HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE B. CHANDRA KUMAR W.A.NO. 1169 OF 2008 JUDGMENT: (per BCK, J) This Writ Appeal has been filed challenging the order, dated 19-06-2008 passed by a learned single Judge of this Court in W.P.No.11698 of 2008 dismissing the writ petition filed by the appellant herein. 2. The brief facts of the case are as follows: One Mohd. Ruknuddin Ahmed and others were the original owners of the land admeasuring Acs.526.07 acres in Sy.No.83 of Raidurg village of Ranga Reddy District. The owners said to have entered into an agreement of sale in favour of one A. Satyanarayana and A. Ramaswamy, who are the partners of Sri Venkateswara Enterprises. The petitioner, namely Chanakya Cooperative Housing Society, claims to have entered into an agreement of sale to purchase 400 acres of land from Venkateswara Enterprises on 09- 08-1974 and claims to have paid an amount of Rs.2.9 lakhs towards part of sale consideration out of total consideration of Rs.9 lakhs. It also claims to be in possession of the land in question since then. It is the case of the petitioner society that a regular sale deed could not be obtained by it in lieu of the prohibition contained in A.P. Vacant Lands in Urban Areas (Prohibition of Alienation) Act, 1972 (for short “A.P. Vacant Lands Act”). It is also the case of the petitioner society that it applied for sanction of layout to the Gram Panchayat, but the sanction of the layout was withheld in view of the prohibition contained in the A.P. Vacant Lands Act. The petitioner society claims to have made a representation on 06-12-1974 to the first respondent to grant exemption to the land from the provisions of the A.P. Vacant Lands Act. As the position stood thus, the Urban Land (Ceiling and Regulation) Act, 1976 (for short “ULC Act”) came into force in the State of Andhra Pradesh w.e.f. 17-02-1976. The petitioner society submitted a representation on 26- 08-1976 to the first respondent for grant of exemption under Section 20 of the ULC Act. It is the further case of the petitioner society that the second respondent, after conducting an enquiry, submitted a report recommending grant of exemption in favour of the petitioner society. The owners namely Ahmed Abdul Aziz and 11 others filed declarations in Form-I under Section 6 of the ULC Act on 16-09-1976 and 27-07-1977 and draft statement under Section 8 (1) and notice under Section 8 (3) of the ULC Act were issued calling for objections within 30 days. The draft statement stated that the land is situated inside the limits of the master plan and is not mainly used for the purpose of agriculture. The petitioner through its GPA Holder filed applications for exemption under Section 20 (1) (b) of the ULC Act on 14-02- 1978. The competent authority under the ULC Act passed orders on 06-12- 1979 and 25-01-1980 holding that the owners were in possession of an extent of 15,41,765 and 3,52,702 square metres of vacant land in excess of the ceiling limit. Final statements were accordingly issued under Section 9 of the ULC Act declaring the surplus areas of each declarant. On 16-01-1980 notification was issued by the competent authority under Section 10 (1) of the ULC Act giving particulars of the extent of surplus land held by the declarants and offering an opportunity of hearing to all the interested persons. On 29-09-1980 new master plan came into force for Hyderabad urban areas. On 24-01-1981 notification under Section 10 (3) of the ULC Act was issued inter alia stating that the surplus lands shall be deemed to have been acquired by the State Government and vested absolutely in the State Government free from all encumbrances. On 21-02-1981, the State Government vide Memo No.5880/UC-II/76-12 rejected the application of the declarants including the petitioner society for exemption under Section 20 (1) (b) of the ULC Act. The petitioner society filed W.P.No.1290 of 1981 challenging the said memo rejecting its application for exemption. On 26-02- 1981, notice was issued under Section 10 (5) of the ULC Act asking the declarants to vacate and deliver the land. On 16-07-1983, W.P.No.1290 of 1981 filed by the petitioner society was dismissed by a learned single Judge of this Court. Aggrieved by the same, the petitioner society filed W.A.No.649 of 1983 and the same was dismissed on 13-08-1983 with an observation that the petitioner may file Appeal under Section 33 of the ULC Act. The appellate Authority dismissed the Appeal filed by the petitioner society on 01- 12-1992. The petitioner society filed another W.P.No.16797 of 1992 challenging the orders of the appellate authority and the same was dismissed on 11-05-1993. The matter was carried in Appeal in W.A.No.806 of 1993 and the Division Bench of this Court dismissed the same on 01-10- 1993. On 19-07-1993 notification was issued under Section 10 (6) of the ULC Act directing to take over possession of the surplus land. On 20-07-1993 possession of the surplus land of 17,027.00 square metres was taken over under a cover of panchanama. The petitioner society filed W.A.M.P.No.1983 of 1998 seeking review of the order in W.A.No.806 of 1993 and the same was dismissed on 14-10-1999. The petitioner society finally approached the Hon’ble Supreme Court through SLP (C) No. 5739-5740 of 2000 challenging the orders in W.A.M.P.No.1983 of 1998, dated 14-10-1999. The Hon’ble Supreme Court dismissed the said SLP on 20-03-2001. On 13- 02-2004, the lands in question were allotted and handed over the APIIC through G.O.Ms.No.161, dated 13-02-2006. The petitioner society again filed W.A.No.5776 of 2006 praying to quash the said G.O.Ms.No.161 and sought exemption under various G.Os. On 17-01-2007, a Division Bench of this Court dismissed the said writ petition. Then the petitioner society filed a review application seeking suspension of the order of the Division Bench and the same was rejected holding that the plea of the petitioner society that they are in possession of the property cannot be accepted. 3. After the repeal of the ULC Act, now the petitioner society filed the present writ petition in W.P.No.11698 of 2008 and the learned single Judge dismissed the said writ petition on 09-06-2008. Thus this writ Appeal came up before us for hearing. 4. The specific case of the petitioner society is that it purchased the land in dispute under an agreement of sale on 09-08-1974 and came into possession of the land on that day. It was not served with any notice as required under Section 10 (1) and 10 (5) of the ULC Act and that after the repeal of the ULC Act w.e.f. 27-03-2008, the effect is that all the proceedings shall be abated where the possession of the land was not taken over under Section 10 (6) of the ULC Act. 5. The specific case of the respondents is that the petitioner society has no locus standi to claim exemption and that all the contentions raised by the petitioner society have been already decided in the earlier writ petitions filed by it and a categorical finding was given that the agreement of sale said to have been executed by the owners in favour of the petitioner society is illegal and that the owners have filed statements/declarations under Section 6 (1) of the ULC Act and that the authority, after holding necessary enquiry, determined the vacant land in excess of the ceiling limits and no appeal was preferred by the owners and that notifications were issued under Section 10 (1) of the ULC Act on 16-01-1980 and 13-01-1980. On 24-09-1981 notification under Section 10 (3) of the ULC Act was issued declaring that the land in question shall be deemed to have acquired by the government and vested absolutely in the state government free from all encumbrances. The notifications issued under Section 10 (5) of the ULC Act to vacate and deliver possession of the land was duly served and that on 19- 07-1993 orders were issued under Section 10 (6) of the ULC Act and pursuant to the same, the ULC authorities had taken physical possession of the land on 20-07-1993 duly recording the detailed panchanama that the lands vested with the Government of A.P. under the due process of law under the ULC Act. The further case of the respondents is that the Government through G.O.Ms.No.161 allotted the excess land to the extent of 424.13 guntas in Sy.No.83 of Raidurg village in favour of APIIC for utilizing the same for the development of integrated I.T. project and the possession of the land was handed over to APIIC on 14-02-2006 by the Deputy Collector and M.R.O., Serilingampally Mandal, Ranga Reddy District. 6. The learned single Judge, after referring to the chequered history of the case and the previous orders passed in the writ petitions and writ appeals and quoting the relevant portions from those orders, dismissed the writ petition holding that in all the previous Judgments it was held that the petitioner society is not in possession of the land and that the same was handed over under a cover of panchanama initially to HUDA and thereafter to APIIC. 7. The learned counsel for the petitioner society/appellant submitted that the order in W.P.No.1290 of 1981 stands merged with the order in W.A.No.1649 of 1983 and therefore, the learned single Judge ought not have relied on the observations made in W.P.No.1290 of 1981 since the said order stands merged in the writ appeal. He further submitted that the principles of res judicata are not applicable to the facts of this case and that the matter in this writ petition is a distinct matter and therefore the learned single Judge ought not have held that the issues in this writ petition have been already heard and finally decided. 8. The learned counsel for the petitioner society further submitted that the petitioner society cannot be termed as a person not interested in the land and that no notice before taking possession of the land was served on the petitioner society and in view of the repeal of the ULC Act, the petitioner society shall be deemed to be in possession and the Government have no right or authority to deal with the land and therefore, the impugned order is liable to be set aside. 9. The learned counsel for the petitioner society/appellant also cited several judgments which will be referred while discussing the points formulated. 10. The learned Government Pleader submitted that this is the fourth round of litigation and that the petitioner society has no locus standi, and it cannot be termed as a person interested and that all the points raised by the petitioner society have been already finally decided by this Court and that the SLPs filed by the petitioner society have been dismissed by the Supreme Court and therefore, the petitioner cannot again challenge the same on the same grounds. 11. The specific submission of the learned Government Pleader is that even if certain issues are not raised by the petitioner society in the earlier writ petitions, it cannot raise the same now and the principles of the res judicata apply in this case. 12. In the light of the rival contentions, the points that arise for consideration are: 1. Whether there are any bona fides in the claim of the petitioner society? 2. Whether the principles of res judicata are applicable to the facts of this case? POINT NO.1: 13. Admittedly the A.P. Vacant Lands Act came into force w.e.f. 05- 06-1972. Section 4 of the A.P. Vacant Lands Act envisages that no person who owns any vacant land shall on or after the commencement of the said Act, alienate any such land by way of sale, lease for a period exceeding six years, exchange, usufructuary mortgage or otherwise or effect a partition or create a trust of such land, and any alienation made or partition effected, or trust created in contravention of this Section shall be null and void. Section 5 also imposes restrictions on registration of such transactions. 14. Admittedly the owners, from whom the petitioner society claims to have purchased the land, were holding the excess land as on the date of coming into force of the A.P. Vacant Lands Act. The petitioner society itself averred in the writ petition that because of the provisions contained in the A.P. Vacant Lands Act, it could not obtain a regular sale deed from the owners and layout from the Gram Panchayat though it applied for the same. Thus the very transaction said to have been entered by the petitioner society prima facie appears to be illegal. It has to be seen that the petitioner society has not filed the said agreement of sale till this date. Admittedly the petitioner society had not filed any suit for specific performance against the owners of the land. 15. The learned counsel for the petitioner society, in support of his contention that even a purchaser under an agreement of sale should be deemed to be holder of the land, relied on STATE OF A.P. v. MOHD. ASHRAFUDDIN [1], wherein the Supreme Court, while dealing with the definition of ‘holding’ in Clause (i) of Section 3 of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, observed that a purchaser under an agreement of sale can be deemed to be holding the land and while calculating the holding of the land, the extent of the land should be included in the holding of the owner as well as purchaser under the agreement of sale. The Hon’ble Supreme Court further observed as follows: “(9) IT is by now well settled that a person in possession pursuant to a contract for sale does not get title to the land unless there is a valid document of title in his favour. In the instant case it has already been pointed out that the transferee came into possession in pursuance of an agreement for sale but no valid deed of title was executed in his favour. Therefore, the ownership remained with the respondent-transferor. But even in the absence of a valid deed of title the possession pursuant to an agreement of transfer cannot be said to be illegal and the transferee is entitled to remain in possession. If perchance he is dispossessed by the transferor, he can recover possession. The transferor cannot file any suit for getting back possession but all the same he will continue to be the owner of the land agreed to be transferred. The respondent, in our considered opinion, satisfies the conditions contemplated by the definition of the term 'holding' and the land transferred by' him under a defective title deed will form part of his holding. The High Court, therefore, erred in holding that the land in possession of the transferee cannot be taken to be a part of the holding of the transferor-respondent.” Thus it was held that the same land can be a part of holding of various persons in different capacities. 16. Admittedly the petitioner did not file any declaration showing that it was “holding” the land under A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973. Admittedly the ULC Act came into force w.e.f. 17-02-1976. The owners of the land or the persons who are claiming to be holders of the land and are in possession of the excess land are required to file statements under Section 6 of the ULC Act. Admittedly the petitioner society did not file any such statements under Section 6 of the ULC Act. In W.P.No.16797 of 1992, the learned single Judge of this Court observed as follows: “The only question that remains is whether the order of the 2nd respondent in C.No.UC-1/3948 of 1987 dated 1-12-1992 is vitiated by any errors apparent on the face of the record. The 2nd respondent held that the following two points arose for consideration by him: (i) Whether the provisions of sub-sections (1) and (2) of Section 19 of the Central Act apply to the case of the petitioner? And (ii) Whether the proceedings determining the holding as surplus under the Central Act can be concluded pending disposal of the application for exemption by the Government? On the first question, the 2nd respondent held that the petitioner was not holding the land in question under sub-section (1) of Section 19 of the Central Act as owner, tenant or as mortgagee or under an irrevocable power of attorney or under hire purchase agreement or partly in one of the said capacities within the meaning of the term ‘to hold’ as defined in Clause (1) of Section 2 of the Central Act. The 2nd respondent also held that the petitioner had not come into possession of the land I question in the capacities mentioned in the explanation under sub-section (2) of Section 19. I do not find any error much less an error apparent on the face of the record in the said findings of the 2nd respondent. If really the petitioner believed that it held the land in question, it would have filed a statement under Section 6 of the Act which admittedly it did not do. On the second point also, the 2nd respondent found that the proceedings under the provisions of the Central Act could be concluded pending disposal of the exemption petition. I do not see how that finding can be faulted. More so when the exemption petition under Section 20 was only to enable the original owners of the land in question to transfer the same which is impermissible in view of the Judgment of the Supreme Court in S.Vasudeva’s case.” 17. The issue similar to the issue involved in this case whether the petitioner society or the owners of the land can seek exemption for the purpose of transferring the land came up for consideration in S. VASUDEVA V. STATE OF KARNATAKA [2], wherein the Supreme Court held that Section 20 (1) (b) of the Central Act do not permit the State Government to give exemption to the owners of vacant land in excess of the ceiling limit for the purpose of transferring the same to others. The Supreme Court further held that there is no provision for transfer of land in excess of the ceiling limit without a building or a portion of a building thereon. Thus the object of the Act does not contemplate the transfer of the vacant land in excess of the ceiling limit. Therefore, the State Government could not have granted exemption under Section 20 (1) (b) of the Act to the holder of the excess vacant land to enable the holder to transfer the same in view of the restrictions imposed in the Act. 18. The learned counsel for the petitioner society relied on AMANI AMMAL v. VENKATAPPA REDDY [3], in support of his contention that the agreement of sale is valid. The short Judgment reads as follows: “1. On the fact situation it is clear that on the day when the Urban Land Ceiling & Regulation Act 1976 came into force, the appointed day being 28.1.1976, the appellant was owning 3000 sq. yds. Of urban land disentitling him to obtain any further in view of Section 4 (4) (a) of the said Act read with Section 4 of the Andhra Pradesh Vacant Lands in Urban Areas (Prohibition of Alienation) Act, 1972. It is note worthy that the appellant had barely an agreement dated 19.7.1975 of sale in his favour in respect of a site measuring 3100 sq. yards. He had to seek a decree for specific performance for which purpose he filed a suit. During the pendency of the suit the Urban Land Ceiling & Regulation Act 1976 came into operation. The suit was decreed ex parte requiring the respondent to execute the deed of sale and on his failure to do so, the Court took upon itself the obligation to transfer the property as decreed. That in fact was done. The objection of the respondent before the Executing court on the basis of the bar erected by the afore-quoted two provisions of the respective two States did not succeed but it did at the appeal stage before the High court, which is now in question before us. 2. Nothing wrong could be found in the agreement of sale per se as it could in no event be construed as “alienation” for the purpose of two afore-mentioned provisions of two Statutes. The alienation was effected when the court executed the sale as a substitute for the respondent. The bar was then attracted in that act of the court. The existence of the decree for specific performance could in no event help matters for the bar of alienation erected against persons in the afore provisions is equally erected against the Court acting as a person in place of another. The view taken by the High court in these circumstances would be the only correct view in the matter and we have no cause to differ from the same. We therefore dismiss this appeal. No costs.” We are unable to understand how the above Judgment helps the petitioner society since it appears to be supporting the case of the respondents. 19. The learned counsel for the petitioner society relied on JETHUMULL BHOJRAJ v. STATE OF BIHAR [4], wherein the case arises out of the proceedings of the Land Acquisition Act and particularly with regard to taking of the possession of the land under the said Act. Apparently the facts of that case are different and the said decision is not applicable to the facts of this case. In that case, the question arose for consideration was whether the government was deemed to be in possession of the land from the date of expiry of 15 days from the publication of the notice under Section 9 of the Land Acquisition Act. Considering the expression “whenever appropriate government so directs” in Section 17 (1) it was held that even in case of urgency the Government may not think it necessary to take immediate possession for good reasons. Therefore, the above decisions appear to be not applicable to the facts of this case. 20. Similarly the other decision relied on by the learned counsel for the petitioner society in BHARATH SINGH v. STATE OF HARYANA [5], also pertains to the Land Acquisition Act and on facts, it is also appears to be not applicable to the facts of the present case. POINT NO.2: 21. The learned counsel, in support of his submission that the points raised in this case are distinct and not the same as raised in the previous writ petitions, relied on MEMBER, BOARD OF REVENUE v. ARTHUR PAUL [6], wherein the Supreme Court, while considering the provisions of the Stamp Act and the issue whether the matters could be considered as distinct maters or not, held as follows: “The instrument in question does not comprise distinct matters but comprises one matter only and that matter is the execution of a general power of attorney by the donor in favour of the donees constituting the donees his attorneys to act for him in all the capacities which he enjoys. The instrument question cannot be split up into separate instruments each comprising or relating to a distinct matter in so far as the different capacities of the donor are concerned. A general power of attorney comprises all acts which can be done by the donor himself whatever be the capacity or capacities which he enjoys and cannot be split up into individual acts which the donor is capable of performing and which he appoints his attorney to do for him and in his name and on his behalf. It is within the very nature of the general power of attorney that all the distinct acts which the donor is capable of performing are comprised in the one instrument which is executed by him and if that is the position it is but logical that whatever acts the donor is capable of performing whether in his individual