Supreme Court of India
OMPRAKASH VERMA & ORS.versusSTATE OF ANDHRA PRADESH & ORS.
- Citation
- 2010 INSC 691
- Decided
- 8 October 2010
- Disposal
- Dismissed
Holding
The High Court judgments were merged into the Supreme Court's decision in Audikesava Reddy's case, rendering the land "vacant land" and the ULC Act proceedings final, and the appeals are dismissed.
Summary
The appellants challenged the validity of the State's allocation of land in Survey No. 83 under the Urban Land (Ceiling and Regulation) Act, 1976, arguing that the land was agricultural and that the earlier High Court judgments declaring the proceedings void should stand. The Supreme Court examined whether the doctrine of merger applied, holding that once special leave was granted and the State's appeals were allowed in Audikesava Reddy's case, the High Court judgments merged into the Supreme Court's decision and lost their operative effect. It was held that the land constituted "vacant land" within an urban agglomeration at the time of the owners' 1976 declaration, making the declaration under Section 6 valid and the subsequent notifications under Section 10 final. The Court applied the principle of constructive res judicata, ruling that the matters could not be relitigated in the present writ petitions. Consequently, the appeals were dismissed and the State's actions under the ULC Act were affirmed.
Issues considered
- The effect of the Supreme Court's judgment in Audikesava Reddy's case on the earlier High Court judgments (doctrine of merger).
- Whether the land in Survey No. 83 is "vacant land" under the Urban Land (Ceiling and Regulation) Act, 1976.
- Whether the proceedings under Sections 8, 9 and 10 of the ULC Act are void or valid.
- Whether the principle of constructive res judicata bars fresh challenges to the earlier adjudication.
- Whether the decree prepared by the Registry conforms to the judgment.
Legislation cited
- Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973
- Code of Civil Procedure, 1908s. Order 20, s. Order 41 Rule 31
- Urban Land (Ceiling and Regulation) Act, 1976s. 10(1), s. 10(3), s. 10(5), s. 10(6), s. 20(1), s. 2(q), s. 6, s. 8, s. 9
Subjects
Urban Land Ceiling Actvacant landdoctrine of mergerconstructive res judicatadecree preparationmaster planland acquisitionspecial leave petitionhigh court judgmentland reforms
Judgment
[2010) 15 (ADDL.) S.C.R. 302
A OMPRAKASH VERMA & ORS.
v.
STATE OF ANDHRA PRADESH & ORS.
(Civil Appeal No. 998 of 2007 etc.)
OCTOBER 8, 2010
8
(P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
Urban Ceiling Act, 1976:
C ss. 2(q), 6 and 10(3) - 'Vacant land' - HELD: Any land
not being agricultural land but falling within an urban
agglomeration constitutes vacant land as defined in s.2(q) -
In the instant case, the lands constituted 'vacant land' on the
date of filing of declarations u/s 6 by owner in 1978 - The
land-owners themselves termed the land as 'grazing lands'
D and 'vacant land' in their declaration u/s 6(1) - The notification
u/s 10(3) stating that the surplus land would be deemed to
have been acquired by State Government and the same
would vest absolutely in it, was issued in 1981 - Proceedings
under the ULC Act not challenged by owners at any stage,
E and allowed to become final.
Judgements:
Doctrine of Merger - HELD: Once leave was granted by
F Supreme Court in special leave petitions filed against the
decision of the Division Bench of the High Court and the
consequent appeal is allowed by Supreme Court, in
Audikesava Reddv's case, the judgment of the Division
Bench lost its identity and merged with the judgment of
G Supreme Court and the said judgment of the Division Bench
of the High Court cannot be relied upon for any purpose.
Code of Civil Procedure, 1908:
Or. 20 and Or. 41, r.31 - Judgments and decree -
H 302
-
OMPRAKASH VERMA & ORS. v. STATE OF 303
ANDHRA PRADESH & ORS.
Judgement - Elements of - Decree - Preparation of - A
Requirements - Explained - HELD: Preparation of decree
follows the judgment - Decree shall agree with the judgment
- 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 B
and decr~e whether the latter agrees with the former and is in
conformity therewith - In Audikesava Reddv's case, the
decision of the Supreme Court has been correctly drafted in
the decree by the Registry and there is no ambiguity therein.
Res Judicata:
c
Constructive res judicata - Writ petitions before High
Court - Decision of High Court challenged before Supreme
Court - Matter decided in Audikesava Reddv's case - Later,
writ petition before High Court raising the issue of the lands D
being agricultural land - HELD: Principle of res judicata/
constructive res judicata is applicable to writ proceedings -
·The subsequent writ petitions are barred by principle of
constructive res judicata - The adjudication in Audikesava
Reddy's case was in relation to the same property between E
the same parties - The validity of ULC Act was squarely in
issue - All contentions which p; fies might and ought to have
litigated in the previous litigation cannot be permitted to be
raised in subsequent litigations - Urban Land Ceiling Act,
1976. F
The owners of the land in S\lrvey .,. No. 83
admeasuring 526.07 acres executed a registered General
Power of Attorney on 7.7.1974 in favour of a partnership
firm. On coming into force of the Andhra Pradesh Land
Reforms (Ceiling on Agricultural Holdings) Act, 1973, G
ninety nine acres of the said land was declared as
surplus in the hands of the four declarants and the
possession was taken on 11.4.1975. On coming into force
of the Urban Ceiling Act, 1976, the owners, through their
GPA, filed declarations u/s 6 (1) of the ULC Act. The affect H
304 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A of allowing the appeals filed by the State in in Audikesava
Reddy's case is that the Competent Authority issued
statements u/s 9 declaring the surplus area with each of
the declarant, and on 30.1.1980 issued the notification u/
s 10 (1). By G. 0. Ms. No. 391 dated 23.6.1980, the Master
B Plan, as on 17.2.1976, was amended and the land of
Survey No. 83 was inclu.ded in the Second Master Plan
w.e.f. 19.9.1980, resultantly, the said land was re-
computed and 468 acres thereof were allotted to the
Hyderabad Urban Development Authority (HUDA). By
,.C G.O. Ms No. 733 dated 31.10.19088 read with G. 0. Ms. No.
289 dated 1.6.1989 and G. 0. Ms. No. 217 dated 18.4.200,
exemption up to an extent of 5 acres was granted to each
holder of excess land. Various persons including the
appellants purchased small extents of the land in Survey
No. 83 by registered sale deeds between January and
P March 1991. However, the District Registrar on 3.9.1993
ordered cancellation of the sale deeds. The said order
was challenged in Writ Petition Nos. 18385 of 1993 and
238of1994, and was set aside by the Single Judge of the
E High Court, nullifying the sale deeds regarding the land
in question. The writ appeals filed by the State were
. :dismissed by the Division Bench of the High Court on
.~28.10.1994 and 4.12.1996. The matter was taken to the
? Supreme Court, which in the case of Audikesava Reddy1
disposed of all the appeals and set aside the judgements
F of_ the Division Bench of the High Court. Thereafter the
. ·Sta1e Government in exercise of its powers u/s 23 of the
ULC Act issued G. 0. Ms. No. 161 dated 13.2.2006
purporting to allot 424.13 acres of the land in Survey No.
83 to the Andhra Pradesh Industrial Infrastructure
G Corporation Ltd. (APllC). Writ petitions filed by the
purchasers (W.P.Nos. 4121 and 4144 of 2006), owners (
W.P. No. 4141 of 2006) and a Co-operative Housing
Society ( W.P. No. 5776 of 2006) were dismissed by the
1. State of Andhra pradesh and Ors. v. N. Audikesava Reddy and Others 2001
H (5) Suppl. SCR 162 = (2002) 1 sec 227.
OMPRAKASH VERMA & ORS. v. STATE OF 305
ANDHRA PRADESH & ORS.
High Court. Aggrieved, the writ petitioners filed the A
instant appeals.
The main question for consideration before the Court
was: whether the proceedings before the' Competent
Authority u/ss 8, 9 and 10 of the ULC Act in relation of
6
the land in Survey No. 83 declared by the Division Bench
of the High Court by its judgments dated 28.10.19094 and
4.12.1996, as void, stood restored by virtue of the
judgment of the Supreme Court in Audikesava Reddy's
case.
c
Dismissing the appeal, the Court
HELD: 1.1. The doctrine of merger is attracted as
soon as 'leave' has been granted in a special leave
petition. It is clear that once leave was granted by this 0
Court in the special leave petitions filed by the State
Government against the judgment dated 04.12.1996
delivered by the Division Bench of the High Court in Writ
Appeal No. 918 of 1994 as also the judgment dated
28.10.1994 delivered by it in Writ Appeal No. 1220 of 1994,
E
finality of the said judgment and all findings contained
therein stood destroyed, and when the consequent civil
appeals arising from the said ~pecial leave petitions were
allowed by this Court, in Audikesava Reddy's case, the
judgments of the Division Bench, which held that the
proceedings under the ULC Act were vitiated, lost its F
identity and merged with the judgment of this Court. The
logical sequitor of this is that the writ petitions filed by
the appellants are deemed to have been dismissed. The
said judgment of the Division Bench of the High Court,
therefore, cannot be relied upon for any purpose G
whatsoever. 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 a contention subsequently that
a particular aspect or argument was not considered by
this Court or that it can be relied upon. Besides, a H
306 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A judgment of the Supreme Court cannot be collaterally
challenged on the ground that certain points had not
been considered. [para 21-23, 27,33 and 36] [356-B-C]
Dharam Dutt and Others vs. Union of India and Others,
2003 (6) Suppl. SCR 151 = (2004) 1 SCC 712; Mis Gojer
B Bros. (Pvt.) Ltd. vs. Shri Ratan Lal Singh, 1975 (1) SCR 394 =
(1974) 2 SCC 453; Kunhayammed and Others vs. State of
Kera/a and Another 2000 (1) Suppl. SCR 538 = (2000) 6
SCC 359; Kausalya Devi Bogra (Smt.) and Others vs. Land
Acquisition Officer, Aurangabad and Another, 1984 (2)
=
C SCR 900 (1984) 2 SCC 324; Ballabhdas Mathurdas
Lakhani and Others vs. Municipal Committee, Malkapur,
(1970) 2 SCC 733; Mis Kesho Ram and Co. and Others Etc.
vs. Union of India and Ors., 1989 (.2) SCR 1005 = (1989) 3
SCC 151; and Director of Settlements, A. P. and Others vs.
D M.R. Apparao and Another 2002 ( 2) SCR 661 = (2002) 4
SCC 638; Anil Kumar Neotia and Others vs. Union of India
and Others, 1988 ( 3 ) SCR 738 = (1988) 2 sec 587;
Palitana Sugar Mills (P) Ltd. and Another vs. State of Gujarat
and Others, 2004 (5) Suppl. SCR 552 = (2004) 12 SCC 645;
E A. V. Papayya Sastry and Others vs. Govt. of A.P. and Others,
2001 (3) SCR 603 = (2007) 4 sec 221 - relied on.
Hunter vs. Chief Constable [1982] 1 A.C, Diplock -
referred to
F 1.2. A close reading of para 15 of the judgment in
Audikesava Reddy's case makes it clear that in the said
case the Court 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
G him is in excess of the ceiling limit." The appellants are
not correct in contending that the lands regarding which
declaration was filed by them was not vacant land at all,
and they would not be covered by the observations made
by this Court in para 15 of the judgment in Audikesava
H Reddy's case, since the same is ex-facie intended to cover
OMPRAKASH VERMA & ORS. v. STATE OF 307
ANDHRA PRADESH & O.RS.
only such cases where the factum of the land in issue A
being vacant land is admitted. Bl!t thereafter, a
submission was made that the vacant land declared to
be excess land was in fact not excess land.1[para 19) [338-
E-H; 339-A]
1.3. As rightly observed by the High Court, what is B
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 contention with regard to the land being agricultural C
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 !hat ·
. the lands are not agricultural lands. It was brought to the
notice of the Court that the appellants in the instant D
appeals, 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 earlier appeals in E
Audikesava Reddy's case is that W.P.Nos. 18385 of 1993
and 238 of 1994 stood dismissed, and 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 F
declarations are not even sought to be withdrawn. In
these circumstances, the prayer on the part of the owners
in W.P. No. 4141 of 2006 made for the first time in 2006
after 32 years of filing of the statements u/s 6 and after
26 years of the conclusion of ULC proceedings was G
completely misconceived and was rightly rejec~ed. [para
39) [357-G-H; 358-A-D] [357-G-H; 358-A-D]
1.4. In Audikesava Reddy's case, it was not the case
of the State that the original owners filed any statement
H
308 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R
A 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
B purchasers could not raise that plea. This Court said,
"tJ:iis question is left open to be d~cided 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
C the same. It follows that the appeals were allowed "for
the aforesaid reasons" a11d this means on account of two
reasons -the first reaso,n' is the overruling of Atia Begum's
case and the second one is that the Court was not
prepared to examine the declaration filed by the owners
at the behest of the purchasers. In these circumstances,
0 there was no necessity to remand and, thus, 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
E made remains intact and undisturbed. [para 40) (358-F-
H; 359-A-C]
State of Andhra Pradesh and Others vs. N. Audikesava
Reddy and Others 2001 (5) Suppl. SCR 162 = (2002) 1 SCC
F 227 - explained
Atia Mohammadi Begum vs. State of UP. and Ors. 1993
(2) SCR 295 = (1993) 2 sec 546 - stood overruled
2.1. E'1en on merits, it cannot be said that the lands
. G ,I in issue became amenable to the ULC Act only upon
extension of Master Plan thereto on 23.06.1980 and that
' the declaration made prior to such date is non est. As a
, matter of fact, the stand of the State Government has
throughout been that the lands in issue were not
H agricultural lands but were vacant lands under the ULC
OMPRAKASH VERMA & ORS. v. STATE OF 309
ANDHRA PRADESH & ORS.
Act even in 1976 when the declaration was made by the A
owners u/s 6 thereof, therefore, 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 the counter affidavit filed by it in the writ
appeal before the Division .Bench of the High Court and B
before this Court in the instant proceedings. It has been
brought to the notice of this Court that the appellants
conceded before the High Court that the lands in issue
were part of urban agglomeration even when the
declaration u/s 6 of the ULC Act was enforced.Besides, c
it.was also brought to the notice of the Court that by an
agreement dated 09.08.1974, the lands in issue were sold
by the owners to a society (the ,appellant in C.A. No. 5776
of 2006) which got a layout plan sanctioned on 20.10.1975
for construction of houses on the said lands. These o
materials clearly show that the lands were not
agricultural lands even prior to declaration filed u/s 6 of
the ULC Act by the owners in 1976. Any land not being
agricultural land and falling within an urban
agglo.meration, constitutes vacant land as defined in s. E
2(q) of the ULC Act. The lands in issue, therefore,
constitute vacant land on the date of filing of declaration
u/s 6 of the ULC Act by the owners in 1976. As per s. 6
of the ULC Act, declaration was required to be filed in
respect of vacant land, such declaration was correctly F
filed by the owners. Therefore, 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
',Qr to the proceedings initiated under the ULC Act
pQr~uant to such declaration. [para 23] [344-A-G]
G
i'2-.,Besides, the owners themselves have described
the land ii't-:Sl!l:Vey No. 83 as "grazing lands" and "vacant
land" in the relevant-columns of their declaration u/s 6(1)
and, therefore, the proceedings of the competent
authority u/ss 8, 9 and 10 are ,valid. Though the said H
310 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R
A aspect had not been disputed by the appellants, however,
it is pointed out that the mentioning of "grazing lands"
in the said declaration is not conclusive. However, in
view of the doc.umentary evidence, their statements in the
form of declarations before the authorities concerned
B cannot be denied. [para 45] [362-C-D]
2.3. It is not in dispute that the proceedings under the
ULC Act were not challenged by the owners at any stage
as provided by the statute. The notification u/s 10(3) of
the ULC Act stating that the surplus land would be
C deemed to tiave 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
D notification as provided by the statute. Once vesting
takes place u/s 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. [para 23] [344-H; 345-A-C]
E
Smt. Sulochana Chandrakant Galande vs. Pune
Municipal Transport & Ors., 2010 (7) Scale 571 - relied on
3.1. From the decree prepared by the Registry in
F Audikesava Reddy's case, there is no doubt as to setting
side the entire judgment of the Division Bench of the High
Court and the pa,rties cannot claim that certain issues
have been kept open or untouched. About the decree
prepared by the Registry, though as per the Rules, the
parties are permitted to point out error or defect before
G the official concerned, if the same is not in accordance
with the decision, till date, the appellants have not
questioned the correctness of the decree, nor is there any
application for its correction. On the other hand, the
decree is consistent with the judgment and makes it clear
H
OMPRAKASH VERMA & ORS. v. STATE OF 311
ANDHRA PRADESH & ORS
that allowing of the appeals filed by the State in A
Audikesava Reddy's case clearly means that the High Court
judgment is set aside and the writ petitions are dismissed.
The decision of this Court has been correctly drafted by
the Registry in the form of a decree and there is no
ambiguity therein.[para 25-26 and 33] (351-A-B; 350-H] B
Lakshmi Ram Bhuyan vs. Hari Prasad Bhuyan, 2002 (4)
Suppl. SCR 275 = (2003) 1 SCC 197 - held inapplicable.
3.2. The direction that the appeals are allowed can
have only one meaning, i.e. that the judgment of the High C
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 motu and that too after a lapse of
nine years from the date of the judgment. [para 26] (351-
H; 352-A] D
3.3. A judgment comprises three segments (i) the
'
facts and the point at issue; (ii) the reaso.ns. for the
decision and (iii) the final order containing the decision.\
Order 20 of the Code of Civil Procedure, 1908 requires 1a E
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, F
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 clearly indicate the relief or G
reliefs to which a party, in his opinion, has been found
entitled to enable the 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
H
312 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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. [para 27] [352-B-F]
3.4. The obligation is cast not only on the trial court
8
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
C to which the appellant is entitled. [para 27) (352-F-G]
4.1. The proceedings in the instant case are barred
by the principle of constructive res judicata. The
adjudication contained in Audikeshava Reddy's case,
D admittedly, was in relation to the same land in Survey No.
83 between the same parties. The validity of the ULC Act
was 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
E litigated in the previous litigation cannot be permitted to
be raised in subsequent litigations. (para 4 and 37) (322-
F-G; 357-E]
Forward Construction Co. & Ors. vs. Prabhat Manda/ &
F =
Ors., 1985 (3) Suppl. SCR 766 (1986) 1 SCC 100 - relied
on
Hoystead vs. Commissioner of Taxation (1926) 1 Appeal
Cases 155 - referred to.
G 4.2. As regards the plea of the appellants that the
High Court had recorded a finding that the land was
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
H Audikesava Reddy's case and, therefore, to that extent the
OMPRAKASH VERMA & ORS. v. STATE OF 313
ANDHRA PRADESH & ORS.
High Court judgment would operate with binding effect A
in view of principles of constructive res judicata, it is true
that the principle of res judicata/constructive res judicata
is applicable to the writ proceedings. However, in the
instant case, the finding of the Division Bench with
respect to nature of land in a writ petition filed by B
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 C
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 ULC Act intact.
No part of the judgment of the High Court would survive
after the appeal is allowed unless and until it is expressly
0
and specifically preserved. 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. [para 41] [359-D-H; 360-A] E
Gajraj Singh & Ors. vs. State of UP. & Ors. 2001 (3) SCR
344 = (2001) 5 SCC 762; Saraf Chandra Mishra & Ors. vs.
State of Orissa & Ors. 2006 (1) SCR 116 = (2006) 1 SCC
638 and State of Haryana & Ors. vs. M.P. Moh/a 2006 (8) F
Suppl. SCR 926 = (2007) 1 SCC 457- held inapplicable.
Direct Recruit Class II Engineering Officers' Association
=
vs. State of Mahrashtra and Others 1990 (2) SCR 900 (1990)
2 SCC 715; lshwar Dutt vs. Land Acquisition Collector and G
Another 2005 (1) Suppl. SCR 903 = (2005) 7 SCC 190 -
referred to.
4.3. Moreover, the determination of surplus land
based on the declaration of owners has become final
H
314 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A long back. The notifications issued u/s 10 of the Act and
the panchanama showing the possession taken is 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
B possession has been taken. It is signed by witnesses.
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. It is not
in dispute that the Panchnama has not been questioned
c in any proceedings by any of the appellants. 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. [para 42-43] [360-E-H; 361-A-B-C]
D Sita Ram Bhandar Society, New Delhi vs. Lieutenant
Governor, Govt. of NCT, Delhi 2009 (14) SCR 507 = (2009)
10 sec 501 - relied on
5. As regards the appellants' claim for the exemption
E benefits of G.O.Ms.No. 733 dated 31.10.1988, the
amendment made in G.0.Ms. No. 217 by G.O.Ms. No. 733
dated 31.10.1988 is applicable only in the cases in which
the possession of land had not been taken over by the
Government u/s 10(5) and 10(6). In the instant case,
F possession was handed over to the Manda! Revenue
Officer, even prior to the specified date, inasmuch as the
said land was allotted to Hyderabad Urban Development
Authority by G.O.Ms. No. 5013 dated 19.12.1980.
Admittedly, the said Government Order was not
G challenged by the appellants. In the 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
H
OMPRAKASH VERMA & ORS. v. STATE OF 315
ANDHRA PRADESH & ORS.
Development Authority and later to APll9 for utilizing the A
same to set up IT Park Project. 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. [para 46) [363-A-E]
B
Case Law Reference:
2001 (5) Suppl. SCR 162 explained para 1
1993 (2) SCR 295 stood overruled para 7
1990 (2) SCR ~00 referred to. para 11 C
2005 (1) Suppl. SCR 903 referred to para 11
2003 (6) Suppl. SCR 151 relied on para 20
1975 (1) SCR 394 relied on para 20 0
2000 (1) Suppl. SCR 538 relied on para 22
2010 (7) Scale 571 relied on para 23
2002 (4) Suppl. SCR 275 held inapplicable para 26
E
1984 (2) SCR 900 relied on para 28
(1970) 2 sec 733 relied on para 29
1989 ( 2 ) SCR 1005 relied on para 30
2002 (2) SCR 661 relied on para 31 F
[1982) 1 A.C referred to para 32
1988 (3) SCR 738 relied on para 33
2004 (5) Suppl. SCR 552 relied on para 34 G
2007 (3) SCR 603 relied on para 35
1985 (3) Suppl. SCR 766 relied on para 38
(1926) 1 Appeal Cases 155 referred to. Para 39
H
316 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C R
'A 2001 (3) SCR 344 held inapplicable para 42
2006 (1) SCR 116 · held inapplicable para 42
2006 (8) Suppl. SCR 926 held inapplicable para 42
2009 (14) SCR 507 relied on para 42
B
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 998
of 2007.
From the Judgment & Order dated 17.1.2007 of the High
c Court of Andhra Pradesh at Hyderabad in W.P. No. 4144 of
2006.
WITH
Civil Appeal No. 1024 of 2007
D
Civil Appeal No. 997 of 2007.
Civil Appeal No. 6115 of 2007.
K. Rajendra Chowdhary, Rakesh Diwedi, L. Nageswara
E Rao, S. Ganesh, Basava Prabhu S. Patil, A.K. Ganguly, P.S.
Patwalia, Dr. R. Prakash, S. Udaya Kumar Sagar, Bina
Madhavan, Mis. Lawyer's Knit & Co., K. Ashok Reddy, .P.
Venkat Reddy, B. Ramana Murthy, Anil Kumar Tandale, Ranjeet
Kumar, Devdath Karnath, Anirudh Sanganeria, Nishant Patil,
F Guntur Prabhakar, Amit Singh, Priteeka Dwivedi, Ankit Dalela,
Rituvenda Singh, G.N. Reddy, V. Pattabhi Ram, Pravin
Bahadur, Mallika Joshi, Rajiv Dubey, Rajan Narain, Sridhar
Potaraju, D. Julius R., Gaicharpou G., B. Subrahmanya Prasad,
Ajay Kumar M., V.N. Raghupathy, Aman Sinha, Sanjai K .
• G Pathak, lshtia Sinha, Nupur Sinha, D.K. Sinha, R. Santhana
l<reshnav, Praveen Kumar Pandey, Aditya Archiya, C.S.N.
Mohan Rao, Ambhoi Kumar Sinha, L.K. Bhushan, Anshu
Bhanot, Dua Associates and Manik Karanjawala for the
appearing parties.
H
OMPRAKASH VERMA & ORS. v. STATE OF 317
ANDHRA PRADESH & ORS.
The Judgment of the Court was delivered by A
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
8
of 2006 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.
c
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 D
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 E
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
force. Since the land in Survey No.83 was an agricultural F
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 G
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
H
318 SUPREME COURT REPORTS [2010] 15 (ADDL.) S C.R
A 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
B 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 Section 8(1) of the
ULC Act but no orders were passed on any of the
c 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.
D (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.l/80-2, dated 10.12.1980 as a result
E 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
F 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
the land in Survey No. 83 to the State Government. On
26.12.1981, the Competent Authority issued a notice under
G
Section 10(5) for surrendering possession, however, the
possession was not surrendered.
(d) By G.O. Ms.No. 733 dated 31.10.1988 read 'fVith
G.0.Ms.No. 289 dated 01.06.1989 anrt G.O._ Ms 1 No. 217
H
OMPRAKASH VERMA & ORS. v. STATE OF 319
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
dated 18.04.2000, the State Government in exercise of its A
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 B
sq meters. A number of persons including the appellants
herein purchased srriall 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 c
purchase.
\
(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 D
by the abovesaid order, W.P. No. 18385of1993 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 E
order dated 06.10.1994, another learned Single Judge
following the above order _:lowed their petition whereas
W.A. No. 1220of1994 arising out of W.P. No. 238of1994
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 F
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 G
regarding possession be maintained. On 06.11.2001, a
th,ree Judge' Bench of this Court disposed of all the
appeals, i.e. State of Am;Jhra 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 H
320 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B
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
c 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
stated in their representations that they themselves would
D 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
E 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
F 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 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 'APllC'), Hyderabad, the ~th Respondent
herein. On 15.02.2006, the State Government issued
H G.O.Ms.No. 183, extending the time up to 31st March
OMPRAKASH VERMA & ORS. v. STATE OF 321
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
2006 for submitting the applications accompanied by the A
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 Chanakyapui"i B
Cooperative Housing Society Limited, Secunderabad.
0) 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 C
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 D
Reddy District from the said GPA. Writ Petition No. 4141
of 2006 has been filed by Ahmed Abdul Aziz and 14
others who claim 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 E
Cooperative Housing Society Limited, Secunderabad,
which claims to be the hr ier of Agreement to Sell dated
09.08.1974 ~llegedly 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 F
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,. G
namely,, G.O.Ms. No. 733 Revenue (UC II) Department
dateo31.10.1988 as clarified in G.0.Ms.1No. 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
H
322 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 29.07.2002. The High Court, by a common judgment and
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.
B
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.
c Rakesh Dwivedi, and Mr. Ranjit Kumar, learned senior.counsel
for Andhra Pradesh Industrial Infrastructure Corporation (APllC)
R-4 and Mr. A.K. Ganguly, Mr. P.S. Patwalia and Mr.
Basavaprabhu S. Patil, learned senior counsel for the
applicants.
D 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
E of Village Raidurg of Ranga Reddy District declared by the
Division Benches by its judgment dated 28.10.1994 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
· F 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 det~rmination. The
adjudication contained in the Audikesava Reddy's case (supra)
admittedly was in relation to the same land in Survey No. 83
G 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. 3813of1996 and 7239
of 2001 in this Court by the respondent-State in Audikesava
Reddy's case (supra).
H 5. In order to go into the factual position and ultimate
OMPRAKASH VERMA & ORS. v. STATE OF 323
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
pecision in Audikesava Reddy's case (supra), it is necessary A
to bear in mind the meaning of expressions "Master Plan",
'Urban Land", "Vacant Land" occurring in Sections 2(h), 2(o),
~(q) respectively which reads as:c · ·
"Section 2(h)"master plan'', in relation to an area within an
11 · ~B
• ,urban agglomeration or any part thereof, means the plan
1
i, ,(~y whatever name called) prepared under any law for the
I,
time
I
being in force or in pursuance
.
of an order made , by
the State Government for the development of such area
1
' .o~ part thereof and providing for the stages by which such C
..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 0
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 E
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 sman
town committee; a cantonment board or a
panchayat, F
but does not include any such land which is mainly used
for the purpose of agriculture.
Explanation.-For the purpose
1
of this clause and
clause (q),- G
(A) "agriculture" includes horticulture, but does not
include- . I
(i) raising of grass,
H
324 SUPREME COURT REPORTS [2010] 15 (ADDL) S.C.R.
A (ii) dairy farming,
(iii). poultry farming,
(iv) breeding of live-stock, and
B (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
c 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
D 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:
E Provided further that if any question arises whether
any building is in the nature of a farm-house, such question
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)
F 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;
G (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 con~truction of a building is not
permissible under the building regulations in force
H
OM PRAKASH VERMA & ORS. v. STATE OF 325.
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
in the area in which such land is situated; A
(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
8
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 C
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 o
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
E
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 F
disclose that any "land" though situated in urban agglomeration
i~; not a "Vacant Land" if the same is 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 G
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
A1Jdikesava Reddy's case (supra). It is the appellants case
326 SUPREME COURT REPORTS [2010] 15 (ADDL.) S. C.R.
A that it was ,1ever the case of the respondent-State in Writ
Petitiun Nos. 18385of1993 and 238of1994 (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
B 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 the said land is not included in the Master Plan existing
c 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
D 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
E 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
_F counsel for the appellants heavily contended that since 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
G 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
H 17.02.1976 as void and quashed the same. He pointed out
OMPRAKASH VERMA & ORS. v. STATE OF 327
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
that the Division Bench declined to look into the second Master A
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
~n Atia.Mohammadi Begum vs. State of UP. 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 B
preferred C.A. Nos. 3813 of 1996 and 7239 of 2001 before 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 accourt of thP above ruling in C
Alia Begum's case, certain States including the State of Andhra
Pradesh sought reconsideration of the decisicir in Atia
Begum's case. Accordingly, this Court, by its orders dated
23.02.1996, referred the question of correctness of ruling in Alia
Begum's case to a larger Bench of three Hon'ble Judges.
D
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 E
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 10(6) will be deemed to have been upheld and
attained finality. According to them, in view of the judgment of F
tilis Court in Audikesava Reddy's case (supra), it is not open
to the appellants to seek re-opening of the proceedings under
t11e 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 G
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
H
328 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
8 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 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.
C 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
D 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
E 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 excess of ceiling
limit under the Act is to be made with reference to the date of
F 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:
G "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
H
OMPRAKASH VERMA & ORS. v. STATE OF 329
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
other particulars as may be prescribed of all vacant lands A
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: · B
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 C
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
0
commencement' had been substituted.
Exp/anation.-ln this section, 'commencement of this Act'
means,-
(1) the date on which this Act comes into force in any State; E
(it) 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;
F
{iit)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."
G
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
H
330 SUPREME COURT REPORTS [2010] 15 (ADDL) S C.R.
A narrating the factual position in Atia Begum's case (supra) and
after analyzing the issues, aUowed 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.
B
"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)
c
"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
D 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
E
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
F of the commencement of the Act as regards such land.
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
G 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
H
OMPRAKASH VERMA & ORS. v. STATE OF 331
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
plan (by whatever name called) prepared under any A
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;" B
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
c
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 D
statement before the competent authority anct "the .
commencement of the Act" under clause (i1) 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 E
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 F
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 G
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
H
332 SUPREME COURT REPORTS [2010] 15 (ADDL.j SC R
A particular piece of land is vacant land or not and, to this
extent, Atia Begum is not correctly decided.
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
8
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
c 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,
D 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
E 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
F 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 case as
the States were disabled from looking into the second Master
G 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
H ol the ULC Act. In those circumstances, according to Mr..
OMPRAKASH VERMA & ORS. v. STATE OF 333
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
Chowdhary, the State cannot now be permitted to reagitate the A
same question once again in these appeals arising out of Writ
Petition Nos. 4121, 4141, 4144 and 5776 of 2006 whether the
iand 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. B
· 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 Others (1990) 2 SCC
715. The following principles enunciated in paragraph 35 were C
pressed into service.
" .... In similar situation a Constitution Bench of this Court
in Daryao v. State of UP. held that where the High Court
dismisses a writ petition under Article 226 of the D
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 E
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 F
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 : G
(SCR p. 595)
"We are satisfied that a change in the form of attack
ag;:iinst the impugned statute would make no
difference to the true legal position that the writ
petition in the High Court and the present writ H
334 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
Manda/ (Regd.), Andheri, further clarified the position by
B
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
c 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.... "
D
(Emphasis Supplied)
13. In lshwar Dutt vs. Land Acquisition Collector and
Another (2005) 7 sec 190, this Court, once again reiterated
E 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
F "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,
G "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
H Competent Authority under Section 8(4), 9 and 10 of the ULC
OMPRAKASH VERMA & ORS. v. STATE OF 335
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
Act, merely because the use of the expression "appeals A
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 B
the expression "appeals allowed".
15. As (egards 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 C
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 D
filed deliberately and consciously hence, binding upon them. 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 ' E
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 F
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 G
mis-conceived in law and were rightly rejected by the Division
Bench in the impugned judgment. It was highlighted thaton the
basis of the declaration made under the ULC Act, the erstwhile
owners of the land in issue had got released from the authorities
an area of 99.17 acres of land that had been declared as
H
336 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A 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
B 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
c 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
D vacant land. 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 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
E under Section 8(1) and no~ice 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
F 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
G 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.
18. On 16.07.1980, GPA holder of declarants filed another
application in Land Reforms Tribunal contending that the
H
OMPRAKASH VERMA & ORS. v. STATE OF 337
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
provisions of the Land Reforms Act are not applicable and A
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 owriers.
Meanwhile, surplus lands were allotted to Hyderabad Urban B
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
c
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 Section 10(5) of the ULC Act, D
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 E
appeal was filed in 1983 before the Land Reforms Tribunal
being LR.A. No. 6 of 1983. By order dated 22.09.1984, the
Land Reforms Appellate Tribunal allowed LR.A. No. 6of1983
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 F
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 G
possession be taken over all lands declared to be surplus 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 (APllC) on 13.02.2006 and physical possession was
handed over to APllC on 14.02.2006. The above factual details H
338 SUPREME COURT REPORTS (2010) 15 (ADDL.) S.C.R.
A 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
B 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
c 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 Section 6 of the ULC Act on the principle that a person
cannot aprobate and reprobate in respect of the same
transaction.
0
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 'sench of the
E 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
F 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
G by him is in 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
H such cases where the factum of the land in issue being vacant
OMPRAKASH VERMA & ORS. v. STATE OF 339 ""'
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
. land is admitted. But thereafter, a submission was made that A
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 B
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 C
out by learned senior counsel for the respondents by virtue of
special leave petition filed against the judgment dated
04.12.1996 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 D
decision of this Court in Dharam Dutt and Others vs. Union of
1ndia and Others, (2004) 1 SCC 712. This Court held filing of
an appeal destroys the finality of the judgment under appeal
(vide para 69).
E
21. In Mis Gojer Bros. (Pvt.) Ltd. vs. Shri Ratan Lal Singh,
(1974) 2 sec 453, ttfe 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 F
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 G
superior court. In other words, the judgment of the inferior
court loses its identity by its merger with the judgment of
the superior court."
H
340 SUPREME COURT REPORTS (2010) 15 (ADDL.) S.C.R.
A 22. In Kunhayammed and Others vs. State of Kera/a and
Another, (2000) 6 SCC 359, this Court held:
"12. The loqic 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.
B
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
c 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
D 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:
E
"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 o(
challenge laid or which could have been laid shall have to
be kept in view."
F
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
G shows that what this Court laid down was that the principle
contained in the doctrine of merger is not of universal
application. 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
H applicability of the doctrine of merger. The above view is
OMPRAKASH VERMA & ORS. v. STATE OF 341
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
supported in the very same Kunhayammed and Others A
(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
8
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 C
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 D
(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 E
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 F
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 G
Juris Secundum, Vol. LVll, pp. 1067-68.)"
In the same decision, their Lordships have summarized their
conclusion as under:
"44. To sum up, our conclusions are: H-
342 SUPREME COURT REPORTS [2010] 15 (ADDL) S.C.R:
A (1) 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
B 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
c 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.
D (iit) 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
E 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
F
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
G 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
1-1 allow the appeal being filed.
OMPRAKASH
,. VERMA & ORS. v. STATE OF 343
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
(v) If the order refusing leave to appeal is a speaking order, A
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, B
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 Court being the Apex Court of the country. But, c
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 D
between the parties.
(v1) 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 E
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 F
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 G
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 H
344 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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 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
B 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
c 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
0
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, namely,
Chanakyapuri Cooperative Housing Society which got a layout
E 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
F within an urban agglomeration, constitutes vacant land as
defined in Section 2(q) of the ULC Act. l'he 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
G 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
H declaration. It is not in dispute that the proceedings under the
OMPRAKASH VERMA & ORS. v. STATE OF 345
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
ULC Act were not challenged by the owners at any stage as A
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 B
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 c
. 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 & D
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 considering the case
under Sections 16 and 17 of the Act 1894, the Court held E
·as under:
... the property acquired becomes the property of
Government without any condition or limitations
either as to title or possession. The legislature has F
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 G
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 H
346 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A 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;
B and Al Champdany lndµstries Ltd. v. Official Liquidator
and Anr., (2009) 4 SCC 486).
11. In State of Himachal Pradesh v. Tarsem Singh and
Ors., AIR 2001 SC 3.431, this Court held that the
terminology 'free from all encumbrances' used in Section
c 16 of the Act 1894, is wholly unqualified and would en-
i;ompass the extinguishing of "all rights, title and interests
including easementary rights" when the title vests in the
State.
D 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 UP. and
Ors., AIR 1993 SC 2517, this Court held that once land
E
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 and Ors., (1995)
6 SCC 31; U.P. Jal Nigam, Lucknow v. Mis Kalra
Properties (P) Ltd. Lucknow and Ors., AIR 1996 SC 1170;
F 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 Kera/a and'. Ors. v.
M. Bhaskaran Pillai and Anr., AIR 1997 SC 2703; M.
G Rama/inga 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
H Pradesh and Anr. v. Syed Akbar, AIR 2005 SC 492.
OMPRAKASH VERMA & ORS. v. STATE OF 347
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
13. So far as the change of user is concerned, it is a 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.
B
In a similar situation, in Gu/am 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 C
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 D
the .... declaration."
14. Re-iterating a similar view in C. Padma and Ors. v.
~ Deputy Secretary to the Government of Tamil Nadu and
I Ors., (1997) 2 sec 627, this Court held that if by virtue of E
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.
F
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
sec 335, this Court held that, the land user can be G
changed by the Statutory Authority after the land vests in
the State free from all encumbrances.
16. In view of th~ above, the law can be summarised that
, once the land is acquired, it vests in, the State free from. H
348 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A 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 norr grata once the land
vests in the State. He has a right to get compensation only
B 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
C 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
D Registry. The relevant portion of the decree is as follows:
" ..... 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
E 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
F
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
G 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
H 18335 of 1993 be and are hereby set aside and in place
OMPRAKASH VERMA & ORS. v. STATE OF 349
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
thereof an order dismissing Writ Petition Nos. 238 of 1994 A
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; ... " B
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 C
"judgment and decree" contained in Section 2(9) and Section
2(2) of the Code of Civil Procedure, 1908 (hereinafter referred
to as 'CPC') respectively, which reads thus:
"2(9) "judgment" means the statement given by the Judge o
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 E
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 F
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 G
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 H
350 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A 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".
B Repeatedly, Mr. Chowd.huri 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
c 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
0
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
E were obligated to file declarations under Section 6 of their
holdings and as such the statutory obligation to deal with such
declarations also would 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)
F 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
G 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
H per the Rules, the parties are permitted to point out error or
OMPRAKASH VERMA & ORS. v. STATE OF 351
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
defect, if the same is not in accordance with the decision before A
the official concerned. Till date, the appellants have not
questioned the correctness of the decree, even now, there is
no application for its correction. 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 B
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 C
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 D
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 Court stopped execution and issued direction E
for correction of the decree. The matter was taken up to the
High Court and finally to this LJurt. On perusal of the eritire
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 F
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 G
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 H
352 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A the same, there is no occasion for making any correction even
suo moto and 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
8
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
C 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 a/ia, particulars of the claim and shall
D 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 clearly indicate the relief or reliefs
to which a party, in his opinion, has been found entitled to
E 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
F 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
G 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
H subsequently that a particular aspect or argument was not
OMPRAKASH VERMA & ORS. v. STATE OF 3S3
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
considered by this Court or that it can be relied upon. A
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 8
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.
c
" ... 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 Mis Kesha Ram and Co. and Others Etc. vs. Union
0
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 E
by the Court."
31. Similarly, in Director of Settlements, A.P. and Others
vs. MR. Apparao and Another, (2002) 4 SCC 638, this Court
held thus: F
"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."
G
In view of the peculiar controversy, we read the judgment in
Audikesava Reddy's case carefully, partic4larly, paras 13 to 17
and we are satisfied that the decision of this Court has been
correctly drafted by the Registry in th.e form of a decree and
there is no ambiguity as claimed by learned senior counsel for H
354 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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:
B
In Hunter vs. Chief Constable [1982] 1 A.C, Diplock LJ
delivering his speech in the House of Lords enunciated the
doctrine of 'Collateral attack on a judgment and observed thus:
"The abuse of process which the instant case exemplifies
c 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
D
a full opportunity of contesting the decision in the court by
which it was made."
Quoting Halsburys, the learned judge observed:
E "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
F 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
G argued before the Supreme Court and thereby seek to reopen
the issue. The relevant portion of the judgment is as follows:
" ... This Court further observed that to contend that the
conclusion therein applied only to the parties before this
H Court was to destroy the efficacy and integrity of the
OMPRAKASH VERMA & ORS. v. STATE OF 355
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
judgment and to make the mandate of Article 141 A
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
8
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:
c
"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 D
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: E
"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 F
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 G
orders passed by 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." H
356 SUPREME COURT REPORTS [20101 15 (ADDL.) S.C.R.
A 36. Regarding the doctrine of merger, once the appeal of
the State was allowed in Audikeshava Reddy's case the net
res,ult 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
B 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
C 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.
37. As pointed out by learned Attorney General, the matter
D can be looked at from another angle. The proceedings in the
instant case are barred by the principle of cons1ructive res
judicata. The validity of the ULC Act were squarelv in issue.
The effect of allowing the State appeals in Audikeshava
Reddy's case is that all contentions which parties might and
E 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
Manda/ & Ors., (1986) 1 SCC 100, this Court held that an
F adjudication is conclusive and binding not only as to the actual
matter determined but as to everi 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:
G "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
H 11 CPC provides that any matter which might and ought
OMPRAKASH VERMA & ORS. v. STATE OF 357
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
to have been made ground of defence or attack in such A
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 B
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 c
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 0
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 E
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 F
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 G
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 contention with regard to the land
being agricultural land was raised in the writ petitions which H
358 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R
A 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 app6::dnts as respondents in the earlier round did
not urge this plea before this Court and no such arguments were
B 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. 18385of1993 and
238 of 1994 stood dismissed. Inasmuch as the writ petitions
having been dismissed, the orders passed under the ULC Act
c 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. No. 4141 of 2006
0
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.
E 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
F 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
G 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 could not raise that plea. This Court said, "this
question is left open to be decided in an appropriate case."
H This means that this was not a fit case for going into this issue
OMPRAKASH VERMA & ORS. v. STATE OF 359
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
and when a proper case filed by owner comes with such a plea A
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 B
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 c
and the determination of ceiling already made remains intact
and undisturbed.
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 D
and was a vacant land but that point was not pressed before
this Court in Audikesava Reddy's case,Jlence to that extent
the High Court judgment would operate with binding effect in
view of principles of constructive res judicata. We accept ttiat
principle of res judicata/constructive res judicata is applicable E
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 F
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 ULC Act intact. In the case on hand, as G
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 H
360 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
8
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:
C 1. Gajraj Singh & Ors. vs. State of UP. & Ors (2001) 5
sec 762
2. Saraf Chandra Mishra & Ors. vs. State of Orissa & Ors.
(2006) 1 sec 638, 643 and
D 3. State of Haryana & Ors. vs. M.P. Moh/a, (2007) 1 SCC
457, 464
On going through those decisions.,.we·l'l~ve no quarrel over the
ratio laid down, however, there is' nd
sc0pe of applying them
E to the present case. As pointed out earlieF, ·tbe expression 'civil
appeals are allowed' carry only one meaning; L~;, the judgment
of the High Court is set aside and the writ petitioris are
d~smissed. Moreover, the determination of surplus li:tDd based
on the declaration of owners has becom.e final long back. The
F notifications issued under Section·· 1O of. the Act and tbe
panchanama taken possession· are also final. On behalf.Of the
State, it was asserted thatthe possession of surph.is land was
taken on 20.07.1993 and the Panchanama was executed
showing that the possession has been;t~ken. It is signed by
witnesses ..We-have perused the'details which are available
G in the paper b<;>ok. 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 ~overnor,
H Govt. of NCT, Delhi, (2009) 10 SCC 501]
OMPRAKASH VERMA & ORS. v. STATE OF 361
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
43. It is not in dispute that the Panchnama has not been A
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 f~e owners and
possessi.on was also given to Golden Hill Construction B
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. c
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 APllC. They are:
(a) The appellants themselves described the land in Survey D
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 E
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 F
between GPA and Chanakyapuri Cooperative Housing
Society;
(e) Owners and Society filed applications for exemptions
which were rejected;
G
(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.
H
362 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A In fact these instances were projected in their counter affidavit
before the High Court by the State and APllC 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
B 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
C 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 of "grazing lands" in the said
declaration is not conclusive. However. as observed earlier,
their statements in the form of declarations before the
D 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
E 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
F 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
G 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
-H
OMPRAKASH VERMA & ORS. v. STATE OF 363
ANDHRA PRADESH & ORS. [P. SATHASIVAM, J.]
respondents, the declarants cannot avail the said benefit since A
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
ifthe 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 B
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 c
vide G.O.Ms. No. 5013 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 D
transferred initially in favour of Hyderabad Urban Dev~lopment
Authority and later to APllC 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 E
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 F
the appropriate authority/court to vindicate their grievance if the
same is permissible under law.
48. In the light of the above discussion, we do not find any
merit in the appeals filed by the appellants. Consequently, they G
are dismissed. No order as to costs.
R.P. Appeal dismissed.
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