HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION NOS.27703, 28113 AND 28114 OF 2010 Dated 29th March, 2011. Writ Petition: 27703 of 2010: Between The Government of Andhra Pradesh, Rep. By its Principal Secretary (UC.II) Department, Secretariat, Hyderabad and anr. ….Petitioners and The Director of Appeals, O/o. the Chief Commissioner of Land Administration, A.P., Hyderabad and ors. ….Respondents Writ Petition nO. 28113 of 2010: Between Smt. M.krishnaveni ….Petitioner And The Special Officer & Competent Authority UrbanLand Ceiling, Nampally,Hyderabad and ors ….Respondents Writ Petition nO. 28114 of 2010: Between Smt. P. Rukmini ….Petitioner And The Special Officer & Competent Authority UrbanLand Ceiling, Nampally,Hyderabad and ors ….Respondents ORAL ORDER: Since common questions of fact and law are involved in these writ petitions, they are amenable to a common disposal. They are therefore being disposed of by this common order. Writ Petition No.27703 of 2010 is filed by the Special Officer and Competent Authority, Urban Land Ceilings, Hyderabad (hereinafter referred to as ‘the Competent Authority’), assailing the order dated 31.01.2008 passed by the Director of Appeals, Office of the Chief Commissioner of Land Administration, Andhra Pradesh, Hyderabad, (hereinafter referred to as ‘the Appellate Authority’) in ULC Appeal Nos.Hyd/20/07 and Hyd/21/07. Writ Petition Nos.28113 and 28114 of 2010 are filed by one M.Krishnaveni and P.Rukmini, who are the declarants in C.C.Nos.9279 and 9277 of 1976 seeking a declaration that all the proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as ‘the Act of 1976’) relating to the lands in Sy.Nos.209 and 208 of Kondapur Village, Serilingampally Mandal, Ranga Reddy District, are abated by virtue of the adoption of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as ‘the Repeal Act’) by the State of Andhra Pradesh which came into force on 27.03.2008 and a consequential direction to the respondent authorities to allot and deliver the vacant physical possession of the remaining subject lands to them. Shorn of unnecessary details and litigative history, the undisputed facts which are relevant for the purpose of disposal of these writ petitions, as borne out by the record, are as follows: One Late T.Ch.Sitaramaiah was the owner and possessor of the lands in an extent Ac.119-09 guntas in Sy.Nos.68/1, 2, 214/1, 2, 3, and 208 to 213 of Kondapur Village, Serilingampally Mandal, Ranga Reddy District, the same having been acquired by him under two registered sale deeds of the year 1961. By way of an oral family settlement dated 13.11.1970, the said T.Ch.Sitaramaiah allotted and delivered the aforestated lands amongst his children in the manner as reflected therein which is mainly to the following effect: a) Late T.Ch.Sitaramaiah and his wife Rama Tulasamma retained Ac.12-11 guntas in Sy.Nos.68/1, 2, 214/2, 3 to be handed over to K.Pramila Rani and her husband when they settle down in Hyderabad; b) T.Sai Kumar (minor son) was given an extent of Ac.21-31 guntas in Sy.Nos.213 and 214/1; c) T.Sri Ram Mohan was given an extent of Ac.23-09 guntas in Sy.Nos.210 and 211; d) P.Rukmini (the Petitioner in W.P.No.28114 of 2010) was given an extent of Ac.15-36 guntas in Sy.No.208; e) T.Satish Chander was given an extent of Ac.25-37 guntas in Sy.Nos.212 and 213; f) M.Krishnaveni (the Petitioner in W.P.No.28113 of 2010) was given an extent of Ac.20-05 guntas in Sy. No.209; The petitioners in W.P.Nos.28113 and 28114 of 2010 were both married in the year 1974 and their father, T.Ch.Sitaramaiah, at the time of their marriages gave the aforestated allotments of land made in their favour as “Pasupu Kumkuma” (marriage gift). While so, with the advent of Act of 1976, the wife and children of T.Ch.Sitaramaiah, namely, T.Rama Tulasamma, T.Sai Kumar, T.Sri Ram Mohan, T.Satish Chander and the petitioners in W.P.Nos.28113 and 28114 of 2010 filed their statements/declarations independently on 15.09.1976 as required under Section 6(1) of the Act of 1976 before the Competent Authority disclosing the factum of the aforestated family settlement dated 13.11.1970 and the clauses (a) to (f) mentioned therein were taken on file by the Competent Authority and numbered as C.C.Nos.9274 to 9279 of 1976. The Competent Authority by his proceedings dated 23.07.1979 issued under Section 8(1) of the Act of 1976 in CC Nos.9274 of 1976, 9276 of 1976 and 9278 of 1976 pertaining to the wife and children of T.Ch.Sitaramaiah, namely, Rama Tulasamma T.Sri Ram Mohan, and T.Satish Chander, by clubbing the statement/declaration of his minor son T.Sai Kumar which was numbered as C.C.No.9275 of 1976 with that of his mother in C.C.No.9274 of 1976 holding that all the three married daughters including the petitioners in W.P.Nos.28113 and 28114 of 2010 have no right whatsoever to claim any extent of the lands allotted to them in the said family settlement dated 13.11.1970 and given to them as “Pasupu Kumkuma” on the eve of their marriage and therefore the Competent Authority did not issue any notice of the proceedings in C.C.Nos.9279 and 9277 of 1976 to the petitioners in W.P.Nos.28113 and 28114 of 2010. Albeit the Competent Authority admittedly did not give any notice to the petitioners in W.P.Nos.28113 and 28114 of 2010 under Sections 8, 9, and 10 of the Act of 1976, he clubbed the separate holdings of the daughters with the holdings of their father and brothers. Thereafter, final statement under Section 9 and notifications under sub-sections (1), (3) and (5) of Section 10 of the Act of 1976 in C.C.Nos.9274, 9275, 9276 and 9278 of 1976 were issued in the year 1979 in respect of the excess holding of T.Ch.Sitaramaiah and his sons; and the surplus holding of the land in an extent of 4,80,184.14 square meters in Kondapur Village, Serilingampally Mandal, Ranga Reddy District, was taken possession of by the Competent Authority on 18.07.1980 and thereafter the State had allotted the same to the Social Welfare Department vide G.O.Ms.No.3072 dated 14.07.1980 and the said surplus vacant land was handed over to 8th Battalion, APSP. While so, when the officials of 8th Battalion, APSP, Kondapur, in the year 1998 started moving in and around Sy.Nos.209 and 208 belonging to the petitioners in W.P.Nos.28113 and 28114 of 2010, on the enquiries made by them, it was revealed that the Competent Authority had passed the aforestated orders behind their back under Sections 8, 9, and 10 of the Act of 1976 without issuing any notice to them. They were therefore constrained to file Writ Petition Nos.28157 and 28158 of 1998 before this Court seeking to quash all the aforestated proceedings, orders, notifications and notices issued under Sections 8, 9, and 10 of the Act of 1976 including the allotment of surplus land to 8th Battalion of APSP of Kondapur Village, Serilingampally Mandal, Ranga Reddy District, inter alia, on the ground that the Competent Authority committed serious illegality and violated the principles of natural justice for not issuing any prior notice to the declarants; and that the Competent Authority was of the erroneous view that the married daughters have no right whatsoever over the property of the family allotted and given to them; and that clubbing of the above six holdings in the manner indicated above was done without any jurisdiction; and that they sought a consequential declaration that each of them be entitled to retain Ac.8.33 guntas by virtue of the exemption orders issued by the State Government vide G.O.Ms.No.733 dated 31.10.1988 and G.O.Ms.No.289 dated 01.06.1989. Similarly, the said three sons and the third daughter of T.Ch.Sitaramaiah, namely K.Pramila Rani, filed W.P.Nos.28874, 28390, 28491 and 28292 of 1998 for the self-same relief. A learned Single Judge of this Court, by a common order dated 15.02.1999, allowed all the above writ petitions and quashed the aforestated proceedings, orders, notifications and notices issued under Sections 8, 9, and 10 of the Act of 1976 inter alia holding that M.Krishnaveni and P.Rukmini, who are the petitioners in W.P.Nos.28113 and 28114 of 2010, are the owners of the holdings in Sy.Nos.209 and 208 allotted and given to them by their father as “Pasupu Kumkuma” on the eve of their marriage as was obviously reflected in the aforestated family settlement dated 13.11.1970 and consequently directed the Competent Authority to re-compute the holdings of all the writ petitioners and allot each Ac.8.33 guntas as exempted area apart from 1000 square meters each as retainable land by virtue of exemption orders contained in G.O.Ms.No.733 dated 31.10.1988 read with G.O.Ms.No.289 dated 01.06.1989. Aggrieved by the said common order, the State preferred Writ Appeal Nos.438 to 443 of 1999. By a common Judgment dated 18.11.1999, a Division Bench of this Court dismissed the said writ appeals upholding the aforementioned common order dated on 15.02.1999 passed by the learned single Judge including the directions given thereunder. Challenging the same, the State preferred Civil Appeal Nos.5309 to 5314 of 2000 before the Supreme Court. Civil Appeal Nos.5309 and 5311 of 2000 were directed against Writ Appeal Nos.438 and 440 of 1999 arising out of Writ Petition Nos.28157 and 28158 of 1998 filed by M.Krishnaveni and P.Rukmini. The Supreme Court, by its common Judgment dated 11.8.2006 in GOVT. OF A.P. v. M.KRISHNAVENI[1], held that by virtue of the family settlement dated 13.11.1970, M.Krishnaveni and P.Rukmini, the petitioners in the present Writ Petition Nos.28113 and 28114 of 2010, became absolute owners and possessors of their respective shares by operation of the provisions contained under Section 14(1) of the Hindu Succession Act, 1956 and that there was no infirmity in the dismissal of Writ Appeal Nos.438 and 440 of 1999 preferred by the State and further confirmed the order of the learned Single Judge passed in W.P.Nos.28157 and 28158 of 1998 and consequently, the Supreme Court dismissed Civil Appeal Nos.5309 and 5311 of 2000 preferred by the State against M.Krishnaveni and P.Rukmini. However, the Supreme Court allowed Civil Appeal Nos.5310, 5312, 5313, and 5314 of 2000 filed by the State against T.Satish Chander, T.Sri Ram Mohan, T.Sai Kumar and Smt. K.Pramila Rani, who are the sons and the other daughter of T.Ch.Sitaramaih, and as a result thereof the writ petitions filed by them before this Court stand dismissed other than the writ petitions earlier filed by M.Krishnaveni and P.Rukmini, who are the petitioners in W.P.Nos.28113 and 28114 of 2010. Needless to mention, the property allotted to T.Satish Chander, T.Sri Ram Mohan, T.Sai Kumar and Smt. K.Pramila Rani, who are the sons and the other daughter of T.Ch.Sitaramaih by way of the family settlement dated 13.11.1970 is not the subject matter of these writ petitions and therefore this Court need not go into the same. The petitioners in W.P.Nos.28113 and 28114 of 2010, being the second and third respondents in W.P. No.27703 of 2010, had filed their counter affidavit therein whereas the State filed its counter affidavits In W.P. No. 28113 of 2010 and 28114 of 2010. Heard Sri K.Rajendra Chowdhary, learned senior counsel representing Sri K.Durga Prasad, learned counsel for the petitioners in W.P.Nos.28113 and 28114 of 2010 and the second and third respondents in W.P.No.27703 of 2010; the learned Special Government Pleader on behalf of the learned Advocate General for the petitioners in W.P.No.27703 of 2010 and the respondents in W.P.Nos.28113 and 28814 of 2010 and the learned Special Government Pleader for Home for 8th Battalion, A.P.S.P., Kondapur, the third respondent in W.P.Nos.28113 and 28114 of 2010 and the fourth respondent in W.P.No.27703 of 2010. Relevant to note, in its Judgment the Supreme Court inter alia held thus: “Section 14(1) of the Hindu Succession Act, 1956 provides that any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Smt.P.Rukmini and Smt.M.Krishnaveni, both daughters of Late T.Chinna Seetharamaiah, had acquired an absolute right in the lands given to them by tier father in the family arrangement on 13.11.1970. They have made categorical statement in the declarations filed by them in the year 1976 immediately after the enforcement of the Act that they were the owners in possession of the lands to the extent of their respective shares. It is not in dispute that the competent authority has not considered the claim of the two declarants as no inquiry was conducted by the authority nor any notice was issued to them inviting their objections before the final order concerning the vestment of land in excess of ceiling limit was recorded. Both these declarants had filed their declarations in the year 1976 immediately after enforcement of the Act and it was mandatory obligation and duty in law of the competent authority to have held inquiry in the matter and considered their objections, if any. As the Competent authority has failed to exercise its jurisdiction vested in it by law, in our view, therefore, the learned Judges of the High Court have rightly quashed the proceedings taken against the declarants Smt.P.Rukmini and Smt.M.Krishnaveni ordering the vestment of their respective shares of lands in the State government. Hence, the judgment and order of the Division Bench dismissing the writ appeals of the appellants and upholding the order of the learned Single Judge in M. Krishnaveni v. Govt. of A.P. and P.Rukmini v. Government. of A.P. in no circumstances could be said to be infirm or faulty. Consequently, CA Nos.5309 and 5311 of 2000 filed by the appellants against Smt. M. Krishnaveni and Smt. P. Rukmini respectively shall stand dismissed. The Appellants are directed to hold an independent inquiry in terms of the provisions of the Act and the Rules framed there under into the claims of the declarants Smt.M.Krishnaveni and Smt.P.Rukmini. The inquiry shall be completed within two months from the date of receipt of the order. ” Subsequent to the above Judgment dated 11.08.2006 of the Supreme Court, the admitted uncontroverted facts unless otherwise specified are as follows: The Competent Authority, instead of restoring possession of the land in Sy.Nos.209 and 208 to the petitioners in W.P.Nos.28113 and 28114 of 2010, had by its notice dated 30.8.2006, fixed 07.09.2006 for hearing of the case in respect of C.C.Nos.9279 and 9277 of 1976. The petitioners in W.P.Nos.28113 and 28114 of 2010 were represented by their counsel D.Damodar Reddy and the cases were finally heard on 12.09.2006 and the Competent Authority passed revised orders under Sections 8(4) and 9 of the Act of 1976 on 30.12.2006 in respect of C.C.Nos.9279 of 1976 and 9277 of 1976 pertaining to the petitioners in W.P.Nos.28113 and 28114 of 2010 and held that each of them are only entitled to Ac.5.00 guntas as exempted area under G.O.Ms.No.733 dated 31.10.1988 in addition to 1000 square meters as retainable area under Section 4(1)(b) of the Act of 1976 and the Competent Authority further held that the G.O.Ms.No.289 dated 01.06.1989 cannot be extended to them as observed in G.O.Ms.No.417 dated 02.04.2005. Aggrieved by the said orders dated 30.12.2006 passed by the Competent Authority under Sections 8(4) and 9 of the Act of 1976, the petitioners in W.P.Nos.28113 and 28114 of 2010, preferred appeals in ULC Appeal Nos.Hyd/20 and 21 of 2007 under Section 33 of the Act of 1976 before the Appellate Authority. The Appellate Authority, by its order dated 20.02.2007, admitted both the appeals and granted stay pending disposal of the appeals and directed the Competent Authority to send the remarks on the appeal petitions along with connected records immediately. A copy of the stay order passed in both the appeals was marked to the appellants therein, who are the petitioners in W.P.Nos.28113 and 28114 of 2010 through their counsel, namely, D.Damodar Reddy; the Competent Authority; and the Special Government Pleader representing the Competent Authority. The said Damodar Reddy, learned counsel, vide his letter dated 01.03.2007 annexing therewith a copy of the stay order dated 20.02.2007, brought to the notice of the Competent Authority, the orders of stay issued by the Appellate Authority. He further stated that said letter finds mention in the inward register of the Office of the Competent Authority vide inward No.H/546/10 dated 02.03.2007. The learned senior counsel appearing for the petitioners in W.P.Nos.28113 and 28114 of 2010 submitted the copy of the said letter dated 01.03.2007 written by Damodar Reddy, which bore the inward seal of the Competent Authority, for perusal of this Court. Pertinent to note at this stage, it is the case of the State and the Competent Authority, who are the petitioners in W.P.No.27703 of 2010 that the aforestated stay orders dated 20.02.2007 were not served on them and that the Competent Authority was not aware of the grant of any such stay order and that the petitioners in W.P.Nos.28113 and 28114 of 2010 have also not brought the said order to the notice of the Competent Authority and that no copy of the same was communicated by the Appellate Authority to the Competent Authority. Pending the appeals before the Appellate Authority, the Competent Authority issued notice under Section 10(1) on 08.03.2007 and published the same in the Gazette dated 09.03.2007; and issued notice under Section 10(3) on 10.07.2007 and published the same in the Gazette on 12.07.2007, and issued notice under Section 10(5) of the Act of 1976 on 13.11.2007. However, the petitioners in W.P.Nos.28113 and 28114 of 2010 have denied service of any of these proceedings to them. On other hand, they have categorically stated that the possession under Section 10(6) of the Act of 1976 was never taken over by the Competent Authority in respect of C.C.Nos.9279 and 9276 of 1976 and more particularly after the Judgment dated 11.08.2006 delivered by the Supreme Court. Nevertheless, the Competent Authority has stated in its affidavit that notice under Section 10(5) of the Act of 1976 was issued on 13.11.2007 directing them to surrender/deliver vacant possession of the said lands to the Enquiry Officer/Deputy Tahsildar within a stipulated period of 30 days from the date of service of notice and thereafter the lands, which were found in excess, were taken possession of. In this regard, it is to be noticed that the panchanama indicating the taking over of the so-called possession was not placed before this Court to substantiate the said claim of the Competent Authority and the said panchanama has, in fact, been repeatedly insisted to be placed before this Court for perusal by the learned senior counsel for the petitioners. The Appellate Authority heard both the learned counsel appearing in ULC Appeal Nos. Hyd/20/07 and Hyd/21/07 on 15.11.2000 and passed the final common order in both the appeals on 31.01.2008. In so far as the facts of the case put forth before the Appellate Authority is concened, the said appellate order inter alia reads as under: “2. The brief facts of the case as submitted by appellant in both the cases are : a) . . . . . . . b) . . . . . . . c) . . . . . . . d) . . . . . . . e) . . . . . . . f) . . . . . . . That in spite of the stay granted by this appellate authority on 20.2.2007 in these appeals and brought to the notice of the 1st Respondent on 1st March, 2007, orders under Section 10 (3) on 18.7.2007 and notice under Section 10 (5) on 13.11.2007 were issued by the Respondent No.1. 3. The appeals were taken on file and after hearing the counsel for the appellants, the appeals were admitted and stay granted till disposal of the appeals vide CCLA’s Hyd/20/2007 and Hyd/21/2007 dated 20.2.2007 and called for the connected record from the Special Officer. 4. The case was finally heard on 15.11.2007 in the presence of counsel for the appellants and Special Government Pleader. Counsel for the appellants reiterated the points mentioned in his grounds of appeal and further argued that the Special Officer erroneously not extended the benefit of G.O.Ms.289 by taking into consideration of G.O.Ms.No.417 which is irrelevant to their case. He also argued that as per the Division Bench judgment which was confirmed by the Supreme Court, the appellants are entitled to an extent of Ac.8.33 guntas of vacant land. Special Government Pleader argued that there is no infirmity in the orders of the Special Officer and the Special officer rightly computed the holdings and as there is no approved layout to these survey numbers the appellants are entitled to only Ac.5.00. She requested to dismiss the appeals. 5. Heard the arguments. Perused the grounds of appeal and other material papers filed and the lower court record. Having regard to the various grounds raised in these appeals, the arguments put forward by the Counsel for the appellants and Special Government Pleader, the following two issues have come up for consideration and decision in this case: (i) the extent of exemption to be permitted and therefore, the extent to which they are entitled to retain under the exemption; (ii) the exact land to be retained by the declarants.” [Emphasis is mine] In so far as the first issue is concerned, it was held inter alia to the following effect: (i) That even assuming that G.O.Ms.No.417 is in operation as a generic order, it does not override the original order in G.O. Ms.No.289. (ii) G.O.Ms.No.289 read with G.O.Ms.No.733 clearly shows that the exemption granted is to the extent of Ac.5.00 guntas after deducting 40% of the area to be set apart as per lay out rules. (iii) The question of approval of the layout, on the facts of this case, does not arise because no person can get the lay out approved when he is not entitled to hold the land which is dependent on the determination as provided under the Act. The declarants in this case were not in a position to prepare and get the lay out approved, due to prolonged litigation and the provisions of G.O.Ms.No.417 cannot be made applicable. (iv) The categorical findings in the order of the learned single Judge in W.P.Nos.28157 and 28158 of 1998 and the Judgment of the Division Bench in W.A.Nos.438 and 440 of 1999 are that the petitioner and her sister P.Rukmini are entitled to Ac.8.33 guntas each from their holdings vide G.O.Ms.Nos.733 and 289. The order of the learned single Judge and the Judgment of a Division Bench were upheld by the Supreme Court in its Judgment dated 11.08.2006 in C.A.Nos.5309 and 5311 of 2000 resulting in merger of the findings of the learned single Judge as affirmed by the Judgment of the Division Bench into the judgment of the Supreme Court in C.A.Nos.5309 and 5311 of 2000 and as such, the entitlement of exemption of Ac.8.33 guntas each cannot be questioned and the said G.O.Ms.No.417 cannot be made applicable to this case. (iv) The declarants are, therefore, entitled to Ac.8.33 guntas since in any case, they will be statutorily compelled to leave 40% area as open as per lay out rules. As regards the second issue, the appellate authority inter alia held to the following effect: (i) The total land to an extent of Ac.36.01 guntas in Sy.Nos.208 and 209, as on today, vested with the declarants. (ii) The authorities cannot force the declarants to retain the road portion in their exempted land totally as the same would be contrary to the provisions of the Act of 1976, particularly having regard to definition of ‘vacant land” in Section 2(q) and the right of choice in Section 6 of the Act of 1976. (iii) The declarants have a right of choice of the land which is vacant as defined under Section 2(q) which can be treated as retainable area under Section 4(1)(b) of the Act of 1976 or as exempted area. The survey authorities are directed to ascertain from the declarants as to which area out of the vacant area, they want to retain either as retainable area or as exempted area and on that basis demarcation should be done and accordingly possession be taken of the remaining area. On the basis of the above findings, the Appellate Authority ultimately held in its order dated 31.01.2008 thus: “9. The Respondents should not further delay the demarcation of the said