REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 1585-1586 OF 2005
State of Rajasthan & Ors. .... Appellant (s)
Versus
Jeev Raj & Ors. .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) These appeals arise from the final judgment and order
dated 14.10.2003 passed by the High Court of Judicature for
Rajasthan at Jodhpur in D.B. Civil Special Appeal (W) No. 270
of 2002 and D.B. Cross Objection No. 1 of 2003 wherein the
appeal filed by the appellants herein was dismissed and the
cross objection filed by the respondents was allowed by the
High Court.
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2) Brief facts:
(a) On 12.10.1941, respondent No.1 and his brother Pusa
Ram (since expired)-his legal representatives are on record,
were granted `Bapi Patta' No. 14 for agricultural land
measuring about 603.16 bighas in Village Gevan, Tehsil
Jodhpur by the then Jodhpur Government. As the land in
question was part of the catchment area of the feeder canal of
Kaliberi canal and stone slabs which were constructed by the
respondents were obstructing the flow of water, on
19.07.1942, at the request of the Public Health and
Engineering Department (in short "the PHED"), Jodhpur
Government cancelled the patta and removed the stone slabs.
(b) On 05.09.1945, the respondents claimed compensation
of Rs.37,826/- for the loss of their land and stone slabs. On
14.06.1949, the State Government made payment of
Rs.9,377/- as compensation to the respondents.
(c) Thereafter, in the year 1968, after a gap of about 20
years, the respondents again claimed compensation of
Rs.73,885/- as price of the aforesaid land and stone slabs
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from the PHED through a notice. The PHED passed an order
dated 23.04.1969 to restore the land in question to the
respondents in lieu of compensation amount sought for by
them. In compliance of the said order, the possession of
460.15 Bighas of land was restored to them on 27.05.1969
and the same was also mutated in their name.
(d) On some complaints being made, the restoration of the
land was cancelled by the State Government on 01.05.1973.
Challenging the same, the respondents filed writ petition
before the High Court. The learned single Judge of the High
Court, by order dated 24.11.1976, quashed the order dated
01.05.1973 and directed that in case the State wants to
reopen the order dated 23.04.1969, it can do so by giving
proper opportunity of hearing to the petitioners therein. After
the aforesaid judgment, on 25.03.1978, a notice was served on
the respondents by the PHED stating that it wanted to get the
land back from the respondents which had been restored to
them for its own use and order dated 23.04.1969 was sought
to be recalled. It was also stated that the respondents are
liable to be evicted from the land in question. The
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respondents filed objections against the notice for recalling the
order dated 23.04.1969.
(e) Since the notice for recalling the order dated 23.04.1969
has not been formally dropped, the respondents filed a suit in
the Court of Munsif and Judicial Magistrate, Jodhpur City,
Jodhpur. The Munsif Magistrate, by order dated 30.06.1982,
decreed the suit restraining the State Government from
making any alterations in the contract that has come into
existence in pursuance of the order dated 23.04.1969. Notices
were sent to the respondents to appear before the Revenue
Minister as the Revision Petition for cancellation of the plot
granted in the year 1969 was pending before him. The parties
appeared before the Revenue Minister. By order dated
15.12.1992, the Revenue Minister cancelled the order dated
23.04.1969.
(f) Challenging the order of the Revenue Minister, the
respondents filed a petition being W.P. No. 1526 of 1993
before the High Court. The learned single Judge of the High
Court, by order dated 19.03.2002, allowed the same.
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(g) Against the said judgment, the State filed D.B. Civil
Special Appeal (W) No. 270 of 2002 and the respondents also
filed cross objections before the High Court. The Division
Bench of the High Court, by impugned judgment dated
14.10.2003, dismissed the appeal filed by the State and
allowed the cross objection filed by the respondents herein.
(h) Aggrieved by the said order of the Division Bench, the
State Government filed these appeals before this Court by way
of special leave petitions.
(3) Heard Dr. Manish Singhvi, learned counsel for the
appellants, Mr. Dipankar Gupta, learned senior counsel for
respondent Nos. 1-6 and Ms. Bhati, learned counsel for the
intervenor.
(4) The main issue in these appeals is about the grant of
460.15 bighas of land on 23.04.1969 by the PHED to the
respondents herein. As far as the remaining land of 143
bighas is concerned, even the Division Bench of the High
Court, in the impugned order, remitted the matter to the
Revenue Minister. Inasmuch as the issue of remaining land of
143 bighas raised by the respondents is pending before the
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Revenue Minister, the same is not relevant for our present
consideration.
(5) It is the contention of the learned counsel for the State
that the order dated 23.04.1969 about the grant of 603.16
bighas of land (including 460.15 bighas - the subject matter of
present proceedings) was ex facie without jurisdiction as it was
allotted by the PHED on flimsy and fallacious grounds about
cancellation of patta way back in the year 1942 and the
compensation sought in the year 1968. It is relevant to note
that the same was cancelled way back in 1973. Inasmuch as
opportunity of hearing was not given, the learned single Judge
of the High Court, by order dated 24.11.1976, remanded back
to the State Government for deciding the matter afresh after
giving due opportunity of hearing to the respondents herein.
(6) On behalf of the State, it was pointed out that it has
legitimate grievance with the allotment dated 23.04.1969 by
the PHED. The cancellation was made way back in the year
1942 for allotment made in the year 1941 on the ground of
violation of lease conditions. The respondents have claimed
huge compensation for construction said to have been made
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during subsistence of lease in the year 1949 itself and filed
application for compensation with regard to the cancellation of
patta in the year 1968. According to the State, the said
application was barred by limitation and it was also filed
before wrong forum, i.e., the PHED, when it should have been
filed before the Land Revenue Department, which is the
appropriate Department.
(7) It is also the grievance of the State that the allotment
dated 23.04.1969 was cancelled on 01.05.1973, however, the
High Court set aside the same on 24.11.1976 on the limited
ground that there was violation of natural justice and directed
the State Government to decide it afresh after giving
opportunity of hearing. In those circumstances, the State
wants to exercise its power under the Land Revenue Act read
with the orders passed by the learned single Judge of the High
Court dated 24.11.1976 and the Revenue Minister dated
15.12.1992.
(8) It was highlighted that the judgment of the trial Court
dated 30.06.1982 is also nullity since there was no discussion
on merits with regard to the validity of allotment dated
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23.04.1969. Though it was pointed out by the counsel for the
respondents that it was hit by the principle of res judicata as
clarified by the counsel for the appellants, the principle of res
judicata shall only apply if there is discussion or finding on the
same subject matter. A perusal of the decree of injunction
that had been passed on 23.04.1969 shows that it did not
advert to the merits of the case at all. It is also not in dispute
that the subject matter, namely, validity of allotment dated
23.04.1969 has not been gone into.
(9) It is also relevant to point out that by virtue of Section
259 of the Land Revenue Act, the jurisdiction of the Civil
Court is ousted and if any decree is passed by the Civil Court
contrary to the said provision, the same is a nullity in the eyes
of law. If the decree is passed coram non judice, as in the
present case, then it is a nullity in the eyes of law and it shall
not operate as res judicata. This proposition has been
enunciated in Sabitri Dei and Others. vs. Sarat Chandra
Rout and Others, (1996) 3 SCC 301, wherein this Court held
that once a decree is held to be a nullity, the principle of
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constructive res judicata will have no application and its
invalidity can be set up whenever it is sought to be enforced or
is acted upon as a foundation for a right even at the stage of
execution or in any collateral proceeding. This proposition has
been reiterated in Sushil Kumar Mehta vs. Gobind Ram
Bohra (1990) 1 SCC 193. It was held in the aforesaid case
that,
"Thus it is settled law that normally a decree passed
by a court of competent jurisdiction, after adjudication on
merits of the rights of the parties, operates as res judicata in
a subsequent suit or proceedings and binds the parties or
the persons claiming right, title or interest from the parties.
Its validity should be assailed only in an appeal or revision
as the case may be. In subsequent proceedings its validity
cannot be questioned. A decree passed by a court without
jurisdiction over the subject-matter or on other grounds
which goes to the root of its exercise or jurisdiction, lacks
inherent jurisdiction. It is a coram non judice. A decree
passed by such a court is a nullity and is non est. Its
invalidity can be set up whenever it is sought to be enforced
or is acted upon as a foundation for a right, even at the stage
of execution or in collateral proceedings."
It is also relevant to note that the order passed on 23.04.1969
was by the PHED whereas it was the Land Revenue
Department which alone had the power under the Land
Revenue Act to grant land to any person. Thus the allotment
of land was also without jurisdiction as the PHED was not
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empowered to transfer such a huge chunk of 460.15 bighas of
land which is now an integral part of the city of Jodhpur.
10) It is also not in dispute that the validity of the order
dated 23.04.1969 has not been adjudicated by any
appellate/revisional forum and according to the learned
counsel for the State, it wants to decide the validity of order
dated 23.04.1969 on merits and, in that event, the
respondents shall have full opportunity to put-forth their case
and objections, if any, available under the law. As rightly
pointed out by the learned counsel for the State, the
respondents cannot be conferred with such huge benefit of
460.15 bighas of land without any proper adjudication on
merits about the grant of allotment of land. As pointed out
earlier, the judgment and decree dated 30.06.1982 does not
dwell upon the merits of the validity of the allotment dated
23.04.1969 but instead proceeds that such allotment on
23.04.1969 would entail the order of injunction. The learned
single Judge, on 24.11.1976, set aside the order of
cancellation passed on 01.05.1973 and referred the matter
back to the State Government to consider it on merits. The
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learned single Judge, on 24.11.1976, has again remitted the
matter to the State Government because no opportunity of
hearing was given with regard to 460.15 bighas of land.
However, the Division Bench of the High Court upheld the
validity of order dated 23.04.1969 on the principle of res
judicata. As discussed and observed above, the principle of
res judicata shall not apply inasmuch as neither the subject
matter of validity of allotment dated 23.04.1969 was
considered on merits by the Munsif Court nor the decree
passed by the Civil Court was within its jurisdiction because
the Land Revenue Act prohibits the jurisdiction of the Civil
Court. This has led to the validity of the order dated
23.04.1969 being left unexamined by the State Government
despite orders of the learned single Judge of the High Court
dated 24.11.1976.
(11) In view of the same, it is desirable that since the State
Government is going to decide the allotment of 143 bighas of
land in pursuance of the impugned judgment, we are of the
view that let the State Government may as well decide the
grant of remaining 460.15 bighas of land allotted vide order
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dated 23.04.1969 in accordance with law. It is also to point
out that even the Division Bench in its judgment dated
14.10.2003 has clearly recorded the fact that the land in
question was part of the catchment area for canal and stone
slabs which were obstructing the flow of water and, therefore,
"Bapi Patta" No. 14 granting 603.16 bighas of land was
cancelled. The Division Bench has also recorded the stand of
the State Government that soon after "Bapi Patta" was
granted, it was realized that the same had been granted
wrongly because the land fell under the catchment area of
Kailana Lake and it was for this reason that subsequently in
1942, the said patta was cancelled and compensation of
Rs.9,377/- was paid to the appellants therein for stone slabs
which had been removed. Further, the Revenue Minister, in
his order dated 15.12.1992, has clearly recorded that it came
to the knowledge that "Bapi Patta" cannot be granted to the
appellants therein inasmuch as the aforesaid land falls within
the catchment area of feeder canal of Kaliberi and, therefore,
the patta was cancelled on 19.07.1942. Inasmuch as the land
in question was being utilized as catchment area of potable
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water, grant of "Bapi Patta" was void ab initio and, therefore, it
was cancelled. Even the learned single Judge, in his order
dated 19.03.2002, has recorded while narrating the facts that
on 09.03.1978, the Chief Engineer of the PHED had issued
notices to the respondents along with others mentioning that
the land was falling in the feeder canal catchment area and,
therefore, the PHED wanted back the complete land of 603
bighas.
12) We also accept the statement of Mangal Singh, the
intervenor, that in the larger public interest no land can be
allotted or granted if it obstructs the flow of water. The above
principle has been reiterated by this Court in several orders.
We have already noted the prohibition, i.e., entertaining a suit
by the Civil Court in the Land Revenue Act. Further, the land
in question belongs to the Revenue Department of the State of
Rajasthan and the PHED had no jurisdiction whatsoever to
restore 460.15 bighas of land in favour of the respondents
herein. It is needless to mention that while passing fresh
orders as directed above, the State Government has to issue
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notice to all the parties concerned and decide the same in
accordance with law.
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13) In view of the above discussion, factual materials, legal
issues considering public interest, we set aside the impugned
order passed by the High Court on 14.10.2003 and direct the
Revenue Department of the State of Rajasthan to decide the
matter afresh as discussed above and pass fresh orders within
a period of four months from the date of the receipt of this
judgment after affording opportunity to all the parties
concerned. Both the appeals are allowed on the above terms.
No order as to costs.
..........................................J.
(P. SATHASIVAM)
..........................................J.
(H.L. GOKHALE)
NEW DELHI;
AUGUST 11, 2011.
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