D.R.SOMAYAJULU SEC.D.L.S Vs ATHILI APPALA SWAMY .
Bench: T.S. THAKUR,ADARSH KUMAR GOEL,R. BANUMATHI
Case number: C.A. No.-010404-010404 / 2014
Diary number: 32469 / 2011
Advocates: T. V. RATNAM Vs
G. N. REDDY
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10404 OF 2014 (Arising out of SLP (Civil) No. 3489/2012)
D.R. SOMAYAJULU, SECRETARY D.L.S. & OTHER S.E. RAILWAY HOUSE BLDG. CO-OP SOCIETY LTD., VISAKHAPATNAM ..Appellant
Versus
ATTILI APPALA SWAMY & ORS. ..Respondents
WITH
CIVIL APPEAL NO. 10408 OF 2014 (Arising out of SLP (Civil) No. 9648/2013)
COMMISSIONER (APPEALS) LAND ADMINISTRATION, ANDHRA PRADESH & ANR. ..Appellants
Versus
ATTILI APPALA SWAMY ..Respondent
J U D G M E N T
R. BANUMATHI, J.
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Delay condoned in S.L.P. (Civil) No. 9648/2013.
Leave granted in both the special leave petitions.
2. These appeals challenge the correctness of order
of Andhra Pradesh High Court passed in review application
being W.P.M.P.No.1540/2009 in Writ Appeal No.1840/2008
dated 30.4.2011, setting aside the order dated 5.1.1982
passed by the competent authority determining an extent of
38,781 sq. mtrs. of late Attilli Narasayyamma as surplus land
and also the order passed by the appellate authority dated
24.4.2001 on the ground that the proceedings taken against
the dead person are totally void ab initio and non-est.
3. The case has a chequered history. A maze of facts
and events confront us in the course of determination of
these appeals. Essentially, the core questions required to be
examined are:-
(i) The effect of non-impleading of legal heirs of Attili Narasayyamma on the final statement passed under Section 9 of the Urban Land (Ceiling and Regulation) Act, 1976 (for short ULCR Act) and vesting of surplus land in the Government; (ii) Effect of Urban Land (Ceiling and Regulation) Repeal Act 1999 (for short ‘Repeal Act 1999’) on the land so vested:-
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(a) to an extent of 6.00 acres of land vested with the State Government which is allotted to the appellant- society as the society has entered into an agreement of sale with the owners of the land and claims to be in possession of 6.00 acres;
(b) effect of Urban Land (Ceiling and Regulation) Repeal Act 1999 on the remaining extent of surplus land.
4. Despite the limited scope of the dispute which
arises for our consideration, it is essential for us to notice the
factual background of the dispute between the parties. The
appellant-society entered into an agreement of sale with the
grandmother of the first respondent, Attili Narasayyamma on
25.8.1974 in respect of property measuring 6.00 acres in
S.No. 30/1 and 30/2 of Kapparada Village, Visakhapatnam for
the purpose of providing housing plots to its members. Sale
consideration of Rs.1,52,000/- was received by Attili
Narasayyamma and possession of the land was handed over
to the appellant-society. The appellant-society had also
entered into other Memorandum of
Understanding/Agreements of Sale on various dates, details
of which would be referred at the relevant place. Meanwhile,
in pursuance of Urban Land (Ceiling and Regulation) Act
1976, the competent authority sought to take the surplus 3
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land holdings. Attili Narasayyamma filed declaration under
Section 6(1) of the ULCR Act. Sons, daughters and
grandchildren have also filed declarations under Section 6(1)
of the ULCR Act on the basis of family arrangement. After
due enquiry, the competent authority issued draft
statement under Section 8(1), together with notice under
Section 8(3) of the ULCR Act provisionally determining Attili
Narasayyamma as a surplus landholder to the extent of
38781 sq.mtrs. in S. Nos.29/1, 30/1, 30/2 and 30/3 of
Kapparada Village.
5. In response to the notice issued under Section 8(3)
of the ULCR Act, all the declarants including the first
respondent herein filed identical objections, except late Attili
Narasayyamma. Before the competent authority, the
declarants were represented through their counsel. After
giving due opportunity of hearing by issuing notices to the
individual declarants and also to their counsel, the
competent authority passed the order dated 5.1.1982 finding
Attili Narasayyamma to be holder of surplus land to the
extent of 38781 sq.mtrs. Challenging the said order passed
by the competent authority, Attili Narasayyamma filed an
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appeal under Section 33 of the ULCR Act. In the meantime,
final statement under Section 9 of the ULCR Act had been
issued. Notification under Section 10(1) and declaration
under Section 10(3) of the ULCR Act were issued and they
were published in the Andhra Pradesh Gazette on 24.2 1983
and 22.10.1990 respectively. Attili Viswanadha Rao and Attili
Peda Venkata Ramana Murthy have filed a petition bearing
W.P. No.2696/1991 which was dismissed as
withdrawn. The Appellate Authority–Chief Commissioner of
Land Administration rejected the contention of the first
respondent that legal heirs of Attili Narasayyamma were not
formally impleaded in the proceedings before the competent
authority and dismissed the appeal filed under Section 33 of
the ULCR Act by its order dated 24.4.2001.
6. Challenging the order of the Appellate Authority
dated 24.4.2001, Attili Peda Venkata Ramana Murthy and
Attili Viswanadha Rao filed Writ Petition No. 18340/2001.
The said writ petition was dismissed as withdrawn against
second petitioner-Attili Viswanadha Rao. During pendency of
the writ petition, Attili Peda Venkata Ramana Murthy died
and first respondent herein was brought on record as the
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legal representative of deceased Peda Venkata Ramana
Murthy. The said writ petition was subsequently dismissed
by the High Court on 6.11.2008 on the ground that the non-
service of notice upon the legal representatives caused no
prejudice as they all had the opportunity of putting forth
their objections on behalf of Attili Narasayyamma and they
had participated in the proceedings throughout. Aggrieved
by the said order, first respondent preferred writ appeal
being Writ Appeal No. 1840/2008 which was
dismissed by the Division Bench of the High Court vide
order dated 2.2.2009. In the meantime, Urban Land (Ceiling
and Regulation) Repeal Act, 1999 came into force in the
State of Andhra Pradesh with effect from 27.3.2008,
gazetted on 22.4.2008. First respondent filed a review
petition being W.P.M.P. No. 1540/2009 seeking review of the
Order in W.A. No.1840/2008 on the grounds:- (i) that the
legal representatives of Attili Narasyyamma were not
brought on record in the proceedings before the competent
authority and the Order dated 5.1.1982 is void and illegal;
(ii) effect of Urban Land (Ceiling and Regulation) Repeal Act,
1999 was not taken into consideration by the Division Bench.
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7. The High Court allowed the review petition mainly
on the ground that there was no proper representation of the
estate of the deceased Attili Narasayyamma before the
competent authority and any proceedings taken against a
dead person are totally void ab initio and non-est. The High
Court accordingly set aside its own order dated 2.2.2009 and
consequently set aside the order dated 5.1.1982 passed by
the competent authority and also the orders passed by the
Appellate Authority dated 24.4.2001 and the order of the
learned single Judge dated 6.11.2008. These appeals by
special leave, filed at the instance of the appellant-society
and the Department challenge the correctness of the said
order passed by the High Court in the review petition.
8. Mr. Guru Krishnakumar, learned senior counsel
appearing for the appellant-society submitted that the sons,
daughters, grandchildren of Attili Narasayyamma including
the first respondent have filed their statements and
objections to the draft statement issued under Sections 6(1)
and 8(3) respectively of the ULCR Act and thus, all the legal
representatives of Attili Narasayyamma had participated in
the proceedings under the ULCR Act and that no prejudice
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could be said to have been caused to them on account of the
non-service of formal notice to the legal heirs. Laying
emphasis on the vesting of the land in the Government of
Andhra Pradesh and allotment of 6.00 acres of land to the
appellant-society vide GO.Ms.No.340 dated 5.3.2003 and
GO.Ms. No.1900 dated 20.12.2006, learned senior counsel
submitted that the society and the members/allottees are
already in possession of the property and the provisions of
the Urban Land (Ceiling and Regulation) Repeal Act 1999
are not applicable insofar as the extent of the land allotted
to the society and the High Court was not justified in
allowing the review petition.
9. Mr. V.V.S. Rao, learned Senior Counsel appearing
for the respondent Nos. 2 and 3 submitted that respondent
No.1 and other legal representatives of Attili Narasayyamma
had participated in the proceedings and they had sufficient
knowledge of the proceedings pending before the competent
authority. Taking us through the judgment of the single
Judge in W.P.No.18340/2001 and also the Writ Appeal
No.1840/2008, learned senior counsel submitted that courts
below have recorded clear finding that legal representatives
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of Attili Narasayyamma had participated in the proceedings
and only by suppressing the factum of participation,
respondent No.1 filed review application seeking review.
Learned senior counsel for respondent Nos. 2 and 3 further
submitted that the Urban Land (Ceiling and Regulation)
Repeal Act 1999 as adopted by the State of Andhra Pradesh
(on 27.3.2008) is not applicable in this case as the surplus
land has vested in the Government long back in accordance
with the provisions of Section 8(3) of the ULCR Act.
10. Taking us through the GO.Ms.No. 1900 dated
20.12.2006, learned Senior Counsel Mr. P.P. Rao, appearing
on behalf of respondent No1. submitted that the said order
specifically mentions that allotment of land shall be subject
to the result of pending litigation and appellant-society has
no independent right in respect of the suit property. The
learned senior counsel submitted that Attili Narasayyamma
died on 15.9.1977 and the draft statement under Section
8(3) of the ULCR Act, issued on 30.11.1977 could not have
been served on Attili Narasayyamma and since Attili
Narasayyamma’s legal representatives were not brought on
record and no notice was served on them, all proceedings
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against the dead person are illegal and void ab initio. It was
further contended that since the courts below as well as the
competent authority and the appellate authority had failed
to appreciate the relevant aspect that the notice issued
under Section 8(3) of the ULCR Act (dated 30.11.1977) was
not served on the declarant-Attili Narasayyamma, the review
petition filed by the first respondent was rightly allowed by
the High Court.
11. We have given our thoughtful consideration to the
contention of the learned counsel for the appearing parties
and perused the impugned order and materials on record.
12. Attili Narasayyamma, grandmother of first
respondent, died on 15.9.1977. Draft Statement under
Section 8(1) together with notice under Section 8(3) of the
ULCR Act has been issued on 30.11.1977. High Court
allowed the review petition mainly on the ground that the
said notice under Section 8(3) of the ULCR Act was not
served on Attili Narasayyamma and that legal
representatives were not brought on record. In the
impugned order, High Court, interalia, held as under:-
“…In the absence of the proper representation of the estate of the deceased by proper legal
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representatives, any proceedings taken against the dead person are totally void ab initio and therefore it can safely be said that the proceedings as refer to dated 5.1.1982 at the inception itself is totally void, illegal and non-est and the same could not be relied on for any purpose whatsoever nature…. There could not have been any such subsequent proceedings under the provisions of the Act unless and until the original order is valid and there is due determination in accordance with law.”
13. It is no doubt true that the provisions of ULCR Act
are confiscatory in nature depriving a person of his valuable
right in the property. When the Legislature says that the
competent authority shall duly consider any objection
received under sub-section (4) of Section 8, it casts a duty
upon the competent authority to serve the draft statement
under Section 8(3) in such manner, as may be prescribed,
upon the concerned person. The draft statement to be
served by the competent authority under Section 8(3) of the
ULCR Act is to enable the person concerned to file his
objections in case he has any reason to object. There may
be an occasion when a person dies after filing a statement
under Section 6(1) of the ULCR Act but before the notice
along with Draft Statement was issued under Section 8(3) of
the ULCR Act and order passed by the competent authority
under Section 9 or before a final determination under 1
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Section 10(3) of the ULCR Act. In such circumstances, legal
representatives of the deceased are to be impleaded and the
competent authority is to consider any objection received
from the legal representatives.
14. In the facts and circumstances of the case at
hand, it is seen that the sons, daughters and grandchildren
including the first respondent have participated in the
proceedings before the competent authority under the ULCR
Act. Attili Narasayyamma had filed a declaration under
Section 6(1)`and it was numbered as CC No.5443/1976. Her
sons, daughters and grandchildren namely (i) Attili
Annapurna, (ii) Attili Malamamba, (iii) Attili Narasamamba,
(iv) Attili Appalaswamy – (1st respondent) (v) Attili Venkata
Rao, (vi) Attili Viswanadha Rao and (vii) Attili Peda Venkata
Ramana Murthy have filed their statements under Section
6(1) of the ULCR Act, each claiming certain extent of vacant
land by virtue of a family arrangement. Competent
authority issued a draft statement under Section 8(1)
together with Notice under Section 8(3) of the ULCR Act to
Attili Narasayyamma provisionally determining her as a
surplus landholder to the extent of 38,781 sq.mtrs. in S.No.
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29/1, 30/1, 30/2 and 30/3 of Kapparada Village. Copy of the
draft statement and notice under Section 8(3) has been
served on her sons, daughters and grandchildren, including
the first respondent who have filed their statements under
Section 6(1) of the ULCR Act. In response to the said notice
issued under Section 8(3) of the ULCR Act sons, daughters
and grandchildren, namely, the above said declarants have
filed their individual objections and they were all represented
through their counsel. In their objections, sons, daughters
and grandchildren of Attili Narasayyamma raised the
following grounds:- (i) that there was a family arrangement
dated 15.7.1974 in pursuance of which, each of the
declarants are in possession and enjoyment of their
respective shares; (ii) Attili Narasayyamma had executed a
Will and bequeathed the properties; (iii) Attili Narasayyamma
executed an agreement of sale dated 25.8.1974 in favour of
Diesel Loco Shed Employees and S.E. Railway Employees
House Building Cooperative Society (appellant) to the extent
of 6.00 acres of land in S.No. 30/1, 30/2 (P) of Kapparada
Village and the said extent of land has to be excluded from
the computation of the ceiling area of the declarant.
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15. In the counter affidavit filed by respondent Nos.2
and 3, it is averred that subsequent to the filing of the
objections against the draft statement, the competent
authority issued notices both to all the individual declarants
and also their advocates to attend for inquiry. It is averred
that right from 3.4.1978, the declarants have sought for
adjournments either on one plea or the other and as such
they have not turned for inquiry for about five years since
filing of objections against the draft statement. In our view
sufficient opportunity was afforded to the sons, daughters
and grandchildren who filed their objections and only after
considering their objections the competent authority passed
the order under Section 8(4) of the ULCR Act confirming the
draft statement issued under Section 8(1) of the ULCR Act
and thereafter, final statement as required under Section 9
of the ULCR Act has been issued. In effect, legal
representatives of Attili Narasayyamma were given sufficient
opportunity to file their objections to prove their claim to the
property. In such situation, the legal representatives cannot
be allowed to claim that prejudice was caused to them as
they were not brought on record, when in essence they have
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actually participated at all stages of inquiry before the
competent authority.
16. In its order dated 5.1.1982 competent authority
observed thus:-
“The Draft Statement was served on the declarant Smt. Attili Narasayyamma on 2.2.1978. Against the said Draft Statement under Section 8(1) issued to Smt. Attili Narasayyamma all the eight declarants including Attili Narasayyamma have filed objection petitions which were received in this office on 28.2.1978.”
The above observation, of course, is factually incorrect.
Before the appellate authority, Attili Viswanadha Rao
assailed the order passed by the competent authority by
raising objection as to non-impleading of legal
representatives on record. By referring to the proceedings
before the competent authority, the appellate authority held
that Attili Viswanadha Rao and other sons and daughters of
late Attili Narasayyamma have been brought on record all
through the proceedings and were given notice of the
proceedings as required under law, thereby rejecting the
objection of non-impleading legal representatives of Attili
Narasayyamma.
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17. Sequence of events clearly indicates that sons,
daughters and grandchildren of Attili Narasayyamma
including the first respondent participated in the entire
proceedings and they have filed declaration under Section
6(1) of the ULCR Act and also filed their objections in
response to the notice issued under Section 8(3) of the ULCR
Act. In fact, right from the inquiry, the declarants including
the first respondent were represented through their
advocates. Their objections were considered at length by
the competent authority before passing the order dated
5.1.1982 and thereafter, final statement as required under
Section 9 of the Act has been issued. Notification under
Section 10(1) and declaration under Section 10(3) of the
ULCR Act were issued and they were published in the AP
Gazette on 24.2.1983 and 22.10.1990 respectively. The first
respondent Attili Appala Swamy and his father Attili Peda
Venkata Ramana Murthy were vigorously pursuing the
matter. In the counter affidavit filed by the respondent Nos.
2 and 3, the first respondent is stated to be an acquainted
lawyer and an ex-Government Pleader. While so, the first
respondent cannot plead ignorance of the proceedings
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before the competent authority and his participation
thereon.
18. There is no specific provision in the ULCR Act to
bring on record the legal representatives of a declarant who
subsequently dies after filing declaration. In respect of the
matters specified in clauses (a) to (e) of Section 31 of ULCR
Act, the competent authority has been given all the powers
of a civil court while trying a suit under the Code of Civil
Procedure, 1908. Clause (f) of Section 31 of the ULCR Act
provides that for other matters also, it can be prescribed
that provisions of the Code of Civil Procedure, 1908 would be
made applicable. This by implication shows that the entire
provisions of the Code of Civil Procedure are not made
applicable. Section 46 of ULCR Act enables the Central
Government to make rules for carrying out the provisions of
the Act. Clause (n) of sub-section (2) of Section 46
empowers the Central Government to make rules conferring
the powers to the competent authority under clause (f) of
Section 31. Nothing was placed before us to show that
any such rule was framed by the Central Government or that
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which of the provisions of Code of Civil Procedure are made
applicable.
19. For the sake of completion, we may refer to
Order XXII Rule 2, Code of Civil Procedure, 1908 which is the
relevant provision in CPC dealing with the procedure where
one of the several plaintiffs or defendants dies and right to
sue survives. Order XXII Rule 2, C.P.C. reads as under:-
“2. Procedure where one of several plaintiffs or defendants dies and right to sue survives.- Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.”
When the legal representatives of a deceased plaintiff are
already on record in their individual capacity, a mere note
under Order XXII Rule 2 C.P.C. is sufficient. As noticed
earlier, in the proceedings before the competent authority,
sons, daughters and grandchildren of Attili Narasayyamma
were already on record in their individual capacity. While
so, the first respondent cannot complain of any prejudice
being caused due to formal non-impleading of legal
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representatives of deceased Attili Narasayyamma or non-
serving of formal notice upon the legal representatives of
deceased Attili Narasayyamma.
20. In the review petition, in our view, the High Court
ignored the sequence of events and the full participation of
sons, daughters and the grandchildren including the first
respondent before the competent authority. Court of review
has only a limited jurisdiction circumscribed by the definitive
limits fixed by the language used in Order XLVII Rule 1 C.P.C.
It may allow a review on three specified grounds, namely :-
(i) discovery of new and important matter or evidence, which
after the exercise of due diligence, was not within the
applicant’s knowledge or could not be produced by him at
the time when the decree was passed or order was made;
(ii) mistake or error apparent on the face of the record; or
(iii) for any other sufficient reason. Application for review
on the ground of discovery of new material should be
considered with great caution and should not be granted
very lightly.
21. Factum of death of Attili Narasayyamma on
15.9.1977 and plea as to non-impleading of legal
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representatives in the proceedings before the competent
authority was raised at all stages i.e. before the appellate
authority as well as before the single Judge and also in the
writ appeal. Considering the participation of sons,
daughters and grandchildren of Attili Narasayyamma before
the competent authority, the appellate authority as well as
the learned single Judge (Writ Petition No.18340/2001) held
that the legal representatives of Attili Narasayyamma had
sufficient opportunity of putting forth their objections on
behalf of Attili Narasayyamma and the order passed by the
competent authority does not suffer from any illegality. In
Writ Appeal No. 1840/2008, the Division Bench also
considered this aspect and found that all the legal
representatives were already on record and participated in
the proceedings and cannot complain of non-impleading of
legal representatives. In the review petition while setting
aside its own order and then orders of the authorities under
ULCR Act, High Court observed that there was no proper
representation of the estate of the deceased Attili
Narasayyamma by proper legal representatives and any
proceedings taken against a dead person are totally void ab
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initio and the order dated 5.1.1982 is void and illegal. While
so saying, the High Court has completely ignored the
participation of sons, daugthers and grandchildren of Attili
Narasayyamma in the proceedings before the competent
authority and that the said objection was considered and
negatived by all the forums. Insofar as the applicability of
ULCR Repeal Act 1999, in the impugned order only passing
observations have been made that “……all the proceedings
have no effect in view of the repealing Act”. In our view, the
impugned order passed by the High Court in the review
petition is erroneous and not sustainable.
22. Vesting of the land: Sub-section (1) of Section 10
states that after service of the statement, the competent
authority has to issue a notification giving particulars of the
land held by such person in excess of the ceiling limit. A
notification has to be published for the information of the
general public in the Official Gazette, stating that such
vacant land is to be acquired and that the claims of all the
persons interested in such vacant land be made by them
giving particulars of the nature of their interests in such
land. Sub-section (2) of Section 10 states that after
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considering the claims of persons interested in the vacant
land, the competent authority has to determine the nature
and extent of such claims and pass such orders as it might
deem fit. Sub-section (3) of Section 10 states that after the
publication of the notification under sub-section (1) the
competent authority has to declare that the excess land
referred to in the notification published under sub-section (1)
of Section 10 shall, with effect from such date, as might be
prescribed in the declaration, be deemed to have been
acquired by the State Government. On publication of a
declaration to that effect such land shall be deemed to have
been vested absolutely in the State Government, free from
all encumbrances, with effect from the date so specified.
23. By publication in the Gazette on 22.10.1990 under
Section 10(3) of the ULCR Act, the surplus land measuring an
extent of 38,781 sq.mtrs. shall be deemed to have been
vested absolutely in the State Government free from all
encumbrances. On 31.1.1991 notice was issued under
Section 10(5) to surrender possession of vacant lands. So
far as the vesting of the surplus land with the Government,
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there are overwhelming materials and accordingly, vesting
became conclusive.
24. Effect of Repealing Act 1999: Urban Land (Ceiling
and Regulation) Repeal Act, 1999 was adopted in the State
of Andhra Pradesh with effect from 27.3.2008. First
respondent contends that since possession was not taken,
ULCR repeal Act 1999 is squarely applicable and land ceiling
proceedings are abated. First respondent relies upon
Sections 3 and 4 of the Repeal Act, 1999. It would,
therefore, be appropriate to refer to Sections 3 and 4 of the
repeal Act, 1999 which read as under:-
“3. Saving.- (1) The repeal of the principal Act shall not affect-
(a) the vesting of any vacant land under sub- section (3) of Section 10, possession of which has been taken over the State Government or any person duly authorized by the State Government in this behalf or by the competent authority;
(b) the validity of any order granting exemption under sub-section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary;
(c) any payment made to the State Government as a condition for granting exemption under sub-section (1) of Section 20.
(2) Where- (a) any land is deemed to have vested in the State Government under sub-section(3) of Section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorized by
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the State Government in this behalf or by the competent authority; and (b) any amount has been paid by the State Government with respect to such land
then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.
4. Abatement of legal proceedings.- All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate.
Provided that this section shall not apply to the proceedings relating to sections 11, 12,13 and 14 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the competent authority.”
25. Contention advanced at the hands of the
Government and the appellant was that recognizing
possession of the appellant-society and the allottees to
whom the plots were allotted, Government issued
GO.Ms.1900 dated 20.12.2006 which is much prior to the
adoption of repeal Act in the State of Andhra Pradesh and
therefore, repeal Act is not applicable to the said 6.00 acres
allotted to the appellant-society. In so far as remaining
extent, contention of the Government is that the actual
possession of the same was taken over by a Panchnama
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dated 4.1.2008 much before the repeal Act and therefore,
repeal Act is not applicable.
26. In State of U.P. vs. Hari Ram, (2013) 4 SCC 280,
this Court considered the question with regard to “deemed
vesting” under Section 10(3) of ULCR Act in the context of
saving clause in the Repeal Act 1999. This Court held that
for the purpose of saving clause under the repeal Act 1999,
de facto possession is required to be taken by the State and
not de jure. In paragraphs (31), (34) and (35) of Hari Ram’s
case this Court held as under:-
“31. The “vesting” in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. The Court in Maharaj Singh v. State of U.P. [(1977) 1 SCC 155], while interpreting Section 117(1) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 held that “vesting” is a word of slippery import and has many meanings and the context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning….………… ………….. 34. Sub-section (5) of Section 10, for the first time, speaks of “possession” which says that where any land is vested in the State Government under sub- section (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorised by the State Government. 35. If de facto possession has already passed on to the State Government by the two deeming provisions
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under sub-section (3) of Section 10, there is no necessity of using the expression “where any land is vested” under sub-section (5) of Section 10. Surrendering or transfer of possession under sub- section (3) of Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub-section (5) of Section 10 to surrender or deliver possession. Sub-section (5) of Section 10 visualises a situation of surrendering and delivering possession, peacefully while sub-section (6) of Section 10 contemplates a situation of forceful dispossession.”
27. First respondent placed much reliance on the
observations in paragraph (42) of Hari Ram’s case which
reads as under:-
“42. The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18-3-1999. The State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the landowner or holder can claim the benefit of Section 4 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 4 of the Repeal Act.”
Contention of the first respondent is that possession of the
surplus land was never surrendered to the Government and
the above observations in Hari Ram’s case are squarely
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applicable and by virtue of the repeal Act, land ceiling
proceedings stood abated.
28. As noticed earlier, a total extent of 38,781 sq.mtrs.
were declared surplus. The description of surplus land of
38,781 sq.mtrs. is as under:-
Village (Excess)
Survey No. Surplus Land (square metres)
Kapparada 29/1 3,574 Kapparada 30/1 10,036 Kapparada 30/2 24,200 Kapparada 30/3 971
Total 38,781
29. Effect of repeal Act, in our view, has to be
considered separately as regards two different extents viz.,
(1) 6.00 acres of land in Survey Nos. 30/1 and 30/2 of
Kapparada Village allotted to the appellant-society in GO.Ms.
No.1900 dated 20.12.2006 and which is in occupation of the
allottees-members of the appellant-society; (2) Surplus land
in Survey Nos. 29/1 and 30/3 and remaining extent in Survey
Nos. 30/1 and 30/2.
30. Late Attili Narasayyamma had executed an
agreement of sale in favour of appellant-society on
25.8.1974 of the land in Survey Nos. 30/1 and 30/2 to the
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extent of 6.00 acres and received an amount of
Rs.1,52,000/-. On 10.3.1990, the appellant-society had
entered into a Memorandum of Understanding between the
legal heirs of Attili Narasayyamma wherein the appellant-
society agreed to pay Rs. 4,00,000/- per acre and an
advance of Rs.50,000/- was paid. On 3.6.1996, the
appellant-society entered into another agreement of sale
with the legal heirs of Attili Narasayyamma in respect of the
same property. This agreement was with regard to 1.40
acres, in lieu of which entire sale consideration of
Rs.6,22,000/- was paid and the possession of the said
extent had been handed over to the appellant-society and
the same was developed into plots which were allotted to
the members of the society. On 15.1.2001, yet another
agreement of sale in relation to the remaining 4.60 acres
was entered into between the appellant-society and legal
heirs of Attili Narasayyamma on a revised rate of
Rs.10,00,000/- per acre and an advance of Rs. 3,00,000/-
was also paid. On 6.2.2003, by virtue of GO.Ms. No. 455
dated 29.7.2002 Government of Andhra Pradesh formulated
guidelines for allotment of excess land under the ULCR Act
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already in occupation of the 3rd parties. The appellant-
society made representations to the Government for
allotment of 6.00 acres covered under the agreement. In
response to the same, Government issued GO.Ms. No.340
dated 5.3.2003 and decided to consider the case of the
appellant favourably by relaxing certain guidelines in this
regard and called for certain details. The first respondent
filed Writ Petition 1216/2004 questioning the validity of this
order.
31. The Special Officer and Competent Authority,
Urban Land Ceiling, Vishakhapatnam submitted the
proposals based on the application filed for allotment under
Section 23(4) of the ULCR Act of the excess land acquired by
the State Government and in occupation of the members of
the appellant-society in Survey No.30/1 and 30/2 of
Kapparada Village. GO.Ms.No.1900 dated 20.12.2006 was
issued allotting 6.00 acres land to the appellant-society and
thereby regularising their occupation. The said Government
Order states that the society has also paid the requisite
amount towards compensation for such allotment. Again
this order was challenged by the first respondent by filing
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writ petition No.735/2007 and both the writ petitions are
stated to be pending.
32. We are conscious that two writ petitions viz. W.P.
No.1216/2004 and W.P. No.735/2007 have been filed in the
High Court challenging the allotment of 6.00 acres of land to
the appellant-society. In support of his contention that the
land allotted to the appellant society remains vacant, few
photographs were filed by the 1st respondent. As regards
the said 6.00 acres of land, there are overwhelming
materials to show that possession was already handed over
to the appellant-society prior to the adoption of ULCR Act by
state of Andhra Pradesh on 27.3.2008. Following terms in the
agreement dated 10.3.1990 clearly show that possession
was handed over to the appellant-society to clear the bushes
etc.:-
“In pursuance of the above understandings the 1st party received Rs.50,000/- from the President as an advance to permit the 2nd party to clear the bushes and survey the land for the purpose of making a layout and the 2nd party and 1st party hereby acknowledges the same.”
The agreement dated 3.6.1996 also contains clause
as
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regards delivery of possession and also tentative
allotment
made to the members as under:-
“The entire sale consideration of 1 acre 40 cents was paid by the above 12 members and possession is delivered to them in consultation with the Society President and Secretary and on the basis of tentative allotment made by the society vide its letter dated 8.8.1994 and they have enclosed their plots with fencing as per the layout plan of plot 45 to 56.”
The agreement dated 15.1.2001 also records handing over
of possession and forming of layout and conferring right
upon the society to have access to the road as under:-
“The vendors agree to permit the purchasers to level the land and demarcate the roads and plots as per the plan within a period of 3 months.
The purchasers agree that after the layout has been laid and the roads laid, the seller will be entitled to use the road for the other land belongs to them abutting the schedule land. The vendors agree to give access to the road formed in the layout to go to their plots of purchasers in case if it is necessary for the vendors land which is abutting the schedule land. Both the vendors and purchaser having agreed for the terms and conditions mentioned above and affixed their signatures on the 15th day of January 2001 at Visakhapatnam.”
33. In terms of Section 3(1) of the repeal Act, the
vesting of any vacant land under Sub-section (3) of Section
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10, the possession of which has already been taken by the
State Government or any person duly authorized by the
State Government in this behalf or by the competent
authority, repeal of the principal Act shall not affect the
same. Terms of various agreements referred above and also
the tenor of the GO.Ms.No.1900 dated 20.12.2006 clearly
indicate that possession was already handed over to the
appellant-society and the respective allottees were in
occupation of the plots. It is also pertinent to note that as
many as 38 members-allottees are said to have already put
up their construction and few others have fenced their plots.
By virtue of earlier agreements and Government Order
GO.Ms.No.1900 dated 20.12.2006, on the date when the
repeal Act was adopted in the State of Andhra Pradesh i.e.
on 27.3.2008, the appellant-society was already in
possession of 6.00 acres in Survey No. 30/1 and 30/2 and
repeal Act is not applicable insofar as the said extent of
6.00 acres.
34. As noticed earlier, the land was allotted to the
society mainly on the ground that the members-allottees
were in occupation of the allotted plots. The occupation of
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the 6.00 acres land by the members of the society is
evident by virtue of prior agreements of sale. When we
asked Mr. Guru Krishnakumar, learned senior counsel
appearing for the society whether entire sale consideration
in terms of the agreements was paid to the vendors, the
learned senior counsel submitted that around rupees thirty
lakhs have been paid to the vendors. Correct details of the
consideration paid to the vendors, the balance amount
payable to the vendors and whether amount has been paid
to the government in lieu of allotment are not clear. No
materials were placed before us on these aspects. Having
entered into agreements of sale and having got the
allotment, equity demands that the society should pay the
entire sale consideration to the vendors apart from the
amount, if any, paid to the Government. Instead of this
Court determining the balance sale consideration amount
payable to the vendors, insofar as 6.00 acres of land is
concerned, the matter can, in our opinion, be remitted to the
High Court only for the limited purpose of determining the
balance sale consideration payable by the appellant-society
to the vendors –legal heirs of Attili Narasayyamma.
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35. Except the land covered under GO.Ms.No.1900
dated 20.12.2006, possession of the remaining extent of the
surplus land is said to have been taken by virtue of
Panchnama dated 4.1.2008. In the Writ Petition
No.18340/2001, interim stay was granted by the High Court
on 12.9.2001 and the same continued to be in force till
6.11.2008 i.e. till the disposal of the writ petition. In such
view of the matter, the effect of Panchnama has to be
examined and it has to be considered whether the actual
possession was taken by the Government or the
representatives of the State. Insofar as the remaining extent
of surplus land is concerned, the following questions would
arise viz., (i) whether actual physical possession was taken
by the State Government; (ii) When interim order granted
by the High Court on 12.9.2001 was in force, what is the
effect of Panchnama dated 4.1.2008; (iii) whether the repeal
Act adopted by the State of Andhra Pradesh on 27.3.2008 is
applicable and whether the first respondent is entitled to
get the benefit of Section 4 of the repeal Act 1999 are to be
considered. In our view, instead of this Court examining
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these questions, the matter be remitted to the High Court for
examining the above questions.
36. In the result, appeals are allowed, the impugned
order of the High Court passed in Review Petition W.P.M.P.
No. 1540/2009 and the order of the Division Bench passed in
W.A.No. 1840/2008 dated 2.2.09 are set aside and the
matters are remitted back to the High Court for
consideration of the Writ Appeal No.1840/2008 afresh in the
light of the above discussion and the directions contained in
paragraph Nos. (34) and (35). The High Court shall afford an
opportunity to all the parties concerned to file additional
affidavits and counter affidavits and also to file additional
documents, if any, and proceed with the matter in
accordance with law. In the facts and circumstances of the
case, we make no order as to costs.
…………………………J. (T.S. Thakur)
…………………………J. (Adarsh Kumar Goel)
………….………………J.
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(R. Banumathi)
New Delhi; November 19, 2014
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