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Judgment
This writ petition is filed by the Government on 5-8-1993 challenging the order of the 1st respondent-Commissioner of Land Reforms and Urban Land Ceiling dated 27-2-1987.
The facts in brief stated in the affidavit filed in support of the writ petition are that the respondents 3 to 7 have filed declaration before the Special Officer and Competent Authority, Urban Land Ceilings, Visakhapatnam u/s 6 of the Urban Land Ceiling Act, 1976 declaring that Ac.6.20 of land in S.No.6/lA of Thadichetlapalam, Dondaparthy village in Visakhapatnam urban agglomeration which is under the occupation of the Defence Department since 1939 under a lease, has to be deleted from computation of ceiling limit. The Special Officer and Competent Authority, Urban Land Ceilings, Visakhapatnam has included the said extent of land in the holding of the respondents and directed them to surrender the said land treating it as surplus land against which the respondents 3 to 7 have filed an appeal before the appellate Authority who is the 1st respondent u/s 33 of the Urban Land (Ceiling and Regulation) Act, 1976. The 1st respondent passed the, impugned order holding that the lands which arc under lease to the Defence Authorities are governed by subsection (1)(ii) of Section 19 of the Urban Land (Ceiling and Regulation) Act, 1976. Holding as above he has allowed the appeals and excluded the said land from the holding of the respondents. Aggrieved by the said order the present writ petition is filed by the Government.
The main argument of learned Counsel for the petitioner is that Section 19(1)(ii) of the Act applies to any vacant laud held by any military, naval or air force institution. The expression ''to hold'' has been defined u/s 2(1) of the Act according to which "to hold" with its grammatical variations, in relation to any vacant land, means - (i) to own such land; or (ii) to possess such land as owner or as tenant or as mortgagee or under an irrevocable power of attorney or under hire-purchase agreement or partly in one of the said capacities and partly in any other capacity or capacities. Since the declarant, namely the respondents are the owners of the land and the Defence Department which is in occupation of the land is not the owner, though it is in possession of the land, the question of filing any declaration by the Defence docs not arise and therefore Section 19(1)(ii) is not applicable and the order of the first respondent is erroneous and inconsistent with Section 19(1) of the Act and he has misinterpreted the Act and therefore the order is liable to be set aside.
Learned Counsel for the respondents stated that during World War II, the Government of India occupied land in Dondaparlhy village, Visakhapatnam belonging to the father of respondents 3 and 4 and under Rule 78(2) of Defence of India Rules, after the War was over the land was released and returned except an extent of Ac.14.86 in S.No.6 and that the said land was taken on lease on 30-11-1947 for a period of 12 years and subsequently 18 buildings with internal service roads and compound walls were constructed. Dondaparthy village was taken over by ihe State Government under the Estate Abolition Aet and the respondents 3 to 7 were awarded patta u/s 12(b)(iii) of Estates Abolition Act.
While so the said land was sought to be acquired by initiating proceedings u/s 4(1) of the land Acquisition Act. The notification was published on 4-12-1986 proposing to acquire the land covered by Sy.No.6. However, the said notification lapsed. Thereafter on 20-6-1988 notification u/s 4(1) of the Land Acquisition Act to acquire the land covered by lease was published. On 8-7-1988 the Additional Secretary, Revenue, Government of Andhra Pradesh decided not to file any appeal against the order of the 1st respondent under the Urban Land Ceiling Act and advised that the Ministry of Defence may go in appeal as the Law Department is not in favour of filing any appeal. On 17-8-1988 the Defence Estates Officer sought for permission to file an appeal. On 12-1-1989 the Director General, Defence Estates informed the Estate Officer that the matters are considered and examined and no writ petition against the orders of the Commissioner, Urban Land Ceiling is to be filed since the Government of India sanctioned acquisition, that the Estates Officer may pursue with State Government for completion of acquisition proceedings. On 31-7-1991 the Land Acquisition Officer passed Award No.2/91 and acquired the land covered by the lease. On 15-9-1992 the Defence Estates Officer sent a cheque paying rent to respondents 3 and 4 uplo 31-7-1991. The Defence Estates officer, Visakhapatnam, on 22-11-1992 wrote a letter to the Principal Secretary, Revenue Department, stating that the orders of Commissioner of DLC are erroneous and suitable action may be taken to refund the amount. The Principal Secretary sent a reply stating that no revision lies u/s 34 of the Urban Land Ceiling Act and acquisition proceedings were completed as award was passed and is so advised to take suitable action after legal advise. On 26-2-1993 the Director General, Defence Estates addressed Defence Estates Officer, Visakhapatnam, that as State Government opined that revision does not lie u/s 34 of ULC Act, the lands stand acquired and hence no further action proposed to be taken and compensation may be disbursed on priority basis. On 26-4-1993 the respondents approached this Court by way of a WP No. 12075 of 1991 for directions to the State Government to make payment of compensation relating to 6.20 acres towards undisputed 2/3rds share. Thereafter the present writ petition is filed.
From the facts narrated above, it is clear that in the appeal against the order of the Special Officer Urban Land Ceiling, it was held that since the land is in possession of the defence service, Section 19 applies and therefore it cannot be included in the holding of the respondents. The 1st respondent also held that the entire area of DHAs. department is Ac.14.86 and it is covered by 18 buildings and their appurtenant area and internal roads are to be treated as holding of Government of India. As the land cannot be released to the owners, the appellants cannot be considered as "owners" within the meaning of the Urban Land Ceiling Act and the formula adopted by the Special Officer and Competent Authority, Urban Land Ceilings, Visakhapatnam, for fixing up appurtenant areas to the buildings, treating the internal roads as vacant land is not appropriate since no building can be built on them by others except defence department. As there were 18 buildings each building should be allowed appurtenant land of 1000 Sq. mis which comes to 18,000/- Sq. mts roads account for 13,141 Sq, mts. making a total of 31.141 Sq. mts. Inasmuch as the land continues to be under lease to defence department of Government of India and it is under occupation of ''Naval Institution'' provision in Section 39(ii) or Urban Land Ceiling Act gets attracted. The crucial question is as to what is the status of the land as on the crucial date of the Act. It is a lease in the occupation of Defence Institution and as such will have to be excluded from computation. What happens if the lease gets terminated in future is that the land reverts back to the appellants and at once declaration long as the lease subsists in law, the Will has to be excluded from computation."
From the order of the 1st respondent it is clear that he is of the view that the total extent of land which is in their occupation is Ac.14.86 cents and it includes 18 buildings plus 1000 Sq. mts appurtenant to those buildings is to be excluded in addition to the roads of 13,141 Sq.mts. It is true that u/s 19 only the land held by any military, naval or air force institution are excluded from the provisions of the Act. In this case it cannot be said that Ac.6.20 cents which is under lease to the defence department is held by defence department as the owner is the declarant and continues to be as such owner. The question of defence department filing a declaration does not arise and it is -only the owner who is to file a declaration in respect of the land held by him and owned and also in possession u/s 2(1) of the Act. The Commissioner Urban Land Ceiling, committed an error in holding that since the land is in possession of the defence department the same has to be excluded from the holding of the respondents. Be that as it may, though the order was passed as long ago as in 1947, the respondents have not questioned the same and they have taken a decision not to challenge the said order after deliberations and considering the pros and cons. When once a conscious decision was taken not to challenge the order perhaps keeping in view that an extent of land i.e., 31,141 Sq. mts of land is occupied by 18 buildings and appurtenant to the said land occupied by roads it excluded the remaining portion of the land will be very little for the purpose of vesting under the Urban Land Ceiling Act and also perhaps keeping in view that there would be delay in pursuing the proceedings before the authorities under the Urban Land Ceiling Act and keeping in view the public interest that the Central Government has already constructed buildings in the said land and also taking into account the time factor. Therefore, it is not open to the petitioner to challenge the same after a period of 6-1/2 years. If a private party approaches this Court after a period of 6-1/2 years, this Court will refuse to exercise jurisdiction under Article 226 of the Constitution on the ground of laches. The same principle applies to the Government and the writ petition is liable to be dismissed on this ground alone. In addition to averments stated in the affidavit filed in support of the writ petition does not disclose that there was land acquisition proceeding initiated by the Government after taking decision not to challenge the order of the 1st respondent and therefore the Government is guilty of suppression of facts. Since the petitioner has not approached this Court with clean hands and there is suppression of facts the writ petition is also liable to be dismissed on this count. It is true under the Urban Land Ceiling Act the laud vests in the Government subject to the payment of compensation under the Act. The compensation payable under the Urban Land Ceiling Act when compared to compensation payable under the Land Acquisition Act is muchless. However, the respondents have two options. One option is to challenge the order of the 1st respondent dated 27-2-1987, the other option is to accept the order of the 1st respondent and proceed with the acquisition of land under Land Acquisition Act. Having regard to the fact that they already constructed the buildings, they have exercised the 2nd option by invoking the provisions of Land Acquisition Act. Notification u/s 4(1) of the Land Acquisition Act was published only after taking a conscious decision not to challenge the order of the 1st respondent. When once they have exercised the option of invoking the provisions of Land Acquisition Act they cannot go back and contend that the land acquisition proceedings are illegal and therefore compensation paid to the respondents is not valid.
It is true in the case of State of Gujarat and Others Vs. Parshottamdas Ramdas Patel and Others, , it was held that the proceedings under the Land Acquisition Act, 1894 cannot therefore have any bearing on the question whether the lands in question are vacant lands or not for purposes of the Ceiling law contained in the Act. When the lands in question or bulk of them are likely to be acquired under the ceiling law by paying compensation as provided therein, it would not be proper to compel the Government to acquire them under the provisions of the Land Acquisition Act, 1894. As already stated the Act has the overriding effect on all the other laws.
There cannot be any dispute with '' the proposition referred in the above case. However, it was a case where the owners of the land contended that notwithstanding the Urban Land (Ceiling and Regulation), Bill, 1976, land acquisition proceedings already initiated by the authorities should be completed and the land acquisition officer should be directed to pass the award in favour of the respondents. It is a case where the acquisition proceedings were not completed and they were at the stage of initiation and the proceedings under Land Acquisition Act were initiated after the commencement of Urban Land Ceiling Act on 31-3-1976, therefore the Supreme Court held that the land owners cannot compel the Government to complete the proceedings under the Land Acquisition Act as under Land Ceiling Act the excess land vests in the Government and as the Urban Land Ceiling Act has overriding effect. On facts the judgment is distinguishable.
In the case of Dattatrya Shankarbhat Ambalgi and Others Vs. State of Maharashtra and Others, , the petitioners under Article 32 of the Constitution contended before the Supreme Court that development plan has been sanctioned with regard to land situated in the city of Sholapur including the petitioners'' land under the Original Act, 1966 and some land of the petitioners was reserved for public purpose under the Act. Therefore the proceeding under Land Ceiling Act which came into force on 28-2-1976 should be declared as void as it has no application to the land reserved for public purpose. In the case of State of Madhya Pradesh Vs. Surendra Kumar and another, , where permission was sought for alienating 16,500 Sq. ft of land from the competent authority and on the grant of permission, the competent authority preferred to purchase the said property and thereafter executed a sale-deed on 16-5-1980 in favour of the State of Madhya Pradesh which was agreed to be sold to the first respondent before Supreme Court. The first respondent thereafter challenged the sale in favour of the Government. In that context it was held that "after the application has been made, two options are open to the competent authority. In a case where the State intends to purchase the property exercising its option, there is no prohibition for the State to purchase the property, though the declaration has not been finalised and exercise option as envisaged under sub-section (5) (a) of Section 27 and complete the sale transaction in the manner contemplated therein. Thereafter they can finalise the excess area, include the area purchased by it while calculating excess land as the total holding of the person and accept only other excess area held by the person and deduct the land or building purchased by it from the ceiling area which the person is entitled to retain under the Act. The person in this case is entitled to 15,000 Sq.mt as ceiling area.'''' In other words the learned Judge held that the Government exercised the option to purchase the land under the Urban Land Ceiling Act and therefore it is not open to the 3rd parties to challenge the said action. In the case of Government of Andhra Pradesh Vs. H.E.H., The Nizam, Hyderabad, , the question that arose for consideration is whether the excess vacant lands covered by the Ceiling Act stood vested in the State, It was held "it would, thus, be clear that when the vacant land is declared under the ceiling Act, it is not necessary for the State to acquire the excess vacant land vested in it under the Act. But unfortunate to the appellant that benefit of the declaration was unavailable for the reason that the Government in G.O. Ms. No.1552/MA dated 20-5-1981 had permitted HUDA to acquire the surplus land under the provisions of the Act. In consequence, having exempted the excess vacant lands from the purview of the Ceiling Act, the appellant had denied itself of the benefit of Section 11 of the Ceiling Act to pay compensation as prescribed thereunder. The result is that the appellant would determine the compensation under the Land Acquisition Act."
From the above it is clear that notwithstanding the Land Ceiling Act when a conscious decision is taken by the Government to acquire the land under the Land Acquisition Act, the said decision cannot be said to be wrong. In this case the respondents have taken a conscious decision not to challenge the order of the 1 st respondent and to exercise option to acquire the land under Land Acquisition Act. When once they have exercised the said option, it is not open to contend that and Acquisition proceedings are invalid and that the land vests in them under the Urban Land Ceiling Act.
For all these reasons the writ petition does not survive and it is accordingly dismissed with costs.