ORDER : J.K. MAHESHWARI, J. 1. This petition under Article 226 of the Constitution of India has been filed by the petitioners for setting aside the order Annexure P/8 dated 28.4.2010 and Annexure P/10 dated 5.2.2016 passed by Upper Collector, Jabalpur and to restore the name of the petitioners in the revenue record holding that they are in possession of the land in question abating the proceedings pending before the competent authority under Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter shall be referred to as ''the Repeal Act''). 2. The facts giving rise to this petition are that the land bearing Khasra Nos.133/1, 133/3, 133/4 situated at Garha, District Jabalpur belong to the grand father of petitioner namely, Abdul Sattar. The proceedings under Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter shall be referred to as ''the Principal Act'') were drawn, and as per notification issued on 12.2.1993, the land was declared to be vested in the State Government under Section 10(3) of the Principal Act. After commencement of the Repeal Act, petitioners' father Habib Mustafa and Sheikh Shahadat submitted an application interalia contending that the possession of the land has not been taken from them making the payment of compensation as specified under Section 11 of the Principal Act, therefore, the proceedings stood abated. 3. Petitioners Habib Mustafa (wrongly mentioned as Habib Mohammad) and Sheikh Sahadat had filed the Writ Petition No.5794/2002, which was dismissed vide order dated 25.10.2002 in limine without issuing show cause notice, and having any reply on record. However, the Court had observed that the issue of taking over of the possession on the land in question cannot be examined in the writ petition, therefore, the petitioners may approach to the authorities concerned. As per the said order, petitioners submitted an application before the competent authority, which was rejected vide order Annexure P/8 dated 28.4.2010, without recording any finding that the possession of the land has been taken in accordance with law, though observed that the proceedings to pay compensation are pending. Thereafter, application seeking review of the said order has been filed, which remained pending before Upper Collector, Jabalpur and finally culminated vide order Annexure P/10 dated 5.2.2016 upholding the earlier order without considering and deciding the issue of delivery of actual physical possession following the procedure as prescribed. Thereafter, application seeking review of the said order has been filed, which remained pending before Upper Collector, Jabalpur and finally culminated vide order Annexure P/10 dated 5.2.2016 upholding the earlier order without considering and deciding the issue of delivery of actual physical possession following the procedure as prescribed. Under such circumstances, emphasizing that after vesting of the surplus land, if possession has not been taken drawing the proceedings under Sections 10(5) and 10(6) of the Principal Act, then as per Sections 3(2) and 4 of the Repeal Act, the proceedings of the Principal Act would be deemed to be pending and it would abate, this petition has been filed. It is prayed by the petitioners, by setting aside the orders Annexures P/8 and P/10 dated 28.4.2010 and 5.2.2016 respectively and abating the proceedings, appropriate direction to restore the name of petitioners in the revenue record may be issued. 4. The respondent/State has filed their reply inter alia taking the plea of delay and latches in coming to this Court by elapse of more than twenty years from the date of vesting, however urged, on the said ground, the petition may be dismissed. It is contended by Shri Sanjay Dwivedi, Deputy Advocate General, that in the earlier round the Writ Petition No.5794/2002 filed by the father of petitioners was dismissed by this Court on 25.10.2002, therefore, the subsequent petition filed by the petitioners stepping upon the shoes of one of the predecessor is hit by the principle of res judicata and merely passing the orders Annexures P/8 and P/10 dated 28.4.2010 and 5.2.2016 respectively does not give rise to fresh cause of action to the petitioners. It is also contended that Habib Mustafa and Sheikh Sahadat being the sons of Late Abdul Sattar were not the party to the revenue proceedings. It is said that possession of the land has been taken on 25.6.1993 in terms of Section 10(5) of the Principal Act and since the possession of the land has already been taken, therefore, there were no proceedings pending on the date of commencement of the Repeal Act hence Section 4 would not attract to the facts of the present case. It is further said, challenge as made by the petitioners is without any basis, therefore, petition is liable to be thrown out on merit. 5. It is further said, challenge as made by the petitioners is without any basis, therefore, petition is liable to be thrown out on merit. 5. Learned counsel for the petitioners submits that the issue with respect to taking over of actual physical possession of the land is relevant which was left open in the first round of litigation, and if possession has not taken following the procedure prescribed under Sections 10(5) and 10(6) of the Principal Act, the proceedings would abate as per Repeal Act. The Apex Court in the case of State of Uttar Pradesh v. Hariram reported in (2013) 4 SCC 280 observed that if possession of the land has not been taken following the procedure, the proceedings would abate. The said judgment has been followed by this Court in the case of Thamman Chand Koshta v. State of M.P in Writ Petition No.407/2014 decided on 7.4.2015. It is urged that there is no delay, because after passing the order by this Court to decide the issue of possession, an application was submitted by the petitioners before the competent authority, which was rejected as per order Annexure P/8 dated 28.4.2010 without dealing the issue of delivery of actual physical possession in the context of Sections 10(5) and 10(6) of the Principal Act, however, application seeking review was filed which has also been rejected vide order Annexure P/10 dated 5.2.2016. However, assailing both the orders Annexure P/8 and Annexure P/10 dated 28.4.2010 and 5.2.2016 respectively passed by Upper Collector, Jabalpur, immediately the present petition has been preferred. In the said sequel of fact, the issue of delay and latches is without any basis. 6. So far as the principle of res judicata is concerned, it is urged, that the order passed by learned Single Judge on 25.10.2002 in Writ Petition No.5794/2002 is without issuing notice to the other side and without any reply. In fact the said writ petition was dismissed in limine giving liberty to the petitioners to agitate the issue of taking over possession before the competent authority. In fact the said writ petition was dismissed in limine giving liberty to the petitioners to agitate the issue of taking over possession before the competent authority. Placing reliance upon two judgments of the Apex Court in the cases of Erach Boman Khavar v. Tukaram Shridhar Bhat and another reported in (2013) 15 SCC 655 and Union of India and another v. Association of Unified Telecom Service Providers of India and others reported in (2011) 10 SCC 543 , to buttress that rejection of writ petition in limine would not operate as res judicata in a subsequent proceeding when the issue of taking over actual physical possession following the prescribed procedure has not been decided finally, leaving it open for determination by the competent authority. It is said that the issue of de facto possession of the surplus land on the date of commencement of Repeal Act is relevant, therefore, the objection as raised by the respondents is baseless and may be repelled. 7. On the other hand, learned Deputy Advocate General for the respondents placing reliance on a judgment of the Apex Court in the case of State of Assam v. Bhaskar Jyoti Sharma and others reported in (2015) 5 SCC 321 contended that if proceedings have been brought belatedly, it ought to be dismissed on the ground of delay and latches and applying the principle of waiver against the petitioners. In addition to the aforesaid, it is urged that the possession of the land has been taken over, however, to demonstrate the same original record of the competent authority has been produced for perusal. In this view, it is prayed that this petition may be dismissed on merits also. 8. In addition to the aforesaid, it is urged that the possession of the land has been taken over, however, to demonstrate the same original record of the competent authority has been produced for perusal. In this view, it is prayed that this petition may be dismissed on merits also. 8. After hearing learned counsel for the parties and looking to the facts of the present case, the following issues arise for determination; (I) whether this petition can be dismissed on the ground of delay and latches (II) whether the subsequent petition filed by legal heirs is liable to be dismissed as barred by res judicata (III) whether on vesting of the land of Late Abdul Sattar and upon his death, possession has been taken by the competent authority from the holder, or from the person in possession following the procedure as prescribed under Sections 10(5) and 10(6) of the Principal Act (IV) if possession of the land has not been taken over, would it amounting to the proceedings pending and as per Section 4 of the Repeal Act, it would abate? 9. First of all, the issue No.1 which relates to delay and latches requires consideration. Looking to the facts of the present case, indeed, it is true that final notification under Section 10(3) of the Principal Act was issued on 12.2.1993 and thereafter the State Government has taken step to take over the possession. As stated by the respondents the possession of the land has been taken on 25.6.1993 but it is denied by the petitioner. It is not in dispute that the compensation under Section 11 of the Principal Act has not yet paid to the petitioners and those proceedings are still pending. However, after commencement of the Repeal Act, fathers of petitioner Nos.1 (a) to (f) and 2(a) to (e) had filed a writ petition bearing number 5794/2002 on 10.10.2002 before this Court, which was dismissed in limine on 25.10.2002 giving liberty to the petitioners to agitate the issue of taking over of possession of the land before the competent authority. In furtherance to the said order, application submitted by the petitioners before the competent authority indicating that de facto possession of the surplus land has not been taken, is decided vide order Annexure P/8 dated 28.4.2010 by Upper Collector, Jabalpur. In furtherance to the said order, application submitted by the petitioners before the competent authority indicating that de facto possession of the surplus land has not been taken, is decided vide order Annexure P/8 dated 28.4.2010 by Upper Collector, Jabalpur. In the said order, the issue of taking over of the actual physical possession following the procedure as prescribed has not been considered and decided, for this reason, a review petition was filed indicating detailed facts and referring various judgments of the Apex Court and also of this Court but it was dismissed vide order Annexure P/10 dated 5.2.2016. However, immediate thereafter the present petition has been filed on 29.2.2016. 10. On the point of delay and latches, the respondents placed reliance on the judgment of Bhaskar Jyoti Sarma (supra), but the facts of the said case were like that, after declaration of the land in surplus of the original holder under Section 10(3) of the Principal Act, it was sold to the others who have taken recourse before the Single Bench, Division Bench of the Assam High Court thereafter before the Supreme Court but remained unsuccessful. Here it is relevant to observe that as per Section 10(4) of the Principal Act, after vesting of the land, sale deed executed of the surplus land is void, and purchasers have no right in the property. However, after allotment of the land by the Assam Government, the legal heirs stepping upon the shoes of the original holder have reagitated the issue of such allotment by the Government seeking restoration of possession due to violation of the provisions of the Principal Act. The said writ petition was dismissed but in the writ appeal the order passed by learned Single Judge was set aside directing restoration of the possession of the disputed land to the respondents and thereafter Special Leave Petition was preferred before the Supreme Court. In the said sequel of the facts, the issue regarding delay and latches has been dealt with by Hon'ble the Supreme Court. The Court observed that the original proceedings of taking over of the possession have not been challenged by the holders or the legal heirs at the appropriate time though they were parties to the proceedings in previous litigation started by the purchasers. The Court observed that the original proceedings of taking over of the possession have not been challenged by the holders or the legal heirs at the appropriate time though they were parties to the proceedings in previous litigation started by the purchasers. However, applying the principle of waiver of the right by original holder and to initiate the subsequent proceedings after ten years, after loosing from all the Courts in the first round of litigation, it was held that the proceedings as brought were highly belated and principle of waiver applies. The Apex Court has dealt with the issue of delay and latches and also on merits in the said judgment, directing to restore the order of the Single Bench, setting aside the order of Division Bench of the Assam High Court. 11. Bare perusal of the facts of the present case and also the documents as referred herein above, it is not disputed by learned Deputy Advocate General that immediate after commencement of the Repeal Act, a writ petition was filed, which was dismissed in limine leaving it open to the petitioners to agitate the issue of possession before the competent authority because it cannot be gone into writ jurisdiction. However, on raising the issue of not taking the actual physical possession from holder, it was decided by Upper Collector, Jabalpur vide order Annexure P/8 dated 28.4.2010. In the order Annexure P/8 dated 28.4.2010, the finding to take over the defacto possession as per procedure prescribed under Sections 10(5) and 10(6) of the Principal Act has not been dealt with, however, enclosing various judgments of the Apex Court and also of this Court, review petition was filed making request to decide the issue of taking over of the possession. The said review petition was dismissed vide order Annexure P/10 dated 5.2.2016. Immediate thereafter, the present petition has been preferred on 29.2.2016 assailing both the orders, therefore, in my considered opinion, the plea of delay and latches as raised is not tenable in the facts, hence repelled. In view of the foregoing discussion, the facts of the present case are quite different from the facts of the judgment of Bhaskar Jyoti Sharma (supra) deciding the issue of waiver and also of delay, however, the said judgment is distinguishable on facts and of no help. In view of the foregoing discussion, the facts of the present case are quite different from the facts of the judgment of Bhaskar Jyoti Sharma (supra) deciding the issue of waiver and also of delay, however, the said judgment is distinguishable on facts and of no help. In addition upon the death of original holder, legal heirs have immediately filed the writ petition and as per liberty granted by this Court, proceedings were drawn before the competent authority, who has taken considerable time of more than ten years to decide the same, therefore also, there is no delay on the part of the petitioners to come before this Court. However, the question No.1 regarding delay and latches is hereby answered in favour of the petitioners holding that there is no delay and latches on the part of the petitioners, in filing the writ petition. 12. So far as the objection regarding res judicata to which issue No.2 has been framed, to deal with the same, the disposal record of Writ Petition No.5794/2002 has been summoned and on perusal thereof, it reveals that the said writ petition was filed on 10.10.2002, and on rectification of defects, listed for admission on 25.10.2002 and on the same date it was dismissed in limine. The order passed in the Writ Petition No.5794/2002 may be helpful to the context and to decide the issue of res judicata, however, the order passed on 25.10.2002 in Writ Petition No.5794/2002 is reproduced as thus :- ''Petitioners by Shri Aniruddha Lingwasiya. It is stated that default has been removed. Counsel heard on admission. Petitioners are assailing the order dated 31.12.1982 (Annexure P/1), declaring certain land as surplus under the Urban Land (Ceiling and Regulation) Act, 1976. Draft statement (Annexure P/2) was issued. Petitioners submit that on the date of notice, holder of the land was already dead and that no notice was given to the petitioners and they continued to be in possession of the property by virtue of the provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, proceedings abate. As no proceedings are pending on the date of repeal of the Act in the case, prayer made that proceedings be declared to have abated is misconceived. Section 4 of the Repeal Act contemplates abatement of the 'pending' proceedings. Petitioners further submit that they are in possession of the land cannot be examined in writ petition. As no proceedings are pending on the date of repeal of the Act in the case, prayer made that proceedings be declared to have abated is misconceived. Section 4 of the Repeal Act contemplates abatement of the 'pending' proceedings. Petitioners further submit that they are in possession of the land cannot be examined in writ petition. They have to approach the authorities concerned. The petition is devoid of merit and is dismissed.'' 13. On perusal of the said order, it is apparent that writ petition was heard on admission, the Court has observed that no proceedings are pending on the date of commencement of the Repeal Act, therefore, the plea to abate such proceedings was said to be misconceived because Section 4 of the Repeal Act contemplates abatement of pending proceedings. As the issue regarding possession was declined to be interfered with in exercise of the writ jurisdiction granting liberty to the petitioners to approach to the competent authority. In this context, it is relevant to note that the applicability of Section 3 Saving Clause, and Section 4 with regard to abatement of legal proceedings is depend upon the issue whether possession of the land has been taken or not, however, those are relevant to refer, however, reproduced as under:- ''3. Saving. - (1) - The repeal of the Principal Act shall not affect- (a)the vesting of any vacant land under subsection (3) of Section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; (b)the validity of any order granting exemption under sub-section (1) of Section 20 or any action taken there under, notwithstanding any judgment of any court to the contrary; (c)any payment made to the State Government as a condition for granting exemption under sub-section (1) of Section 20. (2)Where- (a)any land is deemed to have vested in the State Government under sub-section (3) of Section 10 of the Principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and (b)any amount has been paid by the State Government with respect to such land then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government. 4. 4. Abatement of legal proceedings - All proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate: Provided that this section shall not apply to the proceedings relating to Sections 11, 12, 13 and 14 of the Principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority.'' 14. Bare reading to the aforesaid, as per Saving Clause 3(1) of the Repeal Act, it appears the repeal of the Principal Act shall not affect the situation where on vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority. As per Saving Clause 3(2)(a)(b) of the Repeal Act, if possession of the land has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority but the amount has been paid, however, such land shall not be restored unless the amount paid has been refunded to the State Government. The abatement of legal proceedings would be as per Section 4 of the Repeal Act whereby it is clear that all proceedings relating to any order made or purported to be made under the Principal Act pending immediately before commencement of the Repeal Act before any Court, Tribunal or other authority shall abate and as per its proviso, the abatement would not apply to the proceedings relating to Sections 11, 12, 13, 14 of the Principal Act, but in case possession has not been taken over then such proceedings would abate. However, taking over of the de facto possession of the land following the procedure prescribed is the integral part to arrive at conclusion that the proceeding relating to any order made or purported to be made under the Principal Act is pending or not, and would it abate. 15. However, taking over of the de facto possession of the land following the procedure prescribed is the integral part to arrive at conclusion that the proceeding relating to any order made or purported to be made under the Principal Act is pending or not, and would it abate. 15. On perusal of the order passed in Writ Petition No.5794/2002 on 25.10.2002, learned Single Judge has observed that the proceedings are not pending before authority or Tribunal, therefore, prayer to abate such proceedings was said to be misconceived, but simultaneously the Court has further said that the issue of possession cannot be decided in writ jurisdiction, therefore, petitioners have to approach to the authority concerned. As per discussion to the language of Sections 3 and 4 of the Repeal Act, it is apparent that if possession has been taken over then proceedings would not remain pending and saved by Section 3, but if de facto possession has not been taken saving would not apply and as per Section 4 of the Repeal Act such proceedings would abate. Once question of possession has left open for determination, and directed to be decided by the competent authority, however, without deciding the question of possession, findings with respect to pendency of proceedings on the date of commencement of Repeal Act is of no relevance, while dismissing the writ petition in limine. In addition as per liberty granted application to decide the issue of taking over of possession has been decided by the orders passed afresh Annexures P/8 and P/10 dated 28.4.2010 and 5.2.2016 respectively, which are also under challenge in this petition giving fresh cause of action, however, legal position is required to be discussed to deal the issue of res judicata. 16. The Apex Court in the case of Mathura Prasad Sarjoo Jaiswal and others v. Dossibai N.B. Jeejeebhoy reported in AIR 1971 SC 2355 has laid down the basic principle showing applicability or non-applicability of the principle of res judicata. The Apex Court has held as thus:- ''4. The rule of res judicata applies if "the matter directly and substantially in issue" in a suit or proceeding was directly and substantially in issue in the previous suit between the same parties and had been heard and finally decided by a competent Court. The Apex Court has held as thus:- ''4. The rule of res judicata applies if "the matter directly and substantially in issue" in a suit or proceeding was directly and substantially in issue in the previous suit between the same parties and had been heard and finally decided by a competent Court. The Civil Judge, Junior Division, Borivli, decided the application between the parties to the present proceeding for determination of standard rent in respect of the same piece of land let for construction of buildings for residential or business purposes. The High Court has held that a decision of a competent Court may operate as res judicata in respect of not only an issue of fact, but mixed issues of law and fact, and even abstract questions of law. It was also assumed by the High Court that a decision relating to the jurisdiction of the Court to entertain or not to entertain a proceeding is binding and conclusive between these parties in respect of the same question in a later proceeding. 5. But the doctrine of res judicata belongs to the domain of procedure, it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. A decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties: the "matter in issue" may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent court is finally determined between the parties and cannot be reopened between them in another proceeding. The previous decision on a matter in issue alone is res judicata: the reasons for the decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the source of the right is res judicata. A previous decision on a matter in issue is a composite decision: the decision of law can not be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law. 9. A question of jurisdiction of a Court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. Rankin C.J. observed in Tarini Charan Bhattacharjee's case ILR 56 Cal 723 = (AIR 1928 Cal 777) "The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recontesting that which has 'been finally decided." A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does. not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.'' 17. Bare perusal of the aforesaid, the rule of res judicata applies if ''the matter directly and substantially in issue'' in a suit or proceeding was directly and substantially in issue in the previous suit between the ''same parties'' and had been heard and ''finally decided'' by a competent Court. The Apex Court observed that the doctrine of res judicata belongs to the domain of procedure, it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. A decision on a matter in issue may be res judicata in another proceeding between the same parties. The Apex Court has clarified: what may be ''the matter in issue'' it may be an issue of fact, an issue of law or one of mixed law and fact. It is said that if an issue of fact or an issue of mixed law and fact finally determined by a competent Court between the parties, it cannot be reopened between them in another proceeding. The previous decision on a matter in issue alone is res judicata: the reasons for decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other and claim of right from its very nature depends upon the proof of facts and application of relevant law thereto. A pure question of law unrelated to facts which give rise to a right cannot be deemed to be a matter in issue. When it is said that previous decision is res judicata, it is meant that right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A pure question of law unrelated to facts which give rise to a right cannot be deemed to be a matter in issue. When it is said that previous decision is res judicata, it is meant that right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and relevant law applicable to determination of the transaction which is the source of the right is res judicata. A previous decision on a matter in issue is a composite decision: that decision of law cannot be disassociated from the decision on facts on which right is founded. A decision on an issue of law will be res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding but not when cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares a valid transaction which is prohibited by law. A question of jurisdiction of a Court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. 18. The Apex Court in the case of Association of Unified Telecom Service Providers of India (supra) dealing with the applicability of principle of res judicata in a subsequent proceeding when liberty was granted by the Court has discussed the similar issue in Paragraph Nos. 32, 33, and 34. The Court has observed as under :- ''32. The first substantial question of law which we have to decide is whether after dismissal of Civil Appeal No.84 of 2007 of the Union of India by this Court on 19.01.2007 against the order dated 07.07.2006 of the Tribunal, the Union of India can re-agitate the question decided in the order dated 07.07.2006 that the Adjusted Gross Revenue will include only revenue arising from licensed activities and not revenue from activities outside the license of the licensee. 33. 33. For deciding this question, we must first look at the language of the order dated 19.01.2007 of this Court in Civil Appeal No.84 of 2007. The order dated 19.01.2007 is quoted herein below :- "Heard the parties. Pursuant to the direction of the TDSAT in the impugned order, a fresh recommendation has been made by the TRAI. In view thereof, we see no reasons to interfere. The appeal is dismissed. The appellant is, however, given liberty to urge the contentions raised in this petition before the TDSAT." (Emphasis Supplied) It will be clear from the language of the order dated 19.01.2007 that while dismissing the appeal, the Court has given liberty to the appellant, namely, Union of India, to urge the contentions raised in Civil Appeal No.84 of 2007. 34. In Civil Appeal No.84 of 2007, the Union of India has urged 22 grounds and Grounds 1 to 6 of the Memorandum of Appeal are extracted herein below : 1. Because the judgment and order dated 7.7.2006 passed by the Hon'ble TDSAT is wrong, erroneous, contrary to law and deserves to be set aside. 2. Because the Hon'ble TDSAT failed to appreciate that the migration package accepted and acted upon by the respondents herein itself provided for definition of Gross Revenue and Adjusted Gross Revenue. 3. Because the Hon'ble TDSAT failed to appreciate that the licensees unconditionally accepted the migration package, exploited the license on the terms and conditions mentioned therein and thereafter challenged the definition of Adjusted Gross Revenue. 4. Because the Hon'ble TDSAT failed to appreciate that it had no jurisdiction or power to examine the correctness of terms of the license which had been unconditionally accepted and acted upon by the licensees. 5. Because the Hon'ble TDSAT failed to appreciate that in fact some licensees obtained new license which contains the definition of 'Gross Revenue' and 'Adjusted Gross Revenue' which has been unconditionally accepted by the appellants (sic respondents). 6. 5. Because the Hon'ble TDSAT failed to appreciate that in fact some licensees obtained new license which contains the definition of 'Gross Revenue' and 'Adjusted Gross Revenue' which has been unconditionally accepted by the appellants (sic respondents). 6. Because the Hon'ble TDSAT failed to appreciate that under Section 4 of the Telegraph Act, 1885 it is the exclusive privilege of the Central Government to establish, maintain and work telegraph/telecom and this privilege can be given to the private parties by granting licenses on such terms and conditions as the Central Government thinks fit and appropriate." Thus, as per the express language of the order dated 19.01.2007 of this Court in Civil Appeal No. 84 of 2007, Union of India could raise each of the grounds extracted above before the Tribunal. Hence, even if we hold that the order dated 07.07.2006 of the Tribunal got merged with the order dated 19.01.2007 of this Court passed in Civil Appeal No. 84 of 2007, by the express liberty granted by this Court in the order dated 19.01.2007, Union of India could urge before the Tribunal all the contentions covered under Grounds. 1 to 6 extracted above including the contention that the definition of Adjusted Gross Revenue as given in the license could not be challenged by the licensees before the Tribunal and will include all items of revenue mentioned in the definition of Adjusted Gross Revenue in the license.'' 19. In the case of Erach Boman Khavar (supra), the question with respect to applicability of res judicata arose before the Apex Court at the successive stage of same litigation and the Apex Court in Paragraphs 39 and 50 has observed as under:- ''39. From the aforesaid authorities it is clear as crystal that to attract the doctrine of res judicata it must be manifest that there has been a conscious adjudication of an issue. A plea of res judicata cannot be taken aid of unless there is an expression of an opinion on the merits. It is well settled in law that principle of res judicata is applicable between the two stages of the same litigation but the question or issue involved must have been decided at earlier stage of the same litigation. 50. A plea of res judicata cannot be taken aid of unless there is an expression of an opinion on the merits. It is well settled in law that principle of res judicata is applicable between the two stages of the same litigation but the question or issue involved must have been decided at earlier stage of the same litigation. 50. The principles stated in Arjun Singh, Satyadhyan Ghosal and the other authorities clearly spell out that the principle of res judicata operates at the successive stages in the same litigation but, the basic foundation of res judicata rests on delineation of merits and it has at least an expression of an opinion for rejection of an application. As is evident, there has been no inadvertence on merits and further the learned Company Judge has guardedly stated two facets, namely, "not necessary to grant present Judge's summons" and "liberty to the applicant to apply, if necessary". On a seemly reading of the order we have no shadow of doubt that the same could not have been treated to have operated as res judicata as has been held by the Division Bench. Therefore, the irresistible conclusion is that the Division Bench has fallen into serious error in dislodging the order granting leave by the learned Company Judge to file a fresh suit.'' 20. As per the ratio of the above two judgments of the Apex Court, it is crystal clear, that to attract the principle of res judicata, conscious adjudication of an issue must be manifest on record. There must be an expression of opinion on the merits between the same parties, on the issue involved has been decided at the earlier stage of litigation. However, res judicata rest upon delineation of issue on merits with expression of opinion in earlier round, without any fresh cause of action, to subsequent litigation between the parties. In case express liberty is granted to raise the issue before the authority, who decided the same, would not attract res judicata in subsequent stage or proceedings. 21. However, res judicata rest upon delineation of issue on merits with expression of opinion in earlier round, without any fresh cause of action, to subsequent litigation between the parties. In case express liberty is granted to raise the issue before the authority, who decided the same, would not attract res judicata in subsequent stage or proceedings. 21. On analysis of the facts of the present case, it is apparent that after granting the liberty to decide the issue of possession by the competent authority, application was submitted to such authority inter alia contending that taking over of the possession would mean to take de facto possession by following the procedure prescribed under Sections 10(5) and 10(6) of the Principal Act. The said application was decided vide order Annexures P/8 dated 28.4.2010 stating that possession has already been taken, without paying compensation. As the issue of de facto possession was not decided by the competent authority, therefore, review petition was filed enclosing various judgments of the Supreme Court and High Court to decide the question of possession. The said review petition was also rejected by the Upper Collector, Jabalpur on 5.2.2016 vide order Annexure P/10. However, challenge is made to both the orders indicating that de facto possession has not been taken as per the judgment of the Apex Court in Hariram (supra). In this backdrop to arrive at a conclusion that the proceedings are pending or not, or it would abate or not shall be based on the determination of the issue of taking over of the possession by the competent authority or by the State Government or by the person duly authorised, therefore, to seek appropriate directions, this petition has been preferred. 22. On perusal of the facts of the case, it is not in dispute that the petitioners in the present petition are the legal heirs of the petitioners in the earlier writ petition. It also cannot be disputed that the prayer in the earlier writ petition was made to abate the proceedings in lieu of the commencement of the Repeal Act but the earlier writ petition was dismissed in limine while hearing on admission without issuing notice and reply of the respondent/State, not delineating the issue that possession has been taken on the date of commencement of the Repeal Act. Thus, observation of dismissal of the writ petition in limine without finally deciding the issue of possession would not operate as res judicata in the subsequent writ petition, wherein the orders of the competent authority Annexures P/8 and P/10 dated 28.4.2010 and 5.2.2016 deciding the issue of taking over of the de facto possession are under challenge. It is to be noted here that to abate the proceedings by virtue of subsequent enactment i.e. the Repeal Act, the proceedings must be pending on the date of its commencement. As per Section 3, if the possession has been taken over, such proceedings are saved but in case the possession has not been taken over then such proceedings would abate. The taking over of possession means to take over de facto possession of surplus land, and not on the papers. In case actual physical possession has not been taken it would mean the proceedings pending. Thus, liberty granted, in the earlier writ petition to decide the issue of possession, is relevant to decide the applicability of the Repeal Act. However, filing of subsequent writ petition challenging the fresh orders passed, as per express liberty granted in earlier writ petition to decide the issue of possession, the principle of res judicata, would not attract, as per the law laid down by the Apex Court in the above referred judgments. 23. In view of the discussion made herein above and in the facts of this case, it cannot be spell out that the principle of res judicata would attract at the successive stage of the same litigation if the issue to take over possession of surplus land was not decided finally in earlier writ petition. In the facts of the case, in the earlier order the issue of taking over the possession as per Sections 10(5) and 10(6) of the Principal Act was left open for decision by the competent authority granting express liberty. Thus, opinion expressed in limine without delineating the issue of possession on merit, would not operate as res judicata in this petition, therefore, the argument of res judicata is devoid of merit. In view of the foregoing discussion, in my considered opinion, the Issue No. (2) regarding res judicata raised by the respondents is hereby repelled. 24. Thus, opinion expressed in limine without delineating the issue of possession on merit, would not operate as res judicata in this petition, therefore, the argument of res judicata is devoid of merit. In view of the foregoing discussion, in my considered opinion, the Issue No. (2) regarding res judicata raised by the respondents is hereby repelled. 24. Now reverting back to the issue Nos.3 and 4 regarding taking over of actual physical possession following the procedure prescribed under Sections 10(5) and 10(6) of the Principal Act and abatement of the legal proceedings under Section 4 of the Repeal Act requires consideration. To deal with the same, first of all, the aforesaid provision is required to be referred, which is reproduced as under:- ''Section 10 (5) Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice. (6) If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be necessary.'' 25. On perusal of the aforesaid, it is apparent that on vesting of the land in the State Government under sub-section (3) of Section 10 of the Principal Act the Competent Authority may, by notice in writing to any person, who may be in possession of the land, direct to surrender or deliver possession thereof to the State Government or any person duly authorised by the government in this behalf within thirty days from the date of service of notice. In compliance to the provisions of sub-section (5) of Section 10 if possession has not delivered then the Competent Authority may take possession of the vacant land or cause it to be given to the concerned State Government or any person duly authorised by such government even by using force, if necessary. 26. In compliance to the provisions of sub-section (5) of Section 10 if possession has not delivered then the Competent Authority may take possession of the vacant land or cause it to be given to the concerned State Government or any person duly authorised by such government even by using force, if necessary. 26. The scope and applicability of the provision of Section 10(5) and 10(6) of the Act has been duly considered by Hon'ble the Apex Court in the case of Hariram (Supra) and held as under:- ''Voluntary Surrender 31. The 'vesting' in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. The court in Maharaj Singh v. State of UP and Others (1977) 1 SCC 155 , while interpreting Section 117(1) of U.P. Zamindari Abolition and Land Reform Act, 1950 held that 'vesting' is a word of slippery import and has many meaning and the context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. The court in Rajendra Kumar v. Kalyan (dead) by Lrs. (2000) 8 SCC 99 held as follows: ''28. ….We do find some contentious substance in the contextual facts, since vesting shall have to be a "vesting" certain. "To vest, generally means to give a property in." (Per Brett, L.J. Coverdale v. Charlton. Stroud's Judicial Dictionary, 5th edn. Vol. VI.) Vesting in favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorization cannot however but be termed to be a contingent event. To "vest", cannot be termed to be an executor devise. Be it noted however, that "vested" does not necessarily and always mean "vest in possession" but includes "vest in interest" as well.'' 32. We are of the view that so far as the present case is concerned, the word "vesting" takes in every interest in the property including de jure possession and, not de facto but it is always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act. 33. We are of the view that so far as the present case is concerned, the word "vesting" takes in every interest in the property including de jure possession and, not de facto but it is always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act. 33. Before we examine sub-section (5) and sub-section (6) of Section 10, let us examine the meaning of sub-section (4) of Section 10 of the Act, which says that during the period commencing on the date of publication under sub-section (1), ending with the day specified in the declaration made under sub-section (3), no person shall transfer by way of sale, mortgage, gift or otherwise, any excess vacant land, specified in the notification and any such transfer made in contravention of the Act shall be deemed to be null and void. Further, it also says that no person shall alter or cause to be altered the use of such excess vacant land. Therefore, from the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made in sub-section (3), there is no question of disturbing the possession of a person, the possession, therefore, continues to be with the holder of the land. Peaceful dispossession 34. Sub-section (5) of Section 10, for the first time, speaks of "possession" which says where any land is vested in the State Government under sub-section (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorised by the State Government. 35. If de facto possession has already passed on to the State Government by the two deeming provisions under sub-section (3) to Section 10, there is no necessity of using the expression "where any land is vested" under sub-section (5) to Section 10. Surrendering or transfer of possession under sub-section (3) to Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub-section (5) to Section 10 to surrender or deliver possession. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub-section (5) to Section 10 to surrender or deliver possession. Subsection (5) of Section 10 visualizes a situation of surrendering and delivering possession, peacefully while sub-section (6) of Section 10 contemplates a situation of forceful dispossession. Forceful dispossession 36. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub-section (5) of Section 10. Sub-section (6) to Section 10 again speaks of "possession" which says, if any person refuses or fails to comply with the order made under sub-section (5), the competent authority may take possession of the vacant land to be given to the State Government and for that purpose, force - as may be necessary - can be used. Subsection (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub-section (5), in the event of which the competent authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted only in a situation which falls under sub-section (6) and not under sub-section (5) to Section 10. Sub-sections (5) and (6), therefore, take care of both the situations, i.e. taking possession by giving notice that is "peaceful dispossession" and on failure to surrender or give delivery of possession under Section 10(5), than "forceful dispossession" under sub-section (6) of Section 10. 37. Requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory. Though the word 'may' has been used therein, the word 'may' in both the sub-sections has to be understood as "shall" because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under sub-section (5) or sub-section (6) of Section 10 is that it might result the land holder being dispossessed without notice, therefore, the word 'may' has to be read as 'shall'. 27. In the above judgment, it is held that after vesting of the land under Section 10(3) of the principal Act for the purpose of delivery of possession of the surplus land the compliance of Section 10(5) and 10(6) of the Act is mandatory. 27. In the above judgment, it is held that after vesting of the land under Section 10(3) of the principal Act for the purpose of delivery of possession of the surplus land the compliance of Section 10(5) and 10(6) of the Act is mandatory. The Apex Court observed that sub-section (5) of Section 10 of the Act, first time, speaks about ''possession'' using the word that ''where any land is vested'' in the State Government under sub-section (3) of Section 10 the competent authority may by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person duly authorised by the State Government. In para-35 of the said judgment it has been observed that if de facto possession has already been passed on to the State Government by two deeming provisions under sub-section (3) of Section 10 there was no necessity of using the expression "where any land is vested" under sub-section (5) of Section 10. Thus, surrendering or transferring of possession under sub-section (5) of Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act at an early date. Once there is no voluntary surrender or delivery of possession, the State Government has to issue the notice in writing necessarily and serve under sub-section (5) of Section 10 to surrender or deliver possession. The said sub-section visualises the situation of surrendering and delivering possession peacefully while subsection (6) of Section 10 contemplates situation of forceful dispossession. 28. The judgment of Hariram (supra) has further been relied upon by a Three Judge Bench of the Apex Court in the case of D.R. Somayajulu, Secretary, Diesel Loco Shed and South Eastern Railway House Building Cooperative Society Limited Visakhapatnam and others v. Attili Appala Swamy and others, (2015) 2 SCC 390 and after considering the effect of the provisions of Repeal Act restating the principle of the judgment of Hariram (supra) the Apex Court remitted the matter to the High Court to determine the issue of taking over of actual physical possession on the date of commencement of the Repeal Act. 29. 29. In the matter of taking over of the possession in the context of the Land Acquisition Act, the Apex Court in the case of Velaxan Kumar v. Union of India and reported in (2015) 4 SCC 325 has observed that the manner to take over the possession of the land acquired must be the procedure enshrined for taking over of the possession as per the provisions of law. If the possession has not been taken following the procedure as laid down it is not amounting to delivery of possession. In the said judgment the Apex Court has also relied upon on the judgment of Sitaram Bhandar Society v. Govt. (NCT of Delhi) reported in (2009) 10 SCC 501 . The Apex Court in the case of Raghbir Singh Sehrawat v. State of Haryana and others reported in (2012) 1 SCC 792 has interpreted the word vesting of the land into the Government on taking of the possession. While dealing the said issue it is held by the Court that taking of possession means of taking the actual physical possession and not symbolic or paper possession. However, it is apparent that taking over of possession, means to take actual physical possession by following the procedure prescribed. Thus, looking to the statutory mandate as interpreted by the Apex Court expressing the method and manner of compliance to the provisions of Section 10(5) and (6) of the Principal Act, it may be decided on the facts of the case that actual physical possession has been taken or not. 30. In the context of the legal position discussed above, the facts of this case may be seen whereby after vesting of the land under Section 10(3) of the Principal Act, notice was not issued in the name of holder or the person in possession i.e. Habib Mustafa and Sheikh Shahadat, the predecessors-in-title of the petitioners. In fact the notice was issued in the name of dead person i.e. Abdul Sattar though the authorities were aware that Abdul Sattar has already died on 12.3.1985 due to which, his appeal was dismissed as abated by the Commissioner vide order dated 25.2.1987, however, issuance of the notice in the name of dead person under Section 10(5) of the Principal Act was invalid. In the notice, specification of the surplus land was shown as 22999.493 square meter, which is wrong as per the order sheet dated 25.6.1993 of the competent authority. In fact the surplus land was 14461.698 square meter. Thus, notice under Section 10(5) of the Principal Act was not issued mentioning the correct specification of the surplus land. No fresh notice with correct specification of land was issued or served to the holders or the person in possession, therefore also, the said notice was invalid. As per requirement of Section 10(5) of the Principal Act, the notice must be issued and served on the holder or to the person in possession after vesting. Looking to the above discussion, it appears that the notice was not issued to the holder, or to the person in possession and in fact it was issued in the name of dead person, with incorrect specification of the surplus land, therefore, mandatory requirement of Section 10(5) of the Principal Act has not been complied with. The receipt of possession as attached also does not disclose the fact that as per the correction in the order sheet dated 25.6.1993, the possession of surplus land indicating area of 14461.698 square meter has been taken. The possession has been taken ex-parte in front of two witnesses from the dead person without serving the notice under Section 10(5) and drawing the proceedings under Section 10(6) of the Principal Act, though such compliance was mandatory. More so, the compensation has also not been paid as reveals from the order impugned. In view of the foregoing, the defacto possession has not been taken following the procedure prescribed, therefore, the proceedings be treated to be pending on the date of commencement of the Repeal Act. 31. In view of the foregoing and looking to the facts as discussed and on consideration of the provisions as contained, it is apparent that issuance of notice and its service is invalid, however, possession delivered ex-parte under Section 10(5) of the Principal Act is invalid. Then proceedings under Section 10(6) of the Principal Act ought to be drawn either for peaceful dispossession or for forceful dispossession as specified in the judgment of Hariram (supra) but no proceedings under Section 10(6) of the Principal Act have been drawn by the authorities. Then proceedings under Section 10(6) of the Principal Act ought to be drawn either for peaceful dispossession or for forceful dispossession as specified in the judgment of Hariram (supra) but no proceedings under Section 10(6) of the Principal Act have been drawn by the authorities. In the order impugned Annexure P/8 dated 28.4.2010 passed by the competent authority, it is merely said that after issuance of notice under Section 10(5) of the Principal Act, the possession has not been delivered within thirty days, however, the possession has been taken from dead person, though report of the Revenue Inspector and Patwari Annexure P/6 dated 17.4.2006 attached with the petition petitioners are shown in possession of the land, and after having wire fencing they are cultivating the same. The said report has not been controverted in return or by filing any document on record. 32. Thus, as per the discussion made herein above, it is apparent that the possession has not been taken as per the procedure prescribed. The document prepared to show taking over possession is in reference to order sheets, without service of notice under Section 10(5) of the Principal Act on the holder or on the person in possession, and without drawing any proceeding under Section 10(6) of the Principal Act. The Panchnama attached in the record does not indicate that the possession of how much land has been taken, and that too from the dead person. However, in the context of the judgment of the Apex Court in the case of Hariram (supra), it can safely be held that actual physical possession has not been taken by following the procedure prescribed. In case the possession has not been taken as per procedure prescribed, however, looking to the discussion as made in Paragraphs 13 and 14 above in the context of Sections 3 and 4 of the Repeal Act, in my considered opinion, the proceedings would be deemed to be pending before the competent authority and such proceedings would abate. The finding recorded in the orders impugned Annexures P/8 and P/10 dated 28.4.2010 and 5.2.2016 passed by the Upper Collector, Jabalpur without discussing the provisions of Sections 10(5) and 10(6) of the Principal Act as well as Sections 3 and 4 of the Repeal Act is not in conformity to law, therefore, set aside. 33. Accordingly, this petition succeeds and is hereby allowed. 33. Accordingly, this petition succeeds and is hereby allowed. The orders impugned Annexures P/8 and P/10 dated 28.4.2010 and 5.2.2016 passed by the Upper Collector, Jabalpur are hereby set aside. As the possession of the land has not been taken over following the procedure as prescribed under Sections 10(5) and 10(6) of the Principal Act, therefore, as per Section 4 of the Repeal Act, such proceedings shall abate. In consequent thereto, it is directed that the name of the petitioners be recorded in the revenue papers deleting the name of the State Government within a period of three months from the date of communication of this order. In the facts and circumstances of the case, there shall be no orders as to costs.