No Acts & Articles mentioned in this case
2023 INSC 664 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4835 OF 2023
[Arising out of Special Leave Petition (Civil) No.2523 of 2022]
Yadaiah and Anr. .… Appellants
VERSUS
State of Telangana and others …. Respondents
WITH
CIVIL APPEAL NO.4836 OF 2023
[Arising out of Special Leave Petition (Civil) No.2060 of 2022]
WITH
CIVIL APPEAL NO.4837 OF 2023
[Arising out of Special Leave Petition (Civil) No.2350 of 2022]
WITH
CIVIL APPEAL NO.4838 OF 2023
[Arising out of Special Leave Petition (Civil) No.2110 of 2022]
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WITH
CIVIL APPEAL NO.4839 OF 2023
[Arising out of Special Leave Petition (Civil) No.2185 of 2022]
WITH
CIVIL APPEAL NO.4840 OF 2023
[Arising out of Special Leave Petition (Civil) No.6714 of 2022]
JUDGMENT
Surya Kant, J.
1.Leave granted.
2.These appeals are directed against the
common judgment dated 31.12.2021 passed by a
Division Bench of the High Court of Telengana
whereby the intracourt appeal preferred by the
State of Telengana and its revenue authorities has
been allowed, reversing the decision of the learned
Single Judge. Consequently, the resumption order
dated 27.01.2007, which forms the core of the
present disputes concerning the assignment of
nonoccupied land in the 1960s to landless
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Scheduled Caste/Scheduled Tribe persons
[Hereinafter, ‘Assignees’] for the purpose of
cultivation, has been confirmed.
3.Since these appeals arise out of a longdrawn
saga wherein multiple rounds of litigation occurred
between the parties before various forums, including
this Court, it would be appropriate to discuss the
same at length before delving into the issues of law
raised before us concerning res judicata, nature of
assignment and violation of conditions of
assignment. It may also be mentioned before
embarking into the factual matrix that this Court
vide order dated 06.09.2022 had impleaded the
Greyhounds Commando Force through the
Additional Director General of Police as a Party
Respondent for effective adjudication since the land
in dispute has been statedly allotted and is being
used for training its forces.
A. FACTS
4.The genesis of these disputes began on
28.10.1953 when the Revenue Department of the
then undivided State of Andhra Pradesh took a
policy decision and communicated the sanction
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granted for the assignment of ‘Astabl Kanchi’
1
land
measuring 200 Acres comprising the revenue estate
of Manchirevula village situated in the Ranga Reddy
District to the Assignees. The relevant part of the
said policy decision stated that:–
“……I am directed to communicate
Government sanction for the assignment
of culturable area to the extent of 200
acres out of Astabl Kanchi situated in
Manchirral village to the landless Harijans
under special laoni Rules after regular
phodi work by the land Record and
Settlement Department. The remaining
area of the Kancha may be kept in fact
and auctioned every year….” (sic)
5.The Collector after this communication, vide
letter dated 07.11.1959, finally submitted a report of
eligible individuals and directed that ‘phodi’ or sub
division of the Subject Land be conducted before its
assignment. However, after further inspection by
revenue authorities, the Collector noted in a
subsequent letter dated 04.06.1960 that land
measuring 142 Acres 39 Guntas was fit for
cultivation instead of the initially proposed area of
200 Acres. Accordingly, the Revenue Divisional
Officer vide his letter dated 16.08.1960, directed the
1
‘Kancha’ is the term employed for land which absolutely vests in favour
of the government.
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concerned Tehsildar to initiate assignment
proceedings for land measuring 142 Acres 39
Guntas in Survey No. 393 of Village Manchirevula
[Hereinafter, ‘Subject Land’] and directed that
process be initiated for grant of special Laoni
2
Patta
to the eligible persons.
6.It is to be noted that before any kind of patta
could be granted, the State Government issued an
order dated 29.06.1961 [Hereinafter, ‘GOM 1122’]
overriding all previous orders which governed
assignment and alienation. The said order provided
exhaustive guidelines for assignment and alienation
of Government lands, the relevant part whereof as
applicable to the Subject Land reads as follows:–
“5. The Government further direct that no
vacant land in the Greater Hyderabad city
or within a belt of 10 miles around the
city should be assigned or otherwise
disposed of until Government have
assessed the requirements of various
Department for building accommodation
in the city.”
7.It was only after GOM 1122 was brought into
effect, that the State Government issued temporary
pattas dated 21.10.1961 [Hereinafter, ‘Temporary
2
During the course of hearing, it has been brought into our attention
that term ‘Laoni’ loosely means to ‘bring into cultivation’.
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Pattas’] to each of the selected Assignees. It would
be appropriate for proper analysis of the controversy
to reproduce the contents of one such Temporary
Patta dated 21.10.1961 granted to an Assignee
which is as follows:–
“FORMG
(Under Rule 9 (g)
Written permission to occupy land
(to be given by the Tahsildar under Loani
Rules)
Temporary patta is granted to Shri
Mylarapu Pedda Gandaiah S/o. Venkaiah,
resident of Manchirevula village, Tahsil
Hyderabad West, Hyderabad District, to
occupy the following land and to cultivate
the same, till the phodi work is
completed.
1. Village Name : Manchirevula
2. Taluk : Hyderabad West
3. Sy. No. : 393
4. Total extent : 326.28
5. Extent given under patta: Ac. 7.06 gts.
6. Cess : Rs. 7.15
7. Nature of land : Kancha
8. Classification : Dry
Sri Mylarapu Pedda Gandaiah has to
pay Rs. 7.15 per year from 19611962 for
the land granted for occupation under
this permit as assessment.
After the podhi is completed, the
area and assessment are both fixed by the
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Dept. of Land Records (Survey and
Settlement). The Pattadar is bound to pay
the assessment so fixed, but this change
will take effect only form the year
following in which such change has been
made as a result of the compk1jon of
phodi work by the Dept. of land Record.
(In the case of land granted as not
Transferable)
The Grantee is not empowered ∙to
transfer the occupancy without the
sanction previously obtained from the
Collector. This permission to occupy shall
not confer the right to mine on the land
or collect minerals therefrom. The right
on the toddy trees will vest with the
Government.
Sd/Tehsildar
24.10.1961
Hyderabad West” (sic)
(Emphasis Applied)
There are some other policy decisions also that
have brought in restrictions regarding transfer of
Subject Land which we would deal in the later part
of this judgement. However, it is pertinent to note
that afterwards, permanent pattas were granted to
the Assignees within a few years of the issuance of
Temporary Pattas. The Appellants are now claiming
devolution of interest and ownership rights over
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different parcels of the Subject Land through the
original Assignees.
8.After the grant of these pattas, the situation
remained dormant for almost three decades.
Meanwhile, with the passage of time, the city of
Hyderabad, like all other capital cities across the
nation, flourished on account of rapid urbanisation
and swift economic development, making land a
scarce and valuable resource. Consequently, the
Subject Land also rose in value. On 14.08.1991, all
the Assignees are stated to have executed a general
power of attorney [Hereinafter, ‘GPA’] in favour of
one M.A. Baksh. The GPA gave M.A. Baksh the
following amongst other powers in respect of the
Subject Land:–
“5. To negotiate, enter into agreements
for and/or let lease or licence the said
property or any portion thereof to such
person(s) or body and for such
consideration and upon such terms and
conditions and for such purpose(s) as my
said attorney may in his absolute
discretion deem fit.
6. To negotiate and agree to and/or to
enter into agreement, to
sell/develop/lease/ mortgage the said
property or to sell, convey, lease,
mortgage, assign or to otherwise transfer
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the said property or any portion thereof
to such person(s) or body and for such
consideration arid upon such terms and
conditions and for such purpose(s) as the
said attorney may in his absolute
discretion deem fit and to collect and
receive the considerations thereof and to
give a valid receipts therefor.
7. To enter into agreement(s) to develop
the said property by laying roads,
drainage, water connections, Electricity
connection etc. and or erecting
individual/ multistoreyed, residential/
commercial buildings thereon with any
person(s), firms, company/ companies or
society/ societies upon such terms and
conditions as my said attorney may in his
absolute discretion deem fit.”
(Emphasis Applied)
9.Thereafter, acting upon the abovementioned
GPA, M.A. Baksh sold a part of the Subject Land to
private individuals between the period of January
1992 to October 1992 as brought to our notice by
the parties through sale deeds placed on record. On
perusal of these sale deeds, one crucial feature
which is to be noted is that M.A. Baksh envisaged to
divide the Subject Land into smaller plots akin to a
residential colony as each sale deed has been
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allotted a unique plot number along with roads
earmarked in the site plans attached thereto.
10.It seems that at the time M.A. Baksh was
carrying out the process of the sale of the Subject
Land as a residential colony, he came across the
provisions of Andhra Pradesh Assigned Lands
(Prohibition of Transfers) Act of 1977 [Hereinafter,
‘1977 Act’] which prohibited transfer of land
assigned to landless poor by the Government.
Realizing the potential pitfall in carrying out the
sales, he applied for clarification through a letter
dated 18.09.1992 to the concerned Mandal Revenue
Officer and enquired about the applicability of the
1977 Act. The Mandal Revenue Officer vide a memo
dated 23.09.1992, responded to M.A. Baksh’s query
saying that:–
“The petitioner Sri M.A. Baksh, G.P.A.
Holder of Mr. Mylaram Jangaiah and
others is informed that as per written
permission issued by the Tahsildar,
Hyderabad West vide reference
No.A6/8524/80 to occupy an extent of
14300 acres out of Sy. No. 393 of
Manchirevulu village in form (G) under
rule 9(g) of Laouni rules, 1950 to Sri
Mylaram Jangaiah and (19) others,
Harijans of same village. Subsequently in
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1965 the said land was made Laouni
patta.in the name of the above 20
persons, and subdivided as Sy. No. 393/1
to 393/20 Ac.706gts., each individual.
As per rule 9(g) of the Laouni rules 1950
the written permission in form (G) is
issued only after confirmation of sale; The
sale of such lands is not hit by the
provision of A.P. Assignment lands
(Prohibition of Transfer) Act 1977.” (sic)
(Emphasis Applied)
11.Notwithstanding this clarification by the
Mandal Revenue Officer, some of the Assignees
cancelled the GPA executed in favor of M.A. Baksh
in October 1992, probably fearing that the state
authorities would cancel the allotment of the
Subject Land. They also issued a public notice
wherein they declared that any sale entered into by
M.A. Baksh on their behalf was not binding.
12.Fast forward a year and somewhere in
November 1993, the Police Department sent a
requisition for land in Manchirevula village to set up
operational headquarters and training centres for its
special forces, now known as ‘Greyhounds
Commando Force’. It was only when the revenue
authorities analysed their records that their
attention was drawn towards the Subject Land and
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the legal infirmities associated with it, starting the
saga of present legal tussle between the parties.
13.After that the office of the Collector, Ranga
Reddy District issued a show cause notice dated
28.03.1994 [Hereinafter, ‘First SCN’] proposing to
cancel the assignment of Subject Land. The relevant
extracts of the First SCN containing the grounds of
cancellation are to the following effect:–
“The issue was examined in details with
reference in rule position and other
aspect and found that the alleged
assignment is irregular, illegal and liable
to be cancelled on the basis of following
grounds:
(i)The FormG Certificate issued are
for temporary occupation and thereby
implementation in Falsalpatti 196162 is
illegal.
(ii)The alleged assignment ought to
have been processed under Assignment
Rule, 1958 instead of Laoni Rules, 1950.
(iii) The alleged assignment is in
contravention of the ban order of
assignment issued in G.O. Ms. No. 1222,
dated 29.06.1961.
(iv) After issue of FormG Certificate for
temporary occupation there is no Sub
Division took place and supplementary
Sethwar issued, therefore the alleged
assignment is not final and temporary
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occupation certificates cannot be treated
assignment pattas.
(v)That the land is unfit for cultivation
and thereby the alleged assignment is
irregular and indicate malafide intention.
(vi) The alleged assignees have not put
the land for cultivation and kept in fallow
and thereby they have violated the
condition laid down in Rule 19 of Laoni
Rules, 1950.
(vii) The alleged assignees while violating
the condition of assignment have
executed a G.P.A. in favour of Sri M.A.
Baksh authorizing him to sell the land. ”
(Emphasis Applied)
14.The Assignees fearing consequential
dispossession, approached the High Court which
vide its order dated 03.05.1994, held that the writ
petition was premature and directed them to file an
explanation within one week, but protected them
from dispossession in light of the pending show
cause proceedings. The Assignees in turn filed their
explanation before the Collector wherein they
submitted that assignment was valid as per the
applicable law and that there was no bar on sale of
the Subject Land.
15.Strangely, instead of the District Collector,
proceedings were entrusted to the District Revenue
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Officer who vide his order dated 15.09.1994 held
that the First SCN was unsustainable. On account
of this development, the District Collector through
an order dated 03.01.1995, exercised his suo motu
revisionary powers under Section 166B of the
Telangana Land Revenue Act of 1317 Fasli
[Hereinafter, ‘1317 Fasli Act’] and suspended the
order dated 15.09.1994 passed by the District
Revenue Officer pending further
examination/orders. Thereafter, the Collector sent a
letter to the Secretary, Revenue Department for
ratification of the order dated 03.01.1995, but since
no notice was given to Assignees as required under
Section 166B of 1317 Fasli Act, the Government
declined the request for ratification of the said
order. Ultimately, notices were issued to the
Assignees and the Government vide its memo dated
24.01.1996 ratified the order dated 03.01.1995. It
further directed that final orders be passed after
completion of the inquiry.
16.The Assignees filed separate writ petitions
against the Collector’s order dated 03.01.1995 as
well as the memo dated 24.01.1996, both of which
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were decided vide a common order of the Learned
Single Judge dated 01.09.1997 wherein the court
set aside the orders on the ground that the initiation
of revisional power under Section 166B of 1317
Fasli Act was an unreasonable and arbitrary
attempt to invalidate the assignment after an undue
delay of more than 34 years. It must be noted that
the intracourt appeal against the order dated
01.09.1997 was also dismissed by a Division Bench
of the High Court through its order dated
14.09.1998.
17.The State Government assailed the High Court
order dated 14.09.1998 before this Court and vide
judgement dated 28.04.2000 reported as Govt. of
A.P. v. Gudepu Sailoo
3
, the State’s appeal was
allowed to the extent that the proceedings
conducted before the District Revenue Officer which
culminated into the order dated 15.09.1994, were
held to be unsustainable. It was further held that
the proceedings should have taken place before the
Collector, particularly in view of the directions given
by the High Court in its order dated 03.05.1994.
3
Govt. of A.P. v. Gudepu Sailoo (2000) 4 SCC 625.
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Hence, the Collector was directed to complete the
proceedings initiated vide his order dated
03.01.1995 which was later on ratified by the memo
dated 24.01.1996. The relevant part of the
judgement dated 28.04.2000 of this Court reads as
follows:–
“We cannot subscribe to the view
expressed by the High Court in so far as
the order passed by the District Revenue
Officer is concerned. Since a mandamus
was issued to the Collector, Rangareddy
District, to hear and dispose of the
explanation, which was required to be
submitted by the respondents in reply to
the show cause notice issued to them, the
District Revenue Officer had no
jurisdiction to consider the matter in
violation of the direction of the High
Court. As a matter of fact, the
explanation to the show cause notice had
to be submitted before the Collector and
the Collector alone had to consider and
take a final decision in the matter. The
action initiated by the Collector and the
ratification∙of his order by the State
Government are matters which should
have been allowed to take final shape
instead of being challenged at the
interlocutory stage by the respondents.
That being so, there is no necessity of
going into the merits of the submissions
made by the learned counsel for the
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parties with regard to the provisions of
Section 166B and 166C of the Andhra
Pradesh (Telangana Area) Land Revenue
Act, 1317 Fasli.
We, therefore, dispose of this appeal
finally with the direction to the Collector
to complete the proceedings, initiated by
him by his order dated 3rd of January,
1995 as ratified by the Government by
its,order dated 24th of January, 1996, at
an early date in accordance with law.”
(Emphasis Applied)
18.Consequently, proceedings pursuant to the
First SCN were initiated afresh by the Collector by
issuing notice dated 17.08.2001 to the Assignees,
many among whom were now represented by the
Appellants, informing that the proceedings would be
taken up by the Joint Collector in exercise of powers
delegated by the Collector. The Appellants furnished
fresh explanation(s) on 27.08.2001 and
consequently the office of the Joint Collector passed
a resumption order dated 22.12.2001 in favour of
the State noticing that:–
“In view of the circumstances explained
above and since the assignment itself is
irregular and the assignees sold the land
in conttavention of the conditions of
assignment and also the assigned land
has become urbanized and no longer
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subserves the purpose of cultivation, I
find no reason either to upheld the orders
of the District Revenue Officer, Ranga
Reddy passed in Procds.No. D1/275/94
Dated:15.9.1994 or to revert back the
land in Sy.No.393/ 1 to 393/20 totally
measuring an extent of Ac.142∙39 of
Mancllerevula village of Rajendranagar
Mandal to the assignees. The land should
be remained as Government land.
Acoordingly the case is disposed off duly
setting aside the orders of District
Revenue Oflicer, Ranga Reddy District
passed in proceedings No. Dl/275/94
Dated:l591994.” (sic)
(Emphasis Applied)
19.The Joint Collector’s order dated 22.12.2001
came to be challenged before the High Court, which
vide its order dated 04.04.2002 opined that in view
of this Court’s judgement in Gudepu Sailoo
4
, the
Joint Collector had no jurisdiction to adjudicate the
First SCN and directed the District Collector to
conduct the proceedings and pass appropriate
orders after notice to all parties. Resultantly,
proceedings were conducted before the District
Collector wherein again resumption order dated
15.03.2003 was passed in favour of the State. It
must be noted that the reasoning provided in the
4
ibid.
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resumption orders dated 22.12.2001 and
15.03.2003 is more or less identical.
20.The Appellants laid a challenge to the
resumption order dated 15.03.2003 and vide its
order dated 21.04.2006, the High Court set aside
the same as well the First SCN, primarily for the
reasons as are summed up in the following
paragraphs of its judgment:–
“14. The principal ground on which the
assignments so
μght to be cancelled by
invoking the review powers under section
166B of the Act is execution of GPA by
the assignees in favour of the predecessor
in interest. As on this day, the GPA holder
is not alive and even if any power of
attorney exists, it ceases with his death.
Therefore, no cause survives for the
District Revenue Officer to take suo motu
review. The other question is whether the
assignments made in favour of the
petitioners and their predecessor interest
is contrary to the Rules then in existence.
That issue is into requircd to be examined
after a lapse of nearly 40 years. The Laoni
patta certificates came to be issued in
accordance with the provisions of Laoni,
Rules, 1950. Merely because those rules
came to be amended by substituting some
other rules cannot be a ground to exercise
suo mo to review by the District Revenue
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Officer or the District Collector under
Sec. 166B of the Act.
15. In view of the above discussion, I find
that the show cause notice issued by the
District Revenue Officer, R.R. District is
not legal dnd proper. When once the show
cause notice is set aside, the basis for
passing the order impugned in the writ∙
petitions by the Joint Collector canriot be
said to be well founded. Before parting
the case, I deem it appropriate to observe
that If there Is any contravention of the
conditions imposed in the assignment
order, the Government is always at liberty
to cancel the same In accordance with
the provisions of law.” (sic)
(Emphasis Applied)
21.Taking note of the abovereproduced liberty
granted by the High Court, the Deputy Collector
cumMandal Revenue Officer issued a fresh show
cause notice dated 11.12.2006 [Hereinafter,
‘Second SCN’] wherein the factum of the sale deeds
entered by M.A. Baksh in the capacity of GPA holder
of the Assignees was duly noticed and it was
asserted that the Subject Land was liable to be
resumed under the 1977 Act. The relevant part of
the Second SCN is as follows:–
“The Sale transaction above shown are
impermissible and void as same are in
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contravention of the provision of sub
section (2) of section3 of the Andhra
Pradesh assigned land (Prohibition of
Transfer) Act, 1977. As per the
prohibitions of the said Act there is
prohibition to sell the land assigned to
you and hence sale transaction above
referred are invalid.
As per the Section 4 of A.P. assigned
land (Prohibition of transfer) Act, 1977,
satisfied that the assignees are
contravened the provision of Subsectio
(1) of section 3 in respect of assigned
lands bearing Sy. No. 393/l to 393/20 of
Manchirevula Village. Hence you are
hereby show cause as to why the
scheduled land should not be resumed
into Govt. Possession as in such manner
as prescribed by law.” (sic)
Post the issuance of Second SCN, the
Appellants tendered explanation and proceedings
took place pursuant thereto.
22.Eventually, the Second SCN culminated into
the resumption order dated 27.01.2007, wherein it
was noted that the Assignees had alienated the land
to M.A. Baksh through GPA, who in turn sold the
land to subsequent purchasers in the form of
smaller plots. These transaction(s) were held to be in
contravention of Section 3(1), 3(2), 3(3) and 3(4) of
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the 1977 Act and accordingly, the Subject Land was
ordered to be resumed under Section 4 thereof. It
would also be relevant to mention that the
resumption order dated 27.01.2007 also noticed
that most of the Subject Land was still fallow and
unsuitable for cultivation as it was covered by large
boulders/rocks.
23.The Appellants assailed the resumption order
dated 27.01.2007 before the High Court in a writ
petition which came to be decided in their favour by
a learned Single Judge vide judgment dated
05.02.2010 primarily on two grounds – firstly that
the Second SCN and the resumption order dated
27.01.2007 raised the identical issues in respect of
Subject Land which stood already decided by the
High Court vide its order dated 21.04.2006. Hence,
proceedings emanating from the Second SCN were
barred by the principle of res judicata and an abuse
of process of law; secondly that the assignments
were governed by the Laoni Rules of 1950 instead by
the subsequent GOM 1122, as possession stood
granted way back in 1940 much earlier than the
date GOM 1122 came into force. It is also useful to
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mention that accordingly to the learned Single
Judge, the liberty granted in the previous High
Court order dated 21.04.2006 regarding
cancellation of Subject Land was only concerned
with `future contravention’ of the assignment
conditions.
24. Being piqued on account of the order of the
learned Single Judge, the State preferred an intra
court appeal before the Division Bench of the High
Court. The said writ appeal has been allowed in the
Respondents’ favour via the impugned judgement
whereby the resumption order dated 27.01.2007
stands upheld for the following reasons: –
a) The proceedings under the Second SCN were
not hit by the doctrine of res judicata or
constructive res judicata, as the same
concerned the sale deeds executed by M.A.
Baksh and the consequent action under the
1977 Act, which was not an issue decided by
the High Court vide its order dated 21.04.2006
whereby the First SCN was set aside.
b)The learned Single Judge had erroneously
construed the liberty granted in the order
dated 21.04.2006 in respect of fresh
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cancellation proceedings to be only for future
violation of assignment conditions as no such
inference could be drawn from the wording of
the said order. It was also held that this
interpretation virtually amounted to rewriting
the order dated 21.04.2006, especially in view
of the fact that the review petition against the
same, seeking to delete the relevant part
granting liberty was specifically dismissed by
the High Court.
c)The Subject Land was not alienable either
under the Laoni Rules of 1950 or under the
revised land assignment rules of 1958 and
hence it comes under the definition of
‘assigned land’ as provided in the 1977 Act.
The issue of applicability of regulatory regime
on the assigned land stood settled by this
Court’s judgement in Gudepu Sailoo
5
whose
relevant part in this context reads as follows:–
“….Thus, under the original Laoni
Rules, 1950 as also under the Revised
Policy published in 1958, the
alienation of the assigned land was
prohibited. While under the Laoni
Rules, 1950, the alienation or
5
Gudepu Sailoo (n 3).
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transfer without the previous
sanction of the Collector was
prohibited, under the Revised Policy,
it was clearly provided that though
the assigned lands would be heritable,
they would not be transferred…”
d)The Division Bench also distinguished the
decision of a coordinate bench of the High
Court in Letter sent from Plot No.338,
Parvant Nagar v. the Collector and District
Magistrate
6
wherein it was held that land
assigned under Rule 9 of Laoni Rules of 1950
by way of market value collection would not be
hit by the provisions of the 1977 Act
whereunder alienation of assigned land was
prohibited. It was specifically noted that the
Subject Land was granted free of cost to the
Assignees without any action or payment of
market value as envisaged under Form 9(G) of
the Laoni Rules of 1950 which was relied upon
by the Appellants. The Division Bench,
therefore, upheld the condition mentioned in
6
Letter sent from Plot No.338, Parvant Nagar v. the Collector and District
Magistrate 2008 SCC OnLine AP 477.
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the assignment itself which barred transfer
without the consent of the Collector.
e)It was noted that the 1977 Act was in force
when the GPA in favor of M.A. Baksh was
executed by the Assignees as well as when
M.A. Baksh executed the sale deeds in favour
of subsequent purchasers for the small plots of
land. Furthermore, it was held that
subsequent cancellation of the GPA in favor of
M.A. Baksh by some of the Assignees was
immaterial as the sale deeds executed by him
by then already constituted violation of the
assignment condition.
25.The aggrieved Appellants are now before this
Court.
B. CONTENTIONS
26.We have heard an array of learned senior
counsels representing different parties and perused
the documents produced on record. Their written
submissions have also been duly considered.
27.Leading the arguments on behalf of the
Appellants, Mr. Jaideep Gupta, learned senior
counsel made the following contentions First, that
the Single Judge Order was correct in concluding
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that the Second SCN was barred by the doctrine of
res judicata. He argued that the substratum of both
the First SCN and Second SCN is essentially
identical, i.e. violation in respect of the bar on the
alienability of Subject Land. Secondly, he argued
that when unoccupied land is permanently granted
or assigned under Section 54 of the 1317 Fasli Act
as done in the present case, then Section 58 of the
said Act expressly provided that the resultant
occupancy right shall be ‘deemed to be heritable and
transferable’. Even otherwise, he contended that for
any restriction on the transfer of Subject Land
under the Special Laoni Rules to be applicable, a
separate notification under Section 58A of 1317
Fasli Act was a necessary prerequisite as mentioned
in the rules itself. For ease of analysis, the relevant
provisions of the 1317 Fasli Act are reproduced
below:–
“54. Procedure for acquiring unoccupied
land :
(1) When any person is desirous of taking
unoccupied land he shall before
occupying the land submit a petition to
the Tahsildar and obtain his permission
in writing.
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(2) On such petition being submitted, the
Tahsildar may, in accordance with the
rules made by the Government in this
behalf from time to time, give permission
in writing for occupation.
58. Occupancy right is heritable and
transferable: An occupancy right to land
shall be deemed to be heritable and
transferable.
58A. Sanction of Collector for transfer of
occupied land compulsory in certain
cases:
(1) Notwithstanding anything contained in
the preceding section the Government
may by Official Gazette notify in respect
of any village or tract of the area to which
this Act extends that the right of
occupation of any land under section 54
given after the date of the notification
shall not be transferable without
obtaining the previous sanction of the
Collector.
(2) The Government may also at its
discretion from time to time notify by
Official Gazette, that any part or person
or class of persons of such village or tract
of the area to which this Act extends to
which the provisions of subsection (1)
have been made applicable shall be
exempt from the said provisions.”
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Similarly, we may also refer to the relevant
rules regarding ‘Special Laoni’ as mentioned in the
Laoni Rules of 1950 which are as follows:–
“ Special Laoni
15. No lands in the special area notified
under Section 58Aof A.P. (Telangana
Area) Land Revenue Act, shall be assigned
except in accordance the the following
rules:
(a) The object of the special laoni is to
make land available in certain areas to
such landless persons of agricultural and
backward classes as may be notified from
time to time, and who have not sufficient
means to purchase land either at the
ordinary laoni auctions or otherwise. The
selection of the most deserving applicant
should be made by Tahsildar after due
publicity in the village or at the place
fixed for the allotment proceedings.
(b) Special laoni, proceedings may
ordinarily take place twice a year in the
months of April and September, and may
also take place at other times when the
Tahsildar is visiting the locality.
16. In making selection for special laoni
preference shall be given to persons who
reside in the village, but do not possess
any patta or shikmi rights in any land in
the village or elsewhere or who have
insufficient land but possess bullocks and
agricultural implements. Persons who are
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already cultivating lands are "asamis" or
"bataidars" shall be given preference over
other labourers.
xxxx
19. The allottee of the land shall prepare
the land for cultivation within three years
of being placed in possession and
commerce cultivation of the land
thereafter. The pattadar may be rejected
by the order of the Collector for breach of
any of the above conditions:
Provided that he has been served with a
notice calling upon him to comply with
the conditions which he has violated and
he fails to comply with it within three
months of the date of service thereof. If
lands has been transferred in
contravention, the conditions, the
Collector may eject the transferee.”
28.Thirdly, Mr. Gupta, learned senior counsel
drew our attention to this Court’s judgement in
Gudepu Sailoo
7
which we have already reproduced
at Para 17 above, to contend that the impugned
decision erroneously concuded that this Court had
already decided the issue of alienability. He
strenuously argued that the decision was not on
merit as this Court held that the challenge was
premature and remanded the dispute back to the
7
Gudepu Sailoo (n 3).
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District Collector. Fourthly, by relying on the
decision of the High Court in G.V.K. Rama Rao vs
Bakelite Hylam Employees CoOp.
8
, it was
contended that since the Subject Land was governed
by Laoni Rules of 1950, which stipulated no
condition regarding nonalienability, the same
would not come under the definition of ‘assigned
land’ as given under the 1977 Act. In other words, it
was submitted that the 1977 Act has no application
over the Subject Land. Fifthly, it was urged that
evoking suo motu revisionary powers by the revenue
authorities as done in the present case is illegal as
the same must be exercised within a reasonable
time or else it would render the exercise of such
power arbitrary. Reliance in this regard was placed
on another decision of the High Court in S.
Santhanam v State of A.P.
9
, pointing out that the
Special Leave Petition against the aforecited decision
was rejected by this court vide order dated
19.08.2011 passed in SLP (C) No. 16545 of 2006.
Finally, Mr. Gupta submitted that the Subject Land
8
G.V.K. Rama Rao vs Bakelite Hylam Employees CoOp.1997 SCC OnLine
AP 200, para 18.
9
S. Santhanam v State of A.P. 2006 SCC OnLine AP 145.
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has been in possession with the Assignees from
1953 as noted in the High Court’s order dated
21.04.2006 as well as the documents which have
been brought on record and therefore even if the
Temporary Pattas were given in 1961, the applicable
law vis
àvis the assignment should relate back to
1953 itself.
29.Turning up next for the Appellants was learned
senior counsel, Mr. Huzefa Ahmadi who while
reiterating the arguments made by Mr. Gupta, made
the following additional submissions – Firstly that
requirements for application of Section 58A of the
1317 Fasli Act were not met, which are as follows –
(a) there must be a notification in the official gazette;
(b) the said notification must be in respect of ‘any
village or tract’ to which the 1317 Fasli Act was
extended and (c) such land can be transferred with
the permission of the Collector. Hence, it was
contended that for any bar in respect of alienability
to be applicable through any policy, the
requirements of Section 58A are sine qua non.
Secondly, he argued that even the policies which are
stated to have prohibited alienation are not
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applicable independently. With reference to the
Circular dated 08.11.1954 [Hereinafter 1954
Circular], it was submitted that the same was not
retrospectively applicable and in any event, it
referred to Section 58A only in respect of lands
which were granted for ‘Eksala’ (one year)
cultivation or to lands which have been set apart as
provided in Paragraph 8 of the 1954 Circular. It
would thus be appropriate to reproduce the relevant
contents of the 1954 Circular which are to the
following effect:–
“…..The following Circulars regarding the
assignment and grant of Patta of
unoccupied Government Lands to the
Harijans, Backward Classes and Landless
poor persons have been issued from time
to time.
xxxx
As the orders issued through various
circulars were creating confusion in their
proper implementation, the following
consolidated orders are hereby issued
after reconsidering the various orders
issued through the aforesaid circulars.
xxxx
A. Lands under Cultivation on the Basis of
Permission for Eksala Cultivation
1. In case of occupation by the Harijans,
Scheduled Castes, Backward Classes, of
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poor landless persons, patta shall, subject
to the provisions contained in Section 58
A of the A.P. (Telangana Area) Land
Revenue Act, be granted free of cost to
the extent of one family holding inclusive
of the land already owned by occupants
and where the land is in excess thereof,
they shall be evicted from the excess area
xxxx
8. Villagewise statements of all
Porampoke, Gut, Kharjkata, Gairan lands
excluding ten percent, fit for grazing and
lands excised from forest, shall be
prepared and all such lands shall first be
set apart as are required for public or
Government purposes or on which, there
arc Sendhi, Toddy or Gulmohwa trees or
which are required to be to be set apart
for such purposes or on which there is a
Kancha, the grass of which is auctioned
every year. The remaining lands including
those from which occupants have been
evicted under para 3 shall under special
Laoni be assigned on patta to the
Scheduled Castes, Harijans, Backward
Classes and poor landless persons who are
bonafide agriculturists at the rate of one
family holding per family, subject to the
provisions contained in Section 58A of
the A.P. (Telangana Area) Land Revenue
Act. As far as possible each family shall be
entitled to patta shall primarily be
assigned lands which were being
cultivated by them…..”
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In the same breadth, Mr. Ahmadi contended
that all remaining policies regarding assignments,
namely, G.O. dated 25.07.1958 [Hereinafter, ‘1958
Circular’] which was subsequently clarified by G.O.
dated 26.08.1958 [ Hereinafter, ‘1958
Clarification’] would not be attracted, for the
assignment being of 1953 itself, these policies would
have no retrospective effect and/or these circulars
themselves excluded the Subject Land. The relevant
extracts of the 1958 Circular are as follows:–
“6. Terms and conditions of assignment –
(i) The assignment of lands shall be free of
market value;
(ii) Land assigned shall be heritable but
not alienable;
(iii) Lands assigned shall be brought under
cultivation within three years;
(iv) No land tax shall be collected for the
first three years except for the extent, if
any, which has already been brought
under cultivation. Water rate shall,
however, be charged if the lands are
irrigated with Government water; and
(v) Cultivation should be by the assignee
or the members of his family or with
hired labour under the supervision of
himself or a member of his family.
xxxx
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15. Pending assignments : All assignment
proceedings now pending or arising here
after shall be disposed of in accordance
with these rules.”
(Emphasis Applied)
Similarly, the relevant part of the 1958
Clarification is to the following effect:
“7. Pending cases:
(a) lands to which Circular No. 14, dated
8th November, 1954 issued by the
erstwhile Hyderabad Government and the
other Circulars issued in clarification of it
were applicable should be dealt with
under those circulars but not under the
new rules of assignment Issued in G.O.
Ms. No. 1406, Rev, Dt. 25
th
July, 1958:
Provided that the extent of land to
be assigned in all such cases shall not
exceed the limits of 6 acres of dry or 2
1/2 acres of wet land inclusive of the land
already passed
(b) Cases in which the right of patta was
given to the occupants according to
Circular No. 14, and other circulars issued
in clarification of it and cases in respect
to which there is evidence in Government
Records either of application presented
by the encroacher for grant of patta or of
his possession of the lands should not be
treated as pending cases but should be
decided under Circular No. 14 and other
circulars issued in clarification of it.”
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(Emphasis Applied)
It was, thus, submitted that provisions of 1958
Circular introducing the twin conditions in respect
of alienation and cultivation, would not be
applicable to the Subject Land on account of the
1958 Clarification which purportedly brought the
Subject Land within the purview of the 1954
Circular.
30.Thirdly, Mr. Ahmadi argued that Section 4 of
the 1977 Act provided for reassignment of the land
in case of contravention of Section 3 of the 1977 Act
instead of resumption as was ordered by the
revenue authorities in this case. Fourthly, it was
submitted that evocation of suo motu revisionary
powers through the Second SCN was not
permissible as the sale deeds were of 1992 while
Second SCN was of 2006, which would violate the
temporal aspects as argued by Mr. Gupta, and,
thus, the action was ex facie illegal.
31.Learned senior counsel, Mr. Niranjan Reddy
assisted by learned counsel Mr. Krishna Dev
Jagarlamudi also appeared on behalf of the
Appellants. While lending his support to the
abovementioned arguments, he made the following
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submissions – Firstly, that the issue of applicable
law over the Subject Land can no longer be opened
in light of the High Court’s order dated 21.04.2006
wherein it was categorically held that the State
could not agitate over the applicability of correct
regulatory regime after a gap of 30 years post
assignment. According to him, the Laoni Rules of
1950 were held to be applicable over the Subject
Land. In support of this, he also referred to the
Mandal Revenue Officer’s clarification vide his
memo dated 23.09.1992. Secondly, he took pains to
go through the entirety of sale deeds executed by
M.A. Baksh to point out that out of the originally
assigned area measuring 142 Acres 39 Guntas, only
about 10 Acres land was sold through these sale
deeds. In other words, the contravention of
provisions of 1977 Act was limited to this area and
an order of resumption could not have been passed
in respect of the entire Subject Land. Lastly, he
submitted that even if the Subject Land is resumed,
the Appellants are entitled to compensation as per
the SevenJudge bench decision of the High Court
in LAO cum Revenue Divisional Officer, Chevella
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Division v Mekala Pandu
10
, read with the right to
property duly protected under Article 300A of the
Constitution.
32.Supplementing the Appellants, Mr. Ranjit
Kumar, learned senior counsel raised the following
contentions – Firstly, that in the counter affidavit
filed by the impleaded Respondent, i.e. Greyhounds,
a plea has been taken that they have taken
possession of the Subject Land in 2003 itself. If this
was the case, then where was the need to issue the
Second SCN in 2006 and to take this contrary
stance by them. Secondly, he contended that in all
the sale deeds entered by M.A. Baksh as a GPA
holder, he is mentioned as the vendee which
showcases that the Appellants were unaware or
were not actively involved in carrying out sale of the
Subject Land.
33.In the end, Mr. Tripurari Ray learned counsel
appearing on behalf of the Appellants raised a
contention for the first time at this stage by relying
on the decision of this Court in Yeshwant Deorao
10
LAO cum Revenue Divisional Officer, Chevella Division v Mekala Pandu
2004 SCC OnLine AP 217.
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Deshmukh v Walchand Ramchand Kothari
11
. He
contended that the Laoni Rules of 1950 created an
artificial classification among two classes – namely
those who were granted regular patta under Rule 2
to 14 of these Rules through the bidding process
which was alienable and the landless or poor people
who were granted special patta under Rule 15 to 24
of Laoni Rules of 1950 with a bar on the alienability
and obligation of an Assignee to cultivate the land.
He contended that this amounted to ‘class
legislation’ which discriminated against the
Assignees and violated their fundamental rights
under Article 14 of the Constitution.
34.Repelling the combined submissions made on
behalf of the Appellants, Mr. K.K. Venugopal,
learned senior counsel for the Respondent
Greyhounds, has raised the following contentions –
Firstly, that the Temporary Pattas granted only a
limited occupancy right to the Assignees in the form
of a temporary license to occupy and, it was not a
permanent assignment per se. Secondly, the claim of
the Appellants that they were cultivating the land is
11
Yeshwant Deorao Deshmukh v Walchand Ramchand Kothari 1950 SCC
766.
C.A. No.___of 2023 @ SLP (C) NO. 2523 OF 2022 ETC. ETC. Page 40 of 97
baseless as they were never interested in even
holding the possession over the Subject Land itself.
In this respect, he referred to the Panchnama
conducted by the revenue officials in the years 2003
and 2007 wherein it was noted that no cultivation
was going on at the Subject Land. Thirdly, he
contended that under the regular assignment as per
Laoni Rules of 1950, an auction mechanism was in
place, and it was only through this process that an
alienable right could be granted in respect of the
assigned land. In this regard, he relied upon Form
9(G) under which the Subject Land was granted to
Assignees and invited our attention to the relevant
part indicative of the auction mechanism. He further
submitted that the grant of Subject Land was under
the Special Loani, which included the valid
condition of nonalienability. Fourthly, he submitted
that the finding of possession as well as the
Appellants’ claim that applicable rules in respect of
assignment should be that of 1953 is completely
unsustainable. Learned senior counsel has taken us
through the documents on record to showcase that
the assignment only happened on 21.10.1961, i.e.,
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when Temporary Pattas were granted. He further
maintained that all other documents only discussed
the grant of sanction of the Subject Land and the
procedure pending before any kind of assignment
could take place. Fifthly, he submitted that Mr.
Reddy’s argument concerning limited contravention
of the 1977 Act is factually incorrect in light of the
language employed in the GPA executed in favour of
M.A. Baksh, which categorically noted that the said
GPA was in respect of the entirety of Subject Land.
Finally, he argued that the Subject Land is resumed
for a ‘public purpose’, i.e. training of the elite
commando force, which has been instrumental in
suppressing the Naxalite movement in the region.
He also submitted that the Assignees were hand in
glove with the land mafia as well as the corrupt
revenue officers, who had set their sights on the
Subject Land.
35.Mr. C.S. Vaidyanathan, learned senior counsel
appearing on behalf of Respondent State of
Telangana, supported the contentions made by Mr.
Venugopal and has supplemented the same by
highlighting the following additional points – Firstly
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that the High Court order dated 21.04.2006 only
discusses the issue of raising the objection of
irregularity in assignment and doesn’t decide the
issue of applicable law per se. To say it differently, it
only bars the government from resuming the land
after thirty years on the ground that the Subject
Land was assigned under an incorrect law, but it
nowhere resolves the legal regime under which the
conditions applicable on the assignment are to be
governed. He supported the reasoning assigned in
the impugned judgment of the Division Bench that
the doctrine of res judicata or constructive res
judicata does not bar the Second SCN and the
consequent proceedings. Secondly, he argued that
the assignment of Subject Land was still governed
by the twin condition of nonalienability as well as
the obligation of cultivation by the Assignees.
36.Mr. V. Giri, learned senior counsel appearing
on behalf of the State of Telangana, has wrapped the
arguments by reiterating the stance taken by both
Mr. Venugopal and Mr. Vaidyanathan. Before noting
his submissions, it would be pertinent to note that
Mr. Giri has taken a contrary stance in respect of
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Mr. Venugopal’s submission that only temporary
occupancy right had been created in favour of the
Assignees. Mr. Giri has fairly admitted that the
pattas issued in 1961 were in furtherance of an
assignment only. Thereafter, he has argued Firstly
that the Subject Land was governed by the G.O.
dated 25.07.1958 as well as the GOM 1122, which
barred alienation by the Assignees as noted above.
He submitted that even otherwise, the assignment
was in the nature of Special Laoni and was governed
by the condition of bar on sale without Collector’s
permission as well as cultivation of the land. Both
these conditions were incorporated in the
Temporary Pattas issued under Form 9(G), which
also reproduced Rule 19 as applicable to Special
Laoni. He submitted that even though the applicable
law changed, the format under which assignments
were granted to landless individuals remained the
same, i.e. Form 9(G). In other words, he argued that
though the Temporary Pattas granted in the present
case to the Assignees erroneously mentioned that
the form was issued under Laoni Rules of 1950, the
pattas were in fact, governed by the revised legal
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regime. Secondly, he urged that the prohibition on
alienability as introduced by the 1977 Act was
retroactive in effect, and the same has been upheld
in a full bench decision of the High Court in
Dharma Reddy v SubCollector, Bodhan
12
.
Finally, building on the arguments of Mr. Venugopal
in respect of the involvement of the alleged land
mafia, he referred to a Memorandum of
Understanding entered into between some of the
Appellants and a private real estate company for the
sale of the Subject Land and also informed that a
First Investigation Report has also been filed on this
behalf by the revenue authorities against the
accused which include some of the Appellants.
37.During rebuttals, Dr. Abhishek Manu Singhvi,
learned senior counsel on behalf of the Appellants
reiterated the arguments made in respect of Section
58A of the 1317 Fasli Act. He furthermore
submitted that even if there is a restriction on the
transfer of land independent of Section 58A of the
1317 Fasli Act, as contained in the Temporary
Pattas regarding need of permission of the Collector,
then such restriction indicates a permissive regime
12
Dharama Reddy v SubCollector, Bodhan
1986 SCC OnLine AP 141.
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instead of a prohibitory regime which is a necessary
corollary for invoking the provisions of 1977 Act. He
vehemently reiterated that the Subject Land doesn’t
come under the ambit of the term ‘assigned land’ as
defined under the 1977 Act.
C. ANALYSIS
38.Before we analyse the rival contentions raised
by the parties, it would be appropriate to broadly
highlight the issues which arise for our
consideration:–
a)Whether the proceedings emanating out of the
Second SCN are barred by the doctrine of res
judicata or constructive res judicata?
b)Whether the exercise of suo motu revisionary
powers while issuing the Second SCN is bad in
law?
c)What is the law governing the assignment of
the Subject Land and whether the same
contained any bar in respect of alienation?
d)Whether the assignment of Subject Land
comes under the purview of 1977 Act?
e)If question No.(d) is answered in positive,
would the entirety of Subject Land or only a
part thereof be considered to have violated the
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1977 Act in light of the sale deeds executed by
M.A. Baksh as the GPA holder?
f)Whether the Appellants are entitled to any
compensation on account of the resumption
order dated 27.01.2007?
C.1 THE APPLICATION OF DOCTRINE OF RES
JUDICATA
39.At the outset, we would like to highlight that
since the Second SCN doesn’t speak about the
violation of assignment condition regarding
cultivation, it would not be expedient to adjudicate
or comment on the same. Coming back to the issue
of res judicata based upon the allegation of
alienability and its legal consequences, it would be
prudent to reproduce the reasoning contained in the
impugned judgement which is as follows:–
“17. In the considered opinion of this
Court, the issues involved in
W.P.Nos.13165 and 23639 of 2003 and
the proceedings involved in the present
writ petition are different. In
W.P.Nos.13165 and L.3639 of 2003, the
issues raised therein pertained to the
legality of the assignment orders issued
in favour of the respondents/assignees
C.A. No.___of 2023 @ SLP (C) NO. 2523 OF 2022 ETC. ETC. Page 47 of 97
and the execution of the GPA in favour of
one M.A.Baksh to transfer the lands and
consequent violation of the assignment
orders. The proceedings in the aforesaid
cases were by way of suo motu revision
under Section 166B of the Land Revenue
Act, 1317F and the High Court has
answered that the legality of the
assignment orders need not be gone into
after forty years and the cause of action
regarding the execution of GPA does not
survive since the GPA holder is∙ not alive.
On the contrary, the issue involved in the
present writ petition deals with the
proceedings issued by the Mandal
Revenue Officer (W.P.No.3634 of 2007)
relates to the execution of sale deeds by
GPA holder in favour of. several persons
and the action taken under Act No.9 of
1977. As many as 71 sale deeds were
executed in respect of the assigned
lands…..
xxxx
18. Meaning thereby in respect of
assigned lands, sale deeds were executed
which were impermissible in law. The
aforesaid issue was never the subject
matter of earlier litigation and therefore,
by no stretch of imagination, it could
have been held by the learned Single
Judge that the proceedings dated
27.01.2007 are hit by res judicata.”
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40.The reasoning assigned by the Division Bench
of the High Court is, thus, founded on the premise
that the cause of action in the Second SCN is
different from the First SCN. In response to the
same, Appellants have extensively referred to the
resumption order dated 10.05.2003 which was
passed in furtherance of the proceedings conducted
in First SCN to state that the same actively
considered the issue of the sale deeds executed by
M.A. Baksh as well the contravention of 1977 Act. It
was urged that since the First SCN was set aside by
the High Court through its order dated 21.04.2006,
the observations in the resumption order dated
10.05.2003 would effectively merge with the findings
of the High Court order dated 21.04.2006 and
therefore the Second SCN alleging identical
violations should be held to be barred by the
doctrine of res judicata.
41.However, we do not find ourselves in
agreement with this line of thought for the precise
reason that the High Court in its order dated
21.04.2006 had emphatically held that the First
SCN was issued without jurisdiction and set the
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same aside, instead of dealing with resumption
order dated 10.05.2003 on merits. In effect, the
resumption order dated 10.05.2003 was held to be a
nullity. Therefore in light of the settled law as
expounded by this Court in A. Jithendernath v.
Jubilee Hills Coop. House Building Society
13
,
doctrine of res judicata would not be applicable as
an order being a nullity never existed in the eyes of
the law.
42.Coming to the issue of the finding in High
Court’s order dated 21.04.2006 with respect to the
demise of M.A. Baksh making the GPA redundant, it
is may be noticed that the same is materially
different from the violations as alleged in the Second
SCN and held in the impugned order. On closer
scrutiny, we may point out that the aforesaid
observation regarding the GPA executed in favour of
M.A. Baksh was not a fundamental determination
but only a collateral determination. In this context,
the decision of this Court in Pawan Kumar
13
A. Jithendernath v. Jubilee Hills Coop. House Building Society (2006) 10
SCC 96.
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Gupta v. Rochi Ram Nag Deo
14
may be usefully
cited which observes that:–
“16. The rule of res judicata incorporated
in section 11 of the Code of Civil
Procedure (CPC) prohibits the Court from
trying an issue which “has been directly
and substantially in issue in a former suit
between the same parties”, and has been
heard and finally decided by that Court. It
is the decision on an issue, and not a
mere finding on any Incidental question
to reach such decision, which operates as
res judicata….”
(Emphasis Applied)
43.By now it’s a globally settled principle of
common law jurisprudence that only determinations
which are fundamental would result in the
application of the doctrine of res judicata.
15
Only
those findings, without which the Court cannot
adjudicate a dispute and also form the vital cog in
the reasoning of a definite conclusion on an issue on
merits, constitute res judicata between the same set
of parties in subsequent proceedings. However, in
the process of arriving at a final conclusion, if the
Court makes any incidental, supplemental or non
essential observations which are not foundational to
14
Pawan Kumar Gupta v. Rochi Ram Nag Deo (1999) 4 SCC 243.
15
Justice KR Handley, Spencer Bower, Turner and Handley: The Doctrine
of Res judicata (3rd
edn, LexisNexis Butterworths, 1996) pages 103107.
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the final determination, the same would not tie
down the hands of courts in future.
44.The principle in respect of fundamental
determination has been explicitly discussed by this
Court in Sajjadanashin Sayed Md. B.E. Edr. v.
Musa Dadabhai Ummer
16
through the following
paragraph:–
“16. Spencer Bower and Turner on The
Doctrine of Res judicata (2nd Edn., 1969,
p. 181) refer to the English and Australian
experience and quote Dixon, J. of the
Australian High Court in Blair v. Curran
[(1939) 62 CLR 464, 553 (Aus HC)] CLR at
p. 553 to say:
“The difficulty in the actual
application of these
conceptions is to distinguish
the matters fundamental or
cardinal to the prior decision
on judgment, or necessarily
involved in it as its legal
justification or foundation,
from matters which, even
though actually raised and
decided as being in the
circumstances of the case the
determining considerations, yet
are not in point of law the
16
Sajjadanashin Sayed Md. B.E. Edr. v. Musa Dadabhai Ummer (2000) 3
SCC 350.
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essential foundation of a
groundwork of the judgment.”
The authors say that in order to
understand this essential distinction, one
has always to inquire with unrelenting
severity — is the determination upon
which it is sought to find an estoppel so
fundamental to the substantive decision
that the latter cannot stand without the
former. Nothing less than this will do. It
is suggested by Dixon, J. that even where
this inquiry is answered satisfactorily,
there is still another test to pass: viz.
whether the determination is the
“immediate foundation” of the decision
as opposed to merely “a proposition
collateral or subsidiary only, i.e. not more
than part of the reasoning supporting the
conclusion”. It is well settled, say the
above authors, “that a mere step in
reasoning is insufficient. What is required
is no less than the determination of law,
or fact or both, fundamental to the
substantive decision”.
(Emphasis Applied)
45.The effective test to distinguish between a
fundamental or collateral determination is hinged
on the inquiry of whether the concerned
determination was so vital to the decision that
without which the decision itself cannot stand
independently. Any determination, despite being
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deliberate or formal, cannot give rise to application
of the doctrine of res judicata if they are not
fundamental in nature. On a plain reading of the
High Court’s order dated 21.04.2006 in conjugation
with the application of the test formulated above, we
find that the observation in respect of GPA in the
said order was indeed a mere collateral finding. We
say so for the reason that the order dated
21.04.2006 primarily dealt with the evocation of suo
motu revisionary powers under Section 166B of the
1317 Fasli Act for issuing the First SCN and not the
allegations regarding violation of assignment
conditions. In fact, the First SCN was held to be bad
in law and without jurisdiction because it was
primarily issued on the ground of irregularity by
stating that the Subject Land was erroneously
assigned under the old rules and that it sought to
disturb the assignment after a period of more than
thirty years. This was held to be in contravention to
the settled law for evoking suo motu revisionary
powers under Section 166B of the 1317 Fasli Act
which is the sole fundamental determination by the
High Court in its order dated 21.04.2006.
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Resultantly, the finding that the GPA was rendered
redundant on account of the demise of M.A. Baksh
was only collateral in nature and is not hit by the
doctrine of res judicata.
46.The other aspect which needs our attention is
whether the second SCN would be barred by the
extended doctrine of constructive res judicata. The
said doctrine has been formulated over the time by
courts as a part of public policy to prevent abuse of
process of courts and to bring finality to the judicial
pronouncements. This court in State of UP v.
Nawab Hussain
17
eloquently explained this
principle:–
“3. The principle of estoppel per rem
judicatam is a rule of evidence. As has
been stated in Marginson v. Blackburn
Borough Council [(1939) 2 KB 426 at p.
437] , it may be said to be “the broader
rule of evidence which prohibits the
reassertion of a cause of action”. This
doctrine is based on two theories: (i) the
finality and conclusiveness of judicial
decisions for the final termination of
disputes in the general interest of the
community as a matter of public policy,
and (ii) the interest of the individual that
he should be protected from
17
State of UP v. Nawab Hussain (1977) 2 SCC 806.
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multiplication of litigation. It therefore
serves not only a public but also a private
purpose by obstructing the reopening of
matters which have once been
adjudicated upon. It is thus not
permissible to obtain a second judgment
for the same civil relief on the same cause
of action, for otherwise the spirit of
contentiousness may give rise to
conflicting judgments of equal authority,
lead to multiplicity of actions and bring
the administration of justice into
disrepute. It is the cause of action which
gives rise to an action, and that is why it
is necessary for the courts to recognise
that a cause of action which results in a
judgment must lose its identity and
vitality and merge in the judgment when
pronounced. It cannot therefore survive
the judgment, or give rise to another
cause of action on the same facts. This is
what is known as the general principle of
res judicata.
4. But it may be that the same set of facts
may give rise to two or more causes of
action. If in such a case a person is
allowed to choose and sue upon one cause
of action at one time and to reserve the
other for subsequent litigation, that
would aggravate the burden of litigation.
Courts have therefore treated such a
course of action as an abuse of its process
and Somervell, L.J., has answered it as
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follows in Greenhalgh v. Mallard [(1947)
All ER 255 at p. 257] :
“I think that on the
authorities to which I will
refer it would be accurate to
say that res judicata for this
purpose is not confined to the
issues which the court is
actually asked to decide, but
that it covers issues or facts
which are so clearly part of
the subjectmatter of the
litigation and so clearly could
have been raised that it would
be an abuse of the process of
the court to allow a new
proceeding to be started in
respect of them.”
This is therefore another and an equally
necessary and efficacious aspect of the
same principle, for it helps in raising the
bar of res judicata by suitably construing
the general principle of subduing a
cantankerous litigant. That is why this
other rule has some times been referred
to as constructive res judicata which, in
reality, is an aspect or amplification of
the general principle.”
(Emphasis Applied)
47.The doctrine of constructive res judicata will
not be applicable in the present case for the simple
reason that the issues raised in the Second SCN
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were never adjudicated upon in the first place as
explained above. The plea that the same should
have been raised in the earlier proceedings, is
irrelevant in light of the liberty granted by the High
Court in its order dated 21.04.2006 whereby the
Revenue authorities were expressly permitted to
initiate fresh proceedings for violation of assignment
conditions. The Division Bench of the High Court is
therefore right in holding that this liberty was not
for ‘future contraventions only’ as perceived by the
Single Judge in his order dated 05.02.2010, for it
would render the liberty granted in order dated
21.04.2006 as obsolete. We thus hold that in light of
the liberty granted by the High Court vide order
dated 21.04.2006, the Second SCN would neither
constitute an abuse of process of court nor will
attract the doctrine of constructive res judicata.
48.In light of the above discussion and
observations, we hold that the proceedings
emanating out of the Second SCN are not barred by
the doctrine of res judicata or the extended doctrine
of constructive res judicata.
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C.2 THE EXERCISE OF SUO MOTU REVISIONARY
POWERS
49.The Appellants have strenuously contended
that evocating suo motu revisionary powers and
issuing the Second SCN was bad in law as the same
was initiated after more than 45 years when the
Subject Land was initially assigned and about more
than 15 years after the sale deeds were executed. At
this stage, we firstly refer to the following
observations made by this Court in
Ibrahimpatnam Taluk Vyavasaya Coolie
Sangham v. K. Suresh Reddy
18
in respect of
exercise of suo motu revisionary powers:–
“9. …… Exercise of suo motu power
depended on facts and circumstances of
each case. In cases of fraud, this power
could be exercised within a reasonable
time from the date of detection or
discovery of fraud. While exercising such
power, several factors need to be kept in
mind such as effect on the rights of the
third parties over the immovable property
due to passage of considerable time,
change of hands by subsequent bona fide
transfers, the orders attaining finality
under the provisions of other Acts (such
18
Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v. K. Suresh Reddy
(2003) 7 SCC 667.
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as the Land Ceiling Act). Hence, it
appears that without stating from what
date the period of limitation starts and
within what period the suo motu power is
to be exercised, in subsection (4) of
Section 50B of the Act, the words “at any
time” are used so that the suo motu
power could be exercised within
reasonable period from the date of
discovery of fraud depending on facts and
circumstances of each case in the context
of the statute and nature of rights of the
parties. Use of the words “at any time” in
subsection (4) of Section 50B of the Act
cannot be rigidly read letter by letter. It
must be read and construed contextually
and reasonably. If one has to simply
proceed on the basis of the dictionary
meaning of the words “at any time”, the
suo motu power under subsection (4) of
Section 50B of the Act could be exercised
even after decades and then it would lead
to anomalous position leading to
uncertainty and complications seriously
affecting the rights of the parties, that
too, over immovable properties. Orders
attaining finality and certainty of the
rights of the parties accrued in the light
of the orders passed must have sanctity.
Exercise of suo motu power “at any time”
only means that no specific period such
as days, months or years are not ( sic )
prescribed reckoning from a particular
date. But that does not mean that “at any
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time” should be unguided and arbitrary.
In this view, “at any time” must be
understood as within a reasonable time
depending on the facts and circumstances
of each case in the absence of prescribed
period of limitation.”
(Emphasis Applied)
50.It is a matter of record that the Second SCN
pertains to alleged violation of assignment
conditions by transferring the ownership rights
through sale deeds executed in the year 1992.
However, the period till 2006, in our considered
opinion, could not be counted because the parties
were engaged in litigation pursuant to the First SCN
and it was only after the liberty was accorded by the
High Court in its order dated 21.04.2006 that the
Second SCN could be issued. We have already
discussed in great detail the reasons behind the
grant of said liberty and the same need not be
reiterated. In the facts and circumstances of this
case and taking note of the chronological events, we
are satisfied that the exercise of suo motu
revisionary power while issuing the Second SCN was
not vitiated on account of inordinate delay as
claimed by the Appellants.
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C.3 THE APPLICABLE LAW ON ASSIGNED LANDS
51.Once we have determined the validity of the
Second SCN in affirmative, the next question that
falls for our consideration is whether the subject
land was assigned in the year 1953 as claimed by
the Appellants or in 1961 when the Temporary
Pattas were issued. However, before examining the
said point, we express our inability to accept the
contention made by Mr. Venugopal, learned senior
counsel in respect of the nature of occupancy rights
granted to the Assignees. On a plain reading of the
recitals contained in the relevant documents,
particularly the Temporary Pattas, First and Second
SCNs and also the stand taken by Mr. Giri, we have
no reason to doubt that the grant of Subject Land
was in the nature of an assignment and not in any
form of limited occupancy right.
52. Coming now to the issue of the date of
assignment, we agree entirely with the Respondent’s
stance that the actual assignment took place only at
the time of issuance of Temporary Pattas and not at
any point prior thereto. On perusal of the
documents brought on record, which are merely
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collection of interdepartmental correspondence
before the issuance of Temporary Pattas, we find
that the assignment process was still underway. The
Appellant’s reliance on the document dated
28.10.1953 is unfounded as the same only
communicated the sanction by the executive and
nothing else. In fact, the letter dated 04.06.1960
brings out the fact that the area of the sanctioned
land was to be reduced to 142 Acres and 39 Guntas
and then only was to be assigned. In this regard,
this Court has repeatedly held and recently
reiterated again in Mahadeo v. Sovan Devi
19
that:–
“14. It is well settled that inter
departmental communications are in the
process of consideration for appropriate
decision and cannot be relied upon as a
basis to claim any right. This Court
examined the said question in a judgment
reported as Omkar Sinha v. Sahadat
Khan
3
. Reliance was placed on Bachhittar
Singh v. State of Punjab
4
to hold that
merely writing something on the file does
not amount to an order. Before something
amounts to an order of the State
Government, two things are necessary.
First, the order has to be expressed in the
name of the Governor as required by
clause (1) of Article 166 and second, it
19
Mahadeo v. Sovan Devi 2022 SCC OnLine SC 1118.
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has to be communicated. As already
indicated, no formal order modifying the
decision of the Revenue Secretary was
ever made. Until such an order is drawn
up, the State Government cannot, in our
opinion, be regarded as bound by what
was stated in the file.”
Similarly, the decision of this Court in
Bachhittar Singh v. State of Punjab
20
which is
cited in the above reproduced paragraph notes:–
“9. The question, therefore, is whether he
did in fact make such an order. Merely
writing something on the file does not
amount to an order. Before something
amounts to an order of the State
Government two things are necessary.
The order has to be expressed in the
name of the Governor as required by
clause (1) of Article 166 and then it has to
be communicated. As already indicated,
no formal order modifying the decision of
the Revenue Secretary was ever made.
Until such an order is drawn up the State
Government cannot, in our opinion, be
regarded as bound by what was stated in
the file. As long as the matter rested with
him the Revenue Minister could well
score out his remarks or minutes on the
file and write fresh ones.”
53.We, therefore, have no reason to doubt that the
assignment took place only on 21.10.1961, i.e.
20
Bachhittar Singh v. State of Punjab AIR 1963 SC 395.
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when the Temporary Pattas were issued. We also
wish to highlight that the observation in the High
Court order dated 21.04.2006, that the Assignees
were in possession since 1953 is an exfacie mistake
of fact in light of the documents brought on record
as none of them supports this stance, including the
explanations submitted in response to the SCNs
wherein the Assignees themselves have stated that
possession was given to them in 1960. However, we
hasten to add that since the assignment would be
governed by the legal regime as applicable on
21.10.1961, the aforementioned factually incorrect
observation made by the High Court in respect of
the date of taking possession of the Subject Land by
Assignees is inconsequential.
54.Once it is determined that the regulatory
regime which was in vogue and held the field as on
21.10.1961 will govern the assignments, then it also
stands crystalised that the 1958 Circular as well as
GOM 1122 being in force at that time, are clearly
applicable to the Subject Land. The 1958
Clarification which discounts the application of
1958 Circular is not attracted in view of proviso to
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Rule 7(a) as each of the Assignees in the present
case was granted around 7 Acres 6 Guntas of land
for cultivation which is much is more than the limit
of “6 acres of dry or 21/2 acres of wet land” being
the perquisite for application of the 1958
Clarification. As a necessary corollary, we hold that
there was a conditional bar on alienation of the
Subject Land as provided in the 1958 Circular and
the GOM 1122. The question whether the lands
were assigned under ‘regular’ or ‘special laoni’ under
the Laoni Rules of 1950 consequently becomes
academic and we do not deem it necessary to
express our opinion in relation thereto.
55.Finally, attention must be paid to the
Appellant’s argument concerning noncompliance
with the mandatory requirement of notification as
contemplated under Section 58A of 1317 Fasli Act
for invoking any condition in respect of alienability.
Heavy reliance in this regard has been placed on the
following paragraph of Letter sent from Plot
No.338
21
, stating interalia that no notification
21
Letter sent from Plot No.338 (n 6).
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under Section 58A was published for the district in
which the Subject Land lies:–
“45. Section 58A of the Telangana Area
Land Revenue Act puts a restriction for
transfer of occupied land notified in
respect of any village or tract of the area
to which Act extends that the right of
occupation of any land under Sec. 54
given after the date of the notification
shall not be transferable without
obtaining the previous sanction of the
Collector. The Advocate General
representing the State Government
admitted that no notification by the State
Government under Sec. 58A was
published prohibiting transfer of the
occupied land granted patta under Sec.
54. The same has been recorded by this
court in WP No. 144/75 dt. 6121976.
xxxx
55. For the aforesaid reasons, we are
inclined to hold that though the
Government framed rules and notified the
same cannot be treated as notification as
contemplated under Sec. 58A of the
Telangana Area Land Revenue Act where
State Government has to notify any
village or tract of the area, to which this
Act extends, for obtaining previous
sanction of the Collector. Therefore, Rule
VI (ii) of the Revised Assignment Policy
issued in G.O.Ms. No. 1406 dt. 2571958
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cannot be given effect to until such
notification is issued.”
(Emphasis Applied)
56.However, it is pertinent to mention here that
the decision in Letter sent from Plot No.338
22
in
its later part clarifies the application of compliance
with Section 58A when it says that:
“56. Even if the rules are framed in
exercise of rule making power unless
notification is issued as contemplated
under Sec. 58A notifying any village or
tract of the area where sanction of the
Collector for transfer of land is necessary,
rules cannot be enforced. As already
observed, the condition, if any imposed
for sale of unoccupied land on payment of
market value under FormG is till the sale
is confirmed by the Collector, but not
otherwise, as Sec. 58A itself envisages
sanction of right of occupation of land
under Sec. 54 given after the date of the
notification, but the same does not cover
the occupancy rights granted under Sec.
58 of the Telangana Land Revenue Act.
Point No. 1 is answered accordingly.”
(Emphasis Applied)
57.The abovementioned decision thus envisages
the application of Section 58A of the 1317 Fasli Act
only in cases where the assignment is within the
ambit of Section 54 of the 1317 Fasli Act. In other
22
Letter sent from Plot No.338 (n 6).
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words, Assignments such as those under Section 58
of the 1317 Fasli Act are free from the rigours
specified under Section 58A of the 1317 Fasli Act.
It goes without saying that the assignment of the
Subject Land was not under Section 54 of the 1317
Fasli Act as may be seen from the contents of the
1958 Circular which draws a clear distinction
between (a) Land assigned on payment of market
value after making an application to the Collector
and (b) Land Assigned to the Landless poor persons.
The former is the case of assignment under Section
54 of the 1317 Fasli Act and the latter is covered
within the ambit of Section 58 of the 1317 Fasli Act.
The instant case unambiguously falls in the latter
category, i.e. ‘Land Assigned to the Landless poor
persons’.
58.Additionally, Section 58 of the 1317 Fasli Act is
a deeming provision wherein an occupancy right is
presumed to be heritable as well as transferable,
until an indication to the contrary is proved. In this
regard, 1958 Circular issued in exercise of the rule
making power vested under Section 172 of 1317
Fasli Act, read with an independent statutory bar
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created under Section 3 of the 1977 Act, portrays an
explicit legislative intention to curtail the legal
fiction created under Section 58 of the 1317 Fasli
Act. This is the precise reason because of which the
decision in Letter sent from Plot No.338
23
concludes that 1977 Act was applicable in respect of
the land assigned to landless individuals and the
same was governed by the conditions of non
alienability as incorporated in the 1958 Circular.
The precise part of the decision in Letter sent from
Plot No.338
24
as relied upon by the Division Bench
of the High Court in the impugned decision, states
that:–
“60. We are of the view that provisions of
Act No. 9 of 1977 will not be applicable to
the cases where assignments were made
on collection of market value or under
Circular 14 except it were granted to the
landless poor persons free of market
value. Point No. 2 is answered
accordingly.”
59.We have, therefore, no doubt in our mind that
the Subject Land was governed by the provision of
the 1958 Circular which included the condition of
nonalienability. We, however, clarify that since the
23
Letter sent from Plot No.338 (n 6).
24
Letter sent from Plot No.338 (n 6).
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Laoni Rules of 1950 were inapplicable on the
Subject Land, the contention raised by Mr. Ray
regarding violation of Article 14 in respect of ‘regular
assignment’ and ‘special laoni assignment’ becomes
irrelevant and out of context and the same need not
be gone into by us.
C.4 THE 1977 ACT: EXTENT OF APPLICATION AND
CONSEQUENCES
60.The next issue that arises for consideration
hovers around the applicability of the 1977 Act and
its consequences in the event of violations of the
assignment conditions. In this respect, it would be
apposite to first note the definition of ‘assigned land’
which is to the following effect:
“2. Definitions In this Act, unless the
context otherwise requires,
(1) “assigned lands” means lands or house
sites assigned by the Government to the
landless or homeless poor persons under
the rules for the time being in force,
subject to condition of nonalienation and
includes lands allotted or transferred to
landless or homeless poor persons under
the relevant law for the time being in
force relating to land ceilings; and the
word “assigned” shall be construed
accordingly”
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(Emphasis Applied)
We have already concluded that the Subject
Land was governed by the law which existed on the
date of issuance of Temporary Pattas, i.e.
21.10.1961. It has also been held that the
applicable law at the relevant time included the
1958 Circular as well as GOM 1122. Since both
these regulatory measures incorporated the
condition of nonalienability, there can be no escape
but to further hold that the Subject Land comes
under the definition of ‘assigned land’ as provided
under Section 2(1) of the 1977 Act. Resultantly, the
provisions of the 1977 Act are fully attracted to
regulating the said land.
61.The other issue that comes up for
determination is whether the entirety of Subject
Land would fall within the contravention of Section
3 of the 1977 Act which, inter alia, provides that:
“Section 3 – Prohibition of transfer of
assigned land –
(1) Where, before or after the
commencement of this Act any land has
been assigned by the Government to a
landless poor person for purposes of
cultivation or as a housesite then,
notwithstanding anything to the contrary
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in any other law for the time being in
force or in the deed of transfer or other
document relating to such land, it shall
not be transferred and shall be deemed
never to have been transferred; and
accordingly no right or title in such
assigned land shall vest in any person
acquiring the land by such transfer.
(2) No landless poor person shall transfer
any assigned land, and no person shall
acquire any assigned land, either by
purchase, gift, Lease (except in the case
of Lease to the Andhra Pradesh Green
Energy Corporation Ltd., for use as
deemed fit and including for usage of non
agriculture purpose), mortgage, exchange
or otherwise.
(2A) No assignee shall transfer any
assigned house site, and no person shall
acquire any assigned house site, either by
purchase, gift, Lease (except in the case
of Lease to the Andhra Pradesh Green
Energy Corporation Ltd., for use as
deemed fit and including for usage of non
agriculture purpose), mortgage, exchange
or otherwise, till completion of the period
of 20 years from the date of assignment.
(2B) Where the assigned House site was
alienated by the assignee as on the date
of commencement of this Act, such house
site shall be regularized in favour of the
alienee as a onetime measure.
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(3)Any transfer or acquisition made in
contravention of the provision of sub
section (1) or subsection (2) or sub
section (2A) shall be deemed to be null
and void.
(4)The Provisions of this section shall
apply to any transaction of the nature
referred to in subsection (2) in execution
of a decree or order of a civil court or of
any award or order of any other authority.
(5)Nothing in this section shall apply to
an assigned land which was purchased by
a landless poor person in good faith and
for valuable consideration from the
original assignee or his transferee prior to
the commencement of this Act and which
is in the possession of such person for
purposes of cultivation or as a housesite
on the date of such commencement.”
(Emphasis Applied)
62.In order to appreciate subSection (2) of
Section 3 of the 1977 Act in its correct perspective,
the expression ‘landless poor person’ and ‘transfer’
also become important, which are defined in the
1977 Act as follows:–
“Section 2(3) – “landless poor person”
means a person who owns an extent of
land not more than 1.011715 hectares
(two and half acres) of wet land or
2.023430 hectares (five acres) of dry land
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or such other extent of land as has been
or may be specified by the Government in
this behalf from time to time and who has
no other means of livelihood.
Explanation: For the purposes of
computing the extent of land under this
clause, 0.404686 hectares (one acre) of
wet land shall be equal to 0.809372
hectares (two acres) of dry land;
xxxx
Section 2(6) – “Transfer” means any sale,
gift, exchange, mortgage with or without
possession , lease (except in the case of
Lease to the Andhra Pradesh Green
Energy Corporation Ltd., for use as
deemed fit and including for usage of non
agriculture purpose) or any other
transaction with assigned lands, not being
a testamentary disposition and includes a
charge on such property or a contract
relating to assigned lands in respect of
such sale, gift, exchange, mortgage, Lease
(except in the case of Lease to the Andhra
Pradesh Green Energy Coproration Ltd.,
for use as deemed fit and including for
usage of nonagriculture purpose) or other
transaction.”
(Emphasis Applied)
63.On a conjoint reading of these statutory
expressions, particularly pertaining to the term
‘transfer’, the question that falls on us to answer is
whether the GPA executed in favour of M.A. Baksh
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by the Assignees would result in contravention of
Section 3(2) of the 1977 Act. The contention made
by learned senior counsel Mr. Reddy that the
contravention could only be limited to the sale deeds
executed in respect of about 10 Acres of the Subject
Land seems to be built on the decision of this Court
in Suraj Lamp and Industries Private Limited v.
State of Haryana
25
where the practice of GPA sales
was deprecated and it was noted that the same did
not constitute ‘sale’ or ‘transfer’ as contemplated
under the Transfer of Property Act, 1882.
64.However, we must note that the term ‘transfer’
as defined under the 1977 Act is much more
inclusive than the one employed in the Transfer of
Property Act, 1882. The definition under the 1977
Act uses the phrase ‘any other transaction’, which,
in our considered opinion, necessarily includes the
GPA executed as an instrument to surrender
ownership and possessory rights in favour of M.A.
Baksh. The intent of `transfer’ through the said GPA
by the Assignees authorizing the attorney holder to
sell or transfer the subject Property without any
25
Suraj Lamp and Industries Private Limited v. State of Haryana (2012) 1
SCC 656.
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restriction as is evident from its recitals and for
which they admittedly received consideration from
M.A. Baksh, is beyond any doubt. This was precisely
the kind of practice deprecated by this Court in
Suraj Lamp and Industries Private Limited
26
. We
have thus no hesitation in holding that the said GPA
falls within the ambit of the term ‘transfer’,
especially in view of the objective of the 1977 Act,
which was manifestly intended to save the landless
poor persons from the clutches of the rich and the
resourceful, who deprived them of the precious title
assigned to them by the Government for their
occupation and the source of livelihood.
65.Our observations are in continuity with the
view previously taken by this Court in Dharma
Naika v. Rama Naika
27
wherein an ‘agreement to
sale’ was held to be included within the definition of
‘transfer’ as provided under the Karnataka
Scheduled Castes and Scheduled Tribes (Prohibition
of Transfer of Certain Lands) Act, 1978. Its pertinent
to mention that the definition of ‘transfer’ in the
26
ibid.
27
Dharma Naika v. Rama Naika (2008) 14 SCC 517.
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aforesaid statute is somewhat similar to the one
employed by the 1977 Act. This Court noted that:–
“12. A bare reading of the definition of
“transfer” as defined in Section 3(1)(e) of
the Act would show that an “agreement
for sale” of any “granted land” is included
within the meaning of “transfer”. That
being the position, the word “transfer” as
defined under the Act is an inclusive
definition. That is to say, it includes
“sale” as well as “agreement for sale”,
although an agreement for sale under the
Transfer of Property Act is not a transfer
and the right, title or interest in the land
does not pass until the sale deed is
executed and registered. “Sale” has been
defined in Section 54 of the Transfer of
Property Act which means “transfer of
ownership in exchange for a price paid or
promised or partpaid and partpromised”.
As noted herein earlier, an agreement to
sell does not by itself create any interest
of the proposed vendee in the immovable
property but only creates an enforceable
right in the parties. (See Rambhau
Namdeo Gajre v. Narayan Bapuji Dhotra
[(2004) 8 SCC 614].) Therefore, it is clear
that under the general law, that is, under
the Transfer of Property Act, an
“agreement for sale” is not the same as
“sale” and in the case of an agreement for
sale, the title of the property agreed to be
sold still remains with the vendor but in
the case of “sale”, title of the property is
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vested with the vendee. Therefore, an
agreement for sale is an executory
contract whereas sale is an executed
contract.
xxxx
22. As noted hereinearlier, it is true that
in this case, admittedly, the parties had
entered into an agreement for sale in
respect of the granted land before the
commencement of the Act. It is also an
admitted position that the respondents
belong/belonged to the Scheduled Caste
community. As already noted
hereinearlier, for the purposes of this Act,
“transfer” has been defined to include an
“agreement for sale” although under the
general law, an “agreement for sale” will
not by itself transfer the granted land
automatically to the appellant purchaser.
From an overall consideration of the
objects and reasons for which this Act
was introduced viz. to protect the right
and interest of the Scheduled Castes and
Scheduled Tribes in respect of the
granted lands and the relevant provisions
of the Act, it is pellucid that the
definition of “transfer” under Section 3(1)
(e) of the Act includes an agreement for
sale also and “transfer” has been so
defined to protect the right, title and
interest of the Scheduled Castes and
Scheduled Tribes so that possession of
the lands could be restored to them even
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if they had entered into an agreement for
sale.”
(Emphasis Applied)
We, therefore, hold that the GPA executed in
favour of M.A. Baksh in the instant case constitutes
a ‘transfer’ under the 1977 Act and consequently
would also result in violation of Section 3 of the
1977 Act.
66. This leads us to further consider the penal
consequences in case of the violation of Section 3 of
the 1977 Act, as is provided in Section 4 of the 1977
Act. The relevant part of the said provision, as
amended from time to time, reads as follows:–
“Section 4 – Consequence of breach of
Section 3 –
(1) If in any case, the District Collector or
any other officer not below the rank of a
Mandal Revenue Officer, authorised by
him in this behalf; is satisfied that the
provisions of subsection (1) of section 3,
have been contravened in respect of any
assigned land, he may, by order
(a) take possession of the assigned
land after evicting the person in
possession after such written notice as
the Collector or Mandal Revenue Officer
may deem reasonable and any crop or
other produce raised on such land shall be
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liable to forfeiture and any building or
other construction erected or anything
deposited, thereon shall also be forfeited,
if not removed by him, after such notice,
as the Collector or the Mandal Revenue
Officer may direct Forfeitures under this
section shall be adjudged by the Collector
or Mandal Revenue Officer and any
property forfeited shall be disposed of as
the Collector or Mandal Revenue Officer
may direct; and;
(b)(i) reassign the said resumed land,
other than those lands/areas as may be
notified by the Government from time to
time in public interest and for public
purpose, to the transferee who purchased
the land in good faith and for valuable
consideration on or before 29th January,
2007, subject to the condition that
he/she is landless poor person, and is in
occupation of the land by using the said
land for agriculture or as house site, as on
the date of taking possession by eviction:
Provided that the reassignment in
case of transferee shall be limited to only
such an extent that the total holding of
the reassignee including any other land
held by him/her does not exceed 5.00
Acres dry land or 2
½ Acres wet land:
Provided further that where the
transferee who has purchased the land
and got reassignment of it, or his legal
heir, transfers the reassigned land, the
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land shall be resumed for assignment to
the other eligible landless poor:
(ii) restore the said assigned land,
other than those lands/areas as may be
notified by the Government from time to
time in public interest and for public
purpose, to the original assignee, subject
to the condition that he or she is landless
poor person as on the date of restoration
for one time; or
(iii) assign to other eligible landless
poor person: Provided that the restoration
of land shall be limited to only such an
extent that the total holding including
any other land held by him/her does not
exceed 5.00 Acres dry land or 2
½ Acres
wet land:
Provided further that where the
original assignee or his legal heir, after
first restoration transfers the assigned
land, the land shall be resumed for
assignment to the other eligible landless
poor:
Provided also that if no eligible
landless poor persons are available in the
village/area, the resumed land will be
utilised for public purpose.
Explanation: For the purpose of this
clause “Public Interest” and “Public
Purpose” shall mean and include, the
Weaker Section Housing, Public Utility,
Infrastructure Development, promotion of
industries and Tourism or for any other
public purpose;
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(c) In the areas which may be notified
by Government from time to time, time,
lands resumed under clause 4(a) above,
shall be utilized for public purpose.
xxxx
(5) For the purposes of this section, where
any assigned land is in possession of a
person, other than the original assignee
or his legal heir, it shall be presumed,
until the contrary is proved, that there is
a contravention of the provisions of sub
section (1) of section 3.”
(Emphasis Applied)
67.The Appellants have argued that Section 4 of
the 1977 Act as it stood on the date when the
resumption orders were passed, i.e. 27.01.2007,
only stipulated that a breach under Section 3 would
result in possession of the land being taken over
from the third party to whom the land was
transferred and restored back to the original
assignees. In other words, the Appellants contend
that the Subject Land should be reassigned to them
as they are the legal heirs of the Assignees.
68.We have thoughtfully considered the
submission. It is important at this to draw attention
to the provisions of The Andhra Pradesh Assigned
Lands (Prohibition of Transfers) (Amendment) Act,
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2007 [Hereinafter, ‘2007 Amendment’] through
which Section 4(1)(c) was introduced. The 2007
Amendment Act in its Section 1(3) expressly states
that:–
“Section 1 Short title, extent and
commencement –
xxxx
(3) Section 2 shall be deemed to have
come into force with effect on and from
21st, January, 1977 and the remaining
provisions shall come into force from the
date as the Government may, by
notification, appoint.”
(Emphasis Applied)
It is significant to note that Section 4(1)(c) was
introduced through Section 2 of the 2007
Amendment Act. The legislature explicitly gave it
retrospective effect and even introduced an
Ordinance on similar lines prior to the said
amendment. The legislative intention can be further
illuminated from the relevant part of the Statement
of Object and Reasons in the Bill which introduced
the 2007 Amendment and the same reads as
follows:–
“xxxx
On account of rapid urbanization in
certain areas i.e., Hyderabad,
Visakhapatnam, Ranga Reddy Districts
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etc., most of the assigned lands have been
alienated by the original assignees and
the lands were converted to non
agricultural use. It is found not possible
to reassign these lands after resumption,
either to the original assignee or his/her
legal heir. It is also practically not
possible to assign these lands to other
landless poor persons, since the nature of
these lands has been changed and they
are not useful for agriculture purpose.
Keeping in view of the above said
position, Government have decided to
amend clause (b) of subsection (1) of
Section 4 of the said Act empowering the
Government to notify certain areas where
the Government can resume the assigned
lands and utilize them for public purposes
such as Weaker Sections Housing, Public
Utilities, Infrastructure Development or
for any other public purpose in such areas
as may be notified by it.
The amendment also proposes that
in the areas other than those notified, the
land can be restored once to the original
assignee or it can be assigned to other
eligible persons. However, if either the
original assignee or no eligible landless
poor are available in the village, then it
gets restored to the Government for
public purpose.
As the Legislative Assembly was not
then in session and it has been decided to
give effect to the above decision
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immediately, the Andhra Pradesh
Assigned Lands (Prohibition of Transfers)
(Amendment) Ordinance, 2006 has been
promulgated by the Governor on the 5th
November, 2006.”
(Emphasis Applied)
69.It deserves to be mentioned that in the Andhra
Pradesh Assigned Lands (Prohibition of Transfers)
(Amendment) Ordinance, 2006 [Hereinafter, ‘2006
Ordinance’] also, a similar provision for resumption
for certain notified lands akin to what has been
provided in the 2007 Amendment Act, was
incorporated. The intention of the legislature in
respect of retrospective application of Section 4(1)(c)
is thus crystal clear from the very inception.
Furthermore, at the time of rebuttal arguments, the
Respondents have produced a Notification dated
11.12.2006 whereby the village comprising the
Subject Land has been notified as the area liable for
resumption for violation of Section 3 of 1977 Act.
Though the notification was purportedly issued for
implementation of the 2006 Ordinance, but the said
Ordinance having been substituted by the
amendment in Section 4(1)(c) of the 1977 Act with
more or less identical expressions, the Notification,
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referred to above, caters the legal necessity of
requirement of a Notification under the Act. Hence,
resumption of the Subject Land and retransfer of
its ownership rights to the State, does not suffer
from any legal infirmity.
70.It may also be relevant to mention that the
High Court in Dharma Reddy
28
has already upheld
the retrospective application of Section 4(1)(c) of the
1977 Act. Pertinently, this Court too in
Manchegowda v. State of Karnataka
29
upheld the
constitutional validity of retrospective application
given to Karnataka Scheduled Castes and
Scheduled Tribes (Prohibition of Transfer of Certain
Lands) Act of 1978, which is a statute whose
scheme is akin to 1977 Act. These amended
provisions are thus deemed to be in force at the time
of violation of assignment conditions in the year
1992. The only irresistible conclusion would thus be
that the resumption order dated 27.01.2007 does
not suffer from any legal infirmity.
C.5 COMPENSATION FOR RESUMPTION
28
Dharma Reddy (n 12).
29
Manchegowda v. State of Karnataka (1984) 3 SCC 301.
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71.Finally, we consider the aspect of
compensation in respect of the Subject Land, which
has been pressed into aid by learned senior counsel
Mr. Reddy by relying on the decision of the High
Court in Mekala Pandu
30
to contend that in case
any assigned land is resumed for public purpose as
sought to be done in the instant case, then market
value of the said land must be paid as
compensation. The relevant paragraphs of the cited
decision are extensively reproduced as follows:–
“80. The question that falls for
consideration is whether the terms of
grant or patta enabling the State to
resume the assigned lands for a public
purpose without paying compensation
equivalent to the market value of the land
to the assignees are valid in law? Whether
such restrictive conditions or covenants
suffer from any constitutional infirmity?
81. The State while directing no
compensation be paid equivalent to the
market value of the assigned lands never
took into consideration and had any
regard to the length of time the land held
by the grantee or assignee, the social
objectives for which the assignment had
been made by the State in discharge of its
constitutional obligation of providing
public assistance to the weaker sections
30
Mekala Pandu (n 10).
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of the society, the improvements or
developments upon the land made by the
assignees on any legitimate expectation
of continuance of the assignment,
heritable nature of the right under the
grant, etc.
82. The question is whether the ‘no
compensation clause’ imposed in the
grant of assignment, in effect, requires
the assignee to relinquish some
constitutional right? Whether the
conditions imposed at the time of
assignment are “unconstitutional
conditions”?
83. The assignees are constitutional
claimants. The constitutional claim
cannot be subjected to governmental
restrictions or sanctions except pursuant
to the constitutionally valid rule or law.
There is no legislation enacted by the
State compelling it to assign the lands to
the weaker sections of the society. The
State obviously assigned and granted
pattas as a measure of providing public
assistance to the weaker sections of the
society. The proposition is that as a
general rule the State may grant privilege
upon such conditions as it sees fit to
impose; but the power of the State in that
regard is not unlimited, and one of the
limitations that it may not impose
conditions which require the
relinquishment of constitutional rights.
That whenever State is required to make
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laws, regulations or policies, it must do so
consistently with the directive principles
with a view to securing social and
economic freedom so essential for
establishment of an egalitarian society.
The Directive Principles of State Policy
reflect the hopes and aspirations of
people of this great country. The fact that
they are not enforceable by any Court in
no manner reduces their importance.
They are nevertheless fundamental in the
governance of the country and the State
is under obligation to apply them in
making laws and framing its policies
particularly concerning the weaker
sections of the society.
xxxx
92. ‘No compensation’ clause which
virtually enables the State to withdraw
the privilege granted without payment of
just compensation is an “unconstitutional
condition” imposed by the State
adversely affects the life, liberty, equality
and dignity guaranteed by the
Constitution. The assignment of lands to
the exploited and vulnerable sections of
the society is neither a formality nor
a gratis. The privilege granted is with a
view to ensure and protect the rights of
the exploited sections of the people to
live with human dignity free from
exploitation. The privilege or largesse
once granted acquires the status of vested
interest. The policy to assign the
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government land by the State was
obviously designed to protect the socio
economic status of a vulnerable citizenry;
its deprivation would be universally
perceived as a misfortune.
xxxx
100. The deprivation of the assignee's
right to payment of just compensation
equivalent to the market value of the
assigned land may amount to deprivation
of right to livelihood. The denial of
constitutional claim to receive just
compensation after depriving the
assignee of his land is impermissible
except pursuant to a constitutionally
valid rule or law.
xxxx
110. In the result, we hold that ‘no
compensation’ clause, restricting the
right of the assignees to claim full
compensation in respect of the land
resumed equivalent to the market value
of the land, is unconstitutional. The ‘no
compensation clause’ infringes the
fundamental rights guaranteed by Articles
14 and 31A of the Constitution. We are
conscious that Article 21 essentially deals
with personal liberty. But in cases where
deprivation of property would lead to
deprivation of life or liberty or livelihood,
Article 21 springs into action and any
such deprivation without just payment of
compensation amounts to infringement of
the right guaranteed thereunder. The
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doctrine of ‘unconstitutional conditions’
applies in all its force.
111. In the circumstances, we hold that
the assignees of the government lands are
entitled to payment of compensation
equivalent to the full market value of the
land and other benefits on par with full
owners of the land even in cases where
the assigned lands are taken possession of
by the State in accordance with the terms
of grant or patta, though such resumption
is for a public purpose. We further hold
that even in cases where the State does
not invoke the covenant of the grant or
patta to resume the land for such public
purpose and resorts to acquisition of the
land under the provisions of the Land
Acquisition Act, 1894, the assignees shall
be entitled to compensation as owners of
the land and for all other consequential
benefits under the provisions of the Land
Acquisition Act, 1894. No condition
incorporated in patta/deed of assignment
shall operate as a clog putting any
restriction on the right of the assignee to
claim full compensation as owner of the
land.
112. In such view of ours, the view taken
by this Court in Bondapalli Sanyasi (2
supra) that whenever the land is taken
possession of by the State invoking the
terms of the grant, the right of an
assignee to any compensation may have
to be determined in accordance with the
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conditions in patta itself is unsustainable.
With due respect, we are unable to agree
with the view taken in this regard. We are
also unable to agree with the view taken
that the assignee shall be entitled to
compensation in terms of the Land
Acquisition Act not as owner but as an
interested person for the interest he held
in the property.”
(Emphasis Applied)
72.A perusal of the above extracts reveals that
the real issue in those cases pertained to ‘no
compensation’ clauses in the assignment and
not the nonpayment of compensation for
violating conditions regarding nonalienability as
involved in the case in hand. That apart, the
High Court’s observation in respect of a
constitutional right to compensation were
disapproved by this Court while dismissing the
Civil Appeals/Special Leave Petitions, including
against the decision in Mekala Pandu
31
as is
discernible from the following order
32
: –
“1. Having regard to the peculiar facts
and circumstances of the case. noted in
31
Mekala Pandu (n 10).
32
A.P. Industrial Infrastructure Corporation Ltd v Ramesh Singh and other
connected appeals (Civil Appeal No. 79047912 of 2012, 4 August 2014).
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the impugned judgment(s), we are
satisfied that these are not fit cases for
exercise of our jurisdiction under Article
136 of the Constitution of India.
2. Civil Appeals and Special Leave Petition
are, accordingly, dismissed.
3. No costs.
4. Certain observations made in the
impugned order(s) about the status of
claimants as 'constitutional claimants' are
kept open to be considered in appropriate
case, if necessary.”
(Emphasis Applied)
73.Importantly, we must be cautious of the
difference between the terms ‘acquisition’ and
‘resumption’ in the context of property laws. While
both terms indicate deprivation of a right, there
exists a significant distinction in their actual legal
connotation. Acquisition denotes a positive act on
behalf of the State to deprive an individual’s
enjoyment of a preexisting right in a property in
furtherance of its policy whereas resumption
denotes a punitive action by the State to take back
the right or an interest in a property which was
granted by it in the first place. The term
‘resumption’ must not therefore be conflated with
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the term ‘acquisition’ as employed within the
meaning of Article 300A of the Constitution so as to
create a right to compensation. Keeping this mark
distinction in view, it is not necessary for us to
determine whether an expropriated owner has an
impeachable constitutional right to compensation
under Article 300A of the Constitution in lieu of his
acquired property.
74.It is also pertinent to note that serious
allegations prevail against the Appellants for being
involved with the land mafia to usurp the Subject
Land for private interests which was the precise
reason for the Government to introduce legislation
in the nature of the 1977 Act. Resultantly, in the
facts and circumstances of this case, we hold that
the Appellants are not entitled to any compensation
under the existing constitutional framework.
D. CONCLUSION
75.In light of the abovementioned discussion, we
conclude that the proceedings emanating out of the
Second SCN were valid; the Subject Land was non
alienable and hence was subject to the provisions of
the 1977 Act. We further hold that the Appellants
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had transferred the Subject Land in contravention
to the provisions of 1977 Act and therefore, the
resultant resumption order dated 27.01.2007 is
valid. The Appellants are also not entitled to any
compensation on account of the resumption of the
assigned land.
76.We are not oblivious to the fact that the parties
have been litigating since the year 1994. During
these decades, the Subject Land has acquired
enormous value. Some of the documents on record
do indicate that land mafia has already ousted the
gullible Assignees and now have vulture’s eyes on
the land. Additionally, a security agency of
paramount national importance currently occupies
the Subject Land in public interest. We, therefore,
deem it appropriate to invoke our powers under
Article 142 of the Constitution to do complete
justice to the parties and issue the following further
directions/declarations:
a)The Subject Land in its entirety is declared to
have vested in the State Government. On
further allotment, its ownership and
possessory rights, free from all encumbrances,
stand transferred in favour of the Greyhounds;
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b)No Civil Court or High Court shall entertain
any claim whatsoever on behalf of any
Assignee, their legal representative, GPA holder
or any other claimant under any Agreement to
sell or other instruments, claiming direct or
indirect interests in the Subject Land; and
c)There shall be a final quietus of title and
possessory dispute over the Subject Land in
favour of the RespondentState and/or the
agency to whom the said land has been
allotted.
77.Consequently, these appeals stand dismissed
along with any pending applications in the above
terms. No order as to costs.
………..………………… J.
(SURYA KANT)
………………………… .. J.
(J.K. MAHESHWARI)
NEW DELHI
DATED: 01.08.2023
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