WP/21212/1996 of Duvvi Challayyamma Vs Government of Andhra Pradesh on 22 December 2006

ORDER:

1. This writ petition has been instituted questioning the validity of anotification issued by the second respondent- Special Officer-cum-CompetentAuthority, Urban Land Ceiling, Visakhapatnam, declaring the father of the writpetitioners 2 to 4 and the husband of the first petitioner as holding urban land inexcess of the ceiling limit.

2. The first petitioner is said to be the wife of one late Duvvi Paidayya,whereas the petitioners 2 to 4 are his children. It is not in dispute that in terms ofSection 6 (1) of the Urban Land (Ceiling and Regulation) Act,1976, (hereinafter be referred to as ‘the Act’) the said Duvvi Paidayya who is holdingcertain extent of vacant land had filed his declaration on 15-09-1976. Thestatement of declaration in Form-I filed by Duvvi Paidayya made it abundantly clear that he has filed the said statement on behalf of the “Hindu UndividedFamily” of which he is the Kartha or Manager. He has also given the necessarydetails of his family particulars as well as the extent of land held by the saidfamily. He has also claimed that the entire extent of land, which is owned byHindu Undivided Family or H.U.F. is an agricultural land though the same isincluded in the master plan of Visakhapatnam Urban Area. It is further not indispute that an enquiry into the said statement is contemplated in terms of Section 8 of the Act, wherein every draft statement prepared under sub section 1of Section 8 of the Act shall be served on the person concerned together with anotice inviting objections, if any, for the draft statement to be preferred within 30days thereafter. Only after complying with this procedure contemplated underSection 8 of the Act, a final statement determining the total extent of excessvacant land can be determined so that the same can be acquired in accordancewith the procedure contemplated under Section 10 of the Act. The writpetitioners have specifically asserted that Duvvi Paidayya has not been servedwith any such notice under Section 8 of the Act and therefore, the determinationof excess land for which the final statement has been prepared in terms ofSection 9 of the Act followed by the acquisition of the excess vacant land sodetermined under Section 10 of the Act are all illegal.

3. A counter affidavit has been filed pointing out that the final statement hasbeen prepared on 29-10-1980 in the case inasmuch as the notices sent underSection 8 of the Act inviting objections have not brought forth any suchobjections. It would be useful to extract what the counter affidavit filed by SpecialOfficer, Urban Land Ceiling , Visakhapatnam would aver in this regard:

“After due enquiry, as the Competent Authority deemed fit, draftstatement u/s.8(1) together with notice u/s.8(3) was issued to SriDuvvi Pydayya determining him as surplus land holder for 8577 sq.mts., in S.No.47 part of Sivajipalem H/o. Waltair ward. He wasdirected to file objections if ay, against the said draft statement u/s.8 (1) within 30 days from the date of receipt of the statementu/s.8(1). When no objections were raised by the declarant, the finalstatement u/s.9 of the Act was issued to him on 19.11.1981 and itwas sent to him by Registered Post with Acknowledgement duefinally declaring him as surplus land holder of 0.8577 sq.mts., asshown below:

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

S.No. Name of the S.No. Total Extent Surplus village extent allowed determined sq.mts., sq.mts., sq.mts.,- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -1) Shivajipalem H/o.Waltair ward 47p 0.9794 0.1217 0.85772) Pithapuram Colony - 0.0283 0.0283 -

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1.0077 0.1500 0.8577

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - The notification u/s. 10(1) was issued on 21.11.1981. ”

4. Since the respondents have asserted that notices under Section 8 of theAct inviting objections for the draft statement prepared by them have beenserved, I called upon the learned Government Pleader to make available therecord. The record discloses that a notice has been prepared on 25-03-1977 bythe Special Officer-cum-Competent Authority directing Duvvi Paidayya to supplycertain omissions noticed from the statement filed by him under Section 6(1) ofthe Act on 15-09-1976 and for the said purpose, the said Duvvi Paidayya hadbeen called upon to appear before the Deputy Tahasildar, Urban Land Ceilingon 31-03-1977. However, the file does not contain as to the further steps takenin the matter by the Deputy Tahasildar as to whether he has secured theinformation found to be missing from the statement filed by the said DuvviPaidayya under Section 6(1) of the Act or not. But at page 29, a notice of draftstatement prepared in terms of Section 8 of the Act was found. The said noticewas obviously prepared on 29-10-1980 as can be gathered from the dateappended below the signature of the Special Officer. Thus the draft declarationcan be said to have been prepared on 29-10-1980 and hence it could have beensent for service on Duvvi Paidayya any time subsequent thereto only. The writ

petitioners have asserted and also demonstrated with reference to an extractsecured from the Municipal Corporation of Visakhapatnam that the said DuvviPaidayya died on 15-01-1980 at the local King George Hospital. Therefore, thedraft statement which had been prepared on 29-10-1980 and which is requiredunder law to be served on the said Duvvi Paidayya could not have been servedon the said individual inasmuch as he had died by the time. Unfortunately thefile does not disclose as to the measures or steps taken for serving the saidstatement on the individual and in his absence on his legal representatives orany other adult member of his family. There is no material available in the file tovouch that the notice dated 29-10-1980 has been served on the said DuvviPaidayya or on any one else. In fact, the notice had not evoked the necessaryresponse is pointed out in one another notice which has been prepared on 15-6-1981 in C.C.,No. 8(1)/6(1)/6291 directing the said Duvvi Paidayya that as noobjections have been received from him in response to the notice dated 29-10-1980, a final notice is issued providing a week’s time for receipt of objectionsagainst the draft statement. Unfortunately the file does not even disclose theproof of service of this notice dated 15-06-1981 either on Duvvi Paidayya or inhis absence on any member of his family. It is therefore, crystal clear that beforethe final statement is prepared and published under Section 9 of the Act, thedeclarant- Duvvi Paidayya or any other person representing his estate had notbeen provided with the necessary notice to enable him to participate in theenquiry and raise the objections for the purpose of correct determination ofvacant land held by the declarant in excess of the ceiling limit. It would be usefulin this regard to refer to the judgment rendered by this court in M/s.L.S. and Co, rep. by Managing Partner Vs. State of A.P. and others.[[1]]Justice B.Sudershan Reddy (as the learned Chief Justice then was) has dealt with thisissue in the following terms:

“ Evidently, the whole proceedings wee conducted by the 2[nd] respondent in a verycasual manner. It appears that the 2[nd] respondent never applied his mind to thecontents of the statements submitted by the predecessors-in-title of thepetitioner on one hand and the 4[th] respondent on the other. The 2[nd] respondentshould have realized that he is discharging quasi-judicial functions in making anenquiry in to the details of the land held by the persons furnishing the statementsunder Section 6(1) of the Act. Intricate questions are to be resolved by the 2[nd]respondent in exercise of the powers conferred upon him under Sections 8 and 9of the Act. The scheme of the Act contemplates issuance of notice and hearingof objections of the persons furnishing the statements and all other interestedpersons. The Act gives such a protection to all the concerned at every stage ofthe proceedings. After all any decision of the Special Officer and CompetentAuthority under the provisions of the said Act are fraught with seriousconsequences in respect of the urban property. Rights in immovable propertiescannot be allowed to be adjudicated by the quasi-judicial authorities like theSpecial Officer and Competent Authority in a casual and perfunctory manner. Thescheme of the Act and particularly Section 8 and 9 of the Act and the rulesframed hereunder would show that the procedure to be adopted by the SpecialOfficer and Competent Authority is to be reasonable and fair. The scheme of theAct ensures an elaborate hearing by the Special Officer and Competent authorityin adjudication of the statements filed by the persons holding the vacant land.Any deviation in this regard would have to be viewed very seriously.casual manner. It appears that the 2[nd] respondent never applied his mind to thecontents of the statements submitted by the predecessors-in-title of thepetitioner on one hand and the 4[th] respondent on the other. The 2[nd] respondentshould have realized that he is discharging quasi-judicial functions in making anenquiry in to the details of the land held by the persons furnishing the statementsunder Section 6(1) of the Act. Intricate questions are to be resolved by the 2[nd]respondent in exercise of the powers conferred upon him under Sections 8 and 9of the Act. The scheme of the Act contemplates issuance of notice and hearingof objections of the persons furnishing the statements and all other interestedpersons. The Act gives such a protection to all the concerned at every stage ofthe proceedings. After all any decision of the Special Officer and CompetentAuthority under the provisions of the said Act are fraught with seriousconsequences in respect of the urban property. Rights in immovable propertiescannot be allowed to be adjudicated by the quasi-judicial authorities like theSpecial Officer and Competent Authority in a casual and perfunctory manner. Thescheme of the Act and particularly Section 8 and 9 of the Act and the rulesframed hereunder would show that the procedure to be adopted by the SpecialOfficer and Competent Authority is to be reasonable and fair. The scheme of theAct ensures an elaborate hearing by the Special Officer and Competent authorityin adjudication of the statements filed by the persons holding the vacant land.Any deviation in this regard would have to be viewed very seriously.

There is absolutely no doubt whatsoever that the whole decision making processin the instant case is totally vitiated. The 2[nd] respondent was under the statutoryobligation to issue and serve notices upon the predecessor-in-title of thepetitioner herein before disposing of the statements filed by the 4[th] respondent. Non-issuance of notice and its service upon interested persons is fatal.”

5. Thus it is conclusively held that the procedure contemplated underSections 8 and 9 of the Act have got to be followed and adopted scrupulously. Since I am satisfied that by the time when draft statement in terms of Section 8 ofthe Act was prepared by the Special Officer-cum-Competent Authority, UrbanLand Ceiling, Visakhapatnam on 29-10-1980, the declarant- Duvvi Paidayyadied, there was no service of notice on the declarant or any person representing his estate. Consequently, the petitioners herein who are said to be the legalrepresentatives of the deceased-Duvvi Paidayya and thus succeeding to hisestate are certainly adversely affected. The fact that the subsequent notificationshave been gazetted and consequently common knowledge can be ascribed toone and all from such gazette publications is of no avail to the State, for, thestage for publication of the notifications in the gazette in terms of Section 10 ofthe Act would arise only after a valid exercise was accomplished in terms ofSection 9 of the Act. Until and unless final statement has been prepared underSection 9 of the Act, no notification could possibly be issued under Section 10 ofthe Act. Therefore, the fact that the notifications under sub section 3 and subsection 5 of Section 10 of the Act have been got gazetted and thus knowledgecan be ascribed to one and all through such publications is of no avail.

6. I have therefore, no hesitation to allow this writ petition and set-aside theimpugned notifications and remit the matter back to the Special Officer-cum-Competent Authority, Urban Land Ceiling, Visakhapatnam to redetermine theexcess land held by the declarant, after conducting enquiry in accordance withlaw. To further obviate the time limit, the writ petitioners are directed to presentthemselves before the Urban Land Ceiling Authority and present the objections,if any for the draft statement prepared on 29-10-1980, a copy of which has beenpermitted by me to be served on the learned counsel for the writ petitionerstoday. It is open to the Special Officer-cum-Competent Authority, Urban LandCeiling to either conduct the enquiry on 31-01-2007 or on any other subsequentdate with prior intimation to the petitioners or their authorized representative asthe case may be. In this view of the matter, all other questions have been keptopen.

7. Subject to the above, the writ petition is allowed. No order as to costs.

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NOOTY RAMAMOHANA RAO,J

22-12-2006

Stp

[1]AIR 1996 A.P. 157