APHC010184602014

IN THE HIGH COURT OF ANDHRA PRADESH

PRESENT:THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI

WRIT PETITION NO: 16209/2014

Between:

S.M.A. Khader,

The Government Of Andhra Pradesh Rep By Its Principal

and Others

Counsel for the Petitioner:

1.

P SRI RAM

Counsel for the Respondent(S):

1. G.P. FOR REVENUE

DATE: 20.12.2024

The Court made the following:

ORDER:

This writ petition has been filed questioning

UCIII(2)/99, dated 03.09.2012 and the rejection order dated 08.07.2013 and

for a consequential declaration that the petitioner is entitled to hold the urban

land declared by him, which was exempted as per G.O.Ms.No.976 dated

03.08.1997 and G.O.Ms.No.2312 dated 20.05.1980.

2. The case of the petitioner as set out in the writ affidavit in brief is

that he along with his mother and three sisters filed declarations under

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI

WRIT PETITION NO: 16209/2014

...PETITIONER

AND

Andhra Pradesh Rep By Its Principal ...RESPONDENT(S)

Counsel for the Petitioner:

Counsel for the Respondent(S):

G.P. FOR REVENUE

The Court made the following:

This writ petition has been filed questioning the memo No.31129/

UCIII(2)/99, dated 03.09.2012 and the rejection order dated 08.07.2013 and

for a consequential declaration that the petitioner is entitled to hold the urban

land declared by him, which was exempted as per G.O.Ms.No.976 dated

and G.O.Ms.No.2312 dated 20.05.1980.

2. The case of the petitioner as set out in the writ affidavit in brief is

that he along with his mother and three sisters filed declarations under

IN THE HIGH COURT OF ANDHRA PRADESH

[3332]

THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI

...PETITIONER

...RESPONDENT(S)

the memo No.31129/

UCIII(2)/99, dated 03.09.2012 and the rejection order dated 08.07.2013 and

for a consequential declaration that the petitioner is entitled to hold the urban

land declared by him, which was exempted as per G.O.Ms.No.976 dated

2. The case of the petitioner as set out in the writ affidavit in brief is

that he along with his mother and three sisters filed declarations under

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Section 6(1) of the Urban Land Ceiling Act, 1976 in C.C.Nos.2284, 2286 to

2289/76, declaring the properties devolved from his late father clearly

mentioning therein that NTS No.240, VJA measuring 1672.20 sq.mts. is

covered by a cinema theatre by name Rajakumari Talkies constructed prior to

1958 and the land in NTS No.468, VJA has on its premises an automobile

workshop constructed in the year 1966 with the building permission granted

by Municipal Corporation, Vijayawada. Along with the said declaration, the

petitioner had applied for exemption to the Industries Department, Hyderabad

for the commercial units situated in NTS Nos.240 & 468. Pursuantly, the

enquiry staff viz., Deputy Inspector of Survey, Urban Land Ceiling inspected

the above two industrial units and submitted survey sketches on 26.10.1976

showing that the land in NTS No.240 is totally covered by Cinema talkies and

though the total extent of the land in NTS No.468 is 730 sq.mts. covered by

industrial structures covering a plinth area of 229 sq.mts., and 151 sq.mts.

respectively, the enquiry staff of survey department, in a careless and casual

manner and without application of mind had wrongly computed the same as

802.67 sq.mts. Thereafter, the Government considering existence of

commercial units, issued G.O.Ms.No.976 Revenue (UCIII) Department dated

03.08.1977 exempting the total extent of 2404.85 sq.mts., in NTS Nos. 240

and 468 of Vijayawada, which are covered by Cinema talkies and automobile

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workshop. Subsequently, a draft statement under Section 8(1) of the Act was

issued on 29.09.1977, including the properties that were exemption by the

Government under G.O.Ms.No.976, dated 03.08.1977, in computation of

excess land. The petitioner filed objections to the said draft statement that in

view of the exempted granted by Government vide G.O.Ms.No.976, dated

3.8.1977, the properties covered in NTS Nos.240 and 468 should not be

computed as vacant land in his holding. Thereupon, an order dated

16.01.1978 was issued under Section 8(4) of the Act excluding the land

covered by the G.O. referred to above and declaring that the petitioner holds

292.30 sq.mts. in excess of the ceiling limit and as no modified statement

under Section 8(1) was issued as mentioned in the orders, the petitioner had

applied for exemption under 20(1)(B) of the Act for exemption of the said

surplus extent of 292.30 sq.mts., and thereafter the Government considering

the hardship factor, exempted the surplus extent of 292.30 sq.mts. under

Section 20(1)(B) of the Act under G.O.Ms.No.2312, Revenue (UCIII)

Department, dated 20.05.1980. The properties covered by the declaration

were mortgaged to Indian Bank by deposit of title deeds and as the company

of the petitioner M/s. S.M.Abdul Haq Saheb & Bros. was running in losses,

Cinema theatre and the Automobile work shop were leased out and the

petitioner has been remitting the amounts realized by way of rents to the

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Bank towards instalments payable. Thereafter, Indian Bank, filed a suit in

O.S.No.106 of 1973 against the petitioner, other co-declarants in C.Cs. and

also against partnership firm for recovery of the loan amount of

Rs.9,66,096.77 ps. and the matter went in appeal to High Court and the High

Court vide judgment dated 05.08.1991 allowed the appeal filed by Indian

Bank directing the petitioner to pay the loan amount together with interest.

The findings recorded in the suit as well as appeal proceedings by the II

Additional Subordinate Judge’s Court as well as High Court clearly establishes

that the commercial units, viz., Rajakumari Talkies and Automobile workshop

were leased out much and were under registered lease earlier to the

commencement of the Urban Land Ceiling Act and long before granting of

exemption. The Government while granting exemption vide G.O.Ms.No.976,

dated 03.08.1977 laid a condition that the land should be utilized for the

purpose of the said industry and the Government did not impose any other

condition prohibiting the alienation or leasing of the said properties and as on

today the commercial activity is still going on in the exempted properties. The

Cinema theatre and automobile workshop having been constructed with prior

permission of Vijayawada Municipal Corporation much earlier to the

commencement of ULC Act, the land covered by them shall not be trerated as

vacant land and thus the provisions of the Urban Land Ceiling Act are not

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applicable in view of Clause-II of Section 2(q) of the Urban Land Ceiling Act

and also in view of the pronouncements of the Hon’ble Supreme Court in

Meera Gupta (AIR 1992 SC 1567) and also of the Division Bench of this Court

in 1995(3) ALT 487 (DB) that the land covered by structures existing at the

time of commencement of the Act and the land appurtenant thereto are non-

vacant lands and therefore the buildings and appurtenant land thereto should

be excluded while computing the holding of the vacant land of a person.

Further, as per Section 2(G) of the ULC Act, every building constructed before

the commencement of the ULC Act is entitled to appurtenant land of 500

sq.mts. each and also in their guidelines vide Ministry of W&H,

Lr.No.1/132/76-1, LCU(III) dated 18.11.1976 the Government of India clearly

states that non-residential buildings are entitled to an additional appurtenant

land of 500 sq.meters each and further this Court in the decision reported in

AIR 1991 A.P.84 as well as the Full Bench of Allahabad High Court in AIR

1987 ALL 232 also categorically held that every non-residential building

constructed prior to commencement of ULC Act is eligible for an allowance of

500 sq.mts. each towards the appurtenant land. In view of the same, the

property covered by “Rajakumari Talkies” constructed in 1958 and the

automobile workshop constructed in 1966 together with appurtenant land

thereto are not vacant lands and they do not attract the provisions of the

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Urban Land Ceiling Act, since if the authorities had allowed appurtenant land

of 500 sq.mts., to each building, there would not be any vacant land at all and

the land would be far less than the entitlement of the declarant. The

exemption under Section 20(1)(a) of the Act would only come into play when

there is excess land and since there is no excess land, the question of

granting exemption under Section 20(1)(a) of the Act does not arise,

however, the exemption was granted prior to determination of surplus

vacante land and thus, the exemption order Under G.O.Ms.No.976, Revenue

UCIII Department, dated 03.08.1977 is superfluous, since the provisions of

the ULC Act do not apply to the subject property, since do not come under

the purview of the Act. Further, this Court vide decision in 1998(3) ALT 471

categorically held that passing of final orders under section 8(4) and 9 of the

Urban Land Ceiling Act are mandatory and without passing such final orders

under Section 9, further proceedings are liable to be set aside. In the instant

case also, since the Special Officer & Competent Authority, ULC, Vijayawada

failed to issue the statutory proceeding under Section 9 of the Act and also

the modified statement under Section 8 of the Act and therefore, the Land

Ceiling Cases in respect of the subject property are vitiated. The case file

issued to the petitioner under Right to Information Act reveals that that since

the required information was yet to be received from the Special Officer &

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Competent Authority, issuance of final statement was held up and hence, it is

clear that the proceedings under Section 9 of the Act had not been taken

place and final statement was not issued and non-issuance of the final

statement vitiates the entire proceedings. Moreover, subject properties were

under lease even much prior to commencement of the Act and the same has

duly been mentioned in the civil suit before Subordinate Judge, Vijayawada

and Appeal before the High Court filed by the Bank and the same also was

mentioned by the Special Officer & Competent Authority in his order under

Section 8(4) of the ULC Act. Even though the properties were leased out,

none of the conditions of the G.O.Ms.No.976, dated 03.08.1977 were violated

and the commercial activity is still going on till today. Further, in the order

under Section 8(4) of the Act, dated 16.1.1978, the Special Officer &

Competent Authority computed 1550 sq.mts. in R.S.No.84/1/A in

Bhavanipuram village in the petitioner’s holding and in fact the said property

does not belong to the petitioner and the learned Subordinate Judge at

Vijayawada in O.S.No.100 of 1978 and this Court in Appeal No.863 of 1989

held that the said site does not either belong to the partnership company of

the petitioner or to the family of the petitioner and it belonged to Sri

Kantamaneni Raja Gopala Rao. However, the said extent has erroneously

been added to the holding of the petitioner and consequently declared him as

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surplus land holder and had the said extent not been included in the holdings

of the family, there would not have been any surplus land at all in the

holdings of the petitioner. While so, a show cause notice was issued in Memo

No.31129/UCIII(2)/99 dated 03.09.2012 to show cause why the exemption

granted in G.O.Ms.No.976 dated 03.08.1977 should not be withdrawn in view

of the violation of exemption conditions prescribed in the said G.O. for which,

the petitioner gave a reply on 15.04.2013 to respondent no.1 besides filing a

revision petition on 29.04.2013 under Section 34 of the Act. The respondent

no.1 by order dated 08.07.2013 rejected the revision petition stating that the

Government cannot exercise powers under Section 34 of the Act on the

revision petition at this point of time in view of the repeal Act. The show

cause notice is without jurisdiction. However, the respondent no.2 is

threatening to take action in pursuance of the show cause notice. The repeal

Act 15/99, which was adopted by the A.P.State Legislature with effect from

27.03.2008, made provisions for certain savings. Section 3 of the repeal Act

clearly mentions that the orders granting exemption under sub-section 1 of

Section 20 of the Principal Act are saved and except the above saving, the

entire Act 33/76 stands repealed. In view of the same, the Government have

no power to exercise its right to withdrawal of exemption under Section 20(2)

of the Act 33/1976 and non appreciation of this legal position vitiates the

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action of the respondents. Therefore, the memo issued by the respondents

directing the petitioner to show cause why the exemption shall not be

withdrawn is without jurisdiction, illegal and the same is liable to be set aside.

A single bench by order dated 24.08.2011 clearly ruled that only Section 20(1)

of the Act 33/1976 was saved under Section 3 of the repealed Act 15/99 and

consequently held that Section 20(2) is not available for the Government to

withdraw the exemption granted under the Act 33/1976. Therefore, the

impugned memo is without jurisdiction and the issue involved in this writ

petition is squarely covered by the judgment in Writ Petition No.26474 of

2009, dated 24.08.2011.

3. The contents of the counter-affidavit filed by the 2

nd

respondent, in

brief, are that one Kadiyala Venkateswara Rao, who is lessee of Rajakumari

Talkies, filed statement under Section 6(1) of ULC Act duly declaring the

urban property held by their firm Shree Corporation before the Competent

Authority. Originally, the land belongs to the petitioner and the Competent

Authority, after hearing arguments from both the sides had issued draft

statement under Section 8(1) and notice under Section 8(3) of ULC Act,

calling for objections. The land owner filed an application before the

Government to exempt the above land along with the land covered in NTS

No.468 of Vijayawada and pursuantly the Government after receipt of the

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proposals from the Director of Industries, Andhra Pradesh, Hyderabad, the

Commissioner for Land Reforms and Urban Land Ceiling, Hyderabad had

exempted the land admeasuring 2404.85 sq.mts. in NTS No.240 and NTS

No.468 vide G.O.Ms.No.976, dated 03.08.1977 under Section 20(1)(a) of the

ULC Act, while issuing the said G.O., NTS No.240 was mentioned instead of

NTS No.92 for the land covered by Rajakumari Talkies and despite sending

necessary proposals for modification, the Government did not modify the said

NTS number so far. The petitioner, his mother and sisters also filed

statements under Section 6(1) of the ULC Act including the subject properties

among other properties and the then Special Officer, after examining the

documents submitted by declarants and report submitted by enquiry officer

had declared the sister and mother of the petitioner as surplus landholders to

an extent of 1792.30 sq.mts. vide office order Rc.C.C.No.2284, 2286 to

2289/76, under Section 8(4) of the ULC Act, dated 16.01.1978. The

application submitted by the petitioner to exempt the land under Section

20(1) (b) of the ULC Act, has been considered by the Government after

receipt of proposals from Special Officer and Competent Authority, ULC,

Vijayawada and Commissioner of Land Reforms and Urban Land Ceiling,

Hyderabad and an extent of 292.30 sq.mts of land was exempted vide

G.O.Ms.No.2312, Revenue (UC.II) Department, dated 20.05.1980, after

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allowing the statutory limit of 1500 sq.mts. Thereafter, since the petitioner

had violated the conditions imposed by the Government and without obtaining

permission from the Government, constructed a multistoried complex by third

parties in T.S.No.468 by removing the workshop, necessary proposals were

submitted to the Government to cancel the exemption granted for the said

land as he has leased out the workshop to M/s.Saboo brothers, Vijayawada,

thereby the Government vide Memo No.375/UC-III/82-85, Revenue UC-III

Department, dated 04.01.1995 had asked why the exempted land could not

be withdrawn by the Government under the provisions of the ULC Act and in

response, he submitted a reply stating that Rajakumari Talkies were leased

out in the year 1969 and the workshop was leased out in 1976. Thereafter,

the Government, upon receipt of the report from the office of the Competent

Authority, Urban Land Ceiling to the effect that the land Cinema theater was

leased out to other and the land in NTS No.468 is concerned the same is in

occupation of the third party and a multistoried commercial complex was

constructed therein; issued the impugned memo to Sri SMA Khadar asking

him as to why the exemption granted in G.O.Ms.No.976, dated 3.8.1977

should not be withdrawn in view of violation of the exemption conditions

prescribed in the said G.O. Thereafter, the petitioner filed revision petition

before the Government under Section 34 of the ULC Act requesting to revise

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the order dated 16.01.78 earlier issued under Section 8(4) of the Act passed

by the Special Officer and Competent Authority and the Government in Memo

No.31129/UC-III (2) 1999-26 Rev.UC-III Department, dated 08.07.2013 has

informed the declarant that ULC Act was repealed by Repeal Act, 1999,which

was adopted by the State of A.P. with effect from 27.03.2008 and in the said

Repeal Act, section 34 of the principal Act, 1976 is not saved and thereby the

petitioner filed this writ petition. It is incorrect to state that the land in NTS

No.468 is only 730 sq.mts and the ULC staff upon careful measurement of the

land confirmed the extent to be 802.67 sq.mts and moreover the petitioner

himself admitted that he is having 802.67 sq.mts in NTS NO.468. The

Government had exempted on conditional basis on the condition that the

subject lands should be utilized for the purpose of said industry. It is incorrect

to state that the buildings constructed prior to the commencement of the Act,

do not attract the provisions of the ULC Act. Since the declarant had not

applied to Government to reopen the file in terms of the decision in Meera

Gupta vs. State Government of West Bengal for cancellation of the

exemption granted under Section 20(1)(a) of the ULC Act on the ground that

since the subject premises are covered with buildings by the date of coming

into force of the Act, the subject lands cannot be computed as vacant land.

Further, since the Act was repealed in Andhra Pradesh with effect from

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27.03.2008 saving the exemptions under Section 20(1)(a) of ULC Act, the

case of the petitioner for providing benefits under the decision referred to

supra deserves no consideration. The petitioner, pursuant to issuance of the

order under Section 8(4) of the Act by the Competent Authority, had

approached the Government and filed exemption application for granting

exemption to the above industries and thereupon the Government had asked

the Special Officer and Competent Authority and pursuantly the matter was

referred to the Inspector of Survey for furnishing the particulars and as the

Inspector of Survey had caused delay in sending the reply, the Government

had exempted the above two industries under Section 20(1)(b) of the ULC Act

and therefore, the question of issuance of statutory proceedings under

Section 9 of ULC Act does not arise. The declarant in violation of the

exemption granted vide G.O.Ms.No.976, dated 03.08.1977, disposed of the

land admeasuring 802.67 sq.mts. to others wherein a multistoried complex

was constructed. The declarant himself had admitted in his statement about

possessing an extent of 1550 Sq.mts. in R.S.No.84 of Bhavanipuram and

accordingly, the same was included in the holdings of the declarant and the

averment contra is false. Since the declarant had violated the conditions of

Section 20(1)(a) of the ULC Act and disposed of the exempted land to third

party, who occupied and constructed a multistoried complex in the exempted

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land, the impugned proceedings came to be issued, since the repealed Act

saves the exemptions granted under section 20(1)(a) of the Act and the

exempted lands continue to be surplus lands and violation of conditions gives

right to the Government to withdraw the exempted lands after due process of

law. Accordingly, the impugned proceedings were issued. The writ petition

being meritless deserves dismissal.

4. The respondent no.2-joint Collector filed additional affidavit

contending that a Special Surveyor and Special Revenue Inspector were

deputed to inspect the land and submit ground report in relation to the

property situated in NTS No.468 (R.S.No.601, Revenue Ward No.10) of

Vijayawada and they found that the subject land is used for commercial

purpose and the subject land was occupied by a three storey building (G+3)

for commercial purpose with the name “MALABAR GOLD & DIAMONDS” and

the location of the said building is matching with the boundaries mentioned in

the schedule submitted by the declarant at the time of submitting declarations

before the competent authority. It revealed in the enquiry that Malabar Gold

& Diamonds had taken the land on lease since 10 years from Mallineni

Trading Pvt. Ltd. and thus the writ petitioner had violated the conditions of

exemption issued vide G.O.Ms.No.976, dated 03.08.1977 even before the

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repeal of the ULC Act, 1976 and there is continuous exchange of notices/

correspondences since 1955, regarding the said violation of conditions.

5. Heard Sri Patanjali, learned counsel, for Sri P.Sri Ram, learned

counsel for the petitioner and Sri Vishnu Teja, learned Special Government

Pleader.

6. During the course of arguments, the learned counsel for the

petitioner confined his arguments only in relation to the property covered by

NTS No.468, which is one of the properties exempted under G.O.Ms.No.976,

dated 03.08.1977.

7. The learned counsel for the petitioner, while reiterating the contents

of the writ affidavit, would contend that the property covered under NTS

No.468 (R.S.No.601, Revenue Ward No.10), which was exempted from the

operation of ULC Act by the Government vide G.O.Ms.No.976, dated

03.08.1977 was leased out under registered lease deed much prior to

granting of exemption as evidenced by the observations made in the

proceedings initiated by Indian Bank, Governorpet, Vijayawada Branch for

realization of the loan facility availed by the petitioner upon creation of

equitable mortgage over the subject property vide O.S.No.106 of 1973 by the

learned II Additional Subordinate Judge, Vijayawada and in A.S.No.97 of 1982

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by this Court and moreover the condition laid in the exemption G.O. is only to

the effect that the land should be utilized for the purpose of the said industry

and there was no condition prohibiting alienation or leasing out of the

property and since commercial activity is still going on, there was no violation

of any conditions at all. The learned counsel would further contend that as

per section 3 of the repeal Act 15/99, the orders granting exemption under

Sub-Section 1 of Section 20 of the Principal Act are saved and except granting

exemption the entire Act was repealed and therefore, the Government have

no power to exercise its right to withdrawal of exemption under section 20(2)

of the Act 33/1976. However, without having any authority or jurisdiction, the

memo came to be issued and under the guise of such an unsustainable memo

now the second respondent is threatening to take action in pursuance thereof.

Therefore, the memo impugned is liable to be aside. Accordingly, prayed to

allow the writ petition.

In support of his contentions, the learned counsel for the petitioner

relied on the decisions in Surender Raj Jaiswal and another vs. The

Principal Secretary to Government, Revenue, (U.C.III), Department

and another

1

and State of Uttar Pradesh vs. Hariram

2

.

1

. Orders of the High Court of Andhra Pradesh dated 24.08.2011 passed in W.P.No.26474 of 2009

2

. (2013) 4 SCC 280

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8. On the other hand, the learned Special Government Pleader, would

submit that the declarant has violated the conditions of Section 20(1)(a) of

the ULC Act and disposed of the exempted land to third party, who

constructed a multistoried complex with the name “MALABAR GOLD &

DIAMONDS” in the exempted land and therefore, the memo impugned in this

writ petition was issued. The learned Special Government Pleader would

further contend that as per clause (b) of Section 3(1) of the repeal Act; the

validity of any exemption order under Section (1) of Section 20 of the

Principal Act and also the action taken thereunder are declared immune from

the consequences of repeal. Section 3(1)(b) of the Repeal Act does not

expressly bar or take away the rights and liabilities under an exemption order

and Section 6 of the General Clauses Act becomes applicable with all its force,

and hence, the repeal of the Principal Act, would not affect the rights,

privileges, obligation or liability, acquired, accrued, or incurred under the

principal Act qua section 20(1) exemption order. Therefore, since the

petitioner has violated the exemption granted to him, the conditions of grant

would come into play and pursuantly the notice impugned in this writ petition

has been issued directing the petitioner to show cause as to why the

exemption granted in G.O.Ms. No.976, dated 03.08.1977 for the land in NTS

No.468, Block No.10, Vijayawada, should not be withdrawn for violating the

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conditions prescribed in the said G.O. There are no merits in the writ petition

and the same deserves dismissal. Accordingly, prayed to dismiss the writ

petition.

In support of his contentions, the learned Special Government Pleader

relied on the decisions in Maharashtra Chamber of Housing Industry,

Mumbai and others vs. State of Maharashtra and another

3

and

Bombay Wire Ropes Ltd., and another vs. State of Maharashtra and

others

4

.

9. Perused the material available on record and considered the

submissions made by both the learned counsel.

10. At the outset it is relevant here to mention that the petitioner while

assailing the Memo 31129/UC.III(2)/1999, dated 03.09.2012 and the rejection

orders passed vide Memo.No.31129/UC.III(2)/1999-26, dated 08.07.2013

prayed for a declaration that the petitioner is entitled to hold the urban land

declared by them, which was exempted as per G.O.Ms.No.976 dated

03.08.1997 and G.O.Ms.No.2312, dated 20.05.1980. However, the relief

sought in relation to the property situated in NTS No.240 and the property

3

. 2014 SCC Online Bom 1083

4

. 2019 SCC online Bom 264

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exempted under G.O.Ms.No.2312, dated 20.05.1980 was not pressed and the

relief sought in the writ petition is confined only in respect of the property

exempted as per G.O.Ms.No.976, dated 03.08.1997 viz., the land measuring

2,404.85 Sq.Mts. in N.T.S.No.468 (R.S.No.601 Revenue Ward No.10) of

Vijayawada village in Vijayawada Urban Agglomeration. It is the specific

contention of the petitioner that he had never violated any of the conditions

of exemption. Therefore, it is needless to consider the contentions and

submissions made by the learned counsel for the parties either with regard to

the other property exempted under G.O.Ms.No.976, dated 03.08.1997 and

also the property exempted under G.O.Ms.No. 2312, dated 20.05.1980 or with

regard to the contentions raised by the learned counsel for the parties in

relation to the rejection order dated 08.07.2013, other than the ones

concerned to violation or not of the conditions of exemption granted in

G.O.Ms.No.976, dated 03.08.1997, regarding the property situated in NTS

No.468.

11. There is no dispute regarding granting of exemption to the subject

property. For quick reference the Government Order under which the said

exemption was granted to the petitioner in relation to the subject property

and another property is extracted hereunder:

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“Whereas Shri S.M.A.Khader, S/o.S.M.A.Haq, Vijayawada hold vacant land

measuring 2,404.85 sq.Mts. in N.T.S.No.240 (Block No.6, Revenue Ward No.7)

and N.T.S.No.468 (R.S.No.601 Revenue ward No.10) of Vijayawada 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).

2. AND WHEREAS the entire extent of land measuring 2,404.85 Sq.Mts. is

essential to run the Cinema Theatre and Work Shop.

3. 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.

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

(Central Act, 33 of 1976) the Governor of Andhra Pradesh hereby exempts the

land measuring 2,404.85 Sq.Mts. in N.T.S.No.240 (Block No.6 Revenue Ward

No.7) and N.T.S.No.468 (R.S.No.601 Revenue Ward No.10) of Vijayawada

village in Vijayawada Urban Agglomeration mentioned in Para two above

subject to the condition that the said land should be utilized for the purpose of

said Industry.”

12. The terms of the Government Order in unequivocal terms says that

the land in NTS No.468 was exempted from the operation of the provisions of

the Urban Land Ceiling Act subject to the condition that the said land should

be utilized for the purpose of running workshop.

13. The additional affidavit filed by the 2

nd

respondent- Joint collector

and Competent Authority, Urban Land Ceiling, Vijayawada and the reports of

the Special Revenue Inspector & Special Surveyor, ULC, Vijayawada dated

02.08.2024 and 03.08.2024 and the photographs annexed to the said

additional affidavit show that the land in NTS No.468 exempted under

G.O.Ms.No.976, dated 03.08.1977 was covered with a three storey building

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(G+3) used for commercial purpose with the name MALABAR GOLD &

DIAMONDS and enquiries reveal that the said firm has taken the said land on

lease from Mallineni Trading Private Limited and therefore, the petitioner had

violated the conditions of exemption issued vide G.O.Ms.No.976, dated

03.08.1977.

14. Section 3 of the Urban Land (Ceiling and Regulation) Repeal Act,

1999, which is adopted by the State of Andhra Pradesh with effect from

27.03.2008, reads thus:

“3. Savings – (1) the repeal of the principal Act shall not affect-

(a) the vesting of any vacant land under sub-section (3) of section 10,

possession of which has been taken over by the State Government or any

person duly authorised by the State Government in this behalf or by the

competent authority;

(b) the validity of any order granting exemption under sub-section (1)of

section 20 or any action taken therunder , notwithstanding any judgment of

any Court to the contrary;

(c) any payment made to the State Government as a condition for granting

exemption under sub-section (1) of section 20.

(2)Where-

(a) any land is deemed to have vested in the State Government under sub-

section (3) of section 10 of the principal Act but possession of which has not

been taken over by the State Government or any person duly authorised by

the State Government in this behalf or by the competent authority; and

(b) any amount has been paid by the State Government with respect to such

land, then, such land shall not be restored unless the amount paid, if any,

has been refunded to the State Government.”

15. In the decision in Maharashtra Chamber of Housing Industry,

Mumbai and others (supra 3) relied on by the learned Special Government

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Pleader, Full Bench of Bombay High Court while deciding the issue as to

whether the associations which have taken benefit of the schemes under

Section 20 of the ULC Act and constructed buildings subject to the condition

that they have to surrender certain number flats to the State Government,

could be allowed to contend that, in view of repeal of ULC Act, their

obligations under the said scheme do not survive and there is no need for

them to surrender flats to the government, held thus:

“196. It is settled that a saving provision in a repeal statute is not exhaustive of

the rights, obligations so saved or rights that survives the repeal as is clear from

the judgment of the Constitution Bench in the case of Bansidhar v. State of

Rajasthan reported in (1989) 2 SCC 557. It is, therefore, imperative that section 6

of the General Clauses Act which provides for the effect of a repeal, stands

completely attracted. Section 6(c) of the General Clauses Act provides that the

repeal shall not affect any right, privilege, obligation or liability acquired, ‘accrued

or incurred under any enactment was repealed unless a different intention

appears.

197. A proper examination of the provisions of the Repeal Act and more

particularly the provisions of sections 3 and 4 do not indicate that it would be the

intention of the Legislature to save the validity of a section 20(1) Exemption Order

to exclude the enforcing power being applicability of Chapter III of the Principal

Act being one of the conditions under the exemption order. It cannot be said that

the rights accrued and the liabilities incurred under section 20(1) exemption order

stands completely effaced when the validity of such an exemption order has been

saved by the provisions of section 3(1)(b) of the Repeal Act. As no such contrary

intention can be gathered from the provisions of the Repeal Act, the petitioner's

contentions that the validity of the exemption order as saved by section 3(1)(b) of

the Repeal Act is valid de hors the conditions of the exemption order cannot be

accepted on the basis of the plain wordings of section 3(1)(b) of the Repeal Act. In

the decision of the Supreme Court in the case of Shantibai Gaikwad v. Shivajibhai

Haribhai, reported in (2001) 5 SCC 101, the Supreme Court has once again

recognized the principle that a repealing statute is not exhaustive and does not

automatically extinguish accrued rights unless they are taken away completely.

The Repeal Act in no manner expressly takes away the applicability of the

conditions under section 20(1) exemption order. In fact the intention of the

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legislature is to wholesomely save the validity of an exemption order which ipso

facto include the teeth namely to take action under Chapter III of the Principal Act

in case of breach of the condition under which an exemption has been granted for

the beneficiary of the section 20(1) of the order.

198. The petitioners contention that for some reason the scheme under a section

20(1) order could not be completed and hence the exemption order cannot be

enforced due to the repeal of the Principal Act, cannot be accepted. Once the

legislature holds an exemption order issued under section 20(1) to be valid, all

incidental powers which are necessary to preserve its validity would be available to

the State. This would be firstly by virtue of the clear provisions of section 3(1)(b)

of the Repeal Act and secondly by virtue of the provisions of section 6 of the

General Clauses Act. Any other interpretation would be nothing short of doing a

violence to the solemn intention of the legislature in saving the validity of an

exception order by in view of the express provisions of section 3(1)(b) of the

Repeal Act.

199. In view of the aforesaid discussion, the legal position as would emerge can

be summarized as under:—

(a) section 3(1)(b) of the Repeal Act saves the validity of an order granting

exemption under sub-section (1) of section 20 or any action taken

thereunder, notwithstanding any judgment of any Court to the contrary.

(b) this would mean that the validity of section 20(1) exemption order is saved

in every regard so as to hold the same valid for all the purposes.

(c) the phrase “validity” would mean that an exemption order would be

construed to be valid in regard to all the rights and liability attached to such

an exemption order. These rights and liabilities may be either of the

beneficiary of the exemption order or the Government.

(d) As section 3(1)(b) of the Repeal Act does not expressly bar or take away

the rights, and liabilities under an exemption order, section 6 of the General

Clauses Act becomes applicable with all its force, and hence, the repeal of

the Principal Act, would not affect the rights, privileges, obligation or

liability, acquired, accrued, or incurred under the Principal Act qua a section

20(1) exemption order.

(e) Any other interpretation would render section 3(1)(b) of the Repeal Act to

the extent it saves the validity of a section 20(1) exemption order

meaningless, as section 3(1)(b) of the Repeal Act not only saves the validity

of section 20(1) exemption order but also any action taken thereunder

notwithstanding any judgment of any Court to the contrary.

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(f) If the Legislature in so many words has saved the validity of a section 20(I)

exemption order then it would be absurdity to say that on one hand the

legislature has saved its validity and on the other hand such a validity

would be required to be read as meaningless in view of repeal of the

Principal Act.

(g) The arguments of the petitioners that what is saved under section 3(1)(b)

of the Repeal Act are only actions which stand completed and closed, is per

se not acceptable for the reason that such interpretation would only be

possible when there is no saving clause in the repealing statute. More

particularly it is also unacceptable in view of a saving clause of the nature

section 3(1)(b) of the Repeal Act provides. A plain reading of section

3(1)(b) definitely cannot be construed to attribute such a meaning to

section 3(1)(b).

(h) The Repeal Act, if construed in its entirety, manifest a clear intention of the

Legislature to save the validity of a section 20(1) exemption order in totality

including its enforceability as observed by my learned brother.”

16. In the above decision, the Full Bench held at point (d) of Para-181

as follows:

“181 in the light of the above discussion, my answers to the questions

referred to the Full Bench are as follows:

(a) x x x x x x

***********

(d) Question (3)(b) in the Affirmative, with a clarification that the order of

exemption can be implemented or enforced otherwise than by recourse to

the Urban Land (Ceiling and Regularization) Act, 1976. The State may

enforce the order together with its conditions through a Court of law or

devise any legislative or executive means to implement the order of

exemption and its conditions. The enforceability of the order, and legality

of the measure adopted for its implementation will, however, have to be

decided in the facts and circumstances of each individual case.

xxxxxxxxxx”

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17. Therefore, the enforceability of the order of exemption and legality

of the measure adopted for its implementation will, however, have to be

decided in the facts and circumstances of each individual case.

18. As stated supra, the condition imposed while granting exemption in

the instant case is that the land in NTS No.468 covered by the subject G.O.

shall only be used for the purpose of running workshop. In the case covered

by the decision referred to above Maharashtra Chamber of Housing

Industry, Mumbai and others (supra 3), the condition imposed was that

the association shall handover certain number of constructed flats to the

Government. Therefore, keeping in view the observations made at para-

181(d) of the judgment referred to supra, the decision arrived at by the Full

Bench of Bombay High Court at paras-196,197,198 and 199 extracted above

cannot be made applicable to the facts of the case on hand, since the

condition imposed in the instant case while granting exemption was that the

premises shall only be used for the purpose of running workshop, whereas

the condition imposed in the case covered by the Maharashtra Chamber of

Housing Industry, Mumbai and others (supra 3) was that certain number

of constructed flats are to be handed over to the Government i.e. to say the

exemption granted created an interest in favour of the Government in the

flats to be handed over to the Government.

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19. In the decision relied on by the learned counsel for the petitioner in

Surender Raj Jaiswal & another (supra 1), while dealing with the similar

question as to whether permission is necessary to change use the land

covered under the exemption proceedings for other purposes, a coordinate

bench of this court while was at Hyderabad, after extracting Sections 3 and 4

of the Repeal Act 15/99, held thus:

“From a perusal of the aforesaid provisions under Section 3 and 4 of the

Urban Land (Ceiling and Regulation) Repeal Act of 1999, it is clear that the

orders granting exemption under sub-section (1) of Section 20 of the principal

Act are saved. It is also clear from a perusal of the provisions under Section

3(1)(c) of the Repealing Act that repeal of the principal Act shall not affect

any payments made to the State Government as a condition for granting

exemption under sub-section (1) of Section 20 of the principal Act. But, at the

same time, the provision under sub-section (2) of Section 20 is not saved.

Section 20(1) of the principal Act empowers the Government to exempt any

land subject to certain conditions, but under sub-section (2) of Section 20 of

the principal Act, the Government was empowered to withdraw such

exemption in cases where conditions are violated. A harmonious reading of

the provisions under Sections 20(1) and 20(2) of the principal Act, coupled

with Section 3 of the Repealing Act, makes it clear that the order granting

exemption is saved only with a view to avoid repayment of any amounts

collected by the State Government, while granting exemptions. When the

principal Act itself is repealed on the ground that it has failed to achieve the

objective expected of it, it is not open for the 1

st

respondent-Government to

refuse permission in the instant case, only on the ground that the conditions

imposed in the order granting exemption shall continue to operate. In the

absence of any saving clause, saving sub-section (2) of Section 20 of the

principal Act, even in cases where conditions are violated, Government is not

empowered to withdraw the exemptions granting under Section 20(1) of the

principal Act, after coming into force of the Urban Land (Ceiling Regulations)

Repeal Act, 1999. In the absence of such power, and further, in view of the

Repealing Act itself, the conditions imposed in the order granting exemption,

have become unenforceable and are non-est. In the absence of initiation of

proceedings or withdrawal of exemption granted under Section 20(1) of the

principal Act before the enforcement of the Urban Land (Ceiling and

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Regulation) Repeal Act, 1999, the land, which is exempted, will become a

free-hold land, and hence, the stand of the respondents that even after

coming into force of the of the Repealing Act,1999, the conditions imposed in

the order granting exemption under Section 20(1) of the principal Act shall

continue to operate, cannot be accepted. The said interpretation will run

contra to the every objection of the Urban Land (Ceiling and Regulation)

Repeal Act,1999. Said view also gains support from the other provisions of

the Repealing Act, particularly Section 4, which states that all proceedings

relating to any order made or purported to be made under the principle Act,

pending immediately before the commencement of the Urban Land (Ceiling

and Regulation) Repeal Act of 1999, shall stand abate, except in cases where

possession is taken by the State Government or any person duly authorized

by the State Government on behalf of the competent authority. Having regard

to the provisions under Section 20(1) and (2) of the Urban Land (Ceiling and

Regulation) Act, 1976 and the provisions under Section 3 and 4 of the Urban

Land (Ceiling and Regulation) Repeal Act,1999, it is to be held that in cases

where the vacant land is exempted under Section 20 of the principal Act and

where such exemption is not withdrawn before the enforcement of the

Repealing Act,1999, such land will become the free-hold land irrespective of

any conditions with regard to usage of the exempted land. As held above, as

the land in question has become the free-hold land in view of the Repealing

Act,1999, there appears no reason or justification for not granting permission

to use the land covered by exemption proceedings, for the purpose of

multiplex theatre-cum-shopping complex. In a strict sense, no such

permission is necessary, but, when the competent authority under the Greater

Hyderabad Municipal Corporation Act has not received the application,

petitioner had to approach the Government, and as permission is denied by

misconstruing the various provisions of the Repealing Act,1999, the impugned

order is liable to be set aside.”

20. In the case covered under the decision referred to supra-1, when

the petitioners therein sought permission of the authorities to change use of

the land covered under the exemption from Cinema hall to Multiplex Theatre-

cum-shopping complex, the same was denied by the authorities by issuing a

memo. The said memo with the observations referred above was set aside by

coordinate bench of this Court holding that after coming into force of the

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Repealing Act,1999, the said land would become a free-hold land and as such

no permission whatsoever is required for changing use of the land.

21. In the instant case, as stated supra, it is contended in the additional

counter that use of the land exempted under G.O.Ms.No.976, dated

03.08.1977 was changed and a three storey building was built therein and

therefore the petitioner had violated the terms of exemption and the

proceedings impugned in the writ petition has been issued directing the

petitioner to submit explanation as to why the exemption granted under

G.O.Ms.No.976 cannot be withdrawn.

22. In view the observations made by a coordinate bench of this Court,

as the land became a free hold land in view of the provisions of the Repealing

Act, 1999, issuance of the impugned memo calling upon the petitioner to

show cause as to why exemption cannot be withdrawn, is unsustainable and

the same is liable to be set aside.

23. As already stated above, this Court is not inclined to go into the

other aspects raised by the parties, since the petitioner had confined the relief

so far as the property situated in NTS No.468 covered under G.O.Ms.No.976,

dated 03.08.1977.

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24. In the above view of the matter, this writ petition is allowed, setting

aside the memo No.31129/UCIII(2)/99, dated 03.09.2012. There shall be no

order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

JUSTICE RAVI CHEEMALAPATI

Note: L.R.copy be marked.

B/o

RR