IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY THIRD DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE N.V. RAMANA WRIT PETITION NO : 15880 of 2008 Between: 1 S. Suresh Reddy A/o. Late S.Laxma Reddy R/o. 2-1-67, Upparaalli Village, Rajendranagar Madal, Ranga Reddy District. 2 S. Suman Reddy A/o. Late S.Laxma Reddy R/o. 2-1-67, Upparaalli Village, Rajendranagar Madal, Ranga Reddy District. 3 S. Syama Sunder Reddy A/o. Late S.Laxma Reddy R/o. 2-1-67, Upparaalli Village, Rajendranagar Madal, Ranga Reddy District. .... PETITIONERS AND 1 The Government of Andra Pradesh Rep. by its Principal Secretary, Revenue Department, Secretariat Buildings, Hyderabad. 2 The Commissioner, Appeals, Office of the Chief Commissioner of Land Administration, Nampally, Hyderabad. 3 The Special Officer and Competent Authority, Urban Land Ceiling, Hyderabad. 4 The District Collector, Ranga Reddy District,at Hyderabad. 5 The Tahsildar, Rajendranagar Mandal, Ranga Reddy district. ....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the order of the 3rd respondent in proceedings No.D1/12422 to 12426/76, dated 30.7.1993 as conﬁrmed by the 2nd respondent in his order in Hyd/18/06, dated 1.5.2008 as illegal and viod and consequently set-aside the same and pass Counsel for the Petitioners : MR.SRINIVAS DAMMALAPATI Counsel for the Respondents.: GP FOR REVENUE The Court made the following : THE HONOURABLE SRI JUSTICE N.V.RAMANA WRIT PETITION NO.15880 OF 2008 ORDER: This writ petition is ﬁled questioning the order of the 3rd respondent – Special Oﬃcer and Competent Authority, Urban Land Ceiling, Hyderabad in proceedings No.D1/12422 to 12426/76 dated 30.7.1993 which were conﬁrmed by the 2nd respondent – Chief Commissioner of Land Administration in Hyd/18/06 dated 1.5.2008 and consequently to set aside the same. The petitioners herein are the legal heirs of one S.Laxma Reddy who ﬁled a declaration under Section 6 of the Urban Land (Ceiling and Regulation) Act, 1976 (for short ‘the Act’) claiming 1/6th share in Sy.Nos.37, 38, 39, 40, 41, 44 to 47 of Upparapalli Village, Rajendranagar Mandal, Ranga Reddy District, which was numbered as CC No.D2/12422/76. Pursuant thereto, a draft statement under Section 8(1) of the Act was prepared by the competent authority in the year 1989. While the matters are pending, the declarant i.e., the father of the petitioners herein died on 19.1.1993. It is the case of the petitioners that they are not aware of pendency of any proceedings under the Act and suddenly on 5.11.2005, a notice issued under Section 10(5) of the Act in the name of their late father was received by the 1st petitioner, directing him to surrender the land. After coming to know of the proceedings, it is stated that the petitioners made enquiries and came to know that the 3rd respondent has passed an order under Section 8(4) of the Act determining an extent of 62,169 square meters to be the surplus land. Then only it also came to light that notices dated 27.5.1993, 4.6.1993 and 25.6.1993 were issued directing the declarant to attend for hearing on those dates. Immediately thereafter, they ﬁled an appeal before the 2nd respondent under Section 33 of the Act against the orders passed under Section 10 (5) of the Act on 5.11.2005 but the same was closed as abated vide memo dated 1.5.2008 stating that the Government vide circular memo No.17377/UC (1) 2008-1 dated 24.4.2008 issued instructions that ‘Under Repeal Act 1999, Section 33 of Principal Act is not protected along with other sections like Section 10(3) with land possession, Section 20(1) etc.,’ which means that the Commissioner of Appeals has no jurisdiction to pass any order on pending appeals including 10(6) stages. Therefore, the present writ petition is ﬁled contending that the 3rd respondent has issued notices to a dead person and concluded the proceedings against a dead person and, therefore, the orders passed by the 3rd respondent under Sections 8,9 and 10 of the Act are null and void and are non est in the eye of law. A copy of the death certiﬁcate dated 19.1.1993 issued by the Commissioner, Rajendranagar Municipality is also ﬁled before this Court. It is contended that even the notices sent were to a wrong address i.e., instead of sending to H.No.1-12, they were sent to H.No.1-42. Even though the declarant died in the year 1993, without issuing any notice or aﬀording any opportunity to the legal heirs to defend their case, the impugned order is passed. Even as per Section 10(1) of the Act, if the authorities are unable to serve notice on the declarant, they must atleast take service to the persons who are interested in the property. Such a notice was also not served on the petitioners. It is also the case of the petitioners that by 24.2.1998 itself, on an application made by them, their names were mutated in the revenue records, by proceedings of the Deputy Tahsilar, Rajendranagar Mandal and in spite of the same, without even verifying such a fact, an order is passed against a dead person and the authorities have not chosen to serve notice under Section 10(1) of the Act to the interested persons. In support of their contentions, the learned counsel for the petitioners relied on a judgment of a Division Bench of this Court in State of A.P. Revenue Department and others v. Smt.A.Bharathi and others[1] wherein it was held that statutory notices issued in the name of a dead person are non-est in the eye of law. The 3rd respondent has ﬁled a counter aﬃdavit inter alia stating that provisional orders under Section 8(1) and draft statement were issued on 31.10.1989 and dispatched on 10.11.1989 in the name of S.Laxma Reddy, R/o. H.No.1-42 Upperpally Village, Rajendranagar Post and acknowledgement was also received. But, however, no objections have been received from the declarant or any other person. It is also stated notices were issued to the declarant on 27.5.1993, 11.6.1993 and 25.6.1993 indicating the dates of personal hearing and that those notices were sent to the same address and since the petitioners have not attended the oﬃce and ﬁled any documentary evidence stating that their father expired on 19.1.1993 and since no objections have been received on the above dates of hearing, ﬁnal orders under Section 8(4) of the Act have been passed on 30.7.1993 and dispatched on 16.8.1993. It is further stated that the notice under Section 10(5) of the Act was issued in the name of the declarant but the same were served on the 1st petitioner on 10.12.2005. However, it is admitted that ﬁnal order under Section 8(4) of the Act dated 30.7.1993 was issued in the name of the declarant and sent to his house at H.No.1-12 situated at Upperpally Village of Rajendranagar Mandal in continuation of the previous correspondence. It is stated that 10(1) statement was published in the A.P.Gazette part-II Extraordinary No.217 dated 29.9.2004 and the draft declaration under Section 10(3) was published in the AP Gazette Part II Extraordinary on 29.6.2005, which are open to public. Therefore, the contention of the petitioners that the order is null and void on the ground of the death of the original declarant is not correct and thus prayed for the dismissal of the writ petition. Heard the learned counsel for the petitioner as well as the learned Government Pleader for Revenue and perused the material placed before this Court. The issue that arises for consideration in this writ petition is whether notice was served on the declarant before passing the final orders. So far as the death of the declarant is concerned, there is no dispute. The death certiﬁcate issued by the Commissioner of Rajendranagar Municipality establishes the death of S.Laxma Reddy, the declarant. The material produced before this Court shows that a notice issued on 27.5.1993 under Section 6(1) of the Act ﬁxing the date of personal hearing on 10.6.1993 at 11.00 a.m. by the Section Oﬃcer was sent to S.Laxma Reddy. Similarly, all other notices or proceedings including the ﬁnal orders under Section 6(1) conﬁrming the order passed under Section 8(1) declaring the declarant as surplus land holder were sent to S.Laxma Reddy in the year 1993 and 2005, even after his death in the year 1993 itself. It is surprising to note that those notices and the orders were sent to S.Laxma Reddy R/o.H.No.1- 12 of Upperpally Village, Rajendranagar Mandal, Ranga Reddy District, which is not a correct address. Apart from this, on the application made by the petitioners, the revenue authorities after conducting necessary enquiries, mutated their names in the revenue records in the year 1998 itself and proceedings were also issued to that eﬀect. A perusal of the said proceedings clearly indicate that ‘on an application ﬁled by the petitioners herein, after conducting enquiry, the pattadar pass books were issued in the name of the petitioners’. In the reply aﬃdavit, the petitioners have denied about the service of notice sent to S.Laxma Reddy on 25.6.1993, 11.6.1993 and 25.6.1993. It is stated that immediately after receiving the notice by the 1st petitioner, which was issued in the name of their late father S.Laxma Reddy, they have immediately preferred an appeal but the same was closed as abated, as already stated supra. The authorities have failed to even find out the mutation of the names of the petitioners in the records in the year 1999 itself. As rightly contended by the learned counsel for the petitioners, the authorities have even failed to issue notice to the interested persons as contemplated under the provisions of the Act when there was no response to their notices from the declarant. In similar circumstances, this Court in M/s.L.S and Co. v. State of A.P [2]. considered the issue of draft statement and ﬁnal statement under Section 8(4) and Section 9 of the Act and the eﬀect of Rule 5 of the Rules and while considering the same held as under; “The scheme of the Act contemplates issuance of notice and hearing of objections of the persons furnishing the statements and all other interested persons. The Act gives such a protection to all the concerned at every stage of the proceedings. After all any decision of the Special Oﬃcer and Competent Authority under the provisions of the said Act are fraught with serious consequences in respect of the urban property. Rights in immovable properties cannot be allowed to be adjudicated by the quasi judicial authorities like the Special Oﬃcer and Competent Authority in a causal and perfunctory manner. The scheme of the Act and particularly Sections 8 and 9 of the Act and the Rules framed thereunder would show that the procedure to be adopted by the Special Oﬃcer and Competent Authority is to be reasonable and fair. The scheme of the Act ensures an elaborate hearing by the Special Oﬃcer and Competent Authority in adjudication of the statements ﬁled by the persons holding the vacant land. Any deviation in this regard would have to be viewed very seriously.” The above judgment was followed by another learned Single Judge of this Court in Kothuru Babu Surendra Kumar v. Special Officer and Competent Authority[3] and it was held that non-issuance of notice by the authority and its non-service upon the persons likely to be aﬀected would be fatal and vitiates the entire proceedings and consequential orders as they are non-est in law. From the above, it is clear that non-issuance of notice of by the authorities and its non- service upon the persons likely to be affected or upon the interested persons would be fatal. In the instant case also the notices and proceedings were issued in the name of a dead person and no proper service was eﬀected on the legal heirs and the authorities have failed to take proper and eﬀective steps to serve notice on the interested persons atleast before passing ﬁnal orders, that too without verifying the record, which clearly shows the names of the petitioners herein from 1999 itself. For the foregoing reasons and in view of the judgments of this Court referred supra, the impugned proceedings dated 30.7.1993 which were conﬁrmed by the 2nd respondent vide orders dated 1.5.2008 are liable to be set aside and they are accordingly set aside. The petitioners have ﬁled W.P.M.P.No.22424 of 2008 seeking to implead the A.P.Housing Board represented by its Vice Chairman & Managing Director as the proposed 6th respondent in the writ petition stating that pursuant to the ﬁnal orders passed, the government has allotted the subject matter of land in favour of the 6th respondent, which was ordered by this Court on 7.8.2008. Initially when the matter came up for admission, status quo order was granted by this Court and a notice was issued to the respondents. Thereafter, G.O.Ms.No.936 was issued on 2.8.2008 by the Principal Secretary to Revenue stating that he has taken a decision to allot the said land to the Housing Board for optimum utilization of the land for public purpose. It is surprising to note that after the status quo order is passed, how the said G.O. could be issued allotting the said land in favour of the 6th respondent. Therefore W.P.M.P.No.22425 of 2008 is ﬁled by the petitioners seeking to amend the writ petition to question the said G.O. and to set aside the same. It is brought to the notice of this Court by the learned Government Pleader that after coming to know of the orders of this Court, the said G.O. has been kept in abeyance and to that effect, a memo was also filed. In view of the above submission of the learned Government Pleader, learned counsel for the petitioners sought permission of the Court to withdraw the WPMP Nos.22426 and 22525 of 2008. Accordingly, permission is granted to withdraw the WPMPs. Accordingly, the writ petition is allowed and WPMP Nos.22426 and 22525 of 2008 are dismissed as withdrawn. N.V.RAMANA,J msv Dt.23.9.2008 [1] (2002 (4) ALT 334 (DB) [2] AIR 1996 AP 157 [3] 2000(4) ALT 694