Supreme Court of India

Omprakash Verma & Ors vs State Of A.P. & Ors on 8 October, 2010

Supreme Court of India
Omprakash Verma & Ors vs State Of A.P. & Ors on 8 October, 2010
Bench: P. Sathasivam, B.S. Chauhan
                                                                         REPORTABLE

                  IN THE SUPREME COURT OF INDIA


                  CIVIL APPELLATE JURISDICTION


                     CIVIL APPEAL NO. 998 OF 2007




Omprakash Verma & Ors.                                                 .... 

Appellant(s)



            Versus



State of Andhra Pradesh & Ors.                          . ... 

Respondent(s)


                                  WITH


                CIVIL APPEAL NO. 1024 OF 2007    


                CIVIL APPEAL NO. 6115 OF 2008    


                                  AND 


                     CIVIL APPEAL NO. 997 OF 2007


                 


                            J U D G M E N T 

P. Sathasivam, J.

1) These appeals are directed against a common

judgment and final order dated 17.01.2007 passed by the

High Court of Judicature, Andhra Pradesh at Hyderabad

in Writ Petition Nos. 4121, 4141, 4144 and 5776 of 2006

1

whereby the High Court dismissed all the writ petitions

preferred by the appellants herein challenging the validity

of G.O.Ms.No. 161, Revenue (UC-II) Department, dated

13.02.2006 and connected proceedings passed by the

State of Andhra Pradesh.

2) Brief facts:-

(a) One Mohd. Ruknuddin Ahmed and 10 others were the

original owners of land admeasuring 526.07 acres in

Survey No. 83 situated at Village Raidurg (Panmaktha) of

Ranga Reddy District in the State of Andhra Pradesh. Out

of the said land, an extent of 252.33 acres is assessed to

revenue as cultivable agricultural land and the remaining

extent of 273.14 acres is treated as pote-kharab(un-

cultivable) land. On 07.07.1974, the owners executed

registered General Power of Attorney (hereinafter referred

to as “GPA”) in favour of a partnership firm known as “Sri

Venkateswara Enterprises” represented by its Managing

Partners A. Ramaswamy and A. Satyanarayana. On

01.01.1975, the A.P. Land Reforms Act, 1975 came into

2

force. Since the land in Survey No.83 was an agricultural

land, the said owners filed eleven declarations under the

A.P. Land Reforms (Ceiling on Agricultural Holdings) Act,

1973 (hereinafter referred to as “the Land Reforms Act”)

and the Authority under the Land Reforms Act declared

about 99 acres as surplus in the hands of 4 declarants

and possession was also taken on 11.04.1975. The Urban

Land (Ceiling and Regulation) Act, 1976 (hereinafter

referred to as `the ULC Act’) came into force on

17.02.1976. The owners, through their GPA, filed

declarations under Section 6(1) of the ULC Act under a

mistaken impression that the ULC Act was applicable to

their land, though the same was inapplicable for the

reason that the land in question was agricultural land and

the same was not included in the Master Plan as on the

date of commencement of the ULC Act. On 01.07.1977,

draft statements under Section 8(1) of the ULC Act

together with notice under Section 8(3) were served

inviting objections to the draft statement prepared under

3

Section 8(1) of the ULC Act but no orders were passed on

any of the declarations. On 06.12.1979 & 25.01.1980,

final statements under Section 9 were issued declaring the

surplus area by each of the declarant. On 16.09.1980 &

30.01.1980, the Competent Authority issued notification

under Section 10(1) of the ULC Act.

(b) By G.O.Ms. No. 391 MA, dated 23.06.1980, the

Master Plan as on 17.02.1976 was amended and the land

in Survey No. 83 was included in the Second Master Plan

which came into force w.e.f. 29.09.1980 vide Government

Memo No. 1439-UC.I/80-2, dated 10.12.1980 as a result

of which re-computation of the land in the said Survey No.

83 had to be carried out in accordance with the ULC Act.

(c) By G.O.Ms.No. 5013 dated 19.12.1980, the State

Government, under Section 23 of the ULC Act, allotted

468 acres out of the said land to Hyderabad Urban

Development Authority (hereinafter referred to `HUDA’).

The Competent Authority vide notification dated

24.01.1981, under Section 10(3) of the ULC Act, vested

4

the land in Survey No. 83 to the State Government. On

26.12.1981, the Competent Authority issued a notice

under Section 10(5) for surrendering possession, however,

the possession was not surrendered.

(d) By G.O. Ms.No. 733 dated 31.10.1988 read with

G.O.Ms.No. 289 dated 01.06.1989 and G.O. Ms. No. 217

dated 18.04.2000, the State Government in exercise of its

power under Section 20(1) of the ULC Act granted

exemption upto an extent of 5 acres after excluding 40%

of the area to be set apart for laying of roads as per lay out

rules. Thus, by virtue of this exemption, each holder of

excess land is now entitled to hold 5 acres instead of 1000

sq meters. A number of persons including the appellants

herein purchased small extents of land in Survey No. 83

by registered sale deeds between January and March

1991. It is their case that these purchasers including the

appellants herein have been in possession ever since their

purchase.

5

(e) On 05.08.1992, Inspector General of Registration

issued a memo directing the District Registrar to cancel

the sale deeds. The District Registrar, on 03.09.1993,

ordered cancellation of the sale deeds. Being aggrieved by

the abovesaid order, W.P. No. 18385 of 1993 and W.P. No.

238 of 1994 were filed where owners were impleaded as

parties. By order dated 27.07.1994, learned Single Judge

set aside the orders of the District Registrar nullifying the

sale deeds regarding the land in question. By order dated

06.10.1994, another learned Single Judge following the

above order allowed their petition whereas W.A. No. 1220

of 1994 arising out of W.P. No. 238 of 1994 filed by the

State was dismissed by a Division Bench on 28.10.1994.

On 04.12.1996, W.A. No. 918 of 1994 filed by the State

against the order of the learned single Judge dated

27.07.1994 was dismissed by the Division Bench. On

28.08.1997, the State filed SLP(C) No. 14868 of 1997

before this Court against the judgment dated 04.12.1996

in which this Court issued notice and ordered status quo

6

regarding possession be maintained. On 06.11.2001, a

three Judge Bench of this Court disposed of all the

appeals, i.e. State of Andhra Pradesh and Others vs. N.

Audikesava Reddy and Others reported in (2002) 1 SCC

227. In view of the law declared by this Court, the

Competent Authority is now statutorily bound to compute

the land afresh, in accordance with the provisions of the

Act and in the light of the law declared in Audikesava

Reddy’s case (supra).

(f) The State Government, in exercise of its powers under

Section 23 of the ULC Act, issued G.O.Ms.Nos. 455 and

456 dated 29.07.2002 and decided to allot the excess land

to third parties who were in occupation of such excess

land on payment of prescribed regularization charges and

as per the conditions set out in the said G.Os. On

28.11.2003, by way of a representation, the owners

requested the Competent Authority to compute the

holdings afresh in terms of the law declared by this Court

in Audikesava Reddy’s case (supra). The owners also

7

stated in their representations that they themselves would

like to retain the excess land in their occupation by paying

the requisite compensation in terms of the aforesaid G.Os.

(g) On 02.07.2004, the owners submitted another

representation to the Secretary (Revenue), Government of

Andhra Pradesh to re-compute the land afresh in the light

of the decision of this Court and also to compute the

compensation amounts to be paid for regularization in

terms of G.O.Ms.Nos. 455 and 456. On 16.09.2005, the

owners once again filed their representations under

Section 6(1) of the ULC Act, as there was no response to

the earlier representations.

(h) Without taking any action on the aforesaid three

representations, the State Government, in exercise of its

powers under Section 23 of the ULC Act issued

G.O.Ms.No. 161 dated 13.02.2006 purporting to allot

Ac.424.13 gts out of Ac.526.27 gts in Survey No. 83 to the

Andhra Pradesh Industrial Infrastructure Corporation

Limited (in short `APIIC’), Hyderabad, the 4th Respondent

8

herein. On 15.02.2006, the State Government issued

G.O.Ms.No. 183, extending the time up to 31st March 2006

for submitting the applications accompanied by the

amount of compensation under the aforesaid G.O. Nos.

455 and 456.

(i) Before the High Court, four writ petitions were filed

by the purchasers, owners as well as Chanakyapuri

Cooperative Housing Society Limited, Secunderabad.

(j) Writ Petition No. 4121 of 2006 has been filed by Smt. K.

Anjana Devi and 45 others who claim to be the purchasers

of a small extent of land forming part of Survey No. 83 of

Village Raidurg, Ranga Reddy District. They claim to have

purchased the said lands from the GPA Holder of the

original land owners. Writ Petition No. 4144 of 2006 has

been filed by Om Prakash Verma and 43 others who also

claim to be purchasers of small extent of land forming part

of Survey No. 83 Village Raidurg, Ranga Reddy District

from the said GPA. Writ Petition No. 4141 of 2006 has

been filed by Ahmed Abdul Aziz and 14 others who claim

9

to be the owners of the land of an extent of acres 526.07

guntas in Survey No. 83. Writ Petition No. 5776 of 2006

has been filed by Chanakyapuri Cooperative Housing

Society Limited, Secunderabad, which claims to be the

holder of Agreement to Sell dated 09.08.1974 allegedly

executed by the GPA holder of the owners of the land in

Survey No. 83 Village Raidurg, Ranga Reddy District.

Before the High Court, all the petitioners have questioned

the validity of G.O.Ms.No.161 Revenue (UC II)

Department, dated 13.02.2006 and other proceedings and

prayed for quashing of the same with a direction to the

official respondents to consider their claim for grant of

exemption under various Government Orders, namely,

G.O.Ms. No. 733 Revenue (UC II) Department dated

31.10.1988 as clarified in G.O.Ms. No. 217 Revenue (UC

II) Department dated 18.04.2000, G.O.Ms. No. 455

Revenue (UC I) Department dated 29.07.2002 and

G.O.Ms. No. 456 Revenue (UC I) Department, dated

29.07.2002. The High Court, by a common judgment and

10

final order dated 17.01.2007, dismissed all the writ

petitions filed by the appellants herein. Against the

common order, the appellants have preferred these

appeals by way of special leave petitions before this Court.

3) Heard Mr. K. Rajendra Chowdhary, learned senior

counsel for the appellants in all the appeals, Mr.

L. Nageshwar Rao, learned senior counsel for the State of

Andhra Pradesh, Mr. G.E. Vahanvati, learned Attorney

General for India, Mr. Rakesh Dwivedi, and Mr. Ranjit

Kumar, learned senior counsel for Andhra Pradesh

Industrial Infrastructure Corporation (APIIC) R-4 and Mr.

A.K. Ganguly, Mr. P.S. Patwalia and Mr. Basavaprabhu S.

Patil, learned senior counsel for the applicants.

Issues:

4) The main question in these appeals is whether the

proceedings of the Competent Authority under Sections 8,

9 and 10 of the ULC Act in relation to the land in Survey

No. 83 of Village Raidurg of Ranga Reddy District declared

by the Division Benches by its judgment dated 28.10.1994

11

and 04.12.1996 in Writ Appeal Nos. 1220 and 918 of 1994

respectively, as void, stood restored by virtue of judgment

of this Court in Audikesava Reddy’s case (supra) as

claimed in G.O. Ms. No. 161 dated 13.02.2006. In other

words, what actually is the adjudication contained in

Audikesava Reddy’s case (supra) is the question involved

for determination. The adjudication contained in the

Audikesava Reddy’s case (supra) admittedly was in

relation to the same land in Survey No. 83 situated in

village Raidurg and between the same parties. In the

earlier part of our judgment, we have already set out the

facts which led to the filing of C.A. Nos. 3813 of 1996 and

7239 of 2001 in this Court by the respondent-State in

Audikesava Reddy’s case (supra).

5) In order to go into the factual position and ultimate

decision in Audikesava Reddy’s case (supra), it is

necessary to bear in mind the meaning of expressions

“Master Plan”, “Urban Land”, “Vacant Land” occurring in

Sections 2(h), 2(o), 2(q) respectively which reads as:-

12

“Section 2(h)”master plan”, in relation to an area within an

urban agglomeration or any part thereof, means the plan (by

whatever name called) prepared under any law for the time

being in force or in pursuance of an order made by the State

Government for the development of such area or part thereof

and providing for the stages by which such development

shall be carried out;

(o) “urban land” means,-

(i) any land situated within the limits of an urban

agglomeration and referred to as such in the master

plan; or

(ii) in a case where there is no master plan, or where

the master plan does not refer to any land as urban

land, any land within the limits of an urban

agglomeration and situated in any area included

within the local limits of a municipality (by whatever

name called), a notified area committee, a town area

committee, a city and town committee, a small town

committee, a cantonment board or a panchayat,

but does not include any such land which is mainly used for

the purpose of agriculture.

Explanation.-For the purpose of this clause and clause

(q),-

(A) “agriculture” includes horticulture, but does not

include-

(i) raising of grass,

(ii) dairy farming,

(iii)poultry farming,

(iv) breeding of live-stock, and

(v) such cultivation, or the growing of such plant, as

may be prescribed;

(B) land shall not be deemed to be used mainly for the

purpose of agriculture, if such land is not entered in the

revenue or land records before the appointed day as for the

purpose of agriculture:

Provided that where on any land which is entered in

the revenue or land records before the appointed day as for

the purpose of agriculture, there is a building which is not in

the nature of a farm-house, then, so much of the extent of

such land as is occupied by the building shall not be deemed

to be used mainly for the purpose of agriculture:

Provided further that if any question arises whether

any building is in the nature of a farm-house, such question

13

shall be referred to the State Government and the decision of

the State Government thereon shall be final;

(C) notwithstanding anything contained in clause (B) of

this Explanation, land shall not be deemed to be mainly

used for the purpose of agriculture if the land has been

specified in the master plan for a purpose other than

agriculture;

(q) “vacant land” means land, not being land mainly used for

the purpose of agriculture, in an urban agglomeration, but

does not include-

(i) land on which construction of a building is not

permissible under the building regulations in force in

the area in which such land is situated;

(ii) in an area where there are building regulations, the

land occupied by any building which has been

constructed before, or is being constructed on, the

appointed day with the approval of the appropriate

authority and the land appurtenant to such building;

and

(iii) in an area where there are no building regulations,

the land occupied by any building which has been

constructed before, or is being constructed on, the

appointed day and the land appurtenant to such

building:

Provided that where any person ordinarily keeps his

cattle, other than for the purpose of dairy farming or

for the purpose of breeding of live-stock, on any land

situated in a village within an urban agglomeration

(described as a village in the revenue records), then, so

much extent of the land as has been ordinarily used

for the keeping of such cattle immediately before the

appointed day shall not be deemed to be vacant land

for the purposes of this clause.”

6) On behalf of the appellants, it was submitted that a

combined reading of the definitions of the above

expressions disclose that any “land” though situated in

urban agglomeration is not a “Vacant Land” if the same is

14

used mainly for the purpose of agriculture and not

referred to in the Master Plan existing as on 17.02.1976.

In other words, according to the appellants, the land in

Survey No. 83 is not a “Vacant Land” though situated in

urban agglomeration as the same was used mainly for

agricultural purpose and not included or referred to in the

Master Plan existing as on 17.02.1976 as found by the

High Court in Writ Appeal No. 918 of 1994 which led to

Audikesava Reddy’s case (supra). It is the appellants

case that it was never the case of the respondent-State in

Writ Petition Nos. 18385 of 1993 and 238 of 1994 (which

culminated into the judgment of this Court in

Audikesava Reddy’s case) that the land in Survey No. 83

were “grazing lands” as shown in the declaration. The

case of the respondent-State in those writ petitions was

that the land in Survey No. 83 was not agricultural land

since the same was within the urban agglomeration, the

land has to be treated as “Vacant Land” and therefore the

ULC Act is applicable with effect from 17.02.1976, even if

15

the said land is not included in the Master Plan existing

as on 17.02.1976.

7) The appellants in their earlier writ petitions, i.e. W.P.

No. 18385 of 1993 and 238 of 1994 specifically averred

and contended that the land in the said Survey No. 83

was “mainly used for the purpose of agriculture”. By

order dated 27.07.1994 and 06.10.1994 in those writ

petitions, learned Single Judge recorded that the land in

Survey No. 83 was “agricultural land”. The Division

Bench in Writ Appeal No. 918 of 1994 confirmed the

finding of the learned single Judge that the land was

mainly used for the purpose of agriculture. After quoting

conclusion of the Division Bench in W.A. No. 918 of 1994,

it was contended that there were concurrent findings on

the question whether the land in Survey No. 83 was

agricultural land as the same was “mainly used for

agriculture” and the owners filed declarations under

misconception. Mr. Rajendra Chowdhary, learned senior

counsel for the appellants heavily contended that since

16

the land in Survey No. 83 was found to be “mainly used

for the purpose of agriculture” and not included or

referred to in the Master Plan existing as on 17.02.1976,

the said land was neither “Urban Land” nor “Vacant Land”

under Sections 2(o), 2(q) and consequently the ULC Act

was inapplicable. Therefore, according to him, the

Division Bench, by judgments dated 28.10.1994 and

04.12.1996, upheld the orders of the learned single Judge

declaring the proceedings of the Competent Authority

treating the date of commencement of the Act as

17.02.1976 as void and quashed the same. He pointed

out that the Division Bench declined to look into the

second Master Plan which came into force on 29.09.1980,

in order to treat the land as “Vacant Land” in view of the

law declared by this Court in Atia Mohammadi Begum

vs. State of U.P. and Ors. (1993) 2 SCC 546. It was

against these judgments dated 28.10.1994 and

04.12.1996 in W.A. No. 1220 and 918 of 1994, the State

preferred C.A. Nos. 3813 of 1996 and 7239 of 2001 before

17

this Court which is referred to as Audikesava Reddy’s

case. Since the State was disabled to treat the land in

Survey No. 83 as “Vacant Land” even after its inclusion in

the second Master Plan with effect from 29.09.1980, on

account of the above ruling in Atia Begum’s case, certain

States including the State of Andhra Pradesh sought

reconsideration of the decision in Atia Begum’s case.

Accordingly, this Court, by its orders dated 23.02.1996,

referred the question of correctness of ruling in Atia

Begum’s case to a larger Bench of three Hon’ble Judges.

8) Mr. G.E. Vahanvati, learned Attorney General for

India and other senior counsel appearing for the State as

well as Respondent No.4 submitted that as a consequence

of setting aside of the judgment of the Division Bench,

which had approved the orders passed by the learned

single Judge, the proceedings taken under the ULC Act

starting from filing of statements under Section 6(1) and

culminating in subsequent orders of the Competent

Authority under Sections 8 (4), 9, 10(1), 10(2), 10(5) and

18

10(6) will be deemed to have been upheld and attained

finality. According to them, in view of the judgment of this

Court in Audikesava Reddy’s case (supra), it is not open

to the appellants to seek re-opening of the proceedings

under the ULC Act. In support of the above claim, learned

Attorney General and other senior counsel relied on

various judgments to show that once the decision of the

High Court is set aside by this Court, it is not open to

contend that a particular aspect or argument was not

considered by this Court.

Atia Begum’s case

9) Before considering the ultimate order and the ratio

laid down in Audikesava Reddy’s case (supra), we will

briefly notice the facts of Atia Begum’s case (supra) and

the question involved therein. In that case the question

was regarding the quantification of vacant land. The

Competent Authority had declared that the appellant had

19,813.83 sq m of vacant land in Aligarh in excess of the

ceiling limit but the District Judge reduced the area of the

19

excess land to 6738.23 sq m. The order of the District

Judge was challenged by both i.e. the owner and the State

by filing writ petitions in the High Court. The owner’s writ

petition was dismissed and that of the State was partly

allowed. In appeal before this Court, the owner sought

restoration of the order of the District Judge which had

been set aside by the High Court on the interpretation of

the provisions of the ULC Act. The Act came into force in

the State of Uttar Pradesh on 17-2-1976. At that time,

there was no master plan for the area of Aligarh. The

master plan for Aligarh was made on 24-2-1980. In that

master plan, the land in dispute was shown. The High

Court took the view that by virtue of Explanation (c) of

Section 2(o) defining “urban land”, the land of the

appellant could not be treated as mainly used for the

purpose of agriculture because it was shown in the master

plan made on 24-2-1980. The correctness of this view was

in issue in Atia Begum’s case. The decision, though

notices that determination of the area of vacant land in

20

excess of ceiling limit under the Act is to be made with

reference to the date of commencement of the Act, fails to

notice the Explanation to Section 6 which provides the

meaning of the expression “commencement of this Act”.

Section 6(1) and the Explanation read as under:

“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.

Explanation.–In this section, `commencement of this Act’

means,–

(i) the date on which this Act comes into force in any State;

(ii) where any land, not being vacant land, situated in a State

in which this Act is in force has become vacant land by any

reason whatsoever, the date on which such land becomes

vacant land;

(iii) where any notification has been issued under clause (n)

of Section 2 in respect of any area in a State in which this

Act is in force, the date of publication of such notification.”

21

Audikesava Reddy’s case

10) Now, we have to see the entire discussion and

ultimate order passed in Audikesava Reddy’s case

(supra). A bench of three Hon’ble Judges in Audikesava

Reddy’s case after narrating the factual position in Atia

Begum’s case (supra) and after analyzing the issues,

allowed those appeals. Since the entire argument rests

with the ultimate decision in Audikesava Reddy’s case, it

is but proper to refer all the relevant paragraphs.

“11. If the expression “commencement of the Act” is read

with reference to the aforesaid Explanation, the area of

doubt about the correctness of the decision of Atia Begum

case becomes very narrow e.g. a few observations therein

which are these: (SCC p.549, para 4)

“Just as the holder of the land cannot by his

subsequent actions reduce the area of the vacant land

in excess of the ceiling limit, the authorities too cannot

by any subsequent action increase the area of the

excess vacant land by a similar action.”

12. The observations that the authorities by their

subsequent action after 17-2-1976 cannot alter or introduce

the master plan which has the effect of increasing the area of

excess vacant land do not represent the correct view of law.

The aforesaid Explanation to Section 6(1), inter alia, provides

that where any land, not being vacant land, situated in a

State in which this Act is in force has become vacant land by

any reason whatsoever, the date on which such land

becomes vacant land would be the date of the

commencement of the Act as regards such land.

22

13. Development and town planning are ongoing processes

and they go on changing from time to time depending upon

the local needs. That apart, the definition of “master plan” in

Section 2(h) is very significant. It reads as under:

“2. (h) `master plan’, in relation to an area within an

urban agglomeration or any part thereof, means the

plan (by whatever name called) prepared under any

law for the time being in force or in pursuance of an

order made by the State Government for the

development of such area or part thereof and providing

for the stages by which such development shall be

carried out;”

The above provision, inter alia, contemplates the master plan

prepared under any law for the time being in force for

development of an area. The plan shall also provide for the

stages by which such development shall be carried out. It is

evident from the aforesaid definition of master plan that it

takes in view any plan prepared even subsequent to the

coming into force of the Act. Further, the Explanation to

Section 6(1), as noticed above, very significantly provides

that every person holding vacant land in excess of the ceiling

limit at the commencement of the Act shall file a statement

before the competent authority and “the commencement of

the Act” under clause (ii) would be when the land becomes

vacant for any reason whatsoever. Therefore, the date of

commencement of the Act in a case where the land, which

was not vacant earlier, would be the date on which such

land becomes vacant land. It, thus, contemplates a situation

of land, not being vacant, becoming vacant due to

preparation of a master plan subsequent to 17-2-1976.

Further, the provisions of the Act require filing of a

statement under Sections 6, 7, 15 and 16 from time to time

as and when land acquires the character of a vacant land.

Obligation to file statement under the Act arises when a

person comes to hold any vacant land in excess of the ceiling

limit, which date necessarily may not be 17-2-1976. It would

all depend on the facts and circumstances of each case.

14. Accordingly, we hold that the master plan prepared as

per law in force even subsequent to enforcement of the Act is

to be taken into consideration to determine whether a

particular piece of land is vacant land or not and, to this

extent, Atia Begum is not correctly decided.

23

15. In these matters, however, we are not concerned with

the question as to the consequences of filing of a statement

by a person under a wrong impression that the vacant land

held by him is in excess of ceiling limit if it was not so when

he filed a statement. This aspect is left open to be decided in

an appropriate case.

16. Before concluding, we wish to place on record our deep

appreciation for the able assistance rendered by Mr Raju

Ramachandran, Senior Advocate, who on our request very

readily agreed to assist the Court as amicus curiae.

17. For the aforesaid reasons, CAs Nos. 3813 of 1996, 7238

and 7239 of 2001 are allowed and CAs Nos. 1149 of 1985

and 10851 of 1996 are dismissed. The parties are left to bear

their own costs.”

11) It is the claim of Mr. Rajendra Chowdhary, learned

senior counsel for the appellants that this Court in

Audikesava Reddy’s case was called upon to decide the

only question relating to the correctness of the decision in

Atia Begum’s case. While elaborating the same, Mr.

Chowdhari submitted that the State of Andhra Pradesh in

C.A. Nos. 3813 of 1996 and 7239 of 2001 neither

canvassed the facts nor challenged the above concurrent

findings of facts before this Court in Audikesava Reddy’s

case. According to him, all the State Governments

including the State of Andhra Pradesh were confined only

with the reconsideration of the decision in Atia Begum’s

24

case as the States were disabled from looking into the

second Master Plan, as a result of which any agricultural

land, though situate in urban agglomeration not included

in the existing Master Plan as on 17.02.1976 could never

be treated as “Vacant Land” notwithstanding its inclusion

in any other subsequent Master Plan for bringing such

land within the purview of or the ambit of the ULC Act. In

those circumstances, according to Mr. Chowdhary, the

State cannot now be permitted to reagitate the same

question once again in these appeals arising out of Writ

Petition Nos. 4121, 4141, 4144 and 5776 of 2006 whether

the land in Survey No. 83 was being mainly used for the

purpose of agriculture or whether the declarations were

not filed in the year 1976 under a wrong impression.

12) In support of the above claim, learned senior counsel

for the appellants relied on a Constitution Bench decision

of this Court in Direct Recruit Class II Engineering

Officers’ Association vs. State of Mahrashtra and

25

Others (1990) 2 SCC 715. The following principles

enunciated in paragraph 35 were pressed into service.

“….In similar situation a Constitution Bench of this Court in

Daryao v. State of U.P. held that where the High Court

dismisses a writ petition under Article 226 of the

Constitution after hearing the matter on the merits, a

subsequent petition in the Supreme Court under Article 32

on the same facts and for the same reliefs filed by the same

parties will be barred by the general principle of res judicata.

The binding character of judgments of courts of competent

jurisdiction is in essence a part of the rule of law on which

the administration of justice, so much emphasised by the

Constitution, is founded and a judgment of the High Court

under Article 226 passed after a hearing on the merits must

bind the parties till set aside in appeal as provided by the

Constitution and cannot be permitted to be circumvented by

a petition under Article 32. An attempted change in the form

of the petition or the grounds cannot be allowed to defeat the

plea as was observed at SCR p. 595 of the reported

judgment, thus : (SCR p. 595)

“We are satisfied that a change in the form of attack

against the impugned statute would make no

difference to the true legal position that the writ

petition in the High Court and the present writ petition

are directed against the same statute and the grounds

raised by the petitioner in that behalf are substantially

the same.”

The decision in Forward Construction Co. v. Prabhat Mandal

(Regd.), Andheri, further clarified the position by holding that

an adjudication is conclusive and final not only as to the

actual matter determined but as to every other matter which

the parties might and ought to have litigated and have had

decided as incidental to or essentially connected with subject

matter of the litigation and every matter coming into the

legitimate purview of the original action both in respect of

the matters of claim and defence. Thus, the principle of

constructive res judicata underlying Explanation IV of

Section 11 of the Code of Civil Procedure was applied to writ

case…. ”

(Emphasis Supplied)

26

13) In Ishwar Dutt vs. Land Acquisition Collector and

Another (2005) 7 SCC 190, this Court, once again

reiterated that the principles of constructive res judicata

enshrined in the Explanation IV to Section 11 of Civil

Procedure Code will apply to writ proceedings.

14) It is pointed out that by the impugned common

judgment, the High Court held that by reason of the

expression “appeals are allowed”, occurring in para 17 of

Audikesava Reddy’s case, the judgments in W.A. Nos.

1220 and 918 of 1996 suffered complete reversal as a

result of which the proceedings of the Competent

Authority which were declared void and quashed stood

restored or revived and consequently, “vesting” and

“taking” of possession on 20.07.1993 of the land in Survey

No. 83 under Sections 10(3), (5), (6) became final. It is the

case of the appellants that the above conclusion cannot be

sustained as the judgment in Audikesava Reddy’s case

cannot be read as having restored the proceedings of the

Competent Authority under Section 8(4), 9 and 10 of the

27

ULC Act, merely because the use of the expression

“appeals allowed” in para 17 of the said judgment. In

other words, according to the appellants, the efficacy and

binding nature of the adjudication and declaration of law

in relation to the land in Survey No. 83 contained in

Audikesava Reddy’s case cannot be either diminished or

whittled down on such construction of the expression

“appeals allowed”.

15) As regards the contention of the appellants that in

view of the ratio in Audikesava Reddy’s case (supra), the

State is liable to re-compute the excess land holding of the

appellants under the provisions of the ULC Act with

reference to the date on which the Master Plan for the City

of Hyderabad came to be extended to the appellants land

that is as on 29.09.1980 (G.O.Ms. No. 23.06.1980). Mr.

Nageshwar Rao, learned senior counsel for the State

submitted that the declaration filed by the appellants in

1976 under the provisions of the ULC Act were filed

deliberately and consciously hence, binding upon them.

28

He also submitted that the judgment of the Division

Bench of the High Court in the earlier round of litigation

being judgment dated 04.12.1996 delivered in Writ Appeal

No. 918 of 1994 had merged into the judgment of this

Court in Audikesava Reddy’s case (supra) hence,

reliance could not be placed by the appellants herein on

any observations made or finding returned therein. He

also submitted that in view of the judgment of this Court

in Audikesava Reddy’s case (supra) which was a

judgment inter partes, it was no longer open to the

appellants to seek re-computation of land holdings with

reference to the date of extension of the Master Plan to the

lands in issue.

16) The submissions made by the appellants about the

decision of this Court in Audikesava Reddy’s case

(supra) are mis-conceived in law and were rightly rejected

by the Division Bench in the impugned judgment. It was

highlighted that on the basis of the declaration made

under the ULC Act, the erstwhile owners of the land in

29

issue had got released from the authorities an area of

99.17 acres of land that had been declared as excess land

under the Land Reforms Act. Various materials with

relevant dates and particulars furnished on behalf of the

State clearly demonstrate that the owners of the land in

issue were actively and deliberately seeking to get release

99.17 acres of land held to be excess land under the Land

Reforms Act by relying on their declaration filed under the

ULC Act. Even as early as on 11.04.1975, GPA holder of

owners filed declaration under Section 8(1) of the Land

Reforms Act in respect of entire extent of 526.07 acres.

On 02.06.1976/16.06.1976, the declarants held to be

holding excess land to the extent of 99.17 acres.

17) On 02.09.1976, the GPA holder of declarants filed

application in Land Reforms Tribunal contending that the

provisions of the Land Reforms Act are not applicable and

provisions of ULC Act are applicable since the land is

urban vacant land. A prayer was made for release of land

admeasuring 99.17 acres declared as excess land under

30

the Land Reforms Act to be returned to owners. On

16.09.1976/27.07.1977, the very same GPA holder of

owners filed declarations under Section 6 of the ULC Act.

Draft statement under Section 8(1) and notice under

Section 8(3) of the ULC Act was issued on

01.07.1977/11.11.1977. A perusal of the draft statement

subsequently state that the land is a grazing land and is

not mainly used for the purpose of agriculture. By order

dated 06.12.1979/25.01.1980, the Competent Authority

under the ULC Act held the owners to be in possession of

vacant land in excess of ceiling limit and issued final

statements under Section 9 of the ULC Act declaring the

surplus area of each declarant. On

16.01.1980/30.01.1980, a notification was issued under

Section 10(1) of the ULC Act stating the extent of surplus

land held by the declarants and affording opportunity of

hearing to all interested persons. On 23.06.1980, the

Master Plan came to be extended to cover the land in

issue.

31

18) On 16.07.1980, GPA holder of declarants filed

another application in Land Reforms Tribunal contending

that the provisions of the Land Reforms Act are not

applicable and provisions of the ULC Act are applicable

since the land is urban vacant land. As a matter of fact, a

prayer was made for release of land admeasuring 99.17

acres declared as excess land under the Land Reforms Act

to be returned to the owners. Meanwhile, surplus lands

were allotted to Hyderabad Urban Development Authority

by G.O.Ms. No. 5013 dated 19.12.1980. By notification

dated 24.01.1981 issued under Section 10(3) of the ULC

Act, the surplus land would be deemed to have been

acquired by the State Government and the same shall vest

absolutely in the State Government free from all

encumbrances. On 21.02.1981, the application for

exemption was filed under Section 20 of the ULC Act by

GPA holder of declarants and Chanakyapuri Cooperative

Housing Society which was rejected by the State

Government. By notice dated 26.02.1981 issued under

32

Section 10(5) of the ULC Act, the Competent Authority

asked the declarants to vacate and deliver possession of

the land. Application for release of land admeasuring

99.17 acres declared as excess land under the Land

Reforms Act was rejected by the Land Reforms Tribunal by

order dated 19.04.1982. Against the said rejection, an

appeal was filed in 1983 before the Land Reforms Tribunal

being L.R.A. No. 6 of 1983. By order dated 22.09.1984,

the Land Reforms Appellate Tribunal allowed L.R.A. No. 6

of 1983 and remanded to the Land Reforms Tribunal for

fresh disposal. On remand, application for release of land

admeasuring 99.17 acres declared as excess land under

the Land Reforms Act was allowed on 10.11.1987 by the

Land Reforms Tribunal. It is brought to our notice that

possession of said extent of land delivered to the

declarants on 25.04.1990 was through their GPA under

Panchnama. On 19.07.1993, notification was issued

under Section 10(6) of the ULC Act directing that

possession be taken over all lands declared to be surplus

33

under the ULC Act. In fact, possession of surplus lands

was taken over on 20.07.1993. Those lands were allotted

to Respondent No.4 (APIIC) on 13.02.2006 and physical

possession was handed over to APIIC on 14.02.2006. The

above factual details with clear-cut materials cannot be

assailed. All those dates and events are available in the

various documents filed by all the parties. Those

particulars also show that only when possession of the

said 99.17 acres of land was returned to the owners in

1990, then the owners for the first time sought to take the

plea that the declaration made by them under the ULC Act

was a mistake and hence proceedings under the ULC Act

were void. As rightly pointed out, the owners having

taken part, all the declarations filed by them under

Section 6 of the ULC Act to recover lands admeasuring

99.17 acres surrendered under the provisions of the Land

Reforms Act. Either the appellants or anybody claiming

through them are estopped from assailing the legality or

validity of the declaration made by the owners under

34

Section 6 of the ULC Act on the principle that a person

cannot aprobate and reprobate in respect of the same

transaction.

19) Mr. Chowdhary, learned senior counsel for the

appellants, by drawing our attention to para 15 of

Audikesava Reddy’s case (supra) submitted that this

Court has not gone into the factual conclusion arrived by

the Division Bench of the High Court and the present

decision is confined with only issue referred to by the two-

Judge Bench, namely, it is the Master Plan that was in

existence when the ULC Act was enforced and not the

plan prepared subsequently that has to be taken into

consideration to determine if land is vacant land held in

excess of ceiling limit fixed under the Act. As pointed out

earlier, this submission is also mis-placed. A close

reading of para 15 makes it clear that in the said case it

was “not concerned with the question as to the

consequences of filing of a statement by a person under a

wrong impression that the vacant land held by him is in

35

excess of the ceiling limit.” Inasmuch as the case of the

appellants is that the lands regarding which declaration

was filed by them was not vacant land at all, they would

not be covered by the observations made by this Court in

para 15 as aforesaid since the same is ex-facie intended to

cover only such cases where the factum of the land in

issue being vacant land is admitted. But thereafter, a

submission was made that the vacant land declared to be

excess land was in fact not excess land.

20) Equally, reliance placed by the appellants upon the

observations and findings reached in the judgment of the

Division Bench of the High Court in the earlier round of

litigation which culminated in the judgment of this Court

in Audikesava Reddy’s case (supra) regarding lands in

issue having been agricultural lands, the prayer of

extension of the Master Plan thereto is also mis-conceived

and unsustainable. As pointed out by learned senior

counsel for the respondents by virtue of special leave

petition filed against the judgment dated 04.12.1996

36

delivered in Writ Appeal No. 918 of 1994 as also the

judgment dated 28.10.1994 delivered in Writ Appeal No.

1220 of 1994, finality of the said judgment and all

findings contained therein stood destroyed. It is useful to

refer the decision of this Court in Dharam Dutt and

Others vs. Union of India and Others, (2004) 1 SCC

712. This Court held filing of an appeal destroys the

finality of the judgment under appeal (vide para 69).

21) In M/s Gojer Bros. (Pvt.) Ltd. vs. Shri Ratan Lal

Singh, (1974) 2 SCC 453, the following conclusion was

pressed into service.

“11. The juristic justification of the doctrine of merger may

be sought in the principle that there cannot be, at one and

the same time, more than one operative order governing the

same subject-matter. Therefore the judgment of an inferior

court, if subjected to an examination by the superior court,

ceases to have existence in the eye of law and is treated as

being superseded by the judgment of the superior court. In

other words, the judgment of the inferior court loses its

identity by its merger with the judgment of the superior

court.”

22) In Kunhayammed and Others vs. State of Kerala

and Another, (2000) 6 SCC 359, this Court held:

37

“12. The logic underlying the doctrine of merger is that there

cannot be more than one decree or operative orders

governing the same subject-matter at a given point of time.

When a decree or order passed by an inferior court, tribunal

or authority was subjected to a remedy available under the

law before a superior forum then, though the decree or order

under challenge continues to be effective and binding,

nevertheless its finality is put in jeopardy. Once the superior

court has disposed of the lis before it either way — whether

the decree or order under appeal is set aside or modified or

simply confirmed, it is the decree or order of the superior

court, tribunal or authority which is the final, binding and

operative decree or order wherein merges the decree or order

passed by the court, tribunal or the authority below.”

However, Mr. Chowdhary very much emphasized the

subsequent passage in the same paragraph which reads

thus:

“However, the doctrine is not of universal or unlimited

application. The nature of jurisdiction exercised by the

superior forum and the content or subject-matter of

challenge laid or which could have been laid shall have to be

kept in view.”

By pointing out, Mr. Chowdhary submitted that the

reliance placed on the doctrine of merger and the

aforesaid judgment in Kunhayammed and Others

(supra) cannot be sustained. He further pointed out that

the last portion in the said paragraph shows that what

this Court laid down was that the principle contained in

the doctrine of merger is not of universal application.

38

Whatever may be, it is clear that once special leave has

been granted, any order passed by this Court thereafter,

would be an appellate order and would attract the

applicability of the doctrine of merger. The above view is

supported in the very same Kunhayammed and Others

(supra) which reads:

“41. Once a special leave petition has been granted, the

doors for the exercise of appellate jurisdiction of this Court

have been let open. The order impugned before the Supreme

Court becomes an order appealed against. Any order passed

thereafter would be an appellate order and would attract the

applicability of doctrine of merger. It would not make a

difference whether the order is one of reversal or of

modification or of dismissal affirming the order appealed

against. It would also not make any difference if the order is

a speaking or non-speaking one. Whenever this Court has

felt inclined to apply its mind to the merits of the order put

in issue before it though it may be inclined to affirm the

same, it is customary with this Court to grant leave to appeal

and thereafter dismiss the appeal itself (and not merely the

petition for special leave) though at times the orders granting

leave to appeal and dismissing the appeal are contained in

the same order and at times the orders are quite brief.

Nevertheless, the order shows the exercise of appellate

jurisdiction and therein the merits of the order impugned

having been subjected to judicial scrutiny of this Court.

42. “To merge” means to sink or disappear in something

else; to become absorbed or extinguished; to be combined or

be swallowed up. Merger in law is defined as the absorption

of a thing of lesser importance by a greater, whereby the

lesser ceases to exist, but the greater is not increased; an

absorption or swallowing up so as to involve a loss of identity

and individuality. (See Corpus Juris Secundum, Vol. LVII,

pp. 1067-68.)”

39

In the same decision, their Lordships have summarized

their conclusion as under:

“44. To sum up, our conclusions are:

(i) Where an appeal or revision is provided against an order passed

by a court, tribunal or any other authority before superior forum

and such superior forum modifies, reverses or affirms the decision

put in issue before it, the decision by the subordinate forum

merges in the decision by the superior forum and it is the latter

which subsists, remains operative and is capable of enforcement in

the eye of law.

(ii) The jurisdiction conferred by Article 136 of the Constitution is

divisible into two stages. The first stage is upto the disposal of

prayer for special leave to file an appeal. The second stage

commences if and when the leave to appeal is granted and the

special leave petition is converted into an appeal.

(iii) The doctrine of merger is not a doctrine of universal or

unlimited application. It will depend on the nature of jurisdiction

exercised by the superior forum and the content or subject-matter

of challenge laid or capable of being laid shall be determinative of

the applicability of merger. The superior jurisdiction should be

capable of reversing, modifying or affirming the order put in issue

before it. Under Article 136 of the Constitution the Supreme Court

may reverse, modify or affirm the judgment-decree or order

appealed against while exercising its appellate jurisdiction and not

while exercising the discretionary jurisdiction disposing of petition

for special leave to appeal. The doctrine of merger can therefore be

applied to the former and not to the latter.

(iv) An order refusing special leave to appeal may be a non-

speaking order or a speaking one. In either case it does not attract

the doctrine of merger. An order refusing special leave to appeal

does not stand substituted in place of the order under challenge.

All that it means is that the Court was not inclined to exercise its

discretion so as to allow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order, i.e.,

gives reasons for refusing the grant of leave, then the order has two

implications. Firstly, the statement of law contained in the order is

a declaration of law by the Supreme Court within the meaning of

Article 141 of the Constitution. Secondly, other than the

declaration of law, whatever is stated in the order are the findings

recorded by the Supreme Court which would bind the parties

thereto and also the court, tribunal or authority in any proceedings

subsequent thereto by way of judicial discipline, the Supreme

40

Court being the Apex Court of the country. But, this does not

amount to saying that the order of the court, tribunal or authority

below has stood merged in the order of the Supreme Court

rejecting the special leave petition or that the order of the Supreme

Court is the only order binding as res judicata in subsequent

proceedings between the parties.

(vi) Once leave to appeal has been granted and appellate

jurisdiction of Supreme Court has been invoked the order passed

in appeal would attract the doctrine of merger; the order may be of

reversal, modification or merely affirmation.

(vii) On an appeal having been preferred or a petition seeking leave

to appeal having been converted into an appeal before the Supreme

Court the jurisdiction of High Court to entertain a review petition

is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47

CPC.”

23) It is clear that once leave was granted by this Court

in the special leave petitions filed against the Division

Bench of the High Court in the earlier round of litigation

and the consequent civil appeals arising therefrom filed by

the State Government is allowed by this Court, the

judgment of the Division Bench lost its identity and

merged with the judgment of this Court. The said

judgment of the Division Bench of the High Court,

therefore, cannot be relied upon for any purpose

whatsoever. Even on merits, it is relevant to point out

that the arguments of the appellants that the lands in

issue became amenable to the ULC Act only upon

41

extension of Master Plan thereto on 23.06.1980 and that

the declaration made prior to such date is non est is not

acceptable and sustainable. As a matter of fact, the stand

of the State Government has through out been that the

lands in issue were not agricultural lands but were vacant

lands under the ULC Act even in 1976 when the

declaration was made by the owners under Section 6 of

the ULC Act, hence the declaration and all action taken

consequent thereto are valid in law. This position or

stand of the State Government is clear and reiterated in

its writ appeal filed by way of counter affidavit before the

Division Bench of the High Court and before this Court in

the present proceedings. It was brought to our notice that

the appellants conceded before the High Court that the

lands in issue were part of urban agglomeration even

when the declaration under Section 6 of the ULC Act was

enforced. In addition to the same, it was also brought to

our notice that by an agreement dated 09.08.1974, the

lands in issue were sold by the owners to a society,

42

namely, Chanakyapuri Cooperative Housing Society which

got a layout plan sanctioned on 20.10.1975 by Raidurg

Gram Panchayat for construction of houses on the said

lands. These materials clearly show that the lands were

not agricultural lands even prior to declaration filed under

Section 6 of the ULC Act by the owners in 1976. Any land

not being agricultural land and falling within an urban

agglomeration, constitutes vacant land as defined in

Section 2(q) of the ULC Act. The lands in issue, therefore,

constitute vacant land on the date of filing of declaration

under Section 6 of the ULC Act by the owners in 1976. As

per Section 6 of the ULC Act, declaration was required to

be filed in respect of vacant land, such declaration was

correctly filed by the owners hence, subsequent extension

of master plan to the lands in issue on 23.06.1980 has no

relevance to the validity of the declaration made in 1976

or to the proceedings initiated under the ULC Act

pursuant to such declaration. It is not in dispute that the

proceedings under the ULC Act were not challenged by the

43

owners at any stage as provided by the statute. The

notification under Section 10(3) of the ULC Act stating

that the surplus land would be deemed to have been

acquired by the State Government and the same shall vest

absolutely in the State Government free from all

encumbrances was issued even as early as on 24.01.1981

which was allowed to become final in the absence of any

appeal being filed against such notification as provided by

the statute. Once vesting takes place under Section 10(3)

of the Ceiling Act, the State has absolute title and

ownership over it. The owner has no further say in

respect of the land that has vested in the State. This

position has been explained by us in Smt. Sulochana

Chandrakant Galande vs. Pune Municipal Transport

& Ors., 2010 (7) Scale 571 as under:

“9. The meaning of the word `vesting’ has been

considered by this Court time and again. In The Fruit

& Vegetable Merchants Union v. The Delhi

Improvement Trust, AIR 1957 SC 344, this Court held

that the meaning of word `vesting’ varies as per the

context of the Statute in which the property vests. While

44

considering the case under Sections 16 and 17 of the

Act 1894, the Court held as under:

…the property acquired becomes the property of

Government without any condition or limitations

either as to title or possession. The legislature has

made it clear that vesting of the property is not for

any limited purpose or limited duration.”

(Emphasis

added).

10. “Encumbrance” actually means the burden caused

by an act or omission of man and not that created by

nature. It means a burden or charge upon property or a

claim or lien on the land. It means a legal liability on

property. Thus, it constitutes a burden on the title

which diminishes the value of the land. It may be a

mortgage or a deed of trust or a lien of an easement. An

encumbrance, thus, must be a charge on the property.

It must run with the property. (Vide Collector of

Bombay v. Nusserwanji Rattanji Mistri and Ors., AIR

1955 SC 298; H.P. State Electricity Board and Ors.

v. Shiv K. Sharma and Ors., AIR 2005 SC 954; and AI

Champdany Industries Ltd. v. Official Liquidator

and Anr., (2009) 4 SCC 486).

11. In State of Himachal Pradesh v. Tarsem Singh

and Ors., AIR 2001 SC 3431, this Court held that the

terminology `free from all encumbrances’ used in

Section 16 of the Act 1894, is wholly unqualified and

would en-compass the extinguishing of “all rights, title

and interests including easementary rights” when the

title vests in the State.

Thus, “free from encumbrances” means vesting of

land in the State without any charge or burden in it.

Thus, State has absolute title/ownership over it.

12. In Satendra Prasad Jain and Ors. v. State of

U.P. and Ors., AIR 1993 SC 2517, this Court held that

once land vests in the State free from all encumbrances,

it cannot be divested. The same view has been reiterated

in Awadh Bihari Yadav and Ors. v. State of Bihar

45

and Ors., (1995) 6 SCC 31; U.P. Jal Nigam, Lucknow

v. M/s Kalra Properties (P) Ltd. Lucknow and Ors.,

AIR 1996 SC 1170; Pratap and Anr. (Supra);

Chandragauda Ramgonda Patil and Anr. v. State of

Maharashtra and Ors., (1996) 6 SCC 405; Allahabad

Development Authority v. Nasiruzzaman and Ors.,

(1996) 6 SCC 424; State of Kerala and Ors. v. M.

Bhaskaran Pillai and Anr., AIR 1997 SC 2703; M.

Ramalinga Thevar v. State of Tamil Nadu and Ors.,

(2000) 4 SCC 322; Printers (Mysore) Ltd. v. M.A.

Rasheed and Ors., (2004) 4 SCC 460; Bangalore

Development Authority and Ors., v. R. Hanumaiah

and Ors,. (2005) 12 SCC 508; and Government of

Andhra Pradesh and Anr. v. Syed Akbar, AIR 2005

SC 492.

13. So far as the change of user is concerned, it is a

settled legal proposition that once land vests in the

State free from all encumbrances, there cannot be any

rider on the power of the State Government to change

user of the land in the manner it chooses.

In a similar situation, in Gulam Mustafa and

Ors. v. The State of Maharashtra and Ors., AIR 1977

SC 448, this Court held as under:

“Once the original acquisition is valid and title has

vested in the Municipality, how it uses the excess land

is no concern of the original owner and cannot be the

basis for invalidating the acquisition. There is no

principle of law by which a valid compulsory acquisition

stands voided because long later the requiring Authority

diverts it to a public purpose other than the one stated

in the….declaration.”

14. Re-iterating a similar view in C. Padma and Ors. v.

Deputy Secretary to the Government of Tamil Nadu

and Ors., (1997) 2 SCC 627, this Court held that if by

virtue of a valid acquisition of land, land stands vested

in the State, thereafter, claimants are not entitled to

restoration of possession on the grounds that either the

original public purpose is ceased to be in operation or

the land could not be used for any other purposes.

46

15. In Bhagat Singh etc. v. State of U.P. and Ors.,

AIR 1999 SC 436; Niladri Narayan Chandradhurja v.

State of West Bengal, AIR 2002 SC 2532; and

Northern Indian Glass Industries v. Jaswant Singh

and Ors., (2003) 1 SCC 335, this Court held that, the

land user can be changed by the Statutory Authority

after the land vests in the State free from all

encumbrances.

16. In view of the above, the law can be summarised

that once the land is acquired, it vests in the State free

from all encumbrances. It is not the concern of the land

owner how his land is used and whether the land is

being used for the purpose for which it was acquired or

for any other purpose. He becomes persona non grata

once the land vests in the State. He has a right to get

compensation only for the same. The person interested

cannot claim the right of restoration of land on any

ground, whatsoever.”

24) With regard to the ultimate decision in Audikesava

Reddy’s case (supra), Mr. Vahanvati, learned Attorney

General for India, by drawing our attention to the decree

prepared by the Registry submitted that there is no doubt

as to setting side the entire judgment of the Division

Bench of the High Court and the parties cannot claim that

certain issues have been kept open or untouched. In

support of the above claim, learned Attorney General

heavily relied on the decree drafted by the Registry. The

relevant portion of the decree is as follows:

47

“….. while holding that the Master Plan prepared as per law

in force even subsequent to enforcement of the Urban Land

(Ceiling & Regulations) Act, 1976 is to be taken into

consideration to determine whether a particular piece of land

is vacant land or not, and while leaving open the question as

to the consequences of filing of a statement by a person

under a wrong impression that the vacant land held by him

is in excess of ceiling limit if it was not so when he filed a

statement, to be decided in an appropriate case and for the

reasons recorded in its Judgment DOTH in allowing the

appeal and the resultant appeal ORDER:

1. THAT the Judgments and Orders dated 28th October, 1994

and the 4th December, 1996 of the Division Bench of the

High Court of Judicature of Andhra Pradesh at Hyderabad in

Writ Appeal Nos. 1220 and 918 of 1994 respectively, and

also Judgments and Orders dated 6th October, 1994 and 27th

July, 1994 of the Single Judge of the said High Court in Writ

Petition Nos. 238 of 1994 and 18335 of 1993 be and are

hereby set aside and in place thereof an order dismissing

Writ Petition Nos. 238 of 1994 and 18335 of 1993 on the file

of High Court be and is hereby substituted;

2. THAT the parties herein shall bear their own costs of

these appeals in this Court;…”

Mr. Chowdhary submitted that the terms of decree drawn

by the Registry of this Court, cannot, in law, provide any

guidance of the interpretation of and for deducing the

adjudication contained in the judgment of this Court in

Audikesava Reddy’s case having regard to the

definitions of the expressions “judgment and decree”

contained in Section 2(9) and Section 2(2) of the Code of

48

Civil Procedure, 1908 (hereinafter referred to as `CPC’)

respectively, which reads thus:

“2(9) “judgment” means the statement given by the Judge on

the grounds of a decree or order;

2(2) “decree” means the formal expression of an adjudication

which, so far as regards the Court expressing it, conclusively

determines the rights of the parties with regard to all or any of

the matters in controversy in the suit and may be either

preliminary or final. It shall be deemed to include the

rejection of a plaint and the determination of any question

within section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal

from an order, or

(b) any order of dismissal for default.

Explanation.- A decree is preliminary when further

proceedings have to be taken before the suit can be completely

disposed of. It is final when such adjudication completely

disposes of the suit. It may be partly preliminary and partly

final;”

According to him, a combined reading of the above two

definitions show that the judgment must furnish the

reasons or grounds for the adjudication of the controversy

or controversies on the basis of which only a decree can be

drawn. He pointed out that that is the reason it is said in

law that “a decree must follow the judgment” or “a decree

must agree with the judgment”. Repeatedly, Mr.

49

Chowdhuri submitted except answering the question

referred to by a two-Judge Bench, this Court has not

considered or concerned with the consequences of filing

declarations under a wrong impression that the land is

“vacant” when the land is not a “vacant land” and the

same be decided in an appropriate case, which necessarily

means that this Court was not inclined to go into the three

questions, namely, whether the land in Survey No. 83,

Raidurg (Panmaqtha) village was agricultural or not,

whether such declarations were filed on 16.09.1976, on a

wrong impression and whether the proceedings under

Sections 8, 9 and 10 of the ULC Act are valid, having

already declared in Para 13 that the date of

commencement of the ULC Act qua the land in Survey No.

83, would be the date on which the said land was

included in the second Master Plan that is, on 29.09.1980

when the owners were obligated to file declarations under

Section 6 of their holdings and as such the statutory

obligation to deal with such declarations also would

50

commence only from the date of filing fresh declarations

after 29.09.1980 (date of commencement of the Act). While

winding up his reservation about the decree, he submitted

that this Court in Audikesava Reddy’s case (supra)

expressly did not go into the question of validity of the

proceedings taken by the Competent Authority under

Sections 8, 9 and 10 of the ULC Act on the earlier

declarations filed in September, 1976 under a mis-

conception or a wrong impression when the land was not

a “vacant land”. As a matter of fact, after making the

above submissions as to the decree, Mr. Chowdhury

requested this Court to issue suo moto direction to the

Registry for making necessary correction.

25) About the decree prepared by the Registry, though as

per the Rules, the parties are permitted to point out error

or defect, if the same is not in accordance with the

decision before the official concerned. Till date, the

appellants have not questioned the correctness of the

decree, even now, there is no application for its correction.

51

On the other hand, we are of the view that the decree

which we have extracted in the earlier part of our

judgment makes it clear that the allowing of the appeals

filed by the State in Audikesava Reddy’s case clearly

means that the High Court judgment is set aside and the

writ petitions are dismissed.

26) The appellants also contended that the decree must

follow the judgment and if it does not conform to the

judgment then the same can be corrected. As a matter of

fact, Mr. Chowdhary, learned senior counsel appearing for

the appellants, made a plea for suo moto correction and

reliance was placed on the judgment of this Court in

Lakshmi Ram Bhuyan vs. Hari Prasad Bhuyan, (2003)

1 SCC 197. In this case, the High Court had modified the

order of the trial Court. After the matter came back to the

trial Court, a decree was prepared. During execution

proceedings, an objection was raised to the execution as

the decree did not contain the relief granted. The trial

52

Court stopped execution and issued direction for

correction of the decree. The matter was taken up to the

High Court and finally to this Court. On perusal of the

entire factual details, we find that this judgment has no

application to the case on hand as these proceedings do

not arise out of the proceedings for correction of decree.

As observed earlier, till date, no application has been filed

for correction of decree. On the other hand, we have

already held that in the case on hand the decree is

consistent with the judgment. As the High Court had

allowed the writ petitions only on one ground based on

Atia Begum’s case and as this Court had overruled the

said judgment, it was not inclined to go into the question

relating to filing of declaration by owners under wrong

impression. The direction that the appeals are allowed

can have only one meaning and the meaning is that the

judgment of the High Court is set aside and the writ

petitions are dismissed. In view of the same, there is no

occasion for making any correction even suo moto and

53

that too after a lapse of nine years from the date of the

judgment.

27) To meet the above contentions, learned Attorney

General has made an elaborate argument by drawing our

attention to the decree prepared by the Registry. In fact,

we also summoned the original decree drafted by the

Registry. A judgment comprises three segments (i) the

facts and the point at issue; (ii) the reasons for the

decision and (iii) the final order containing the decision.

Order XX CPC requires a judgment to contain all the

issues and findings or decision thereon with the reasons

therefor. The judgment has to state the relief allowed to a

party. The preparation of decree follows the judgment.

The decree shall agree with the judgment. The decree

shall contain, inter alia, particulars of the claim and shall

specify clearly the relief granted or other determination of

the suit. The very obligation cast by the Code that the

decree shall agree with the judgment spells out an

obligation on the part of the author of the judgment to

54

clearly indicate the relief or reliefs to which a party, in his

opinion, has been found entitled to enable decree being

framed in such a manner that it agrees with the judgment

and specifies clearly the relief granted. The operative part

of the judgment should be so clear and precise that in the

event of an objection being laid, it should not be difficult

to find out by a bare reading of the judgment and decree

whether the latter agrees with the former and is in

conformity therewith. The obligation is cast not only on

the trial court but also on the appellate court. Order 41

Rule 31 CPC casts an obligation on the author of the

appellate judgment to state the points for determination,

the decision thereon, the reasons for the decision and

when the decree appealed from is reversed or varied, the

relief to which the appellant is entitled. It is well settled

by a catena of decisions of this Court that once a decision

of the High Court is set aside by this Court, it ceases to

exist. It falls on all four corners and not open to contend

subsequently that a particular aspect or argument was

55

not considered by this Court or that it can be relied upon.

28) In Kausalya Devi Bogra (Smt.) and Others vs.

Land Acquisition Officer, Aurangabad and Another,

(1984) 2 SCC 324, this Court held that once the Supreme

Court sets aside a judgment of the High Court, the High

Court judgment is a nullity and cannot be revived.

29) In Ballabhdas Mathurdas Lakhani and Others vs.

Municipal Committee, Malkapur, (1970) 2 SCC 267,

this Court observed that a decision of the Supreme Court

was binding.

“… on the High Court and the High Court could not ignore it

because they thought that “relevant provisions were not

brought to the notice of the Court…””

30) In M/s Kesho Ram and Co. and Others Etc. vs.

Union of India and Ors., (1989) 3 SCC 151, this Court

held that:

“Once Petitioners challenge to Section 3 and the impugned

Notification was considered by the Court and the validity of

the same upheld, it must be presumed that all grounds

which could validly be raised were raised and considered by

the Court.”

56

31) Similarly, in Director of Settlements, A.P. and

Others vs. M.R. Apparao and Another, (2002) 4 SCC

638, this Court held thus:

“a judgment of the High court which refused to follow the

decision and directions of the Supreme court or seeks to

revive a decision of the High court which has been set aside

by the Supreme court is a nullity.”

In view of the peculiar controversy, we read the judgment

in Audikesava Reddy’s case carefully, particularly,

paras 13 to 17 and we are satisfied that the decision of

this Court has been correctly drafted by the Registry in

the form of a decree and there is no ambiguity as claimed

by learned senior counsel for the appellants.

32) Learned Attorney General submitted that a judgment

rendered by this Court cannot be collaterally challenged

as is sought to be done by the appellants in these appeals.

For the said proposition, he relied on the following:

In Hunter vs. Chief Constable [1982] 1 A.C, Diplock

LJ delivering his speech in the House of Lords enunciated

57

the doctrine of `Collateral attack on a judgment and

observed thus:

“The abuse of process which the instant case exemplifies is

the initiation of proceedings in a court of justice for the

purpose of mounting a collateral attack upon a final decision

against the intending plaintiff which has been made by

another court of competent jurisdiction in previous

proceedings in which the intending plaintiff had a full

opportunity of contesting the decision in the court by which

it was made.”

Quoting Halsburys, the learned judge observed:

“I think it would be a scandal to the administration of justice

if the same question having been disposed by one case, the

litigant were to be permitted by changing the form of the

proceedings to set up the same case again.”

33) This Court has approved this well settled principle

that a judgment of the Supreme Court cannot be

collaterally challenged on the ground that certain points

had not been considered. This Court in Anil Kumar

Neotia and Others vs. Union of India and Others,

(1988) 2 SCC 587 held that it is not open to contend that

certain points had not been urged or argued before the

Supreme Court and thereby seek to reopen the issue. The

relevant portion of the judgment is as follows:

58

“… This Court further observed that to contend that the

conclusion therein applied only to the parties before this

Court was to destroy the efficacy and integrity of the

judgment and to make the mandate of Article 141 illusory…..

It is no longer open to the Petitioners to contend that certain

portions had not been urged and the effect of the judgment

cannot be collaterally challenged.”

34) In Palitana Sugar Mills (P) Ltd. and Another vs.

State of Gujarat and Others, (2004) 12 SCC 645, this

Court reiterated the principle that a judgment of this

Court is binding on all and it is not open to contend that

the full facts had not been placed before the Court. In this

regard, para 62 of the judgment reads as follows:

“62. It is well settled that the judgments of this Court are
binding on all the authorities under Article 142 of the
Constitution and it is not open to any authority to ignore a
binding judgment of this Court on the ground that the full
facts had not been placed before this Court and/or the
judgment of this Court in the earlier proceedings had only
collaterally or incidentally decided the issues ……”

35) In A.V. Papayya Sastry and Others vs. Govt. of

A.P. and Others, (2007) 4 SCC 221, this Court observed

as under:

“38. The matter can be looked at from a different angle as
well. Suppose, a case is decided by a competent court of law
after hearing the parties and an order is passed in favour of
the plaintiff applicant which is upheld by all the courts
including the final court. Let us also think of a case where
this Court does not dismiss special leave petition but after
granting leave decides the appeal finally by recording
reasons. Such order can truly be said to be a judgment to
which Article 141 of the Constitution applies. Likewise, the
doctrine of merger also gets attracted. All orders passed by

59

the courts/authorities below, therefore, merge in the
judgment of this Court and after such judgment, it is not
open to any party to the judgment to approach any court or
authority to review, recall or reconsider the order.”

36) Regarding the doctrine of merger, once the appeal of

the State was allowed in Audikeshava Reddy’s case the

net result was that the High Court judgment which held

that the proceedings under the ULC Act were vitiated

stood merged in the decision of this Court in

Audikeshava Reddy. The logical sequitor of this is that

the writ petitions filed by the appellants are deemed to be

dismissed. In Kunhayahmed (supra), a three Judge

Bench of this Court while elucidating the doctrine of

merger held that once `leave’ is granted while exercising

jurisdiction under Article 136 of the Constitution of India,

the doors of the appellate jurisdiction are opened. It does

not matter whether reasons are given or not. The doctrine

of merger is attracted as soon as `leave’ has been granted

in a special leave petition.

60

37) As pointed out by learned Attorney General, the

matter can be looked at from another angle. The

proceedings in the instant case are barred by the principle

of constructive res judicata. The validity of the ULC Act

were squarely in issue. The effect of allowing the State

appeals in Audikeshava Reddy’s case is that all

contentions which parties might and ought to have

litigated in the previous litigation cannot be permitted to

be raised in subsequent litigations.

38) In Forward Construction Co. & Ors. vs. Prabhat

Mandal & Ors., (1986) 1 SCC 100, this Court held that

an adjudication is conclusive and binding not only as to

the actual matter determined but as to every other matter

which the parties might and ought to have litigated and

have had it decided. The following portion of the judgment

is relevant which reads as under:

“20. So far as the first reason is concerned, the High Court

in our opinion was not right in holding that the earlier

judgment would not operate as res judicata as one of the

grounds taken in the present petition was conspicuous by its

absence in the earlier petition. Explanation IV to Section 11

61

CPC provides that any matter which might and ought to

have been made ground of defence or attack in such former

suit shall be deemed to have been a matter directly and

substantially in issue in such suit. An adjudication is

conclusive and final not only as to the actual matter

determined but as to every other matter which the parties

might and ought to have litigated and have had it decided as

incidental to or essentially connected with the subject-matter

of the litigation and every matter coming within the

legitimate purview of the original action both in respect of

the matters of claim or defence. The principle underlying

Explanation IV is that where the parties have had an

opportunity of controverting a matter that should be taken to

be the same thing as if the matter had been actually

controverted and decided. It is true that where a matter has

been constructively in issue it cannot be said to have been

actually heard and decided. It could only be deemed to have

been heard and decided. ”

39) In Hoystead vs. Commissioner of Taxation (1926)

1 Appeal Cases 155, the Privy Council observed:

“Parties are not permitted to bring fresh litigations because

of new views that they may entertain of the law of the case,

or new versions which they present as to what should be a

proper apprehension by the Court of the legal result either of

the construction of the documents or the weight of certain

circumstances. If this were permitted, litigations would have

no end except when legal ingenuity is exhausted. It is a

principle of law that this cannot be permitted and there is

abundant authority reiterating that principle.”

As rightly observed by the High Court, what is utmost

relevant is the final judgment of the superior Court and

not the reasons in support of that decision. Apart from

the legal position and the effect of allowing of the appeals

and dismissing the writ petitions by this Court, the

62

contention with regard to the land being agricultural land

was raised in the writ petitions which were the subject

matter of the appeals filed in this Court. In these

proceedings, the State categorically took the stand that

the lands are not agricultural. It was brought to our

notice that the present appellants as respondents in the

earlier round did not urge this plea before this Court and

no such arguments were advanced before this Court. In

view of the same, the appellants are not entitled to raise

any such contention now. The effect of allowing the said

appeals is that W.P.Nos. 18385 of 1993 and 238 of 1994

stood dismissed. Inasmuch as the writ petitions having

been dismissed, the orders passed under the ULC Act

have attained finality. The declarations which had been

made and statements filed on 06.09.1976 and 25.07.1977

stand till today and these declarations are not even sought

to be withdrawn. In those circumstances, as rightly

contended by the learned senior counsel appearing for the

respondents, the prayer on the part of the owners in W.P.

63

No. 4141 of 2006 made for the first time in 2006 after 32

years of filing of the statements under Section 6 and after

26 years of the conclusion of ULC proceedings was

completely misconceived and was rightly rejected.

40) Before the High Court, the purchasers had contended

that the original owners had filed the declarations under

misconception and confusion. Even before this Court, the

purchasers had raised a similar plea when they found that

the observations in Atia Begum’s case was overruled.

The observations in paragraph 15 of the judgment in

Audikesava Reddy’s case are in the context of the plea

of the purchasers. It was not the case of the State that

the original owners filed any statement or declaration

under the ULC Act under a wrong impression. On the

other hand, this was a contention of the purchasers.

However, in paragraph 15 of Audikeshava Reddy’s case,

this Court did not even go into the question because the

owners were not before it and perhaps the purchasers

64

could not raise that plea. This Court said, “this question

is left open to be decided in an appropriate case.” This

means that this was not a fit case for going into this issue

and when a proper case filed by owner comes with such a

plea then the Court would consider the same. It follows

that the appeals were allowed “for the aforesaid reasons”

and this means on account of two reasons. The first

reason is the overruling of Atia Begum’s case and the

second reason is that the Court was not prepared to

examine the declaration filed by the owners at the behest

of the purchasers. In those circumstances, there was no

necessity to remand, hence there is no order for remand.

Therefore, the expression “appeals are allowed” can have

only one meaning and that is the judgment of the High

Court is set aside and writ petitions are dismissed and the

determination of ceiling already made remains intact and

undisturbed.

65

41) The appellants contended that the High Court had

recorded a finding that the land is agricultural and the

State had taken up a ground saying that the land was not

agricultural land and was a vacant land but that point

was not pressed before this Court in Audikesava Reddy’s

case, hence to that extent the High Court judgment would

operate with binding effect in view of principles of

constructive res judicata. We accept that principle of res

judicata/constructive res judicata is applicable to the writ

proceedings. However, in the present case, the Division

Bench finding with respect to nature of land in a writ

petition filed by purchasers does not survive after appeals

of the State were allowed and after this Court refused to

go into the question of filing of statements by owners

under a wrong impression. If this Court wanted the

nature of land to be separately considered then it would

have done so or remanded the matter. However,

paragraph 15 of Audikesava Reddy’s case shows a clear

intent to leave the declaration of the owner filed under the

66

ULC Act intact. In the case on hand, as observed earlier,

no part of the judgment of the High Court would survive

after the appeal is allowed unless and until it is expressly

and specifically preserved. In view of the same, the

contrary contention of the appellants in this context is

unacceptable and unsustainable. In any case, the owners

are bound by the determination of surplus land by the

Competent Authority on the basis of their own declaration

and the various orders passed under the ULC Act. They

cannot be permitted to re-open the chapter after about 25

years.

42) Mr. Chowdhary, learned senior counsel contended

that when a doubt arises about what the Court intended

then the same must be resolved by construing the

expressions inconsistent with the law. He placed reliance

on the following judgment of this Court:

1. Gajraj Singh & Ors. vs. State of U.P. & Ors (2001) 5

SCC 762

67

2. Sarat Chandra Mishra & Ors. vs. State of Orissa

& Ors. (2006) 1 SCC 638, 643 and

3. State of Haryana & Ors. vs. M.P. Mohla, (2007) 1

SCC 457, 464

On going through those decisions, we have no quarrel over

the ratio laid down, however, there is no scope of applying

them to the present case. As pointed out earlier, the

expression `civil appeals are allowed’ carry only one

meaning, i.e., the judgment of the High Court is set aside

and the writ petitions are dismissed. Moreover, the

determination of surplus land based on the declaration of

owners has become final long back. The notifications

issued under Section 10 of the Act and the panchanama

taken possession are also final. On behalf of the State, it

was asserted that the possession of surplus land was

taken on 20.07.1993 and the Panchanama was executed

showing that the possession has been taken. It is signed

by witnesses. We have perused the details which are

68

available in the paper book. It is settled law that where

possession is to be taken of a large tract of land then it is

permissible to take possession by a properly executed

Panchanama. [vide Sita Ram Bhandar Society, New

Delhi vs. Lieutenant Governor, Govt. of NCT, Delhi,

(2009) 10 SCC 501].

43) It is not in dispute that the Panchnama has not been

questioned in any proceedings by any of the appellants.

Though it is stated that Chanakyapuri Cooperative Society

is in possession at one stage and Shri Venkateshawar

Enterprises was given possession by the owners and

possession was also given to Golden Hill Construction

Corporation and thereafter it was given to the purchasers,

the fact remains that the owners are not in possession. In

view of the same, the finding of the High Court that the

possession was taken by the State legally and validly

through a Panchnama is absolutely correct and deserves

to be upheld.

69

44) It is relevant to point out the conduct of the

appellants in the previous proceedings which were

highlighted by learned senior counsel for the State as well

as APIIC. They are:

a) The appellants themselves described the land in

Survey No. 83 as “grazing land” in their declarations

filed under Section 6(1);

b) The appellants filed declarations under the Land

Reforms Act subjecting the land to the jurisdiction of

the Tribunal;

c) filing declarations under the ULC Act treating the

land in Survey No. 83 as vacant land;

d) the transaction of agreement of sale entered into

between GPA and Chanakyapuri Cooperative Housing

Society;

e) Owners and Society filed applications for

exemptions which were rejected;

70

f) Chanakyapuri Society pursued its remedies against

such rejection of exemption up to this Court in which

the owners through their Power of Attorney were

sailing with the Society.

In fact these instances were projected in their counter

affidavit before the High Court by the State and APIIC to

non-suit the appellants. Though learned senior counsel

for the appellants pointed out that these aspects were not

highlighted before the High Court, the conduct of the

appellants as regards the above aspects cannot be

ignored.

45) It is pointed out that the owners themselves have

described the land in Survey No. 83 as “grazing lands” and

“vacant land” in the relevant columns of their declaration

under Section 6(1) and, therefore, the proceedings of the

competent authority under Sections 8, 9 and 10 are valid.

Though the said aspect had not been disputed by the

appellants, however, it is pointed out that the mentioning

71

of “grazing lands” in the said declaration is not conclusive.

However, as observed earlier, their statements in the form

of declarations before the authorities concerned cannot be

denied. In fact, we were taken through those entries

which are available in the paper-book in the form of

annexures.

46) About the sales under G.O.Ms. No. 733 dated

31.10.1988 and G.O.Ms. No. 289 dated 01.06.1989, it is

the stand of the appellants that those government orders

were passed on the basis of a policy to encourage building

activity and in public interest under Section 20(1)(a) of the

ULC Act. According to the appellants, they are entitled to

the benefits of G.O.Ms.No. 733 dated 31.10.1988 and they

are entitled to the same benefits as any other holder of

excess vacant lands is entitled to as they are in actual

physical possession even as on date irrespective of

whether the Act became applicable on 17.02.1976 or

29.09.1980. It is brought to our notice that the

72

amendment made in G.O.Ms. No. 217 vide G.O.Ms. No.

733 dated 31.10.1988 is applicable only in the cases in

which the possession of land had been taken over by the

Government under Section 10(5) and 10(6) and according

to the State Government, in this case, possession was

taken after 31.10.1988 as pointed out by learned senior

counsel for the respondents, the declarants cannot avail

the said benefit since even, according to them, they were

not in possession as on 31.10.1988. The benefit of

G.O.Ms. No. 733 may be available if the declarants were in

possession and up to 31.10.1988 and possession was

taken by the Government subsequent thereto. As rightly

observed by the High Court, G.O.Ms. No. 217 cannot be

interpreted as entitling the declarants to claim benefit of

exemption even in cases where they were not in

possession as on 31.10.1988. The same was handed over

to the Mandal Revenue Officer, Sherlingampally, even

prior to that, the said land was allotted to Hyderabad

Urban Development Authority vide G.O.Ms. No. 5013

73

dated 19.12.1980. Admittedly, the said Government

Order was not challenged by the appellants. In those

circumstances, the appellants cannot be allowed to take

the benefit of G.O.Ms. No. 733 since this is not merely a

case where the appellants were dispossessed but the

property was transferred initially in favour of Hyderabad

Urban Development Authority and later to APIIC for

utilizing the same to set up IT Park Project. We are

satisfied that the appellants are not entitled to claim

benefits under G.O.Ms. No.733. It is also clear from

G.O.Ms. No. 455 and 456 dated 29.07.2002 that

occupation/possession is sine qua non for the allotment of

surplus lands.

47) Various third parties have filed separate applications

by way of I.As in these appeals praying for certain reliefs.

In view of the disposal of the appeals, they are free to

approach the appropriate authority/court to vindicate

their grievance if the same is permissible under law.

74

48) In the light of the above discussion, we do not find

any merit in the appeals filed by the appellants.

Consequently, they are dismissed. No order as to costs.

…………………………………….J.

(P. SATHASIVAM)

……………………………………J.

(DR. B.S. CHAUHAN)

NEW DELHI;

OCTOBER 8, 2010.

75