D.R.SOMAYAJULU SEC.D.L.S Vs. ATHILI APPALA SWAMY & ORS.
Supreme Court of India (Full Bench (FB)- Three Judge)
Appeal (Civil), 10404 of 2014, Judgment Date: Nov 19, 2014
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.
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:-
(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 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 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 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.
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 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 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 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 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 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. 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.
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 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.
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 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 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 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 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 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 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, 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-
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;
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;
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 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 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 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 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 |Survey No. |Surplus Land |
|(Excess) | |(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 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 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 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
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 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 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.
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 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.
(R. Banumathi)
New Delhi;
November 19, 2014
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