State Of Rajasthan & Ors vs Jeev Raj & Ors

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.

1 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

2

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

3

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.

4 (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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

notice to all the parties concerned and decide the same in

accordance with law.

14 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.

15