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CASE NO.:

Appeal (civil) 6877-6881 of 2000

PETITIONER:

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

RESPONDENT:

Mohammed Mohiuddin and Ors.

DATE OF JUDGMENT: 28/11/2003

BENCH:

Brijesh Kumar & Arun Kumar.

JUDGMENT:

JUDGMENT

WITH

CIVIL APPEAL N0. 753/2001

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

Collector, Hyderabad Dist.,Andhra Pradesh

Versus

Mohammed Mohiuddin & Ors. Respondents

WITH

CIVIL APPEAL NOS. 1107-1111/2001

Union of India Appellant

Versus

Mohammed Mohiuddin & Ors. Respondents

WITH

CIVIL APPEAL N0. 6604/2001

Secunderabad Cantonment Board, Appellant

Court Compound, Secunderabad rep.

By Executive Officer

Versus

Weavers represented by their

Chairman, T.K.Kodandaram Respondents

WITH

CIVIL APPEAL NOS.____of 2003

@ S.L.P. ) NOS. 406-409/2002

M/s.Weavers Educational Advance

Vocational Economic Rehabilitation

Society, represented by its Chairman

T.K.Kodandaram Appellant

Versus

Union of India & Ors. Respondents

AND

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CIVIL APPEAL N0. 6376/2001

Syed Sadiq Ali Khan Appellant

Versus

The Executive Officer & Ors. Respondents

BRIJESH KUMAR,J.

All the above noted appeals though filed by different

parties, involve the same question relating to the legality of the

order dated 11.8.2000 passed by the Division Bench of the

Andhra Pradesh High Court as well as the judgments later

passed following the above said decision. The controversy

revolves around the refusal to sanction the plan submitted by

different parties to the Cantonment Board for construction of

building over the land in question. The central government

raised its claim over the land and filed objections to that effect

through the Defence Estate Officer as provided under Section

181 of the Cantonment Act, 1924 (hereinafter referred to as

'the Act').

All the appeals have been heard together along with

Special Leave Petition(C) Nos.406-409/02 in which we grant

leave. All these matters are being disposed of by this common

judgment.

The facts in brief, relevant for purposes of disposing of

these matters are that: the land over which the respondents

proposed to raise construction and had submitted plans

therefor, falls in the limits of Secunderabad Cantonment Board.

There is a bungalow No. 215 in Thokatta Village, which is

said to have been purchased in the name of Syed Sirajuddin Ali

Khan, the minor, represented through his father Syed Sadiq

Ali Khan, by means of a registered sale deed dated 21.9.1899.

It is also the case of respondents that Syed Sirujdin Ali Khan

on attaining majority relinquished his rights in favour of his

father Syed Sadiq Ali Khan by means of a deed dated

11.8.1911. The case of the respondents further is that Sadiq

Ali Khan had allotted land to 11 persons sometime in 1920 and

made an application for making entries in the village records

accordingly. The land S No. 37 was changed to S No. 170 on

revision of settlement. According to the respondents, the

cantonment authorities have been collecting tax in respect of

the land which has been in their possession. The respondents

moved application to the Executive Officer, Cantonment Board

for sanction of lay out in respect of part of the land of S. No.

170, measuring 8 acres. The application for sanction of the

plan was returned to the respondents with an objection that

they were required to furnish exemption certificate under the

provisions of Urban Land (Ceiling and Regulation) Act, 1976.

The respondents challenged the return of the layout plan

and filed a writ petition 4250 of 1994, before the Andhra

Pradesh High Court. The Writ petition was allowed on

30.9.94, and it was held that no such exemption certificate

under the Urban Land (Ceiling and Regulation) Act, 1976 was

required to be furnished. The authorities were directed to

consider the sanction of the plan without insisting for

exemption certificate. The lay out plan, however, was again

returned on the ground that S No. 170 is in Sarkari Abadi

Land. Another writ petition No.6012/95 was filed,

challenging the above order. The said writ petition was also

allowed by order dated 6.12.95 with a direction to the

authorities to find out as to whether the respondents had

established a prima facie case as to their possession and also to

consider the objection of the Union of India and to pass an

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appropriate order thereof. The application for sanction of plan

was ultimately dismissed on 18.1.1996, refusing permission,

as the land was found to have been in possession of

Government of India. An appeal was preferred against that

order. Since the appeal kept on pending, yet another writ

petition No. 3606/96 was filed to restrain the authorities from

interfering with the possession of the petitioners (in the writ

petition) over the land, till disposal of their appeal. This

prayer was granted on 27.2.1996. By means of yet another

order passed in writ petition No. 6009/96 police protection was

also provided to the writ petitioners (respondents here).

Ultimately, the appeal was dismissed on 10.5.1996 holding

that the respondents had no title to the land in question.

It gave rise to filing of yet another writ petition No.

10804/96 against the order dismissing the appeal. The learned

Single Judge while allowing the writ petition held that the

authorities were not required to go into the question of title of

the applicants in the land. The writ petitioners, namely, the

present respondents were held to be in possession over the

property. The learned Single Judge also considered the case of

the appellants that the land was covered under the old grant

and found that no land was granted to the Government of India

by Nizam for military purposes. The learned Single Judge

found that in the earlier proceedings, the authorities did not

raise objection claiming title, therefore, they could not take

that stand in subsequent proceedings as it would be hit by

principles of constructive res judicata. Possession of appellant

was also not found. With such observation, the learned Single

Judge while allowing the writ petition, directed the

Cantonment Board to sanction the lay out plan. The appeal,

preferred against the judgment of the learned Single Judge, has

been dismissed, which is the subject matter of appeals in

hand.

Some other developments also took place during all this

period. According to the appellants, till the year 1992 the

respondents extended no claim, whatsoever, to the land in

question. However, the respondent Sadiq Ali Khan filed a

petition under Section 15(2) of the Record of the Rights

Regulation Act for correction of entries in the Revenue

Records to the extent of 25 acres, on the basis of an

unregistered sale deed. The said application was rejected by

order dated 9.4.92 by the District Revenue officer, holding

that land measuring only 2.71 acres out of the land of

Bungalow No.215 was in the private hands and the rest of the

land was Government land which has been correctly shown to

be so in the revenue records. An appeal was preferred against

the said order before the Commissioner of Land Revenue

under Section 158 of the Land Revenue Act which was

dismissed on 15.3.97. It may also be mentioned that

according to the appellants, the respondents Nos. 1 to 62 had

also got themselves impleaded as parties in the appeal which

has been decided against them.

Sadiq Ali Khan filed a Civil Suit No.288/92 also in the

Court of Civil Judge, Secunderabad claiming ownership and

possession of land measuring 65 acres in S. No. 170 in

Tokketa Village. A prayer made for interim injunction was

rejected by order dated 12.10.92. It was, however, found that

the plaintiff in suit was in possession of land measuring 2.71

acres only and in respect thereof,. he was entitled for

injunction against dispossession, but so far the rest of the land

is concerned measuring near about 63 acres it was in the

ownership and possession of the Government of India.

The Division Bench took note of the finding of the

learned Single Judge that the competent authority, while

considering the question of sanction of the building plan, is

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only required to see the prima facie possession of the

applicant, it has not to adjudicate upon the title of the

applicants. The Division Bench also observed that the

government authorities had not claimed title over the land in

the previous proceedings, therefore, they were estopped

from raising such a plea later which is hit by the principles of

constructive res judicata. Referring to a decision reported in

AIR 1977 SC 392 Y.B. Patil Vs. Y.L. Patil, it observed that

the principles of constructive res judicata could apply in

subsequent stages of the same proceedings as well.

Ultimately, it was held that principle of constructive res

judicata in this case would apply to a limited extent as to the

availability of the grounds on which layout plan could be

refused. The Division Bench, however itself recorded

finding that there is a serious dispute of title amongst various

persons. The relevant part of the judgment may be quoted,

which reads as follows:-

"With regard to question of title, it is well

settled that highly disputed question of title

cannot be entertained and adjudicated in a petition

under Article 226 of the Constitution of India.

From the various contentions raised and

arguments urged on behalf of the respective

parties, it is apparent that there is a serious dispute

of title among the various persons and authorities

in respect of title to the property in question."

In so far the objections of the appellants that the learned

Single Judge has virtually given a finding on the title in favour

of the petitioners, the Division Bench observed as follows: -

"Such an impression does emerge from the

observations of the learned Single Judge at page

22 of the judgment, like as authenticity of these

documents cannot be doubted by the respondents,

the same have to be given their weight, and when

reliance is placed on those documents, the title of

the petitioners cannot be disputed. We do not

agree with the conclusions of the learned Single

Judge that the petitioners' title has been

established."

The Division Bench has reiterated its view that question of

title could not be decided before the competent authority nor

such disputed question could be decided in writ proceedings.

It, however, in the later part of discussion in the judgment, has

clarified the extent to which it upholds the applicability of

principles of constructive res judicata, not being totally in

agreement with the finding of the learned Single Judge on the

said point. The relevant observation in that regard may be

perused, which are quoted below:-

"It is made clear that this judgment under

appeal shall not be construed as having decided

the question of title in respect of the land involved

in the said writ petition. We also hold the view

that even the failure of respondents to raise or set

up the question of the title in earlier writ

petitions, namely, WP No. 6012 of 1995, 3600 of

1996 and 6012 of 1996 as mentioned at page 21

of the judgment of the learned Single Judge,

cannot be basis for invoking the principle of res

judicata in respect of the question of title. The

principle of res judicata as stated above would in

this case be applicable only to the limited question

as to the entitlement of the petitioner for sanction

of lay out and as to the grounds on which such

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sanction can be refused."

In so far the finding of the learned Single Judge in

relation to the possession of the land by all the writ

petitioners, it has been held by the Division Bench that the

said finding is limited only for the purpose of sanction of lay

out and not for any other purpose.

Before proceeding to discuss the submissions made

before us by the respective parties, it may be beneficial to

peruse the provisions regarding the sanction of the lay out

plan. Section 181 of the Cantonment Act reads as under:-

"Section 181. Power of Board to sanction or

refuse (1) The Board may either refuse to

sanction the erection or re-erection, as the case

may be, of the building, or may sanction it either

absolutely or subject to such directions as it

thinks fit to make in writing in respect of all or

any of the following matters namely:-

(a) to (j) x x x x x x

(2) x x x x x x

(3) The Board before sanctioning the erection

or re erection of a building on land which is

under the management of the {Defence Estates

Officer}, shall refer the application to the

(Defence Estates Officer) for ascertaining whether

there is any objection on the part of the

Government to such erection or re-erection and

the (Defence Estates Officer) shall return the

application together with his report thereon to the

Board within thirty days after it has been received

by him.

(4) The Board may refuse to sanction the

erection or re-erection of any building

(a) when the land on which it is proposed

to erect or re-erect the building is held on a lease

from the Government, if the erection or re-erection

constitutes a breach of the terms of the lease, or

(aa) when the land on which it is proposed to erect

or re-erect the building is entrusted to the

management of the Board by the Government if

the erection or re-erection constitutes a breach of

the terms of the entrustment of management or

contravenes any of the instructions issued by the

Government regarding the management of the

land by the Board, or

(b) when the land on which it is proposed to erect

or re-erect the building is not held on a lease from

the Government, if the right to build on such, land

is in dispute between the person applying for

sanction and the Government.

(5) x x x x x x x

(6) x x x x x x x"

Bye law 15 reads as under:-

"15. Power of Cantt. Board to sanction, modify

or reject:- The Cantonment Board may sanction

the lay out plan submitted by the applicant if the

same is in accordance with the bye-laws or

sanction the same with such modifications as the

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Cantt. Board may consider fit, or may refuse to

sanction any layout if proprietary rights on the

land proposed to be laid out is claimed by the

Government of India in the Ministry of Defence to

be their land as shown in the General Land

Register maintained for the purpose".

In our view, the main question which falls for

consideration is about the ambit and scope of Section 181 of

the Act, more particularly Clause (b) of sub-section 4 of

Section 181. The above provision empowers the Board to

refuse sanction of a building plan where the land on which a

construction is proposed to be raised is not on lease from the

Government and there exists any dispute between the

applicant for sanction of the plan and the Government.

The respective parties have drawn our attention to

certain facts and documents to show as to which of them is the

rightful owner of the land. The other question which has been

raised by the respondents is that ground for rejection of plan

as contained in Clause (b) of Sub-section 4 of Section 181 is

not open to be resorted to by the appellants since such a

ground was not raised earlier while returning the plan, since

in such a situation principle of constructive res judicata

would be attracted. There are a few other peripheral questions

which we shall be discussing later.

The application for sanction of plan was moved by the

respondents on 4.12.93 addressed to the Cantonment

Executive Officer. On 4/5 January, 1994 the Cantonment

Executive Officer wrote that the ULSC exemption certificate

in Form 19(V) from DEAPU Circle Secunderabad was not

furnished. It was also indicated that Board was also

examining the matter relating to entertaining new lay out

plans. Hence the plan submitted by Nawab Mohd. Usuf Khan,

the General Power of Attorney, was returned. We have

already noted that a writ petition preferred namely, writ

petition No. 4250 of 1994, against the return of the plan was

allowed by the High Court by Judgment dated 30.9.94,

holding that no exemption certificate under the provisions of

the Urban (Land and Ceiling) Act was necessary. Hence the

matter was required to be considered again without insisting

upon a Urban Ceiling exemption certificate. The respondents

then again seems to have approached for consideration of

sanction of the plan on 10.1.1995. The cantonment Executive

Officer by means of his notification dated 15/3/99 informed to

the General Power of Attorney Sh. Nawab Mohd Usuf Khan

that the DEO (Defence Estates Officer) had raised definite

objection on behalf of the Government against the lay out

plan submitted by the respondents. It was also indicated that

in the Revenue Records Sy. No. 170 of Thokatta Village is

shown as Sarkari Abadi which is defence owned land. The

plan was thus again returned to the respondents. At this

juncture, it may be relevant to take note of sub-section 3 of

Section 181 of the Act, as quoted earlier.

We have already noted the findings recorded in the writ

petition and the appeal in the earlier part of the judgment. The

learned counsel for the appellant has laid great emphasis upon

the old revenue record entries in favour of the appellant and

the entries made in the General Land Register. It is submitted

that Cantonment Land Administration Rules, 1937 have been

framed by virtue of power vested under Section 280 of the

Cantonments Act, 1924. Rule 10 in Chapter III of the

Cantonment Land Administration Rules deals with

maintenance of General Land Register. The Military Estates

Officer (now Defence Estates Officer) is required to maintain

General Land Register prepared under Rule 3 in respect of all

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land which has been entrusted to or vests in the Board. In this

connection, a reference has also been made to a decision

reported in 1999 (3) SCC page 555, Chief Executive Officer

Vs. Surendra Kumar Vakil and Ors. Regarding General Land

Registers, it has been observed that they are maintained under

the Rules, in normal course of business and entries made in

such registers were to be given due weight. It is therefore,

submitted that it cannot be said that no value is to be attached

to the entries made in the General Land Registers. It has also

been submitted that there being a serious dispute about the

title of the property as also found by the Division Bench,

existence of the dispute in respect of the property in question

cannot be disputed.

The learned counsel appearing for the Union of India

has referred to the proceedings which were initiated by Sadiq

Ali Khan for correction of revenue records but that application

was rejected on 9.4.92. The appeal, preferred against the said

order passed by the District Revenue Officer in which 62

respondents also got themselves impleaded, was also

dismissed That is to say the entries in revenue records in

favour of the Government were maintained and the attempt

of the respondents for change of the entries claiming right

over the land in question failed. The authorities of the

Defence Department were also heard. It was held that the

claim advanced by the respondents was not substantiated by

documents and it was without any basis. It was found that the

land was Government land/military estate. The Special

Commissioner, Land Revenue observed in his order that no

proper documents were produced by the respondents. It is

also indicated that in a suit filed by Sadiq Ali Khan (O.S. No.

288/92) with a prayer for injunction on the basis of the

possession, the prayer was rejected except in part relating to

2.7 acres.

Learned counsel appearing for the respondents tracing

the history submitted that area of the village concerned

belongs to the Nizam. It is also submitted that respondents

have been paying tax in respect of the Bungalow No.215

which was purchased by Syed Sirajuddin Ali, a minor son of

Sadiq Ali Khan in the year 1899 who, on attaining majority,

had relinquished his rights in favour of his father, Sadiq Ali

Khan on 11/8/1911. He wrote to the authorities in 1920 that he

had allotted the land to the extent of 19.05 gts. to different

persons and the same was requested to be recorded in the

village records. The fact was acknowledged by the

Directorate and the Secretary of the Estate of Nawab

Salarjung Bahadur saying that it was not agricultural land,

therefore no assessment was made but later tax at the rate of

Rs. 5 per acre was levied. Therefore, a sum of Rs. 325/- in

respect of the land in Survey No. 37 was held liable to be

collected from Sadiq Ali Khan and his allottees. It was also

indicated by the authorities of the Estate that on revision of

the Bandobast (settlement) Sy. No. 37 was given a new Sy.

No. 170. He has also drawn our attention to the fact that the

land which was handed over by the Nizam to Government

was only for the purposes of exercising criminal and police

jurisdiction by the Government of India and Thokatta is one

of such villages mentioned in the notification dated 28/9/1906.

A copy of the aforesaid document has been provided to us by

the learned Counsel for the respondents which does not seem

to be a part of the record. He has also drawn our attention to

the documents, namely, the sale deed dated 21/9/1899

regarding 64 acres and deeds pertaining to non-agricultural

land. It has further been submitted that the dispute regarding

the land, by reason of which permission to sanction the map

can be refused, should be bonafide and a genuine dispute.

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So far the question of investigating into the title of the

parties is concerned, we feel that the view of the High Court

to the extent that title is not required to be established by any

of the parties before the competent authority, is correct. So

far possession is concerned, it may be indicated that there

seems to be no such specific provision requiring to establish

possession but it may depend upon facts of a given case and it

may be considered as one of the relevant aspects to be kept in

mind while considering the application for sanction of a

plan. But so far the statutory requirement is concerned, it is

evident from perusal of sub-section 4 (b) of Section 181 that

the competent authority dealing with the matter, has to see

whether there is or not any dispute about the land between

the person applying for sanction of the plan and the

Government. In case the concerned authority is satisfied

about the existence of such a dispute in terms of Section 181

of the Act, the request for sanction of the lay out plan is liable

to be refused. In this connection, it will also be relevant to

refer to sub-section 3 of Section 181 which provides that

before sanctioning a plan the Board is required to refer the

application to the Defence Estates Officer for ascertaining

whether there was any objection on the part of the

Government to such erection or re-erection over the land. The

said provision casts a duty upon the sanctioning authority to

refer the matter as pointed out above. Accordingly, it referred

the matter to the DEO, who raised objections regarding

sanction of the plan. The objection relates to the question of

ownership of the land. The government claims ownership of

the land and in that regard reliance was placed upon entries

in the Revenue Records and the General Land Register which

are maintained in due course of official business. The

respondents claimed their title through the sale deed executed

in favour of son of Sadiq Ali Khan in the year 1899, who on

attaining majority had relinquished his rights in favour of his

father Sadiq Ali Khan on 11/8/1911 and then the alleged

transfer of different parts of the land to eleven different

persons. It has been pointed out earlier also that the

respondents had moved for correction of the records before

the Revenue Officer but they failed. The appeal also remained

unsuccessful, in which all the 62 respondents had got

impleaded themselves. A civil suit for injunction was filed

by Sadiq Ali Khan in 1992 but the prayer for injunction was

refused except in respect of a part of the land measuring 2.71

acres since prima facie, their possession was not found over

the rest of the land. It may be worthwhile to notice that the

proceedings for correction of the records and the Civil Suit

for injunction were initiated in 1992 and the application for

sanction of the plan was moved in 1994, that is to say, after

the respondents remained unsuccessful in their attempts to

obtain orders in their favour twice before. In such

circumstances, it would be difficult to say that there would be

no bonafide dispute about the land between the parties. In

this background, we do not feel it necessary to enter into the

contents and merits of various documents relating to title

relied upon by either side. That enquiry would be necessary

only if question of title could be decided in these proceedings

and not otherwise. But we find there enough material, on the

basis of which an authority could reasonably come to the

conclusion that there was a dispute, relating to the land,

between the applicant and the Government in respect of which

sanction of the plan to construct, was applied for. Such a

dispute was brought to the notice of the competent authority

by means of objection placed before it by the Defence Estates

Officer under the statutory provision. We don't think that it

would be possible to say that the authority concerned took a

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view about existence of dispute which was not sustainable.

We may then consider the question as raised regarding

application of principles of constructive res judicata. The

Division Bench has recorded a finding that the appellants

were estopped, on the principle of constructive res judicata,

from raising an objection relating to existence of dispute over

the land, on the basis that no such plea was put forward at

the stage when the map was returned first in the year 1994

saying that the exemption certificate under Urban Land and

Ceiling Act was not filed by the applicants. Therefore, this

plea of dispute over the land between applicants and the

Government, which could have been raised earlier, but not

raised, cannot be allowed to be taken up now. Learned

counsel for the respondent has in this connection placed

reliance upon a decision reported in 1970 SCR page 830,

Mathura Prasad Bajoo Jaiswal and Ors. Vs. Dossibai N.B.

Jeejeebhoy. Our attention has been particularly drawn to page

836 which is quoted below:-

"It is true that in determining the application

of the rule of res judicata the Court is not

concerned with the correctness or otherwise of the

earlier judgment. The matter in issue, if it is one

purely of fact, decided in the earlier proceeding

by a competent court must in a subsequent

litigation between the same parties be regarded as

finally decided and cannot be reopened. A mixed

question of law and fact determined in the earlier

proceeding between the same parties may not, for

the same reason, be questioned in a subsequent

proceeding between the same parties. But, where

the decision is on a question law, i.e. the

interpretation of a statute, it will be res judicata in

a subsequent proceeding between the same parties

where the cause of action is the same, for the

expression "the matter in issue" in s. 11 Code of

Civil Procedure means the right litigated between

the parties, i.e. the facts on which the right is

claimed or denied and the law applicable to the

determination of that issue. Where, however, the

question is one purely of law and it relates to the

jurisdiction of the Court or a decision of the Court

sanctioning something which is illegal, by resort

to the rule of res judicata a party affected by the

decision will not be precluded from challenging

the validity of that order under the rule of res

judicata, for a rule of procedure cannot supersede

the law of the land."

On the basis of above observation, it is submitted that

decision between the parties, on the question of law, will bind

the parties in subsequent proceedings. So far proposition of

law is concerned, there would be no dispute to the same but

we don't find that there has been any decision between the

parties on the question of dispute in terms of sub-section 3 of

Section 181 of the Act. No question for interpretation of any

provision of law is involved. We, therefore, find that the

above decision would be of no help to the respondents. A

reference has also been made to 1977 (3) SCR 428 State of

Uttar Pradesh Vs. Nawab Hussain particularly to the

observation made at pages 431 and 434. On the basis of the

above decision, it is submitted that doctrine of res judicata

would be applicable even to the proceedings other than suits,

as has been held in the above case that principle of

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constructive res judicta would be applicable in proceedings

under Article 226 of the Constitution of India. It is also

submitted that a plea which could be raised in the earlier

proceedings, if not raised by a party, it would not be

permissible to raise the same subsequently between the same

parties.

In connection with the above arguments, it would be

worthwhile to notice that stage for raising an objection

regarding a dispute between the Government and the applicant

arises after the application is referred to the DEO by the

sanctioning authority in terms of sub-section 3 of Section 181.

So far the return of the first application is concerned, it may

be noted that it was returned since the sanctioning authority

thought it not to be entertainable, having not been

accompanied by an exemption certificate under the provisions

of the Urban Land Ceiling Act. Apparently, it appears that

the stage had not yet arrived for referring the application to the

DEO for his objections. The competent authority is required

to refer the application before sanctioning the plan. Nothing

to the contrary has been indicated by the respondents to show

that despite reference of the application to the DEO under

Sub-section 3 of Section 181, the DEO had chosen not to file

any objection in respect of the dispute or the claim over the

land. On the basis of the above factual aspect, in our view, the

question of failing to raise a plea in the earlier proceedings

does not arise due to return of the first application. There is

no reason to infer that the DEO had foregone his right to raise

objection regarding the ownership of the land before sanction

of the lay out plan. The argument therefore, raised is not

applicable in the set of facts of this case. Learned counsel

for the appellants has, however, placed reliance upon a

decision reported in 1996 (6) SCC 424 Allahabad

Development Authority Vs. Nasiruzzaman and Ors.

particularly to paragraph 6, which reads as under:-

"In view of the above ratio, it is seen that

when the legislature has directed to act in a

particular manner and the failure to act results in a

consequence, the question is whether the previous

order operates as res judicata or estoppel as

against the persons in dispute. When the previous

decision was found to be erroneous on its fact, this

Court held in the above judgment that it does not

operate as res judicata. We respectfully follow

the ratio therein. The principle of estoppel or res

judicata does not apply where to give effect to

them would be to counter some statutory direction

or prohibition. A statutory direction or prohibition

cannot be ovderridden or defeated by a previous

judgment between the parties\005\005".

Yet another case referred to by the learned counsel for the

appellant is reported in 1997 (9) SCC 191 Bansilal Farms Vs.

Umarani Bose and Ors. On the basis of the above decision,

it was submitted that the State's right would not be affected

by any order or compromise by applying the principle of

constructive res judicata.

We, however, find that facts of the case in which the

above observations have been made by the Court were

slightly different. Shri Altaf Ahmad, learned Addl. Solicitor

General, has then referred to "Administrative Law" by Sir

William Wade, eighth edition, page 249, relevant part of

which reads as under:-

"Like other forms of estoppel already

discussed, res judicata plays a restricted role in

administrative law, since it must yield to two

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fundamental principles of public law: that

jurisdiction cannot be exceeded: and that

statutory powers and duties cannot be fettered.

Within those limits, however, it can extend to a

wide variety of statutory tribunals and authorities

which have power to give binding decisions, such

as employment tribunals and commons

commissioners.\005\005\005 .".

It is, therefore, submitted that generally, role of the

principle of res judicata in administrative matters is restricted,

and statutory powers and duties administratively performed

cannot be thwarted by application of principles of res judicata.

It may be remembered that the earlier order returning the lay

out plan was on the ground of non-fulfillment of requirement

of filing exemption certificate which the High Court in the

writ petition held that there was no such requirement to

submit exemption certificate under the Urban Land Ceiling

Act. There was a direction to re-consider the matter, hence it

was being scrutinized on the grounds other than requirements

of filing of an exemption certificate. As indicated earlier,

there is nothing to show that a reference was made to the DEO

before returning the application earlier. As a matter of fact, no

such occasion would have arisen then. In this background,

the DEO would neither be denuded of his statutory

responsibility to raise objection about Government's claim

to the land or dispute about it nor the competent authority

was absolved of his statutory duty to refer the matter to the

DEO before considering the question of passing of the order

of sanction of the plan. The return of lay out plan earlier, was

in a way at the preliminary stage when it was found that the

application did not accompany the necessary documents eg.

exemption certificate under ceiling laws, which was then

considered to be necessary. Stage to file objection came later

when the application may have been referred to the D.E.O.

The observations referred to earlier made in the

Administrative Law by Wade are certainly attracted to the

facts of the case. In our view, the respondents just wanted to

hold on by raising a flimsy and feeble plea of constructive res

judicata which is not sustainable either on fact or in law. In

the facts and circumstances indicated above, we, therefore,

have no hesitation in holding that the learned Single Judge as

well as the Division Bench fell into error in holding that the

objection under Sub-section 3 of Section 181 of the Act could

not be raised by the DEO by applying the doctrine of

constructive res judicata.

We have already found that in the facts and

circumstances discussed above, it cannot be said that a

reasonable person would not come to a conclusion that there

is a dispute in regard to the land in question so much so the

respondents themselves had to move the authorities and the

Court twice in connection thereof. Before the revenue

authorities they failed and in the civil court some partial relief

of injunction restricting to an area of 2.71 acres was granted.

Therefore, it cannot be said that the land was free from

dispute. As a matter of fact, we have already indicated that

the Division Bench of the High Court itself has arrived at

such a conclusion but found erroneously that it would not be

entertainable being barred by principles of constructive res

judicata.

There also seems to be some inter se dispute with one

of the parties appearing in person who alleged that the writ

petition was filed by third parties claiming themselves as

allottees to the extent of 19.30 gt. In fact, it is submitted that

land was given to his fore-fathers and the case of the

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petitioner-respondents is false and bogus. He further alleges

forgery on the part of the holder of the Power of Attorney.

Initially there were only 11 transferees which number swelled

to 62. He made various allegations of forgery etc. committed

in the matter. We however, find that such disputes are

beyond the scope of the present controversy which is

confined to the question as to whether the lay out plan could

have been sanctioned or not.

An effort has also been made on behalf of the

petitioner-respondents about the array of the parties in the

proceedings. In this connection Section 79 and Order 27 Rule

3 of the Code of Civil Procedure have also been referred to

contend that in a suit by or against the Government, Union of

India is to be impleaded as a party and not the authority or any

officer. The learned counsel for the Union of India submits

that the appeal has been filed on behalf of the Union of India

and the Defence Estates Officer is appellant No. 2. It is

submitted that proceedings in court were initiated by the

respondents by filing writ petitions. Proper parties should

have been impleaded by them. In the writ petition, the

respondents did not implead Union of India as a party, hence,

it does not lie to them to raise any such objection. Again such

an objection, in any case, should have been raised in the writ

appellate court. We, however, also find that in the array of

parties in the appeal proceedings before the High Court,

Union of India is the appellant with Cantonment Board. So is

the position here also, in as much as the Union of India is also

impleaded as one of the respondents in the present

proceedings. It is indicated that DEO has throughout been

representing the Government of India. It is submitted that no

such issue was raised earlier and the matter has been contested

through out by the DEO and the Cantonment Board, it cannot

be said that Union of India is not on the record as a party; it is

also represented through counsel and submissions have been

advanced on behalf of Union of India as well by Shri Anoop

Choudhary, senior advocate and Shri Altaf Ahmad, Addl.

Solicitor General of India has argued the case on behalf of the

appellant. The Union of India supports the applicants in

challenging the order of the High Court. Union of India has

also filed appeals, Civil Appeal Nos.1107-1111 of 2001

impugning the judgment of the Division Bench. We are not

favourably inclined to entertain this technical plea for the

above reasons.

We also find no substance in the submission made on

behalf of the respondents that the lis is between the

Cantonment Board and the respondents and there is no lis

between the Union of India and the respondents. The

Cantonment Board through one of its designated officer,

considers and passes appropriate order on the application for

sanction of plan. At least it shall have right to defend its

orders. Under the statutory provision, the plan is not to be

sanctioned in case there is a dispute between the applicant and

the government. Under the statute again the matter is to be

referred to the Defence Estates Officer to ascertain this fact

and it is for him to raise objection, if any such dispute exists

between the applicant and the Government of India.

Therefore, it cannot be said that there would be no reason for

these authorities to contest the matter. The interest of

Government of India is very much involved and it will have

all the interest to see that the plan is not sanctioned in case it

has a claim over the land.

While parting with the matter, we would like to clarify

that the dispute and the orders thereon, in these proceedings,

are confined only to the question of sanction of the plan for

construction of building. We have, therefore, refrained from

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taking note of vein efforts made by learned counsel for the

respondents to assure the Court about their title, which, as

observed earlier, could not be subject matter of such

proceeding. Any dispute regarding the title between the

appellants and the respondents or the respondents inter se or

with any other party may be a subject matter of any

appropriate separate proceeding, which any of the parties may

initiate if advised in that regard, as that right would not be

affected by this order.

For the discussion held above, we find that the judgment

and order passed by the High Court is not sustainable.

C.A.Nos.__________ of 2003 @ SLP(C) Nos.406-09/2002

After having heard the appellants and perusing the

judgment impugned in these appeals, we find no infirmity so

as to call for any interference with the order passed. The High

Court rightly held if the petitioner society wants to set up title,

it may institute a separate suit for such a relief. The High

Court rightly found that there was no occasion to reject the

plaint or to claim any declaration to the effect that the

Cantonment Board is not the owner of the suit properties. The

appeals have no merit.

In the result, the appeals filed by the Secunderabad

Cantonment Board (i.e. Civil Appeals No.6877-6881/2000 and

C.A.No.6604/2001) and the Union of India (i.e. Civil Appeals

No.1107-1111/2001) are allowed and the impugned

judgments/orders passed by the High Court of Andhra

Pradesh are set aside.

C.A.No.753/2001 and C.A.No.6376/2001

Since the appeals filed by the Secunderabad Cantonment

Board and the Union of India have been allowed setting aside

the impugned judgments/orders of the High Court of Andhra

Pradesh,, no further order is required to be passed in these

appeals and they stand finally disposed of in view of the

aforesaid judgment.

C.A.Nos.______/2003 @ SLP (C) Nos.406-09/02

In view of the position aforesaid and discussion held

earlier, we find no merit in the appeals and the same are

dismissed.

Costs easy.