THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU W.A.Nos.1763 of 2001, 7 of 2002, 69 of 2002; W.P.Nos.586 of 2002, 19023, 19097, 21975, 27063 of 2005, 662, 8464 of 2006 and C.C.No.352 of 2006 Date of Judgment: 08-10-2010 CT in W.A.No.1763 of 2001 Between: Smt. Dasamma and others. ..Appellants And The Bharani Mutually Aided Cooperative Housing Society Ltd. and others. .Respondents The Court made the following Common Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU W.A.Nos.1763 of 2001, 7 of 2002, 69 of 2002; W.P.Nos.586 of 2002, 19023, 19097, 21975, 27063 of 2005, 662, 8464 of 2006 and C.C.No.352 of 2006 Common Judgment: (Per Honourable Sri Justice A.Gopal Reddy) The writ appeals and writ petitions, which are inter connected with each other and pertain to the very same land, which is the subject matter of declaration filed by two branches, namely, “first wife branch” and “second wife branch” of late G.Sandaiah and the persons claiming under them, were heard together and disposed of by this common judgment. It is not necessary for us to delve deep into the myriad facts as narrated in each of the writ petitions and writ appeals. It would be suffice for our purpose to touch upon the facts in brief to decide the issue involved, which are not seriously in dispute, as under: Late G.Sandaiah was the owner of Ac.9.16 gts. of land in Sy.Nos.14, 15, 367, 368, 384, 385, 386 and 387 of Gudi Malkapur Village, Asifnagar Mandal, Hyderabad District. He had two wives. His first wife was Balamma through her he had a son by name, Devadas; his second wife was Lakshmamma and through her he had three sons, namely, G.S.Manohar, G.S.Prakasam, G.S.Jayakar and two daughters, viz., Deenamma and Dasamma. The only son of the first wife— Devadas died in the year 1974 leaving behind his widow—G.Ratnamma and three sons viz., G.Vasanth Rao, G.Surender and G.John Wesley and one daughter—Vsananthamma. There was no partition by metes and bounds between the two branches i.e. first wife branch and second wife branch. While so, a suit—O.S.No.447 of 1971 was filed for partition. On decreeing the suit, C.C.C.A.No.113 of 1976 was filed before this Court where a compromise decree was passed on 08-03-1982. As per the said compromise decree, the first wife branch got Ac.2.04 gts.; and three sons of second wife branch got equal extents i.e. Ac.2.04 gts. individually and two daughters got 20 gts. each. Thus, the total extent Ac.9.16 gts. was partitioned by extent but not by metes and bound. Both the branches filed declarations under the Urban Land (Ceiling & Regulation) Act, 1976 (for short “the ULC Act”) showing their entitlement as per their shares under the Hindu Law. The first wife branch filed C.C.No.B1/2921/76 and the second wife branch filed C.C.No.B1/2922/76, B1/2923/76, B1/2924/76, B1/1165/76 and B1/1166/76. The Special Officer and Competent Authority passed common order dated 09-11-1982 under Section 8(4) of the ULC Act holding that first wife branch holds 3282.15 square meters surplus and the second wife branch is holding 23684.58 square meters surplus. Notification under Section 10(1) and 10(3) of the ULC Act was published in the Gazette dated 05-07-1984 and the surplus extent of land was allotted to Hyderabad Urban Development Authority (HUDA). Meanwhile, the parties compromised the matter in CCCA. M/s. Bharani Cooperative Housing Society Limited, registered under the A.P. Cooperative Societies Act, 1964 entered into an agreement to sell dated 22-01-1982 with all the members of the two branches for purchasing a total extent of 34038 square meters subject to the provisions of the ULC Act and joint application was made to the State Government for exemption as per G.O.Ms.No.136, dated 28-01-1981. Against the common computation order passed on 09-11-1982 and consequential order dated 05-07-1984, the first wife branch filed W.P.No.15121 of 1984 and second wife branch filed W.P.No.14627 of 1984. W.P.No.15121 of 1984 was dismissed for default on 22-01-1992, and at the instance of parties the case was posted “for being mentioned”. On being mentioned, this Court recalled the earlier order dated 22-01-1992 and modified the order to the following effect: “ It is submitted by both the counsel for petitioners and respondents that pursuant to the order of this Court dated 01- 07-1987, a sum of Rs.36,898.85 ps., was deposited in Fixed Deposit by R4 was being paid over to the petitioners on 19- 11-1987. It is also submitted that the land in an extent of 3282.15 square meters was taken over by the 1st respondent —Government from the petitioners for being made over to the 4th respondent—Society. The Registrar (Admn.) of the High Court will withdraw the amount lying in fixed deposit as per the orders dated 01- 07-1987 and will issue a cheque for the amount of deposit, in favour of Sri T.Seshagiri Rao, appearing for petitioners for being paid over the petitioners. The 1st respondent/Government is directed to allot the land in an extent of 3282.15 square meters to the 4th respondent Society under Section 23 of the Urban Land (Ceiling on Agricultural Holdings) Act, 1976, as expeditiously as possible preferably within a period of three months, from the date of receipt of this order.” The said order has not been challenged by any branch and it has become final. The writ petition filed by the second branch i.e. W.P.No.14627 of 1984, which was decided separately by the very same judge on 27-07- 1993, was allowed quashing the declaration published in the A.P. Gazette dated 05-07-1984 with a direction to the 2nd respondent therein to consider the matter afresh and pass orders in accordance with law, confining the relief to the writ petitioners only. Meanwhile, the Society filed a suit—O.S.No.1181 of 1993 on the file of II Additional Senior Civil Judge, City Civil Court, Hyderabad for specific performance of the agreement of sale dated 22-01-1982 entered between the two branches and the same is pending as on 31-08-2010. On allowing the writ petition No.14627 of 1984, the Society filed W.P.No.9618 of 2001 contending that the entitlement and allotment of 3282.15 square meters as per the orders passed in W.P.No.15121 of 1984 dated 22-01-1992, whereby the Society was directed to be allotted an extent of 3282.15 square meters, no action is taken and for a consequential direction for allotment of land opted by the Society in implementation of the orders in the above writ petition. The learned single Judge by order dated 17-09-2001 disposed of the writ petition directing the respondents, Government of Andhra Pradesh and Special Officer and Competent Authority, to allot the land to an extent of 3282.15 square meters to the petitioner—Society as per the plan enclosed to the letter of the Special Officer dated 24-05-2001 within a period of two months from the date of receipt of a copy of the order. Assailing the correctness of the said order, some of the members of the 2nd wife branch filed W.A.No.1763 of 2001 and one of the members of the same branch filed W.P.No.586 of 2002 stating that the orders in W.P.No.9618 of 2001 are not binding on them, as they are not parties to the writ petition and until the computation is completed and their declarations have been finalized by the Special Officer & Competent Authority pursuant to the remand order passed in W.P.No.14627 of 1984 direction as such cannot be issued for allotment of land to the Society. In W.P.No.586 of 2002 it was pleaded that the legal representatives of Devadas, belonging to the first wife branch after allotting 1000 square meters to each of them an extent of 3282.15 square meters determined as surplus out of Ac.2.04 gts., which was directed to be allotted to the Society, which was the subject matter of W.P.No.15121 of 1984. Later, the Society purchased an extent of 3745.02 square meters of land from the legal representatives of Devadas out of retainable land and the remaining extent of land was given for development to another builder. The Society has developed the land purchased under four separate registered sale deeds by constructing three multi storied residential buildings and alienated all the flats to third parties under the name of 1. Vijayasree Apartments 2. Vijay Susheel Apartments and 3. Vijay Manor Apartments. The legal representatives of Devadas developed the flats in the name of Deva Ratna Apartments in the remaining land. The Society laid B.T. roads which was shown as open space in between the apartments developed and the land which was directed to be allotted to the Society is added it comes to 11543 square meters, which in fact they are not entitled to. Now under the garb of allotment order they cannot now seek allotment from out of land fell to the share of second wife branch. Whereas the State Government filed W.A.No.7 of 2002 assailing the correctness of the order passed in W.P.No.9618 of 2001 and the Society filed W.A.No.69 of 2002 against the interim orders passed in W.P.No.586 of 2002, dated 04-01-2002. On Special Officer & Competent Authority passing final computation orders on 15-02-2005, pursuant to the remand made in W.P.No.14627, Sub-Divisional Plan was also prepared on 03-03-2005 and certified copy of the same was furnished to the Society on 24-03-2005. Against the final computation order dated 15-02-2005, two members of the second wife branch filed appeals before the appellate authority under Section 33 of the ULC Act and on dismissal of the appeals, W.P.Nos.19023 and 19097 of 2005 were filed impleading the Society as party respondent. After disposal of W.P.No.14627 of 1984 and before the final orders passed by the competent authority on 15-02-2005, the 2nd wife branch executed twenty four registered sale deeds for an extent of 6061 square meters to various persons, who appeared before the Competent Authority, but their claims are not entertained as they are not necessary parties. As per the final computation order dated 15-02-2005, the 2nd wife branch is entitled to retain 11325.49 square meters and surplus extent declared is 16572.32 square meters. In the Sub- Divisional Plan prepared by the Competent Authority, the land sold by the members of the 2nd wife branch was shown in the retainable extent and balance was shown as surplus. As the suit filed by the Society for specific performance was pending, the Government issued G.O.Ms.Nos.455 and 456, dated 29-07-2002 for enabling allotment of the surplus land in favour of possessors and landholders on payment of the amounts specified therein. Meanwhile, one of the members of the 2nd wife branch filed W.P.No.21975 of 2005 for a direction to the Special Officer & Competent Authority for preparation of Sub-Divisional Plan showing retainable area of the land owners as per their option letter dated 14-03-2005. At that stage, the Special Officer & Competent Authority issued another Sub-Divisional Plan dated 23-12-2005 showing the sales effected in all the 24 sale deeds in the surplus extent in order to protect retainable extent of 11325.49 square meters by the declarants. In anticipation of issuance of second Sub-Divisional Plan, the Society filed W.P.No.27063 of 2005 for a direction to the Special Officer not to change the Sub-Divisional Plan already prepared on 03-03-2005. Questioning the changed Sub-Divisional Plan the Society filed W.P.No.662 of 2006, in which the Society obtained interim order dated 11- 01-2006 reads thus: “Interim directions as prayed for, until further orders. Notice.” When the vacate petition is filed to vacate the interim order passed in W.P.M.P.No.794 of 2006, this Court felt that Society has suppressed the material facts in filing two W.P.Nos.27063 of 2005 and 662 of 2006 with regard to same Sub-Divisional Plan and abused the process, suo motu contempt proceedings has been initiated in C.C.No.352 of 2006. . When the above writ petitions are pending, the Society filed W.P.No.8464 of 2006 for allotment of land claiming possession in terms of G.O.Ms.No.456. Sri Vedula Venkataramana, learned senior counsel appearing for the Society contends that once the order passed by the High Court in W.P.No.15121 of 1984 filed by the 1st wife branch has become final, where the 1st respondent—Government was directed to allot an extent of 3282.15 square meters to the Society under Section 23 of the ULC Act, the Society is entitled for allotment of the said land and the amount deposited by the Society was directed to be paid to the sons of 1st wife branch. He further contends that possession of the land was taken on 12-10-1984, which is evident from the orders in W.P.No.No.14627 of 1984. The ULC Act is repealed by Act 15/1999, which has to be adopted by the States. Section 3 of the Repeal Act saves certain acts. Section 4 deals with abatement of proceedings on such repealing. As the possession has already been taken, proceedings cannot be abated. In the appellate order dated 15-02-1983 it is stated that the ULC is applicable on conversion of the land into residential zone in the year 1983 and accordingly declaration has been finalized taking the date on which the Act comes into force to declare the computation of surplus land followed by Section 10(1) and 10(3) notification dated 22-01- 2005 and 07-03-2005. Against the orders passed under Section 8(4) of the ULC Act dated 15-02-2005 appeals were preferred and in view of the status quo 10(5) and 10(6) proceedings could not be taken up. In view of repeal, proceedings abated from such date in between the date of remand in W.P.No.14627 of 1984 dated 08-04- till 15-02-2005. Various sale deeds were executed by the declarants and regularized by the Government in favour of 22 purchasers. Since the declarant was not holding land on 15-02-1983 on conversion of recreation zone into residential zone, and the Government holds the same and by that time the Society has already consumed the land; therefore, Government has to make formal allotment to convert he title under Section 23 of the ULC Act as per the directions issued in W.P.No.15121 of 1984. On issuing the proceedings under Section 8(4) on 15-03-2005, the same does not amount to putting the declarant into possession for issuing proceedings under Section 10(1) and 10(3) of the ULC Act. In the absence of any declaration made under Section 10(5) declarants cannot claim possession, as they are not in occupation, namely, domain over the land to regularize the excess land on proceedings abated. W.P.No.27063 of 2005 is filed by the Society not to change the Sub-Divisional Plan of the property; on changing of the same, W.P.No.662 of 2006 is filed. Both are for distinct reliefs. Therefore, the Society cannot be proceeded under the Contempt of Courts Act on the ground that it has suppressed the fact of filing W.P.No.27063 of 2005. Since the land is in possession of the Society, they are entitled to benefits under G.O.Ms.No.456. Per contra, Sri B.Vijaysen Reddy, learned counsel for the petitioners in W.P.Nos.586 of 2002, 19023, 19097 ad 21975 of 2005 contends that once final statement under Section 9 has been set aside and remanded the matter by this Court in W.P.No.14627 of 1984 where the Competent Authority itself passed the order on 15-02-2005 after considering the objections and issued final statement under Section 9 of the ULC Act, again the proceedings have to be issued de novo and the earlier possession taken becomes illegal and unless the following up proceedings are followed, namely, 10(1) 10(3) 10(5) and 10(6) of the ULC Act, Government cannot claim possession with the land. The Society claims for allotment is from the land sold by first wife branch Ac.2.04 gts. where retainable area is 1000 square meters each by the wife and four children of late Devadas thus they are entitled to 5000 square meters and the remaining 3282.15 square meters was allotted to the Society. When they are in possession of area more than what they entitled to, Society cannot made any claim from the land which fell to the share of second wife branch. It is not for the Special Officer and Competent Authority to demarcate the land between the two branches and allot the same to the Society as claimed. In the light of the above submissions, the following points emerge for consideration: 1. What is the effect of the final statement dated 15-02-2005 issued under Section 9 of the ULC Act pursuant to the remand order in W.P.No.14627 of 1984 on repealing the ULC Act in the absence of notification issued under Section 10(5) 10(6) of the ULC Act. 2. Whether the order passed by this Court in W.P.No.9618 of 2001, directing the Government and the Special Officer & Competent Authority to allow the land to an extent of 3282.15 square meters to the Society as per the plan enclosed to the letter of the Special Officer dated 24-05-2001 can be upheld or not? 3. Whether it is open for the Competent Authority to effect division of property retainable among the declarants under the ULC Act, if so whether the Society can insist the allotment of specified property in its favour? 4. Whether the petitioner-Society is liable to be proceeded for contempt of court in C.C.No.253 of 2006? Point No.1: On issuing the final statement under Section 9 after considering the objections made under Section 8(4) of the ULC Act the Competent Authority only determines vacant land held by the declarant in excess of the ceiling limit and cause a copy of the draft statement as so altered to be served in the manner referred in sub-section (3) of Section 8 on the person concerned and where such vacant land is held under a lease, or a mortgage, or a hire-purchase agreement, or an irrevocable power of attorney, also on the owner of such vacant land. By issuing draft statement under Section 9, by no stretch of imagination it can be held that the property vests with the Government enabling it to take possession of the same. Section 10 deals with acquisition of vacant land in excess of ceiling limit, which reads thus: 10 Acquisition of vacant land in excess of ceiling limit:-- (1) As soon as may be after the service of the statement under section 9 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and staling that- (i) such vacant land is to be acquired by the concerned State Government : and (ii) the claims of all persons interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land, to be published for the information of the general public in the Official Gazette of the State concerned and in such other manner as maybe prescribed. (2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under sub-section (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit. (3) At any time after the publication of the notification under sub-section (1) the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant land referred to in the notification published under sub-section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified. (4) During the period commencing on the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made under sub-section (3): (i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and (ii) no person shall alter or cause to be altered the use of such excess vacant land. (5) Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, 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 in this behalf within thirty days of the service of the notice. (6) If any person refuses or fails to comply with an order made under sub- section (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. Explanation- In this section, in sub-section (1) of section 11 and in section 14 and section 23, "State Government", in relation to- (a) any vacant land owned by the Central Government, means the Central Government; (b) any vacant land owned by any State Government and situated in a Union territory or within the local limits of a cantonment declared as such under S.3 of the Cantonments Act, 1924, means that State Government. Sub-section (1) of Section 10 contemplates causing a notification by giving the particulars of the vacant land held by the declarant in excess of the ceiling limit and to be acquired by the concerned State Government and inviting the claims over the property to be acquired on filing any claims. Sub-section (2) contemplates consideration of the claims of the persons interested in the vacant land, pursuant to notification under sub-section (1) of Section 10 and determination of nature of extent of such claim and pass appropriate orders. Whereas sub-section (3) contemplates after publication of the notification under sub-section (1) the competent authority may, by notification published in the Official Gazette declare that the excess vacant land referred to in the notification published under sub- section (1) shall, with effect from such date as may be specified in the declaration may deemed to have been acquired by the State Government and on issuance of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with the date so specified. Sub-Section (4) prohibits creation of third party rights during the period commencing on the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made under sub-section (3). Sub-section (5) of Section 10 contemplates issuance of notice in writing to the person who is in possession of the said land to surrender or deliver possession thereof to the State Government or to any person duly authorized by the State Government in that behalf within 30 days from the service of notice. If any person fails to deliver the possession, the competent authority may take possession of the property in the manner prescribed under sub-section (6) of Section 10. Section 11 of the ULC Act provides payment of amount for the vacant land deemed to have been acquired by the State Government under sub-section (3) of Section 10 in the manner prescribed subject to a maximum of Rs.2 lakhs as determined to the persons interested after giving opportunity to them. The Urban Land (Ceiling & Regulation) Repeal Act, 1999 (Act 15/1999) applies to the State of Andhra Pradesh from the date it adopts by resolution passed in that behalf under clause (2) of Article 252 of the Constitution. There is no dispute the same has been repealed in the State of Andhra Pradesh with effect from 27-03-2008 throughG.O.Ms.No.603, Revenue (U.C.I) dated 22-04-2008 contemplated under clause (2) of Article 252. On such repeal all proceedings made under ULC Act pending immediately before the commencement of the Act 15/1999, before any court, tribunal or other authority gets abated as per Section 4 of the Act 15/1999. However, the provisions of Section 4