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.
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(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
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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:-
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“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.”
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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.
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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.
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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 by59
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