HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 8543 OF 2009 DATED 18th JUNE, 2014 BETWEEN V.Satyanarayana Reddy and ors ….Petitioners And The Government of Andhra Pradesh, Rep. by its Principal Secretary, Revenue (UC.II) Department, Hyderabad and ors.
…Respondents.
HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 8543 OF 2009 ORDER:
The original petitioners in W.P.No.8543 of 2009 filed the present Writ Petition and prayed for issuance of writ, order or direction and more particularly writ in the nature of madamus to declare that the proceedings dated 25.03.2008 purported to be under section 10(6) of the Urban Land (Ceiling & Regulation) Act, 1976 and the Panchanama and sketch taking over paper possession on 26.03.2008 of an extent of Ac.46-20gts. or 1,88,259 sq.mtrs in Sy.No.83/2 in Raidurg (Panmaqtha) village, Serilingampally Mandal by the second respondent, as ultra vires of the provisions of the Urban Land (Ceiling & Regulation) Act, 1976 as the same was passed without jurisdiction and without the authority of law and suffers from the vice of arbitrary exercise of executive fiat of the second respondent and the impugned order was passed in violation of the constitutional and legal rights of the petitioners and prayed that the impugned order may be set aside. This court while issuing notice to the respondents passed orders on 24.04.2009 in W.P.M.P. No.11183 of 2009 in W.P.No.8543 of 2009 that, “The Special Officer and Competent Authority issued notice under Section 10(6) of the Urban Land (Ceiling and Regulation) Act on 25-03-2008 in pursuance of a notice under Section 10(5) of the Act, dated 24-02-1981. The time gap between these two notices is 27 years. In the meanwhile, several proceedings ensued, revising the extents in various orders. Just two days before the Act came to be repealed, the impugned notice was issued. The matter needs to be examined.
Status quo obtaining as on today over the land in question shall be maintained until further orders.”
A brief history of the facts of the case is as follows:
i. On 17.02.1976, Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act or ULC Act or Central Act) came into force in the State of Andhra Pradesh. This Act was in force from 17.02.1976 till 27.03.2008, the day on which the Andhra Pradesh Legislature adopted the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as the Repeal Act). The ULC Act, 1976 ceased to be in force in the State of Andhra Pradesh on and from 27.03.2008.
ii. The pattadars and possessors of an extent of Ac. 525- 39gts in Sy. No. 83 of Raidurg (Panmaktha) village, Serilingampally Mandal, Ranga Reddy District being Mohd. Ruknuddin Ahmed & ten others (hereinafter referred to as declarants) through their GPA filed statements under section 6(1) of the ULC Act on 16.09.1976 and 27.07.1977 and numbered as C.C.Nos. E1/11220/76 & batch. Consequent upon the filing of the statement under section 6(1) of the Act, the Competent Authority issued draft statement under section 8(3) of the Act on 01.07.1977 and 11.11.1977 and final statements under section 9 of the Act were issued on 06.12.1979 and 25.01.1980 declaring 18,94,472 sq.mtrs (Ac 468-06gts) as surplus land and extent of 10,000 sq.mtrs (Ac 2-19gts) as retainable land. Notification under section 10(1) of the Act were issued on 16.01.1980 and 30.01.1980 declaring 18,94,472 sq.mtrs.
(Ac.468-06 gts.) as surplus land and an extent of 10,000 sq.mtrs. (Ac.2-19gts.) as retainable land in Sy.No.83, Raidurg (panmaktha) village and notification under section 10(3) of the Act were issued on 24.01.1981 and these were published in the Andhra Pradesh official Gazattee. The notice under section 10(5) of the Act was issued on 26.02.1981 by the Competent Authority to the GPA of the pattadars. It is pertinent to point out that the proceedings beginning from filing of statements under section 6(1) of the Act till issue of the notice under section 10(5) of the Act were taken in seriatim and on the determined excess land as 18,94,472 sq.mtrs (Ac 468-06gts) in Sy. No. 83 of Raidurg (Panmaktha) village.
iii. The said Mohd. Ruknuddin Ahmed and others through their GPA had also filed their declarations under the Andhra Pradesh Land Reforms (Ceiling On Agriculture Holdings) Act, 1973 (hereinafter referred to as the State Act) in respect of the land held by them in Sy. No. 83 of Raidurg (Panmaktha) village on 23.09.1975 in C.C. Nos. 629/W/75 to 640/W/75 before the Authorized Officer. Mohd. Ruknuddin Ahmed and Mrs. Aziz Fatima were in C.C. No. 638/W/75 and 639/W/75 together held to be holding surplus land to an extent of Ac 71.51cents under the State Act and Ahmed Abdul Aziz & Soghra Fatima in C.C.No. 632/W/75 and 636/W/75 together were held to be holding surplus land to an extent of Ac 27.66 cents in Sy. No. 83, Raidurg (Panmaktha) village, totaling to an extent of Ac 99.17cents (Ac 99-07gts) in Sy. No. 83 of Raidurg (Panmaktha) village declared as surplus under the State Act. This surplus land of extent Ac.99-07 gts in Sy.No.83 was taken over possession by the Government through Tahsildar, Rajendranagar on 23-11-1976, after sub- dividing Sy. No. 83 into Sy. No. 83/1 of extent Ac 426-32 gts being retainable land under the State Act and Sy. No. 83/2 of extent Ac 99-07gts being surplus land under the State Act. Subsequently this surplus land of Ac 99-07gts in Sy. No. 83/2 of Raidurg (Panmaktha) village, went through many proceedings before the Authorities under the State Act and finally possession of the same was reverted back under Form XI-A on 25.04.1990 to the GPA of declarants by the Authorities under the State Act, to enable the declarants to submit the same under the proceedings of the Central Act i.e., in other words the land to an extent of Ac 99- 07gts in Sy. No.83/2 of Raidurg (Panmaktha) village which was in the possession of the authorities under the State Act from 23.11.1976 to 25.04.1990 and therefore this extent of land could never have been subjected under the provisions of the Central Act and hence the object of passing correction orders under section 45 of the Act by the S.O. & C.A. was ostensibly to save the orders passed under sections 8, 9 and 10 declaring surplus the land of extent 18,94,472 Sq.mtrs in Sy.No.83 by correcting those orders to hold the surplus land to be 17,17,027 Sq.mtrs (Ac.424-13gts) so that the orders passed under section 8,9 and 10 do not include any part of the land in Sy. No. 83/2 of extent Ac 99-07gts, which would have made the earlier orders passed under sections 8,9 and 10, illegal and without jurisdiction.
iv. At this stage the Competent Authority under Central Act realized the mistake that surplus land under the State Act of extent Ac 71.51cents in the holding of Mohd. Rukunddin Ahmed & Aziz Fatima, was not available for computation under the Central Act, as the same was taken over possession by the Tahsildar, Hyderabad west on 23.11.1976 and thereby on 08.07.1993, the S.O. & C.A., ULC, Hyderabad rightly issued correction orders under section 45 of the Act in respect of the final statement under section 9 of the Act. in CC No.H2/11220/76. After passing of these orders under section 45 of the Act, the surplus land which was determined earlier as 18,94,472 sq.mtrs (Ac 468-06gts) in all declarants relating to Sy. No. 83 of Raidurg (Panmaktha) village became corrected to be 17,17,027 sq.mtrs (Ac 424-13gts) and 10,000 sq.mtrs remained as retainable land. In view of the correction made under section 45 of the Act, final statement previously issued under section 9 of the Act stood corrected in accordance with the correction order dated 08.07.1993. Thereby, the subsequent notifications/notices under section 10(1) of the Act, 10(3) of the Act and 10(5) of the Act prior to 08.07.1993 (date on which correction orders issued under section 45 of Central Act), also stood corrected finally holding the surplus land under the Central Act to be Ac.424-13gts instead of Ac.468-06gts. in Sy.No.83 of Raidurg (panmaktha) village notified prior to passing of correction orders.
v. Thereafter on 19.07.1993 proceedings under section 10(6) of the Act were issued by the S.O. & C.A., ULC, Hyderabad clearly holding the surplus land to be 17,17,027 sq.mtrs (Ac424-13gts) in Sy. No. 83 of Raidurg (Panmaktha) village, instead of 18,94,472 sq.mtrs, mentioned in the earlier proceedings dated 26.02.1981 under section 10(5) of the Act which means finally Competent Authority under Central Act declaring only Ac 424-13gts as surplus land in Sy. No. 83, (as the same stood corrected in the light of the correction orders dated 08.07.1993) thereby confirming that the correction order issued under section 45 of the Act dated 08.07.1993 has the effect of correcting the extent of surplus land to be Ac 424-13gts from Ac 468-06gts in the 10(5) order dated 26.02.1981, which was served on the declarant on 03.03.1981. Further in terms of the 10(6) order dated 19.07.1993, the Enquiry Officer on 20.07.1993 handed over the possession of the surplus land of extent Ac 424- 13gts in Sy. No. 83/1, Raidurg (Panmaktha) village to the Mandal Revenue Officer under a panchanama and sketch. This sketch clearly shows the land with an extent of Ac 99.17cents in Sy. No. 83/2 of Raidurg (Panmaktha) village to be the agricultural land ceiling area and which does not form part of the finally notified surplus land and the surplus land taken possession under the Central Act. This eventually means that the land to an extent of Ac 99- 07gts. in Sy. No. 83/2 was left out from the proceedings under chapter III of the ULC Act, 1976, as the same was declared surplus under the State Act & taken possession of by the State on 23-11-1976. Also thereby in terms of the correction orders issued under section 45 of the Act dated 08.07.1993, no proceedings/orders under sections 9 and 10 of the Act existed in respect of the said Ac 99- 07gts. in Sy. No. 83/2 of Raidurg (Panmaktha) village, even as on 20.07.1993.
vi. During the pendency of the proceedings under the ULC Act, many sale deeds were registered claiming benefit provided under G.O. Ms. No. 733 Revenue (UC-II) dated 31.10.1988 in respect of the lands in Sy. No. 83/1 and Sy. No. 83/2 of Raidurg (Panmaktha) village. The said sales under the said G.O. Ms. No. 733 took place during the years 1991 to 1992.
vii. On 05.08.1992 the I. G. of Registration issued a memo directing the District Registrar to cancel the said sale deeds and the District Registrar on 03.09.1993 ordered cancellation of the said sale deeds in favour of the third party purchasers of the land of extent Ac 214-00gts in Sy. No. 83/2 and part of Sy. No. 83/1 and that all the said sale deeds executed during the years 1991-92 in Sy. No. 83 are null and void as they are in violation of section 5(3), 10(4), 26 & 27 of the ULC Act following which Writ Petitions were filed by the third party purchasers challenging the said cancellation of the sale deeds. The said writ petition Nos. 18385/1993 and 238/94 were allowed by this court and the Writ Appeal Nos. 918/94 and 1220/94 preferred by the State were dismissed by the Division Benches of this Court. The State carried the appeals to the Supreme Court by way of Special Leave Petitions. The Supreme Court granted leave in the Special Leave Petitions, numbered as Civil Appeal Nos. 3813/1996 and 7239/2001 and decided the correctness of Atia Begum’s case in a batch of appeals from various States and allowed the appeals of the State, reported in (2002) 1 SCC 227 and held that land once declared non- surplus under the ULC Act can in a future date becomes surplus by virtue of change in the master plan, inheritance etc., and that the commencement of Act under section 6(1)(ii) would be the date when the land which was not vacant earlier, becomes vacant for any reason whatsoever and that to this extent Atia Begum is not correctly decided. For the aforesaid reasons the Civil Appeals of the State in A.K. Reddy's case were allowed.
viii. The State Government issued G.O. Ms. No. 161 dated 13.02.2006 and allotted the surplus land of Ac 424-13gts in Raidurg (Panmaktha) village to APIIC. The said orders was challenged unsuccessfully by way of writ petitions before this court and SLPs before the Supreme Court by the purchasers under sale deeds & the declarants before the S.O. & C.A., ULC, Hyderabad. In the judgment dated 08.10.2010 in Omprakash Verma & Ors. Vs. State of A.P. reported in (2010) 13 SCC 158, the Supreme Court referred to the decree drawn in A.K. Reddy’s case and the judgment dated 08.10.2010 reported in Omprakash Verma’s case held that i) all the proceedings taken under the ULC Act prior to 20.07.1993 stood restored by virtue of the decision in N. Audikesava Reddy case; ii) upheld G.O. Ms. No. 161 dated 13.02.2006 allotting land of extent Ac 424-13gts to APIIC; iii) appellant land owners (purchasers under registered sale deeds in 1995-1996) not being in possession on relevant date and thereby exemption under G.O. Ms. No. 733, G.O. Ms. No. 289, G.O.Ms. No. 455 & 456 rightly not granted to them; iv) decree in Audikesava Reddy’s case (2002) 1 SCC 227 correctly drafted by the registry without any ambiguity and in agreement with the judgment and thereby all the sale deeds executed during the years 1991-92 in Sy. No. 83 are null and void as they are in violation of sections 5(3), 10(4), 26 & 27 of the ULC Act. Here it is pertinent to point out that the land of extent Ac 99-07 gts. in Sy.No.83/2 was not subjected to ULC proceedings i.e., no proceedings were finally passed and existing u/s 9 & 10 of the Act in respect of the said land as explained herein above and the same was awaiting to be submitted before the Central Act when the litigation in 1993 challenging the orders passed under sections 8(4), 9 & 10 of the ULC Act started and ended on 08.10.2010 by which time, the Urban Land (Ceiling & Regulation) Repeal Act, 1999 was adopted by the State of A.P. on 27.03.2008.
ix. After the judgment of the Supreme Court in Omprakash Verma’s case on 08.10.2010, Review Petition No. 2062 of 2010 filed by the declarants was dismissed on 12.01.2011 and subsequent Curative Petition No.163 of 2011 filed by the declarants was dismissed on 23.02.2012.
2. The original writ petitioners of the present writ petition are the transferees of an extent of land of Ac.5-20gts. from out of the Ac.99.17cents in Sy.No.83/2 of Raidurg (panmaktha) village, conveyed by GPA holders of the declarants and the present writ petition was filed during the pendency of Civil Appeal Nos.997, 998 and 1024 of 2007 before the Supreme Court of India. The second respondent, at paragraph 8 in his counter to the writ petition has stated that, Civil Appeal Nos.997, 998 and 1024 of 2007, do not pertain to the present case.
3. In the judgment of the Supreme Court in Omprakash Verma & Ors. Vs. State of A.P. reported in (2010) 13 SCC 158 which was delivered on 08.10.2010, it was held by the Supreme Court that in view of the judgment and decree of the Supreme Court in A.K. Reddy’s case reported in (2002) 1 SCC 227, the sale deeds of the purchasers registered during years 1991 to 1992, have become null & void. As such the original writ petitioners lost locus standi to challenge the correctness or otherwise of the orders passed by the second respondent impugned in the present writ petition.
4. During the pendency of this writ petition, the declarants in CC Nos.11220/76 & batch who are the original pattadars and the legal heirs of the deceased declarants of Md. Ruknuddin Ahmed & ten others, in respect of whom the impugned order was passed, have filed W.P.M.P.No. 45377 of 2013 in W.P.No.8543 of 2009 and prayed that they may be impleaded as petitioners 3 to 12 in this Writ Petition. The affidavit filed in support of the application for impleadment was duly served on the original writ petitioners and the respondents in this writ petition. No counter has been filed either by the original writ petitioners or by the respondents, to the application for impleadment and on a perusal of the affidavit filed in support of the application for impleadment, it is seen that the applicants in the said application for impleadment are necessary and proper parties to this writ petition, in so far as the applicants for impleadment being the declarants and pattadars of the subject matter of the land involved in C.C. Nos. 11220/76 & batch against whom the impugned proceedings have been passed.
The declarants were pursuing the Civil Appeal Nos. 1024 of 2007, Review Petition (civil) No. 2062 of 2010 and Curative Petition (Civil) No. 163 of 2011 before the Supreme Court in respect of the proceedings taken under the ULC Act in CC Nos.11220/76 & batch and during the pendency of the civil appeals before the Supreme Court, the present writ petition was filed. The declarants and the legal heirs of the deceased declarants filed the application for permission to implead them as petitioners Nos.3 to 12 in the present writ petition after the curative petition No. 163 of 2011 filed by them was dismissed on 23.02.2012 by the Supreme Court. In view of the above said circumstances, the declarants and the legal heirs of the deceased declarants in CC Nos.11220 of 76 & batch before the S.O. & C.A., ULC., Hyderabad being necessary and proper parties to this writ petition, they were required to be impleaded in the present writ petition to avoid multiplicity of proceedings and hence W.P.M.P. No. 45377 of 2013 was allowed. In view of the same, the applicants in the said W.P.M.P.No. 45377 of 2013 in W.P.No.8543 of 2009 will be referred to hereinafter as the petitioners.
5. The case of the petitioners and the relief sought for by the petitioners on merits as to the challenge of the impugned order is the same as that of the original petitioners and hence the counter filed by the second respondent in this writ petition applies to the petitioners and it is to be seen whether the counter filed by the second respondent can be sustained in law. Petitioners have filed a list of dates & events showing the events that have taken place from 23.09.1975 to 23.02.2012 which are necessary to decide the lis between the parties.
6. Heard both sides. The case of the petitioners is as follows:
i) That the petitioners are necessary parties to this writ petition in so far as they or their predecessors in title are the pattadars of the land in Sy.No.83 Raidurg (panmaktha) village and the declarants vide CC Nos.E1/11220/76 & batch before the S.O. & C.A., ULC, Hyderabad and the declarants vide C.C.Nos. 629/W/75 to 640/W/75 before the authorized officer under the State Act.
ii) That the land of extent Ac.99-07gts. in Sy.No.83/2 which was earlier determined surplus under State Act in the holdings of Md. Ruknuddin Ahmed & Aziz Fatima, Ahmed Abdul Aziz & Soghra Fatima was taken over by the State on 23.11.1976, and later, after many proceedings possession of the said land of extent Ac.99-07gts. in Sy.No.83/2 was reverted back to the declarants on 25.04.1990.
iii) That following the correction order dt.08.07.1993 issued under section 45 of the Act by the S.O. & C.A. ULC., Hyderabad correcting the surplus land declared under section 9 of the Act in respect of CC Nos.11220/76 & batch of Md. Ruknuddin Ahmed & others in respect of the land in Sy.No.83 of Raidurg (panmaktha) village to be Ac.424- 13gts. instead of the earlier determined surplus of Ac.468- 06gts., all the earlier orders and proceedings issued under sections 9, 10(1), 10(3) & 10(5) of the Central Act stood corrected to hold the surplus land to be of extent Ac.424-
13gts. in Sy.No.83/1 instead of the earlier determined surplus.
iv) That in view of the correction orders dated 08.07.1993 issued under section 45 of the Act, the earlier orders under section 9 dt.06.12.1979 and 25.01.1980 declaring 18,94,472 sq.mtrs (Ac 468-06gts) as surplus land is corrected to hold 17,17,027sq.mtrs (Ac.424-13gts.) as surplus land. Also that the section 10(1) notifications dated 16.01.1980 and 30.01.1980 and section 10(3) notification dt.24.01.1981 and section 10(5) notice dated 26.02.1981 also stood corrected in same manner.
v) That if any further land over and above Ac.424-13gts. in Sy.No.83 has to be declared surplus, then it was imperative on the competent authority to issue fresh proceedings u/s 8(4), 9, 10(1), 10(3) & 10(5) of the Act, after 08.07.1993 in respect of the land of extent Ac.99- 07gts. in Sy.No.83/2 which was left out from computation under the ULC Act as on 08.07.1993 due to the correction order u/s 45 of the Act passed on that day.
vi) That in view of the above, there is no vesting u/s 10(3) of the Act in respect of any part of the land of extent Ac.99- 07gts. in Sy.No.83/2 which was the subject matter of agriculture land ceiling proceedings. A comparison of the sketch dated 20.07.1993 showing handing over possession of surplus land of extent Ac.424-13gts in Sy.No.83/1 and the leftover land of extent Ac.99-07gts. in Sy.No.83/2 with sketch dated 26.03.2008 (part of the impugned proceedings) handing over land of extent Ac.46-20gts clearly shows that the said Ac.46-20gts. forms part of Sy.No.83/2 of total extent Ac.99-07gts. which was the subject matter of agriculture land ceiling proceedings and was left out from computation under the Central Act on 08.07.1993 and subsequently due to the pendency of proceedings before various courts, the said land of Ac.99- 07gts. in Sy.No.83/2 was not subject to any proceedings u/s 8(4), 9, 10(1), 10(3) & 10(5) of the Act from 20.07.1993 till 27.03.2008 (date of adoption of Repeal Act).
vii) That the order under section 10(6) dt.19.07.1993 refers to the notice u/s. 10(5) dt.26.02.1981 as if the declarants are put on notice that the surplus land declared in that notice is Ac.424-13gts. (17,17,027sq.mtrs.) and not Ac.468-06gts. (18,94,472 sq.mtrs.) which clearly confirms that the correction order under section 45 of the Act. dt.08.07.1993 has been implemented. That, moreover the sketch enclosed to the Panchanama dated 20.07.1993 in terms of the directions of the 10(6) order dt.19.07.1993, wherein the enquiry officer, Urban Land Ceiling Zone II has handed over possession of Ac.424-13gts. to the MRO, Serilingampally Mandal, also shows the land of extent Ac.99.17cents in Sy.No.83/2 to be agricultural land ceiling area. That this sketch shows that the said correction order dt.08.07.1993 has been fully implemented.
viii) That the effect of the correction order dated 08.07.1993 is that, no proceedings were conducted and no orders were passed under section 9 & section 10(1), 10(3) & 10(5) of the Central Act in respect of the land of extent Ac.99-07gts. in Sy.No.83/2 or Ac.46-20gts. out of the said land of extent Ac.99-07gts.
ix) That thereafter from 08.07.1993 to 27.03.2008 no proceedings were conducted and no orders were issued under section 9, 10(1), 10(3) and 10(5) by the competent authority in respect of the land of extent Ac.99-07gts in Sy.No.83/2.
x) That for the competent authority to pass the said impugned order dt.25.03.2008 under section 10(6) of the Act, the competent authority under the Urban Land (Ceiling & Regulation) Act 1976 and the rules laid thereunder, is duty bound to first pass fresh orders under sections 8, 9, 10(1), 10(3) & 10(5) etc. as prescribed in respect of the said land of extent Ac.46-20gts.
xi) That consequent to the passing of the correction order dated 08.07.1993, the land of extent Ac.99-07gts. in Sy.No.83/2 is at the section 8(3) stage of the Act and the same ought to have been subjected to the proceedings under the Act under sections 8(4), 9, 10(1), 10(3) & 10(5) before passing any order under section 10(6) in respect of the said land of extent Ac.46-20gts. out of the total land in Sy.No.83/2 of extent Ac.99-07gts.
xii) That the impugned order passed u/s 10(6) is ultravires of the Act as the same was passed without there being in existence the foundational orders and proceedings under section 8(4), 9, 10(1), 10(3) & 10(5).
xiii) That in the judgment of O.P. Verma and others reported in (2010) 13 SCC 158, the decree passed in A.K. Reddy’s case reported in (2002) 1 SCC 227 was referred to and the judgment in A.K. Reddy’s case was clarified and thereby all the sale deeds executed in violation of sections 5(3), 10(4), 26 & 27 of the Act are null and void and thereby the original petitioners cannot maintain the present writ petition.
xiv) The second respondent passed an impugned order u/s 10(6) of the Act on 25.03.2008 basing upon notice u/s 10 (5) of the Act dated 24.02.1981 i.e., after a long gap of 27 years and that too passed the impugned order one day before the Repeal Act came into force in the State of Andhra Pradesh showing the malafide and colourable exercise of power by the Competent Authority and raises doubts about the genuiness of the impugned proceedings.
xv) The 10(5) notice dated 24.02.1981 referred to in impugned order dated 25.03.2008 has not been filed by the respondents in support of the impugned order.
xvi) That the contention of the respondent, that the S.O. & C.A., ULC, issued correction order on 08.07.1993 with wrong presumption that the land was taken over under the APLR (COAH) Act, 1973, is not borne out by records and by the facts stated by the petitioners herein.
xvii) The contention of the second respondent that, “Consequently on noticing the fact of reverting back the land by the Land Reforms Tribunal, orders were issued on 25.03.2008 u/s. 10(6) of the Act, directing the enquiry officer to take possession of the land duly obtaining opinion from the learned Advocate General.”, is fallacious in so far as the agriculture land ceiling area reverted back the declarants had to be processed from 8(4) stage onwards to enable the Competent Authority to take possession of any part of the agriculture land ceiling area. Further this reasoning does not find place in the impugned order and thereby the second respondent cannot improve the impugned order by way of fresh reasons in the counter affidavit as per the law laid down in M.S. Gill Vs. Chief Election Commissioner reported in 1978 (1) SCC 405 (para 8).
xviii) It is not the case of the respondents that subsequent to the correction order dated 08.07.1993 passed under section 45 of the ULC Act, 1976, further proceedings were commenced from section 8(4) leading upto proceedings under section 10(6) of the Act. In the absence of following the due process of law prescribed under the ULC Act, 1976, the respondents cannot proceed directly by issuing orders u/s 10(6) of the Act.
xix) The contention of the second respondent that, there are no orders passed by the Court prohibiting to take possession of the land, is misleading since the Urban Land (Ceiling and Regulation) Act, 1976 provides a procedure to be followed of issuing fresh foundational orders from section 8(4) to 10(5) of the Act, before issuance of orders u/s 10(6) and which was not complied with.
xx) That section 3(1)(a) of the Repeal Act does not save the impugned order, in so far as no order has been passed by the competent authority under section 10(3) of the Act vesting any part of the land of extent Ac.46-20gts. out of the total land in Sy.No.83/2 of extent Ac.99-07gts.
xxi) That since no proceedings have taken place under section 8(4), 9, 10(1), 10(3) & 10(5) of the Act in respect of the land of extent Ac.46-20gts out of the total land in Sy.No.83/2 of extent Ac.99-07gts., thereby under section 4 of the Repeal Act all proceedings abate and the land of extent Ac.46-20gts. in Sy.No.83/2 has to be restored to the petitioners. Reliance was placed on the judgment in Whirlpool Corporation Vs Registrar of Trade Marks reported in (1998) 8 SCC 1 regarding the width and extent of the powers of this court under Article 226 of the Constitution and reliance was also placed on judgments in Rajesh Kumar B. Patel Vs. State and A.P. Patel Vs. State reported in 2001 (3) GLR 2520 and 2001 (4) GLR 3319 respectively.
7. The contentions of the second respondent in his counter affidavit and the argument of the respondents are as follows:
i. In the counter-affidavit filed in reply to the writ affidavit, the 2nd respondent-competent authority stated that the land in Sy.No.83 held by the declarants was attracted by the provisions of the Central Act. The preliminary verification of the statements filed by the declarants reveals that the land was fallow for several years and it is not fit for cultivation and hence it is treated as vacant land. The land was allotted to Hyderabad Urban Development Authority vide G.O.Ms. No.5013, Revenue, dated 19-12-1980 after the date of publication of notification under Section 10(1). Instructions were given to the Registration department not to entertain any transactions on these lands. He narrated about the legal proceedings initiated by the parties as well as the Government. The registered sale deed dated 30.01.1991 under document No.851/91 by which petitioners 1 and 2 got title, is not valid under the eye of law, as petitioners 1 and 2 did not obtain permission under Section 26 of the Central Act. The land was vested with the Government free from all encumbrances with effect from 24.01.1981 from the date of issue of declaration under Section 10(3) of the Central Act. The purchaser is not entitled to claim exemption under the Government Orders when the sale transaction itself is void. He mentioned about the correction orders passed under Section 45 of the Central Act.
ii. The second respondent further stated in his counter affidavit that the original writ petitioner’s sale deeds are void and do not convey any title to the original writ petitioners and that the original writ petitioners have no right to put forth any claims and that the Civil Appeal No. 3813 of 1996 and C.A. No.7239/2001 filed by the State in this regard were allowed. That the same was also, so held in the judgment dated 08.10.2010 in C.A.Nos.997, 998 and 1024/2007 reported in (2010) 13 SCC 158.
iii. The second respondent in his counter affidavit further stated that consequent on noticing the mistake crept in the records while passing orders under section 45 of the Act by the then S.O. & C.A., ULC, opinion of the Advocate General was sought on 29.10.2007, that the Advocate General by his opinion dated 24.03.2008 opined that since an extent of 470.65 cents was notified under section 10(3) of the Act and since Ac.424.13cents in Sy.No.83/1 was alone taken possession on 20.07.1993 and therefore the remaining 46 acres of land can also be taken possession since the said property also stood vested in the State Government by virtue of the notification under section 10(3) of the Act dt.24.01.1981. That after receipt of the opinion of the Advocate General, order under section 10(6) of the Act was issued on 25.03.2008 by the competent authority and that the possession of the land was taken over by the enquiry officer on 25.03.2008 and handed over to the MRO, Serilingampally on 26.03.2008.
iv. The second respondent also stated in his counter affidavit that the then S.O. & C.A. issued correction order on 08.07.1993 with wrong presumption that the land was taken over under the APLR (COAH) Act, 1973. Consequently on noticing the fact of reverting back the land by the Land Reforms Tribunal, orders were issued on 25.03.2008 u/s. 10(6) of the Act, directing the enquiry officer to take possession of the land duly obtaining opinion from the learned Advocate General.
v. The second respondent in his counter affidavit further stated that, there are no orders passed by the court prohibiting to take possession of the land. The Notice U/s. 10(5) was already issued on 26-02-1981 for total extent. Hence the Enquiry Officer was directed to take possession of the land which was not taken earlier. All requisite formalities are completed and possession was taken duly following Rules. It is further submitted that the Repeal Act. No.15/1999 was adopted by the state on 27-03-2008. The possession of the land was taken before Repeal of the Act, as such it is saved under section 3 of the Repeal Act. Orders U/s. 9, Notification U/s. 10(1), Declaration U/s. 10(3) Notice U/s. 10(5) were passed as submitted above already for the Ac.46.21 gts. of the land which was taken on 25-03- 2008. Hence, there is no necessity to pass order again before taking possession. Besides this Notice U/s. 10(5) was issued on 26-02-1981 well before issue of proceedings on 20-07-1993. Therefore, possession of the land which is covered under surplus extent Ac.46- 21gts. was only taken leaving the balance land.
vi. The counsel for the respondents during arguments contended that the present Writ Petition is not maintainable in view of the judgment of the Supreme Court dated 08.10.2010 in Om Prakash Verma's case reported in (2010) 13 SCC 158.
vii. The counsel for the respondents during arguments further contended that the petitioners 3 to 12 have no locus standi to implead in this Writ Petition and to challenge the impugned order.
8. Keeping in view the contention of the parties, the following undisputed facts emerge on record:
i) That Md. Ruknuddin Ahmed & ten others are the declarants in CC Nos.11220 of 76 & batch before the S.O. & C.A., ULC., Hyderabad under the Central Act declaring land of extent Ac.525-39gts. in Sy.No.83 of Raidurg (Panmaktha) village.
ii) That final statements were issued under section 9 of the Act on 06.12.1979 & 25.01.1980 in respect of CC Nos.11220 of 76 & batch totally declaring 18,94,472sq.mtrs. (Ac.468-06gts.) as surplus land and a total extent of 10,000sq.mtrs. (Ac.2-19gts.) as retainable land in Sy.No.83 of Raidurg (panmaktha) village.
iii) Notifications under section 10(1) of the Act dated 16.01.1980 and 30.01.1980 were published in the official gazette declaring 18,94,472sq.mtrs. (Ac.468-06gts.) as surplus land and an extent of 10,000sq.mtrs. (Ac.2- 19gts.) as retainable land in Sy.No.83 of Raidurg (panmaktha) village.
iv) Notification under Section 10(3) of the Act dated 24.01.1981 was published in the official gazette declaring 18,94,472sq.mtrs. (Ac.468-06gts.) as surplus land and an extent of 10,000sq.mtrs. (Ac.2-19gts.) as retainable land in Sy.No.83 of Raidurg (panmaktha) village.
v) Notice under section 10(5) of the Act dated 26.02.1981 was issued declaring 18,94,472sq.mtrs. (Ac.468-06gts) as surplus land and an extent of 10,000sq.mtrs. (Ac.2- 19gts) as retainable land in Sy.No.83 of Raidurg (panmaktha) village.
vi) The declarants Md. Ruknuddin Ahmed & others had also filed their declarations before the Authority under the State Act in CC Nos.629/W/75 to 640/W/75 and wherein the Authority under the State Act held that Md. Ruknuddin Ahmed & his wife Aziz Fatima were holding surplus land of extent Ac.71.51cents under the State Act in Sy.No.83 and Ahmed Abdul Aziz & his wife Soghra Fatima were holding surplus land of extent Ac.27.66cents under the State Act in Sy.No.83 totaling to surplus land of extent Ac.99.17cents (Ac.99-07gts.) in Sy.No.83 of Raidurg (panmaktha) village.
vii) The surplus land under the State Act in Sy.No.83 of extent Ac.99-07gts. was taken over possession by the State on 23.11.1976 after sub-dividing Sy.No.83 into Sy.No.83/1 of extent Ac.426-32gts. being retainable land under the State Act and the Sy.No.83/2 of extent Ac.99-07gts. being surplus land under the State Act. This surplus land under the State Act of extent Ac.99- 07gts. in Sy.No.83/2 of Raidurg (panmaktha) village, was subject of many proceedings before the Authorities under the State Act and finally possession of the same was reverted back to the declarants under Form XI-A on 25.04.1990. In between 23.11.1976 and 25.04.1990 proceedings were issued by the competent authority u/s 8(3), 9, 10(1), 10(3) and 10(5) of the ULC Act in respect of 18,94,472 sq.mtrs, which includes the impugned extent of 1,88,259.89sq.mtrs or Ac 46-20gts which forms part and parcel of land of extent Ac 99-07gts in Sy. No. 83/2 of Raidurg (Panmaktha) village, when such land of extent Ac 99-07gts in Sy. No. 83/2 was not available for computation under the ULC Act and hence the correction orders u/s 45 of the Act were issued obviously to protect and save all the earlier orders passed under the ULC Act.
viii) The Competent Authority under the Central Act realizing the mistake that the surplus land taken possession of by the State on 23.11.1976 under the State Act, was not available for computation under the Central Act and thereby issued correction order under section 45 of the Central Act on 08.07.1983 in respect of the final statement of Ruknuddin Ahmed issued under section 9 of the Act correcting the surplus land to be 64,375sq.mtrs. instead of the earlier determined surplus land of extent Ac.2,41,820sq.mtrs.
ix) The effect of the correction order of the Competent Authority dated 08.07.93 is that the earlier determined surplus land in the final statements u/s 9 of the Act which was totaling to18,94,472sq.mtrs. (Ac.468-06gts.) will be corrected to be 17,17,027sq.mtrs (Ac.427- 13gts.).
18,94,472sqmts. – 2,41,820sqmts. + 64,375sqmts.
=17,17,027sqmts.
In terms of the correction order dated 08.07.1993 of the Competent Authority, the earlier determined surplus land of 18,94,472 sq.mtrs (Ac.468- 06gts) in Sy.No.83 in respect of all the declarations put together i.e., in CC.No.11220 of 76 & batch will now stand corrected to be 17,17,027sq.mtrs. (Ac.424-13gts.) in Sy.No.83 in all the earlier proceedings under section 9 dated 06.12.79 & 25.01.1980, notifications u/s 10(1) dated 16.01.1980 & 30.01.1980, notification u/s 10(3) dated 24.01.1981 and notice u/s 10(5) of the Act dated 26.02.1981. Thereby the vesting of the surplus land u/s 10(3) of the Act dated 24.01.1981 stood corrected to be of extent 17,17,027 Sq.mtrs (Ac 424-13gts) instead of the earlier determined extent of 18,94,472 Sq.mtrs (Ac 468-06gts). Therefore, any part of the land of extent Ac 99-07gts in Sy. No. 83/2 which was the subject matter of the Agricultural Land Ceiling Proceedings, finally did not vest in the State u/s 10(3) of the Central Act., in view of the correction order dated 08.07.93 correcting the corresponding final orders issued under section 9 of the Act. That the land of extent 1,88,259.89 Sq.mtrs (Ac46-20gts) mentioned in the impugned proceedings is part and parcel of the land of extent Ac 99-07gts in Sy. No. 83/2 of Raidurg (Panmaktha) village.
x) The Competent Authority issued proceedings under section 10(6) of the Act on 19.07.1993 referring to the notice under section 10(5) dated 26.02.1981 as if the said notice under 10(5) stood corrected to hold the surplus land in Sy.No.83 in CC Nos.11220 of 76 & batch to be 17,17,027sq.mtrs., which is nothing but the implementation of the correction order dated 08.07.1993.
xi) In terms of the directions contained in the order u/s 10(6) dated 19.07.1993, the enquiry officer Zone II, Urban Land Ceiling, Hyderabad, handed over on 20.07.1993 the possession of surplus land of extent 17,17,027sq.mtrs.
(Ac.424-13gts.) in Sy.No.83/1 of Raidurg (panmaktha) village to the Mandal Revenue Officer, Serilingampally Mandal, who took over the same as per the Panchanama and sub-division sketch clearly showing the surplus land of Ac.424-13gts. in Sy.No.83/1, the retainable land of extent Ac.2.47cents (Ac.2-19gts.) in Sy.No.83/1 and the agriculture land ceiling area of Ac.99.17cents (Ac.99-07gts.) in Sy.No.83/2 of Raidurg (panmaktha) village.
xii) The impugned order dated 25.03.2008 purported to have been issued u/s 10(6) of the Act in respect of 6(1) statements filed by Md. Ruknuddin Ahmed & others in CC Nos.H2/11220/76 & batch refers to notice u/s 10(5) of the Act dated 24.02.1981 and that the said notice was issued to the declarant Ruknuddin Ahmed to deliver possession of the surplus land of extent 1,88,259.89sq.mtrs in Sy.No.83 and that the 30 days time given therein expired on 03.04.1981 and as such directions were issued to the enquiry officer to take over possession of the land and hand over to the Mandal Revenue Officer and the enquiry officer on 26.03.2008 has handed over possession of the said land referred to in the impugned order to the Tahsildar, Serilingampally Mandal. Such 10(5) notice dated 24.02.1981 referred to in the impugned order has not been filed by the respondents in support of the impugned order.
9. The counsel for petitioners 3 to 12 in reply to the argument of the respondents that the present writ petition is not maintainable in view of the judgment of the Supreme Court dated 08.10.2010 in Om Prakash Verma’s case reported in (2010) 13 SCC 158 submitted that this argument is fallacious and is factually incorrect for the simple reason that the impugned order taking possession under section 10(6) of the ULC Act was purported to have been passed and alleged possession taken on 25.03.2008 and 26.08.2008 respectively, that is, during the pendency of the civil appeals in Om Prakash Verma and batch before the Supreme Court. If the understanding of the State was that the entire land was the subject matter before the Supreme Court, then there was no need for the 1st respondent to pass the impugned order during the pendency of the civil appeals before the Supreme Court. Having purported to have passed the impugned order during the pendency of proceedings before the Supreme Court, the State cannot contend that the writ petition challenging the impugned order is not maintainable since the validity and constitutionality of the impugned order was not the subject matter of challenge in O. P. Verma's case before the Supreme Court. The mere fact that the impugned order was passed during the pendency of the appeals before the Supreme Court and the impugned order was not brought to the notice of the Supreme Court itself shows the falsity and the untenable contention of the State. The counsel for petitioners 3 to 12 further submitted that the common Judgment on 08.10.2010 in O.P. Verma’s case C.A. Nos. 998 of 2007 & batch reported in (2010) 13 SCC 158 arose out of the appeals against the common judgment dated 17.01.2007 of the High Court of Andhra Pradesh in W.P. Nos. 4121 of 2006 & batch which were filed on 01.03.2006 in respect of the proceedings under the ULC Act with regard to the land in Sy.
No. 83, passed by the Competent Authority prior to 01.03.2006 and does not take into consideration the impugned proceedings dated 25.03.2008 and 26.03.2008 which were passed by the Competent Authority when the Civil Appeal Nos. 998 of 2007 & batch were pending adjudication in the Supreme Court. Therefore the said impugned proceedings were never under challenge in Civil Appeal Nos. 998 of 2007 & batch and were never referred to in the Civil Appeal Nos. 998 of 2007 & batch by any party to the proceedings in the Supreme Court and thereby the Supreme Court never had the opportunity to adjudicate on the same in Civil Appeal Nos. 998 of 2007 & batch.
10. The owners/ declarants were pursuing legal proceedings before the High Court and the Supreme Court and during the pendency of their appeals before the Supreme Court, the impugned order was passed which was challenged by two purchasers of land from the owners by the present Writ Petition. But in view of the subsequent event of the purchasers losing title by virtue of the judgment in Om Prakash Verma’s case wherein the effect of the judgment and decree dated 06.11.2001 passed by the Supreme Court in A.K. Reddy’s case, the sale deeds became invalid and the resultant position is that the owners’ title was restored. The owners and the purchasers filed Review and Curative Petitions before the Supreme Court and the Curative Petitions were dismissed on 23.02.2012. Further in reply to the respondents argument, the counsel for petitioners 3 to 12 replied that the owners/ declarants alone have the necessary locus to challenge the impugned order in view of the subsequent event stated herein above and submitted that the petitioners 3 to 12 are the declarants or their legal heirs who had filed their declarations under section 6(1) of the ULC Act in 1976 and numbered as CC No.E1/11220 of 76 & batch. It was further submitted that it is settled law that subsequent events have to be taken into account to decide a lis. To avoid multiplicity of proceedings, the owners/ declarants filed application for impleadment and thus the owners have the necessary authority and standing to challenge the impugned order. If the owners of the land is deprived of their right to challenge the infringement of their fundamental and constitutional rights conferred on them under Articles 14 and 300A of the Constitution respectively, the impugned order will become unchallengeable which cannot be permitted in a society governed by rule of law.
11. In the light of the foregoing facts on record and the contentions put forth by the parties, this court arrives at the following findings:
i) The proceedings in CC No.11220/76 & batch of Mohd. Ruknuddin Ahmed and others commenced from section 6 of the Act. The second respondent proceeded to pass orders u/s 8(4), issued final statement u/s 9 of the Act. Further proceedings were taken u/s 10(1) and consequent vesting of the land in the Government u/s 10(3) took place. In furtherance of vesting u/s 10(3) of the Act, the second respondent issued notice u/s 10(5) dated 26.02.1981. Before 10(6) proceedings were taken on 19.07.1993 and 20.07.1993 for taking possession of the vested land, the second respondent noticed the mistake crept in the final statement in as much as the extent of surplus land was found to be 17,17,027sq.mtrs. (Ac.424-13gts.) instead of the earlier determined surplus of an extent of 18,94,472sq.mtrs (Ac.468-06gts.). In view of the correction order made under section 45 of the Act, the final statement under section 9 of the Act stood corrected and in view of the correction, the surplus land extent became 17,17,027 Sq.mtrs (Ac.424-13gts) and consequently the surplus land vested in the State under section 10(3) of the Act dated 24.01.1981 also stood corrected to be of extent 17,17,027 Sq.mtrs (Ac.424-13gts). Hence there is no vesting of the balance land and consequently the second respondent ought to have initiated fresh proceedings from section 8(4) onwards for the remaining extent of land of Ac 99- 07gts in Sy. No. 83/2 of Raidurg (Panmaktha) village (of which 1,88,259.89 Sq.mtrs of land mentioned in the impugned proceedings is part and parcel of). But the Second Respondent without passing orders u/s 8(4), 9, 10(1), 10(3) and 10(5) of the Act in respect of the land of extent 1,88,259.89 Sq.mtrs (Ac 46-20gts), has without jurisdiction directly passed the impugned order dated 25.03.2008 u/s 10(6) of the Act. The said impugned extent of 1,88,259.89 Sq.mtrs ( Ac 46-20gts) forms part and parcel of the said extent of Ac 99-07gts in Sy. No. 83/2 being the Agricultural Land Ceiling Area which is evident from a comparision of the sketch dated 20.07.1993 taking over possession by the State of the surplus land of extent 17,17,027 Sq. mtrs (Ac 424-
13gts) in Sy. No. 83/1 of Raidurg (Panmaktha) village leaving the agricultural ceiling area of Ac 99-07gts in Sy. No. 83/2 with the sketch dated 26.03.2008 taking over possession of land of extent 1,88,259.89 sq.mtrs (Ac 46-20gts) in terms of the impugned order dated 25.03.2008. In the absence of vesting u/s 10(3), the impugned order passed u/s 10(6) is not valid and since the second respondent had taken possession u/s 10(6) on 26.03.2008 without the land vesting in the State Government u/s 10(3), the impugned order was passed in violation of the provisions contained in the ULC Act and thus the impugned order is illegal and invalid and is required to be quashed.
ii) This Court while passing order in W.P.M.P. No.11183 of 2009 in this writ petition observed that the matter needs to be examined since the time gap between section 10(5) notice and the impugned order is 27 years and that in the mean while several proceedings ensued, revising the extents in various orders and that just two days before the Act came to be repealed, the impugned notice was issued. The second respondent giving a complete go-by to the correction order dated 08.07.1993 which revised and corrected the surplus extent in various orders and without following the due process of law laid down under the ULC Act, 1976 and the Rules framed thereunder, without passing the foundational orders u/s 9, 10(1), 10(3) & 10(5) of the Act is precluded from passing the impugned order u/s 10(6).
The second respondent in a hurry to take over possession of the land u/s 10(6) before 27.03.2008, has not followed the due procedure established by law under the ULC Act for taking possession.
iii) The contention of the respondents counsel that the notice u/s 10(5) dated 24.02.1981 referred to in the impugned order is nothing but the notice u/s 10(5) dated 26.02.1981 holding the surplus land to be of extent 18,94,472sq.mtrs (Ac 468-06gts) in Sy.No.83 cannot be countenanced in view of the correction order dated 08.07.1993 u/s 45 of the Act read with the order u/s 10(6) dated 19.07.93. In any view of the matter the surplus land of extent 1,88,259.89sq.mtrs. so arrived at in the impugned order has no basis or any foundational order u/s 9, 10(1), 10(3) & 10(5) of the Act.
iv) The contention of the respondents in para 7 of their counter affidavit that, “The then S.O. & C.A. issued correction order on 08.07.1993 with wrong presumption that the land was taken over under the APLR (COAH) Act, 1973” is not as per record. The correct facts as per the record are that, the land of extent Ac.99-07gts. in Sy.No.83/2 was taken over possession by the authorised officer under the State Act on 23.11.76 and the orders u/s 8(3), 9, 10(1), 10(3) & 10(5) of the ULC Act were all passed between 01.07.1977 to 26.02.1981 when the said land of extent Ac.99-07gts. in Sy.No.83/2 was not available for computation for passing the said orders under section 8(3), 9, 10(1), 10(3) & 10(5) and hence the correction orders dated 08.07.1993 u/s 45 of the ULC Act. The possession of the said land of extent Ac 99-07gts in Sy. No. 83/2 was reverted back to the declarants by the authorities under the State Act only on 25.04.1990, to enable the declarants to submit the same under the ULC Act. That due to pendency of various legal proceedings, no orders or proceedings under the ULC Act were passed in respect of the said land of extent Ac 99-07gts in Sy. No. 83/2 until the adoption of the Repeal Act on 27.03.2008.
v) The other contention of the respondents in para 7 of the counter affidavit that “Consequently on noticing the fact of reverting back the land by the Land Reforms Tribunal, orders were issued on 25.03.2008 u/s. 10(6) of the Act, directing the enquiry officer to take possession of the land duly obtaining opinion from the learned Advocate General.”, cannot be countenanced since after reverting back the land to the declarants by the Land Reforms Tribunal it was imperative for the Competent Authority to pass fresh orders u/s 8(4), 9, 10(1), 10(3) & 10(5) in respect of the reverted land of extent Ac.99-07gts in Sy.No.83/2 to enable the Competent Authority to take possession of the said land u/s 10(6) of the Act. Moreover this reasoning of the respondent does not find place in the impugned statutory order dated 25.03.2008 and the respondent cannot improve the impugned statutory order by way of fresh reasons in the counter affidavit subsequent to the passing of the impugned order in view of the law declared in M.S. Gill Vs. Chief Election Commissioner reported in (1978) 1 SCC 405 (para 8).
vi) The case of the respondents is that the possession alleged to have been taken with regard to the remaining 46 acres on 26.03.2008 is based on the opinion of the Advocate General of the State. In this regard, it was submitted on behalf of the petitioners that the opinion of the Advocate General cannot be the basis to take illegal possession without issuance of the foundational orders under sections 9 & 10 of the ULC Act, 1976. It is not the case of the respondents that subsequent to the correction order dated 08.07.1993 passed under section 45 of the ULC Act, 1976, further proceedings were commenced from section 8(4) leading upto proceedings under section 10(6) of the Act. In the absence of following the due process of law prescribed under the ULC Act, 1976, the respondents cannot proceed directly by issuing orders u/s 10(6) on the basis of the notification under section 10(3) dated 24.01.1981 and the notice u/s 10(5) dated 26.02.1981 which stood corrected by the correction order dated 08.07.1993 and hence the reasoning given by the second respondent that the purported proceedings dated 25.03.2008 and 26.03.2008 was only on the basis of the opinion of the Advocate General cannot withstand the scrutiny of law and therefore the purported proceedings taken under section 10(6) dated 25.03.2008 and possession on 26.03.2008 are done without the authority of law and is liable to be set aside.
vii) The contention of the respondent in para 8 of the counter affidavit that, “Further, there are no orders passed by the Court prohibiting to take possession of the land.”, cannot be countenanced since the Urban Land (Ceiling & Regulation) Act 1976 and the rules framed there under clearly prohibit issuance of 10(6) order taking possession without there being in existence the supporting foundational orders u/s 8(4), 9, 10(1), 10(3) & 10(5).
viii) The further submission of the second respondent that notice under section 10(5) was already issued on 26.02.1981 for total extent is made without taking into account the legal consequences that flow from the correction order passed by the competent authority under section 45 of the ULC Act dated 08.07.1993. After the passing of the correction order, the notice dated 26.02.1981 stood corrected in respect of the extent of land declared surplus and therefore the second respondent is not right in law in contending that the notice under section 10(5) dated 26.02.1981 is sufficient for taking possession on 26.03.2008.
ix) The submission of the second respondent is that the possession of the land was taken on 26.03.2008, one day before the adoption of the Urban Land (Ceiling & Regulation) Repeal Act, 1999 by the Legislature of Andhra Pradesh on 27.03.2008 and as such it is saved under section 3 of the Repeal Act of 1999. This contention cannot be sustained since section 3 of the Repeal Act does not contemplate taking of illegal possession. If the action of taking possession is not in accordance with law, the saving provision contained in section 3(1)(a) of the Repeal Act cannot have any application and this finds support in the judgments rendered in Rajesh Kumar B. Patel Vs. State and A.P. Patel Vs. State. That there are no subsisting or existing orders u/s 10(3) of the Act to enable issuance of the impugned order u/s 10(6) and thereby the impugned proceedings are not saved under section 3(1) (a) of the Repeal Act. In view of the non-applicability of section 3 of the Repeal Act, proceedings have abated u/s 4 of the Repeal Act. Moreover since the land in Sy.No.83/2 of Raidurg (panmaktha) village of extent Ac.99-07gts. is still at section 8(4) stage only, all proceedings in respect of the said lands have abated u/s 4 of the Repeal Act.
x) The judgment in O.P. Verma’s case (2010) 13 SCC 158 was delivered on 08.10.2010, during the pendency of the present writ petition and in view of the said judgment wherein the judgment and decree in A.K. Reddy’s case (2002) 1 SCC 227 were discussed and clarified, the original writ petitioners who are purchasers from the GPA of the declarants, have no locus standi in so far as their Sale Deeds which are the subject matter of the writ petition culminating in A.K.Reddy’s case were declared null & void and hence the claim of the original writ petitioners that they are in possession of the lands under the sale deeds cannot be countenanced.
xi) Petitioners 3 to 12 are the necessary and proper parties in so far as they are the declarants or the legal heirs of the deceased declarants Mohd. Ruknuddin Ahmed and others who had filed their statements u/s 6 of the Act before the Competent Authority in C.C. No. 11220/76 & batch with regard to the land in Sy. No. 83 of Raidurg (panmaktha) village and in respect of which the impugned order u/s 10(6) of the Act dated 25.03.2008 passed in C.C. No. 11220/76 of Mohd. Ruknuddin Ahmed and impugned proceedings dated 26.03.2008 are under challenge in this writ petition.
xii) Since no foundational orders u/s 8(4), 9, 10(1) were passed and consequently no vesting u/s 10(3) having taken place and no notice u/s 10(5) was issued, the impugned order dated 25.03.2008 is illegal and consequently the impugned proceedings are not saved u/s 3 of the Repeal Act and the proceedings got abated in terms of section 4 of the Repeal Act and hence retention of possession of the lands of the petitioners 3 to 12 in this writ petition by the State under the impugned order, would be nothing but without any authority of law as enshrined under Article 300-A of the Constitution. In this regard reference may be made to the judgments with regard to taking possession u/s 10(6) of the Act without their being subsisting orders u/s 8(4), 9, 10(1), 10(3) & 10(5) of the Act and the restoration of possession of such land, in Rajesh Kumar Vs. State and A.P. Patel Vs. State (referred to supra).Therefore, this is a fit case where this Court can issue a writ of mandamus directing the respondents to restore possession of the subject land of extent 1,88,259.89 sq.mtrs in Sy. No. 83 of Raidurg (panmaktha) village to petitioners 3 to 12. In view of the judgment of the Supreme Court in Whirlpool Corporation Vs. Registrar of Trade Marks reported in (1998) 8 SCC 1, it is within the power of this court under Article 226 of the Constitution to exercise the power to issue a writ of mandamus directing the respondents to restore possession of the land referred to in the impugned proceedings to the petitioners 3 to 12. Having regard to the findings recorded by me herein above, that the impugned proceedings are passed without any foundational orders and without any vesting of the subject land in the State Government u/s 10(3) of the Act since the corresponding final statement u/s 9 stood corrected by the correction order dated 08.07.1993, the impugned order dated 25.03.2008 and impugned taking of possession dated 26.03.2008 is without the authority of law. In view of the same, the proceedings remain abated in respect of CC Nos.11220/76 & batch in respect of the land of extent 1,88,259.89sq.mtrs in Sy. No. 83 of Raidurg (panmaktha) village belonging to Md.
Ruknuddin Ahmed and others and consequently, petitioners 3 to 12 are entitled to restoration of possession of the subject land and that this court under the said circumstances is empowered to exercise its powers under Article 226 of the Constitution to restore such possession expeditiously, preferably within a period of eight weeks from the date of receipt of this order.
xiii). The finding of the Supreme Court in A.K. Reddy’s case (2002)1 SCC 227 and O.P. Verma’s case (2010) 13 SCC 158 is that all the proceedings taken under the ULC Act on and prior to 20.07.1993 are correct and stood restored. This means that all the proceedings taken under the ULC Act being the proceedings under section 8(3), 9, 10(1), 10(3) & 10(5) of the Act and the correction orders dated 08.07.1993 issued u/s. 45 of the Act correcting the earlier orders u/s. 9 & 10 of the Act, the subsequent proceedings u/s. 10(6) of the Act dated 19.07.1993 & 20.07.1993 duly incorporating the correction order correcting the earlier orders u/s. 9, 10(1), 10(3) & 10(5) of the Act all stood restored and thereby the impugned order u/s. 10(6) dated 25.03.2008 is not in consonance with the foundational corresponding subsisting orders and notifications etc., u/s. 8(3), 9, 10(1), 10(3) & 10 (5) of the Act.
12. In the light of the above, the conclusions are summarized as follows:
a) Section 3 (1) (a) of the Repeal Act provides that the repeal of the principal Act shall not affect the vesting of any vacant land under sub-section (3) of section 10, possession of which has been taken over by the State Government and that the phrase, “possession of which has been taken over” appearing in section 3(1)(a) of the Repeal Act connotes the possession contemplated under section 10(6) pursuant to valid notice issued under section 10(5) of the Act and orders under section 10(3) of the Act vesting the land with the State. Section 4 of the Repeal Act provides that all legal proceedings pending before the commencement of the Repeal Act before any Court, Tribunal or Authority shall abate whereas Section 3 thereof provides that where any vacant land had vested in the State under Section 10(3) of the Act of 1976 and the possession of such vested land taken over by the State before the commencement of the Repeal Act alone will be saved from the operation of Section 4 of the Repeal Act. In the instant case, the impugned order taking over possession u/s 10(6) of the Act is illegal and without the authority of law as the same has been done without there being corresponding subsisting orders & notification etc., u/s 8(4), 9, 10(1), 10(3) & 10(5) of the Act. Since in the present case the taking over of possession under the impugned orders u/s 10(6) of the Act has been done without the subject land having been vested in the State Government u/s 10(3) of the Act, such taking over of possession under the impugned order is not falling within the mandate given in the Repeal Act and therefore not saved by section 3(1)(a) of the Repeal Act.
b) The correction order dated 08.07.1993 passed by the Competent Authority under section 45 of the Act in C.C. Nos. 11220/76 and batch has the effect of correcting the total surplus land computed in Sy. No. 83 under the Central Act to be 17,17,027 Sq.mtrs (Ac 424-13gts) instead of the earlier determined surplus land of extent 18,94,472 Sq.mtrs ( Ac 468-06gts) in all the earlier proceedings, being the final statements under section 9 of the Act dated 06.12.1979 & 25.01.1980; notifications under section 10(1) of the Act dated 16.01.1980 & 30.01.1980; notification under section 10(3) of the Act dated 24.01.1981 and notice under section 10(5) of the Act dated 26.02.1981.
c) The correction order dated 08.07.1993 is implemented in the order under section 10(6) of the Act dated 19.07.1993 and the subsequent taking over and handing over of possession of the surplus land of extent 17,17,027 sq.mtrs (Ac 424-13gts) in Sy. No. 83/1 of Raidurg (Panmaktha) village, clearly & irrefutably leaving the land of extent Ac 99-07gts in Sy.No.83/2 being the agricultural land ceiling area under a panchanama and sketch on 20.07.1993.
d) The land of extent Ac 99-07gts in Sy. No. 83/2 of Raidurg (Panmaktha) village being the surplus land under the State Act was first taken over possession by the State on 23.11.1976 and subsequently possession of the same was reverted back to the declarants on 25.04.1990, to enable the declarants to submit the same under the ULC Act but that due to pendency of various legal proceedings, no orders or proceedings under the Central Act could be issued in respect of the said Ac 99-07gts in Sy.No. 83/2 of Raidurg (Panmaktha) village subsequent to the correction order u/s 45 of the Act dated 08.07.1993 and proceedings u/s 10(6) of the Act dated 19th & 20th July 1993. The correction orders categorically declare the extent of surplus land in Sy.No.83 of Raidurg. The Competent Authority is not entitled to take possession of land over and above this extent declared surplus. It is not the case of the respondents that they have taken up fresh proceedings for land covered in Sy. No.83/2 which would have authorized them to take recourse to possession. The absence of proceedings in Sy.No.83/2 totally bind the authorities not to take possession of land covered in Sy.No. 83/2.
e) There is a considerable and inordinate three decade long delay of nearly 27 years between the impugned order and the referred to notice therein under section 10(5) dated 24.02.1981 which stood modified by the correction order dated 08.07.1993 issued under section 45 of the Act.
The impugned order u/s 10(6) of the Act dated 25.03.2008 was passed by the competent authority after a long gap of 27 years from the date of notice u/s 10(5) of the Act dated 24.02.1981, either by giving a completely go-by or in complete ignorance and oversight of the correction order u/s 45 of the Act dated 08.07.1993 and which the second respondent is now trying to shore up with reasons in the counter affidavit that do not find place in the impugned order and also being against the facts of the case and the same therefore, is not permissible in law.
f) Subsequent to the correction order dated 08.07.1993 passed by the Competent Authority u/s 45 of the Act in C.C. No. 11220/76 and batch, the land of Ac 99- 07gts in Sy. No. 83/2 stands unaffected by the earlier orders u/s 9 of the Act dated 06.12.1979 and 25.01.1980, 10(1) of the Act dated 16.01.1980 and 30.01.1980, 10(3) of the Act dated 24.01.1981 and notice u/s 10(5) dated 26.02.1981 of the Act as the same stood corrected to declare the surplus land to be 17,17,027 sq.mtrs instead of the earlier declared surplus land of 18,94,472 sq.mtrs and thereby disables the Competent Authority to take possession of any part of the land in Sy. No. 83/2 of extent Ac.99-07gts (of which the impugned extent of 1,88,259.89 sq.mtrs or Ac 46-20gts is part and parcel of ) without passing the fresh foundational orders u/s 8(4), 9, 10(1), 10(3) and 10(5) of the Act. Since there is no proceedings u/s 10(3) of the Act vesting the surplus land of extent 1,88,259.89 sq.mts (Ac 46-20gts) in the State, thereby the impugned order dated 25.03.2008 and the panchanama and sketch taking over possession on 26.03.2008, cannot stand in law and are set aside.
g) It is to be clearly noted and affirmed that the correction orders passed u/s 45 of the Act categorically extinguishes and modifies the previous order to the extent defined in the correction order. In other words it is clearly held now that the orders/notifications issued u/s 9, 10(1), 10(3) and 10(5) etc. prior to the correction orders passed u/s 45 of the act stand corrected to the extent of surplus land declared & ordered u/s 45 of the act. The correction orders u/s 45 of the Act freeze the surplus land of an extent of 17,17,027.00 sq.mts. and that has been taken possession of. No land over and above this extent of 17,17,027.00 sq.mts. is covered either in vesting orders u/s 10(3) of the Act or declaration of surplus orders u/s 9 of the Act or by other valid orders.
The impugned order taking possession of 1,88,259.89 sq.mts. in the year 2008 are clearly unauthorized and bad in law since this particular parcel of land is not declared as surplus or vested with Govt. under the Act in view of the correction orders passed by the Competent Authority under section 45 of the Act.
h) It is also now clearly established that the land of Sy.No.83/2 to an extent of Ac.99-07gts. was not subjected to the proceedings under the Act since it was at that point of time not held by declarants and the correction order passed gave finality to this in 1993. Thereafter subsequent to reconveyance of this land by the authorities under the State Act, this land should have been proceeded with under the Act but the Competent Authority failed to do so and thus afterwards also the said land continued to be free from the proceedings under the Act. The embargo put by the Repeal Act now prohibit the authorities from taking any action under the Act and so it can be finally concluded that this land is free from provisions of the Act and is legally bound to be with the declarants.
i) Section 3(1) (a) of the Repeal Act does not save the proceedings taken under the impugned order since there is no subsisting foundational order in existence u/s. 10(3) of the Act. Since the impugned order cannot exist without the foundational orders u/s. 9, 10(1), 10(3) and 10(5) of the Act, the impugned order and the proceedings taken there under are declared illegal and the same are set aside. In view of the abatement of the proceedings u/s. 4 of the Repeal Act, the respondents are directed to restore possession to the petitioners 3 to 12, of the land of extent 1,88,259.89 sq.mtrs (Ac 46-20gts) in Sy. No. 83 of Raidurg (Panmaktha) village, the possession of which was illegally taken over by the State on 26.03.2008.
j) It is declared that the subject land purported to have been taken possession of by the State under the impugned order, has not vested in the State u/s 10(3) of the ULC Act and thereby the impugned proceedings are not saved u/s section 3 of the Repeal Act and consequently proceedings in C.C. Nos. 11220/76 and batch have abated u/s 4 of the Repeal Act in respect of the subject land of extent 1,88,259.89 sq.mtrs (Ac 46-20gts) in Sy. No. 83 of Raidurg (panmaktha) village and hence the respondents are in illegal and unauthorized possession of the said subject land. I hold that the action of the respondents in taking unlawful and illegal possession under the impugned orders, is an arbitrary & colourable exercise of power violating the fundamental right of petitioners 3 to 12 under Article 14 of the Constitution of India. Since petitioners 3 to 12 were deprived of their property without the authority of law, the action of the respondents also amounts to violation of Article 300-A of the Constitution. Since the respondents are clearly in illegal possession of the land and in violation of the fundamental and Constitutional rights of petitioners 3 to 12, the respondents are required to restore the possession of the subject land to petitioners 3 to 12 expeditiously, preferably within a period of eights weeks from the date of receipt of this order.
For the foregoing reasons, the impugned order, the consequential panchanama and the sketch annexed thereto are set side, and consequently, the writ petition is allowed and the respondents are directed to restore the possession of the subject land to petitioners 3 to 12 expeditiously, preferably within a period of eight weeks from the date of receipt of a copy of this order. The parties are left to bear their own costs.
JUSTICE ASHUTOSH MOHUNTA
DATED 18th JUNE, 2014.
Msnro