M/s Bhiragacha Finance Company Private Limited v. The State Of Andhra Pradesh & Ors.

Judgment

(Per Sri Justice Ravi Cheemalapati) Challenging the common order dated 04.02.2025 passed by a learned Single Judge in W.P.Nos.8716 of 2008, 12390 & 21393 of 2012, the appellants who were the petitioners in the said writ petitions, preferred these intra Court appeals under Clause 15 of the Letters Patent. 3

2. Inasmuch as these appeals stem out of a common order, they were

heard together and are being disposed of by this common judgment.

3. The facts that led to filing of these writ appeals are summarized hereunder: (a) Originally, Sri Pydi Appana & Sri Pydi Krishna Sarma are the absolute owners of the land admeasuring Ac.3.52 cents in Sy.No.59/3 situated in Marripalem village, Visakhapatnam (herein after referred to as „subject property‟) and they have executed a registered lease document No.1138/1964 dated 22.04.1964 in favour of M/s A.P.Electrical Equipment Corporation Ltd., Visakhapatnam (herein after referred to as „Company‟) for a period of 99 years and the said Company established its unit for manufacturing of electrical transformers, etc. It appears that, after the Urban Land (Ceiling and Regulation) Act, 1976 (for short, Act,1976) came into force, the Company, being the lease holder of the subject property, filed a declaration under Section 6(1) of the Act, 1976 in respect of properties owned and possessed by it within the Urban Agglomeration of Hyderabad and Visakhapatnam. In the said declaration, apart land owned by in Hyderabad, Visakhapatnam and other places, the subject property in Sy.No.59/3 was shown as leased lands with structures in its occupation claiming exemption under Section 4(1) of the Act, 1976. In the course of time, the Company became defunct and was closed w.e.f. January, 2000. 4 (b) After the demise of Sri Pydi Appana & Sri Pydi Krishna Sarma, Smt Pydi Varahalamma and her two sons, succeeded the ownership of the subject property and filed O.S.No.516 of 2005 seeking eviction of the Company from the subject property, which was decreed on 11.04.2007. The appeal, which was preferred by the Company, was allowed setting aside the eviction orders on 07.09.2007 and the said order was questioned by way of filing second appeal vide S.A.No.1212 of 2007 which is pending consideration. (c). While so, the Special Officer & Competent Authority, Urban Land Ceiling, Hyderabad (2nd respondent in W.P.No.8716/2008) passed final orders dated 03.02.2004 under Section 8(4) of the Act, 1976 holding that the Company is the surplus holder of land to an extent of 39559.83 Sq.mts wherein Sy.No.59/3 (subject property) was shown as exempted under Section 4(11) of the Act, 1976. Against the said order, the Company preferred an appeal wherein the appellate authority has observed that, the surplus land held by the Company would be 48527.13 Sq.mts not 39559.83 Sq.mts and remanded the matter for reconsideration. It appears that, even in the revised order dated 20.03.2007, the subject property with structures, roads, etc., were exempted under Section 4(11). Thus, the exemption of subject property under Section 4(11) attained finality. (d). The Special Officer & Competent Authority, Urban Land Ceilings, Hyderabad, issued a notification dated 07.07.2007 under Section 10(1) of the Act, 1976 proposing to take over the entire surplus lands of Company and 5 called for objections including the subject property. The said Section 10(1) notification was published in Gazette on 12.07.2007. Thereupon, Smt Pydi Varahalamma made representations to the Special Officer & Competent Authority, Urban Land Ceilings, Visakhapatnam, apprising that the subject property was exempted under Section 4(11) of the Act, 1976, as such the question of surrender does not arise. The said authority has addressed a letter to the Special Officer, Hyderabad to rectify the said mistake committed in the notification dated 07.07.2007 but the authority concerned, without considering the same, issued proceedings No.G1/10571/76 dated 05.02.2008 for taking over possession of lands in Sy.No.59/3, Marripalem (subject property). Questioning the said notification dated 07.07.2007 and the notice dated 05.02.2008 issued under Section 10(6), Smt Pydi Varahalamma and her two sons, being the absolute owners of the subject property, filed W.P.No.8716/2008 arraying APEECL (Company) as 5th respondent to the lis, wherein the Hon‟ble court has granted stay of all further proceedings by order dated 16.04.2008 in W.P.M.P.10798/2008. Later, due to repeal of the Act, 1976 in A.P., on 22.04.2008, the said order has become non-est. (e). It appears that, in view of Repeal Act, Smt Pydi Varahalamma and her sons have cancelled the lease deed dated 22.04.1964 made with the APEECL. Later, it appears that, the APEECL has changed its name to M/s ECE Industries limited. Thereupon, M/s Bhiragacha Finance Company Private Limited and M/s ECE Industries Limited have purchased Ac.2.00 cents 6 and Ac.1.00 cents in Sy.No.59/3 from Smt Pydi Varahalamma, respectively through registered sale deeds in the year 2011. While so, the Tahsildar & Executive Magistrate, Visakhapatnam, by virtue of panchanama dated

12.03.2008, filed a complaint against the said companies, stating that, they have trespassed the Government land and trying to grab the same. Questioning the said panchanama dated 12.03.2008, M/s Bhiragacha Finance Company Private Limited had filed W.P.No.21393 of 2012 and M/s ECE Industries Limited had filed W.P.No.12390 of 2012. (f). All the three writ petitions, being connected, were heard together and disposed by a common order dated 04.02.2025. The Learned Single Judge has dismissed those writ petitions on the ground that, the respondent authorities concerned have took the possession of the subject property under a valid panchanama dated 12.03.2008 by following the due procedure, as such the same needs no interference. (g). Impugning the said common order dated 04.02.2025, the appellants herein (petitioners in the said writ petitions) have preferred these Intra Court appeals.

4. Heard Sri V.Ramesh, learned counsel appearing for Sri A.Chandra Shaker, learned counsel for the appellants in W.A.Nos.165 & 167 of 2025; Sri A.D.Rama Ratna Sarma, learned counsel representing Sri A.Prabhakara 7 Sarma, learned counsel for the appellants in W.A.No.216 of 2025 and Smt S.Pranathi, learned Special Government Pleader for Land Ceiling.

5. Learned counsel for the appellants while reiterating the contents of the writ affidavits and the grounds of the appeal, in one voice, submitted that, once a particular land is declared as „exempted land‟ under Section 4(11) of the Act, 1976, no notification under Section 10(1) and notices under Section 10(5) & 10 (6), could be issued with regard to exempted land, as they stand outside the purview of the Act, 1976. They further submitted that, even otherwise, the notice issued under section 10(5), dated 05.01.2008 directing the landowners to surrender the excess vacant land, was not served as mandated under Rule 5, since the company was locked out, it was stated to be affixed on the main door on 08.01.2008, which is not a proper mode of service. They further submit that, in the absence of dispatch of notice by registered post with acknowledgment due, the service cannot be said to be in compliance of the Rule 5 of the Urban Land (Ceiling and Regulation) Rules,

1976. They further submitted that, the notice under Section 10(5) gives 30 days‟ time to hand over the possession, if not, the authorities can invoke Section 10(6) and take over the possession of the property. They further submitted that, in the present case, the Section 10(5) notice was deemed to be served on 08.01.2008 and the Section 10(6) was given on 05.02.2008 wherein it was stated that 30 days time was expired on 01.10.2008. They further submitted that, the 30-day period mentioned in the said notice to 8 surrender possession voluntarily would have expired only on 07.02.2008 and the right of the competent authority to take further action under Section 10(6) would accrue only after 08.02.2008 but the authorities alleged to have been given Section 10(6) notice on 05.02.2008 at a premature stage, which shows that, the authorities have not complied with the mandatory 30-day period prescribed under the Act, 1976. They further submit that, basing on the said Section 10(6) which is fabricated, it cannot be accepted that the respondent authorities have taken possession over the subject property. (b) Learned counsel for the appellants would further submit that, when the appellants are in the possession of the subject property and were operating its manufacturing units, basing on the panchanama dated 12.03.2008, the respondent authorities have filed a complaint against them stating that appellants have trespassed the subject property, as if possession of the subject property was taken over by the respondent authorities. They further submits that, the said panchanama, on which the witnesses are stated to have signed and which is relied by the official respondents to substantiate that the officials went to the subject property and taken physical possession, do not contain either the addresses of the panchas or their description. Admittedly, there is no signature of the appellants on the alleged panchanama dated

12.03.2008 or the site map annexed thereto. It was further submited that, in the absence of the signatures of the land owners/appellants on the panchanama, it can be said that the said panchanama was prepared behind 9 the back of the appellants, and basing on the same, the authorities cannot take or said to have taken the possession over the subject property. In the said circumstances, it can be clearly said that the authorities have prepared the documents (Section 10(6) notice and panchanama) to overcome the Repeal Act, 1999 that came into force on 27.03.2008. (c) It was further submitted that, the learned single judge has failed to appreciate all the said facts while dismissing the writ petitions. It was further submitted that, the learned single judge failed to appreciate the dictum laid down in Hariram Vs State Of Uttar Pradesh1 and Gajanan Kamlya Patil Vs Addl. Collector and competent authority and others2. Accordingly prayed to allow the writ appeals.

6. On the other hand, learned Special Government Pleader for official respondents contended that, since the company was locked out on that date and when the respondent authorities tried to serve notice on the declarant, they have refused the same, as there was no other go, the said notice was affixed on the main door of the subject property, which is a deemed service and the possession was taken by recording panchanama. She further submits that, Rule 5 and 6 of the Urban Land (Ceiling and Regulation) Rules, 1976 recognize affixation as a valid mode of service. It is further submitted that, it is a settled principle of law that possession of a land can be taken over by execution of a proper panchnama or memorandum, since the panchnama