Holding

The land did not fall within Section 8 of the Delhi Land Reforms Act, proprietorship was abolished, and consequently the land vested in the Gaon Sabha, which is entitled to the entire compensation; the civil suit and High Court decree were void for lack of jurisdiction.

Summary

The Supreme Court examined a dispute over compensation for land acquired under the Land Acquisition Act, where the land was recorded as Gair Mumkin Pahar. The appellants, Gaon Sabha, argued that the land vested in the Gaon Sabha under the Delhi Land Reforms Act and that the private respondents were not Bhumidhar or Asami, thus entitled to the full compensation. The respondents contended that the land could not vest in the Gaon Sabha, that the order under Section 7(2) was illegal, and that a prior civil suit barred further claims. The Court held that the proprietorship concept was abolished by the Act, the land did not fall within Section 8, and therefore vested in the Gaon Sabha, which is entitled to the entire compensation; the civil suit and High Court decree were void for lack of jurisdiction. Consequently, both appeals were allowed and the High Court judgments set aside.

Issues considered

Whether land recorded as Gair Mumkin Pahar vests in the Gaon Sabha under the Delhi Land Reforms Act or remains with private respondents.
Whether the civil court had jurisdiction to entertain a suit seeking a declaration that the order under Section 7(2) of the Delhi Land Reforms Act was illegal, in view of Section 185.
Whether the decree of the civil court and the High Court is a nullity due to lack of jurisdiction.
Whether the respondents qualify as Bhumidhar or Asami and thus are entitled to compensation.
Whether the provisions of Section 154 and Section 8 of the Delhi Land Reforms Act apply to the disputed land.
Whether the principle of res judicata bars the present claim based on an earlier civil suit.
Whether a notification under Section 7(2) can be issued for land that is not waste land.

Legislation cited

Delhi Land Reforms Act, 1954s. 15, s. 154, s. 185, s. 3, s. 4, s. 5, s. 7(2), s. 8
Land Acquisition Act, 1894s. 30, s. 4(1), s. 6, s. 9
Punjab Land Revenue Act, 1887
Punjab Tenancy Act, 1887

Subjects

land acquisitionDelhi Land Reforms ActGaon Sabhacompensationjurisdictioncivil courtres judicataBhumidharAsamiwaste landSection 7(2)Section 154

Judgment

A GAON SABHA AND ANR.
I'.

NA THI AND ORS. •
MARCH 23, 2004

B [S. RAJENDRA BABU, DR. AR. LAKSHMANAN AND G.P. MATHUR, JJ.]

Delhi Land Reforms Act, 1954; Sections 3, 4, 5, 7(2), l /, 15, 154(/) &
I 85-Dispute regarding right to receive compensation for land acquired-
Held, on facts and law, the acquired land does not come within section 8 of
c the Delhi Land Reforms Act-Acquired land vested with appellants under the
Act and hence entitled to receive compensation-Land Acquisition Act, 1894;
Sections 4(1), 6, 9 & 30.

Land was acquired by issuing notifications under sections 4(1) and
D 6 of the Land Acquisition Act, 1894. Collector made an award but due to
a dispute between appellant and private respondents regarding the right
to receive compensation, seven references were made to Land Acquisition
Court under Section 30 of the Act to decide the dispute. The Court held
that the appellant is entitled to receive compensation amount. High Court
allowed the appeal of the respondents.
E
In appeal to this Court, the appellants contended that the land was
vested with them and they are entitled to receive the entire amount of
compensation. ,J

The respondents contended that the land was recorded as Gair
F Mumkin Pahar and consequently it could not vest with the appellants; that
the order of the Deputy Commissioner passed under section 7(2) of the {'
Delhi Land Reforms Act, 1954 is illegal and without authority of law; that
the issue of ownership had already been decided in a civil suit and that
since the matter has attained finality, the same would operate as res
judicata between them; that no notification under section 7(2) of the Act
G
could be issued as the disputed land was not a waste land.

Allowing the appeals, the Court

HELD: I. A person can be either a Bhumidhar or an Asami of the /"'"·
H 354
I

i,..,

GAON SABHA v. NATI-II 355
agricultural land in a village. He can also be an owner of the property of A
the type which is enumerated in Section 8 of the Delhi Land Reforms Act,
1954 like private wells, tanks, groves, abadis, trees and buildings. Except
for these, all other kinds of lands and property would vest in the Goan
Sabha. The proprietors and the concept of proprietors of land stands
totally abolished with the enforcement of the Act. The respondents neither B
claimed to be Bhumidhar nor an Asami of the la1•d which has been
acquired. The acquired land does not come within the purview of Section
8 of the Act. In such circumstances, the only inference possible is that the
land stood vested with the Goan Sabha on the date of the commencement
of the Act and it was the Gaon Sabha which was the owner thereof and
was entitled to receive the entire amount of compensation. 1356-B-DI C
Nathu v. Hukam Singh, AIR (1983) Delhi 216, referred to.

2. The High Court, in Second Appeal in earlier round, held that the
civil court had the jurisdiction to entertain the suit wherein a declaration
was sought that the order passed under section 7(2) of the Delhi Land D
Reforms Act, 1954 vesting the land in the appellant is illegal. The High
Court, though held that the civil court had jurisdiction to try the suit,
remanded the matter to the Deputy Commissioner for a fresh decision.
The Deputy Commissioner however could not carry out the exercise as
meanwhile the land had been acquired. The rights of the individual persons
having not been finally determined as directed by the High Court, no E
question of res judicata would arise. 1366-E-Gl

3. The civil court has no jurisdiction to entertain the suit which was
filed seeking a declaration that the order of vesting of land in Ga on Sabha
is illegal. The decree passed in the aforesaid suit including that of the High
Court is wholly without jurisdiction. A decree passed by a court without F
jurisdiction is a nullity and that its invalidity could be set up whenever
and wherever it is sought to be enforced or relied upon, even at the stage
of execution and even in collateral proceedings and further a defect of
jurisdiction whether it is pecuniary or territorial or whether it is in respect
of the subject matter of the action, strikes at the very authority of the G
Court to pass a:iy decree and such a defect cannot be cured even by
consent of the parties. Therefore, the finding that the order passed under
section 7(2) of the Act vesting the property in the Gaon Sabha is illegal,
recorded in the civil suit and affirmed by the High Court in second appeal
has to be completely ignored. The disputed land was not included in the
holding of the respondents and therefore a notification under section 7(2) H
356 SUPREME COURT REPORTS [2004] 3 S.C.R.

A of the Act could validly be issued with regard to the land in dispute.
1369-D-H; 370-A, q

Hatti v. Sunder Singh, 1197012 SCC 841, referred to.

Gaon Sabha of Lado Sarai v. Jage Ram, ILR (1973) I Delhi 984 and
B Nathu v. Hukam Singh, AIR (1983) Delhi 216, referred to.
Union of India v. Mamleshwar Prasad, (1991) 4 Delhi Lawyer 375,
overruled.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3105of1997.
c From the Judgment and Order dated 7.11.91 of the Delhi High Court
in R.F.A. No. 209 of 1986.

WITH

D C.A. No. 2183 of 1993.

B. Krishna Prasad for the Appellants.

B.S. Malik, P.N. Lekhi, R.K. Jain, M.N. Krishnamani, L.C. Chechi,
Subhash Mittal, Lokesh Kumar, M.K. Garg, Y.D. Nagar, Manoj Nagar, S.C.
E Mittal, N.S. Chechi, K.S. Rana, Saurabh Kirpal, S. Wasim A. Qadri, Mrs.
Anil Katiyar, Ms. Sushma Suri and Chander Shekhar Ashri for the
Respondents.

The Judgment of the Court was delivered by

F G.P. MA THUR, J. Civil Appeal No.3105 of 1997 has been preferred
by Gaon Sabha and another against the judgment and decree dated 7.11.1991
of Delhi High Court in RF A No. 209 of 1986. Civil Appeal No. 2183 of 1993
has been preferred by Union of India and another against the judgment and
decree dated 30.5.1991 of Delhi High Court in RFA No. 167of1986. The
controversy involved in both the appeals is identical and, therefore, they are
G being disposed of by a common order. Civil Appeal No. 2183 of 1993 was
initially allowed by this Court on 7.2.1997 but the order was recalled on
25.7.2003 on the ground that some of the respondents had died and their
heirs had not been brought on record when the matter was heard and decided
at the earlier stage.
H 2. We will mention the facts CA No. 3105 of 1997 which has been
GAON SABHA v. NATH! [G.P. MATHUR. J.] 357
preferred by Gaon Sabha and Union of India against Nathi and 38 others. A
Proceedings for acquisition of a large tract of land were initiated by issuing
notifications under Section 4( I) and 6 of the Land Acquisition Act. The
Collector made an award but a dispute arose regarding the right to receive
compensation between the Gaon Sabha and the private respondents. He
accordingly made seven references for decision of the Court under Section B
30 of Land Acquisition Act. The learned Additional District Judge decided
all the seven references by common judgment and order dated 22.2.1986
wherein he held that it was the Gaon Sabha which was entitled to receive the
compensation amount and not the private respondents. Being aggrieved by
the aforesaid award decree of the Addi. District Judge, Nathi and others
preferred RFA No. 209 of 1986 before Delhi High Court. The High Court, C
following its earlier judgment and decree dated 30.5.1991 in RFA no.167 of
1986 given in the case of Sher Singh and Ors. allowed the appeal on 7.11.1991
by a short order and held that respondents were entitled to entire amount of
compensation and not the Gaon Sabha. It is this judgment and decree which
is subject matter of challenge in the present appeal which has been preferred D
by Gaon Sabha and Union of India.

3. In view of the fact that the impugned judgment does not deal with
the controversy raised and the High Court has allowed the appeal only on the
basis of its earlier judgment rendered in the case of Sher Singh and Ors. in
RF A no. 167 of 1986, it becomes necessary to look to the reasoning given E
for deciding the said matter. Even otherwise the judgment and order dated
30.5.1991 in RFA no. 167 of 1986 is under challenge in CA No. 2183 of
I 993 filed by Union of India.

4. The land in dispute is situate in village Tekhand and in Khasra F
girdwari it was recorded as Gair Mumkin Pahar. The case of Gaon Sabha
was that the land being Gair Mumkin Pahar it had had vested in it under the
Delhi Land Reforms Act, I954 (hereinafter referred to as 'the Act'), that it
was in possession over the land when the same was acquired and that the
government took possession of the land from the Gaon Sabha. The respondents
herein (private parties) pleaded that as the Jarid was Gair Mumkin Pahar it G
could not vest in the Gaon Sabha and they were owners/proprietors of the
same. Sher Singh and Ors. further submitted that there had been a prior
litigation regarding title of the land in dispute in the civil court wherein a
decree had been passed in their favour. The Gaon Sabha however relied upon
a judgment dated 8.I2.1982 of Delhi High Court (Justice M.L. Jain) in CWP H
358 SUPREME COURT REPORTS [2004] 3 S. C.R.

A No. I019 of 1972 wherein it was held that land recorded as Gair Mumkin
Pahar is waste land which would vest in the Gaon Sabha. The Addi. District
Judge chose to follow the later judgment delivered in the write petition and
further held that in the civil suit ultimately the High Court in second appeal
(RSA no. 73 of 1972) had remanded the matter for fresh consideration- by the
B Deputy Commissioner and as such there was no final determination of the
rights of the property. Accordingly it was held that the Gaon Sabha was
entitled to entire amount of compensation and the private respondents were
not entitled to get anything and their claim was rejected. Against the decision
of the Addi. District Judge dated 22.2. I 986 in LAC No. 257 of I 984 Sher ~'
Singh and Ors. preferred RFA no. 167 of 1986 in the High Court. The High
C Court in this case basically relied upon the civil suit filed by Nathan and Ors.
which came to be decided in RSA no. 73 of I 972 on 22.05.1980 and also
upon an earlier decision taken by the same Branch in RF A no.332 of I968
(Union of India and Anr. v. Mam/eshwar Prasad and Ors.) and held that the
order of vesting of the disputed land in Gaon Sabha was not correct and the
D private respondents were the owners of the land. The appeal was accordingly
allowed, the award decree of the Addi. District Judge was set aside and the
respondents were held to be entitled to the compensation amount.

5. Since the High Court has based its judgment mainly upon the earlier
civil suit, it is necessary to refer to the same and take note of the decision
E finally rendered therein in the second appeal.

6. The Deputy Commissioner had passed an order under section 7 (2)
of the Act vesting the land in the Ga on Sabha. Nathan and Ors. on their own
behalf and on behalf of the co-sharers of Thok Didhori filed a suit in the
F Court of senior Sub-Judge, Delhi seeking a declaration that the vesting of the
land in Khewat no. 36/312 in the Gaon Sabha Tekhand was illegal and void
and had no effect on the rights of the plaintiffs and other co-sharers. The
plaintiffs claimed that they were proprietors in the possession of land which
was shown as Gair Mumkin Pahar and banjar qadim in khasra girdwari in
the year I 953-54. Alternatively the plaintiffs claimed that they were in
G cultivatory possession of the land and accordingly became Bhumidhar thereof
further as the land was Gair Mumkin Pahar it could not vest in the Gaon
Sabha. The Gaon Sabha contested the suit on various grounds and one of the
important pleas taken was that the civil Court had no jurisdiction to try the
suit in view of section 185 of the Act. The trial Court held that the civil Court
H had jurisdiction to try the suit and further that the order of the Revenue
·~

GAON SABHA v. NATH! [G.P. MATHUR . .I.] 359
,J Assistant vesting the land in the Gaon Sabha was without jurisdiction. The· A
'\ appeal preferred by Gaon Sabha was initially allowed and the suit was
dismissed but subsequently the judgment was reviewed and the decree of the
trial Court was affirmed. The Gaon Sabha carried the matter in second appeal
(RSA No. 73 of 1972) and urged that the civil court had no jurisdiction to
try the suit and that the Gaon Sabha was the owner in possession of the
disputed land. The second appeal was however dismissed by a learned Single B
Judge of the High Court (Justice D.K. Kapur) on 22.5.1980 and the operative
portion of the order, which has a bearing on the controversy in dispute, is
being reproduced below :
"It does not mean that the Deputy Commissioner cannot re-decide
the matter. In fact, he should re-consider the question and hear the c
parties to determine whether the order is in accordance with the law.
Now turning to the effect of this reasoning in this appeal, I would
hold that the courts below were perfectly right in holding that the
order under challenge is beyond the scope of the Act and is, therefore,
ultra vires and liable to be quashed. The grant of a declaration to this D
effect is entirely called for in the circumstances of this case. However,
I would also like to clarify that this does not by any means end the
matter. The Deputy Commissioner is authorised to reconsider the
matter and decide the same after giving the parties opportunity of
being heard and after considering the facts of the case it can be E
determined whether the land in question is waste land or land of
common utility which was divested from the proprietors and was to
---f~· vest in the. Gaon Sabha. It would be open for the Deputy Commissioner
to also find whether the land or any part thereof is within the holding
of anyone of the individual proprietors. In the present case as very
large area of land is involved and the suit is a representative suit on F
behalf of many persons, it may be that part of the land is waste land,
part of the land is under proprietory cultivation and part of the land
is not covered by the definition of ;waste land' or 'land of common
utility', or it may be that all the land is not covered by the definition.
As these facts have to be ascertained and have not been ascertained, G
the order has to be struck down but leaving the Deputy Commissioner
to re-decide the matter.
I would accordingly dismiss the appeal but the direction just set

"' out will allow the Deputy Commissioner to re-examine the question
so that the real and the true legal rights of the parties in the suit are
H
360 SUPREME COURT REPORTS 12004] 3 S.C.R.

A fit!/y estahlished. The parties will bear their own costs in this Court.
(Emphasis supplied)

7. The learned judges in their judgment dated 30.5.1991 in RFA
No.167of1986 have also quoted a passage from another judgment of theirs
B in RFA No. 332of1968 (Union of India v. Mam/eshwar Prasad and Ors.)
and as it has some relevance, it is being reproduced below:

"Reading the definition of the "holding" as mentioned aforesaid
and the provisions of Sections 7 and 154 of the Act, the learned
Additional District Judge was of the view that the definition of holdings
given in section 3 (I la) would not be applicable. Section 3 which
c deals with the definitions starts with the words unless the context
otherwise requires. This is now being objected to by the Union of
India. But we find that if we literally apply the definition of holding
as given in clause (I la) of section 3 it will certainly lead to absurdity
while finding out as to what the waste land would be in explanation
D to section 7 of the Act. As noted above, waste land wou Id not be
included in the holdings of such proprietor or proprietors. We are ,
thus of the view that land other than "khud khast" of the holding of
the individual proprietor did not vest in Gaon Sabha because it has
not been treated as waste land by virtue of exception provided under
clause (I )(a) of Explanation of section 7 read with definition or holding
E in the Punjab Land Revenue Act, 1987. Further same mode for
purposes of vesting waste land in Gaon Sabha has been adopted for
purposes of Section 154 of the Act."

On the aforesaid basis and also the decision in RSA no. 73 of 1972 it
F was held that the disputed land could not be described as waste land within
the meaning of explanation to section 7( I) of the Act and, therefore, the ·>.::
order vesting the land in Gaon Sabha was not correct and Sher Singh and
Ors. (appellants before the High Court) were held entitled to the compensation
amount.

G 8. We have heard Shri Mukul Rohtagi, Addi. Solicitor General and Shri
Saurabh Kirpal, for the appellants and several counsel who appeared for
various respondents in considerable detail and have given our anxious
consideration to the controversy in hand. With respect, we find a complete
misdirection on the part of the High Court in holding that the private
respondents are the proprietors of the land and that they are entitled to receive
H the entire amount of compensation.
GAON SABHA v. NATH! [G.P. MATHUR. J.] 361

) 9. The main plank of the respondents is that the disputed land was A
recorded as Gair Mumkin Pahar and consequently it could not vest with the
Gaon Sabha and the order of the Deputy Commissioner passed under section
7 (2)of the Act is wholly illegal and without any authority of law. They
further-rely upon the decision of the civil suit and contend on its basis that
the matter attained finality and the same would operate as res judicata between B
the parties. The plea of the Gaon Sabha is that the disputed land was not in
the holding of the private respondents and they had no rights over the same
and further that the same had vested with the Gaon Sabha itself which had
become owner thereof and was thus entitled to receive the entire amount of
compensation. In order to judge the validity of the pleas taken by the parties,
it is necessary to examine the issue with reference to Delhi Land Reforms C
Act. Section 3 of the Act gives the definitions and sub-section (I I a) and
(12A) thereof and Sections 4 and 5 of the Act are being reproduced below:

(I la) "holding"means-
(a) in respect of -
D
(i) Bhumidhar or Assami; or

(ii) tenant or sub-tenant under the Punjab Tenancy Act, 1887, or
the Agra Tenancy Act, 190 I; or

(iii) lessee under the Bhoodan Yagna Act, 1955- E
A parcel or parcels of land held under one tenure, lease;
engagements or grant; and

(b) in respect of proprietors, a parcel or parcels of land held
as sir or Khud-khast";
F
(12A) "Khudkhast" means land (other than Sir) cultivated by a
proprietor either by himself or by servants or by hired labour:-

(a) at the commencement of this Act, or

(b) at any time during the period of five years immediately G
before the commencement of this Act, whether or not it was
so cultivated at such commencement, provided that it has
not, at any time after having been so cultivated, been let out
to a tenant.

Section (4) (I) There shall be, for the purposes of this Act, only H
362 SUPREME COURT REPORTS [2004] 3 S.C.R.

A one class of tenure-holder; that is to say, 'Bhumidhar' and one of
class of sub-tenure holder, that is to say, 'Asami',

(2) Tenure-holder means a person who holds land directly under and
is liable to pay land rev~nue for that land to the State, and sub-tenure
holder is a person who holds land from a tenure-holder or Gaon
B Sabha and is liable to pay rent therefore to the tenure-holder or a
Gaon Sabha:

Provided .......................... (omitted as not relevant)

Section 5 Bhumidhar - Every person belonging to any of the following ·~·

c classes shall be a Bhumidhar and shall have all the rights and be
subject to all the liabilities conferred or imposed upon a Bhumidhar
by or under this Act, namely:-

(a) a proprietor holding Sir or Khukhast land, a proprietor's grove
holder, an occupancy tenant under Section 5 of the Punjab Tenancy
D Act, 1887, paying rent at revenue rates or a person holding land
under Patta Dawami (or lstamrari) with rights of transfer by sale,
who are declared Bhumidhars on the commencement of this Act;

(b) every class of tenants other than those referred to in clause (a)
and sub-tenants who are declared Bhumidhars on the commencement
E of this Act; or

(c) every person who, after the commencement of this Act, is admitted
to land as Bhumidhar or who acquires Bhumidhari rights under any
provisions of the Act.

F Section 6 defines 'Asami' and is lays down that every person belonging'
to any of the classes mentioned in the section shall be an 'Asami' and shall
have all the rights and be subject to all the liabilities conferres or imposed
upon an Asami by or under the Act. Sections l l and 15 of the Act enumerate
the classes of the person who may be declared as Bhumidhars. Section 154
is important and provides for vesting of certain lands etc. in the Gaon Sabha
G .Sub-section (I) of this sections is reproduced below:

"Section 154 - Vesting of certain lands etc., in Gaon Sabha-

(1) On the commencement of this Act-
(i) all lands whether cultivable or otherwise, except land for the
H
••
GAON SABHA v. NATI-II [G.P. MATHUR . .1.) 363
time being comprised in any holding or grove, A
(ii) all trees, other than trees in a holding or on the boundary
thereof or in a grove or abadi (or planted by a person other than
a proprietor on land other than land comprised in is holding),
(iii) Public wells,
B
(iv) fisheries,
(v) Hats, bazars and meals except hats, bazars and meals held
~ on land to which provisions of clauses (c) to (e) of sub-section
'
(I) of section 11 apply,
(vi) tanks, ponds, water channels, pathways and abadisites, c
(vii) forests, if any;
situate in a Gaon Sabha Area, shall vest in Gaon Sabha :
Provided that ifthe uncultivated area situate in any Gaon
Sabha is, in the opinion of the Chief Commissioner, more than D
the ordinary requirements of the Gaon Sabha, he may exclude
). any portion of the cultivated area from vesting in the Gaon Sabha
under this section and may make such incidental and consequential
orders as may be necessary.

(10) The effect of Section 154 (1) is that all lands and all other kinds E
of properties enumerated therein shall vest in the Gaon Sabha on the
commencement of the Act, with an exception that land for the time being
comprised in any holding or grove shall not so vest and in such land in view
of section 4, Bhumidhar's or Asam i's right would accrue . The proprietors
ceased .to exist with effect from the commencement of the Act. Ownership F
~~ rights have also been conferred over all private wells in or outside holdings,
tanks, groves and abadis, all trees in abadi and all buildings situate within the
limits of an estate belonging to or held by a proprietor tenant or other person
by virtue of Section 8 of the Act. The scheme of the Act and also the creation
of rights thereunder has been examined by this Court in Hatti v. Sunder
Singh. [1970) 2 SCC 841 and relevant part of para 3 of the Report where this
G
matter has been discussed is being reproduced below:

,,. " .......... Sections 6,11,13 and 154 of the Act read together, thus, show
that, after the Act came into force, proprietors of agricultural land as
such ceased to exist. If any land was part of a holding of a proprietor, H
364 SUPREME COURT REPORTS f2004f 3 S.C.R.

A he became a Bhumidhar of it. If it was part of a holding of some
other person, such as a tenant or a sub-tenant etc., he became either
a Bhumidhar or an Asa mi, whereupon the rights of the proprietor in
that land ceased. Lands, which were not holdings of either the
proprietor or any other person, vested in the Gaon Sabha. In the case ·
of proprietors, their rights in the land continued to exist only in
B
respect of holdings which, under the definition, must have been either
their Sir or Khudkasht at the commencement of the Act. If it was not
Sir or Khudkasht of a proprietor, it would not be his holding and
consequently, such land would vest in the Gaon Sabha under Section
154, the result of which would be that the rights of the proprietor
C would be extinguished. It appears that it was in view of this scheme
of the Act that, under Section 84, the right to institute a suit for
possession was granted only to a Bhumidhar, or an Asami, or the
Gaon Sabha. The Act envisaged only these three classes of persons
who would possess rights in agricultural land after the commencement
of the Act. Proprietors as such having ceased to exist could not
D therefore, institute a suit for possession. This aspect of the case has
been lost sight of by the High Court and the lower courts, because it
appears that their attention was not drawn to the provisions of Section
15~ of the Act, under which all lands of proprietors, other than those
comprised in their holdings, vested in the Gaon Sabha, thus
E extinguishing their proprietary rights."
(Emphasis supplied)

11. A Division Bench of Delhi High Court (Prakash Narain C.J. and
S.S. Chadha, J.) in Nathu v. Hukam Singh, AIR (1983) Delhi 216 examined
F the provisions of the Act in considerable detail. The Bench took note of the
statement of objects and reasons for making the Act which is as under:

"A Land Reforms Committee consisting of Members of State
Legislature and an M.P. was soon set up. After careful consideration
and examination of the complex problems involved it was decided
G that while unifying the two existing systems of tenure, the Zamindari
system should be disintegrated by divesting the Zamindars, who are
merely a body of peasant proprietors of some of their rights and
placing them more or less on the same levels of tenants with security
y ;
of tenure. At the same time the tenants should be given opportunities
to rise to the level of peasant proprietors so that the resultant picture
H be one of a democratic peasantry. It was also decided that in view
GAON SABHA v. NATH! [G.P. MATHUR. L] 365
of the Zamindars being petty proprietors and the State being so small. A
a direct and simple method for the payment of compensation to the
Zamindars should be evolved as it would not be possible for the State
to undertake the elaborate and expensive procedure of acquiring the
rights, title and interest from the proprietors for monetary
considerations and then refonning the tenancy system after realisations B
from tenants for securing them better rights."

The Bench then held that the proprietors of agricultural land ceased to exist
and new classes of tenures known as Asami and Bhumidhar came into
existence after the commencement of the Act. Para 8 of the report is being
reproduced below:
c
"8. To put it in other words combined reading of the statutory
provisions referred to above shows that the proprietors of agricultural
land ceased to exist and instead a new class of tenure holders called
Bhumidhars and sub-tenure-holders called Assamies came into
existence. The provisions referred to above make it clear that a certain D
class of tenants became Bhumidhars and a certain class of proprietors
became Bhumidhars if they were in self cultivatory actual possession
of agricultural land. Certain other persons became Asam is. A person
could either be a Bhumidhar or an Asami and there is no other class
ofproprietors or tenure holders of the agricultural land after coming
into force of the Act. The proprietors of each village had certain E
rights in waste land, pasture land of common utility etc. By force of
section 7, there is acquisition of these rights of the proprietors and
they vest in the Gaon Sabha and compensation is paid to the proprietors
for that. Even though there is no acquisition of the rights of the
proprietors in the agricultural land, the policy underlying the provisions F
of the Act is to abolish ownership and to confer new rights. The vires
of the Statute are not open to challenge as the Act is in the Ninth
Schedule to the Constitution. The legislature could pass a law
abolishing ownership in the land of the propriet6rs and instead
declaring them as Bhumidhars, resulting in the deprivation of th~
compensation. Section 8 of the Act further provides that all private G
wells in or outside holdings, all tanks, groves and all trees in abadi
and all builqings situate within the limits of an estate belonging to or
held by a proprietor, tenant or other persons, whether residing in the
' I ·~ village or not, shall continue to belong to or be held by such proprietor
tenant or persons, as the case may be, on such terms and conditions H
366 SUPREME COURT REPORTS [2004] 3 S.C.R.

A as may be prescribed by the Chief Commissioners. Except to this
limited exlent of certain righ1s in privole wells, trees in abadi and
buildings, the proprietors of agricuhural land as such ceased to ex isl
after !he Acl came info force . "

(Emphasis supplied)
B
Therefore the legal position in absolutely clear that a persons can be
either a Bhumidhar or an Asami of the agricultural land in a village. He can
also be an owner of the property of the type which is enumerated in Section
8 of the Act, like private wells, tanks, groves, ababis, trees and buildings. ·~·
Except for these, all other kinds of lands and property would vest in the Gaon
c Sabha. The proprietors and the concept of proprietors of land stands totally
abolished with the enforcement of the Act. The respondents neither claimed
to be Bhumidhar nor an Asami of the land which has been acquired. The
acquired land does not come within the purview of Section 8 of the Act. Jn
such circumstances the only inference possible is that the land stood vested
with the Gaon Sabha on the date of the commencement of the Act and it was
D
the Gaon Sabha which was the owner thereof and was entitled to receive the
entire amount of compensation.

12. The plea of res judicala is based upon the decision in the Second
Appeal (RSA no. 73 of 1972). The question then arises is whether the civil
E Court had the jurisdiction to entertain the suit which ultimately came to the
High Court in second appeal. The High Court in Second Appeal held that the
civil court had the jurisdiction to entertain a suit wherein a declaration was
sought that the order passed under section 7 (2) of the Act vesting the land
in Gaon Sabha is illegal. The passage quoted from the judgment in RSA No.
73 of 1972 shows that the High Court though held that the civil court had
F jurisdiction to try the suit but remanded the matter to the Deputy Commission
that for a fresh decision. Jn fact the Deputy Commissioner was directed to re- 'f.' ~

determine the question as to whether the proprietors had been divested from
the disputed land and the same had vested in the Gaon Sabha and further
whether any pa1t thereof was within the holding of any one of the individual
G proprietors. The Deputy Commissioner, however could not carry out the
exercise as mean-while the land had been acquired. The rights of individual
persons having not been finally determined as directed by High Court no
question of res-judicala wou Id arise.
1' •
13. Section 185 provides for outster of the jurisdiction of the civil
H court and sub-section (I) thereof reads as under:
'
~

- _. GAON SABHA v. NATH! [G.P. MATHUR, .1.]

Section 185. (I) Except as provided by or under this Act no court
other than a court mentioned in column 7 of Schedule I shall, not
367

A

withstanding anything contained in the Code of Civil Procedure, 1908,
take cognizance of any suit, application or proceedings mentioned in
column 3 thereof ."

Sub-section (2), (3) and (4) of Section 185 provide for first appeal and B
second appeal in certain situations and also the forum for preferring such
appeals. As discussed earlier the plaintiffs in the suit could not have sought
declaration of any kind in their capacity "as proprietor of the land" as the said
\1 concept of proprietorship stood abolished after the enforcement of the Act.
They could only seek a declaration of their rights as Bhumidhar or Asami
which they could do only in one of the courts mentioned in column 7 of the
c
Schedule to the Act and not. in civil court. This position was also clearly
stated in Hatti V. Sundar Singh, [ 1970] 2 sec 841 and relevant part of para
7 of the report is being reproduced below:

" ........... The Act is a complete Code under which it is clear that any D
one, wanting a declaration of his right as a Bhumidhar, or aggrieved
by a declaration issued without notice to him in favour of another,
r can approach the Revenue Assistant under Item 4 of the First Schedule
and this he is allowed to do without any period of limitation, because
he may not be aware of the fact that a declaration has been issued in
respect of his holding in favour of another. A declaration by a Gaon
E
Sabha of the right of any person can also be sought without any
period of limitation. If there is dispute as to possession of agricultural
land, the remedy has to be sought under Section 84, read with Item
19 of the First Schedule. All the reliefs claimed by the respondent in
the present suit were, thus, within the competent jurisdiction of the F
Revenue Assistant, and the Civil Court had no jurisdiction to entertain
the suit."

14. It appears that som·e conflicting judgments had been delivered by
learned Single Judges of Delhi High Court on the question of jurisdiction of
the Civil Court and accordingly the matter was referred to a larger bench and G
the cohtroversy was then resolved by a Division Bench (Jagjit Singh and
Avadh Bt::hari JJ.) in Gaon Sabha of Lado Sarai v. Jage Ram, !LR (I 973) I
Delhi 984. The Division Bench specifically dealt with land which is recorded
I 'l as Gair Mum kin Pahar or banjar qadim or banjar jadid and held that in view
of notification no. 6073-R dated December 23, 1929 issued under Rule 2 H
368 SUPREME COURT REPORTS (2004] 3 S.C.R.

A sub-rule (2) of Land Revenue Assessment Rules, 1929 which were framed by
the Governor-General in exercise of the powers conferred by Section 60 of
the Punjab Land Revenue Act, 1887, the land recorded as gair mumkin
·-
banjar jadid and banjar qadim is also agricuftural land. The real issue arisin~
in such kind of suits filed before the civil c~urt was posed by the Bench in
B the following manner:

"It will inevitably happen that when a plaintiff, a Bhumidhar or
an Assami comes to court and challenges the vesting order of the
Revenue Assistant regarding his land in the Gaon Sabha then he
invariably asks that he (the plaintiff) is entitled to the Bhumidhari
..,
C rights and that a declaration be made in his favour. Unless the civil
court can first grant a declaration that the plaintiff is entitled to
Bhumidhari rights, no order can be passed about the vesting order of
the Revenue Assistant in the Gaon Sabha."

The Bench thereafter went on to hold that when the plaintiff seeks a declaration
D that the order of vesting of land in Gaon Sabha is illegal, it is inextricably
linked with the declaration that the land is included in the plaintiffs' holding
and he is entitled to declaration of his Bhumid.hari rights. In such
circumstances, the first relief is consequential upon plaintiffs being granted
the second relief as the substantive relief claimed by the plaintiff is that he
E is entitled to the declaration of Bhumidhari rights. It was accordingly held
that the civil court will have no jurisdiction to entertain the suit even if the
land involved is Gair Mumkin Pahar or banjar quadim. It will be useful to
reproduce the findings recorded by the Bench which are as under:

"Section 185 (I) of the Delhi Land Reforms Act enacts a complete
F bar to the jurisdiction of the civil court. Item 4 in Schedule I to the
Act mentions applications for declaration of Bhumidhari rights in
column 3 and the Court of the Revenue Assistant is the court of '""'
original jurisdiction for such application in column 7. In all the cases
under appeal the plaintiff prays for a declaration decree in his favour
and against the Gaon Sabha to the effect that the order of the Revenue
G Assistant regarding the inclusion of the plaintiffs land in question in
Land Reform Form No.2 as the property of the Gaon Sabha is illegal
and the plaintiff claims that he is entitled to be declared a Bhumidar
of the said land .......................................................................................... .
1 '
H In none of the cases a civil court will have jur.isdiction to entertain
GAON SABllA v. NATlll !G.P. MATHUR . .I.] 369

,......,
'j
the suit whether the land involved is banjar quadim or ghair mumkin A
pahar or ghair mumkin khandrat. The aggrieved party must seek his
remedy within the four corners of the Act. Where a plaintiff, a
Bhumidhar or an Assami comes to Court and challenges the vesting
order of the Revenue Assistant regarding his land in the Gaon Sabha,
then he invariably asks that he (the plaintiff) is entitled to the B
Bhumidhari rights and that a declaration be mack in his favour. Unless
the civil court can first grant a declaration that the plaintiff is entitled
to Bhumdhari rights, no order can be passed about the vesting order
of the Revenue Assistant in the Gaon Sabha.

Held, therefore, that as the plaintiffs claim in substance is that he C
has Bhumidhari rights in the suit land and the vesting order contrary
to law, such a suit could not be brought in the civil court by reason
of the said section of the Act."

15. The legal position is therefore absolutely clear and there cannot be
even a slightest doubt that the civil court had no jurisdiction to entertain the D
suit which was filed seeking a declaration that the order of vesting of land
in Gaon Sabha is illegal. It is indeed surprising that in spite of the aforesaid
Division Bench decision of the Delhi High Court which was rendered in
1973 which had settled the legal position and was a binding precedent and
the decision of this Court in Hatti v. Sunder Singh (supra) which was also
brought to the notice of the learned Single Judge hearing the second appeal E
(RSA No.73 of 1972), he chose to bye-pass the same by some queer logic
and went on to hold that the civil suit was maintainable. Once we come to
the legal position that the civil court had no jurisdiction to ente1iain the suit,
the inevitable consequence is that the decree passed in the aforesaid suit
including that of the High Court is wholly without jurisdiction. In such F
circumstances the principle laid down in Kiran Singh v. Chaman Paswan,
AIR (1954) SC 340 would come into play that a decree passed by a court
without jurisdiction is a nullity and that its invalidity could be set up whenever
and wherever it is sought to be enforced or relied upon, even at the stage of
execution and even in collateral proceedings and further a defect of jurisdiction G
whether it is pecuniary or territorial or whether it is in respect of the subject
matter of the action, strikes at the very authority of the Court to pass any
decree, and such a defect cannot be cured even by consent of pa1ties. Therefore,
the finding that the order passed under section 7 (2)of the Act vesting the
property in the Gaon Sabha is illegal recorded in the civil suit (including that
by the High Court in second Appeal) has to be completely ignored. H
370 SUPREME COURT REPORTS f'.!004] 3 S.C.R.

·A I 6. Learned counsel for the respondents have contended ihat no
notification under section 7(2) of the Act could be issued with regard to land
in dispute as it was not a waste land. We are unable to accept the contention
made. The definition of" waste land" in Explanation (i) appended to Section
7 is inclusive definition and the only exception is "uncultivated land included
B in the holding of such proprietors". The expression "such proprietor" here
refers to such types of persons who are described in main part of sub-section
(I) of Section 7. As mentioned earlier the disputed land was not included in
the holding of the respondents and therefore a notification under section 7 (2)
could validly be issued with regard to the land in dispute.

C 17. The judgment rendered by the Delhi High Court in RFA no.332 of
1968 (Union of India v. Mam/eshwar Pershad and Ors.) a portion of which
has been extracted in para 7 earlier is reported in 1991 (4) Delhi Lawyer 375.
In our opinion, the view taken in the said decision is wholly erroneous. The
High Court held that the definition of the word "holding" as given in Section
3 (I la) would not be applicable but chose to rely upon the definition of
D words "estate" and "holding" as given in Sections 3(1) and 3(3) respectively
of Punjab Land Revenue Act. I 887. For doing so, the High Court took
recourse to Section 3(24) of the Act. Section 3(24) of the Act says that such
words and expressions as are not defined in the Act and are used in the Agra
Tenancy Act, 1901 or the Punjab Tenancy Act, 1887, shall have the meaning
E assigned to them in the aforesaid Acts. Rut the words "estate" and "holding"
have been defined in Sub-sections (8) and (I Ia) of Section 3 of the Act. 11
is, therefore, not permissible to refer to Punjab Tenancy Act. I 887 for
ascertaining the meaning of the aforesaid terms. In the course of discussion,
The High Court has observed -"We are, thus, of the view that land other than
'khudkasht' of the holding of the individual proprietor did not vest in the
F Gaon Sabha because it has not been treated as waste land............. ." This
means that only khudkasht land would vest with the Gaon Sabha and other
land would not But this is plainly contrary to Section 5(a) of the Act which
clearly provides that a person having 'khudkasht' land would become
Bhumidhar thereof and consequently such land would not vest with the Gaon
Sabha. Therefore, the view taken by the High Court in Union of India v.
G Mamleshwar Pershad, which has also been relied upon for deciding the
matter of Sher Singh is legaily incorrect.

I 8. What was the precise case set up by the respondents can be
ascertained from the objection which was filed by them before the Land
H Acquisition Collector (ME), Delhi in response to the public notice issued
GAON SABI-IA v. NATHl [G.P. MATHUR . .1.J 371
under Section 9 of the Land Acquisition Act and para I thereof is being A
,....; reproduced below:

"That the claimants were the owners of the above said land which
was notified to be acquired vide the above said notifications being
co-sharers of Thok Pudhori, Patti Moharaja."
B
In para 2 it is state that the land was wrongly and illegally shown in
the revenue record of Gaon Sabha Tehkhand and on its dissolution and
urbanisation of revenue estate, in the name of Union of India. In para 3 it is
stated that some of the co-sharers in their representative capacity filed a civil
suit for a declaration that the Gaon Sabha is not the owner of the land and
the said suit was decreed up to the stage of second appeal by the High Court C
and in para 4, mention is made of the writ petition which was filed in Delhi
High Court. Para 5 contains the prayer clause that the claimants are entitled
to compensation at the rate of Rs. I 00 per sq. yard. The respondents have
made the claim for compensation mainly on the ground that they are owners
or proprietors of the acquired land. They do not claim to be Bhumidhar or D
Asami thereof. As discussed earlier, with the enforcement of the Act the very
concept of proprietorship stands abolished and, therefore, they are not entitled
to any compensation.

19. Shri R.K. Jain, learned senior counsel appearing for some of the
respondents has submitted that this Court had dismissed special .leave petitions E
filed against the decision of Delhi High Court in some similar matters and
therefore the present appeal should also be dismissed. An identical contention
was raised before the Bench which had earlier heard CA No. 2183 of 1993
(Union of India v. Sher Singh and Ors.) but was repelled on tht: ground that
the fact that leave had been granted in the said matter had not been brought
to the notice of the respective benches which heard subsequent special leave F
'X petitions. The Bench also observed that the settled legal position is that the
dismissal of special leave petition without speaking order does not constitute
res-judicata and therefore it was open to the court to examine the question on
merits. Having considered the submission made by learned counsel for
respondents, we are also of the opinion that the question canvassed before us G
is of considerable importance and may effect large number of cases and,
therefore, the mere fact that in some other similar cases leave was not granted
and special leave petitions were summarily dismissed would not come in the
way of this Court to examine the matter on merits. Shri Jain has also submitted
that the question in issue being one of a local Act and the High Court having
taken a particular view, this Court should not upset the same. We are afraid H
372 SUPREME COURT REPORTS [2004] 3 S.C.R.

A that taking such a generalised view of the matter would render the power
conferred upon this Court by Article 136 of the Constitution nugatory and •-,
would virtually amount to attaching finality to every judgment of the High
Court involving a local Act. That apart the view taken by the High Court in
the present matter is clearly contrary to two earlier Division Bench decisions
of the same court rendered in Goon Sabha of Lado Sarai v. .!age Ram, !LR
B (1973) I Delhi 984 and Nathu v. Hukam Singh, AIR (1983) Delhi 216 and
also of this Court in Hatti v. Sunder Singh, [1970] 2 SCC 841.

20. In the result, Civil Appeal No. 2183of1993 and Civil Appeal No.
3105 of 1997 succeed and are hereby allowed with costs. The impugned "I
C judgment and decrees of the High Court in both the appeals are set aside and
it is held that the Gaon Sabha is entitled to entire amount of compensation.

B.S. Appeals allowed.

f·