08.12.1979 declaring that he was a surplus holder of 108 sq. mtrs. It is further case of the petitioners that the Government granted exemption exempting the land in TS No.2A admeasuring 404 sq.metres and at the time of finalizing the declaration, the petitioners were having HPCL Petrol Bunk in the said land covered by TS No.2A. It is stated that the car service centre, an automobile workshop and scrap godown were situated in the said survey number but the excess ceiling surplus land of 108 sq.metres is sought to be taken away, even though it is said to have been exempted by order of the Government in G.O.Ms.No.7230, and therefore, the said surplus land even if in possession of the petitioners, the possession of the petitioners cannot be disturbed, more so, in view of the Urban Land (Ceiling and Regulation) Repeal Act 1999 which came into force in the State of Andhra Pradesh w.e.f. 27.03.2008 by G.O.Ms.No.603 Revenue (UC.I) dated 22.04.2008. 2. A counter has been filed on behalf of the respondents stating that the father of the petitioners filed a declaration for all the properties held by him including TS No.2/A part of market ward admeasuring 1809 sq.metres and RS No.16P admeasuring 231 sq.metres together 2040 sq.metres. A draft statement under Sec.8(1) and notice under Sec.8(3) have been issued to the declarant and the declarant filed objection petition contending that major sons got equal share in the property and therefore, requested to issue revised orders under Sec.8(4). While so, the declarant sought for exemption of an extent of 704 sq.metres in which petrol bunk was existed and the Government vide G.O.Ms.No.560 Revenue (UC.III) Department dated 18.05.1977 issued orders granting exemption with a condition that the said land should be utilized for the purpose of petrol bunk till the expiry of existing lease period. Taking into consideration of the objections raised by the declarant orders under Sec.8(4) were passed by the Special Officer and competent authority vide C.C.No.6421/76/B2, dated 18.12.1979 treating him as surplus landholder to an extent of 108 sq.metres. The declarant sought for exemption of the said surplus land and the Government vide G.O.Ms.No.4202 Revenue (UC.III) Department dated 05.09.1980 have exempted surplus land of 108 sq.metres. It is stated that the exemption was only till the said land was utilized for the purpose of petrol bunk and till its expiry of existing lease period. It is stated that the petrol bunk was demolished and therefore, the exemption granted was no more existing and the same has to be treated as a vacant land. It is further stated that the Government issued orders in G.O.Ms.No.723 Revenue (UC.III) Department dated 18.07.1994 withdrawing the exemption granted earlier vide G.O.Ms.No.4202 Revenue (UC.III) Department dated 05.09.1980 to the declarant in respect of the said land of 704 sq.metres wherein petrol bunk was existed and directed the Special Officer and competent authority to take further action. As per the said orders, the Special Officer and competent authority issued final statement under Sec.9 of the Act on 08.04.1994 which was served on the declarant on 29.08.1994. Thereafter, the notification under Sec.10(1) of the Act and declaration under Sec.10(3) were issued and they were got published in the A.P.State Gazette on 06.04.1995 and 07.09.1995 respectively. Notice under Sec.10(5) was also sent to the declarant directing to surrender surplus land of 704 sq.metres situated in Sy.No.2AK/2 of Market ward, but the declarant refused to take the notice and as such substitute service was made by affixing the same on the wall of the house of the declarant. Therefore, the proceedings under Sec.10(6) were issued on 08.01.1996 authorizing the Mandal Revenue Officer, Visakhapatnam (Urban) to take over possession of the surplus land. The surplus land was handed over to the Mandal Revenue Officer, Visakhapatnam (Urban) for safe custody on 01.02.1996. Thereafter, as per the orders of the Government in G.O.Ms.No.166 dated 03.03.2001, the same was handed over to the VUDA on 07.03.2001 for utilizing the same for public purpose. At this stage the present writ petition is filed. 3. It is not in dispute that the declaration under Sec.10(3) was issued which was also published in A.P.Gazette dated 07.09.1995. If that be so, under Sec.10(3) of the Act the surplus land shall be deemed to have been acquired by the State Government and upon publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances w.e.f. from the date so specified. Under Sec.10(5) where any vacant land is vested in the State Government under sub-Sec.(3), the competent authority may, by notice in written, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorized by the State Government on his behalf. Under Sec.10(6) if any person refuses or fails to comply with an order made under Sub-Sec.(5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorized by such State Government in this behalf and may for that purpose use such force as may be necessary. 4. In so far as the Act is concerned, no doubt the Urban Land (Ceiling and Regulation) Repeal Act 1999 has been passed and that Act shall come into force in the respective States from the date of issuance of the notification. Admittedly, in so far as the State of Andhra Pradesh is concerned, the State of Andhra Pradesh issued orders in G.O.Ms.No.603, Revenue (UC.I) Department dated 22.04.2008, and issued notification for the said repeal Act which come into force w.e.f.27.03.2008. The Government, while keeping in view the provisions of Section 3(1)(a) of the Urban Land (Ceiling & Regulation) Repeal Act, 1999 providing that the repeal of the principal Act shall not affect the vesting of any vacant land under sub-section(3) of Section 10, possession of which has been taken over by the Government or any authorized person or the competent authority. 5. It is the case of the Government in the instance case that not only the declaration has been published under Sec.10(3) in the A.P.State Gazette, but also notice under Sec.10(5) was issued which was said to have been refused and served by way of substitute service by affixture and possession was also taken by the Mandal Revenue Officer and in turn it was given to the VUDA on 07.03.2001. No reply affidavit has been filed for the aforesaid averment made in the counter affidavit and therefore, it cannot be said that by virtue of the Repeal Act, the petitioner is entitled to continue in possession. The petitioner has not questioned any of the aforesaid orders, particularly the orders of the Government in G.O.Ms.No.723 Revenue (UC.III) Department dated 18.07.1994 by which the earlier exemption was withdrawn. Therefore, I do not see any merits in the writ petition and the Writ Petition is accordingly dismissed. No order as to costs. ___________________ V.ESWARAIAH,J Dated: 06.08.2010 Dsr