THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NOS.261, 262, 263 AND 265 OF 2002 DATED 6th OCTOBER, 2010 WRIT APPEAL NO.261 OF 2002 BETWEEN The State of Andhra Pradesh, Rep. by its Secretary, Revenue (U.C.II) Department, Secretariat, Hyderabad and Others. … Appellants And K.Vittal Reddy and Another … Respondents WRIT APPEAL NO.262 OF 2002 BETWEEN The State of Andhra Pradesh, Rep. by its Secretary, Revenue (U.C.II) Department, Secretariat, Hyderabad and Others. … Appellants And K.Narayana Reddy … Respondent WRIT APPEAL NO.263 OF 2002 BETWEEN The State of Andhra Pradesh, Rep. by its Secretary, Revenue (U.C.II) Department, Secretariat, Hyderabad and Others. … Appellants And K.Pratap Reddy … Respondent WRIT APPEAL NO.265 OF 2002 BETWEEN The State of Andhra Pradesh, Rep. by its Secretary, Revenue (U.C.II) Department, Secretariat, Hyderabad and Others. … Appellants And Raghupathy Reddy and Others … Respondents THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NOS.261, 262, 263 AND 265 OF 2002 COMMON JUDGMENT:(Per SK,J) A learned Judge of this Court, being of the opinion that the computation of excess landholdings of the petitioners in Writ Petition Nos.8772, 8773, 8774 and 8775 of 1995 under the Urban Land (Ceiling and Regulation) Act, 1976, required re-consideration, disposed of the said writ petitions by order dated 19.09.2001 directing so. Aggrieved thereby, the respondents in the writ petitions are in appeal. The parties shall be referred to as per their array in the writ petitions. The petitioners in the four writ petitions from which these appeals arise are related. The petitioners in W.P.No.8773/1995, K.Vittal Reddy and K.Penta Reddy (respondents in Writ Appeal No.261/2002); the petitioner in W.P.No.8774/1995, K.Narayana Reddy (respondent in Writ Appeal No.262/2002); and the petitioner in W.P.No.8775/1995, K.Pratap Reddy (respondent in Writ Appeal No.263/2002) are brothers being the sons of one Kallem Yella Reddy. The petitioners in W.P.No.8772/1995, K.Raghupaty Reddy, K.Narasimha Reddy and K.Mohan Reddy (respondents in Writ Appeal No.265/2002) are brothers being the sons of K.Bali Reddy and belong to the same family as is evident from their surname ‘Kallem’. They owned various extents of land in Balapur Village, Saroornagar Mandal, Ranga Reddy District, and filed their declarations in respect thereof under Section 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976 (for brevity, ‘the Act of 1976’). Draft statements under Section 8(1) of the Act of 1976 were prepared by the Special Officer & Competent Authority, Urban Land Ceiling, Hyderabad, in November/December, 1981 in all the cases and the petitioners were asked to submit their objections to the computation of their excess landholdings under Section 8(3). Admittedly, they all filed petitions in December, 1981 expressing that they had no objections to the computation of the excess lands held by them, which were sought to be declared as surplus. Thereupon, orders under Section 8(4) and final statements under Section 9 of the Act of 1976 were issued determining the excess vacant lands held by the petitioners individually. Relevant to note, these orders were never subjected to challenge by the petitioners, be it under Sections 33 or 34 of the Act of 1976 or before this Court. Thereafter, notifications of acquisition by the Government were caused under Section 10(1) of the Act of 1976 giving the particulars of the vacant lands held by the petitioners in excess of the ceiling limit. As no claims were put forth under Section 10(2), declarations under Section 10(3) of the Act of 1976 were also caused by way of publication in the official gazette. Thus, the lands held to be surplus in the hands of the petitioners vested absolutely in the Government free from encumbrances from the date of such publication in the official gazette. Notices under Section 10(5) of the Act of 1976 were issued on 12.04.1983 by the Special Officer & Competent Authority, Urban Land Ceiling, Hyderabad, calling upon the petitioners to vacate and deliver possession of the excess vacant lands held by them within thirty days from the date of service of the notices. As the petitioners failed to comply with this diktat, action was initiated under Section 10(6) of the Act of 1976 on 16.05.1983, taking note of the fact that the Section 10(5) notices had been served upon the petitioners on 15.04.1983 but they failed to deliver the vacant physical possession of the lands within the time stipulated, and authorizing the Deputy Tahsildar, Hayathnagar, to take possession of the lands. Under panchanama dated 17.05.1983, the Special Deputy Tahsildar accompanied by three panchas (witnesses) took over the possession of the surplus lands held by the petitioners. He handed over the said lands on 02.06.1983 to the UDRI, Hayathnagar Circle, Ranga Reddy District, who in turn handed over their possession to the Patel of Balapur Village on the same day. The record speaks to this effect. The petitioners along with others approached this Court by way of Writ Petition Nos.4192 to 4201 of 1983 challenging the notices dated 12.04.1983 issued under Section 10(5) of the Act of 1976. By common order dated 24.05.1983 passed at the admission stage, this Court, taking note of the pendency of the appeals filed by the petitioners therein against the notices dated 12.04.1983, and being of the opinion that it was not in dispute that the petitioners therein were in possession of the lands, directed that their possession should not be disturbed till the final enquiry was made by the Commissioner in the appeals. The alleged taking over of possession of the lands in question under Section 10(6) of the Act of 1976 on 17.05.1983 was obviously not brought to the notice of the Court. Be that as it may, by orders dated 28.09.1983, the appeals filed by the petitioners were dismissed by the Commissioner of Land Reforms and Urban Land Ceiling, Hyderabad. The appellate authority referred therein to the order dated 24.05.1983 passed by this Court in the batch of writ petitions and pointed out that the lands in question had already been taken possession of prior to the passing of the said order. On merits, the appellate authority held that when proceedings had gone upto the stage of Section 10(3) of the Act of 1976, the party could not seek the remedy of an appeal, having already taken a particular stand in his declaration and the statement of no objections submitted in response to the Section 8(1) draft statement. The appellate authority therefore held that the petitioners were estopped from invoking the appellate jurisdiction after the declaration under Section 10(3) of the Act of 1976 had been published. Pointing out that initiation of steps under Section 10(5) of the Act of 1976 was only a procedural action pursuant to the substantive action under the earlier Sections, the appellate authority disallowed the appeals. Relevant to note, the substantial common ground of attack in all the appeals was that the subject lands were agricultural in nature and that the competent authority under the Act of 1976 had therefore no jurisdiction to deal with them under the provisions thereof. This argument was rejected by the appellate authority on merits and on the ground of estoppel. The dismissal of their appeals was challenged by the petitioners by way of Writ Petition Nos.11748/1983, 11879/1983 (by the respondents in Writ Appeal No.261/2002); Writ Petition No.11805/1983 (by the respondent in Writ Appeal No.262/2002); Writ Petition No.11887/1983 (by the respondent in Writ Appeal No.263/2002) and Writ Petition Nos.11726/1983, 11804/1983 and 11883/1983 (respondents in Writ Appeal No.265/2002). All the writ petitions were dismissed by the common order of this Court dated 23.11.1987 which admittedly attained finality. While so, it appears that the Government initiated action under Section 7 of the Andhra Pradesh Land Encroachment Act, 1905 (for brevity, ‘the Act of 1905’) in April, 1994 to evict the petitioners from the subject land on the ground that they had re-entered and converted the lands into house plots and alienated the same, though the lands had vested in and were possessed by the Government. At this stage, the writ petitions from which the present appeals arise were filed. The prayer in the writ petitions was two fold. Apart from challenging the notices issued under Section 7 of the Act of 1905, the petitioners also sought to challenge the declaration that their agricultural lands were ‘vacant lands’ under the provisions of the Act of 1976. It was their case that they had filed declarations under Section 6(1) of the Act of 1976 showing their lands as agricultural lands but in spite of the same the assessing authority had computed their excess landholdings including the said agricultural lands on the ground that they had been earmarked for purposes other than agriculture in the master plan. They claimed to have filed appeals before the Commissioner of Land Reforms and Urban Land Ceiling, Hyderabad. Pausing here, reference to the appeal numbers in the writ affidavits indicates that these were the appeals filed by the petitioners against the notices under Section 10(5) of the Act of 1976 and not against the orders under Section 8(4) and the final statements issued under Section 9 of the Act of 1976. They further stated that applications had been filed by them before the Government of Andhra Pradesh seeking exemption of their lands under Section 20(1)(a) of the Act of 1976 and that during the pendency of these applications they had received the notices issued under Section 7 of the Act of 1905. They further claimed that they were in physical possession of the subject lands for several decades and urged that the subject lands could not be treated as vacant lands within the meaning of the Act of 1976 as they did not fall within the original master plan obtaining as on the date of commencement of the Act of 1976 and that they only came to be included in the extended master plan dated 29.09.1980. They placed reliance on the Judgment of the Supreme Court in ATIA MOHAMMADI BEGUM v. STATE OF U.P.[1] in this regard. The petitioners further claimed that they were entitled to retain 5 acres each excluding the area left for roads, parks, schools and other public purposes, under G.O.Ms.No.733, Revenue (UC-II) Department, dated 31.10.1988. The Special Officer & Competent Authority, Urban Land Ceiling, Hyderabad, in his counter referred to the various developments that had taken place under the Act of 1976, including the taking over of the possession of the petitioners’ lands on 17.05.1983 and the dismissal of their appeals filed against the notices dated 12.04.1983 issued under Section 10(5) of the Act of 1976, on 28.09.1983. While admitting that the petitioners had filed applications seeking exemption under Section 20(1)(a) of the Act of 1976 in the year 1988, he pointed out that after examination of the said applications, recommendation had been made to the Government to reject the same. This recommendation is said to have been embodied in the letters dated 27.03.1993. He pointed out that the master plan was extended on 29.09.1980 to non-municipal areas and that the lands of the petitioners were covered thereby. He disputed the claim of the petitioners that their lands were agricultural in nature and that they would not come within the purview of the Act of 1976. He further disputed the petitioners’ entitlement for seeking benefit under G.O.Ms.No.733 dated 31.10.1988, as their lands were taken possession of under Section 10(6) of the Act of 1976 long prior to the issuance of the said G.O. He further stated that the petitioners, after re-entering the land, had converted them into house sites and sold away the same to various persons in violation of the Act of 1976. Steps were said to have been initiated under Section 7 of the Act of 1905 for their eviction. Faced with this factual scenario, the learned single Judge was of the opinion that the proceedings under Chapter-III of the Act of 1976 had not attained finality. The learned Judge further opined that the possession of the subject lands was only taken on paper, viz., a symbolic possession, and that the petitioners continued to remain in possession even thereafter and no third party rights intervened. The learned Judge therefore held that the petitioners could not be non- suited on the ground of delay. Taking recourse to the Judgments of the Supreme Court in ATIA MOHAMMADI BEGUM1 a n d SPECIAL OFFICER & COMPETENT AUTHORITY, URBAN LAND CEILINGS, HYDERABAD v. P.S.RAO[2], the learned Judge directed the Special Officer & Competent Authority, Urban Land Ceiling, Hyderabad, to re- compute the surplus holdings of the petitioners in the light of the decisions aforestated after giving due opportunity to them. Aggrieved thereby, the State and its Officers, including the Special Officer & Competent Authority, Urban Land Ceiling, Hyderabad, are in appeal before us. At the outset, it may be noted that the Judgment of the Supreme Court in ATIA MOHAMMADI BEGUM1 was partly overruled in STATE OF A.P. v. N.AUDIKESAVA REDDY[3], wherein it was held that the master plan prepared even subsequent to the enforcement of the Act of 1976 had to be taken into consideration to determine whether a particular piece of land is ‘vacant land’ or not. To this extent, ATIA MOHAMMADI BEGUM1 was said to be not correctly decided. Though ATIA MOHAMMADI BEGUM1 held the field on 19.09.2001 when the learned Judge passed the common order in the writ petitions, that legal position no longer obtained in view of the authoritative pronouncement i n N.AUDIKESAVA REDDY3 immediately thereafter on 06.11.2001. The petitioners’ contention that their lands were not covered by the master plan as it stood at the time of commencement of the Act of 1976 and were brought in only under the extended master plan dated 29.09.1980, thereby warranting their exclusion from the purview of the Act of 1976, cannot therefore be countenanced. Though Sri Vedula Venkataramana, learned senior counsel appearing for the petitioners, strenuously contended that the subject lands were agricultural in nature and could not be brought within the parameters of ‘urban land’ or ‘vacant land’ under Section 2(o) or (q) of the Act of 1976, it is to be noticed that the petitioners themselves filed declarations under Section 6(1) of the Act of 1976 and did not choose to raise an objection to the draft statements issued by the competent authority under Section 8(1) of the Act of 1976. On the contrary, they submitted petitions stating that they had no objection to the computation of their excess land holdings. The excess landholdings embodied in the draft statements included these so-called agricultural lands. The petitioners further did not choose to assail the final statements issued under Section 9 of the Act of 1976 covering these so-called agricultural lands. On the other hand, they allowed the proceedings to culminate in the final declaration under Section 10(3) of the Act of 1976 whereby the lands stood vested in the Government. It was only after issuance of notices under Section 10(5) of the Act of 1976 that the petitioners reacted by filing appeals against the said notices under Section 33 of the Act of 1976 and by approaching this Court. However, the dismissal of their appeals thereafter on 28.09.1983, which stood confirmed by the common order dated 23.11.1987 passed by this Court in the batch of writ petitions, also attained finality. Relevant to note, the order passed by the appellate authority made specific mention of the fact that the petitioners’ lands had already been taken possession of contrary to the observation made by this Court in the order dated 24.05.1983 in the earlier batch of writ petitions. This finding attained finality with the dismissal of the writ petitions filed against the appellate authority’s orders. As stated earlier, the orders under Section 8(4) and the final statements under Sections 9 of the Act of 1976 had attained finality without challenge. The appellate authority, relying on a Judgment of this Court, pointed out that Section 10(5) only provided for procedural action to be taken pursuant to the substantive decisions effected under Sections 8(4) and 9 culminating in the final declaration under Section 10(3) of the Act of 1976. He therefore rightly held the appeals to be not maintainable as the petitioners sought to re-open the proceedings at that late stage. The said appellate orders came to be confirmed by this Court under the common order dated 23.11.1987 passed in the batch of writ petitions filed by the petitioners and others. The order dated 23.11.1987 reads as under: “WRIT PETITION NOS.11726, 11730, 11748, 11750, 11764, 11804, 11805, 11879, 11883 AND 11887 OF 1983. ORDER: The petitioners in this batch of writ petitions are owners of lands situated in the village of Balapur within the Hyderabad Urban agglomeration governed by the provisions of the Urban Land (Ceiling and Regulation) Act, 1976. It is the case of the petitioners that inasmuch as the lands owned by them are used for agricultural purposes, their lands are outside the purview of the Act. It is however brought to my notice and admitted by the counsel appearing for the petitioners that they sought exemption from the provisions of the Act treating the lands as falling within the purview of the Act. On their own assertion the writ petitions have to be dismissed. The same are accordingly dismissed. No costs. Advocate’s fee Rs.150/- in each of the writ petitions.” The order manifests that the petitioners argued that their lands, being used for agricultural purposes, were outside the purview of the Act of 1976. However, this Court taking note of the fact that the petitioners themselves sought exemption from the provisions of the Act of 1976 treating the lands as falling within the purview of the Act, was of the opinion that by their own assertion the petitioners’ cases had to be dismissed and accordingly did so. The said common order attained finality. Having invited a finding in the above order upon their contention that their lands, being agricultural in nature, stood excluded from the purview of the Act of 1976, the endeavour of the petitioners in seeking to lay the same challenge once again in the present litigation is barred by the doctrine of res judicata. This doctrine is often treated as a branch of the law of estoppel, though the two differ in some essential particulars. The rule of res judicata prevents the parties to a judicial determination from litigating the same question again even though the determination may be demonstrably wrong. When the proceedings attain finality, parties are bound by the Judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are ‘cause of action estoppel’ and ‘issue estoppel’. These two terms are of common law origin. Once an issue is finally determined, the only remedy for the parties is to approach the higher forum if available. The determination of the issue between the parties gives rise to an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 CPC contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. The plea of res judicata, though technical, is based on public policy in order to put an end to litigation [HOPE PLANTATIONS LTD. v. TALUK LAND BOARD, PEERMADE[4]]. In this legal environment, having invited an adjudication on the very same issue in the earlier batch of writ petitions filed by them and having suffered the adverse order dated 23.11.1987, it was not open to the petitioners to once again agitate as to whether their lands were agricultural in nature placing them beyond the purview of the Act of 1976. Relevant to note, the petitioners did not even choose to disclose the factum of their having filed the above writ petitions and the dismissal of the same by the common order dated 23.11.1987. This suppression amounts to an abuse of the process of this Court and disentitles the petitioners in any event from seeking relief in the present litigation. Though on facts the petitioners dispute that they were dispossessed from the subject lands, sufficient record exists in proof of such dispossession. It may be noted that the subject lands were vacant lands and there can be no ‘physical’ taking over of possession of such lands. Sri M.S.Ramchandra Rao, learned standing counsel for the Special Officer & Competent Authority, Urban Land Ceiling, Hyderabad, contended that delivery of physical possession of vacant land would only be evidenced by record, that is, the panchanama. We find merit in this contention. The Judgments relied upon by the learned counsel in this regard are also of guidance. In BALMOKAND KHATRI EDUCATIONAL AND INDUSTRIAL TRUST, AMRITSAR v. STATE OF PUNJAB[5], the Supreme Court pointed out that the normal and accepted mode of taking possession is by drafting the panchanama in the presence of panchas and taking possession and giving delivery of the same to the beneficiaries. The Court was of the opinion that subsequent thereto, the retention of possession by the person divested would tantamount only to illegal or unlawful possession. Similarly, in TAMIL NADU HOUSING BOARD v. A.VISWAM[6], the Supreme Court pointed out: “9. It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchnama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not cooperate in taking possession of the land.” I n SITA RAM BHANDAR SOCIETY v. LIEUTENANT GOVERNOR, GOVERNMENT OF NCT, DELHI[7], the Supreme Court observed that it would be impossible for the authorities while taking possession of a large area of land to enter each bigha or biswa and take possession thereof; and that a pragmatic approach had to be adopted by the Court. The Court stated that one of the methods of taking possession and handing it over to the beneficiary Department is the recording of the panchanama which can in itself constitute evidence of the fact that possession had been taken and the land had vested absolutely in the Government. Reference may also be made to the observations of the Supreme Court in ASHAN DEVI v. PHULWASI DEVI[8]: “23. Salmond on Jurisprudence explains that the word “possession” is a word of “open texture”. Its legal meaning has to be ascertained from the context. The property involved in the present case is open vacant land. Such property is possessed by a person who has control over the same. This “control” over the property means “power to exclude all others”. The test then for determining whether a man is in possession of anything is whether he is in “general control” of it — maybe, that he is not in actual and physical possession or using the same.” The Supreme Court therefore held that where the property involved was a vacant land it could be possessed only by having ownership and control over it. In the light of this established legal position, once the petitioners stood divested of their possession and control over the subject lands as evidenced by the panchanama dated 17.05.1983 and the subsequent record showing delivery of the possession to the local authorities, the claim that they retained possession of the land thereafter would only tantamount to illegal and unauthorized possession, as pointed out in BALMOKAND KHATRI EDUCATIONAL AND INDUSTRIAL TRUST, AMRITSAR5. The delivery of possession was also noted in the appellate order dated 28.09.1983 which stood confirmed by the common order dated 23.11.1987 passed by this Court. The petitioners are therefore estopped from raising the plea at this stage that they were never dispossessed pursuant to the proceedings initiated under the Act