State of Rajasthan
& Ors. Vs. Jeev Raj & Ors.
J U D G M E N T
P. Sathasivam, J.
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.
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 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 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.
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
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.
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
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 Revenue
Minister, the same is not relevant for our present consideration.
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
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 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.
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.
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 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.
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 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 powered to transfer such a huge chunk of
460.15 bighas of land which is now an integral part of the city of Jodhpur.
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 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
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 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
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
Inasmuch as the land
in question was being utilized as catchment area of potable 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.
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 notice to all the parties concerned and decide the same in
accordance with law.
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.
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