HON’BLE SHRI G.S. SINGHVI, THE CHIEF JUSTICE AND HON’BLE SHRI JUSTICE C.V. NAGARJUNA REDDY Writ Appeal No.1278 of 2006 Between: The Seethammadhara Cooperatie House Building Society Limited (Regd. No. B/1628) Represented by its Secretary, Shri K. Gopi Chand, Visakhapatnam ……Appellant And The State of Andhra Pradesh, Represented by Principal Secretary, Revenue (UC.I) Department, Secretariat Buildings, Hyderabad and three others ……Respondents :: JUDGMENT :: Counsel for the Appellant : Shri Y. Srinivasa Murthy December 06, 2006 Per G.S. SINGHVI, C.J. This appeal is directed against order dated 29-9-2006 passed by the learned Single Judge in Writ Petition No.19900 of 2006, whereby he rejected the appellant’s prayer for quashing order dated 5-8-2006 passed by the government declining its request for regularisation of surplus land measuring Ac.6.00 comprised in Survey No.81/3 of Marripalem Village, Visakhapatnam District. The appellant is said to have purchased the land in question from Smt.Parvathi Das and others under an agreement of sale dated 2- 1-1982. As on that date, the land had already been declared surplus under the Urban Land (Ceiling and Regulation) Act, 1976 (for short, ‘the Act’). Just before execution of the alleged agreement of sale, Sri Josyula Vijay Kumar Das, GPA holder of Smt. Parvathi Das and nine others filed an application under Section 20(1)(a) of the Act to exempt the land in question so as to enable the erstwhile owners to transfer the same to the appellant society. For this purpose, he relied on G.O.Ms.No.136, Revenue (UC-II) Department, dated 28-1-1981. Immediately after entering into the so-called agreement of sale, the appellant also filed application dated 14-1-1982 under Section 20(1)(a) of the Act for grant of exemption in terms of G.O.Ms.No.136, dated 28-1-1981. After two years, the appellant filed Writ Petition No.15108 of 1984 for issue of a direction to the State Government to decide the application filed by it under Section 20(1)(a) of the Act. Along with the writ petition, the appellant filed WPMP.No.19929 of 1984 for stay of further proceedings and succeeded in persuading this Court to pass an interim order dated 9-11-1984. In the meanwhile, the State Government issued G.O.Ms.No.964, Revenue (UC-II) Department, dated 27-6-1983, whereby it rejected all the applications pending for grant of exemption under Section 20(1)(a) of the Act. That G.O. was challenged in a batch of writ petitions, which were allowed by this Court on 18-9-1984 – Kathya Co-operative House Building Society v. Government of A.P.[1]. The State Government challenged the order of the High Court by filing Petition for Special Leave to Appeal, but, later on, withdrew the same. After nine years of filing the first writ petition, the appellant filed Writ Petition No.10240 of 1993 for issue of a direction to the respondents to consider its application along with that of the vendors for grant of exemption under Section 20(1)(a) of the Act. During the pendency of the second writ petition, the State Government, vide its Memo dated 13-8-1993, rejected the appellant’s prayer for exemption. As a sequel to this, the writ petition was dismissed as infructuous. The appellant challenged the aforementioned decision of the State Government in Writ Petition No.2759 of 1994. A learned Single Judge allowed the writ petition on 29-10-1997 and remanded the case to the State Government for fresh consideration of the whole issue. After about one year, the appellant filed Contempt Case No.1767 of 1998 with the complaint that the direction given by the Court in Writ Petition No.2759 of 1994 has not been complied with. In the reply affidavit filed on behalf of the non-petitioners, it was disclosed that final order has been passed on 19-1-1999 and the appellant’s request has been rejected once again. For the sake of convenient reference, paragraphs 5 to 8 of that order are reproduced below: “5. The Secretary of the Seethammadhara Co-op. Housing Society, Visakhapatnam has filed W.P.No.2759 of 1994 against the rejection order issued by the Government vide Memo.No.20767/UC.I(2)/93-2 dt.13-8-1993. The High Court in its order dt.29-10-1997 has set aside the above rejected orders. Further, the High Court while allowing the W.P. in its orders dt.29-10-1997, observed that the respondent has not applied its mind before disposing of the application for exemption. It is also mentioned that the exemption under Section 20(1)(a) of the said Act has to be considered having regard to the location of land, the purpose for which the land is proposed to be used and other relevant factors. The High Court also observed that the impugned order suffers as it does not take into account the ingredient, mentioned under Section 20(1)(a) of the Urban Land (Ceiling & Regulation) Act, 1976. Since the order suffers from various infirmities, it is set aside. The matter was remanded to Government to consider the whole issue in the light of the above observations and to dispose the application within 12 weeks of time. In pursuance of the High Court order dt.29-10- 1997 an opportunity of personal hearing was given to the Secretary of the said Society on 12-1-1998, 16-5-1998, 6-6- 1998, 20-6-1998 and 18-7-1998. The Secretary of the said Society has filed written statement on 6-6-1998. The legal heirs of Sri Bhuvaneswara Das has issued a lawyer notice on 6-2-1998 stating that the said Society is trying to grab their land and they never entered into any agreement of sale with the society. They have also requested the government not to grant exemption to their lands. The information as to the genuineness of the transactions between the society and the land owners has called for from the Sub-Registrar, Visakhapatnam. It is reported that no sale deed or no power of attorney was registered relating to Seethammadhara Co- operative Housing Society in respect of lands falling in Sy.No.81/3 of Marripalem Village, Visakhapatnam Urban Agglomeration on which W.P.No.2759 of 1994 is pending in the High Court of A.P. 6. The Special Officer and Competent Authority, Urban Land Ceiling, Visakhapatnam in his latest report dt.4.12.1998 has stated that the land measuring at an extent of 27,606 sq.mtrs. in Sy.Nos.81/3B to 81/31 of Marripalem was handed over to the Visakhapatnam Urban Development Authority on 10-4-1994 under proper acknowledgement. 7. Government after careful examination of the facts available on record observe that the facts do not justify giving exemption under Section 20(1)(a) of ULC Act, 1976 as requested by the Secretary of the Seethammadhara Co- op.Housing Society to the lands in Sy.No.81/3, Marripalem Village, Visakhapatnam. 8. Government, therefore, rejects the request of the Secretary of the Seethammadhara Co-operative Housing Society, Visakhapatnam for grant of exemption to the surplus lands in Sy.No.81/3, Marripalem Village, Visakhapatnam in exercise of the powers conferred under clause (a) of sub- section (1) of Section 20 of the said Act for the following reasons: 1) The transaction between the society and the land owner (GPA holder) is an oral agreement, which do not stand test of the law. 2) The land was already handed over to the Visakhapatnam Urban Development Authority after clearance by the State Level Allotment Committee. 3) The oral agreement entered by the Society with the land owner is violative of the conditions laid down in G.O.Ms.No.136, dated 28-1-1981. 4) According to the guidelines issued by Govt. of India, the land holder and an authorized agent of the housing society concerned should file affidavits before the State Govt. seeking for exemption. In the instant case, the legal heirs of the land owner have filed petition not to consider the request of the society for exemption.” The appellant challenged that order in Writ Petition No.8520 of 1999, but its counsel unconditionally withdrew the same on 24-5-2005 by saying that his client is intending to approach the government to seek relief under G.O.Ms.No.455, dated 29-7-2002. The prayer clause of that petition and the extract of the order passed by the learned Single Judge are reproduced below: “Prayer Clause Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction calling for the records relating to the Memorandum No.26542/UC.1(2)/94-15(U.C.1) Department and quash the same and also grant exemption under Section 20(1)(a) of the Urban Land (Ceiling & Regulation) Act, 1976 as prayed for in the application dated 14-1-1982 submitted by the petitioner Society.” “Order The learned counsel appearing for the petitioner filed a letter seeking permission to withdraw the writ petition as the petitioner’s society is intending to approach the Government to seek relief under G.O.Ms.No.455, dated 29-7-2002. Recording the same, the writ petition is dismissed as withdrawn, granting liberty to the petitioner to approach the Government.” The appellant claims that Writ Petition No.8520 of 1999 was dismissed as withdrawn because its representative had been assured by the State Government that the matter will be re-considered in the light of G.O.Ms.Nos.455 and 456, dated 29-7-2002 and, therefore, after withdrawing the writ petition, a representation was made on its behalf for allotment of land to its members under G.O.Ms.Nos.455 and 456, dated 29-7-2002. A similar request was made by the land owners, who also prayed that the appellant’s prayer for regularistion may not be accepted. After re-examining the whole issue, the State Government decided to reject the request of the appellant as also that of the land owners. Accordingly, order dated 5-8-2006 was issued by Principal Secretary to Government, Revenue (UC.I) Department. The appellant challenged the last mentioned order in Writ Petition No.19900 of 2006, which was dismissed by the learned Single Judge by assigning the following reasons: i) The appellant did not pursue its challenge to order dated 19-1-1999 and withdrew Writ Petition No.8520 of 1999 without reserving right to file fresh petition. As a consequence of withdrawal of that petition, order dated 19-1-1999 passed by the State Government rejecting the appellant’s claim for exemption became final and it is not open to the appellant to resurrect its prayer for exemption. ii) The legal heirs of the vendors had sent notice dated 6-2-1998 alleging that the appellant society was trying to grab their land and that they never entered into agreement with the society. iii) The land had been transferred to Visakhapatnam Urban Development Authority on 10-4-1994 and, therefore, the question of considering the appellant’s case for allotment in terms of the policy contained in G.O.Ms.No.455, dated 29-7-2002 does not arise. Sri Y.Srinivasa Murthy, learned counsel for the appellant argued that the order under challenge is liable to be set aside because the learned Single Judge dismissed the writ petition by erroneously assuming that the owners had transferred the land to the appellant by an oral agreement. He pointed out that the land had been purchased by the appellant by a written agreement of sale dated 2-1-1982 and even though this fact finds mention not only in the documents produced before the learned Single Judge, but also order dated 29-10- 1997 passed by this Court in Writ Petition No.2759 of 1994, the learned Single Judge overlooked this important aspect. Sri Murthy then argued that the decision of the State Government not to exempt the land in question should be declared as erroneous and quashed because the application made by the appellant satisfied all the parameters specified in G.O.Ms.No.136, dated 28-1-1981. Lastly, he argued that even if the Court comes to the conclusion that the appellant is not entitled to challenge the rejection of its prayer for exemption, the State Government should be ordained to accept its request for regularization of the excess land in terms of G.O.Ms.No.455, dated 29-7-2002, else large number of innocent members of the society will be adversely affected. We have given serious thought to the arguments of the learned counsel and carefully perused the record. In our opinion, there is no merit in the appeal and the same is liable to be dismissed. A careful scrutiny of the record shows that Writ Petition No.2759 of 1994 filed by the appellant for quashing memo dated 13-08-1993 issued by the Government of Andhra Pradesh rejecting the appellant’s prayer for exemption in terms of Section 20(1)(a) of the Act was allowed by the learned Single Judge vide her order dated 29-10-1997 and the case was remanded for fresh consideration by the competent authority. It is also borne out from the record that in compliance of the direction given by the Court, the Principal Secretary to Government examined the entire record and reiterated the earlier decision to reject the application made under Section 20(1)(a) by recording details reasons. The appellant challenged that order in Writ Petition No.8520 of 1999, but withdrew the same. In this view of the matter, the appellant could not have directly or indirectly challenged order dated 19-1-1999 in Writ Petition No.19900 of 2006. Any such challenge will have to be treated as barred by the principle of constructive res judicata as enunciated by the Supreme Court in Sarguja Transport Service v. STAT[2] and Upadhyay & Co., v. State of U.P[3]. If the appellant wanted that its challenge to order dated 19-1-1999 should subsist, then, while making a prayer for withdrawal of Writ Petition No.8520 of 1999, a request should have been made before the Court that leave for withdrawal be granted subject to the filing of fresh petition with same cause in future. However, the fact of the matter is that withdrawal of the writ petition was subject to the only rider that the appellant wanted to approach the government. Thus, the appellant will be deemed to have waived its right to challenge order dated 19-1-1999 and it cannot now seek a direction to the State Government to re-consider the prayer for grant of exemption under Section 20(1)(a) of the Act read with G.O.Ms.No.136, dated 28-1-1981. The appellant’s prayer for quashing of order dated 5-8-2006 is liable to be negatived because, (1) For the reasons best known to it, the appellant did not place before the learned Single Judge copies of G.O.Ms.No.455, dated 29-7-2002 and the application made by it for regularization of excess land, and without going through the policy decision taken by the government and the contents of the application, the learned Single Judge could not have adjudicated on the appellant’s prayer. Even before the Division Bench, these documents have not been placed and, on that account, we have been deprived of an opportunity to scrutinize the appellant’s prayer for regularization of possession. (2) The material produced before the Court shows that the excess land belonging to Smt.Parvathi Das and others had been transferred to Visakhapatnam Urban Development Authority on 10-4-1994. The appellant did not challenge that action of the government in either of the writ petitions. Therefore, it is not possible to entertain the appellant’s prayer for issue of a direction to the State Government to regularise its so-called possession. Learned counsel for the appellant tried to ward-off the consequence of his client’s failure to challenge the transfer of land to Visakhapatnam Urban Development Authority by saying that physical possession of the land continued with it. Even if that be so, the Court cannot overlook the fact that the government had legitimate right to transfer the surplus land to Visakhapatnam Urban Development Authority and without making a prayer for nullification of that action, the appellant is not entitled to seek a direction for regularization of the excess land. No other point has been argued. For the reasons mentioned above, the appeal is dismissed. As a sequel to dismissal of the appeal, WAMP No.2685 of 2006 filed by the appellant for interim relief is also dismissed. G.S.SINGHVI, C.J. 6th December, 2006 C.V.NAGARJUNA REDDY, J. ks [1] AIR 1985 AP 245 [2] (1987) 1 SCC 5 [3] (1991) 1 SCC 81