Special Officer and Competent Authority, Ulc Vs. Jyothi Art Studio, a Partnership Firm Rep. by V. Nageswara Rao - Court Judgment

Excerpt:
- orderp. ramakrishnam raju, j.1. this writ appeal is filed by special officer-cum-competent authority, urban land ceilings, nampally, questioning the order passed by the learned single judge, allowing writ petition no. 7127 of 1996.2. respondent is a registered firm. it has purchased an extent of 3009.17 sq. yards of vacant site-equivalent to 252537 sq. metres, from the a.p. housing board, in public auction held on 28-12-1994 for a consideration of rs. 37,67,330/-. on receipt of consideration, the a.p. housing board, represented by its estate officer, executed a registered sale deed bearing document no. 677/95 dated 24-2-1995 in favour of respondent-firm, and accordingly, possession was delivered.3. the respondent-firm, with a view to construct a cinema theatre in the above plot of land,.....

Judgment:
ORDER

P. Ramakrishnam Raju, J.

1. This writ appeal is filed by Special Officer-cum-Competent Authority, Urban Land Ceilings, Nampally, questioning the order passed by the learned single Judge, allowing Writ Petition No. 7127 of 1996.

2. Respondent is a registered firm. It has purchased an extent of 3009.17 sq. yards of vacant site-equivalent to 252537 sq. metres, from the A.P. Housing Board, in public auction held on 28-12-1994 for a consideration of Rs. 37,67,330/-. On receipt of consideration, the A.P. Housing Board, represented by its Estate Officer, executed a registered sale deed bearing document No. 677/95 dated 24-2-1995 in favour of respondent-firm, and accordingly, possession was delivered.

3. The respondent-firm, with a view to construct a Cinema Theatre in the above plot of land, approached several authorities, including Hyderabad Urban Development Authority (HUDA), seeking 'No Objection Certificate'. The HUDA while endorsing 'No Objection', through its letter dated 9-1-1996, imposed a condition that the clearance is subject to obtaining clearance from the Urban Land Ceilings viz., the appellant. Accordingly, the respondent-firm approached the appellant by filing declaration on 3-2-1996 under Section 6(1) of Urban Land (Ceiling and Regulation) Act, 1996 (sic. 1976)-hereinafter called 'The Act'. Curiously, the appellant-Competent Authority, passed an order dated 18-3-1996 under Sections 8(4) and 9 of the Act, holding that the respondent-firm is entitled to hold an extent of 1000 sq. metres only under Section 4(1)(b) of the Act, and as such, the balance extent of 1515.97 sq. metres is determined as surplus land. Questioning the said order, the respondent- firm filed the writ petition. The learned single Judge allowed the writ petition holding that the nature of the land has to be determined with reference to the Master Plan which was existing as on the date of commencement of the Act and not according to the Master Plan prepared subsequent to the commencement of the Act, and inasmuch as Kukatpalli, where the land is situate, is beyond the Municipal limits of Hyderabad as on the date of the commencement of the Act, and the Master Plan covering the said land came to be prepared and published only on 29-9-1980, which is much leter to the commencement of the Act, the provisions of the Act have no application to the said land. In this view of the matter, the learned single Judge, did not decide whether the firm should be treated as jurisdic (sic. juridical) person/ individual, or whether the land should be divided notionally between the partners for purpose of computation under the Act.

4. The question, whether the area, in which the vacant site is situated which is not included in the Master Plan at the time of commencement of the Act, but was included in the Master Plan subsequent to the commencement of the Act, is governed by the provisions of the Act or not, has to be decided in the Batch of Writ Appeals which are admitted and pending. But this writ appeal need not be deferred for decision till then, inasmuch as the same can be derided on the other point which is left undecided as unnecessary by the learned single Judge.

5. The contention of the respondent-firm is that inasmuch as it has purchased an extent of 3009.17 sq. yards of vacant site, equivalent to 2525.97 sq. metres, the said land has to be notionally divided among the partners for purpose of ascertaining, whether they have any surplus land under the Urban Land (Ceiling and Regulation) Act, 1976; but the entire land cannot be shown in the holding of the firm ignoring its partners. Section 69 of the Indian Partnership Act, 1932 reads as follows:

'69. EFFECT OF NON-REGISTRATION:-

(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.

(2) No suits to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.

(3) .....................

(4) .....................'

Therefore, it is clear that unless firm is registered and unless its partners are recorded in the Register of Firms, no suit shall lie by or against the firm or its partners. Thus, under the Partnership Act, the assets and liabilities of the Partnership firm will have to be shared in proportion to the contribution made by each of the partners. However, the question is whether the same is the situation even under Urban Land (Ceiling and Regulation) Act, 1976. Sub- section (5) of Section 4 is relevant for deciding this question and it is usefully extracted hereunder:

'4(5) Where any firm or unincorporated association or body of individuals holds vacant land or holds any other land on which there is a building with a dwelling unit therein, or holds both vacant land and such other land, then, the right or interest of any person in the vacant land or such other land or both, as the case may be, on the basis of his share in such firm or association or body shall also be taken into account in calculating the extent of vacant land held by such person.'

In view of this specific provision, the entire land held by a firm has to be nationally divided among the partners for purposes of determining the vacant land held by each partner. Of course, if he has any other vacant land in addition to his share in the land held by the firm, the same has to be added for purpose of determining excess land. The same view was taken by this Court in Writ Petition No. 7863 of 1986 dated 13-2-1989 which was confirmed in Writ Appeal No. 204 of 1990 dated 26-2-1990, wherein, it is held that in view of sub- section (5) of Section 4, it is not possible to treat the firm as a person by itself and to determine its holding separately. It may also be noticed that the S.L.P. (Civil) No. 4453 of 1991 filed against the judgment in Writ Appeal No. 204 of 1990 dated 26-2-1990 was also dismissed by the Supreme Court with the following observation:

'The Division Bench of the High Court has positively held that the land held by the firm has necessarily got to be apportioned between the partners of the firm, and after doing so, it has to be added to their individual holdings/lots. It is the avowed case of the respondents that these partners do not individually own any land. Be that as it may, the matter stands remanded to the Competent Authority which is expected to be alive to the issue, should there be any individual holding of an extent with the respondents. The order of the High Court does not necessitate any interference. The S.L.P. is therefore dismissed.'

In view of this legal position, we have no hesitation in confirming the order of the learned single Judge, and dismiss the writ appeal, but on a different 15 ground as stated above.

6. The Writ Appeal, therefore, fails, and is accordingly dismissed.