Only determinations which are fundamental would result in the application of the doctrine of res judicata – Any determination, despite being deliberate or formal, cannot give rise to application of the doctrine of res judicata if they are not fundamental in nature – Term ‘resumption’ not be conflated with the term ‘acquisition’ as employed within the meaning of Article 300A of the Constitution so as to create a right to compensation.

SUPREME COURT OF INDIA

DIVISION BENCH

YADAIAH AND ANOTHER — Appellant

Vs.

STATE OF TELANGANA AND OTHERS — Respondent

( Before : Surya Kant and J.K Maheshwari, JJ. )

Civil Appeal No. 4835 of 2023 [Arising out of Special Leave Petition (Civil) No.2523 of 2022] 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] 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]

Decided on : 01-08-2023

A. Res judicata – Doctrine of – Only determinations which are fundamental would result in the application of the doctrine of res judicata – Any determination, despite being deliberate or formal, cannot give rise to application of the doctrine of res judicata if they are not fundamental in nature. (Para 43 and 45)

B. Property law – Compensation for resumption – Term ‘resumption’ not be conflated with the term ‘acquisition’ as employed within the meaning of Article 300A of the Constitution so as to create a right to compensation. (Para 73)

Counsel for Appearing Parties

Mr. Krishna Dev Jagarlamudi, Advocate, Ms. Inderdeep Kaur Raina, Advocate, Mr. Aaditya Mishra, Advocate, Mr. Sumanth Nookala, Advocate, Mr. Divyesh Pratap Singh, Advocate, Ms. Shivangi Singh, Advocate, Mr. Vikram Pratap Singh, Advocate, Mr. Suraj Prakash Singh, Advocate, Ms. Ishita Bedi, Advocate, Ms. Ranjana Singh, Advocate, Ms. Shivani Singh, Advocate, Mr. Ravi Shankar, Advocate, Mr. G. N. Reddy, Advocate, Mr. Sughosh Subramanyam, Advocate andMr. Vedurumudi Vishnoo C. Kashyap, Advocate, for the Appellant; Mr. Rajiv Kumar Choudhry, Advocate, Mr. Sriharsha Peechara, Advocate, Mr. Rajiv Kumar Choudhary, Advocate, Mr. Duvvuri Subrahmanya Bhanu, Advocate, Ms. Pallavi, Advocate, Ms. Kriti Sinha, Advocate and M/S. Venkat Palwai Law Associates, for the Respondent.

Cases Referred

• A. Jithendernath v. Jubilee Hills Coop. House Building Society (2006) 10 SCC 96
• Bachhittar Singh v. State of Punjab AIR 1963 SC 395
• Blair v. Curran [(1939) 62 CLR 464, 553 (Aus HC)]
• Dharama Reddy v Sub-Collector, Bodhan 1986 SCC OnLine AP 141
• Dharma Naika v. Rama Naika (2008) 14 SCC 517
• G.V.K. Rama Rao vs Bakelite Hylam Employees Co-Op. 1997 SCC OnLine AP 200
• Govt. of A.P. v. Gudepu Sailoo (2000) 4 SCC 625
• Greenhalgh v. Mallard [(1947) All ER 255
• Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v. K. Suresh Reddy (2003) 7 SCC 667
• LAO cum Revenue Divisional Officer, Chevella Division v Mekala Pandu 2004 SCC OnLine AP 217
• Mahadeo v. Sovan Devi 2022 SCC OnLine SC 1118
• Manchegowda v. State of Karnataka (1984) 3 SCC 301
• Marginson v. Blackburn Borough Council [(1939) 2 KB 426
• Parvant Nagar v. the Collector and District Magistrate 2008 SCC OnLine AP 477
• Pawan Kumar Gupta v. Rochi Ram Nag Deo (1999) 4 SCC 243
• Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [(2004) 8 SCC 614]
• S. Santhanam v State of A.P. 2006 SCC OnLine AP 145
• Sajjadanashin Sayed Md. B.E. Edr. v. Musa Dadabhai Ummer (2000) 3 SCC 350
• State of UP v. Nawab Hussain (1977) 2 SCC 806
• Suraj Lamp and Industries Private Limited v. State of Haryana (2012) 1 SCC 656
• Yeshwant Deorao Deshmukh v Walchand Ramchand Kothari 1950 SCC 766

JUDGMENT

Surya Kant, J. – 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 intra-court 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 non-occupied land in the 1960s to landless Scheduled Caste/Scheduled Tribe persons [Hereinafter, Assignees] for the purpose of cultivation, has been confirmed.

3. Since these appeals arise out of a long-drawn 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 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:-

5. The Collector after this communication, vide letter dated 07.11.1959, finally submitted a report of eligible individuals and directed that phodi or subdivision 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 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:-

7. It was only after GOM 1122 was brought into effect, that the State Government issued temprorary pattas dated 21.10.1961 [Hereinafter, Temporary Pattas] to each of the selected Assignees. It would be appropriate for proper analysis of the controversy to reproduce the contents of one such Temprory Patta dated 21.10.1961 granted to an Assignee which is as follows:-

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 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:-

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 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. Bakshs query saying that:-

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 centers for its special forces, now known as Greyhounds Commando Force. It was only when the revenue authorities analyzed their records that their attention was drawn towards the Subject Land and 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:-

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 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 166-B 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 166-B 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 Collectors order dated 03.01.1995 as well as the memo dated 24.01.1996, both of which 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 166-B 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 intra-court 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 States 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. 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:-

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:-

19. The Joint Collectors 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 Courts 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 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:-

21. Taking note of the above-reproduced liberty granted by the High Court, the Deputy Collector-cum-Mandal 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:-

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 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 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 intracourt appeal before the Division Bench of the High Court. The said writ appeal has been allowed in the Respondents favour via the impugned judgment whereby the resumption order dated 27.01.2007 stands upheld for the following reasons: –

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 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 58-A 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:-

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

28. Thirdly, Mr. Gupta, learned senior counsel drew our attention to this Courts judgement in Gudepu Sailoo[7] which we have already reproduced at Para 17 above, to contend that the impugned decision errenously 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 District Collector. Fourthly, by relying on the decision of the High Court in G.V.K. Rama Rao vs Bakelite Hylam Employees Co-Op.[8], it was contended that since the Subject Land was governed by Laoni Rules of 1950, which stipulated no condition regarding non-alienability, 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 has been in possession with the Assignees from 1953 as noted in the High Courts 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-à-vis 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 58-A 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 58-A are sine qua non. Secondly, he argued that even the policies which are stated to have prohibited alienation are not 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 58-A 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:-

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:-

Similarly, the relevant part of the 1958 Clarification is to the following effect:-

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 re-assignment 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 submissions – Firstly, that the issue of applicable law over the Subject Land can no longer be opened in light of the High Courts 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 Officers 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 Seven-Judge bench decision of the High Court in LAO cum Revenue Divisional Officer, Chevella 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 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 RespondentGreyhounds, 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 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 non-alienability. 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., 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. Reddys 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 that the High Court order dated 21.04.2006 only discusses the issue of raising the objection of irregularity in assignment and doesnt 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 non-alienability 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 Mr. Venugopals 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 Collectors 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 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 Sub-Collector, 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 58-A of the 1317 Fasli Act. He furthermore submitted that even if there is a restriction on the transfer of land independent of Section 58-A 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 instead of a prohibitory regime which is a necessary corollary for invoking the provisions of 1977 Act. He vehemently reiterated that the Subject Land doesnt 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:-

C.1 The Application of Doctrine of Res judicata

39. At the outset, we would like to highlight that since the Second SCN doesnt 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:-

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 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 Courts 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 Gupta v. Rochi Ram Nag Deo[14] may be usefully cited which observes that:-

43. By now its 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 nonessential observations which are not foundational to 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:-

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 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 Courts 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 166-B 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 166-B of the 1317 Fasli Act which is the sole fundamental determination by the High Court in its order dated 21.04.2006. 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:-

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 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.

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:-

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.

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 Respondents 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 collection of inter-departmental correspondence before the issuance of Temporary Pattas, we find that the assignment process was still underway. The Appellants 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:-

Similarly, the decision of this Court in Bachhittar Singh v. State of Punjab[20] which is cited in the above reproduced paragraph notes:-

53. We, therefore, have no reason to doubt that the assignment took place only on 21.10.1961, i.e. when the Temprorary 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 ex-facie 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 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 2-1/2 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 Appellants argument concerning non-compliance with the mandatory requirement of notification as contemplated under Section 58-A 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 inter-alia that no notification under Section 58-A was published for the district in which the Subject Land lies:-

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 58-A when it says that:-

57. The abovementioned decision thus envisages the application of Section 58-A 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 words, Assignments such as those under Section 58 of the 1317 Fasli Act are free from the rigours specified under Section 58-A 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 rulemaking power vested under Section 172 of 1317 Fasli Act, read with an independent statutory bar 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:-

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 non-alienability. We, however, clarify that since the 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: Extend 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:-

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 non-alienability, 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:-

62. In order to appreciate sub-Section (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 :-

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 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 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 aforesaid statute is somewhat similar to the one employed by the 1977 Act. This Court noted that:-

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:-

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 re-assigned 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, 2007 [Hereinafter, 2007 Amendment] through which Section 4(1)(c) was introduced. The 2007 Amendment Act in its Section 1(3) expressly states that:-

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:-

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, referred to above, caters the legal necessity of requirement of a Notification under the Act. Hence, resumption of the Subject Land and re-transfer 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

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:-

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 non-payment of compensation for violating conditions regarding non-alienability as involved in the case in hand. That apart, the High Courts 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]: –

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 individuals enjoyment of a pre-existing 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 the term acquisition as employed within the meaning of Article 300-A 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 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 requisition 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 vultures 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:-

77. Consequently, these appeals stand dismissed along with any pending applications in the above terms. No order as to costs.