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IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD
A. Gopal Reddy and K.C. Banu, JJ.
Dasamma - Appellants
Vs.
Bharani Mutually Aided Co-operative Housing Society Ltd. - Respondent
W.A. No. 1763 of 2001 and Batch, W.P. No. 586 of 2002 and Batch and C.C. No. 352 of 2006
Decided On: 08.10.2010
URBAN LAND (CEILING & REGULATION) ACT, 1976 - SECTIONS 8(4), 9, 10(1), 10(3), 10(5), 10(6), 11, 23 - URBAN LAND (CEILING & REGULATION) REPEAL ACT, 1999 - SECTIONS 3, 4 - REPEAL OF ULC ACT - EFFECT ON PENDING PROCEEDINGS - POSSESSION OF LAND - ALLOTMENT OF LAND - DIVISION OF PROPERTY - CONTEMPT OF COURT. 1. On repealing the ULC Act, the proceedings initiated under the Act, including the issuance of final statement under Section 9, notification under Section 10(1) and 10(3), and notices under Section 10(5) and 10(6), abate, unless the possession of the land has been taken over by the State Government or any person duly authorized by it. 2. Where the possession of the land has not been taken over by the State Government or any person duly authorized by it, the land shall not be restored unless the amount paid, if any, has been refunded to the State Government. 3. The Competent Authority cannot divide the property among the declarants and allot the same to the Society which entered into an agreement with the declarants, as it does not have the jurisdiction to effect partition among the declarants of two branches. 4. The Society cannot insist on the allotment of a specified property in its favor, as the Competent Authority can only allot the undivided share which is deemed to have been taken possession from the declarants. 5. The petitioner-Society is not liable to be proceeded for contempt of court for filing two writ petitions with regard to the same sub-divisional plan, as there is no suppression of material facts and the cause of action in both the writ petitions is different.
Fact of the Case:
The writ appeals and writ petitions, which are inter connected with each other and pertain to the very same land, which is the subject matter of declaration filed by two branches, namely, "first wife branch" and "second wife branch" of late G. Sandaiah and the persons claiming under them, were heard together and disposed of by this common judgment.
Finding of the Court:
1. The final statement issued under Section 9 of the ULC Act pursuant to the remand order in W.P. No. 14627 of 1984 gets abated in the absence of taking possession by issuing notice under Section 10(5) and 10(6) of the ULC Act. 2. The order passed by this Court in W.P. No. 9618 of 2001, directing the Government and the Special Officer & Competent Authority to allow the land to an extent of 3282.15 square metres to the Society as per the plan enclosed to the letter of the Special Officer dated 24-05-2001 cannot be upheld. 3. The Competent Authority cannot effect division of property retainable among the declarants under the ULC Act, and the Society cannot insist the allotment of specified property in its favour. 4. The petitioner-Society is not liable to be proceeded for contempt of court in C.C. No. 253 of 2006.
Issues: 1. What is the effect of the final statement dated 15-02-2005 issued under Section 9 of the ULC Act pursuant to the remand order in W.P. No. 14627 of 1984 on repealing the ULC Act in the absence of notification issued under Section 10(5) and 10(6) of the ULC Act? 2. Whether the order passed by this Court in W.P. No. 9618 of 2001, directing the Government and the Special Officer & Competent Authority to allow the land to an extent of 3282.15 square metres to the Society as per the plan enclosed to the letter of the Special Officer dated 24-05-2001 can be upheld or not? 3. Whether it is open for the Competent Authority to effect division of property retainable among the declarants under the ULC Act, if so, whether the Society can insist the allotment of specified property in its favour? 4. Whether the petitioner-Society is liable to be proceeded for contempt of court in C.C. No. 253 of 2006?
Ratio Decidendi: 1. The possession of the land can be taken only on issuance of notice under Section 10(5) and 10(6). In the absence of such notice under Section 10(5)and 10(6) to surrender or deliver possession, taking possession of the land will not arise. 2. The Society entered into an agreement with the declarants in W.P. No. 15121 of 1984 to the remaining extent of Ac.2.04 gts. and also entered into an agreement with regard to retainable extent of the said declarations can only seek allotment of the said property in its favour from the excess land held by the said declarants alone. 3. The Competent Authority can only decide the excess vacant land covered by declarants, petitioners in W.P. No. 15121 of 1984, and after excluding the retainable land by them the remaining land can be taken possession which has to be allotted to the Society as per the directions of this Court in W.P. No. 15121 of 1984.
Final Decision: 1. W.A. No. 1763 of 2001 and W.A. No. 7 of 2002 are allowed and consequently, W.P. No. 586 of 2002 is allowed. 2. W.A. No. 69 of 2002 is dismissed granting liberty to the parties to work out the remedies in the civil suit. 3. W.P. Nos. 19023, 19097 and 21975 of 2005 filed by the 2nd wife branch questioning the final statement issued under Section 9, notification under Section 10(1), 10(3) and for preparation of sub-divisional plan showing retainable land to the land owners are dismissed as infructuous as proceedings issued under ULC Act gets abated. 4. W.P. No. 8464 of 2006 filed for regularization of the possession of the Society over an extent of 3282.15 square meters is allowed, subject to allotment of property to the petitioners in W.P. No. 15121 of 1984. 5. W.P. Nos. 27063 of 2005 and 662 of 2006 filed by the Society are dismissed. Consequently, Form No. 1 Notice issued in C.C. No. 352 of 2006 is discharged and the contempt petition is also dismissed.
A. Gopal Reddy, J.
1. The writ appeals and writ petitions, which are inter connected with each other and pertain to the very same land, which is the subject matter of declaration filed by two branches, namely, "first wife branch" and "second wife branch" of late G. Sandaiah and the persons claiming under them, were heard together and disposed of by this common judgment. It is not necessary for us to delve deep into the myriad facts as narrated in each of the writ petitions and writ appeals. It would be suffice for our purpose to touch upon the facts in brief to decide the issue involved, which are not seriously in dispute, as under:
2. Late G. Sandaiah was the owner of Ac.9.16 gts. of land in Sy. Nos. 14, 15, 367, 368, 384, 385, 386 and 387 of Gudi Malkapur Village, Asifnagar Mandal, Hyderabad District. He had two wives. His first wife was Balamma through her he had a son by name, Devadas; his second wife was Lakshmamma and through her he had three sons, namely, G.S. Manohar, G.S. Prakasam, G.S. Jayakar and two daughters, viz., Deenamma and Dasamma. The only son of the first wife--Devadas died in the year 1974 leaving behind his widow--G. Ratnamma and three sons viz., G. Vasanth Rao, G. Surender and G. John Wesley and one daughter--Vsanthamma. There was no partition by metes and bounds between the two branches i.e. first wife branch and second wife branch. While so, a suit--O.S. No. 447 of 1971 was filed for partition. On decreeing the suit, C.C.C.A. No. 113 of 1976 was filed before this Court where a compromise decree was passed on 08-03-1982. As per the said compromise decree, the first wife branch got Ac.2.04 gts.; and three sons of second wife branch got equal extents i.e. Ac.2.04 gts. individually and two daughters got 20 gts. each. Thus, the total extent Ac.9.16 gts. was partitioned by extent but not by metes and bounds. Both the branches filed declarations under the Urban Land (Ceiling & Regulation) Act, 1976 (for short "the ULC Act") showing their entitlement as per their shares under the Hindu Law. The first wife branch filed C.C. No. B1/2921/76 and the second wife branch filed CC. No. B1/2922/76, B1/2923/76, B1/2924/76, B1/1165/76 and B1/1166/76. The Special Officer and Competent Authority passed common order dated 09-11-1982 under Section 8(4)of the ULC Act holding that first wife branch holds 3282.15 square metres surplus and the second wife branch is holding 23684.58 square metres surplus. Notification under Section 10(1) and 10(3) of the ULC Act was published in the Gazette dated 05-07-1984 and the surplus extent of land was allotted to Hyderabad Urban Development Authority (HUDA). Meanwhile, the parties compromised the matter in CCCA.
3. M/s. Bharani Co-operative Housing Society Limited, registered under the A.P. Co-operative Societies Act, 1964 entered into an agreement to sell dated 22-01-1982 with all the members of the two branches for purchasing a total extent of 34038 square meters subject to the provisions of the ULC Act and joint application was made to the State Government for exemption as per G.O.Ms. No. 136, dated 28-01-1981.
4. Against the common computation order passed on 09-11-1982 and consequential order dated 05-07-1984, the first wife branch filed W.P. No. 15121 of 1984 and second wife branch filed W.P. No. 14627 of 1984. W.P. No. 15121 of 1984 was dismissed for default on 22-01-1992, and at the instance of parties the case was posted "for being mentioned". On being mentioned, this Court recalled the earlier order dated 22-01-1992 and modified the order to the following effect:
"It is submitted by both the counsel for petitioners and respondents that pursuant to the order of this Court dt. 01- 07-1987, a sum of Rs. 36,898.85 ps., was deposited in Fixed Deposit by R4 was being paid over to the petitioners on 19-11-1987. It is also submitted that the land in an extent of 3282.15 square metres was taken over by the 1st respondent --Government from the petitioners for being made over to the 4th
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