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Judgment
The two petitioners purchased an extent of 5,705.88 square metres of land in RS No.341/2B in the year, 1974 by a registered sale deed dated 2-1-1974 after obtaining an exemption u/s 7(2) of the Andhra Pradesh vacant Lands in Urban Areas (Prohibition of Alienation) Act 12 of 1972 vide G.O.Ms. No.1049 dated 24-7-1973. It appears, thereafter both the petitioners constituted a partnership firm by the name and style of M/s. Devi Dall & Flour Mill, Vijayawada, constructed a mill alongwith other two structures and according to the petitioners, the said constructions were made prior to the appointed day fixed under the Urban Land Ceilings (Regulation) Act, 1976. The appointed day being 28-1-1976. The petitioners averred in the affidavit filed in support of the writ petition that the plans for the said buildings was sanctioned on 10-2-1974 and they were assessed to tax from the year 1974-75. Apart from the said land, both the petitioners owned other extents of lands in Vijayawada which, according to the petitioners were occupied by the constructed structures by the appointed day. Both the petitioners filed declarations u/s 6(1) of the Urban Land Ceiling and Regulation Act, 1976. A draft statement as required u/s 8(1) of the Act was prepared and served on the petitioners treating the entire land as vacant land though the same is covered by the buildings. Therefore, the petitioners approached the Government of Andhra Pradesh seeking an exemption u/s 20(1)(a) of the Act. The petitioners allege that though no such exemption was required as the land is occupied by the buildings, and therefore not a vacant land within the meaning of the expression ''vacant land'' as defined under the Urban Land Ceiling Act, 1976. The petitioners further asserted in the affidavit that in their objections filed u/s 8(3) of the Act in response to the Section 8(1) draft statement brought this fact to the notice of the second respondent.
The Government of Andhra Pradesh vide G.O.Ms. No.752 Revenue (U.C.1II) Department, dated 17-10-1978 exempted an extent of 5,705.88 square metres in RSNo.341/2B of Gunadala village, Vijayawada Urban from the provisions of the Act. In view of the exemption granted by the Government, the second respondent issued proceedings holding that both the petitioners to be holding vacant land within the ceiling limit prescribed under the Act. The said orders have become final. No appeals were preferred by either of the petitioners under any one of the provisions of the Act.
However, in view of the judgment of the Supreme Court reported in Smt. Meera Gupta Vs. State of West Bengal and others, , the Government of Andhra Pradesh issued a memorandum dated 15-2-1994 which read as follows:
"The Supreme Court of India delivered judgment on 22-10-1991 in Civil Appeal No.4235 of 1991 (Mrs. Meera Gupta v. State of West Bengal and others) regarding interpretation of Section 4(9) of the Urban Land (Ceiling and Regulation) Act, 1976. According to this judgment the land occupied by a building, having a dwelling unit therein and also the land appurtenant thereto, should be treated as vacant land only, for the purposes of calculation of excess vacant land, if the construction of such building as a dwelling unit therein, the construction of which started prior to the appointed day with the approval of appropriate authority, is not to be treated as a vacant land for the purposes of calculation of total excess vacant land.
(2) In the letter second cited, the Government of India, Ministry of Urban Development, issued a clarification, accordingly.
(3) In the Government Memo 3rd cited, the Commissioner of Land Reforms and Urban Land Ceilings has been requested to keep the above clarification in view at the time of disposal of appeals.
(4) The Government have examined the point whether the judgment in CA No.4235 of 1991 (Mrs. Meera Gupta v. West Bengal and others) can be made applicable in all the cases where possession of the land has not been taken over by issuing a notice u/s 10(6) of the Act by invoking the powers u/s 34 of the Urban Land (Ceiling and Regulation) Act, 1976 either suo-moto or on a representation.
(5) The Government are advised that Article 300-A of the Constitution of India provides that no person shall be deprived of his/her property except in accordance with law. In view of the Judgment of the Supreme Court oflndia, which is the law of the land, the notification issued by the Competent Authority under sub-section (1) of Section 10 of the Urban Land (Ceiling and Regulation) Act, 1976 is not legal and valid. The consequential notification issued under sub-section (3) of Section 10 of the Act is also not legal and valid. Therefore, there is no vesting of the alleged excess vacant land in the Government upon the publication of the declaration u/s 10(3) of the Act. Consequently no notice in writing can be issued u/s 10(5) of the Act calling upon the person concerned to surrender or deliver possession of the alleged excess vacant land, that vests, to the Government and therefore the question of taking possession of the land also would not arise.
(6) In all such cases the Government have decided to exercise its powers u/s 34 of the Urban Land Ceiling Act to give effect to the judgment of Supreme Court and desist from taking possession of excess vacant land from the concerned person by setting aside the final orders issued u/s 8(4) by the Competent Authorities.
(7) All the Special Officers and Competent Authorities Urban Land Ceilings and the Commissioner of Land Reforms and Urban Land Ceilings are requested to bear in mind the above points in respect of the pending cases and also while processing the case by applying the Judgment of the Supreme Court of India in Meera Gupta''s case."
In view of the said order and the judgment of the Supreme Court. The petitioners herein filed application before the Government of Andhra Pradesh u/s 34 of the Act, praying that the earlier orders passed by the second respondent be revised in the light of the judgment of the Supreme Court referred to above and the Memorandum of the Government of Andhra Pradesh. However, the application of the first petitioner - Menta Masthan Rao was rejected by the Government by its proceedings dated 24-3-1998. Nothing is stated in the writ petition or in the counter-affidavit as to what happened to the application made by the second petitioner-Chakka Kesavulu.
The second respondent filed a counter-affidavit.
The learned Counsel for the petitioner Sri C. V. Motion Reddy submitted that in view of the definition of the expression ''vacant land'' defined u/s 2(b) of the Act, the lands in issue were not vacant lands at all and therefore there was no necessity for the petitioner to have obtained exemption u/s 20. However, under misapprehension of the legal position, the petitioners by way of an abundant caution sought the exemption from the Government and the same was granted. Further, he submitted that the fact that the buildings were in existence on the lands in dispute was brought to the notice of the second petitioner in their reply u/s 8(3) of the Act. Inspite of the said information being available before the second respondent, the second respondent could not have come to the conclusion that the land in issue is to be treated as vacant land in view of the exemption orders passed by the Government referred to above. The learned Counsel submitted that the enactment being an exproprietory enactment in nature, the respondents are under a constitutional obligation to enforce the provisions of the law after strictly complying with the requirements of the law which has the effect of depriving the citizen all his constitutional right over the property. The second respondent insofar as he decided that the land in issue is vacant land, he did not apply the provisions of the Act to the facts in issue and came to the said conclusion without any basis.
The net result is that though the petitioners are entitled to retain the possession of the property in view of the exemption orders granted by the Government, their right to deal with the property, is curtailed by the various conditions imposed by the Government while granting the exemption. In fact, the exemption order reads as follows:
"Revenue (V.C.III) Department
G.O.Ms. No.1752 Dated: 17-10-1978 (1) From M/s. Devi Dhall & Flour Mills, application dated nil.
(2) From the Director of Industries case No.449/ULC/76, dated: 7-7-197S.
(3) From the Commissioner, Urban Land Ceilings, Hyderabad, L.Dis. NO.UC3/ 2952/78, dated: 10-9-1978.
Order:
Whereas M/s. Devi Dhall & Flour Mills held vacant land measuring 5,705.88 sq.mts. in RS No.341/2B of Gunadala village in Vijayawada Urban Agglomeration which is in excess of the ceiling limit prescribed in Urban Land (Ceiling and Regulation) Act, 1976 (Central Act 33 of 1976).
And whereas the entire extent of land measuring 5,705.88 sq.Mts., is bounded to be retained to run the Industry for processing of Dhalls.
And whereas the Government consider it expedient in the public interest to exempt the land mentioned in para two above from the provisions of Chapter-III of the said Act.
Now thereafter in exercise of the powers conferred by clause (1) of sub-section (1) of Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 (Central Act 33 of 1976), the Governor of Andhra Pradesh hereby exempts:
The land measuring 5,705.88 sq.mts in RS No.341/2B of Gunadala village in Vijayawada Urban Agglomeration mentioned in para 2 above subject to the condition that the said land should be utilized for the purpose of the said proposed industry and subject also to the following conditions:
(a) that it should not be leased out or sold without the Permission of the Government.
(b) that the land should be utilized for the purpose for which it is retained failing which the exemption shall stand cancelled and the excess land will be subject to the provisions of the Urban Land (Ceiling and Regulation) Act, 1976.
(c) that the land may be mortgaged to any Bank as defined in clause (iii) of subsection (1) of Section 19 including Andhra Pradesh State Financial Corporation for the purpose of raising finance for the industry.
(By Order and in the name of the Governor of Andhra Pradesh)
E. V. Ram Reddy Secretary to Government."
In view of the said conditions imposed in the exemption order, the petitioners are under an external obligation that the land should not be leased out or sold without the permission of the Government and that the land shall not be utilised for any other purposes except for the purpose for which the exemption was granted.
It is the submission of the learned Counsel for the petitioners that if the lands are not vacant lands witliin the meaning of the Act, on a true and proper application of the provisions of the Act the exemption order though obtained by the petitioners-would be a superfluous order, in which case the petitioners may not be bound by the various conditions imposed under the exemption order as such conditions would tantamount to interference with the constitutional right of the petitioners and deprive them of the right of property otherwise than in accordance with law.
To examine the submissions made by the learned Counsel for the petitioner Mr. Mohan Reddy, the scheme of the Urban Ceiling Act needs a perusal.
Under the Scheme of the said Act, the ceiling is imposed on the holding of vacant land in the Urban Agglomeration specified in the Act and the area of ceiling varied with specified categories in the Urban Agglomeration and persons who were holding vacant land in excess of the ceiling limit so prescribed under the Act were obligated, u/s 6 of the Act to file a statement before the competent authority in the prescribed form and after such statements are filed, the competent authority is obligated to make an enquiry u/s 8 of the Act and prepare a draft statement in respect of each person who filed a statement u/s 6. Section 8(2) requires the draft statements prepared under sub-section (1) shall contain certain particulars. Section 8(2) reads as follows:
"(2) Every statement prepared under sub-section (1) shall contain the following particulars, namely:
(i) the name and address of the person;
(ii) the particulars of vacant land and of any other land on which there is a building, whether or not with a dwelling unit therein, held by such person;
(iii) the particulars of the vacant lands, which such person desires to retain within the ceiling limit;
(iv) the particulars of the right, title or interest of the person in the vacant land; and
(v) such other particulars as may be prescribed.
Further Section 8(3) requires that the draft statements so prepared shall be served on the persons who made the statements u/s 6 and call upon such person to submit his objections to the draft statements, if any, if such objections are filed, the competent authority is obligated u/s 8(4) to consider such objections and after giving the objector a reasonable opportunity of being heard, pass such orders as the competent authority deems fit. Thereafter u/s 9, the competent . authority, shall make a final determination of the excess vacant land held by the declarant in the light of the orders passed u/s 8(4) referred to earlier.
The land found to be in excess of the ceiling limit in any given case, is to be acquired in accordance with the procedure stipulated u/s 10 of the Act. Section 11 provides for the compensation to such cases. An enquiry into the other provisions may not be relevant for the purpose of the present case.
It can be seen from the language of Sections 4 - 9 that what is sought to be dealt under those provisions is the vacant land held by any person. The expression "vacant land" is defined u/s 2(q) of the Act which reads as follows:
(q) "Vacant land" means land not being land mainly used for purpose of agriculture, in an urban agglomeration, but does not include-
(i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated;
(ii) in an area where there are building regulations, the land occupied by any building which has been constructed before, or is being constructed, on the appointed day with approval of the appropriate authority and the land appurtenant to such building; and
(iii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and the land appurtenant to such building:
Provided that where any person ordinarily keep his cattle, other than for the purpose of dairy farming or for the purpose of breeding of live-stock, on any land situated in a village within an urban agglomeration, (described as a "village" in the revenue records), then, so much extent of the land as has been ordinarily used for the keeping of such cattle immediately before the appointed day shall not be deemed to be vacant land for the purpose of this clause."
It can be seen from the above, for the purpose of the enactment, agricultural lands, within the urban agglomeration are excluded, from the purview of the expression "vacant land". Further the lands, on which construction of building is not permitted by the law applicable to the area is also excluded from the purview of the definition. Further clause (2) of Section 2(q) categorically declares that in an area where there are building regulations, the land which is occupied by any building which has been constructed before, or is being constructed, on the appointed day, with approval of the appropriate authority in that regard is not treated as vacant land, along with the land appurtenant to such building shall not be treated as vacant land. The expression "land appurtenant in relation to1 any building" is defined u/s 2(q) of the Act. Section 2(q) reads as follows:
"(g) "land appurtenant" in relation to any building means
(i) in an area where there are building regulations, the minimum extent of land required for such regulations to be kept as open space for the enjoyment of such building, which in no case shall exceed five hundred square metres; or
(ii) in an area where there are no building regulations, an extent of five hundred square metres contiguous to the land occupied by such building, and includes, in the case of any building constructed before the appointed day with a dwelling unit therein, an additional extent not exceeding five hundred square metres of land, if any, contiguous to the minimum extent referred to sub-clause (i) or the extent referred to in sub-clause (ii), as the case may be;
From expression "vacant land". The Parliament excluded various categories of lands. It is the submission of the petitioners that the lands in issue were occupied by buildings which were constructed prior to the appointed day and therefore the said lands need not to have been declared by the petitioners u/s 6 of the Act and equally the second respondent is under an obligation to verify whether the declaration made by the petitioners was in accordance with law or not.
However, it is a notorious fact that in many cases, immediately after the commencement of the Act people filed declarations without exactly knowing the implications of the Act, irrespective of the fact whether they are under legal obligation to make such a declaration or not and in some cases by way of abundant caution as in the present case. People approach the Government seeking exemption u/s 20 of the Act. The situation remained unclear for a long period and the Supreme Court declared the true legal position in Meera Gupta''s case referred to above, (supra). After the said judgment, the Government of Andhra Pradesh issued a Memorandum NHo.74489/U.C.III/93-94 dated 15-2-1994, referred to earlier in this judgment. This Memorandum recognises by necessary implication that, such uncalled-for declarations u/s 6 were made and accepted, in the past and sought only to remedy the wrongs occasioned by such process which was not in accordance with the law. The Government took a decision to exercise its power u/s 34 of the Urban Land Ceiling Act, to desist from taking possession of land which was declared excess by following such illegal procedure -from the persons concerned if necessary by setting aside the final orders issued u/s 8(4) of the Act by the competent authority.
In view of the above legal position and the decision taken by the Government, when the petitioners made an application requesting the Government to exercise its power u/s 34 of the Act as a decided in principle, under the above mentioned Memorandum, the Government is under obligation to exercise the power in accordance with the law.
In the present case pursuant to the application made by the petitioner, the Government, it appears, in fact ordered for an enquiry into the matter. The pleadings in the counter-affidavit filed by the second respondent in this regard are as follows:
"The Government have forwarded the two revision Petitions u/s 34 of the Act for enquiring and report in Government Memo Nos.76740/ULI(1)/94-1 and 76739/ ULI/(l)/94-lD dated 14-11-1994. After due enquiry into the petitions separate detailed reports were submitted to the Government through Commissioner of Land Reforms in this office, vide Rc.B2-1294/76 and 1295/76 dated 2-5-1995 recommending for consideration basing on Meera Gupta''s case giving due weightage for the appurtenant and additional appurtenant land for each dwelling unit, as the constructions were made prior to the Act. The Government tn turn has also given a personal hearing to the declarants on 7-11-1997 and they have also filed their grievances to the Government in the matter. Finally the Government in their Memo.No.76740/ULI/ (t)/94-5 dated 24-3-1998 passed orders rejecting the revision petitions filed by the declarants after hearing the arguments by the Advocate on behalf of them found that no reasons for revising 8(4) orders ofthe Special Officer and Competent Authority, Urban Land Ceilings, Vijayawada. Now both the declarants have filed Writ Petition No.1712 of 1998 before this Hon''ble Court against the said rejection orders passed by the Government."
Further in para 4 of the counter-affidavit, the second respondent admits the existence of structures in the land in issue prior to the date of the implementation of the Act. However, the claim of the petitioners is sought to be resisted and the impugned order is sought to be justified on the ground that the petitioners while making their declaration u/s 6 never claimed the benefit on the ground that the lands are covered by the buildings.
In my view, the impugned order suffers from two defects. Firstly, the order is absolutely cryptic; it does not assign any reason for rejecting the application of the petitioners. The said order is purported to be an order u/s 34 of the Act and in my view, the power u/s 34 is a quasi-judicial power and an authority in exercise of quasi-judicial power is under legal obligation to assign reasons for any decision taken by it in exercise of such powers. Secondly, in view of the categoric admission made in the counter-affidavit filed by the second respondent that the buildings existed, on the lands in issue, prior to the implementation of the Act, and in view of the above discussed legal position and the Memorandum of the Government dated 15-2-1994, I do not understand how the Government could have legally rejected the application of the petitioners.
However, the learned Government Pleader relying on the records" of the Government, made a submission that there was some difference of opinion about the actual area occupied by buildings on the lands in dispute, prior to the appointed day. The relevant records are produced before me and there appears to be some difference of opinion in this regard.
In the circumstances, I am of the opinion that the impugned order has to be set aside for the reasons mentioned above and the first respondent is directed to consider the application of the petitioners afresh; in the light of the judgment after giving a reasonable opportunity to the petitioner. The said exercise shall be completed within a period of eight weeks from the date of the receipt of the copy of this order.