D.R.Somayajulu Sec.D.L.S Vs Athili Appala Swamy .

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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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