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Judgment
In this writ petition, the petitioners prays for the issuance of a writ of certiorari to call for the records from the 3rd respondent in CC Nos.F1/ 842/76 along with F2/862/96 and F2/863/96 and to quash the impugned Memo No.F2/ 862, 863/26/96, dated 28-3-1998 and also for a consequential direction to the 3rd respondent to give clearance to the petitioners in respect of the retainable area in plot Nos.58 and 59 in S. No.357/1 and 357/3 of Malkajgiri Village, Ranga Reddy District and for a further direction to the 4th respondent to receive and register the sale-deeds presented for registration in respect of the above said plots.
Brief history of the case which lead to the filing of the writ petition is as under : The petitioners herein filed their declarations as required under the provisions of the Urban Land (Ceiling & Regulation) Act, 1976, (for short, "the Act") declaring that an extent of 2780 square metres of urban land was held by each one of them. The competent authority i.e., the 3rd respondent, after a thorough enquiry into the matter in File Nos.F2/842/76 and F2/ 843/76, determined that each declarant holds an extent of 1780 square metres of vacant land in excess of the ceiling limit and thus retaining an extent of 1,000 square metres of vacant land with each of the declarants and passed orders accordingly on 31-3-1980. The matter was subsequently carried in appeal by the declarants and the appellate authority by order dated 3-8-1981 allowed the declarants to retain plot Nos.58 and 59 accepting the plea of the declarants that the said plots being contiguous plots, they are advantageous for their use and occupation. The said order became final. Thereafter, the competent authority issued a gazette publication on 23-6-1986, as required u/s 10(1) of the Act, in respect of the vacant land which is held to be in excess of the ceiling limit stating that the said lands are to be acquired under the Act by the State Government arid invited objections from all persons interested in the said lands, which were to be filed on or before 12-7-1986. But, no body seemed to have filed any objections in respect of the said vacant lands held in excess of the ceiling limit. Under the provisions of subsection (3) of Section 10, at any time after the publication of notification u/s 10(1), the competent authority may declare by issuing another gazette notification that with effect from the date, which shall be specified in such declaration, the excess vacant land shall be deemed to have been acquired by the State Government under the provisions of the Act. Thus, after the issuance of notification u/s 10(3), the land becomes vested absolutely in the State Government free from all encumbrances. But, in this case, no notification u/s 10(3) was issued by the competent authority. Thereafter, presuming that the land ceiling proceedings came to an end, the petitioners issued a notice as required u/s 26 of the Act seeking to give them clearance to dispose of the vacant land within the ceiling limit i.e., retainable land. But, the competent authority passed the impugned order refusing to give clearance to the petitioners. The impugned memo reads thus :
"With reference to the application 3rd cited, it is to inform that the request for reconsidering the Notice filed u/s 26 of the Act cannot be considered in retainable area in plot No.58 and 59 in Sy. No.357/1 and 357/3 of Malkajgiri as the land determined as surplus is covered by the structures."
Questioning the said impugned order, it is contended by the learned Counsel for the petitioners that when once notification as required u/s 10(1) is published in the official Gazette and when, admittedly, no objections have been received within the time stipulated by the competent authority in regard to the excess vacant land in this case, under the provisions of sub-section (3) of Section, the land shall be deemed to have been acquired by the State Government and the Government becomes the absolute owner of the said excess land. Therefore, the Government cannot have any right to say that the surplus land is covered by structures and cannot refuse permission to the petitioners u/s 26 of the Act on that ground. In other words, it is the contention of the learned Counsel that when once notification u/s 10(1) is issued, the excess land automatically becomes vested in the Government on the expiry of the date which is fixed by the competent authority calling for objections from general public and that therefore with effect from such date, the petitioners does not have any right, title or claim over the said excess land and that issuance of notification u/s 10(3) in such a case is a mere formality. It is, therefore, contended that when once the excess land became vested in the State Government by virtue of the provisions of Section 10(3), the competent authority has no option except to give clearance to the petitioners u/s 26 of the Act.
But, on the perusal of the provisions of the Act, I am not inclined to accept the contention advanced by the learned Counsel for the petitioners. At the very outset itself, I may add that the authorities are perfectly justified in refusing clearance to the petitioners because it is the petitioners who are responsible for the present state of affair. I may now refer to the relevant provisions of the Act.
The Act was introduced with a view to prevent concentration of urban land in the hands of a few people and with a view to bring about an equitable distribution of land in urban agglomerations to subserve the common good. Therefore, under the Act, the Legislature intended to impose ceiling on the possession of vacant lands in urban agglomerations and to acquire the excess vacant lands by the Government. Section 3, in furtherance of the said object of the Act, stipulates that no person shall hold any vacant land in excess of the ceiling limit fixed under the Act. Section 4 fixed the ceiling limit in respect of various types of lands in India. As per Schedule-I, which is appended to the Act, the land owners in Hyderabad Urban agglomeration are allowed to retain each 1,000 square metres of land and the balance of the land which is held to be in excess of the ceiling limit will vest in the Government under the provisions of the Act. Section 6 mandates that every person holding vacant land in excess of the ceiling limit must file a declaration before the competent authority showing the total extent of land held by him. Upon such filing, the competent authority will conduct an enquiry as stipulated in Section 8, prepare a draft statement in respect of the said land giving therein full particulars as to the title of the land and serve the same on the person concerned together with a notice stating that any objection to the draft statement shall be preferred within thirty days of the service thereof. Upon receipt of objections, if any, the competent authority shall duly consider the same and pass appropriate orders thereon. Thereafter, the competent authority shall make necessary alterations (as required u/s 9) in the draft statement in accordance with the orders passed on the objections aforesaid and shall determine the vacant land held by the declarant in excess of the ceiling limit and shall cause a copy of such statement to be served on the declarant. u/s 10, power is vested in the competent authority to acquire the vacant land in excess of the ceiling limit. Since the provisions of Section 10 are very much relevant for the purpose of disposal of this writ petition, sub-sections (1) to (3) are extracted hereunder :
"10. Acquisition of vacant land in excess of ceiling limit : (1) As soon as may be after the service of the statement u/s 9 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and stating that -
(i) such vacant land is to be acquired by the concerned State Government; and
(ii) the claims of all persons interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land,
to be published for the information of the general public in the official Gazette of the State concerned and in such other manner as may be prescribed.
(2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under sub-section (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit.
(3) At any time after the publication of the notification under sub-section (1), the competent authority may, by notification published in the official Gazette of the State concerned, declare that the excess vacant land referred to in the notification published under subsection (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified.
Section 11 deals with payment of amount to the persons whose vacant excess land is acquired under the provisions of Section 10(3) of the Act. Section 12 deals with Constitution of appellate Tribunal. Section 13 enables filing of second appeal in High Court against the orders of the appellate Tribunal u/s 12. Sections 14 to 25 are not much relevant to the facts of the case. Under sub-section (I) of Section 26, it is stipulated that no person holding vacant land within the ceiling limit shall transfer such land to any other person except after giving notice in writing of the intended transfer to the competent authority. Where the notice given under sub-section (1) is for the transfer of the land by way of sale, then under the provisions of sub-section (2), the competent authority shall have the first option to purchase such land on behalf of the State Government and if such option is not exercised within the period of sixty days from the date of receipt of notice, it shall be presumed that the competent authority has no intention to purchase such land and thereafter it shall be lawful for such person to transfer the land to whomsoever he may like. The above are some salient provisions of the Act.
In this case, the controversy revolves round the provisions of Section 10. According to the petitioners, the land which is determined to be in excess of the ceiling limit becomes automatically vested in the Government under the provisions of Section 10(3) at any time after the publication of notification u/s 10(1). But, on a reading of the provisions of subsection (3), I am of the view that the contention is not correct. As a matter of fact, by virtue of issuing notification u/s 10(1), acquisition proceedings would only commence. The said notification is only in the nature of information to the general public about the intention of the Government to acquire the excess land of the declarant under the provisions of the Act and further an invitation of objections from persons interested in the said excess land for such acquisition. Thus, by merely issuing notification u/s 10(1), it does not mean that the land becomes vested in the Government. A reading of the further provisions contained in Section 10 clearly goes to show that the competent authority is bound to wait for some more time for vesting of the land with the Government. As part of the procedure laid down in sub-section (2) of Section 10, the competent authority is bound to determine the nature and extent of claims, if any, received pursuant to 10(1) notification and pass appropriate orders thereon. If no objections are received, the competent authority can take steps for issuing notification u/s 10(3). It must be noted here itself that no time limit is given in sub-section (2) of Section 10 for determination of the claims, if any, received by the competent authority. Therefore, in the absence of any time limit having been fixed by the statute for completion of such determination, it can safely be presumed that such determination can be completed within a reasonable time. Now comes the important provision i.e., sub-section (3) of Section 10. This provision stipulates that at any time after the publication of 10(1) notification, the competent authority may, by notification published in official gazette, declare that the excess vacant land referred to in 10(1) notification shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government; and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified. A plain reading of this provision makes it abundantly clear that issuance of notification u/s 10(3) is compulsory and the competent authority has no other option in this regard. Because, it is only after the issuance of 10(3) notification that the land shall be deemed to have been acquired by the State Government, Therefore, unless and until such a notification is issued by the competent authority, it shall not be deemed that the excess land of the declarant became automatically vested in the Government. Upon a careful reading of the language employed in the provision, I am of the view that even though no option is given to the competent authority in regard to the issuance of 10(3) notification, but insofar as the time to be taken for issuance of such notification is concerned, the statute has given option to the competent authority. That means, the competent authority can wait till the determination of the claims, if any, filed by others pursuant to the 10(1) notification and then only issue notification u/s 10(3). Since no time limit is given u/s 10(2) for determination of such claims, the statute left it open for the competent authority to issue 10(3) notification ''at any time'' after the issuance of 10(1) notification. That is the reason why the words ''at any time'' and ''may'' have been used in the opening sentence of the provision. It is to be made clear mat the word ''may'' used in the opening sentence relates to the word ''at any time''. Therefore, by the usage of the word ''may'' in the opening sentence, it shall not be presumed that the competent authority may or may not issue notification u/s 10(3) and that 10(3) notification is a mere formality. In my opinion, such a presumption is absolutely incorrect. Thus, the contention of the learned Counsel that the issuance of notification u/s 10(3), after the publication of 10(1) notification, is only a mere formality or that when no notification u/s 10(3) is issued within a reasonable time after the publication of 10(1) notification it shall be deemed that the land becomes automatically vested in the Government by virtue of the notification u/s 10(1), is ill-founded. As a matter of fact, when once proceedings under the Act have been initiated and when once the competent authority determines excess land and issues 10(1) notification, the proceedings will come to an end only when 10(3) notification is issued and the surplus land becomes vested in the Government with effect from the date which shall be specified by the competent authority in such notification. Then only, question of issuing notice u/s 26 to the competent authority in regard to the transfer of the land within the ceiling limit, would arise. For the above reasons, the contention of learned Counsel is rejected.
In the case on hand, the present controversy had crept in due to the non-issuance of 10(3) notification by competent authority even after the issuance of 10(1) notification. But the reason is not forthcoming from the averments made in the affidavit filed in support of the writ petition. However, the original records produced by the learned Government Pleader revealed the truth. It is in the records that the petitioners opted for retaining plot Nos.58 and 59 being the land within the ceiling limit. Therefore, they are bound to deliver vacant possession of the remaining land, which is determined to be the surplus land. But, the petitioners clandestinely sold away the said surplus land to some third parties even prior to the notification u/s 10(1) could be issued, by entering into an agreement of sale. The record reveals that at the first instance, the competent authority passed orders way back in the year 1980 i.e., on 31-3-1980 itself determining the excess land of the petitioners and permitting them to retain the remaining land which is within the ceiling limit. Immediately thereafter, the petitioners preferred appeal and obtained an order from the appellate authority on 3-8-1981, whereunder the petitioners were permitted to retain plot Nos.58 and 59 instead of the land which was permitted to be retained by the competent authority in his original order dated 31-3-1980. The said appellate order has also become final. Thereafter, under the guise of a Governmental Order (i.e., G.O. Ms. No.136 dated 28-1-1981), the petitioners seemed to have entered into an agreement of sale with a Co-operative Housing Society by name Sivaramakrishna Co-operative Housing Society in regard to the surplus land. The petitioners did not reveal the date of the agreement in their affidavit. It was, however, stated that thereafter they applied for exemption u/s 20(1)(a) of the Act but the petitioners did not say whether such exemption is granted or not. If exemption is granted to them, the situation would have been different. Thus, the fact remains that the petitioners have sold away the surplus land to some third parties without obtaining any exemption u/s 20(1)(a) of the Act. While matters stood thus, after lapse of some time and not knowing the mischief committed in this case, the competent authority issued gazette notification u/s 10(1) on 23-6-1986 declaring that the surplus land of the petitioners would be acquired by the Government under the provisions of the Act and invited claims from all persons interested. No claims were received by the competent authority. However, when the authorities were about to proceed further in the matter as required under the provisions of Section 10(3), it was come to light that there exists certain structures in the surplus land. Since under the provisions of the Act the petitioners are bound to deliver vacant possession of the surplus land, the authorities abstained from issuing notification u/s 10(3) and therefore, the land ceiling proceedings in this case have not been concluded for the purpose of issuing clearance u/s 26 of the Act. From the above, it is clear that the petitioners having obtained orders from the appellate authority to retain plot Nos.58 and 59 towards the retainable land, clandestinely and with a view to defeat the very purpose of the Act sold away the remaining surplus land to third parties instead of delivering vacant possession of the same to the Government. Now, with a view to sell away the retainable area also i.e., plot Nos.58 and 59, they cleverly applied for clearance u/s 26, which was refused by the competent authority rightly. I am of the view that the petitioners, who approached this Court with unclean hands, are not entitled to seek any relief as there are no equities in their claim. The decision cited by the learned Counsel in George Jacob Kuruvilla and Others Vs. Special Officer and Competent Authority, Urban Land Ceiling and Others, is not all applicable to the facts of the case on hand. There are no merits in the writ petition.
In the result, the writ petition is dismissed. No costs.