State
of A.P. Vs. V. Venkataswara Rao [2004] Insc
29 (16 January 2004)
Shivaraj
V. Patil & D.M. Dharmadhikari.
WITH C.A. NO. 5957-59 OF 1997 SHIVARAJ V. PATIL J.
The
respondent Valluru Venkateswara Rao was holder of excess vacant land to the
extent of 5849 sq. metres (1 acre 44 cents) as per the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (for short `the Act').
He made an application under Section 20(1) of the Act claiming exemption on the
ground that he had entered into an unregistered lease agreement on 1.5.1975
with M/s. Ushodaya Publications Pvt. Ltd. for a period of 33 years. This lease
was entered into during the period when there was no prohibition for alienation
of vacant land. The Act also prohibited any transaction other than bona fide
sales during the period from 17.2.1975 to 28.1.1976. The lessee also filed an
application seeking exemption under the Act.
The
State Government, after considering the matter, issued a Government Order G.O.Ms.
No. 7 Rev.(UC.III) Department dated 3.1.1984 granting exemption under the Act
with certain conditions attached including the one that after the period of
exemption of 33 years of lease, the land would vest in the State Government.
Respondent
Valluru Venkateswara Rao filed Writ Petition No. 19026 of 1988 before the High
Court challenging the said condition imposed in the aforementioned G.O.
granting exemption. A learned Single Judge of the High Court by his order dated
29.3.1994 quashed said G.O.Ms. No. 7 dated 3.1.1984 and directed consideration
of exemption before the preparation of the draft statement under Section 8 of
the Act taking a view that the question of exemption after preparation of the
draft statement was not permissible in law. Aggrieved by this order of the
learned Single Judge, the State of Andhra Pradesh filed Writ Appeal No. 791 of 1994 before the Division Bench
of the High Court. The respondent Valluru Venkateswara Rao also filed Writ
Appeal No. 851 of 1994. The Division Bench of the High Court dealt with both
the appeals together and passed the impugned judgment dated 9.4.1997 following
the judgment of this Court and restored the G.O.Ms. No. 7 dated 3.1.1984 but
held that the condition, namely, that after the lease period of 33 years, the
land would vest in the State Government, contained in para 4(d) of G.O.Ms. No. 7,
could not be sustained. Aggrieved by the order of the Division Bench of the
High Court, the State of Andhra
Pradesh has filed
Civil Appeal No. 5956 of 1997, to the extent of striking down condition No.
4(d) contained in G.O.Ms. No. 7. M/s. Ushodaya Publications Pvt. Ltd., had
filed application for impleading before the Division Bench of the High Court in
Writ Appeals. The Division Bench of the High Court did not allow the
application filed for impleadment. M/s. Ushodaya Publications Pvt. Ltd., has
filed Civil Appeal Nos. 5957-5959 of 1997 to the extent aggrieved by the
impugned order. The original respondent Valluru Venkateswara Rao has died and
his son is on record as legal representative.
It was
contended on behalf of the appellant that clause (d) of para 4 of the order of
exemption is valid and if the said clause is void, exemption granted subject to
such condition itself becomes void and inoperative; the State Government under
Section 20 of the Act was competent to grant exemption subject to such
conditions as may be specified in the order of exemption and as such condition
contained in clause (d) of para 4 of the order could be validly imposed;
exemption
did not confer any vested right in the respondent; exemption was granted only
in the discretion of the State Government. The High Court exercising
jurisdiction under Article 226 could not substitute the said condition.
On
behalf of the Legal Representative of the Respondent Valluru Venkateswara Rao
submissions were made supporting the impugned order. Pointing out to scheme of
the Act and, in particular, referring to Sections 6 and 8 of the Act, it was
urged that after lease period of 33 years, land could not be vested
automatically with the State Government; even after the expiry of the lease
period, if the vacant land became excess land, it is open for filing the fresh
declaration and it is equally open to exercise option as to which land within
the ceiling limit is to be retained.
For
proper appreciation of the rival contentions, it is necessary to notice the
provisions of the Act to the extent they are relevant:- "Section 6.
Persons holding vacant land in excess of ceiling limit to file statement
(1)
Every person holding vacant land in excess of the ceiling limit at the
commencement of this Act shall, within such period as may be prescribed, file a
statement before the competent authority having jurisdiction specifying the
location, extent, value and such other particulars as may be prescribed of all
vacant lands and of any other land on which there is a building, whether or not
with a dwelling unit therein, held by him (including the nature of his right,
title or interest therein) and also specifying the vacant lands within the
ceiling limit which he desires to retain;
Provided
that in relation to any State to which this Act applies in the first instance,
the provisions of this sub-section shall have effect as if for the words
"Every person holding vacant land in excess of the ceiling limit at the
commencement of this Act", the words, figures and letters "Every
person who held vacant land in excess of the ceiling limit on or after the 17th
day of February, 1975 and before the commencement of this Act and every person
holding vacant land in excess of the ceiling limit at such commencement",
had been substituted." "Section 8 Preparation of draft statement as
regards vacant land held in excess of ceiling limit
(1) On
the basis of the statement filed under Section 6 and after such inquiry as the
competent authority may deem fit to make the competent authority shall prepare
a draft statement in respect of the person who has filed the statement under
Section 6.
(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 all vacant lands 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.
(3)
The draft statement shall be served in such manner as may be prescribed 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.
(4)
The competent authority shall duly consider any objection received, within the
period specified in the notice referred to in sub-section (3) or within such
further period as may be specified by the competent authority for any good and
sufficient reason, from the person on whom a copy of the draft statement has
been served under that sub- section and the competent authority shall, after
giving the objector a reasonable opportunity of being heard, pass such orders
as it deems fit"
"Section
9 Final statement After the disposal of the objections, if any, received
under sub-section (4) of Sec. 8 the competent authority shall make the
necessary alterations in the draft statement in accordance with the orders
passed on the objections aforesaid and shall determine the vacant land held by
the person concerned in excess of the ceiling limit and cause a copy of the
draft statement as so altered to be served in the manner referred to in sub-
section (3) of Sec. 8 on the person concerned and where such vacant land is
held under a lease, or a mortgage, or a hire-purchase agreement, or an irrevocable
power of attorney, also on the owner of such vacant land."
"Section
10 Acquisition of vacant land in excess of ceiling limit
(1) As
soon as may be after the service of the statement under Sec. 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 sub-section (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.
(4)
During the period commencing on the date of publication of the notification
under sub-section (1) and ending with the date specified in the declaration
made under sub-section (3), -
(i) no
person shall transfer by way of sale, mortgage, gift, lease or otherwise any
excess vacant land (including any part thereof) specified in the notification
aforesaid and any such transfer made in contravention of this provision shall
be deemed to be null and void; and
(ii) no
person shall alter or cause to be altered the use of such excess vacant land.
(5)
Where any vacant land is vested in the State Government under sub-section (3),
the competent authority may, by notice in writing, order any person who may be
in possession of it to surrender or deliver possession thereof to the State
Government or to any person duly authorised by the State Government in this
behalf within thirty days of the service of the notice.
(6) If
any person refuses or fails to comply with an order made under sub-section (5),
the competent authority may take possession of the vacant land or cause it to
be given to the concerned State Government or to any person duly authorized by
such State Government in this behalf and may for that purpose use such force as
may be necessary.
Explanation In this section, in sub-section
(1) of Sec. 11 and in Secs. 14 and 23, "State Government" in relation
to
(a) any
vacant land owned by the Central Government, means the Central Government;
(b)
any vacant land owned by any State Government and situated in a Union territory
or within the local limits of a cantonment declared as such under Sec. 3 of the
Cantonment Act, 1924 (2 of 1924), means that State Government."
"Section 11 Payment of amount for vacant land acquired
(1)
Where any vacant land is deemed to have been acquired by any State Government
under sub-section (3) of Sec. 10, such State Government shall pay to the person
or persons having any interest therein, -
(a) in
a case where there is any income from such vacant land, an amount equal to
eight and one-third times the net average annual income actually derived from
such land during the period of five consecutive years immediately preceding the
date of publication of the notification issued under sub-section (1) of Sec.
10; or (b) in a case where no income is derived from such vacant land, an
amount calculated at a rate not exceeding
(i)
ten rupees per square metre in the case of vacant land situated in an urban
agglomeration falling within category A or category B specified in Sch. 1; and
(ii)
five rupees per square metre in the case of vacant land situated in an urban
agglomeration falling within category C or category D specified in that
schedule."
"Section
15 Ceiling limit on future acquisition by inheritance, bequest or by sale in
execution of decrees, etc.
(1)
If, on or after the commencement of this Act, any person acquires by
inheritance, settlement or bequest from any other person or by sale in
execution of a decree or order of a civil court or of an award or order of any
other authority or by purchase or otherwise, any vacant land the extent of
which together with the extent of the vacant land, if any, already held by him
exceeds in the aggregate the ceiling limit, then he shall, within three months
of the date of such acquisition, file a statement before the competent
authority having jurisdiction specifying the location, value and such other
particulars as may be prescribed of all the vacant lands held by him and also
specifying the vacant lands within the ceiling limit which he desires to
retain.
(2)
The provisions of Secs. 6 to 14 (both inclusive) shall, so far as may be, apply
to the statement filed under this section and to the vacant land held by such
person in excess of the ceiling limit." "Section 20 Power to exempt
(1)
Notwithstanding anything contained in any of the foregoing provisions of this
Chapter
(a)
where any person holds vacant land in excess of the ceiling limit and the State
Government is satisfied, either on its own motion or otherwise, that, having
regard to the location of such land, the purpose for which such land is being
or is proposed to be used and such other relevant factors as the circumstances
of the case may require, it is necessary or expedient in the public interest so
to do, that Government may, by order, exempt, subject to such conditions, if
any, as may be specified in the order, such vacant land from the provisions of
this Chapter;
(b)
where any person holds vacant land in excess of the ceiling limit and the State
Government, either on its own motion or otherwise, is satisfied that the
application of the provisions of this Chapter would cause undue hardship to
such person, that Government may by order, exempt, subject to such conditions,
if any, as may be specified in the order, such vacant land from the provisions
of this Chapter;
Provided
that no order under this clause shall be made unless the reasons for doing so
are recorded in writing.
(2) If
at any time the State Government is satisfied that any of the conditions
subject to which any exemption under Cl.
(a) or
Cl.
(b) of
sub-section (1) is granted is not complied with by any person, it shall be
competent for the State Government to withdraw, by order, such exemption after
giving a reasonable opportunity to such person for making a representation
against the proposed withdrawal and thereupon the provisions of this Chapter
shall apply accordingly."
The
Government Order G.O.Ms. No. 7 Rev. (UC.III) Department dated 3.1.1984 granting
exemption under Section 20(1)(a) of the Act reads:- "GOVERNMENT OF ANDHRA
PRADESH
ABSTRACT
Urban Land (Ceiling and Regulation) Act, 1976 Industries Vijayawada
Urban Agglomeration Vijayawada village
Exemption
under section 20(1) (a) of the Act for the lands held by Sri V. Venkateswara Rao,
in NTS. No. 142, Block No. 6, Ward No. 1 of Patamata (v) Vijayawada leased out in favour of M/s. Ushodaya
Publications Ltd. Granted Orders Issued.
REVENUE
(U.C. III) Department G.O. Ms. No. 7 Dated 3.1.1984
1.
From Sri V. Venkateswara., Vijayawada application dated 17.12.1980.
2.
From the Chairman, M/s. Ushodaya Publications (P) Ltd. letter dated 9.9.1981.
3.
From the Director of Industries and Commerce letter No. RC.No. 72/ULC/81 dt. 7.3.1981.
4. From
the Commissioner of Land Reforms and Urban Land Ceilings, Hyderabad, L.Dis. No.
UC3/7142/80 dt. 25.8.82.
O R D
E R Whereas Sri Velluri Venkateswara Rao, Vijayawada hold vacant land measuring
2438.60 sq. mts., in NTS. No. 142, Block-6, Ward-11 of Vijayawda Village in Vijayawada
Urban Agglomeration which is in excess of the ceiling limit prescribed in Urban
Land (Ceiling and Regulation Act, 1976 (Central Act, 33/1976. Which also
includes in the extent of 5949 sq. mts. Of land leased out in favour of M/s. Ushodaya
Publications consequent on an ur-regd. lease deed executed in their favour on
the 1st May, 1975 for a period of thirty three years and hand over the
possession of the said extent of land to set up "EENADU" complex for
running the News paper industry.
2. And
whereas the entire extent of land measuring 2438 sq. mts., is needed to be
retained in favour of Sri Valluri Venkeswaa Rao, Vijayawada till the lease
period expires consequent upon establishing the news papers industry by the
lease on the lease hold land and running the business.
3. And
where 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 by imposing a condition that after the lease period expires the lands so
exempted would vest in the Government along with such structures on the said
land;
4. Now
therefore in exercise of the powers conferred by clause (a) of sub-section (1)
of section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976)
the Governor of Andhra Pradesh hereby exempts:
i) the
land measuring 2438 sq. mts., out of 5949 sq. mts. Of leased land in favour of
M/s. Ushodaya Publications Ltd. in NTS. No. 142, Block Ward 11 of Vijayawada
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 said
proposed industry and also subject 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 exempted within
three years from the date of granted shall stand cancelled and the said 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 sub-
section (1) of section 19 including Andhra Pradesh State Financial Corporation
for the purpose of raising finances for the industry.
(d) that
the land so exempted above would vest in the Govt. after the expiry of the
aforementioned lease period under the provision of the said Act.
(BY
ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) R.KODAMA RAMA REDDY
DEPUTY SECRETARY TO GOVERNMENT."
In the
light of the contentions urged before us, the only question that arises for
consideration is whether the condition contained in clause (d) of para 4 of the
Government Order could be sustained.
Section
3 of the Act declares that no person shall be entitled to hold any vacant land
in excess of ceiling limit. Ceiling limit is prescribed under Section 4. Under
Section 6, every person holding vacant land in excess of the ceiling limit at
the commencement of the Act was required to file statement before the competent
authority giving particulars and also specifying the vacant lands within the
ceiling limit which he desired to retain. Section 8 refers to preparation of
draft statement as regards vacant land held in excess of ceiling limit. Under
Section 8(2)(iii) the particulars of vacant lands which a person desires to
retain within the ceiling limit are to be given. Under sub-section 3 of Section
8, draft statement shall be served on the person concerned together with notice
inviting objections. After considering the objections, the competent authority
after hearing the person shall pass the order. Under Section 9, final statement
would be issued as to vacant land held by the person concerned in excess of the
ceiling limit. Under Section 10(1), the competent authority shall cause a
notification giving the particulars of the vacant land held by such person in
excess of the ceiling limit stating that such vacant land is to be acquired by
the State Government and the claims of all persons interested in such vacant
land may be made by them giving particulars of the nature of their interest in
such land. Under sub-section (3) of Section 10, the competent authority may by
notification published in the official gazette declare that excess vacant land
referred to in the notification published under sub-section (1), 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. As per
Section 15, if on or after the commencement of the Act, any person acquires any
vacant land together with the extent of the vacant land if already held by him
exceeds the aggregate ceiling limit, then he shall within three months of such
acquisition file a statement before the competent authority. Under sub-section
(2) of Section 15, the provisions of Sections 6 to 14 are made applicable to
the statement filed under Section 15(1). Section 20 deals with the power of
exemption. Under the said Section notwithstanding anything contained in any of
the foregoing provisions of Chapter III (which contains Sections 3 to 24), the
State Government may by order, exempt such vacant land from the provisions of
Chapter III. Under Section 20(2), the State Government has power to withdraw by
order such exemption on being satisfied that any of the conditions subject to
which any exemption was granted was not complied with by any person.
As can
be seen from the provisions referred to hereinabove, the person holding excess
land is given option to express the lands he desires to retain within the
ceiling limit; he is also given right to file objections under Section 8 before
making a final statement under Section 9. Under Section 10(1), after service of
statement under Section 9 on the person concerned, giving particulars of the
excess land held by such person in excess of the ceiling limit, the competent
authority shall cause a notification stating that such land is to be acquired
by the concerned State Government. After publication of notification under
Section 10(1), the competent authority by notification published in the
official gazette shall declare that the excess land be deemed to have been
acquired by the State Government and upon such publication of declaration such
land shall be deemed to have vested absolutely in the State Government free
from all encumbrances from the date specified.
Under
Section 20, the State Government notwithstanding anything contained in any of
the foregoing provisions of Chapter III is conferred with the power to exempt
excess vacant land from the provisions of the said Chapter containing Sections
3 to
24.
The G.O. Ms. No. 7 in the present case exempted the excess vacant land in
question from the provisions of Chapter III of the Act by imposing condition
including a condition that after the lease period expires, the land so exempted
would vest in the Government along with structures. Since the excess land was
not acquired and no notification was published in the official Gazette
declaring that the excess land in question be deemed to have been acquired by
the State Government, it could not be deemed to have vested absolutely in the
State Government free from all encumbrances under Section 10(3) of the Act as
on the date the exemption order was issued. After the expiry of the lease period,
in the normal course, the land would revert back to the L.R. of respondent Venkataswara
Rao, in the absence of vesting the land in the State absolutely, subject to the
provisions of Chapter III to the extent they are applicable. If on account of
reverting the land to the respondent in Civil Appeal No. 5956 of 1997 and
respondent No. 2 in Civil Appeal Nos. 5957-5959 of 1997 and his holding
exceeded the ceiling limit, the provisions contained in Section 15 get
attracted. In such a case, as per Section 15(2), the provisions of Sections 6
to 14 shall, so far as may be, apply to the statement filed under the said
Section. The person concerned could avail the rights and protections available
to him under Sections 8 to 10 including exercise of option or choice in the
matter of retaining the land within the ceiling limit. If the condition
contained in clause (d) of para 4 of the Government Order is sustained, it has
the effect of taking away the rights and protections available under Sections 6
to 14 as far as they apply.
The
Division Bench of the High Court by the impugned order has held that the said
condition was not valid and could not be sustained for the reasons stated
therein. With regard to the reasons given by the Division Bench of the High
Court in setting aside the said condition, we have some reservations to accept.
Be
that as it may. In the light of what is stated above, we hold that the
condition contained in para 4(d) of the Government Order cannot be sustained.
It is true as contended on behalf of the appellant that the State Government is
empowered to impose conditions while granting exemption under Section 20 but
such conditions cannot run contrary to or defeat the provisions of the Act.
Conditions may be imposed to serve the object and purpose of the Act and the
exemption order itself. One more thing to be noticed is that safeguard is made
under sub-section (2) of Section 20 by stating that if any of the conditions
imposed while granting exemption are violated, the State Government is entitled
to withdraw the exemption granted. As already stated above, further after the
expiry of lease period if the vacant land reverts to the contesting respondent
and his holding vacant land exceeds the ceiling limit, he is bound by the
provisions of the Act and the action can be taken, if need be, against him
according to the provisions of the Act in respect of the excess vacant land. We
have to notice one more submission made on behalf of the appellant that if the
condition contained in para 4(d) of the Government Order is invalid, the very
exemption order cannot remain in existence. The Government Order granting
exemption has imposed other conditions to serve the purpose of exemption and
public interest in terms of Section 20. In case those conditions are violated
or the land is not used for the purpose for which exemption was granted, it is
open to the State Government to withdraw the order of exemption under Section
20(2). The condition contained in para 4(d) of the order is separable and even
after setting aside the said condition, the Government Order can be validly
sustained. This position gets support from the judgment of this Court in R.Jeevaratnam
vs. State of Madras [AIR 1966 SC 951]. In that case the order dated October 17,
1950 directed that the appellant be dismissed from service with effect from the
date of his suspension, that is to say, from May 20, 1949. In effect the order
contained two parts (1) the appellant be dismissed and (2) the dismissal to
operate retrospectively as from May 20, 1949. These two parts of the composite
order were severable. This Court while dealing with said order, observed that
"an order of dismissal with retrospective effect is, in substance, an
order of dismissal as from the date of the order with the superadded direction
that the order should operate retrospectively as from an anterior date. The two
parts of the order are clearly severable. Assuming that the second part of the
order is invalid, there is no reason why the first part of the order should not
be given the fullest effect. The Court cannot pass a new order of dismissal,
but surely it can given effect to the valid and severable part of the
order." Further this Court in R.M.D. Chamarbaugwalla and anr. vs. Union of
India [AIR 1957 SC 628] while dealing with separability of valid and invalid
parts of statute in para 22(2) has stated thus:- "20(2). If the valid and
invalid provisions are so inextricably mixed up that they cannot be separated
from one another, then the invalidity of a portion must result in the invalidity
of the Act in its entirety. On the other hand, if they are so distinct and
separate that after striking out what is invalid, what remains is in itself a
complete code independent of the rest, then it will be upheld notwithstanding
that the rest has become unenforceable." This being the position, we find
no force in this contention advanced on behalf of the appellant.
Thus
looking to all aspects of the matter and for the reasons recorded above, in our
view, the impugned order does not call for any interference. Hence, the appeals
are dismissed with no order as to costs.
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