WP/17954/2002 of Gundu Sayulu, Vs Hyderabad Urban Dev. Authority on 30 December 2008

COMMON ORDER:

These two writ petitions are connected with each other. Hence, theyare disposed of through a common order.

The petitioners in W.P.No.15441 of 2001 are the legalrepresentatives of late Sri Bollaboni Ramaswamy. He held an extent ofAc.1.37 guntas of land in survey Nos.65 and 66 of Uppal Bagath of UppalMandal, Ranga Reddy District. Since the village was included in theHyderabad urban agglomeration, Ramaswamy filed a declaration before theSpecial Officer and Competent Authority, Urban Land Ceiling, the secondrespondent herein, under Section 6 of the Urban Land (Ceiling andRegulation) Act, 1976 (for short ‘the Act’). After processing thedeclaration, the second respondent passed an order, dated 24.01.1983,under Section 8 (4) of the Act. He took the view that Ramaswamy held anextent of 6840.76 square yards of land in excess of ceiling limits. Againstthis order, an appeal was filed under Section 33 of the Act before theCommissioner of Appeals, the first respondent herein. Ramaswamy died on29.01.1999 when the appeal was pending. Not being aware of thisdevelopment, the first respondent passed an order, dated 31.07.1993. Heallowed the appeal and remanded the matter to the second respondent forfresh consideration and disposal.

After remand, the second respondent issued notices in the name ofRamaswamy. The second petitioner, one of the sons of Ramaswamy,appeared before the second respondent and informed that Ramaswamy isno more. Legal representatives of the deceased declarant were notbrought on record and through an order, dated 25.02.1994, the secondrespondent decided that an extent of 6840.76 square meters is in excess ofceiling limits.

The petitioners in W.P.No.15441 of 2001 state that they came toknow about the order, dated 25.02.1994, passed by the second respondentonly when some Government Officials visited the land and soon thereafter,they presented the appeal before the first respondent. The appeal wasrejected as time barred through orders, dated 26.05.2001. They challengethe order, dated 25.02.1994, passed by the second respondent and the one,dated 26.05.2001, passed by the first respondent. They complain ofprocedural irregularity as well as, denial of benefit under G.O.Ms.733,dated 31.10.1998.

After the land was declared excess, it is said to have handed over tothe Hyderabad Urban Development Authority (HUDA). The land wasdivided into plots and auction was conducted on 10.12.2001. Thepetitioners in W.P.No.17954 of 2002 emerged as the highest bidders for twoplots, carved out of the land in survey Nos.65 and 66. On coming to knowthat some disputes are pending in relation to that land and W.P.No.15441 of2001 was filed, the HUDA issued proceedings, dated 19.07.2002, cancellingthe allotment and refunding the amount deposited by the petitioners,together with interest. The proceedings, dated 19.07.2002, are challengedin W.P.No.17954 of 2002.

The first petitioner in W.P.No.17954 of 2002 got himself impleadedas the third respondent in W.P.No.15441 of 2001.

The second respondent in W.P.No.15441 of 2001 filed a counter-affidavit. It is stated that once the second petitioner had participated in theproceedings and his contentions were taken into account, there was nonecessity to bring the legal representatives of the declarant on record. It isstated that the possession of the land was taken and it is vested in theGovernment. According to the second respondent, the petitioners are notentitled for the benefit under G.O.Ms.No.733, dated 31.10.1988. Heattempts to sustain the order passed by him, in all respects.

The impleaded party in W.P.No.15441 of 2001 filed a counter-affidavit almost on the same lines.

On behalf of HUDA, a counter affidavit is filed in W.P.No.17954 of2002, narrating the circumstances that led to the cancellation of theallotment in favour of the petitioners therein.

Sri K.Raghuveer Reedy, the learned counsel for the petitioners inW.P.No.15441 of 2001 submits that though the second respondent wasinformed that Ramaswamy died in the year 1991, he has not taken anysteps to bring the legal representatives of the deceased, on record. Hecontends that the second petitioner cannot represent the entire estate oflate Ramaswamy. The learned counsel further submits that the use of theland is mentioned in the master plan published on 29.09.1980 as agricultureand the second respondent has taken an untenable view of the matter inobserving that raising of para grass cannot be treated as agriculturalactivity. He also submits that the benefit under G.O.Ms.No.733, dated31.10.1988, was not extended to the petitioners, though the land is withinthe peripheral area of the Hyderabad urban agglomeration.

Sri O.Manohar Reddy, the learned counsel for respondents 1 and 2in W.P.No.15441 of 2001, submits that on receipt of the notice, the secondpetitioner appeared before the second respondent and thereby, thenecessity to bring the legal representatives of the deceased declarant onrecord, is obviated. He submits that in the earlier round of litigation, thefirst respondent remanded the matter, on a limited question and it is not atall open to the petitioners to urge any aspects, which assumed finality.

Sri Shiv Kumar, the learned counsel for the third respondent inW.P.No.15441 of 2001, submits that the land has already vested in theGovernment and thereafter, transferred to the HUDA and that thepetitioners are not entitled to challenge the proceedings, which haveassumed finality.

Sri N.V.Sumanth, the learned counsel for the petitioners inW.P.No.17954 of 2002 submits that his clients have emerged as thehighest bidders and it is not at all open to the HUDA to cancel theallotments on whimsical grounds. He contends that even if any dispute arises vis-à-vis the land, it is for the HUDA to resolve the same or at leastto allot alternative plots to the petitioners.

The learned Standing Counsel for the HUDA, on the other hand,submits that the necessity to cancel the allotment arose on account of thedisputes in relation to the land in question. Learned counsel contends thatin all fairness to the petitioners, the amount was refunded, together withaccrued interest.

In respect of Ac.1.37 guntas of land in survey Nos.65 and 66 ofUppal Bagath of Uppal Mandal, Ranga Reddy District, the original owner,Sri Ramaswamy, filed declaration under Section 6 of the Act. Through anorder, dated 24.01.1983, the second respondent determined that thedeclarant held an extent of 6840.76 square meters in excess of ceilinglimits. An appeal was preferred before the first respondent and during thependency of the appeal, Ramaswamy died. Not being aware of thisdevelopment, the first respondent passed an order, dated 31.07.1993 in theappeal, and remanded the matter to the second respondent for freshconsideration and disposal with specific reference to the master plan, whichwas extended to Uppal Bagath on 29.09.1980.

The second respondent issued notice of hearing to Ramaswamy. Since he was no more, one of his sons, the second petitioner inW.P.No.15441 of 2001, informed the second respondent that Ramaswamydied in the year 1991. The second respondent did not take any steps tobring the legal representatives on record, except that he substituted nameof Ramaswamy with that of the second petitioner, i.e. Bollaboni Amarnath.He, accordingly, proceeded to pass an order, afresh, under Section 8 (4) ofthe Act on 25.02.1994. The relevant paragraph in the said order reads asunder:

“In order to afford an opportunity of being heard thecase was posted for personal hearing on 15.01.1994. SriB.Amarnath, son of the declarant was present and informedthat the declarant expired in the year 1991. Therefore, hisname has been brought on record as L.R.”.

The question as to whether it is proper and legal, for an authority topass an order, determining the holdings under the Andhra Pradesh LandReforms (Ceiling on Agricultural Holdings) Act, 1973, without bringing thelegal representatives of the deceased-declarant on record, was dealt withby the Hon’ble Supreme Court in EBRAHIM ABOOBAKER v TEK CHANDDOLWANI[[1]], which arose under the Evacuee Property Act. It was heldthat an order passed after the death of an evacuee without bringing hislegal representatives on record is a nullity.

It may be true that the second petitioner in W.P.No.15441 of 2001appeared before the second respondent. That was, however, only for thelimited purpose of informing the second respondent about the death ofRamaswamy. Neither the second respondent has taken any steps to bringthe legal representatives on record nor did he require the second petitionerand others to come on record. The legal representatives of a deceasedperson derive their own respective rights vis-à-vis the estate of thedeceased. Such rights cannot be trampled on the basis of imperfect andhalf-hearted steps. Therefore, the order, dated 25.02.1994, passed by thesecond respondent is a nullity in law.

It is possible to argue and, in fact, Sri O.Manohar Reddy, argued thatif the death of Ramaswamy was to result in abatement of the proceedings,the first consequence was that the appeal preferred by Ramaswamy abatedand thereby, the original order passed by the second respondent, dated24.01.1983, has become final.

There would have been some possibility to accept this contention,had it been a case where the possession of the land was taken or othernotifications were issued on the strength of the order, dated 24.01.1983. Itis not in dispute that the various steps under Sections 9 and 10 of the Actwere taken on the basis of the order, dated 25.02.1994. Any steps taken onthe basis of the order, which is a nullity, do not give rise to any legalconsequences. It is not competent for the second respondent, to resume the proceedings from any stage, in view of the fact that the Act has sincebeen repealed.

Even on merits, the view taken by the second respondent is notcorrect. The land held by late Ramaswamy was not covered by any masterplan, as on the date on which the Act came into force. Subsequently, amaster plan was published on 29.09.1990 in which Uppal Bagath was alsoincluded. The holding of the declarant was to be decided in accordancewith the law and facts, that prevailed, as on the date of filing thedeclaration. As regards subsequent master plan, the second respondentwas under obligation to require the declarant to file a fresh declaration.Further, the use as regards the land in survey Nos.65 and 66 wasmentioned as agricultural in the subsequent master plan. As long as theland is put to that use, it cannot be treated as vacant, much less, excessland. Even according to the second respondent, the land was being used togrow para grass. He, however, took the view that such an activity is not akin to agriculture. Firstly, the Act does not define agriculture. Secondly,growing of grass is nothing but an agricultural activity. Therefore, the ordersuffers from factual inaccuracies also.

The contention of the petitioners in W.P.No.15441 of 2001 that theyare entitled for the benefit under G.O.Ms.No.733, dated 31.10.1988, wasdenied only on the ground that the land was included in the master plansubsequently. The appellate Court refused to entertain the appeal withouteven verifying as to whether the petitioners were parties to the orderpassed under Section 8(4) of the Act, and when it was served upon thepetitioners. He did not even take note of the fact that the petitioners werenot at all parties to the proceedings.

The result would be that the order, dated 25.01.1994, passed underSection 8 (4) of the Act cannot be sustained in law or on facts. Thepossibility of resuming the proceedings from that stage does not exist,since the Act itself was repealed. The possession of land, even if taken onthe basis of a void order cannot be recognized in law.

Therefore, W.P.No.15441 of 2001 is allowed and the proceedingschallenged therein are set aside.

The very basis for passing the order impugned in W.P.No.17954 of2002 is filing of W.P.No.15441 of 2001. Except that, no other ground wasmentioned. Since W.P.No.15441 of 2001 is being allowed, no relief can begranted to the petitioners in W.P.No.17954 of 2002 and it is accordinglydismissed.

There shall be no order as to costs.

_____________________

L.NARASIMHA REDDY,J

Dt:30.12.2008Note: L.R. copy to be marked.kdl [1]AIR 1953 SC 298