http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13  

CASE NO.: Appeal (civil)  6877-6881 of 2000

PETITIONER: Secunderabad Cantonment Board,Andhra Circle,Secunderabad rep.by Execu.Officer  

RESPONDENT: Mohammed Mohiuddin and Ors.  

DATE OF JUDGMENT: 28/11/2003

BENCH: Brijesh Kumar & Arun Kumar.

JUDGMENT: JUDGMENT

WITH

CIVIL APPEAL N0. 753/2001

The State of Andhra Pradesh, rep.by\005         Appellant Collector, Hyderabad Dist.,Andhra Pradesh

Versus

Mohammed Mohiuddin & Ors.                       Respondents

WITH

CIVIL APPEAL NOS. 1107-1111/2001

Union of India                          Appellant

Versus

Mohammed Mohiuddin & Ors.                       Respondents

WITH

CIVIL APPEAL N0. 6604/2001

Secunderabad Cantonment Board,                  Appellant Court Compound, Secunderabad rep. By Executive Officer

Versus

Weavers represented by their Chairman, T.K.Kodandaram                                Respondents

WITH

CIVIL APPEAL NOS.____of 2003  @ S.L.P. ) NOS. 406-409/2002  

M/s.Weavers Educational Advance Vocational Economic Rehabilitation Society, represented by its Chairman T.K.Kodandaram                                  Appellant

Versus Union of India & Ors.                           Respondents AND

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13  

CIVIL APPEAL N0. 6376/2001

Syed Sadiq Ali Khan                                     Appellant Versus The Executive Officer & Ors.                    Respondents

BRIJESH KUMAR,J.  

       All the above noted appeals though filed by different  parties, involve the same question relating to the legality of the  order dated 11.8.2000 passed by the Division Bench of the  Andhra Pradesh High Court as well as the judgments later  passed following the above said decision. The controversy  revolves around the refusal to sanction the plan submitted by  different parties to the Cantonment Board for construction of   building over  the land in question. The central government  raised its claim over the land and filed objections to that effect  through the Defence Estate Officer as provided under Section  181 of the  Cantonment Act, 1924 (hereinafter referred to as  ’the Act’).          All the appeals have been heard together along with  Special Leave Petition(C) Nos.406-409/02 in which we grant  leave.  All these matters are being disposed of by this common  judgment.                 The facts in brief,  relevant for purposes of  disposing of  these matters are that: the land over which the respondents  proposed to raise construction and had submitted plans  therefor, falls in the limits of Secunderabad Cantonment Board.   There is a bungalow No. 215 in Thokatta Village,  which is  said to have been purchased in the name of Syed Sirajuddin Ali  Khan, the minor,  represented through  his father Syed Sadiq  Ali Khan, by means of a registered sale deed dated 21.9.1899.   It is also the case of respondents that Syed Sirujdin Ali Khan   on attaining majority relinquished his rights in favour of his  father Syed Sadiq Ali Khan by means of a deed dated   11.8.1911.  The case of the respondents further is that Sadiq  Ali Khan had allotted land to 11 persons sometime in 1920 and  made an application for making entries in the village records  accordingly.  The land  S No. 37 was changed to S No. 170 on  revision of settlement. According to the  respondents,  the  cantonment authorities have been collecting tax in respect of  the land which has been in their possession.    The respondents  moved application to the Executive Officer, Cantonment Board  for sanction of lay out  in respect of part of the land of S. No.  170,  measuring 8 acres.  The application for sanction of the  plan was returned to the respondents with an objection that  they were  required to furnish exemption certificate under the  provisions of Urban Land (Ceiling and Regulation) Act, 1976.   The respondents challenged the return of the layout plan   and filed a writ petition 4250 of 1994,  before the Andhra  Pradesh High Court. The  Writ petition was allowed on  30.9.94,  and it was  held that no such exemption certificate  under the Urban Land (Ceiling and Regulation)  Act, 1976 was  required  to be furnished.  The authorities were  directed  to  consider the sanction of the plan without insisting for  exemption certificate.  The lay out plan,  however, was again  returned on the ground that  S No. 170 is in Sarkari Abadi  Land.  Another writ petition No.6012/95 was filed,   challenging the above order. The said writ petition was also  allowed by order dated 6.12.95 with a direction to the  authorities to find out as to whether the respondents had  established a prima facie case as to their possession and also to  consider the objection of the Union of India and to pass an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13  

appropriate order thereof.   The application for sanction of plan  was ultimately dismissed on 18.1.1996, refusing permission,   as the land was found  to have been in possession of  Government of India. An appeal was preferred against that  order.  Since the appeal kept on pending,  yet another writ  petition No. 3606/96 was filed to restrain the authorities  from   interfering with the  possession of the petitioners (in the writ  petition) over the land,  till disposal of their appeal.  This  prayer was granted on 27.2.1996.  By means of yet another  order passed in writ petition No. 6009/96 police protection was  also provided to the writ petitioners (respondents here).  Ultimately,  the appeal was dismissed on 10.5.1996 holding  that the respondents had no title to the land in question.   It gave rise to filing of yet another writ petition No.  10804/96 against the order dismissing the appeal.   The learned  Single Judge while allowing the writ petition  held that the  authorities  were not required to go into the question of  title of  the applicants  in the land.  The writ petitioners,  namely,  the  present respondents were held to be in possession over the  property.  The learned Single Judge also considered  the case of  the appellants  that the land was covered under the old grant  and found  that no land was granted to the Government of India  by Nizam for military  purposes.  The learned Single Judge  found that in the earlier proceedings,  the authorities did not  raise  objection claiming title,  therefore,  they could not take  that  stand in subsequent proceedings as it would be  hit  by  principles of constructive res judicata. Possession of appellant  was also not found.  With such observation,  the learned Single  Judge while allowing the writ petition,  directed the  Cantonment Board to sanction the lay out plan.  The appeal,   preferred against the judgment of the learned Single Judge,  has  been dismissed,  which is the subject matter of   appeals in  hand.          Some other developments also took place during all this   period.  According to the appellants,  till the year 1992 the  respondents extended  no claim,  whatsoever, to the land in  question.  However, the respondent Sadiq Ali Khan   filed a  petition under Section 15(2) of the Record of the  Rights  Regulation Act for correction  of entries in the Revenue  Records  to the extent of 25 acres, on the basis of an  unregistered sale deed.  The said application was rejected by   order dated 9.4.92 by the District Revenue officer,  holding  that land measuring only 2.71 acres out of the land of    Bungalow No.215 was in the private hands and the rest of the  land was Government land which has been correctly shown to  be so in the revenue records.  An appeal was preferred against  the said order before the Commissioner of Land Revenue  under Section 158  of the Land Revenue Act which was  dismissed on 15.3.97.  It  may  also be  mentioned  that  according to the appellants,  the  respondents Nos. 1 to 62 had  also got themselves impleaded as parties in the appeal which  has been decided against them.          Sadiq Ali Khan filed a Civil Suit No.288/92 also in the  Court of Civil Judge,  Secunderabad  claiming  ownership and   possession of  land measuring 65 acres in S.  No. 170 in   Tokketa Village. A prayer made for interim injunction was  rejected by order dated 12.10.92.  It was, however, found that    the plaintiff in suit was in  possession of land measuring 2.71  acres only and in respect thereof,. he was entitled for  injunction against dispossession,  but so far the rest of the land  is concerned measuring near about 63 acres it was in the  ownership and possession of the Government of India.  The Division Bench took note of the finding of the  learned Single Judge that the competent authority,  while  considering the question of sanction of the building plan,  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13  

only required to see the prima facie possession of the  applicant, it has not to adjudicate  upon  the title of the  applicants.   The Division Bench also observed that the   government authorities had not claimed  title over  the land in  the previous proceedings,  therefore,  they  were estopped   from raising such a plea later which is hit by the principles of  constructive res judicata.  Referring to a decision reported in  AIR 1977 SC 392  Y.B. Patil Vs. Y.L. Patil,  it observed that   the principles  of constructive res judicata could apply   in  subsequent stages of the same proceedings as well.     Ultimately,  it was held that principle of constructive res  judicata  in this case would apply to a  limited extent as to the   availability of the  grounds  on which layout plan  could be  refused.   The Division Bench, however itself   recorded  finding that there is a serious dispute of title amongst  various  persons.  The relevant   part of the judgment may be quoted,  which reads as follows:-         "With regard to question of title, it is well  settled that highly  disputed question of title  cannot be entertained and adjudicated in a petition  under Article 226 of the Constitution of India.   From the various contentions raised and  arguments urged on behalf of the respective  parties, it is apparent that there is a serious dispute  of title among the various persons and authorities  in respect of title  to the property in question."

In so far the objections of the appellants that the learned  Single Judge has virtually given a finding on the title in favour  of the petitioners,  the Division Bench observed as follows: -          "Such an impression does emerge from the  observations of the learned Single Judge at page  22 of the judgment, like as authenticity of these  documents cannot be doubted by the respondents,  the same have to be given their  weight, and when  reliance is placed on those documents, the title of  the petitioners cannot be disputed.  We do not  agree with the conclusions of  the learned Single  Judge that the petitioners’    title has been  established."  

The  Division Bench has reiterated its view that question of  title could not be decided before the competent authority nor  such disputed question could be decided in writ proceedings.  It, however, in the later part of discussion in the judgment, has  clarified the extent to which it upholds the applicability of  principles of constructive res judicata,  not  being totally in  agreement with  the finding of the learned Single Judge on the  said point.  The relevant observation in that regard may be  perused,  which are quoted below:-   "It is made clear that this judgment under  appeal  shall not be construed as having decided  the question of title in respect of the land involved  in the said writ petition.  We also hold the view  that even the failure of respondents  to raise or set  up  the question of the title  in earlier writ  petitions, namely, WP No. 6012 of 1995, 3600 of  1996 and 6012 of 1996  as mentioned at page 21  of the judgment of the learned Single Judge,  cannot be basis for invoking the principle of res  judicata in respect of the question of title.  The  principle of res judicata as stated above would in  this case be applicable only to the limited question  as to the entitlement of the petitioner for sanction  of lay out and as to the grounds on which such

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13  

sanction can be refused."

In so far the finding of the learned Single Judge in  relation to the possession of the land by  all the writ  petitioners, it has been held by the Division Bench that the  said  finding is limited only for the purpose of sanction of lay  out and not for any other purpose.   Before proceeding  to discuss the submissions made  before us by the respective parties,  it may be beneficial to  peruse the provisions regarding the sanction of the lay out  plan.  Section 181 of the Cantonment Act reads as under:-  "Section 181. Power of Board to sanction or  refuse  (1) The Board may either refuse to   sanction    the erection or re-erection, as the case  may be, of the building,  or may sanction it either  absolutely or subject to such directions  as it  thinks fit to make in writing in respect   of all or  any of the following matters namely:-  

(a)    to    (j)  x x x x x x     (2)      x x x x x x (3)     The Board before sanctioning the  erection   or re  erection of a building  on land which is  under the management of the {Defence Estates  Officer},  shall refer the application to the  (Defence Estates Officer) for ascertaining whether   there is any objection on the part of the  Government to such erection or re-erection  and  the (Defence Estates Officer) shall return the  application together with his report thereon to the  Board within thirty days after it has been received  by him.  

(4)     The Board may refuse to sanction the  erection or re-erection of any building

(a)     when the land on which it is proposed  to erect or re-erect the building is held on a lease  from the Government, if the erection or re-erection  constitutes a breach  of the terms of the lease, or

(aa) when the land on which it is proposed to erect  or re-erect the building   is entrusted to the  management of the Board by the Government if  the erection or re-erection constitutes a breach of  the terms of the entrustment of management or  contravenes any of the instructions issued by the  Government regarding the management of the  land by the Board, or  

(b) when the land on which it is proposed to erect  or re-erect the building is not held on  a lease from  the Government, if the right to build on such,  land  is in dispute between the person applying for  sanction and the Government.   (5)     x  x x x x x x  (6)     x x x x x x x"   

Bye law 15 reads as under:-  "15. Power of Cantt. Board to sanction, modify  or reject:- The Cantonment Board may sanction  the lay out plan submitted by the applicant if the  same is in accordance with the bye-laws or  sanction the same with such modifications as the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13  

Cantt. Board may consider fit, or may refuse to  sanction any layout  if proprietary rights on the  land proposed to be laid out is claimed by the  Government of India in the Ministry of Defence to  be their land as shown in the General Land  Register maintained  for the purpose".  

       In our view,  the main question which falls for  consideration is about the ambit and scope of Section 181 of  the Act,  more particularly Clause (b) of sub-section 4 of  Section 181.  The above provision empowers the Board to  refuse sanction of a building plan where the land on which a  construction is proposed to be raised is not on lease from the  Government and  there  exists any dispute between the  applicant for sanction of the plan and the Government.  The respective  parties  have drawn our attention to  certain facts and documents to show as to which of them is the  rightful owner of the land.  The other question which has been  raised by the respondents is that ground for rejection of plan   as contained in Clause (b) of Sub-section 4   of Section 181 is  not open to be resorted to by the appellants since such a  ground was not raised earlier while  returning the plan, since  in  such a situation principle of constructive res judicata   would be attracted.  There are a few other peripheral questions  which we shall be discussing later.   The application for sanction of plan was moved by the  respondents on 4.12.93 addressed  to the Cantonment  Executive Officer.  On 4/5 January, 1994 the Cantonment  Executive Officer wrote that the ULSC exemption certificate  in Form 19(V) from DEAPU Circle Secunderabad was not  furnished.  It was also indicated that Board was also  examining the matter    relating to entertaining  new lay out  plans.  Hence the plan submitted by Nawab Mohd. Usuf Khan,  the General Power of Attorney, was returned.   We have  already noted that  a writ petition preferred namely, writ  petition No. 4250 of 1994, against the return of the plan was  allowed by the High Court by Judgment dated 30.9.94,  holding that no exemption  certificate under the provisions of  the Urban (Land and Ceiling) Act  was necessary.  Hence  the  matter was required to be considered again without insisting  upon a  Urban Ceiling exemption certificate.  The respondents  then again seems to  have approached for consideration of  sanction of the plan on 10.1.1995. The cantonment Executive  Officer by means of his notification dated 15/3/99 informed to  the General Power of Attorney Sh. Nawab Mohd Usuf Khan  that the DEO (Defence Estates Officer)  had raised definite  objection on behalf of  the Government against the lay out  plan submitted by the respondents.  It was also indicated that  in the Revenue Records Sy. No. 170 of Thokatta Village is  shown as Sarkari Abadi which is defence owned land.   The  plan was thus  again returned  to  the respondents.  At this  juncture,  it may be relevant to take note of sub-section 3 of  Section 181 of the Act, as quoted  earlier.  We have already noted the findings recorded in the writ  petition and the appeal in the earlier part of the judgment.  The  learned counsel for the appellant has laid great emphasis  upon  the  old revenue record entries in favour of the appellant and  the entries made in the General Land Register.  It is submitted  that Cantonment Land Administration Rules, 1937 have been  framed by virtue of power vested under Section 280 of the  Cantonments Act, 1924. Rule 10 in Chapter III of the  Cantonment Land Administration Rules  deals with  maintenance of   General Land Register. The  Military Estates  Officer (now Defence Estates Officer) is required   to maintain  General Land Register prepared under Rule 3 in respect of all

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13  

land which has been entrusted to or vests in the Board.  In this  connection,  a reference has also been made to a decision  reported in 1999 (3) SCC page 555,  Chief Executive Officer  Vs. Surendra Kumar Vakil and Ors.  Regarding  General Land  Registers,  it has been observed that they are maintained under  the Rules, in normal  course of business and  entries made in  such registers  were to be given due weight.  It is therefore,  submitted that it cannot be said that no value is to be attached  to the entries made in the General Land Registers.  It has also  been submitted  that there being   a serious dispute about the  title of the property  as also found  by the Division Bench,   existence of the dispute  in respect of the property in question  cannot be disputed.   The learned  counsel appearing for the Union of India  has referred to the proceedings which were initiated by Sadiq  Ali Khan for correction of revenue records but that application  was rejected on 9.4.92.  The appeal, preferred against the said  order passed by the District Revenue Officer in which 62  respondents also got themselves impleaded, was also  dismissed  That is to say the entries in revenue records in  favour of the Government  were maintained  and the attempt   of the     respondents for change of the entries claiming right  over the land in question failed.  The authorities of the  Defence Department were also heard.  It  was held that the  claim advanced by the  respondents was not  substantiated by  documents and it was  without any basis.  It was found that the  land was Government land/military estate.  The Special   Commissioner,  Land Revenue observed in his order that no  proper documents were produced  by the respondents.  It is  also indicated that in a suit filed by Sadiq Ali Khan (O.S. No.  288/92) with a prayer for injunction on the basis of the  possession, the prayer was rejected except in part relating to  2.7 acres.   Learned counsel appearing for the respondents tracing   the history submitted that area of the village concerned  belongs to the Nizam.  It is also submitted that respondents   have been paying tax in respect of the  Bungalow No.215  which was purchased by Syed Sirajuddin Ali, a minor son of  Sadiq Ali Khan in the year 1899  who,  on attaining majority,   had relinquished his rights in favour of his father,  Sadiq Ali  Khan on 11/8/1911. He wrote to the authorities in 1920 that he  had allotted the land to the extent of 19.05 gts.  to different  persons and the same was requested to be recorded in the  village records.  The fact was acknowledged by the  Directorate  and the Secretary of the Estate of Nawab  Salarjung Bahadur  saying that it was not agricultural land,   therefore no assessment was made  but later tax at the rate of  Rs. 5  per acre  was levied.  Therefore, a sum of Rs. 325/- in  respect of the land   in Survey No. 37 was held liable to be  collected from Sadiq Ali Khan  and his allottees.    It was also  indicated  by the authorities of the Estate that on revision of  the Bandobast (settlement)   Sy. No. 37 was given a new  Sy.  No. 170.  He has also drawn our attention to the fact that the  land which  was handed over by the Nizam to Government  was only for the purposes of exercising criminal and police  jurisdiction by the Government of India and Thokatta  is one  of such villages mentioned in the notification dated 28/9/1906.   A copy of the aforesaid document  has been provided to us by  the learned Counsel for the respondents which does not seem  to be a part of the record.  He has also drawn our attention to  the documents, namely, the sale deed dated 21/9/1899  regarding 64 acres  and  deeds pertaining to non-agricultural  land. It has further been submitted that the dispute regarding  the land, by reason of which permission to sanction the map  can be refused,  should be bonafide and a genuine dispute.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13  

So far the question of investigating into the title of the  parties is concerned,  we feel that the view  of the High Court  to the extent that title is not required to be  established by any  of the parties before the competent authority,  is correct.  So  far  possession is concerned,  it may be indicated that there  seems to be no such specific provision requiring to establish  possession but it  may depend upon facts of a given case and it  may be  considered as one of the relevant aspects to be kept in  mind while considering the application   for sanction of a   plan.   But so far the statutory requirement is concerned, it is  evident from perusal of sub-section 4 (b) of Section 181 that  the competent authority dealing  with the matter,  has to see  whether  there is or not any  dispute about the land between  the person applying  for sanction of the plan and the  Government.  In case the concerned authority  is satisfied  about the existence of such a dispute in terms of  Section 181  of the Act,  the request for sanction of the lay out plan is liable  to be refused.  In this connection,  it will  also  be relevant to  refer to sub-section 3 of Section 181 which provides that  before sanctioning a plan the Board is required to refer the  application to the Defence Estates Officer for ascertaining  whether there was any objection on the part of the  Government to such erection or re-erection over the land.  The  said provision casts a duty upon the sanctioning authority to  refer the matter as pointed out  above. Accordingly, it referred   the matter to the DEO,  who raised objections regarding  sanction of the plan.  The objection relates to the question of  ownership of the land.  The government claims ownership of   the land  and in  that regard  reliance  was placed upon entries  in the Revenue Records and the General Land Register which  are maintained in due course of official business.  The  respondents claimed their title through the sale deed executed  in favour of son of Sadiq Ali Khan in the year 1899,   who on  attaining majority had relinquished his rights in favour of his  father Sadiq Ali Khan on 11/8/1911 and then the alleged  transfer of  different parts of the land to eleven different  persons. It has been pointed out earlier also that the  respondents had moved  for correction of the records before  the Revenue Officer but they failed.  The appeal also remained   unsuccessful, in which all the 62 respondents had got  impleaded themselves.     A civil suit for injunction was  filed  by Sadiq Ali Khan in 1992 but the prayer for injunction was  refused except in respect of a part of the land measuring 2.71  acres since  prima facie,   their possession was not found over  the rest of the land.  It may be worthwhile to notice that the  proceedings for correction of the records and  the Civil Suit  for injunction were initiated in 1992 and the application for  sanction  of the plan was moved  in 1994,  that is to say,  after  the respondents remained unsuccessful  in their attempts to  obtain orders  in their favour twice before.  In such  circumstances,  it would be difficult to say that there would be  no  bonafide dispute about the land between the parties.  In  this background, we do not   feel it necessary to enter into the  contents and merits of various documents relating to title   relied upon by either side. That enquiry would be necessary  only if question of title could be decided in these proceedings  and not otherwise. But  we find there enough material,  on the  basis of which an  authority could reasonably come to the  conclusion that there was a dispute, relating to the  land,  between the applicant and the Government in respect of which   sanction of the plan to construct, was applied for.  Such a  dispute was brought to the notice of the competent authority  by means of objection placed before it by the Defence Estates  Officer  under the statutory provision.   We don’t think that it  would be possible to say that the authority concerned took a  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13  

view about existence of dispute which was not sustainable.    We may then consider the question as raised regarding  application of principles of constructive res judicata. The  Division Bench has  recorded a finding that  the appellants  were estopped,    on the principle of constructive res judicata,  from raising an objection relating to existence of dispute over  the land,  on the basis  that no such plea was put forward  at  the stage when the map was returned  first in the year 1994  saying  that the exemption certificate under Urban Land and  Ceiling Act was  not filed by the applicants.  Therefore, this  plea of dispute over the land between applicants and the  Government, which could have been raised earlier, but not  raised,  cannot be allowed to be taken up now.    Learned  counsel for the respondent has in this connection placed  reliance upon a decision reported in 1970 SCR page 830,   Mathura Prasad  Bajoo Jaiswal and Ors. Vs. Dossibai N.B.  Jeejeebhoy.  Our attention has been particularly drawn to page  836  which  is quoted below:-         "It is true that in determining the application  of the rule of res judicata the Court is not  concerned with the correctness or otherwise of the  earlier judgment.  The matter in issue, if it is one  purely of fact, decided in the earlier  proceeding  by a competent court must in a subsequent  litigation between the same parties be regarded as  finally decided and cannot be reopened.  A mixed  question of law and fact determined in the earlier  proceeding between the same parties may not, for  the same reason, be questioned in a subsequent  proceeding between the same parties.  But, where  the decision is on a question law, i.e. the  interpretation of a statute, it will be res judicata in  a subsequent proceeding between the same parties  where the cause of action is the same, for the    expression "the matter in issue" in s. 11 Code of   Civil Procedure means the right litigated between  the parties, i.e. the facts on which the right is  claimed or denied and the law applicable to the  determination of that issue.  Where, however, the  question is one purely  of law and it relates to the  jurisdiction of the Court or a decision of the Court  sanctioning something which is illegal, by resort  to  the  rule  of  res judicata a party affected by the

decision will not be precluded from challenging  the validity of that order  under the rule of res  judicata, for a rule of procedure cannot supersede  the law of the land."

On the basis of above observation,  it is submitted that  decision between the parties,  on the question of law, will bind  the parties in subsequent proceedings.  So far  proposition of  law is concerned,  there  would  be no dispute  to the same but  we don’t find that there has been any decision between the  parties on the question of dispute in terms of sub-section 3 of  Section 181 of the  Act.   No question for interpretation of any  provision of law is involved.   We, therefore,  find that the  above decision would be of no help to the respondents.  A  reference has also been made to 1977 (3) SCR 428 State of  Uttar Pradesh Vs. Nawab Hussain particularly to the  observation made at pages 431 and 434.  On the  basis of the  above decision, it is submitted that doctrine of  res judicata  would be applicable even to the proceedings other than suits,  as has been  held in the above case that principle of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13  

constructive res judicta would be applicable  in proceedings  under  Article 226 of the Constitution of India.  It is also  submitted that a plea which could be raised in the earlier  proceedings, if not raised by a party, it would not be  permissible to raise the same  subsequently   between the same  parties.     In connection with the above arguments,  it would be  worthwhile to notice  that stage for raising an objection  regarding a dispute between the Government and the applicant  arises after the application is referred  to the DEO by the  sanctioning authority  in terms of sub-section 3 of Section 181.   So far the return of the first application is concerned,  it may  be noted that it was  returned  since  the sanctioning authority  thought it  not to be entertainable,  having not been  accompanied by an exemption certificate under the provisions  of the Urban Land Ceiling Act.  Apparently,  it appears that  the stage had not yet arrived for referring the application to the  DEO for his objections.  The competent authority is required  to refer the application before sanctioning  the plan.  Nothing  to the contrary has been indicated by the respondents to show  that despite  reference of the application to the DEO under  Sub-section 3 of Section 181,  the DEO had chosen not to file  any objection in respect  of the dispute or the claim over the  land. On the basis of the above factual aspect, in our view,  the  question of  failing   to raise a plea in the earlier proceedings   does not arise due to  return of the first application.   There is  no reason to infer that the DEO had foregone his right to raise  objection regarding the ownership of the land before sanction  of the lay out plan. The argument therefore, raised is not  applicable in the set of facts     of this case.  Learned counsel  for the appellants has,  however, placed reliance upon a   decision reported in 1996 (6) SCC  424  Allahabad  Development Authority   Vs. Nasiruzzaman and Ors.  particularly to paragraph 6,  which reads as under:-         "In view of the above ratio, it is seen that  when the legislature has directed to act in a  particular manner and the failure to act results in a  consequence, the question  is whether the previous  order operates as res judicata or estoppel as  against the persons in dispute.  When the previous  decision was found to be erroneous on its fact, this  Court held in the above judgment that it does not  operate as res judicata.  We respectfully follow  the ratio therein.  The principle of estoppel or res  judicata does not apply where to give effect to  them would be to counter some statutory direction  or prohibition.  A statutory direction or prohibition  cannot be ovderridden or defeated by a previous  judgment between the parties\005\005".   

Yet another case referred to by the learned counsel for the  appellant is reported in 1997 (9) SCC 191  Bansilal Farms Vs.  Umarani Bose and Ors. On the basis of  the above   decision,   it was submitted that the State’s right would not be affected   by any order or compromise by applying  the principle of  constructive res judicata.   We,  however, find that facts of the case in which the  above  observations have been  made by the Court were  slightly different.  Shri Altaf Ahmad, learned Addl. Solicitor  General, has then referred to "Administrative Law" by Sir  William Wade,  eighth edition,  page 249,  relevant part of   which reads as under:-   "Like other forms of estoppel already  discussed, res judicata plays a restricted role in  administrative law, since it must yield to two

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13  

fundamental principles of public law: that  jurisdiction cannot be exceeded: and that  statutory powers and duties cannot be fettered.   Within those limits, however, it can extend to a  wide variety of statutory tribunals and authorities  which have power to give binding decisions, such  as employment tribunals and commons  commissioners.\005\005\005 .".

  It is,  therefore,  submitted that  generally,  role of the  principle of res judicata in administrative matters is restricted,  and  statutory powers and duties administratively performed  cannot be thwarted by application of principles of res judicata.  It may be remembered that the earlier order returning the lay   out plan was on the ground of non-fulfillment of requirement  of filing exemption certificate which  the High Court in the  writ petition held  that there was no such requirement to  submit exemption certificate under the Urban Land Ceiling  Act.  There was a direction to re-consider the matter,  hence it  was being scrutinized  on the grounds other than requirements  of filing of an exemption certificate.  As indicated earlier,  there is nothing to show that a reference was made to the DEO   before returning the application earlier. As a matter of fact, no  such occasion would have arisen  then.  In this background,  the DEO would neither be  denuded  of his statutory  responsibility   to raise objection about  Government’s   claim  to the land or dispute about it   nor the competent authority  was absolved of his statutory duty to refer the matter to the  DEO before considering the question of passing of the order  of  sanction of the plan. The return of lay out plan earlier, was  in a way at the preliminary stage when it was found that the  application did not accompany the necessary documents eg.  exemption certificate under ceiling laws, which was then  considered to be necessary.  Stage to file objection came later  when the application may have been referred to the D.E.O.     The observations referred to earlier made in  the  Administrative Law by Wade are  certainly attracted to the  facts of the case.  In our view, the respondents just wanted to  hold  on by raising a flimsy and feeble plea of constructive res  judicata which is not sustainable either on fact or in law.  In  the facts and circumstances indicated   above,  we,  therefore,  have no hesitation in holding that the learned Single Judge as  well as the Division Bench fell  into error in holding that the  objection under Sub-section 3 of Section 181 of the Act could  not be raised by the DEO by applying the doctrine of  constructive res judicata.   We have already found that in the facts and  circumstances discussed above,  it cannot be said that a  reasonable person would not come to  a conclusion that there  is  a dispute in regard to the land in question so much so the  respondents themselves had to move the authorities and the  Court twice  in connection thereof. Before the revenue  authorities  they failed and in the civil court some partial relief  of injunction restricting to an area of 2.71 acres was granted.   Therefore,  it cannot be said that the land was free from   dispute.  As a  matter of fact, we have already indicated that   the Division Bench of the High Court itself has arrived at   such a conclusion but found erroneously that it would not be  entertainable being barred  by principles of constructive res  judicata.            There  also seems to be some inter se dispute with one  of the parties appearing in person who alleged  that   the writ  petition was filed by third  parties  claiming themselves as  allottees  to the extent of  19.30 gt. In fact, it is submitted that  land was given to his fore-fathers and the case of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13  

petitioner-respondents is false and bogus.  He further alleges   forgery on the part of the holder of the Power of Attorney.  Initially there were only  11 transferees which number swelled   to 62.  He made various allegations of forgery  etc.  committed  in the matter.  We however,  find that  such    disputes are  beyond the scope of the present  controversy which is  confined to the question as to whether the lay out plan could   have been sanctioned or not.    An effort has also been made on behalf  of the  petitioner-respondents about the array  of the parties in the  proceedings.  In this connection Section 79 and Order 27 Rule  3 of the Code of Civil Procedure have    also been referred  to  contend that  in a suit by or against the Government, Union of  India is to be impleaded as a party and not the authority or any  officer.   The  learned counsel for the Union of India  submits   that the appeal has been filed on behalf of the Union of India  and the Defence Estates Officer is appellant No. 2.   It is  submitted that proceedings in court were initiated by the  respondents by filing writ petitions.  Proper parties should  have been impleaded by them. In the writ petition, the  respondents did not implead Union of India as a party, hence,  it does not lie to them to raise any such objection. Again such  an  objection, in any case,  should have been raised in the writ  appellate court.  We,  however,  also find that in the array of  parties in the appeal proceedings before the High Court,   Union of India is the appellant with Cantonment Board.  So is  the position here also, in as much as the  Union of India is also  impleaded  as one of the respondents in the present  proceedings.  It is indicated that DEO has throughout been  representing the Government of India.  It is submitted that no  such issue was raised earlier and the matter has been contested  through out by the DEO and  the Cantonment Board, it cannot  be said that  Union of India is not on the record as a party; it is    also  represented   through counsel and submissions have been  advanced on  behalf of Union of India as well  by Shri Anoop  Choudhary, senior advocate and Shri Altaf Ahmad, Addl.  Solicitor General of India has argued the case on behalf of the  appellant. The Union of India supports the applicants in  challenging the order of the High Court.  Union of India has  also filed appeals, Civil Appeal Nos.1107-1111 of 2001  impugning the judgment of the Division Bench. We are not  favourably inclined to entertain this technical plea for the  above reasons.          We also find no substance in the submission made on  behalf of the respondents that the lis is between the  Cantonment Board and the respondents and there is no lis  between the Union of India and the respondents.  The  Cantonment Board through one of its designated officer,  considers and passes appropriate order on the application for  sanction of plan.  At least it shall have right to defend its  orders.  Under the statutory provision, the plan is not to be  sanctioned in case there is a dispute between the applicant and  the government. Under the statute again the matter is to be  referred to the Defence Estates Officer to ascertain this fact  and it is for him to raise objection, if any such dispute exists  between the applicant and the Government of India.   Therefore, it cannot be said that there would be no reason for  these authorities to contest the matter. The interest of  Government of India is very much involved and it will have  all the interest to see that the plan is not sanctioned in case it  has a claim over the land.         While parting with the matter, we would like to clarify  that the dispute and the orders thereon, in these proceedings,  are confined only to the question of sanction of the plan for  construction of building.  We have, therefore, refrained from

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13  

taking note of vein efforts made by learned counsel for the  respondents to assure the Court about their title, which, as  observed earlier, could not be subject matter of such  proceeding.  Any dispute regarding the title between the  appellants and the respondents or the respondents inter se or  with any other party may be a subject matter of any  appropriate separate proceeding, which any of the parties may  initiate if advised in that regard, as that right would not be   affected by this order.

       For the discussion held above, we find that the judgment  and order passed by the High Court is not sustainable.   

C.A.Nos.__________ of 2003 @ SLP(C) Nos.406-09/2002         After having heard the appellants and perusing the  judgment impugned in these appeals, we find no infirmity so  as to call for any interference with the order passed. The High  Court rightly held if the petitioner society wants to set up title,  it may institute a separate suit for such a relief.  The High  Court rightly found that there was no occasion to reject the  plaint or to claim any declaration to the effect that the  Cantonment Board is not the owner of the suit properties.  The  appeals have no merit.

In the result, the appeals filed by the Secunderabad  Cantonment Board (i.e. Civil Appeals No.6877-6881/2000 and  C.A.No.6604/2001) and the Union of India (i.e. Civil Appeals  No.1107-1111/2001) are allowed and the impugned  judgments/orders passed by the High Court of  Andhra  Pradesh are set aside. C.A.No.753/2001 and C.A.No.6376/2001

       Since the appeals filed by the Secunderabad Cantonment  Board and the Union of India have been allowed setting aside  the impugned judgments/orders of the High Court of Andhra  Pradesh,, no further order is required to be passed in these  appeals and they stand finally disposed of in view of the  aforesaid judgment.

C.A.Nos.______/2003 @ SLP (C) Nos.406-09/02 In view of the position aforesaid and discussion held  earlier, we find no merit in the appeals and the same are  dismissed.  Costs easy.