TaxTMI 
TaxTMI 
2010 (10) TMI 1160
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....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 (uncultivable) 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 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 (Ceili....
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....nd 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. (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 04.12.19....
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....s, 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 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) D....
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....essary 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: 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 pu....
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....eeping 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 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 ....
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....on 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 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 Attor....
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....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....
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....ter 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. Obligati....
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....rmitted 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 v. State of Maharashtra and Ors. (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 muc....
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....e cannot be read as having restored the proceedings of the Competent Authority under Section 8(4), 9 and 10 of the 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. He also submitted that the judgment of the Division Bench ....
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.... 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. 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 surpl....
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....ped from assailing the legality or validity of the declaration made by the owners under Section 6 of the ULC Act on the principle that a person cannot approbate 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 excess of the ceiling limit." Inasmuch as the case of the appellants is that the lands regarding which decla....
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....edy 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 Ors. (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 th....
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....uperior 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 t....
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....t the arguments of the appellants that the lands in issue became amenable to the ULC Act only upon extension of Master Plan thereto on 23.06.1980 and that the declaration made prior to such date is non est is not acceptable and sustainable. As a 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, namely, Chanakyapuri Cooperative Housing ....
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.... 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 ....
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.... 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 Ge....
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....ation 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. 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) v....
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....k to the trial Court, a decree was prepared. During execution proceedings, an objection was raised to the execution as the decree did not contain the relief granted. The trial Court stopped execution and issued direction 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 an....
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....ourt, the High Court judgment is a nullity and cannot be revived. 29. In Ballabhdas Mathurdas Lakhani and Ors. v. 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 Kesho Ram and Co. and Ors. Etc. v. 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. 31. Similarly, in Director of Settlements, A.P. and Ors. v. M.R. Apparao and Anr. (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 1....
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....t 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 Ors. v. Govt. of A.P. and Ors. (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 t....
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....judication 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 v. 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 ci....
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....rs. However, in paragraph 15 of Audikeshava Reddy's case, this Court did not even go into the question because the owners were not before it and perhaps the purchasers could not raise that plea. This Court said, "this question is left open to be decided in an appropriate case." 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. 41. The appellants contended that the High Court had recorded a finding that the land is agricultural and ....
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....eclaration 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 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 v. 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 possessi....
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....e 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 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....