Research › Search › Judgment

Andhra High Court · body

2011 DIGILAW 291 (AP)

Rahul Kumar v. State of U. P.

2011-03-29

body2011
ORDER :- This writ petition is filed with the following prayer: "to issue a writ, order or a direction, one in the nature of writ of mandamus, declaring the Memo No.9609/UC.III/I/2009-11, dated 29.1.2011 issued by the Ist respondent herein holding that the "...change of land use amounts to violation of the conditions of exemption granted earlier and accordingly hereby reject the request of the petitioners Sri Jeetial Ramnarayan Jaiswal and (2) others for change of land use covered by exemption under Section 20(1)(a) of the Principal Act, 1976 to an extent of 4,550 sq. meters, situated at Premises No.3-5-6061/1, 1061, 1062, 3-5-1062 at Narayanguda from existing Cinema Theatre to Multiplex Theatre cum-Shopping-complex", as illegal, arbitrary and unjust and against the provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999." 2. By the aforesaid impugned order, dated 29th January 2011, passed in Memo No.9609/UC.111/1/2009-11, the Government has rejected the claim of the petitioners, seeking permission to construct a multiplex theatre-cum-shopping complex in the place of the existing cinema theatre. 3. The petitioners are the owners and possessors of the premises bearing No.3-56061/1,1061, 1062 and 3-5-1062, admeasuring an extent of 4550 sq. metres of land and structures, situated at Narayanguda in Hyderabad Urban Agglomeration. The said premises is being used for running a cinema theatre, namely, 'Deepak Mahal Cinema'. On the advent of the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, the petitioners have filed declarations declaring various extents of land held by them along with their father. They also filed an application before the Government, seeking grant of exemption from Chapter-III of the Act, with regard to the aforesaid property, for running a cinema theatre. On the application of the petitioners, the Government has called for a report from the Commissioner of Land Reforms and Urban Land Ceiling, and thereafter, vide G.O. Ms. No.1117, dated 13.7.1981, granted exemption, exempting an extent of 4550 sq. metres of land bearing MCH No.3-5-6061/1, 1061, 1062 and 3-51062, subject to condition that the said land should be utilized only for the purpose of running a cinema theatre, and subject to further conditions, which read as under: "(a) The land should not be leased out or sold without the permission of the Government. metres of land bearing MCH No.3-5-6061/1, 1061, 1062 and 3-51062, subject to condition that the said land should be utilized only for the purpose of running a cinema theatre, and subject to further conditions, which read as under: "(a) The land should not be leased out or sold without the permission of the Government. (b) The land should be utilized for the said purpose failing which the exemption shall stand cancelled and the excess land will be subject to the provisions of Urban Land Ceiling Act. (c) The land may be mortgaged to any bank as defined under clause (a) of subsection (iii) of Section 19, including A.P. State Financial Corporation for the purpose of raising finances." In view of the exemption granted by the Government, the petitioners are using the said property for the purpose of running a cinema theatre, which they are running in the name and style of "Deepak Mahal Cinema" at Narayanguda, Hyderabad. 4. On the ground that the said theatre building has become old and the Greater Hyderabad Municipal Corporation also has taken up road widening, which affected the premises of the petitioners, and that the remaining area will not be sufficient for parking and also to maintain Fire Safety Rules and Regulations under the Cinematography Act, having decided to construct a multiplex theatre-cum-shopping complex, they wanted to seek permission from the authorities of the Greater Hyderabad Municipal Corporation (GHMC). Alleging that the authorities of GHMC have not entertained the application for want of clarification/necessary permission from the Government, they approached the Government by filing a representation. On the ground that their representation was not being considered by the Government to permit them to grant permission for construction of a multiplex theatre-cum shopping complex, they approached this Court and filed the present writ petition, and pursuant to interim orders granted by this Court, respondents have passed orders, dated 29th January 2011, in Memo No.9609/UC.III/1/2009-11, rejecting the request of the petitioners. In view of the amendment, which is permitted by this Court, they are questioning the order of the Government, dated 29th January 2011. In view of the amendment, which is permitted by this Court, they are questioning the order of the Government, dated 29th January 2011. In the aforesaid order, it is stated that the land exempted under Section 20(1)(a) of the Principal Act of 1976 was save under the provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, which came into effect in the State of Andhra Pradesh from 27.3.2008, as such, the repeal of the Principal Act will not have any effect on the lands exempted under Section 20(1)(a) of the Principal Act. It is stated that in view of the aforesaid saving clause, granting permission for change of land use amounts to violation of conditions of exemption granted earlier, as such, petitioners are not entitled to construct a multiplex theatre-cum-shopping complex in the place of the existing cinema theatre. 5. In this writ petition, it is the case of the petitioners that in terms of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, which is adopted by the State of Andhra Pradesh with effect from 27.3.2008, the petitioners are entitled to use the property for construction of a multiplex theatre-cum shopping mall. It is the case of the petitioners that by virtue of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, in the absence of any provision saving subsection (2) of Section 20 of the Principal Act, it cannot be said that the petitioners have to use the land only for the purpose of cinema theatre. On the aforesaid plea, it is contended by the learned Counsel Sri Mahmood Ali. appearing for petitioners that in the absence of taking any action for cancellation of exemption before the enforcement of the provisions under the Urban Land (Ceiling and Regulation) Repeal Act, 1999, it cannot be said that the conditions imposed in the order of the Government granting exemption shall continue to operate. It is submitted by the learned Counsel that in view of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, all pending proceedings shall stand abate and as much as the land in question is already exempted in terms of Section 20(1)(a) of the Principal Act, and in the absence of saving provision with regard to Section 20(2) of the Principal Act, the conditions are unenforceable and they are non est in law. 6. 6. Counter-affidavit is filed by the 1st respondent-Principal Secretary to Government, Revenue (Urban Land Ceilings) Department. In the counter-affidavit, it is stated that after issuing the provisional statement declaring the surplus vacant land, the declarant has applied for exemption under Section 20(1)( a) of the Act, for an extent of 4550 sq. metres and exemption was granted vide G.O. Ms. No.1117, Revenue (UC.III) Department, dated 13.7.1981, but subject to the condition that the land should be utilized only for the purpose of cinema theatre. Referring to the application filed by the petitioners, dated 11.5.2009, requesting for grant of no objection to demolish the existing Deepak Mahal Cinema Theatre and Lo reconstruct a multiplex theatre-cum-shopping complex, it is stated that orders are passed in Memo No.9609/UC.III/l-2009/1, dated 29.1.2011, rejecting the request of petitioners since the Urban Land (Ceiling and Regulation) Repeal Act, 1999 save the orders issued under Section 20(1)(a) of the Principal Act. It is stated that in view of the saving clause under the Repeal Act of 1999, saving the provision under Section 20(1)(a) of the Principal Act, the conditions imposed in the order granting exemption in favour of the petitioners, shall continue to operate, as such, petitioners are not entitled to construct a multiplex theatre-cum-shopping complex. With the aforesaid pleadings, respondents have prayed for dismissal of the writ petition. 7. On the aforesaid plea, it is contended by the learned Government Pleader appearing for respondents that as much as the very grant of exemption is subject to condition of using the premises in question only for cinema theatre, it is not open to the petitioners to use the said premises for any other purpose, namely, multiplex theatre-cum-shopping complex, which run contrary to the conditions imposed in the order. 8. The Urban Land (Ceiling and Regulation) Act, 1976 is an Act of Parliament, which is enacted with a view to take measures for exercising social control over the scarce resource of urban land, to ensure its equitable distribution among the various sections of Society and also to avoid speculative transactions relating to land in urban agglomerations. In the Principal Act, the ceiling limits are fixed in urban agglomerations in the schedule and a mechanism is provided to determine the excess vacant land in urban agglomerations. In the Principal Act, the ceiling limits are fixed in urban agglomerations in the schedule and a mechanism is provided to determine the excess vacant land in urban agglomerations. Under Section 20 of the said Act, the Government is empowered to exempt vacant land subject to such conditions as may be specified in the order. Section 20(2) of the Principal Act empowers the Government to withdraw the exemption in cases where conditions imposed in the orders granting exemption under Section 20(1)( a) and (b) are not complied with. Sections 20, 20(1) and 20(2) of the Urban Land (Ceiling and Regulation) Act, 1976 read as under: 20. Power to exempt.-(I) 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 clause (a) or clause (b) of sub-section (I) 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 1e provisions of this Chapter shall apply accordingly." 9. The aforesaid Act is repealed by Act 15/99 i.e. the Urban Land (Ceiling and Regulation) Repeal Act, 1999. From a perusal of the objects and reasons of this Repealing Act, it is clear that the Principal Act was repealed, as it has failed to achieve what was expected of it, and it resulted in escalation of land prices to unconscionable levels. Sections 3 and 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, read as under : "3. (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 authorized by the State Government in this behalf or the Competent Authority; (b) the validity of any order granting exemption under sub-section (I) of Section 20 or any action taken there under, 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 (I) 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 authorized 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. 4. 4. All proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the commencement of this Act, before any Court, Tribunal or other authority shall abate: Provided that this section shall not apply to the proceedings relating to Sections 11, 12, 13 and 14 of the Principal Act insofar as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the Competent, Authority." From a perusal of the aforesaid provisions under Sections 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 (I) of Section 20 of the Principal Act are saved. It is also clear from a perusal of the provision 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 Ist 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. 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 Ist 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 granted under Section 20(1) of the Principal Act, after coming into force of the Urban Land (Ceiling and Regulation) 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 un-enforceable and are nonest. 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 Regulation) Repeal Act, 1999, the land, which is exempted, will become a freehold land, and hence, the stand of the respondents that even after coming into force 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 very objective 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 Principal 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 Sections 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 freehold 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. 10. Accordingly, Memo No.9609/ UC.III/1/2009-11, dated 29.1.2011, issued by the 1st respondent, is hereby quashed, by directing the respondents to permit the petitioners to use their property covered by exemption proceedings, for the purpose of constructing a multiplex cinema theatre-cum shopping complex in the place of the existing cinema theatre, subject to grant of necessary permissions/licences by Competent Authorities under the relevant Statutes. 11. The writ petition is allowed, with the directions as indicated above. No costs.