HON’BLE SRI JUSTICE. R.SUBHASH REDDY WRIT PETITION No.17613 OF 2008 Date: 10.08.2011 Between: Syed Shah Ali Hussaini & others. … Petitioners And The Chief Commissioner (Appeals), O/o.The Chief Commissioner, Land Administration, Government of Andhra Pradesh, Hyderabad & others. … Respondents HON’BLE SRI JUSTICE. R.SUBHASH REDDY WRIT PETITION No.17613 OF 2008 ORDER : The petitioners in this writ petition are the legal heirs of one Late Sri Syed Fazalullah Hussaini, who was the declarant in C.C.No.5515/76 under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as ‘the ULC Act’). In the writ petition, they have questioned the Memo of the appellate authority, by which, the appellate authority has accepted the memo filed by the authorized officer to declare that the appeal filed by the petitioners under Section 33 of the ULC Act, is abated, and further sought for a declaration to declare that the orders passed by the respondents under Sections 8(4), 9, 10(1), 10(3), 10(5) and 10(6) of the ULC Act, as illegal and void, as the respondents have failed to follow the procedure mandated under the ULC Act while issuing the said orders. 2. Late Fazalullah Hussaini was the owner and possessor of 3 acres of agricultural land covered by Sy.Nos.99 and 100 of Langar house in Hyderabad District. On the advent of the provisions under the ULC Act, he has filed a statement in Form-I as required under Section 6(1) of the Act, in C.C.No.5515/76, declaring the aforesaid land held by him. On such declaration filed by the declarant, the 2nd respondent-Special Officer and competent authority, has issued provisional statement under Sections 8(1) and 8(3) of the Act on 07.06.1995, declaring that out of the total area of 14624 sq. metres, the declarant is entitled for retention of 1000 sq. metres under Section 4(1)(b) of the Act and a provisional determination is made declaring an extent of 13624 sq. metres as surplus land. After service of the orders issued under Sections 8(1) and 8(3) of the ULC Act on the original declarant, he died on 3rd of August 1995. The 1st petitioner herein, who is the 2nd son of the declarant, has filed an application on 13.10.1995, seeking time for filing objections, and thereafter, through an Advocate, the petitioners herein got filed their objections. In the objections filed before the competent authority, the petitioners have stated that the land in question is agricultural land and in the master plan, part of the area in the aforesaid land was reserved for recreational use, partly for public and semi public purpose and some area is affected by a 100 feet wide road, as such, the said land cannot be treated as vacant land within the meaning of the ULC Act. The Special Officer and competent authority, referring to the objections filed by the petitioners in detail, without recording any finding on such objections, only on the ground that the entire area is covered by encroachments, issued final order, dated 27.03.2003, in Proceedings No.B2/9534 & 5515/76, confirming the provisional orders issued under Sections 8(1) and 8(3) of the ULC Act and issued final statement under Section 9 of the Act, declaring the extent of vacant land to be surrendered, as 13624 sq. metres. 3. Consequent to the orders issued under Section 8(4) of the ULC Act, respondents have taken up the proceedings under Section 10 of the said Act and issued notifications under Sections 10(1), 10(3), 10(5) and 10(6) of the Act. At that stage, when the respondents were attempting to take possession of land, alleging that they were not served with the order under Section 8(4) of the Act, but steps were taken to dispossess them, the petitioners have approached this Court by filing a writ petition in W.P.No.3666 of 2006, seeking directions to the respondents to furnish the certified copies of the orders passed under Sections 8(4) and 9 of the ULC Act, in which, a direction was issued by this Court for furnishing copies of said orders. Alleging violation of such directions, they also filed a contempt case in C.C.No.1331 of 2006, and thereafter, copies of the orders passed under Sections 8(4) and 9 of the Act were issued to the petitioners, as against which, they filed an appeal in ULC Appeal No.Hyd/9/2006, as provided under Section 33 of the ULC Act. The appellate authority has passed interim orders, by an order dated 19.01.2007, to maintain status quo with regard to possession and posted the matter for hearing. During the pendency of the appeal, the State of Andhra Pradesh has issued notification, adopting the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as ‘the ULC Repeal Act’), pursuant to a resolution passed by the A.P. Legislature. In pursuance of the said notification, the Government has issued Circular dated 24.04.2008, clarifying that all the pending proceedings will abate in view of Section 4 of the ULC Repeal Act, and it is further clarified that as much as Section 33 of the Act is not saved in the Repeal Act, the appellate authorities will not have any jurisdiction to decide the appeals filed under Section 33 of the ULC Act. Based on such repeal, a memo was filed and as appeal preferred by the petitioners was not being taken up on the ground that it is abated, they approached this Court initially seeking to declare such an action on the part of the appellate authority as illegal, but subsequently, they have questioned the order passed under Section 8(4) of the ULC Act and the further orders passed under Sections 10(1), 10(3), 10(5) and 10(6) of the ULC Act and to declare that the entire proceedings are non-est, void, illegal and arbitrary. 4. It is the case of the petitioners that after issuance of draft statement under Section 8(1) of the ULC Act and receipt of notice under Section 8(3) of the said Act, they have filed their objections to the draft statement, and thereafter, they were not served with any order under Section 8(4) of the ULC Act or further proceedings under Section 10 of the said Act. It is their case that as respondents have violated the mandatory provisions of the ULC Act and issued orders under Section 8(4) of the said Act and initiated consequent proceedings under Section 10, they cannot be deprived of their property in this illegal and arbitrary manner and such an action on the part of respondents is in violation of the rights guaranteed under Article 300-A of the Constitution of India. 5. The Special Officer and competent authority has filed counter affidavit and additional counter affidavit. While referring to the statement filed by the original declarant Late Sri Fazalullah Hussaini, it is stated in the counter that respondents have issued provisional orders under Sections 8(1) and 8(3) of the ULC Act on 07.06.1995, and subsequently, final orders were passed under Sections 8(4) and 9 of the said Act on 27.03.2003, duly determining the declarant Fazalullah Hussaini as surplus land holder to an extent of 13624 sq. metres, while allowing 1000 sq. metres as retainable, in Sy.Nos.99 and 100 of Langar House village of Golconda Mandal of Hyderabad District. It is stated that the draft notification under Section 10(1), dated 30.04.2003, was published in Gazette No.99 on 09.05.2003, and as there were no objections, declaration under Section 10(3) of the Act, dated 24.05.2004, was issued and got published in the Gazette on 31.05.2004, and thereafter, notice under Section 10(5) of the Act was issued on 22.06.2004 to deliver possession of surplus land and the same was served on 19.08.2004 on the declarant. It is stated that since the declarant failed to deliver possession of surplus land, proceedings under Section 10(6) of the Act were initiated on 22.09.2004. The inquiry officer has taken possession of land on 21.12.2005 by conducting a panchanama and the same was handed over to the Tahsildar, Golconda Mandal on 22.12.2005. Counter further states that as much as the possession was taken much before repeal of the ULC Act, and as the possession was with the State Government, the appeal preferred by the petitioners also stands abated and closed. 6. In the additional counter, it is stated that Late Sri Syed Fazalullah Hussaini has filed 6(1) statement and the provisional orders under Sections 8(1) and 8(3) of the Act were passed on 07.06.1995 and were served on Syed Shah Ali Hussain, the 1st petitioner herein, who is the son of the declarant and he has filed a representation on 19.10.2005 with a request to give two months time for filing objections, and though the case was adjourned, petitioners have not attended for hearing. In the additional affidavit, it is stated that final order was received by one Sameena, who is a family member of the declarant, and thereafter, notice under Section 10(5) of the ULC Act was issued and possession of land was taken on 21.12.2005. 7. A reply affidavit is filed on behalf of the petitioners. Disputing the averments made in the counter affidavit, in the reply affidavit, the petitioners have reiterated their stand that orders under Section 8(4) of the ULC Act were not served on them and they have disputed issuance of notice under Section 10(5) of the Act and consequential taking over possession under Section 10(6) of the Act. It is stated that as the order under Section 10(5) itself is not served on the petitioners, there is no authority or jurisdiction on the respondents to issue notice under Section 10(6) of the Act and to take possession. 8. Heard learned counsel Sri R.Narasimha Reddy, appearing for petitioners and also the learned Assistant Government Pleader appearing for respondents. 9. It is submitted by the learned counsel for petitioners that in this case, the petitioners are sought to be deprived of their valuable land, which is their only property, without following the mandatory procedure prescribed under various provisions in the ULC Act. It is contended by the learned counsel that after filing of the original declaration by the father of the 1st petitioner, who is died, and inspite of filing objections through an Advocate by the petitioners, at no point of time, an attempt was made to serve the order under Section 8(4) of the Act, on the petitioners. It is submitted that when orders under Section 8(4) of the Act were not served and the respondents were taking possession of the land, though they approached this Court by filing W.P.No.3666 of 2006, they were not served with the orders under Section 8(4) of the Act, and only after filing a contempt case in C.C.No.1331 of 2006, orders were served, and then only, appeal was filed by the petitioners before the appellate authority. Though the appellate authority granted interim orders of status quo, as the respondents have declared that in view of repeal of the Act, as there is no provision in the repeal Act saving Section 33 of the Act the appeal stands abated, they approached this Court. It is further submitted that when it is stated in the counter affidavit that the appeal is abated and the appellate authority cannot decide the appeal, they have also filed the amendment application for amendment of prayer, which is allowed by this Court. It is submitted that it is mandatory on the part of respondents to serve final orders under Section 8(4) of the ULC Act on the petitioners, who filed objections to the provisional orders, inspite of the same, no such orders are served, but further steps are taken under Sections 10(1), 10(3), 10(5) and 10(6) of the Act, without serving any notice on the petitioners. Learned counsel submits that though respondents are claiming to have taken possession, the petitioners are in physical and actual possession of the land and they continued in possession by virtue of the interim orders passed by the appellate authority. It is further submitted that in any event, as the notice under Section 10(5) of the Act was not served on the petitioners, who are very much on record pursuant to their filing objections through an Advocate, it was not open for the respondents to take possession by issuing notice under Section 10(6) of the ULC Act, even without effecting the service of order passed under Section 10(5) of the Act. The learned counsel contends that as all the proceedings are taken up in utter violation of the mandatory procedure prescribed under the law, the orders issued under Section 8(4) of the Act, and the consequential orders, are fit to be declared as illegal. It is further submitted that in any event, the Special Officer and competent authority though referred to the objections filed by the petitioners in the final order, he has not referred to any of the objections raised by the petitioners and simply confirmed the provisional orders only on the ground that the area is encroached upon by the third parties. It is submitted that when objections are filed, it is obligatory on the part of the competent authority to deal with such objections and it is not open for him to declare any area as excess area, by confirming the provisional orders issued under Sections 8(1) and 8(3) of the ULC Act, without recording any finding on the objections. In support of his case, the learned counsel has placed reliance on a judgment of this Court in the case of Kothuru Babu Surendra Kumar (died) and others Vs. Special Officer and Competent Authority, ULC, Vijayawada and others[1]. 10. On the other hand, it is submitted by the learned Assistant Government Pleader appearing for respondents that inspite of giving opportunity to the petitioners, having failed to appeal before the competent authority, it is not open for them to plead that they were not given opportunity before passing orders at various stages under the provisions of the ULC Act. It is submitted by the learned Assistant Government Pleader that after service of orders passed under Section 8(4) of the Act, though petitioners have filed appeal before the appellate authority under Section 33 of the Act, in view of the notification issued by the State of Andhra Pradesh, adopting the Urban Land (Ceiling and Regulation) Repeal Act of 1999 during the pendency of appeal, the appeal is abated in view of Section 4 of the ULC Repeal Act, as such, the appellate authority did not proceed further. The learned Assistant Government Pleader further contends that as the final orders are passed under Section 8(4) of the Act, and further steps were taken upto Section 10(6) of the Act by following the procedure prescribed under the law, there are no grounds to grant any relief to the petitioners, as sought for. 11. During the course of hearing, the learned Assistant Government Pleader has produced the entire file relating to the declaration of the original declarant in C.C.No.5515/76. In view of the allegations of the petitioners, I have carefully scanned the entire record. From a perusal of the file, it is clear that the father of the 1st petitioner has originally filed a declaration in C.C.No.5515/76, declaring an extent of 3 acres of agricultural land covered by Sy.Nos.99 and 100 of Langar House village in Golkonda Mandal of Hyderabad District, and an inquiry was initiated on the declaration filed by the declarant during his life time and provisional statement was issued under Section 8(1) and notice under Section 8(3) of the Act was issued on 07.06.2005 and served on the declarant. In the meanwhile, the original declarant died, and the petitioners have appeared through an Advocate and got filed appearance. Thereafter, they also filed detailed objections, stating that the land in question is agricultural land, and as per the master plan, part of the land is in recreation zone and part of the land is used for public and semi public purpose, and some part of the land is already covered by public road. Though the said objections filed by the petitioners are referred to, the Special Officer and competent authority, Urban Land Ceiling, has passed orders on 27.03.2003 in Proceedings No.B2/9534 & 5515/76, confirming the provisional statement under Section 8(1) of the Act. The relevant portion in the said order reads as under : “Aggrieved by the S.O. & C.A. orders, one Sri Syed Shahali Hussaini has filed an application on 13.10.1995 stating that grant two months time for filing objection. Sri Syed Shah Ali Hussaini has filed an objection petition through his counsel stating that the Sy.Nos.99 & 100 of Langar House are Agrl. Land prior to the commencement of the U.L.A. Act. As per Master Plan Sy.No.99 partly recreational use, partly public and semi public and partly effected by proposed 100" wide road and Sy.No.100 public and semi public use (grace yard). The land Sy.Nos.99 & 100 is not a vacant land U/s.2(q)(1) of the Act U.L. (C&R) Act, 1976. In this regard clarification sought from A.P. Wakf Board and HUDA Hyderabad no response were received from both sides. The ground status report called for from E.O. The E.O. conducted enquiry whose enquiry it is revealed that the entire area covered under encroachment from various persons. In view of the above the objection petition filed by Sri Syed Shah Ali not considered as the entire area encroached by 3rd party. Therefore, while confirming provisional orders U/s.8(1) and notice U/s.8(3) of the Act issued earlier. Accordingly orders U/s.8(4) of the Act is prepared alongwith final statement U/s.9 of the Act and sent herewith for service.” 12. From a perusal of the aforesaid order, it is clear that after the demise of the original declarant, the petitioners, who are his legal representatives, have appeared before the competent authority and have also filed detailed objections to the statement prepared under Section 8(1) of the Act. It is the specific case of the petitioners that the lands in question are agricultural lands and the land covered by Sy.No.99 is in recreational use and meant partly for public and semi public purpose and there is also a grave yard in Sy.No.100 and it is also effected by a 100 feet road. Though such detailed objections are referred to, the Special Officer and competent authority has passed a very cryptic order without adverting to any of the objections and confirmed the provisional orders issued under Section 8(1) and the notice issued under Section 8(3) of the Act only on the ground that the entire area is encroached by third party. At this stage, it is apt to refer to the provisions under Sections 8(3) and 8(4) of the ULC Act, which read as under : “8(3) : The draft statement shall be served in such manner as may be prescribed on the person concerned together with a notice stating that any objection to the draft statement shall be preferred within thirty days of the service thereof. 8(4) : The competent authority shall duly consider any objection received, within the period specified in the notice referred to in sub-section (3) or within such further period as may be specified by the competent authority for any good and sufficient reason, from the person whom a copy of the draft statement has been served under that sub-section and the competent authority shall, after giving the objector a reasonable opportunity of being heard, pass such orders as it deems fit.” From a perusal of the aforesaid provisions, it is clear that after service of draft statement inviting objections from the declarant under Section 8(3) of the ULC Act, it is obligatory on the part of the competent authority to consider such objections and pass further orders under Section 8(4) of the Act, after giving the objector a reasonable opportunity of being heard. Though it is the specific case of the petitioners that they were not given the opportunity of hearing after objections are filed, having regard to the manner in which the order itself is passed by the competent authority, it may not be necessary to delve into the said aspect, namely, whether petitioners were given an opportunity of hearing or not before passing the order. From a perusal of the order, dated 27.03.2003, passed in proceedings No.B2/9534 & 5515/76, it is clear that the competent authority has not considered the objections as required under Section 8(4) of the ULC Act, but simply confirmed the statement on the ground that the area is completely covered by encroachments. If the area is covered by encroachments, it is not for the competent authority to declare such area as an excess land without recording findings on the objections raised by the petitioners pursuant to the provisional statement and the notice issued under Sections 8(1) and 8(3) of the Act respectively. When the ownership of petitioners is not in dispute, it is not permissible in view of the language under Section 8(4) of the Act, for the competent authority, to confirm the provisional statement only on the ground that the area is covered by encroachments. When objections are filed, it is mandatory on the part of the competent authority to consider such objections and record his findings before passing final orders and issuing final statement of surplus land to be declared under Section 9 of the ULC Act. In normal course, when such objections are not considered, it is a case to be remanded for fresh consideration by the competent authority, but now, as the very ULC Act itself is repealed by the ULC Repeal Act, and as Section 4 of the Repeal Act specifically declares that all the pending proceedings shall stand abate, the order, dated 27.03.2003, issued in Proceedings No.B2/9534 & 5515/76, is fit to be declared as illegal, as the same is not supported by any findings on the objections raised by the petitioners. It is also to be noticed that even after passing of orders under Section 8(4) of the ULC Act, further steps have not been taken in accordance with law by issuing notice to the petitioners. Although it is the specific case of the petitioners that the orders passed under Section 8(4) are not served on them, while denying the said allegation, it is stated that orders are served on one person by name Sameena, but when the objections are filed by the petitioners, who are the legal representatives of the original declarant, it is not open for the respondents to serve such orders passed under Section 8(4) of the ULC Act on any person other than the legal heirs of the declarant. I have also perused from the original file, the proceedings issued under Sections 10(1), 10(3), 10(5) and 10(6) of the ULC Act. As per Section 10(5) of the Act, when any vacant land is vested with the Government under Sub-section (3), the competent authority is required to issue notice in writing on the person who is in possession of such land, to surrender or deliver possession thereof to the State Government or to any person duly authorized by the State Government, within a period of thirty days from service of notice. The competent authority is empowered to take possession of vacant land on his own, under Section 10(6) of the Act, only in cases where the person served with the notice under Section 10(5) of the Act refuses or fails to comply with the order issued under the said Section. In this case, it is to be noticed that though the original declarant died as early as on 3rd of August 1995 and the petitioners, who are the legal heirs of the original declarant, have filed their objections, which are referred to in the order, dated 27.03.2003, passed under Section 8(4) of the Act, notice under Section 10(5) of the Act is issued in the name of the original declarant, who is a dead person, on 22.06.2004, and only on the ground that possession was not delivered within 30 days from such service, further proceedings are issued under Section 10(6) of the Act, and a panchanama was drafted, taking possession of land on 21.12.2005. When the original