THE HON'BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION No.11288 OF 2002 ORDER: The father of the petitioner by name late K.Vittal Rao and two others purchased 2814 Sq.yds in survey No.25 and 8643 Sq.yds in survey No.27 of Begumpet Village, Balanagar Mandal and the father of the petitioner is entitled to 1/3rd share in the said lands. Out of 1/3rd share held by the father of the petitioner, he was in possession of more than 1000 Sq.mtrs of land. In urban areas, a person was not entitled to hold more than 1000 Sq.mtrs of land. Consequent to Urban Land (Ceiling and Regulation) Act, 1976 (for short ‘the Act, 1976’) coming into force, as the father of the petitioner was not entitled to hold more than 1000 Sq.mtrs of land, in terms of provisions contained in the Act, 1976, the draft statement under Section 8 (1) and notice under Section 8 (3) of the Act, 1976 were issued on 28.10.1981 determining that K.Vittal Rao, as declarant holds excess land within his 1/3rd share on total land and objections were called. Thereafter, there was no progress in the matter and in the meantime, on 11.05.1985, the petitioner’s father filed application requesting to differ proceedings under Act, 1976 on the ground that his application for exemption is pending consideration of the Government. 2. On 11.09.1985 while expressing no objection for determination of the surplus area, the father of the petitioner requested to consider his application under Section 20 (1) of the Act, 1976. However, on 20.09.1985, final statement was issued under Section 9 of the Act, 1976 followed by notification under Section 10 (1) of the Act, issued on 20.12.1985 and a declaration under Section 10 (3) of the Act has been issued on 15.03.1999. Notice for surrender of excess land under Section 10 (5) of the Act was issued on 17.08.1999. On 04.02.2002, notice under Section 11 was issued directing the petitioner regarding the compensation payable, which was received by the petitioner on 17.06.2002. The appeal filed against the notice issued under Section 10 (5) on 23.09.1999 was dismissed by order dated 30.03.2001. Consequently proceedings under Section 10 (6) were issued on 27.05.2001 directing the revenue authorities to take possession. On 18.07.2001, possession was taken, panchanama was drawn and sketch was prepared. 3. In the meantime, by proceedings dated 01.08.1991, declarant was directed to pay 25% of the market value to consider his application for granting exemption. Soon thereafter, the declarant i.e., the father of the petitioner died. Petitioner submitted representation dated 04.11.1991 informing about the death of his father and requested to furnish certain documents so that he can pursue the application for grant of exemption under Section 20 (1) of the Act, 1976. On 14.05.1993, joint application was submitted along with two other owners of the property to grant exemption in accordance with Section 2 (Q) (i) stating that the land is falling under recreation zone and not fit for formation of residential layout. 4. Challenging the order dated 30.03.2001 rejecting the appeal filed by the petitioner, the Gazetee notification dated 22.04.1999 under Section 10 (3) of the Urban Land (Ceiling and Regulation) Act, 1976 vesting the land in State Government and the proceedings of 3rd respondent under Section 10 (5) of the Act, this writ petition is filed. 5. Heard Sri Ramachandra Raju, learned counsel for the petitioner and the learned Government Pleader for Assignment (Telangana) for respondents 1 to 3. 6. Learned counsel for petitioner further submits that out of three owners, one other owner also filed declaration under Act, 1976 and third owner has not filed declaration. In so far as other owner who filed declaration, proceedings were not concluded. Thus, when all the property owners have not filed declaration and when there is no identification of individual extent of the land, taking of physical possession would not arise. 7. Learned counsel for the petitioner submits that after communication of the proceedings dated 01.08.1991, asking the father of the petitioner to pay 25% of the market value, the father of the petitioner died and thereafter all other proceedings under the Urban Land Ceiling Act stood abated. The legal heirs were not brought on record. In the Section 10 (3) declaration while recognizing the fact that the father of the petitioner died, name of petitioner is not reflected and no further notice was issued to the petitioner and his name was not recorded in the said declaration. Therefore, the said declaration becomes void and all consequential proceedings are also void. Learned counsel for petitioner further submits that it was a joint property of three owners, there was no bifurcation of the property with metes and bounds identifying the extent of the land for each of the three owners. When declaration was fixed by father of petitioner, he declared as 1/3rd owner of the said property. No effort was made for identification of the share of the father of the petitioner. The question of taking physical possession without identification of the property owned by the father of the petitioner would not arise. 8. Learned counsel further contended that physical possession was not taken and the petitioner is continuing in possession and he is now using the said premises as parking of vehicles by providing parking facility to the adjoining owners. In support of the same, photographs are enclosed. He, therefore, contends that before the repealing Act came into force, property did not vest in the State and, therefore, petitioner is entitled to deal with his property to entire extent. Several other contentions are also urged by the learned counsel for the petitioner. However, as the issue is considered here under is only with reference to effect of repealing Act, all other issues are not discussed. 9. Learned counsel further contends that at the stage of forcible physical possession under Section 10 (6) of the Act, the owner of the property or person in possession is entitled to notice and without notice and without his presence, physical possession cannot be taken. Admittedly, no notice was served under Section 10 (6) of the Act, 1976. Thus, there was no valid taking of physical possession. In support of the said contention, learned counsel placed reliance on the decision of Supreme Court in State of Uttar Pradesh vs. Hari Ram. 10. Learned Government Pleader contends that the father of the petitioner has filed the statement before the competent authority accepting the declaration given regarding the excess extent of urban land owned by him on such declaration given by owner, the issue becomes final and therefore, his successor cannot claim that the proceedings under the Act 1976 have not become final. The right vested in the petitioner extinguished by such declaration. 11. Learned Government pleader further contends that after the death of the original declarant, the petitioner has submitted a representation on 04.11.1991 informing the death of his father. Thus, the petitioner was aware of the proceedings before the competent authority under the Act, 1976. He has applied for grant of exemption under Section 20 (1) of the Act. He has also filed application on 20.12.1996 under Section 26 of the Act to grant permission to hold 1000 Sq.mtrs, but it was rejected on 14.02.1997. Thus petitioner was aware of pending land acquisition proceedings, the declaration given by his father and the notices issued from time to time. Therefore, the petitioner is estopped from raising objections at this stage. 12. Learned Government Pleader submits that as per the Act, 1975 there is no requirement to give notice under Section 10 (6) of the Act at this stage. Consequent to the declaration under Section 10 (3) of the Act, the property vested in the Government and it is mandatory for the owner of the property to hand over the possession of the land decalred as surplus. In the event, the original declarant does not hand over the excess land, a notice under Section 10 (5) to surrender the land within 30 days. Even after granting time of 30 days, if the original declarant does not surrender the excess land, it is open to the competent authority to take compulsory possession of the land and at that stage there is no requirement to issue further notice. Section 10 (6) of the Act does not mandate issue of such notice and merely because notice was not issued the proceedings do not vitiate. Learned Government Pleader further submitted that once the possession was taken in the year 2001, even if the petitioner claims possession, it becomes unauthroised occupation and no rights can be claimed in view of such occupation. 13. In the background of above analysis of facts and the contentions urged the issue for consideration is in narrow compass. It is not in dispute that no notice was issued under Section 10 (6) for compulsory possession. It is not in dispute that the property in survey Nos.25 and 27 is owned jointly by three individuals with equal share. There was no demarcation of individual extent of land with metes and bounds and it remains as joint property of the three individuals. The repealing Act came into force in the State with effect from 27.03.2008. 14. Therefore, the issue for consideration is whether property vested in the State before 28.03.2009? 15. When the declaration was filed, the father of the petitioner declared that he is owner of 1/3rd of the subject property. Till finalization of the proceedings under Section 10 (6) of the Act, no direction was issued to mandate the petitioner to identify the extent of land belonging to him. There was no division of property. Thus, until Repeal Act came into force, there was no independent identification of land belonging to the petitioner in the subject survey numbers. Without identification of the extent of land claimed by petitioner, the question of taking physical possession does not arise. If physical possession was not taken on 08.07.2001 by following due procedure as required under the Act, the question of vesting the property in the Sate before coming into force of Repeal Act does not arise. On the scope of prior opportunity before taking compulsory possession of excess urban land, even though provision in Section 10(6) of the Act, 1976 does not indicate, the Supreme Court in Hari Ram (supra) held that requirement of giving notice under sub-sections 5 and 6 of Section 10 is mandatory. Supreme Court held, "The requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory. Though the word "may" has been used therein, the word "may" in both the sub-sections has to be understood as "shall" because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under sub-section (5) or sub- section (6) of Section 11 is that it might result in the landholder being dispossessed without notice, therefore, the word "may" has to be read as "shall". (para 35) 16. As notice was not issued under Section 10 (6) of the Act. In view of the authoritative pronouncement of the Supreme Court on the subject, it cannot be said that the property vested in the State by the time Repealing Act came into force. 17. Though at the first blush the contention of learned Government Pleader that once statement was made by the declarant accepting the determination of surplus land as formidable, but on a closer look at the overall scheme of the Act,1976 it is clear that the Act, 1976 does not provide for summary conclusion of proceedings on such acceptance. Therefore, notwithstanding person accepting the declaration given by the competent authority, the full gamit of provisions of Act, 1976 have to be complied with before property finally vesting in the state. Such a stand was valid if Act, 1976 continues to be in force. Further even assuming, for argument sake that the contention of the learned Government Pleader is valid, until physical possession is taken by the State by due process, the property does not vest in the State and if physical possession is not vested in the State by the time Repealing Act came into force all the proceedings under Act, 1976 stand abated. Therefore, the declaration has no legal sanctity unless it is followed by further steps leading to taking physical possession. 18. On the above analysis, I am of the considered opinion that subject property did not vest in the State before repealing Act came into force. In view of the same, the proceedings under the Urban Land (Ceiling and Regulation) Act, 1976, deemed to have abated, as consequence to coming into force of the Repealing Act, 1999 and the subject property in this writ petition vests in the petitioner. 19. Accordingly, writ petition is allowed. 20. Consequently, miscellaneous petitions, if any, pending in this Writ Petition shall stand disposed of. _______________ P.NAVEEN RAO,J Date:21-04-2015 knl THE HON'BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION No.11288 OF 2002 Date:21.04.2015 knl