REPORTABLE   IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 998 OF 2007

Omprakash Verma & Ors.                                   ....  Appellant(s)

Versus

State of Andhra Pradesh & Ors.                          . ...  Respondent(s)

WITH

CIVIL APPEAL NO. 1024 OF 2007     

CIVIL APPEAL NO. 6115 OF 2008     

AND  

CIVIL APPEAL NO. 997 OF 2007

J U D G M E N T  

P. Sathasivam, J.

1)   These  appeals  are  directed  against  a  common  

judgment and final order dated 17.01.2007 passed by the  

High Court of Judicature, Andhra Pradesh at Hyderabad  

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

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whereby the High Court  dismissed all  the writ  petitions  

preferred by the appellants herein challenging the validity  

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

13.02.2006  and  connected  proceedings  passed  by  the  

State of Andhra Pradesh.   

2)  Brief facts:-

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

original  owners  of  land  admeasuring  526.07  acres  in  

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

Ranga Reddy District in the State of Andhra Pradesh. Out  

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

revenue as cultivable agricultural land and the remaining  

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

cultivable)  land.  On  07.07.1974,  the  owners  executed  

registered General Power of Attorney (hereinafter referred  

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

Venkateswara  Enterprises”  represented  by  its  Managing  

Partners  A.  Ramaswamy  and  A.  Satyanarayana.   On  

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

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

land, the said owners filed eleven declarations under the  

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

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

and the Authority under the Land Reforms Act declared  

about 99 acres as surplus in the hands of 4 declarants  

and possession was also taken on 11.04.1975.  The Urban  

Land  (Ceiling  and  Regulation)  Act,  1976  (hereinafter  

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

17.02.1976.   The  owners,  through  their  GPA,  filed  

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

mistaken impression that the ULC Act was applicable to  

their  land,  though  the  same  was  inapplicable  for  the  

reason that the land in question was agricultural land and  

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

date of commencement of the ULC Act.  On 01.07.1977,  

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

together  with  notice  under  Section  8(3)  were  served  

inviting objections to the draft statement prepared under  

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

any  of  the  declarations.  On  06.12.1979  &  25.01.1980,  

final statements under Section 9 were issued declaring the  

surplus area by each of the declarant.  On 16.09.1980 &  

30.01.1980, the Competent Authority issued notification  

under Section 10(1) of the ULC Act.   

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

Master Plan as on 17.02.1976 was amended and the land  

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

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

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

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

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

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

Government,  under  Section 23 of  the  ULC Act,  allotted  

468  acres  out  of  the  said  land  to  Hyderabad  Urban  

Development  Authority  (hereinafter  referred  to  ‘HUDA’).  

The  Competent  Authority  vide  notification  dated  

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

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

26.12.1981,  the  Competent  Authority  issued  a  notice  

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

the possession was not surrendered.       

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

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

dated 18.04.2000, the State Government in exercise of its  

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

exemption upto an extent of 5 acres after excluding 40%  

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

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

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

sq meters.  A number of persons including the appellants  

herein purchased small extents of land in Survey No. 83  

by  registered  sale  deeds  between  January  and  March  

1991. It is their case that these purchasers including the  

appellants herein have been in possession ever since their  

purchase.   

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(e) On  05.08.1992,  Inspector  General  of  Registration  

issued a memo directing the District Registrar to cancel  

the  sale  deeds.   The  District  Registrar,  on  03.09.1993,  

ordered cancellation of the sale deeds.  Being aggrieved by  

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

238 of 1994 were filed where owners were impleaded as  

parties.  By order dated 27.07.1994, learned Single Judge  

set aside the orders of the District Registrar nullifying the  

sale deeds regarding the land in question.  By order dated  

06.10.1994,  another  learned  Single  Judge  following  the  

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

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

State was dismissed by a Division Bench on 28.10.1994.  

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

against  the  order  of  the  learned  single  Judge  dated  

27.07.1994  was  dismissed  by  the  Division  Bench.  On  

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

before this Court against the judgment dated 04.12.1996  

in which this Court issued notice and ordered status quo  

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regarding  possession  be  maintained.  On  06.11.2001,  a  

three  Judge  Bench  of  this  Court  disposed  of  all  the  

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

Audikesava Reddy and Others reported in (2002) 1 SCC  

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

Competent Authority is now statutorily bound to compute  

the land afresh, in accordance with the provisions of the  

Act and in the light of the law declared in  Audikesava  

Reddy’s case (supra).  

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

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

456 dated 29.07.2002 and decided to allot the excess land  

to third parties who were in occupation of  such excess  

land on payment of prescribed regularization charges and  

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

28.11.2003,  by  way  of  a  representation,  the  owners  

requested  the  Competent  Authority  to  compute  the  

holdings afresh in terms of the law declared by this Court  

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

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stated in their representations that they themselves would  

like to retain the excess land in their occupation by paying  

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

(g) On  02.07.2004,  the  owners  submitted  another  

representation to the Secretary (Revenue), Government of  

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

of  the  decision  of  this  Court  and  also  to  compute  the  

compensation  amounts  to  be  paid  for  regularization  in  

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

owners  once  again  filed  their  representations  under  

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

the earlier representations.   

(h)  Without  taking  any  action  on  the  aforesaid  three  

representations, the State Government, in exercise of its  

powers  under  Section  23  of  the  ULC  Act  issued  

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

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

Andhra  Pradesh  Industrial  Infrastructure  Corporation  

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

8

herein.   On  15.02.2006,  the  State  Government  issued  

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

for  submitting  the  applications  accompanied  by  the  

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

455 and 456.   

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

by  the  purchasers,  owners  as  well  as  Chanakyapuri  

Cooperative Housing Society Limited, Secunderabad.   

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

Anjana Devi and 45 others who claim to be the purchasers  

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

Village Raidurg, Ranga Reddy District. They claim to have  

purchased  the  said  lands  from  the  GPA  Holder  of  the  

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

been filed by Om Prakash Verma and 43 others who also  

claim to be purchasers of small extent of land forming part  

of  Survey No.  83 Village Raidurg,  Ranga Reddy District  

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

been filed by Ahmed Abdul Aziz and 14 others who claim  

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

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

has  been  filed  by  Chanakyapuri  Cooperative  Housing  

Society  Limited,  Secunderabad,  which  claims  to  be  the  

holder  of  Agreement  to  Sell  dated  09.08.1974  allegedly  

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

Survey  No.  83  Village  Raidurg,  Ranga  Reddy  District.  

Before the High Court, all the petitioners have questioned  

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

Department, dated 13.02.2006 and other proceedings and  

prayed for quashing of the same with a direction to the  

official  respondents  to  consider  their  claim for  grant  of  

exemption  under  various  Government  Orders,  namely,  

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

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

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

Revenue  (UC  I)  Department  dated  29.07.2002  and  

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

29.07.2002.  The High Court, by a common judgment and  

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final  order  dated  17.01.2007,  dismissed  all  the  writ  

petitions  filed  by  the  appellants  herein.   Against  the  

common  order,  the  appellants  have  preferred  these  

appeals by way of special leave petitions before this Court.

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

counsel  for  the  appellants  in  all  the  appeals,  Mr.  

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

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

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

Kumar,  learned  senior  counsel  for  Andhra  Pradesh  

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

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

Patil, learned senior counsel for the applicants.   

Issues:

4)   The main question in  these  appeals  is  whether  the  

proceedings of the Competent Authority under Sections 8,  

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

No. 83 of Village Raidurg of Ranga Reddy District declared  

by the Division Benches by its judgment dated 28.10.1994  

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

respectively, as void, stood restored by virtue of judgment  

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

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

words,  what  actually  is  the  adjudication  contained  in  

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

for  determination.   The  adjudication  contained  in  the  

Audikesava  Reddy’s case  (supra)  admittedly  was  in  

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

village  Raidurg  and  between  the  same  parties.   In  the  

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

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

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

Audikesava Reddy’s case (supra).   

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

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

necessary  to  bear  in  mind  the  meaning  of  expressions  

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

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

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“Section 2(h)"master plan", in relation to an area within an  urban agglomeration or any part thereof, means the plan (by  whatever name called) prepared under any law for the time  being in force or in pursuance of an order made by the State  Government for the development of such area or part thereof  and  providing  for  the  stages  by  which  such  development  shall be carried out;

(o) "urban land" means,-  (i)  any  land  situated  within  the  limits  of  an  urban  agglomeration and referred to as such in the master  plan; or  (ii) in a case where there is no master plan, or where  the master plan does not refer to any land as urban  land,  any  land  within  the  limits  of  an  urban  agglomeration  and  situated  in  any  area  included  within the local limits of a municipality (by whatever  name called), a notified area committee, a town area  committee, a city and town committee, a small town  committee, a cantonment board or a panchayat,  

but does not include any such land which is mainly used for  the purpose of agriculture.  

Explanation.-For the purpose of this clause and clause  (q),-  

(A)  "agriculture"  includes  horticulture,  but  does  not  include-  

(i) raising of grass,  (ii) dairy farming,  (iii)poultry farming,  (iv) breeding of live-stock, and  (v) such cultivation, or the growing of such plant, as  may be prescribed;  

(B) land shall not be deemed to be used mainly for the  purpose  of  agriculture,  if  such land is  not  entered  in the  revenue or land records before the appointed day as for the  purpose of agriculture:  

Provided that where on any land which is entered in  the revenue or land records before the appointed day as for  the purpose of agriculture, there is a building which is not in  the nature of a farm-house, then, so much of the extent of  such land as is occupied by the building shall not be deemed  to be used mainly for the purpose of agriculture:  

Provided further  that  if  any question arises  whether  any building is in the nature of a farm-house, such question  

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shall be referred to the State Government and the decision of  the State Government thereon shall be final;  

(C) notwithstanding anything contained in clause (B) of  this  Explanation,  land  shall  not  be  deemed  to  be  mainly  used  for  the  purpose  of  agriculture  if  the  land  has  been  specified  in  the  master  plan  for  a  purpose  other  than  agriculture;

 (q) "vacant land" means land, not being land mainly used for  the purpose of agriculture, in an urban agglomeration, but  does not include-  

(i)  land  on  which  construction  of  a  building  is  not  permissible under the building regulations in force in  the area in which such land is situated;  (ii) in an area where there are building regulations, the  land  occupied  by  any  building  which  has  been  constructed  before,  or  is  being  constructed  on,  the  appointed  day  with  the  approval  of  the  appropriate  authority and the land appurtenant to such building;  and  (iii) in an area where there are no building regulations,  the  land  occupied  by  any  building  which  has  been  constructed  before,  or  is  being  constructed  on,  the  appointed  day  and  the  land  appurtenant  to  such  building:  

Provided that where any person ordinarily  keeps his  cattle, other than for the purpose of dairy farming or  for the purpose of breeding of live-stock, on any land  situated  in  a  village  within  an  urban  agglomeration  (described as a village in the revenue records), then, so  much extent of the land as has been ordinarily used  for the keeping of such cattle immediately before the  appointed day shall not be deemed to be vacant land  for the purposes of this clause.”

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

combined  reading  of  the  definitions  of  the  above  

expressions disclose  that  any “land”  though situated in  

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

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used  mainly  for  the  purpose  of  agriculture  and  not  

referred to in the Master Plan existing as on 17.02.1976.  

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

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

urban  agglomeration  as  the  same was  used  mainly  for  

agricultural purpose and not included or referred to in the  

Master Plan existing as on 17.02.1976 as found by the  

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

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

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

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

culminated  into  the  judgment  of  this  Court  in  

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

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

case of the respondent-State in those writ petitions was  

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

since the same was within the urban agglomeration, the  

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

ULC Act is applicable with effect from 17.02.1976, even if  

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the said land is not included in the Master Plan existing  

as on 17.02.1976.   

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

No. 18385 of 1993 and 238 of 1994 specifically averred  

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

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

order  dated  27.07.1994  and  06.10.1994  in  those  writ  

petitions, learned Single Judge recorded that the land in  

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

Bench  in  Writ  Appeal  No.  918  of  1994  confirmed  the  

finding  of  the  learned  single  Judge  that  the  land  was  

mainly used for the purpose of agriculture.  After quoting  

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

it was contended that there were concurrent findings on  

the  question  whether  the  land  in  Survey  No.  83  was  

agricultural  land  as  the  same  was  “mainly  used  for  

agriculture”  and  the  owners  filed  declarations  under  

misconception.  Mr. Rajendra Chowdhary, learned senior  

counsel  for  the  appellants  heavily  contended that  since  

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

for  the  purpose  of  agriculture”  and  not  included  or  

referred to in the Master Plan existing as on 17.02.1976,  

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

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

was  inapplicable.   Therefore,  according  to  him,  the  

Division  Bench,  by  judgments  dated  28.10.1994  and  

04.12.1996, upheld the orders of the learned single Judge  

declaring  the  proceedings  of  the  Competent  Authority  

treating  the  date  of  commencement  of  the  Act  as  

17.02.1976 as void and quashed the same.  He pointed  

out  that  the  Division  Bench  declined  to  look  into  the  

second Master Plan which came into force on 29.09.1980,  

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

law declared by this Court in  Atia Mohammadi Begum  

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

against  these  judgments  dated  28.10.1994  and  

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

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

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this Court which is referred to as  Audikesava Reddy’s  

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

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

the second Master Plan with effect from 29.09.1980, on  

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

States  including  the  State  of  Andhra  Pradesh  sought  

reconsideration  of  the  decision  in  Atia  Begum’s case.  

Accordingly,  this Court,  by its orders dated 23.02.1996,  

referred  the  question  of  correctness  of  ruling  in  Atia  

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

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

India and other senior counsel appearing for the State as  

well as Respondent No.4 submitted that as a consequence  

of  setting  aside  of  the  judgment  of  the  Division Bench,  

which  had  approved  the  orders  passed  by  the  learned  

single Judge,  the proceedings taken under the ULC Act  

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

culminating  in  subsequent  orders  of  the  Competent  

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

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

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

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

to  the  appellants  to  seek re-opening  of  the  proceedings  

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

Attorney  General  and  other  senior  counsel  relied  on  

various judgments to show that once the decision of the  

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

contend  that  a  particular  aspect  or  argument  was  not  

considered by this Court.     

Atia Begum’s case

9) Before considering the ultimate order and the ratio  

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

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

the question involved therein.  In that case the question  

was  regarding  the  quantification  of  vacant  land.  The  

Competent Authority had declared that the appellant had  

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

ceiling limit but the District Judge reduced the area of the  

19

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

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

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

petition was dismissed and that of the State was partly  

allowed.  In  appeal  before  this  Court,  the  owner  sought  

restoration of the order of the District Judge which had  

been set aside by the High Court on the interpretation of  

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

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

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

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

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

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

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

appellant  could  not  be  treated  as  mainly  used  for  the  

purpose of agriculture because it was shown in the master  

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

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

notices that determination of the area of vacant land in  

20

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

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

notice  the  Explanation  to  Section  6  which  provides  the  

meaning of the expression “commencement of this Act”.  

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

“6. Persons holding vacant land in excess of ceiling limit to file   statement.—(1) Every person holding vacant land in excess of  the  ceiling  limit  at  the  commencement  of  this  Act  shall,  within such period as may be prescribed, file  a statement  before the competent authority having jurisdiction specifying  the location, extent, value and such other particulars as may  be prescribed of all vacant lands and of any other land on  which there  is  a  building,  whether  or  not  with a dwelling  unit therein, held by him (including the nature of his right,  title or interest therein) and also specifying the vacant lands  within the ceiling limit which he desires to retain:

Provided  that  in  relation  to  any  State  to  which  this  Act  applies  in  the  first  instance,  the  provisions  of  this  sub- section shall  have effect  as if  for  the words ‘Every person  holding  vacant  land  in  excess  of  the  ceiling  limit  at  the  commencement of  this Act’,  the words,  figures and letters  ‘Every person who held vacant land in excess of the ceiling  limit on or after the 17th day of February, 1975 and before  the  commencement  of  this  Act  and  every  person  holding  vacant  land  in  excess  of  the  ceiling  limit  at  such  commencement’ had been substituted.

Explanation.—In  this  section,  ‘commencement  of  this  Act’  means,— (i) the date on which this Act comes into force in any State; (ii) where any land, not being vacant land, situated in a State  in which this Act is in force has become vacant land by any  reason whatsoever,  the date on which such land becomes  vacant land; (iii) where any notification has been issued under clause (n)  of Section 2 in respect of any area in a State in which this  Act is in force, the date of publication of such notification.”

21

Audikesava Reddy’s case

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

ultimate  order  passed  in  Audikesava  Reddy’s case  

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

Reddy’s case after narrating the factual position in  Atia  

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

allowed those appeals.   Since the entire argument rests  

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

is but proper to refer all the relevant paragraphs.   

“11. If  the expression “commencement of the Act”  is read  with  reference  to  the  aforesaid  Explanation,  the  area  of  doubt about the correctness of the decision of  Atia Begum  case becomes very  narrow e.g.  a  few observations  therein  which are these: (SCC p.549, para 4)

“Just  as  the  holder  of  the  land  cannot  by  his  subsequent actions reduce the area of the vacant land  in excess of the ceiling limit, the authorities too cannot  by  any  subsequent  action  increase  the  area  of  the  excess vacant land by a similar action.”

12. The  observations  that  the  authorities  by  their  subsequent action after 17-2-1976 cannot alter or introduce  the master plan which has the effect of increasing the area of  excess vacant land do not represent the correct view of law.  The aforesaid Explanation to Section 6(1), inter alia, provides  that where any land, not being vacant land, situated in a  State in which this Act is in force has become vacant land by  any  reason  whatsoever,  the  date  on  which  such  land  becomes  vacant  land  would  be  the  date  of  the  commencement of the Act as regards such land.

22

13. Development and town planning are ongoing processes  and they go on changing from time to time depending upon  the local needs. That apart, the definition of “master plan” in  Section 2(h) is very significant. It reads as under:

“2. (h) ‘master plan’, in relation to an area within an  urban agglomeration or any part  thereof,  means the  plan (by  whatever  name called)  prepared  under  any  law for the time being in force or in pursuance of an  order  made  by  the  State  Government  for  the  development of such area or part thereof and providing  for  the  stages  by  which  such  development  shall  be  carried out;”

The above provision, inter alia, contemplates the master plan  prepared  under  any  law  for  the  time  being  in  force  for  development of an area. The plan shall also provide for the  stages by which such development shall be carried out. It is  evident from the aforesaid definition of master plan that it  takes  in  view  any  plan  prepared  even  subsequent  to  the  coming  into  force  of  the  Act.  Further,  the  Explanation  to  Section  6(1),  as  noticed  above,  very  significantly  provides  that every person holding vacant land in excess of the ceiling  limit at the commencement of the Act shall file a statement  before the competent authority and “the commencement of  the Act” under clause (ii) would be when the land becomes  vacant  for  any  reason  whatsoever.  Therefore,  the  date  of  commencement of the Act in a case where the land, which  was not vacant earlier,  would be the date on which such  land becomes vacant land. It, thus, contemplates a situation  of  land,  not  being  vacant,  becoming  vacant  due  to  preparation  of  a  master  plan  subsequent  to  17-2-1976.  Further,  the  provisions  of  the  Act  require  filing  of  a  statement under Sections 6, 7, 15 and 16 from time to time  as and when land acquires the character of a vacant land.  Obligation  to  file  statement  under  the  Act  arises  when  a  person comes to hold any vacant land in excess of the ceiling  limit, which date necessarily may not be 17-2-1976. It would  all depend on the facts and circumstances of each case.

14. Accordingly, we hold that the master plan prepared as  per law in force even subsequent to enforcement of the Act is  to  be  taken  into  consideration  to  determine  whether  a  particular piece of land is vacant land or not and, to this  extent, Atia Begum is not correctly decided.

23

15. In these matters,  however,  we are not concerned with  the question as to the consequences of filing of a statement  by a person under a wrong impression that the vacant land  held by him is in excess of ceiling limit if it was not so when  he filed a statement. This aspect is left open to be decided in  an appropriate case.

16. Before concluding, we wish to place on record our deep  appreciation  for  the  able  assistance  rendered  by  Mr  Raju  Ramachandran, Senior Advocate,  who on our request very  readily agreed to assist the Court as amicus curiae. 17. For the aforesaid reasons, CAs Nos. 3813 of 1996, 7238  and 7239 of 2001 are allowed and CAs Nos. 1149 of 1985  and 10851 of 1996 are dismissed. The parties are left to bear  their own costs.”

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

senior  counsel  for  the  appellants  that  this  Court  in  

Audikesava Reddy’s case was called upon to decide the  

only question relating to the correctness of the decision in  

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

Chowdhari submitted that the State of Andhra Pradesh in  

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

canvassed the facts nor challenged the above concurrent  

findings of facts before this Court in Audikesava Reddy’s  

case.   According  to  him,  all  the  State  Governments  

including the State of Andhra Pradesh were confined only  

with the reconsideration of the decision in Atia Begum’s  

24

case  as  the  States  were  disabled  from looking  into  the  

second Master Plan, as a result of which any agricultural  

land, though situate in urban agglomeration not included  

in the existing Master Plan as on 17.02.1976 could never  

be treated as “Vacant Land” notwithstanding its inclusion  

in  any other  subsequent  Master  Plan for  bringing  such  

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

those  circumstances,  according  to  Mr.  Chowdhary,  the  

State  cannot  now  be  permitted  to  reagitate  the  same  

question once again in these appeals arising out of Writ  

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

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

purpose of agriculture or whether the declarations were  

not filed in the year 1976 under a wrong impression.   

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

for the appellants relied on a Constitution Bench decision  

of  this  Court  in  Direct  Recruit  Class  II  Engineering  

Officers’  Association vs.  State  of  Mahrashtra  and  

25

Others (1990)  2  SCC  715.   The  following  principles  

enunciated in paragraph 35 were pressed into service.   

“.…In similar situation a Constitution Bench of this Court in  Daryao v.  State  of  U.P. held  that  where  the  High  Court  dismisses  a  writ  petition  under  Article  226  of  the  Constitution  after  hearing  the  matter  on  the  merits,  a  subsequent petition in the Supreme Court under Article 32  on the same facts and for the same reliefs filed by the same  parties will be barred by the general principle of res judicata.  The binding character of judgments of courts of competent  jurisdiction is in essence a part of the rule of law on which  the administration of  justice,  so much emphasised by the  Constitution, is founded and a judgment of the High Court  under Article 226 passed after a hearing on the merits must  bind the parties till set aside in appeal as provided by the  Constitution and cannot be permitted to be circumvented by  a petition under Article 32. An attempted change in the form  of the petition or the grounds cannot be allowed to defeat the  plea  as  was  observed  at  SCR  p.  595  of  the  reported  judgment, thus : (SCR p. 595)

“We are satisfied that a change in the form of attack  against  the  impugned  statute  would  make  no  difference  to  the  true  legal  position  that  the  writ  petition in the High Court and the present writ petition  are directed against the same statute and the grounds  raised by the petitioner in that behalf are substantially  the same.”

The decision in Forward Construction Co. v. Prabhat Mandal  (Regd.), Andheri, further clarified the position by holding that  an adjudication is conclusive and final  not only as to the  actual matter determined but as to every other matter which  the parties might and ought to have litigated and have had  decided as incidental to or essentially connected with subject  matter  of  the  litigation  and every  matter  coming  into  the  legitimate purview of the original action both in respect of  the  matters  of  claim  and  defence.  Thus,  the  principle  of  constructive  res  judicata  underlying  Explanation  IV  of  Section 11 of the Code of Civil Procedure was applied to writ  case…. “

      (Emphasis Supplied)

26

13)  In Ishwar Dutt vs. Land Acquisition Collector and  

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

reiterated that the principles of constructive  res judicata  

enshrined  in  the  Explanation  IV  to  Section  11  of  Civil  

Procedure Code will apply to writ proceedings.  

14)  It  is  pointed  out  that  by  the  impugned  common  

judgment,  the  High  Court  held  that  by  reason  of  the  

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

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

1220  and  918  of  1996  suffered  complete  reversal  as  a  

result  of  which  the  proceedings  of  the  Competent  

Authority  which  were  declared  void  and  quashed  stood  

restored  or  revived  and  consequently,  “vesting”  and  

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

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

case of the appellants that the above conclusion cannot be  

sustained as the judgment in  Audikesava Reddy’s case  

cannot be read as having restored the proceedings of the  

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

27

ULC  Act,  merely  because  the  use  of  the  expression  

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

other words, according to the appellants, the efficacy and  

binding nature of the adjudication and declaration of law  

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

Audikesava Reddy’s case cannot be either diminished or  

whittled  down  on  such  construction  of  the  expression  

“appeals allowed”.   

15) As regards the contention of the appellants that in  

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

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

appellants  under  the  provisions  of  the  ULC  Act  with  

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

of Hyderabad came to be extended to the appellants land  

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

Nageshwar  Rao,  learned  senior  counsel  for  the  State  

submitted that the declaration filed by the appellants in  

1976  under  the  provisions  of  the  ULC  Act  were  filed  

deliberately  and consciously  hence,  binding upon them.  

28

He  also  submitted  that  the  judgment  of  the  Division  

Bench of the High Court in the earlier round of litigation  

being judgment dated 04.12.1996 delivered in Writ Appeal  

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

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

reliance could not be placed by the appellants herein on  

any observations made or finding returned therein.   He  

also submitted that in view of the judgment of this Court  

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

judgment  inter  partes,  it  was  no  longer  open  to  the  

appellants to seek re-computation of land holdings with  

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

lands in issue.   

16) The submissions made by the appellants about the  

decision  of  this  Court  in  Audikesava  Reddy’s case  

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

by the Division Bench in the impugned judgment.  It was  

highlighted  that  on  the  basis  of  the  declaration  made  

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

29

issue  had  got  released  from the  authorities  an  area  of  

99.17 acres of land that had been declared as excess land  

under  the  Land  Reforms  Act.   Various  materials  with  

relevant dates and particulars furnished on behalf of the  

State clearly demonstrate that the owners of the land in  

issue were actively and deliberately seeking to get release  

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

Reforms Act by relying on their declaration filed under the  

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

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

Reforms Act in respect of  entire extent of  526.07 acres.  

On  02.06.1976/16.06.1976,  the  declarants  held  to  be  

holding excess land to the extent of 99.17 acres.   

17)   On 02.09.1976,  the GPA holder  of  declarants filed  

application in Land Reforms Tribunal contending that the  

provisions of the Land Reforms Act are not applicable and  

provisions  of  ULC  Act  are  applicable  since  the  land  is  

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

admeasuring 99.17 acres declared as excess land under  

30

the  Land  Reforms  Act  to  be  returned  to  owners.   On  

16.09.1976/27.07.1977,  the  very  same  GPA  holder  of  

owners filed declarations under Section 6 of the ULC Act.  

Draft  statement  under  Section  8(1)  and  notice  under  

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

01.07.1977/11.11.1977.  A perusal of the draft statement  

subsequently state that the land is a grazing land and is  

not mainly used for the purpose of agriculture.  By order  

dated  06.12.1979/25.01.1980,  the  Competent  Authority  

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

vacant  land  in  excess  of  ceiling  limit  and  issued  final  

statements under Section 9 of the ULC Act declaring the  

surplus  area  of  each  declarant.   On  

16.01.1980/30.01.1980, a notification was issued under  

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

land held by the declarants and affording opportunity of  

hearing  to  all  interested  persons.   On  23.06.1980,  the  

Master  Plan  came to  be  extended  to  cover  the  land  in  

issue.   

31

18)   On  16.07.1980,  GPA  holder  of  declarants  filed  

another application in Land Reforms Tribunal contending  

that  the  provisions  of  the  Land  Reforms  Act  are  not  

applicable and provisions of  the ULC Act are applicable  

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

prayer was made for release of land admeasuring 99.17  

acres declared as excess land under the Land Reforms Act  

to be returned to the owners.  Meanwhile, surplus lands  

were allotted to Hyderabad Urban Development Authority  

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

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

Act,  the  surplus  land  would  be  deemed  to  have  been  

acquired by the State Government and the same shall vest  

absolutely  in  the  State  Government  free  from  all  

encumbrances.   On  21.02.1981,  the  application  for  

exemption was filed under Section 20 of the ULC Act by  

GPA holder of declarants and Chanakyapuri Cooperative  

Housing  Society  which  was  rejected  by  the  State  

Government.   By notice dated 26.02.1981 issued under  

32

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

asked the declarants to vacate and deliver possession of  

the  land.   Application  for  release  of  land  admeasuring  

99.17  acres  declared  as  excess  land  under  the  Land  

Reforms Act was rejected by the Land Reforms Tribunal by  

order  dated 19.04.1982.   Against  the  said  rejection,  an  

appeal was filed in 1983 before the Land Reforms Tribunal  

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

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

of 1983 and remanded to the Land Reforms Tribunal for  

fresh disposal.  On remand, application for release of land  

admeasuring 99.17 acres declared as excess land under  

the Land Reforms Act was allowed on 10.11.1987 by the  

Land Reforms Tribunal.  It is brought to our notice that  

possession  of  said  extent  of  land  delivered  to  the  

declarants on 25.04.1990 was through their GPA under  

Panchnama.   On  19.07.1993,  notification  was  issued  

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

possession be taken over all lands declared to be surplus  

33

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

was taken over on 20.07.1993.  Those lands were allotted  

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

possession was handed over to APIIC on 14.02.2006.  The  

above factual  details  with clear-cut  materials  cannot  be  

assailed.  All those dates and events are available in the  

various  documents  filed  by  all  the  parties.   Those  

particulars  also  show that  only  when possession of  the  

said 99.17 acres of land was returned to the owners in  

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

plea that the declaration made by them under the ULC Act  

was a mistake and hence proceedings under the ULC Act  

were  void.   As  rightly  pointed  out,  the  owners  having  

taken  part,  all  the  declarations  filed  by  them  under  

Section 6 of  the ULC Act to recover lands admeasuring  

99.17 acres surrendered under the provisions of the Land  

Reforms Act.  Either the appellants or anybody claiming  

through them are estopped from assailing the legality or  

validity  of  the  declaration  made  by  the  owners  under  

34

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

cannot  aprobate  and  reprobate  in  respect  of  the  same  

transaction.                         

19) Mr.  Chowdhary,  learned  senior  counsel  for  the  

appellants,  by  drawing  our  attention  to  para  15  of  

Audikesava  Reddy’s case  (supra)  submitted  that  this  

Court has not gone into the factual conclusion arrived by  

the  Division  Bench  of  the  High  Court  and  the  present  

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

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

existence  when the  ULC Act  was  enforced  and  not  the  

plan  prepared  subsequently  that  has  to  be  taken  into  

consideration to determine if land is vacant land held in  

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

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

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

was  “not  concerned  with  the  question  as  to  the  

consequences of filing of a statement by a person under a  

wrong impression that the vacant land held by him is in  

35

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

appellants is that the lands regarding which declaration  

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

not be covered by the observations made by this Court in  

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

cover  only  such cases  where  the  factum of  the  land in  

issue  being  vacant  land is  admitted.   But  thereafter,  a  

submission was made that the vacant land declared to be  

excess land was in fact not excess land.   

20) Equally, reliance placed by the appellants upon the  

observations and findings reached in the judgment of the  

Division Bench of the High Court in the earlier round of  

litigation which culminated in the judgment of this Court  

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

issue  having  been  agricultural  lands,  the  prayer  of  

extension of the Master Plan thereto is also mis-conceived  

and  unsustainable.   As  pointed  out  by  learned  senior  

counsel  for  the  respondents  by  virtue  of  special  leave  

petition  filed  against  the  judgment  dated  04.12.1996  

36

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

judgment dated 28.10.1994 delivered in Writ Appeal No.  

1220  of  1994,  finality  of  the  said  judgment  and  all  

findings contained therein stood destroyed.  It is useful to  

refer  the  decision  of  this  Court  in  Dharam Dutt  and  

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

712.   This  Court  held  filing  of  an  appeal  destroys  the  

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

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

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

pressed into service.

“11. The juristic justification of the doctrine of merger may  be sought in the principle that there cannot be, at one and  the same time, more than one operative order governing the  same subject-matter. Therefore the judgment of an inferior  court, if subjected to an examination by the superior court,  ceases to have existence in the eye of law and is treated as  being superseded by the judgment of the superior court. In  other  words,  the  judgment  of  the  inferior  court  loses  its  identity  by  its  merger  with  the  judgment  of  the  superior  court.”

22) In Kunhayammed and Others vs. State of Kerala  

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

37

“12. The logic underlying the doctrine of merger is that there  cannot  be  more  than  one  decree  or  operative  orders  governing the same subject-matter at a given point of time.  When a decree or order passed by an inferior court, tribunal  or authority was subjected to a remedy available under the  law before a superior forum then, though the decree or order  under  challenge  continues  to  be  effective  and  binding,  nevertheless its finality is put in jeopardy. Once the superior  court has disposed of the lis before it either way — whether  the decree or order under appeal is set aside or modified or  simply confirmed, it  is the decree or order of the superior  court, tribunal or authority which is the final, binding and  operative decree or order wherein merges the decree or order  passed by the court, tribunal or the authority below.”  

However,  Mr.  Chowdhary  very  much  emphasized  the  

subsequent passage in the same paragraph which reads  

thus:  

“However,  the  doctrine  is  not  of  universal  or  unlimited  application.  The  nature  of  jurisdiction  exercised  by  the  superior  forum  and  the  content  or  subject-matter  of  challenge laid or which could have been laid shall have to be  kept in view.”

By  pointing  out,  Mr.  Chowdhary  submitted  that  the  

reliance  placed  on  the  doctrine  of  merger  and  the  

aforesaid  judgment  in  Kunhayammed  and  Others  

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

the last portion in the said paragraph shows that what  

this Court laid down was that the principle contained in  

the  doctrine  of  merger  is  not  of  universal  application.  

38

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

been granted, any order passed by this Court thereafter,  

would  be  an  appellate  order  and  would  attract  the  

applicability of the doctrine of merger.  The above view is  

supported in the very same Kunhayammed and Others  

(supra)  which reads:

“41. Once  a  special  leave  petition  has  been  granted,  the  doors for the exercise of appellate jurisdiction of this Court  have been let open. The order impugned before the Supreme  Court becomes an order appealed against. Any order passed  thereafter would be an appellate order and would attract the  applicability  of  doctrine  of  merger.  It  would  not  make  a  difference  whether  the  order  is  one  of  reversal  or  of  modification  or  of  dismissal  affirming  the  order  appealed  against. It would also not make any difference if the order is  a speaking or non-speaking one. Whenever this Court has  felt inclined to apply its mind to the merits of the order put  in  issue before  it  though it  may be inclined to  affirm the  same, it is customary with this Court to grant leave to appeal  and thereafter dismiss the appeal itself (and not merely the  petition for special leave) though at times the orders granting  leave to appeal and dismissing the appeal are contained in  the  same  order  and  at  times  the  orders  are  quite  brief.  Nevertheless,  the  order  shows  the  exercise  of  appellate  jurisdiction and therein  the merits  of  the order  impugned  having been subjected to judicial scrutiny of this Court. 42. “To  merge”  means  to  sink  or  disappear  in  something  else; to become absorbed or extinguished; to be combined or  be swallowed up. Merger in law is defined as the absorption  of  a  thing  of  lesser  importance by a greater,  whereby the  lesser ceases to exist, but the greater is not increased; an  absorption or swallowing up so as to involve a loss of identity  and  individuality.  (See  Corpus  Juris  Secundum,  Vol.  LVII,  pp. 1067-68.)”

39

In the same decision,  their  Lordships have summarized  

their conclusion as under:

“44. To sum up, our conclusions are: (i) Where an appeal or revision is provided against an order passed  by a court, tribunal or any other authority before superior forum  and such superior forum modifies, reverses or affirms the decision  put  in  issue  before  it,  the  decision  by  the  subordinate  forum  merges in the decision by the superior forum and it is the latter  which subsists, remains operative and is capable of enforcement in  the eye of law. (ii) The jurisdiction conferred by Article 136 of the Constitution is  

divisible  into two stages.  The first  stage  is  upto  the disposal  of  prayer  for  special  leave  to  file  an  appeal.  The  second  stage  commences if  and when the leave to appeal  is  granted and the  special leave petition is converted into an appeal. (iii)  The  doctrine  of  merger  is  not  a  doctrine  of  universal  or  unlimited application. It will depend on the nature of jurisdiction  exercised by the superior forum and the content or subject-matter  of challenge laid or capable of being laid shall be determinative of  the  applicability  of  merger.  The  superior  jurisdiction  should  be  capable of reversing, modifying or affirming the order put in issue  before it. Under Article 136 of the Constitution the Supreme Court  may  reverse,  modify  or  affirm  the  judgment-decree  or  order  appealed against while exercising its appellate jurisdiction and not  while exercising the discretionary jurisdiction disposing of petition  for special leave to appeal. The doctrine of merger can therefore be  applied to the former and not to the latter. (iv)  An  order  refusing  special  leave  to  appeal  may  be  a  non- speaking order or a speaking one. In either case it does not attract  the doctrine of merger. An order refusing special leave to appeal  does not stand substituted in place of the order under challenge.  All that it means is that the Court was not inclined to exercise its  discretion so as to allow the appeal being filed. (v) If the order refusing leave to appeal is a speaking order, i.e.,  gives reasons for refusing the grant of leave, then the order has two  implications. Firstly, the statement of law contained in the order is  a declaration of law by the Supreme Court within the meaning of  Article  141  of  the  Constitution.  Secondly,  other  than  the  declaration of law, whatever is stated in the order are the findings  recorded  by  the  Supreme  Court  which  would  bind  the  parties  thereto and also the court, tribunal or authority in any proceedings  subsequent  thereto  by  way  of  judicial  discipline,  the  Supreme  

40

Court  being  the  Apex  Court  of  the  country.  But,  this  does  not  amount to saying that the order of the court, tribunal or authority  below  has  stood  merged  in  the  order  of  the  Supreme  Court  rejecting the special leave petition or that the order of the Supreme  Court  is  the  only  order  binding  as  res  judicata  in  subsequent  proceedings between the parties. (vi)  Once  leave  to  appeal  has  been  granted  and  appellate  jurisdiction of Supreme Court has been invoked the order passed  in appeal would attract the doctrine of merger; the order may be of  reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking leave  to appeal having been converted into an appeal before the Supreme  Court the jurisdiction of High Court to entertain a review petition  is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47  CPC.”

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

in  the  special  leave  petitions  filed  against  the  Division  

Bench of the High Court in the earlier round of litigation  

and the consequent civil appeals arising therefrom filed by  

the  State  Government  is  allowed  by  this  Court,  the  

judgment  of  the  Division  Bench  lost  its  identity  and  

merged  with  the  judgment  of  this  Court.   The  said  

judgment  of  the  Division  Bench  of  the  High  Court,  

therefore,  cannot  be  relied  upon  for  any  purpose  

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

that  the  arguments  of  the  appellants  that  the  lands  in  

issue  became  amenable  to  the  ULC  Act  only  upon  

41

extension of Master Plan thereto on 23.06.1980 and that  

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

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

of the State Government has through out been that the  

lands in issue were not agricultural lands but were vacant  

lands  under  the  ULC  Act  even  in  1976  when  the  

declaration was made by the owners under Section 6 of  

the ULC Act, hence the declaration and all action taken  

consequent  thereto  are  valid  in  law.   This  position  or  

stand of the State Government is clear and reiterated in  

its writ appeal filed by way of counter affidavit before the  

Division Bench of the High Court and before this Court in  

the present proceedings.  It was brought to our notice that  

the appellants  conceded before the High Court  that the  

lands  in  issue  were  part  of  urban  agglomeration  even  

when the declaration under Section 6 of the ULC Act was  

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

our notice  that  by an agreement dated 09.08.1974,  the  

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

42

namely, Chanakyapuri Cooperative Housing Society which  

got a layout plan sanctioned on 20.10.1975 by Raidurg  

Gram Panchayat for construction of houses on the said  

lands.  These materials clearly show that the lands were  

not agricultural lands even prior to declaration filed under  

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

not  being agricultural  land and falling within an urban  

agglomeration,  constitutes  vacant  land  as  defined  in  

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

constitute vacant land on the date of filing of declaration  

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

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

be filed in respect of  vacant land, such declaration was  

correctly filed by the owners hence, subsequent extension  

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

relevance to the validity of the declaration made in 1976  

or  to  the  proceedings  initiated  under  the  ULC  Act  

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

proceedings under the ULC Act were not challenged by the  

43

owners  at  any  stage  as  provided  by  the  statute.   The  

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

that  the  surplus  land  would  be  deemed  to  have  been  

acquired by the State Government and the same shall vest  

absolutely  in  the  State  Government  free  from  all  

encumbrances was issued even as early as on 24.01.1981  

which was allowed to become final in the absence of any  

appeal being filed against such notification as provided by  

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

of  the  Ceiling  Act,  the  State  has  absolute  title  and  

ownership  over  it.   The  owner  has  no  further  say  in  

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

position has been explained by us in  Smt.  Sulochana  

Chandrakant Galande vs.  Pune Municipal Transport  

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

“9.  The  meaning  of  the  word  `vesting'  has  been  considered by this Court time and again. In The Fruit  &  Vegetable  Merchants  Union v.  The  Delhi  Improvement Trust, AIR 1957 SC 344, this Court held  that  the  meaning  of  word  `vesting'  varies  as  per  the  context of the Statute in which the property vests. While  

44

considering the case under Sections  16 and  17 of the  Act 1894, the Court held as under:

...the  property  acquired  becomes  the  property  of   Government without  any condition or  limitations  either as to title or possession. The legislature has  made it clear that vesting of the property is not for  any limited purpose or limited duration."

(Emphasis  added).

10. "Encumbrance" actually means the burden caused  by an act or omission of man and not that created by  nature. It means a burden or charge upon property or a  claim or lien on the land. It means a legal liability on  property.  Thus,  it  constitutes  a  burden  on  the  title  which  diminishes  the  value  of  the  land.  It  may be  a  mortgage or a deed of trust or a lien of an easement. An  encumbrance, thus, must be a charge on the property.  It  must  run  with  the  property.  (Vide  Collector  of  Bombay v. Nusserwanji Rattanji Mistri and Ors., AIR  1955 SC 298;  H.P. State Electricity Board and Ors.  v. Shiv K. Sharma and Ors., AIR 2005 SC 954; and AI  Champdany  Industries  Ltd. v.  Official  Liquidator  and Anr.,  (2009) 4 SCC 486).

11. In  State of Himachal Pradesh v.  Tarsem Singh  and Ors., AIR 2001 SC 3431, this Court held that the  terminology  `free  from  all  encumbrances'  used  in  Section  16 of  the Act 1894, is wholly unqualified and  would en-compass the extinguishing of "all rights, title  and interests  including  easementary  rights"  when the  title vests in the State.

Thus, "free from encumbrances" means vesting of  land in the State without any charge or burden in it.  Thus, State has absolute title/ownership over it.

12.  In  Satendra Prasad Jain and Ors.  v.  State of  U.P. and Ors., AIR 1993 SC 2517, this Court held that  once land vests in the State free from all encumbrances,  it cannot be divested. The same view has been reiterated  in  Awadh Bihari Yadav and Ors.  v.  State of Bihar  

45

and Ors.,  (1995) 6 SCC 31; U.P. Jal Nigam, Lucknow  v.  M/s Kalra Properties (P) Ltd. Lucknow and Ors.,  AIR  1996  SC  1170;  Pratap  and  Anr.  (Supra);   Chandragauda Ramgonda Patil and Anr. v. State of  Maharashtra and Ors., (1996) 6 SCC 405; Allahabad  Development  Authority v.  Nasiruzzaman and Ors.,  (1996)  6  SCC 424;  State  of  Kerala and Ors. v.  M.  Bhaskaran Pillai  and Anr.,  AIR 1997 SC 2703;  M.  Ramalinga Thevar v. State of Tamil Nadu and Ors.,  (2000)  4  SCC  322;  Printers  (Mysore)  Ltd. v.  M.A.  Rasheed  and  Ors.,  (2004)  4  SCC  460;  Bangalore  Development Authority and Ors.,  v.  R. Hanumaiah  and  Ors,. (2005)  12  SCC  508;  and  Government  of  Andhra Pradesh and Anr. v.  Syed Akbar,  AIR 2005  SC 492.

13. So far as the change of user is concerned, it is a  settled  legal  proposition  that  once  land  vests  in  the  State free from all encumbrances, there cannot be any  rider on the power of the State Government to change  user of the land in the manner it chooses.

In  a  similar  situation,  in  Gulam Mustafa  and  Ors. v. The State of Maharashtra and Ors., AIR 1977  SC 448, this Court held as under:

“Once the original acquisition is valid and title has  vested in the Municipality, how it uses the excess land  is no concern of the original owner and cannot be the  basis  for  invalidating  the  acquisition.  There  is  no  principle of law by which a valid compulsory acquisition  stands voided because long later the requiring Authority  diverts it to a public purpose other than the one stated  in the....declaration.”

14. Re-iterating a similar view in C. Padma and Ors. v.  Deputy Secretary to the Government of Tamil Nadu  and Ors., (1997) 2 SCC 627, this Court held that if by  virtue of a valid acquisition of land, land stands vested  in  the  State,  thereafter,  claimants  are  not  entitled  to  restoration of possession on the grounds that either the  original public purpose is ceased to be in operation or  the land could not be used for any other purposes.

46

15. In  Bhagat Singh etc. v.  State of U.P. and Ors.,  AIR 1999 SC 436; Niladri Narayan Chandradhurja v.  State  of  West  Bengal, AIR  2002  SC  2532;  and  Northern Indian Glass Industries v.  Jaswant Singh  and Ors.,  (2003) 1 SCC 335, this Court held that, the  land user can be changed by the Statutory Authority  after  the  land  vests  in  the  State  free  from  all  encumbrances.

16. In view of the above,  the law can be summarised  that once the land is acquired, it vests in the State free  from all encumbrances. It is not the concern of the land  owner how his  land is  used and whether the land is  being used for the purpose for which it was acquired or  for any other purpose. He becomes persona non grata  once the land vests in the State. He has a right to get  compensation only for the same. The person interested  cannot  claim  the  right  of  restoration  of  land  on  any  ground, whatsoever.”

24)  With regard to the ultimate decision in  Audikesava  

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

General for India, by drawing our attention to the decree  

prepared by the Registry submitted that there is no doubt  

as  to  setting  side  the  entire  judgment  of  the  Division  

Bench of the High Court and the parties cannot claim that  

certain  issues  have  been  kept  open  or  untouched.   In  

support  of  the  above  claim,  learned  Attorney  General  

heavily relied on the decree drafted by the Registry.  The  

relevant portion of the decree is as follows:  

47

“….. while holding that the Master Plan prepared as per law  in force even subsequent to enforcement of the Urban Land  (Ceiling  &  Regulations)  Act,  1976  is  to  be  taken  into  consideration to determine whether a particular piece of land  is vacant land or not, and while leaving open the question as  to  the  consequences  of  filing  of  a  statement  by  a  person  under a wrong impression that the vacant land held by him  is in excess of ceiling limit if it was not so when he filed a  statement, to be decided in an appropriate case and for the  reasons  recorded  in  its  Judgment  DOTH  in  allowing  the  appeal and the resultant appeal ORDER:

1. THAT the Judgments and Orders dated 28th October, 1994  and the  4th December,  1996 of  the  Division Bench of  the  High Court of Judicature of Andhra Pradesh at Hyderabad in  Writ  Appeal  Nos.  1220 and 918 of  1994 respectively,  and  also Judgments and Orders dated 6th October, 1994 and 27th  July, 1994 of the Single Judge of the said High Court in Writ  Petition Nos. 238 of  1994 and 18335 of  1993 be and are  hereby set  aside and in place thereof  an order dismissing  Writ Petition Nos. 238 of 1994 and 18335 of 1993 on the file  of High Court be and is hereby substituted;

2. THAT the parties herein shall bear their own costs of  these appeals in this Court;…”

Mr. Chowdhary submitted that the terms of decree drawn  

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

guidance  of  the  interpretation  of  and  for  deducing  the  

adjudication contained in the judgment of this Court in  

Audikesava  Reddy’s  case having  regard  to  the  

definitions  of  the  expressions  “judgment  and  decree”  

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

48

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

respectively, which reads thus:  

“2(9) “judgment” means the statement given by the Judge on  the grounds of a decree or order;

2(2) “decree” means the formal expression of an adjudication  which, so far as regards the Court expressing it, conclusively  determines the rights of the parties with regard to all or any of  the  matters  in  controversy  in  the  suit  and  may  be  either  preliminary  or  final.   It  shall  be  deemed  to  include  the  rejection of  a  plaint  and the determination of  any question  within section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal  from an order, or  

(b) any order of dismissal for default.

Explanation.-  A  decree  is  preliminary  when  further  proceedings have to be taken before the suit can be completely  disposed of.   It  is  final  when such adjudication completely  disposes of the suit.  It may be partly preliminary and partly  final;”

According to him, a combined reading of  the above two  

definitions  show  that  the  judgment  must  furnish  the  

reasons or grounds for the adjudication of the controversy  

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

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

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

must  agree  with  the  judgment”.   Repeatedly,  Mr.  

49

Chowdhuri  submitted  except  answering  the  question  

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

considered or concerned with the consequences of filing  

declarations under a wrong impression that the land is  

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

same be decided in an appropriate case, which necessarily  

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

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

Raidurg  (Panmaqtha)  village  was  agricultural  or  not,  

whether such declarations were filed on 16.09.1976, on a  

wrong  impression  and  whether  the  proceedings  under  

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

already  declared  in  Para  13  that  the  date  of  

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

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

included in the second Master Plan that is, on 29.09.1980  

when the owners were obligated to file declarations under  

Section  6  of  their  holdings  and  as  such  the  statutory  

obligation  to  deal  with  such  declarations  also  would  

50

commence only from the date of filing fresh declarations  

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

winding up his reservation about the decree, he submitted  

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

expressly did not go into the question of  validity  of  the  

proceedings  taken  by  the  Competent  Authority  under  

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

declarations  filed  in  September,  1976  under  a  mis-

conception or a wrong impression when the land was not  

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

above  submissions  as  to  the  decree,  Mr.  Chowdhury  

requested this  Court  to  issue  suo moto direction to  the  

Registry for making necessary correction.  

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

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

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

decision  before  the  official  concerned.   Till  date,  the  

appellants  have  not  questioned  the  correctness  of  the  

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

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

which  we  have  extracted  in  the  earlier  part  of  our  

judgment makes it clear that the allowing of the appeals  

filed  by the  State  in  Audikesava Reddy’s  case clearly  

means that the High Court judgment is set aside and the  

writ petitions are dismissed.

26) The appellants also contended that the decree must  

follow  the  judgment  and  if  it  does  not  conform  to  the  

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

fact, Mr. Chowdhary, learned senior counsel appearing for  

the appellants, made a plea for  suo moto correction and  

reliance  was  placed  on  the  judgment  of  this  Court  in  

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

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

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

trial  Court,  a  decree  was  prepared.   During  execution  

proceedings, an objection was raised to the execution as  

the decree did not contain the relief  granted.   The trial  

52

Court  stopped  execution  and  issued  direction  for  

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

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

entire factual details, we find that this judgment has no  

application to the case on hand as these proceedings do  

not arise out of the proceedings for correction of decree.  

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

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

already  held  that  in  the  case  on  hand  the  decree  is  

consistent  with  the  judgment.   As  the  High  Court  had  

allowed the writ  petitions only on one ground based on  

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

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

relating  to  filing  of  declaration  by  owners  under  wrong  

impression.   The direction that  the appeals  are allowed  

can have only one meaning and the meaning is that the  

judgment  of  the  High  Court  is  set  aside  and  the  writ  

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

occasion  for  making  any  correction  even  suo  moto and  

53

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

judgment.  

27) To  meet  the  above  contentions,  learned  Attorney  

General has made an elaborate argument by drawing our  

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

we  also  summoned  the  original  decree  drafted  by  the  

Registry.   A  judgment  comprises  three  segments  (i)  the  

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

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

Order  XX  CPC  requires  a  judgment  to  contain  all  the  

issues and findings or decision thereon with the reasons  

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

party.   The preparation of  decree  follows the  judgment.  

The  decree  shall  agree  with  the  judgment.   The  decree  

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

specify clearly the relief granted or other determination of  

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

decree  shall  agree  with  the  judgment  spells  out  an  

obligation on the part of  the author of the judgment to  

54

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

opinion, has been found entitled to enable decree being  

framed in such a manner that it agrees with the judgment  

and specifies clearly the relief granted.  The operative part  

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

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

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

whether  the  latter  agrees  with  the  former  and  is  in  

conformity therewith.  The obligation is cast not only on  

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

Rule  31  CPC casts  an  obligation  on  the  author  of  the  

appellate judgment to state the points for determination,  

the  decision  thereon,  the  reasons  for  the  decision  and  

when the decree appealed from is reversed or varied, the  

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

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

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

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

subsequently  that  a  particular  aspect  or  argument  was  

55

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

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

Land Acquisition  Officer,  Aurangabad and Another,  

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

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

Court judgment is a nullity and cannot be revived.      

29) In Ballabhdas Mathurdas Lakhani and Others vs.  

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

this Court observed that a decision of the Supreme Court  

was binding.

“… on the High Court and the High Court could not ignore it  because  they  thought  that  “relevant  provisions  were  not  brought to the notice of the Court…””

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

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

held that:

“Once Petitioners challenge to Section 3 and the impugned  Notification was considered by the Court and the validity of  the  same  upheld,  it  must  be  presumed  that  all  grounds  which could validly be raised were raised and considered by  the Court.”

56

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

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

638, this Court held thus:

“a judgment of the High court which refused to follow the  decision  and directions  of  the  Supreme court  or  seeks  to  revive a decision of the High court which has been set aside  by the Supreme court is a nullity.”

In view of the peculiar controversy, we read the judgment  

in  Audikesava  Reddy’s  case  carefully,  particularly,  

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

this Court has been correctly drafted by the Registry in  

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

by learned senior counsel for the appellants.   

32) Learned Attorney General submitted that a judgment  

rendered by this Court cannot be collaterally challenged  

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

For the said proposition, he relied on the following:

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

LJ delivering his speech in the House of Lords enunciated  

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the  doctrine  of  ‘Collateral  attack  on  a  judgment  and  

observed thus:  

“The abuse of process which the instant case exemplifies is  the  initiation  of  proceedings  in  a  court  of  justice  for  the  purpose of mounting a collateral attack upon a final decision  against  the  intending  plaintiff  which  has  been  made  by  another  court  of  competent  jurisdiction  in  previous  proceedings  in  which  the  intending  plaintiff  had  a  full  opportunity of contesting the decision in the court by which  it was made.”

Quoting Halsburys, the learned judge observed:

“I think it would be a scandal to the administration of justice  if the same question having been disposed by one case, the  litigant  were to be  permitted  by changing the  form of  the  proceedings to set up the same case again.”

33) This  Court  has approved this  well  settled principle  

that  a  judgment  of  the  Supreme  Court  cannot  be  

collaterally challenged on the ground that certain points  

had  not  been  considered.   This  Court  in  Anil  Kumar  

Neotia  and  Others vs.  Union  of  India  and  Others,  

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

certain points had not been urged or argued before the  

Supreme Court and thereby seek to reopen the issue.  The  

relevant portion of the judgment is as follows:

58

“… This  Court  further  observed  that  to  contend  that  the  conclusion  therein  applied  only  to  the  parties  before  this  Court  was  to  destroy  the  efficacy  and  integrity  of  the  judgment and to make the mandate of Article 141 illusory…..  It is no longer open to the Petitioners to contend that certain  portions had not been urged and the effect of the judgment  cannot be collaterally challenged.”

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

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

Court  reiterated  the  principle  that  a  judgment  of  this  

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

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

regard, para 62 of the judgment reads as follows:  

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

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

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

as under:

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

59

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

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

the State was allowed in Audikeshava Reddy’s case the  

net result was that the High Court judgment which held  

that  the  proceedings  under  the  ULC  Act  were  vitiated  

stood  merged  in  the  decision  of  this  Court  in  

Audikeshava Reddy.  The logical sequitor of this is that  

the writ petitions filed by the appellants are deemed to be  

dismissed.   In  Kunhayahmed (supra),  a  three  Judge  

Bench  of  this  Court  while  elucidating  the  doctrine  of  

merger  held that once ‘leave’ is granted while exercising  

jurisdiction under Article 136 of the Constitution of India,  

the doors of the appellate jurisdiction are opened.  It does  

not matter whether reasons are given or not.  The doctrine  

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

in a special leave petition.  

60

37) As  pointed  out  by  learned  Attorney  General,  the  

matter  can  be  looked  at  from  another  angle.   The  

proceedings in the instant case are barred by the principle  

of constructive  res judicata.  The validity of the ULC Act  

were squarely in issue.  The effect of allowing the State  

appeals  in  Audikeshava  Reddy’s  case is  that  all  

contentions  which  parties  might  and  ought  to  have  

litigated in the previous litigation cannot be permitted to  

be raised in subsequent litigations.   

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

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

an adjudication is conclusive and binding not only as to  

the actual matter determined but as to every other matter  

which the parties might and ought to have litigated and  

have had it decided.  The following portion of the judgment  

is relevant which reads as under:

“20. So far as the first reason is concerned, the High Court  in  our  opinion  was  not  right  in  holding  that  the  earlier  judgment would not operate as res judicata as one of the  grounds taken in the present petition was conspicuous by its  absence in the earlier petition. Explanation IV to Section 11  

61

CPC provides  that  any  matter  which  might  and  ought  to  have been made ground of defence or attack in such former  suit  shall  be  deemed  to  have  been  a  matter  directly  and  substantially  in  issue  in  such  suit.  An  adjudication  is  conclusive  and  final  not  only  as  to  the  actual  matter  determined but as to every other matter which the parties  might and ought to have litigated and have had it decided as  incidental to or essentially connected with the subject-matter  of  the  litigation  and  every  matter  coming  within  the  legitimate purview of the original action both in respect of  the  matters  of  claim or  defence.  The  principle  underlying  Explanation  IV  is  that  where  the  parties  have  had  an  opportunity of controverting a matter that should be taken to  be  the  same  thing  as  if  the  matter  had  been  actually  controverted and decided. It is true that where a matter has  been constructively in issue it cannot be said to have been  actually heard and decided. It could only be deemed to have  been heard and decided. “

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

1 Appeal Cases 155, the Privy Council observed:

“Parties are not permitted to bring fresh litigations because  of new views that they may entertain of the law of the case,  or new versions which they present as to what should be a  proper apprehension by the Court of the legal result either of  the construction of the documents or the weight of certain  circumstances.  If this were permitted, litigations would have  no end except when legal  ingenuity is  exhausted.   It  is  a  principle of law that this cannot be permitted and there is  abundant authority reiterating that principle.”

As rightly  observed  by  the  High  Court,  what  is  utmost  

relevant is the final judgment of the superior Court and  

not the reasons in support of that decision.  Apart from  

the legal position and the effect of allowing of the appeals  

and  dismissing  the  writ  petitions  by  this  Court,  the  

62

contention with regard to the land being agricultural land  

was raised in the writ  petitions which were the subject  

matter  of  the  appeals  filed  in  this  Court.   In  these  

proceedings,  the  State  categorically  took  the  stand that  

the  lands  are  not  agricultural.   It  was  brought  to  our  

notice that the present appellants as respondents in the  

earlier round did not urge this plea before this Court and  

no such arguments were advanced before this Court.  In  

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

any such contention now.  The effect of allowing the said  

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

stood dismissed.  Inasmuch as the writ petitions having  

been  dismissed,  the  orders  passed  under  the  ULC  Act  

have attained finality.  The declarations which had been  

made and statements filed on 06.09.1976 and 25.07.1977  

stand till today and these declarations are not even sought  

to  be  withdrawn.   In  those  circumstances,  as  rightly  

contended by the learned senior counsel appearing for the  

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

63

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

years of filing of the statements under Section 6 and after  

26  years  of  the  conclusion  of  ULC  proceedings  was  

completely misconceived and was rightly rejected.   

40) Before the High Court, the purchasers had contended  

that the original owners had filed the declarations under  

misconception and confusion.  Even before this Court, the  

purchasers had raised a similar plea when they found that  

the  observations  in  Atia  Begum’s  case was  overruled.  

The  observations  in  paragraph  15  of  the  judgment  in  

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

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

the  original  owners  filed  any  statement  or  declaration  

under the ULC Act under a wrong impression.   On the  

other  hand,  this  was  a  contention  of  the  purchasers.  

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

this Court did not even go into the question because the  

owners  were  not  before  it  and  perhaps  the  purchasers  

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

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

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

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

plea then the Court would consider the same.  It follows  

that the appeals were allowed “for the aforesaid reasons”  

and  this  means  on  account  of  two  reasons.   The  first  

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

second  reason  is  that  the  Court  was  not  prepared  to  

examine the declaration filed by the owners at the behest  

of the purchasers.  In those circumstances, there was no  

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

Therefore, the expression “appeals are allowed”  can have  

only one meaning and that is the judgment of the High  

Court is set aside and writ petitions are dismissed and the  

determination of ceiling already made remains intact and  

undisturbed.   

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41) The appellants  contended that  the High Court  had  

recorded a finding that the land is agricultural  and the  

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

agricultural  land and was a vacant land but that  point  

was not pressed before this Court in Audikesava Reddy’s  

case, hence to that extent the High Court judgment would  

operate  with  binding  effect  in  view  of  principles  of  

constructive  res judicata. We accept that principle of  res  

judicata/constructive res judicata is applicable to the writ  

proceedings.  However, in the present case, the Division  

Bench  finding  with  respect  to  nature  of  land in  a  writ  

petition filed by purchasers does not survive after appeals  

of the State were allowed and after this Court refused to  

go  into  the  question  of  filing  of  statements  by  owners  

under  a  wrong  impression.   If  this  Court  wanted  the  

nature of land to be separately considered then it would  

have  done  so  or  remanded  the  matter.   However,  

paragraph 15 of Audikesava Reddy’s case shows a clear  

intent to leave the declaration of the owner filed under the  

66

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

no part of the judgment of the High Court would survive  

after the appeal is allowed unless and until it is expressly  

and  specifically  preserved.   In  view  of  the  same,  the  

contrary  contention  of  the  appellants  in  this  context  is  

unacceptable and unsustainable.  In any case, the owners  

are bound by the determination of  surplus land by the  

Competent Authority on the basis of their own declaration  

and the various orders passed under the ULC Act.  They  

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

years.   

42) Mr.  Chowdhary,  learned  senior  counsel  contended  

that when a doubt arises about what the Court intended  

then  the  same  must  be  resolved  by  construing  the  

expressions inconsistent with the law.  He placed reliance  

on the following judgment of this Court:

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

SCC 762

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

& Ors. (2006) 1 SCC 638, 643  and

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

SCC 457, 464

On going through those decisions, we have no quarrel over  

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

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

expression  ‘civil  appeals  are  allowed’  carry  only  one  

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

and  the  writ  petitions  are  dismissed.   Moreover,  the  

determination of surplus land based on the declaration of  

owners  has  become  final  long  back.   The  notifications  

issued under Section 10 of the Act and the panchanama  

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

was  asserted  that  the  possession  of  surplus  land  was  

taken on 20.07.1993 and the Panchanama was executed  

showing that the possession has been taken.  It is signed  

by  witnesses.   We  have  perused  the  details  which  are  

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

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

permissible  to  take  possession  by  a  properly  executed  

Panchanama.  [vide Sita Ram Bhandar Society, New  

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

(2009) 10 SCC 501].

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

questioned in any proceedings by any of the appellants.  

Though it is stated that Chanakyapuri Cooperative Society  

is  in  possession  at  one  stage  and  Shri  Venkateshawar  

Enterprises  was  given  possession  by  the  owners  and  

possession  was  also  given  to  Golden  Hill  Construction  

Corporation and thereafter it was given to the purchasers,  

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

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

possession  was  taken  by  the  State  legally  and  validly  

through a Panchnama is absolutely correct and deserves  

to be upheld.

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

appellants  in  the  previous  proceedings  which  were  

highlighted by learned senior counsel for the State as well  

as APIIC.  They are:  

a)  The appellants  themselves described the land in  

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

filed under Section 6(1);  

b) The appellants filed declarations under the Land  

Reforms Act subjecting the land to the jurisdiction of  

the Tribunal;  

c) filing declarations under the ULC Act treating the  

land in Survey No. 83 as vacant land;  

d) the transaction of agreement of sale entered into  

between GPA and Chanakyapuri Cooperative Housing  

Society;  

e)  Owners  and  Society  filed  applications  for  

exemptions which were rejected;  

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f) Chanakyapuri Society pursued its remedies against  

such rejection of exemption up to this Court in which  

the  owners  through  their  Power  of  Attorney  were  

sailing with the Society.

In  fact  these  instances  were  projected  in  their  counter  

affidavit before the High Court by the State and APIIC to  

non-suit the appellants.  Though learned senior counsel  

for the appellants pointed out that these aspects were not  

highlighted  before  the  High  Court,  the  conduct  of  the  

appellants  as  regards  the  above  aspects  cannot  be  

ignored.

45) It  is  pointed  out  that  the  owners  themselves  have  

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

“vacant land” in the relevant columns of their declaration  

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

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

Though  the  said  aspect  had  not  been  disputed  by  the  

appellants, however, it is pointed out that the mentioning  

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

However, as observed earlier, their statements in the form  

of declarations before the authorities concerned cannot be  

denied.   In  fact,  we  were  taken  through  those  entries  

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

annexures.

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

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

the stand of the appellants that those government orders  

were passed on the basis of a policy to encourage building  

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

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

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

are entitled to the same benefits as any other holder of  

excess vacant lands is  entitled to  as they are in actual  

physical  possession  even  as  on  date  irrespective  of  

whether  the  Act  became  applicable  on  17.02.1976  or  

29.09.1980.   It  is  brought  to  our  notice  that  the  

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

733 dated 31.10.1988 is applicable only in the cases in  

which the possession of land had been taken over by the  

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

to  the  State  Government,  in  this  case,  possession  was  

taken after 31.10.1988 as pointed out by learned senior  

counsel for the respondents, the declarants cannot avail  

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

not  in  possession  as  on  31.10.1988.   The  benefit  of  

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

possession  and  up  to  31.10.1988  and  possession  was  

taken by the Government subsequent thereto. As rightly  

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

interpreted as entitling the declarants to claim benefit of  

exemption  even  in  cases  where  they  were  not  in  

possession as on 31.10.1988.  The same was handed over  

to  the  Mandal  Revenue  Officer,  Sherlingampally,  even  

prior  to  that,  the  said  land  was  allotted  to  Hyderabad  

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

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dated  19.12.1980.   Admittedly,  the  said  Government  

Order  was  not  challenged  by  the  appellants.   In  those  

circumstances, the appellants cannot be allowed to take  

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

case  where  the  appellants  were  dispossessed  but  the  

property was transferred initially in favour of Hyderabad  

Urban  Development  Authority  and  later  to  APIIC  for  

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

satisfied  that  the  appellants  are  not  entitled  to  claim  

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

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

occupation/possession is sine qua non for the allotment of  

surplus lands.

47) Various third parties have filed separate applications  

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

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

approach  the  appropriate  authority/court  to  vindicate  

their grievance if the same is permissible under law.  

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

any  merit  in  the  appeals  filed  by  the  appellants.  

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

....…………………………………J.                   (P. SATHASIVAM)                                   

...…………………………………J.           (DR. B.S. CHAUHAN)  

NEW DELHI; OCTOBER 8, 2010.   

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