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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