# CIRCLE,-SECUNDERABAD REP. BY EXECUTIVE OFFICER v. MOHAMMED MOHIUDDIN AND ORS

- **Citation:** [2003] Supp. 6 S.C.R. 395
- **Court:** Supreme Court of India
- **Decided:** 2003-11-28
- **Case number:** Civil Appeal Nos. 68776881 of 2000
- **Bench:** Brijesh Kumar, Arun Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/circle-secunderabad-rep-by-executive-officer-v-mohammed-mohiuddin-and-ors-19592
- **Pages:** 25

## Headnote

Cantonments Act, 1924-Sections 181 (3) & 181 (4)(b)-Scope ofHeld, under Section 181 (3) before sanctioning a plan the Board is
required to refer the application for sanction of plan to the Defence Estate C
Officer for ascertaining whether there is any objection on the part of the
Government to erection or re-erection over the land in question-Under
Section 181 (4) (b), that the Competent Authority dealing with the matter
has to see whether there is or not any dispute about land between the
person applying for sanction of the plan and the Government.
D
Sections 181(3) & 181 (4)(b)-Application submited to Cantonment
Board for sanction of a plan-Returned to the ground of non-fulfillment
of requirement of filing exemption certificate under the provisions of Urban
Land Ceiling Act-Nothing to show that a reference was made to the
Defence Estate Ojicer before returning the application earlier-Held, the E
Defence Estate Officer would neither be denuded of his statutory responsibility to raise objection about Government's claim to the land or dispute
about it nor the competent authority was absolved of his statutory duty to
refer the matter to the Defence Estate Officer-In such circumstances
principles of restrictive res judicata not available to the applicants- F
Constructive res judicata-Civi/ Procedure Code-Section 10.
Cantonment Land Administration Rules, 1937-Rules 3 & 10Maintenance of General Land Register-Defence Estates Officer is required to maintain General Land Register in respect of all land, which has
been entrusted to, or vests in the Board.
G
Civil Procedure Code-Sect. 79 and Order 2 7 Rule 3-Suit by or
against the Government-Whether Union of India is to be imp/eaded as
a party and not the authority or any officer-The Cantonment Board
through one of its designated officers considers the application for sanction H
395
396
SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R.
A of plan-It shall have its right to defend its orders-Under the statut01y
provisions, the plan is not to be sanctioned in case there is a dispute
between the applicant and the Government-Under the statute again the
mater is to be referred to the Defence Estate Officer to ascertain this fact
and it is for him if any such dispute exists between the applicant and the
B Government of India-Therefore, it cannot be said there would be no
reason for these authorities to contest the matter-The interest of the
Government of India is ve1y much involved and it will have all the interest
to see that the plan is not sanctioned in case it has a claim over the land.
The land over which the Respondents proposed to raise construcC tion fell in the limits of the Appellant Cantonment Board. The
Appellant Board had been collecting tax in respect of the land, which
had been in possession of the Respondents. The Respondents had
submitted plans to the Executive Officer of the Cantonment Board for
sanction of the plan, which was returned with an objection that the
D Respondents were required to furnish exemption certificate under the
provisions of Urban Land (Ceiling and Regulation) Act, 1976. The
Respondents challenged the return of the layout plait by filing a writ
petition before the High Court, which was allowed and it was held that
no exemption certificate was required under the Act. However, lay out
E plan was again returned on the ground that the land in question was
in Sarkari Abadi Land. So another writ petition was filed by the
Respondents and the same was also allowed with a direction to the
authotities to find out as to whether the Respondents had established
a prima facie case as to their possession and also to consider the
objection of the Union and to pass an appropriate order thereof. The
F application for sanction of plan was dismissed as the land was found
to have been in possession of the Government of India. Respondents
filed appeal against order refusing permission for sanction of land.
During the pendency of the appeal, Respondent filed another writ
petition to

## Text

_Characters 0–39,944 of 59,638. This is a partial read: ask again with offset=39944 for what follows._

SECUNDERABAD CANTONMENT BOARD, ANDHRA
A
CIRCLE,-SECUNDERABAD REP. BY EXECUTIVE OFFICER
v.
MOHAMMED MOHIUDDIN AND ORS.
NOVEMBER 28, 2003
B
[BRIJESH KUMAR AND ARUN KUMAR, JJ.]
Cantonments Act, 1924-Sections 181 (3) & 181 (4)(b)-Scope ofHeld, under Section 181 (3) before sanctioning a plan the Board is
required to refer the application for sanction of plan to the Defence Estate C
Officer for ascertaining whether there is any objection on the part of the
Government to erection or re-erection over the land in question-Under
Section 181 (4) (b), that the Competent Authority dealing with the matter
has to see whether there is or not any dispute about land between the
person applying for sanction of the plan and the Government.
D
Sections 181(3) & 181 (4)(b)-Application submited to Cantonment
Board for sanction of a plan-Returned to the ground of non-fulfillment
of requirement of filing exemption certificate under the provisions of Urban
Land Ceiling Act-Nothing to show that a reference was made to the
Defence Estate Ojicer before returning the application earlier-Held, the E
Defence Estate Officer would neither be denuded of his statutory responsibility to raise objection about Government's claim to the land or dispute
about it nor the competent authority was absolved of his statutory duty to
refer the matter to the Defence Estate Officer-In such circumstances
principles of restrictive res judicata not available to the applicants- F
Constructive res judicata-Civi/ Procedure Code-Section 10.
Cantonment Land Administration Rules, 1937-Rules 3 & 10Maintenance of General Land Register-Defence Estates Officer is required to maintain General Land Register in respect of all land, which has
been entrusted to, or vests in the Board.
G
Civil Procedure Code-Sect. 79 and Order 2 7 Rule 3-Suit by or
against the Government-Whether Union of India is to be imp/eaded as
a party and not the authority or any officer-The Cantonment Board
through one of its designated officers considers the application for sanction H
395
396
SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R.
A of plan-It shall have its right to defend its orders-Under the statut01y
provisions, the plan is not to be sanctioned in case there is a dispute
between the applicant and the Government-Under the statute again the
mater is to be referred to the Defence Estate Officer to ascertain this fact
and it is for him if any such dispute exists between the applicant and the
B Government of India-Therefore, it cannot be said there would be no
reason for these authorities to contest the matter-The interest of the
Government of India is ve1y much involved and it will have all the interest
to see that the plan is not sanctioned in case it has a claim over the land.
The land over which the Respondents proposed to raise construcC tion fell in the limits of the Appellant Cantonment Board. The
Appellant Board had been collecting tax in respect of the land, which
had been in possession of the Respondents. The Respondents had
submitted plans to the Executive Officer of the Cantonment Board for
sanction of the plan, which was returned with an objection that the
D Respondents were required to furnish exemption certificate under the
provisions of Urban Land (Ceiling and Regulation) Act, 1976. The
Respondents challenged the return of the layout plait by filing a writ
petition before the High Court, which was allowed and it was held that
no exemption certificate was required under the Act. However, lay out
E plan was again returned on the ground that the land in question was
in Sarkari Abadi Land. So another writ petition was filed by the
Respondents and the same was also allowed with a direction to the
authotities to find out as to whether the Respondents had established
a prima facie case as to their possession and also to consider the
objection of the Union and to pass an appropriate order thereof. The
F application for sanction of plan was dismissed as the land was found
to have been in possession of the Government of India. Respondents
filed appeal against order refusing permission for sanction of land.
During the pendency of the appeal, Respondent filed another writ
petition to restrain the authorities from interfering with the possession
G of the Respondents till disposal of their appeal. The appeal filed by the
Respondents was also dismissed holding that the Respondents had no
title to the land in question. Respondent thereafter filed another writ
petition challenging the order dismissing the aP.peaI. A Single Judge
allowed the writ petition holding that the authorities were not required
H to go into the question of title of the Respondents, as this question was
SECUNDERABAD CANTONMENT BOARD v. MOHAMMED MOHIUDDIN 397
not raised in the earlier proceedings. The Single Judge also considered A
the case of the Appellant Board that the land was covered under the
old grant and found that Nizam granted no land to the Union for
military purposes. Thus Cantonment Board was directed to sanction
the lay out plan of the Respondents. The appeal against the order of
the Single Judge was also dismissed. Hence this appeal.
B
It was the case of the Appellant Board that till the year 1992 the
Respondent extended no claim, whatsoever, to the land in question.
One SAK filed a petition under Section 15(2) of the Record of the
Rights Regulation for correction of entries in the Revenue Records to C
the extent of 25 acres on the basis of an unregistered sale deed, which
was rejected by the District Revenue Officer. An appeal under Section
158 of the Land Revenue Act against this order filed before the
Commissioner of Land Revenue was also dismissed. SAK, therefore
filed a suit claimiJJg ownership and possession of land measuring 65
acres. However, it was found that he was in possession of 2.71 acres D
only and near about 63 acres of land was in possession of the
Government of India.
It was contended by the Appellant that the in old revenue records
entries with respect to the lands in question were recorded in favour E
of the Appellant; that Rule 10 of Cantonment Land Al'lministration
Rules, 1937 framed under Section 280 of the Cantonment Act, deals
with maintenance of General Land Register and Defence Estates
Officer is required to maintain the same under Rule 3 and entries made
in this Register is to be given due weight; that the title of the lands were F
in serious dispute; that the proceeding initiated by SAK for correction
of Revenue Records was rejected and entries in favour of Government
were maintained.
It was contended by the Respondents that the area of the village
concerned belonged to the Nizam; the land given by the Nizam to the G
Government was for the purposes of exercising criminal and police
jurisdiction and that the dispute regarding the land was bona fide and
genuine.
Disposing of the Appeals, the Court
H
398
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A
HELD : 1.L So far the question of investigating into the title of
the parties is concerned, the view of the High Court to the extent that
title is not required to be established by any of the parties ·before the
competent authority, is correct. So far as possession is concerned, it
may be indicated that there seems to be no such specific provision
B requiring to establish possession but it may depend upon facts of a
given case and it may be considered as one of the relevant aspects to
be kept in mind while considering the application for sanctionofa plan.
It is evident from perusal of sub-section 4(b) of Section 181 of the
Cantonment Act that the competent authority dealing with the matter,
C ·has to see whether there is or not any dispute about the land betw~en
the person applying for sanction of the plan and the Government. In
case the concerned authority, is satisfie~"about the existence o_f such a
dispute in terms of Sectior:. 181 of the Act, t~e request for sanction of
the layout plan is liable to be refused. Sub-section (3) of Section 181.,
provides that before sanctioning a plan the Board is required to refer
D the application to the Defence Estates Officer for ·as~ertaining whether
there was any objection on the part of the Government to such erection
or re-erection over the land. The said provision casts a duty upon the
sanctioning authority to refer the matter as pointed out above.
Accordingly, it referred the matter to-the DEO, who raised objections
E regarding sanction of the plan. The objection relates to the question
of ownership of the land. The Government claims ownership of the
land and in that regard reliance was pla .. ~~d upon entries in the revenue
Records and the General Land Register, which are maintained in due
course of official business. The respondents claimed their title t~rough
F the sale deed executed in favour of the son of SAK in 'the year i899,
who on attaining majority had relinquished his. rights in favour of his
father SAK on 11.8.1911 and then the alleged transfer' of diffe_rent
parts of the land to eleven different persons. The respondents had got
themselves inipleaded. A civil suit for injunction was' filed by SAK in
1992 but the prayer for injunction was refused except in respect o( a
G part of the land measuring 2.71 acres since primafacie, their possession
was not found over the rest of the land. It may be worthwhile to notice
that the proceedings for correction of the ~ecords an~ the Civil Suit
for injunction were initiated in 1992 and the application for sanction
of the plan was moved in 1994, that is to say, after the respondents
H remained unsuccessful in their attempts to obtain orders in their
SEC~DERABAD CANTONMENT BOARD v. MOHAMMED MOHIUDDIN 399
favour twice before. In such circumstances; it would be difficult to say A
that there would be no bonajide dispute about the land between the
parties. (411-E-H; 412-A-F)
Chief Executive Officer v. Surendra Kumar Vakil and Ors., (1999]
3 sec 555, referred to.
B
1.2. Enquiry would be necessary only if question of title could be
decided in the proceedings and not otherwise. There is enough material, on the basis of which an authority could reasonably come to the
conclusion that there was a dispute, relating to the land, between the
applicant and the Government in respect of which an authority could C
reasonably come to the conclusion that there was a dispute, relating
to the land, between the applicant and the Government in respect of
which sanction of the plan to construct, was applied for. Such a dispute
was brought to the notice of the competent authority by means of
objection placed before it by the DEO under the statutory provision. D
It would not be possible to say that the authority concerned took a view
about existence of dispute which was not sustainable. [412-F-HJ
1.3. Stage for raising an objection regarding a dispute between the
Government and the applicant arises after the application is referred
to the DEO by the sanctioning authority in terms of sub-section (3) of E
Section 181 of tht> Act. So far as the return of the first application is
concerned, it may be noted that it was returned since the sanctioning
authority thought it not to be entertainable, having not been accompanied by an exemption certificate under the provisions of the Urban
Land Ceiling Act. Apparently, it appears that the stage had yet arrived F
for referring the application to the DEO for his objections. The
competent authority is required to refer the application before sanctioning the plan. Nothing to the contrary has been indicated by the
respondents to show that despite reference of the application to the
DEO under Sub-section (3) of Section 181, the DEO had chosen aot
to file any objection in respect of the dispute of the claim over the land. G
On the basis of the above factual aspect, the question of failing to raise
a plea in the earlier proceedings does not arise due to return of the first
application. There is no reason to infer that the DEO had foregone his
right to raise objection regarding the ownership of the land before
sanction of the layout plan. (414-D-HJ
H.
400
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A
1.4. The earlier order returning the layout plan was on the ground
of non-fulfillment of requirement of filing exemption certificate. The
High Court in the writ petition held that there was no such requirement
to submit exemption certificate under the Urban Land Ceiling Act. There
was a direction to re-consider the matter; hence it was being scrutinized
B on the ground other than requirements of filing of an exemption
certificate. There is nothing to show that a reference was made to the
DEO before returning the application earlier. As a matter of fact, no.
such occasion would have arisen then. In this background, the DEQ,
would neither be denuded of his statutor-y responsibility to raise objection.
about Government's claim to the land or dispute about it nor the·
C competent authority was absolved ofhisstatutoryduty to refer the matter
to the DEO before considering the question of passing of the order of
sanction. The return oflayout plan earlier, was in a way atthe preliminary
stage when it was found that the application did not accompany the·
necessary documents e.g. Exemption Certificate under Ceiling laws,.
D which was then considered to be necessary. Stage to.file objection comeslate1· when the application is refer-red· to the IlEO. (416-A-E]
2.1. The Division: Bench of the High Court has recorded a finding
that the Appellants were estopped, on the principles of constructive res
judicata, from raisin~ an objection relating to existence of dispute over
E the land, on the basis that no SU('.h plea was put forward atthe stage whe.n
the map was returned first in the year 1994 saying, that the exemption
certificate under Urban Land Ceiling Act was not filed by the applicants
and thus the plea ofdispute over the land between the applicants and the
Governments, which. could have been raised earlier, but not raised cannot
F be allowed to be ta.ken up now. So far as the proposition of law is
concerned, there would be no dispute that constructive res judicata will
bind the parties in 'subsequent proceedings, but there has been decision
between the parties on the question of dispute in terms of Sub-section (3)
of Section 181 oltheAct. (413-A-C; 414-A-B]
G
Mathura Prasad Bajoo Jaiswal and Ors. v • Dossibai N. B. Jeejeebhoy,
(1970) SCR 830 and State of Uttar Pradesh v. Nawab Hussain, (1977] 3
SCR 428, referried to.
2.2. It would be worthwhile to notice that- stage· for raising an
H objection regarding a dispute between the Government and the appli-
SECUNDERABAD CANTONMENT BOARD v. MOHAMMED MOHIUDDIN 401
cants arise after the application is referred .to the DEO by the A
sanctioning author under Section 181 (3) of the Act. So far as the
return of the first application is concerned, it "!ay be noted that it was
returned since the sanctioning authority thought that it was not to be
entertainable, having not been accompanied by an exemption certificate under the provisions of the Urban Land Ceiling Act. Apparently B
it appears that the stage had not . yet arrived for referring the
application to the DEO for his objections. The competent authority is
required to refer the application before sanctioning the plan. Nothing
to the contrary has been indicated by the Respondents to show that
despite reference of application to the DEO under Section 181 (3) of C
the Act, the DEO had chosen not to file any objection in respect of
the dispute of the claim over the land. qn the basis of the above
factual aspects the question of failing to raise a pie~ in the earlier
proceedings does not arise due to return of the first application. There
is no reason to infer that the DEO had foregone his right to raise
objection regarding the ownership of the land before sanction of the D
lay out plan. (414-D-H)
Allahabad Development Authority v. Nasiruzzaman and Ors., [1996]
6 SCC 424 and Bansilal Farms v. Umarani Bose and Ors., [1997) 9 SCC
191, referred to.
Administrative Law by Sir William Wade; Eighth Edition, page 249,
referred to.
E
2.3. The Respondents just wanted to hold on by raising a flimsy
and feeble plea of constructive res judicata, which is not sustainable F
either on fact or on law. The High Court fell into error in holding that
the objectior. under Sub-section (3) of Section 181 of the Act could not
be raised by the DEO by applying the doct.rine of constructive res
judicata. [416-E-G]
3. The Cantonment Board throa.gh one of its designated officer,
considers and passes appropriate orders on the application for sanction
of plan. At least it shall have right to defend its orders. Under the
statutory provisions, the plan is not to be sanctioned in case there is
G
a dispute between the applicant and the Government. Under the statute H
402
SUPREME COURT REPORTS [2003) SUPP. 6 S.C.R.
A again the matter is to be referred to the DEO to ascertain this fact and
it is for him to raise objection, if any such dispute exists between the
applkant and the Government of India. Therefore, it cannot be said
there would be no reason for these authorities to contest the matter.
The interest of the Government ofindia is very much involved and it
.
.
B will have all the interest to see that the plan is not sanctioned in case
it has a claim over the land. (418-C-E]
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos. 68776881 of 2000.
C
From the Judgment and Order dated 11.8.2000 of the Andhra Pradesh
High Court in W.A. Nos. 92/98, 1499/97, 538, 2004, 1996 of 1998.
WITH
D
C.A. No. 753, 1107-1111, 6604/2001, 9453-9456/2003 and 6376 of
2001.
Altaf Ahmad, Additional Solicitor General, R.F. Nariman, Anoop G.
Chaudhary, P.S. Narasimha, Ananga Bhattacharya, Sudhir Nandrajog, G.
Seshagiri, T.K. Kodandaram-in-person, Guntur Prabhakar, K. Ram Kumar,
E B. Sridhar, Ms. Rekha Pandey, B.V. Balaram Das, Nikhil Nayyar, Anil
Kumar Tandale and Mrs. Lalita Kaushik for the appearing parties.
The Judgment of the Court was delivered by
F
BRIJESH KUMAR, J. All the above noted appeals though filed by
different parties, involve the same question relating to the legality of the
order dated 11.8.2000 passed by the Division Bench of the Andhra Pradesh
High Court as well as the judgments later passed following the above said
decision. The controversy revolves around the refusal to sanction the plan
submitted by different parties to the Cantonment Board for construction
G of building over the land in question. The central government raised its
claim over the land and filed objections to that effect through the Defence
Estate Officer as provided under Section 181 of the Cantonment Act, 1924.
(hereinafter referred to as 'the Act').
H
All the appeals have been heard together along with Special Leave
SECUNDERABAD CANTONMENT BOARD v. MOHAMMED MOHIUDDIN [BRIJESH KUMAR, !.] 403
Petition(C) Nos.406-409/02 in which we grant leave. All these matters are A
being disposed of by this common judgment.
The facts in brief, relevant for purposes of disposing of these matters
are that: the land over which the respondents proposed to raise construction
and had submitted plans therefor, falls in the limits of Secunderabad B
Cantonment Board. There is a bungalow No. 215 tn Thokatta Village,
which is said to have been purchased in the name of Sy~d Sirajuddin Ali
Khan, the minor, represented through his father Syed Sadiq Ali Khan,
by means ofa registered sale deed dated 21.9.1899. It is also the case of
respondents that Syed Sirujdin Ali Khan on attaining majority relinquished
his rights in favour of his father Syed Sadiq Ali Khan by means of a deed C
dated l l.8 .1911. The case of the respondents further is that Sadiq Ali
Khan had allotted land to 11 persons sometime in 1920 and made an
application for making entries in the village records accordingly. The land
S No. 37 was changed to S No. 170 on revision of settlement. According
to the respondents, the cantonment authorities have been collecting tax D
in respect of the land which has been in their possession. The respondents
moved application to the Executive Officer, Cantonment Board for sanction of lay out in respect of part of the land of S. No. 170, measuring
8 acres. The application for sanction of the plan was returned to the
respondents with an objection that they were required to furnish exemption E
certificate under the provisions of Urban Land (Ceiling and Regulation)
Act, 1976.
The respondents challenged the return of the layout plan and filed
a writ petition 4250 of 1994, before the Andhra Pradesh High Court. The
Writ petition was allowed on 30.9.94, and it was held that no such F
exemption certificate under the Urban Land (Ceiling and Regulation) Act,
1976 was required t? be furnished. The authorities were directed to
consider the sanction of the plan without insisting for exemption certificate.
The lay out plan, however, was again returned on the ground that S No.
170 is in Sarkari Abadi Land. Another writ petition No.6012/95 was filed, G
challenging the above order. The said writ petition was also allowed by
order dated 6.12.95 with a direction to the authorities to find out as to
whether the respondents had established a prima facie case as to their
possession and also to consider the objection of the Union of India and to
pass an appropriate order thereof. The application for sanction of plan was H
404
SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R.
A ultimately dismissed on 18.1.1996, refi.Ising permission, as the land was
found to have been in possession of Government of India. An appeal was
preferred against that order. Since the appeal kept on pending, yet another
writ petition No. 3606/96 was filed to restrain the authorities
from
interfering with the possession of the petitioners (in the writ petition) over
B the land,
till disposal of their appeal.
This prayer was granted on
27 .2.1996. By means of yet another order passed in writ petition No. 6009/
96 police protection was also provided to the writ petitioners (respondents
here). Ultimately,· the appeal was dismissed on 10.5.1996 holding that the
respondents had no title to the land in question.
C
It gave·rise to filing of yet another writ petition No. 10804/96 against
the order dismissing the appeal. The learned Single Judge while allowing
the writ petition held that the authorities were not required to go into the
question of title of the applicants in the land. The writ petitioners,
namely, the present respondents were held to be in possession over the
D property. The learned Single Judge also considered the case of the
appellants that the land was covered under the old grant and found that
no land was granted to the Government of India by Nizam for military
purposes. The learned Single Judge found that in the earlier proceedings,
the authorities did not raise objection'claiming title, therefore, they could
E not take that stand in subsequent proceedings as it would be hit by
principles of constructive res judicata. Possession of appellant was also not
found. With such observation, the learned Single Judge while allowing t:he
writ petition, directed the Cantonment Board to sanction the lay out plan.
The appeal, preferred against the judgment of the learned Single Judge,
F has been dismissed, which is the subject matter of appeals in hand.
Some other developments also took place during all this period.
According to the appellants, till the year 1992 the respondents extended
no claim, whatsoever, to the land in question. However, the respondent
Sadiq Ali Khan filed a petition under Section 15(2) of the Record. of the
G Rights Regulation Act for correction of entries in the Revenue Records
to the extent of 25 acres, on the basis of an unregistered sale deed. The
said application was rejected by order dated 9.4.92 by the District Revenue
officer, holding that land measuring only 2.71 acres out of the land of
Bungalow No.215 was in the private hands and the rest of the land was
H Government land which has been correctly shown to be so in the revenue
SECUNDERABAD CANTONMENT BOARD v. MOHAMMED MOHIUDDIN [BRIJESH KUMAR, l.] 405
records.
An appeal was preferred against the said order before the A
Commissioner of Land Revenue under Section 158 of the Land Revenue
Act which was dismissed on 15.3.97. It may also be mentioned that
according to the appellants, the respondents Nos. l to 62 had also got
themselves impleaded as parties in the appeal which has been decided
~~~.
B
Sadiq Ali Khan filed a Civil Suit No.288/92 also in the Court of Civil
Judge, Secunderabad claiming ownership and possession of land measuring
65 acres in S. No. 170 in Tokketa Village. A prayer made for interim
injunction was rejected by order dated 12.10.92. It was, however, found
that the plaintiff in suit was in possession of land measuring 2.71 acres C
only and in respect thereof,. he was entitled for injunction against
dispossession, but so far the rest of the land is concerned measuring near
about 63 acres it was in the ownership and possession of the Government
of India.
The Division Bench took note of the finding of the learned Single
Judge that the competent authority, while considering the question of
sanction of the building plan, is only required to see the prima facie
possession of the applicant, it has not to adjudicate upon the title of the
D
applicants.
The Division Bench also observed that the government E
authorities had not claimed title over the land in the previous proceedings,
therefore, they were estopped from raising such a plea later which is hit
by the principles of constructive res judicata. Referring to a decision
reported in AIR (1977) SC 392 Y.B. Patil v. Y.L. Patil, it observed that
the principles of constructive res judicata could apply
in subsequent F
stages of the same proceedings as well. Ultimately, it was held that
principle of constructive res judicata in this case would apply to a limited
extent as to the availability of the grounds on which layout plan could
be refused. The Division Bench, however itself recorded finding that there
is a serious dispute of title amongst various persons. The relevant part
of the judgment may be quoted, which reads as follows:-
G
"With regard to question of title, it is well settled that highly
disputed question of title cannot be entertained and adjt:dicated
in a petition under Article 226 of the Constitution oflndia. From
the various contentions raised and arguments urged on behalf of H
406
A
SUPREME COURT REPORTS [2003) SUPP. 6 S.C.R.
the respective parties, it is apparent that there is a serious dispute
of title among the various persons and authorities in respect of title
to the property in question."
In so far the objections of the appellants that the learned Single Judge has
H virtually given a finding on the title in favour of the petitioners, the
Division Bench observed as follows: -
"Such an impression does emerge from the observations of
the learned Single Judge at page 22 of the judgment, like as
authenticity of these documents cannot be doubted by the reC
spondents, the same have to be given their weight, and when
reliance is placed on those documents, the title of the petitioners
cannot be disputed. We do not agree. with the conclusions of
the learned Single Judge that the petitioners' .title has been
established."
D The Division Bench has reiterated its view that question of title could not
be decided before the competent authority nor such disputed question could
be decided in writ proceedings. It, however, in the later part of disou!!sion
in the judgment, has clarified the extent to whic~ it upholds the applicaE bility of principl~s of constructive res judicata, not being totally in
agreement with the finding of the learned Single Judge on the said point.
The relevant observation in that regard may be perused, which are quoted
below:-
F
G
H
"It is made clear that this judgment under appeal shall not
be construed as having decided the question of title in respect of
the land involved in the said writ petition. We also hold the view
that even the failure of respondents to raise or set up the question
of the title in earlier writ petitions, namely, WP No. 6012of1995,
3600 of 1996 and 6012 of 1996 as mentioned at page 21 of the
judgment of the learned Single Judge, cannot be basis for
invoking the principle of res judicata in respect of the question
oftitle. The principle of res judicata as stated above would in
this case be applicable only to -the limited question as to the
entitlement of the petitioner for sanction of lay out and as to the
grounds on which such sanction can be refused.'"
SECUNDERABAD CANTONMENl BOARD 1· .• MOHAMMED MOHIUDDIN [BRIJESH KUMAR, J.] 407
In so far the finding of the learned Single Judge in relation to the A
possession of the land by all the writ petitioners, it has been held by the
Division Bench that the said finding is limited only for the purpose of
sanction of lay out and not for any other purpose.
Before proceeding to discuss the submissions made before us by the
respective parties, it may be beneficial to peruse the provisions regarding B
the sanction of the lay out plan. Section 181 of the Cantonment Act reads
as under:-
"Section 181. Power of Board to sanction or refuse -
(1) The
Board may either refuse to sanction
the erection or re-erection, C
as the case may be, of the building, or may sanction it either
absolutely or subject to such directions as it thinks fit to make
in writing in respect
of all or any of the following matters
namely:-
(a)
to
G) x x x x x x
(2)
xx xx xx ....... .
(3) The Board before sanctioning the erection or re erection of
D
a building
on land which is under the management of the E
(Defence Estates Officer), shall refer the application to the
(Defence Estates Officer) for ascertaining whether there is any
objection on the part of the "Government to such erection or reerection and the (Defence Estates Officer) shall return the
application together with his report thereon to the Board within
thirty days after it has been received by him.
F
(4) The Board may refuse to sanction the erection or re-erection
of any building ·
(a)
when the land on which it is proposed to erect or re-erect
the building is held on a leasl! from the Government, if the G
erection or re-erection constitutes a breach of the terms of
the lease, or
(aa) when the land on which it is proposed to erect or re-erect
the building is entrusted to the management of the Board by H
A
B
c
D
E
F
408
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
the Government if the erection or re-erection constitutes a
breach of the terms of the entrustment of management or
contravenes any of the instructions issued by the Government regarding the management crf 'the land by the Board,
.
or
(b)
when the fand on wh;ch it is proposed to erect or re-erect
the building is not held on a lease from t!ie Government,
ifthe right to build on such, land is in dispute between the
person applying for sanction and the Government.
(5) x x x x x x x
(:6) x x x x x x x"
Bye law 15 reads as under:-
"15. Power of Cantt. Board to sanction, modify or reject:- The
Cantonment Board may sanction the lay out plan submitted by the
applicant if the same is in accordance with the bye-laws or
sanction the same with such modifications as the Cantt. Board
may consider fit, o.r may refuse to sanction any layout
if
proprietary rights on the land proposed to be laid out is claimed
by the Government oflndia in the Ministry of Defence to be their
l~nd as shown in the General Land Register maintained for the
purpose".
·
In our view, the main question which falls for consideration is about
the ambit and scope of Section 181 of the Act, more particularly Clause
(b) of sub-section 4 of Section 181. The above provision empowers the
Board to refuse sanction of a building plan where the land on which a
construction is proposed to be raised is not on lease from the Government
G and there exists any dispute between the applicant for sanction of the plan
and the Government.
The respective parties have drawn our attention to certain facts and
documents to.show as to which of them is the rightful owner of the land.
H The other question which has been raised by the respondents is that ground
SECUNDERABAD CANTONMENT BOARD v. MOHAMMED MOHIUDDIN [BRJJESH KUMAR. J.) 409
for rejection of plan as contained in Clause (b) of Sub-section 4 of Section A
181 is not open to be resorted to by the appellants since such a ground was
not raised earlier while returning the plan, since in
such a situation
principle of constructive res judicata would be attracted. There are a few
other peripheral questions which we shall be discussing later.
The application for sanction of plan was moved by the respondents B
on 4.12.93 addressed to the Cantonment Executive Officer. On 415
January, 1994 the Cantonment Executive Officer wrote that the ULSC
exemption certificate in Form l 9(V) from DEAPU Circle Secunderabad
was not furnished. It was also indicated that Board was also examining
the matter
relating to entertaining new lay out plans. Hence the plan C
submitted by Nawab Mohd. Usuf Khan, the General Power of Attorney,
was returned. We have already noted that a writ petition preferred namely,
writ petition No. 4250of1994, against the return of the plan was allowed
by the High Court by Judgment dated 30.9.94, holding that no exemption
certificate under the provisions of the Urban (Land and Ceiling) Act was D
necessary. Hence the matter was required to be considered again without
insisting upon a Urban Ceiling exemption certificate. The respondents
then again seems to have approached for consideration of sanction of the
plan on 10.1.1995. The cantonment Executive Officer by means of his
notification dated 15/3/99 informed to the General Power of Attorney Sh. E
Nawab Mohd Usuf Khan that the DEO (Defence Estates Officer) had
raised definite objection on behalf of the Government against the lay out
plan submitted by the respondents.
It was also indicated that in the
Revenue Records Sy. No. 170 of Thokatta Village is shown as Sarkari
Abadi which is defence owned land.
The plan was thus again returned
to the respondents. At this juncture, it may be relevant to take note of F
sub-section 3 of Section 181 of the Act, as quoted earlier.
We have already noted the findings recorded in the writ petition and
the appeal in the earlier part of the judgment. The learned counsel for the
appellant has laid great emphasis upon the old revenue record entries in G
favour of the appellant and the entries made in the General Land Register.
It is submitted that Cantonment Land Administration Rules, 1937 have
been framed by virtue of power vested under Section 280 of the Cantonments Act, 1924. Rule l 0 in Chapter III of the Cantonment Land
Administration Rules deals with maintenance of General Land Register. H
410
SUPREME COURT REPORTS {2003] SUPP. 6 S.CR.
A The Military Estates Officer (now Defence Estates Officer) is required _to_
maintain General Land Register prepared under Rule 3 in respect of all
land which has been entrusted to or vests in the Board.
In this
connection, a reference has also been made to a decision repo1ted in
Chief Executive Officer v. Surendra Kumar Vakil and Ors., [1999] (3) SCC
B page 555. Regarding General Land Registers, it has been observed thflt
they are maintained under the Rules, in normal course of business and
entries made in such registers were to be given due weight. It is therefore,
submitted that it cannot be said that no value is to be attached to the entries
made in the General Land Registers. It has also been submitted that there
being a serious dispute about the title of the property as also found by
C the Division Bench, existence of the dispute in respect of the property
in question cannot be disputed.
The learned counsel appearing for the Union of India has referred
to the proceedings which were initiated by Sadiq Ali Khan for correction
·D of revenue records but that application was rejected on 9.4.92. The appeal,
preferred against the said order passed by the District Revenue Officer in
which 62 respondents also got themselves impleaded, was also dismissed.
That is to say the entries in revenue records in favour of the Government -
were maintained and the attempt of the
respondents for change of the
E entries claiming right over the land in question failed. The authorities of
the Defence Department were also heard. It was held that the claim
advanced by the respondents was not substantiated by documents and)t
was without any basis. It was found that the land was Government land/
military estate. The Special Commissioner, Land Revenue observed in
his order that no proper documents were produced by the respondents. It
F is also indicated that in a suit filed by Sadiq Ali Khan (O.S. No. 288/92)
with a prayer for injunction on the basis of the possession, the prayer was
rejected except in part relating to 2.7 acres.
Learned counsel appearing for the respondents tracing the history
G submitted that area of the village concerned belongs to the Nizam. It is
also submitted that respondents have been paying tax in respect of the
Bungalow No.215 which was purchased by Syed Sirajuddin Ali, a minor
son of Sadiq Ali Khan in the year 1899 who, on attaining majority, had
relinquished his rights in favour of his father,
Sadiq Ali Khan on
H 11.8.1911. He wrote to the authorities in 1920 that he had allotted the )anp
SECUNDERABAD C..\NTON1'fENT BOARD ». MOHAMMED MOHIUDDIN [BRIJESH KUMAR. J] 41 l
to the extent of 19.05 gts. to different persons and the same was requested A
to be recorded in the village records. The fact was acknowledged by the
Directorate and the Secretary of the Estate of Nawab Salarjung Bahadur
saying that it was not agricultural land, therefore no assessment was made
but. later tax at the rate of Rs. 5 per acre was levied. Therefore, a sum
of Rs. 325 in respect of the land
in Survey No. 37 was held liable to be B
collected from Sadiq Ali Khan and his allottees. It was also indicated by
the authorities of the Estate that on revision of the Bandobast (settlement)
Sy. No. 37 was given a new Sy. No. 170. He. has also drawn our attention
to the fact that the land which
was handed over by the Nizam to
Government was only for the purposes of exercising criminal and police
jurisdiction by the Government of India and Thokatta is one of such C
villages mentioned in the notification dated 28.9.1906. A copy of the
aforesaid document has been provided to us by the learned Counsel for
the respondents which does not seem to be a part of th~ record. He has
also drawn our attention to the documents, namely, the sale deed dated
21.9.1899 regarding 64 acres and deeds pertaining to non-agricultural D
land. It has further been submitted that the dispute regarding the land, by
reason of which permission to sanction the map can be refused, should
be bonajide and a genuine dispute. ·
So far the question of investigating into the title of the parties is E
concerned; we feel that the view of the High Court to the extent that title
is not required to be established by any of the parties before the competent
authority, is correct. So far possession is concerned, it may be indicated
that the.re seems to be no such specific provision requiring to establish
possession but it may depend upon facts of a given case and it may be
considered as one of the relevant aspects to be kept in mind while F
considering the application for sanction of a plan. But so far the statutory
requirement is concerned, it is evident from perusal of sub-section 4 (b)
o~ Section 181 that the competent authority dealirig with the matter, has
to see whether there is or not any dispute about the land between the
person applying for sanction of the plan and the Government. In case the G
concerned authority is satisfied about the existence of such a dispute in
terms of Section 181 of the Act, the request for sanction of the lay out
plan is liable to be refused.