Supreme Court of India
S. NAGARAJ (DEAD) BY LRS. & ORS.versusB.R. VASUDEVA MURTHY & ORS. ETC. ETC.
- Citation
- 2010 INSC 88
- Decided
- 8 February 2010
- Disposal
- Disposed off
- Bench
- DALVEER BHANDARI
Holding
The Karnataka High Court’s 15 September 1998 judgment is final and binding; the grant to the Sangha was valid, the inamdars waived their occupancy rights, and the ministerial and subsequent High Court orders are set aside.
Summary
The Supreme Court examined a dispute arising from the Mysore Inam Abolition Act, 1954, where two inamdars applied for occupancy registration of land that the State had meanwhile granted to a teachers' association (Sangha) for house sites. The inamdars settled their suit with the Sangha, withdrew their claim, and later challenged the grant in writ petitions, which were dismissed. The High Court later directed the State to allot sites to the inamdars and set aside a 2003 ministerial order rescinding the Sangha's grant. The Supreme Court held that the Karnataka High Court’s 15 September 1998 judgment, which found the grant valid, the inamdars’ rights waived by their 1980 agreement, and limited their entitlement to price only, was final and binding; the ministerial order and the High Court’s 22 December 2006 judgment were set aside. The appeal was dismissed and the matter remitted accordingly.
Issues considered
- The validity of the 1979 State Government order sanctioning the grant of land to the Sangha under Sections 79A, 79B and 80 of the Karnataka Land Reforms Act.
- Whether the inamdars, having settled their suit and received consideration, waived their occupancy rights under the Inam Abolition Act.
- The effect of the High Court’s findings on res judicata and the doctrine of merger in view of the Supreme Court’s order refusing special leave.
- The legality of the Minister of Revenue’s 22 December 2003 order directing resumption, compensation and transfer of civic amenity sites and the ring‑road land.
- The proper quantum of relief to which the inamdars are entitled – price of land versus restoration of the grant.
Legislation cited
- Bangalore Development Authority Act, 1976s. 32(5), s. 38-A, s. 65
- Constitution of Indias. 136, s. 141
- Indian Contract Act, 1872s. 23
- Karnataka Land Grants Rules, 1969s. Rule 18, s. Rule 20
- Karnataka Land Reforms Act, 1961s. 79A, s. 79B, s. 80
- Karnataka Land Revenue Act, 1964s. 95(2), s. 95(7)
- Mysore (Personal & Miscellaneous) Inam Abolition Act, 1954
- Registration Act, 1908s. 17
Subjects
land reforminam abolitionoccupancy rightsres judicatadoctrine of mergerconversion finegrant of landKarnatakaBangalore Development Authoritystatutory interpretation
Judgment
[201 O] 2 S.C.R. 586
A S. NAGARAJ (DEAD) BY LRS. & ORS.
v.
B.R. VASUDEVA MURTHY & ORS. ETC. ETC.
(Civil Appeal No. 3038 of 2007)
FEBRUARY 08, 2010
B
[A.K. PATNAIK AND DALVEER BHANDARI, JJ.]
Mysore (Personal and Miscellaneous)lnam Abolition Act,
1954 - Abolition of lnams - During pendency of lnamdars'
C application for registration as occupants, the land granted to
a Sangha for construction of house - Conversion fine paid -
lnamdars initially challenging the grant, but later settled the
matter out of Court agreeing for an amount in addition to the
amount towards the price of the land - The competent
D authority later confirming the occupancy rights of the
lnamdars - Layout plan for the allotted land sanctioned by
Development Authority - Sites allotted to the members of the
Sangh and houses constructed - Thereafter Legal
Representatives of the lnamdars challenging the order of
E grant, in a suit and writ petition - Suit withdrawn - Writ petition
and writ appeal thereagainst dismissed - In special Leave
Petition, Supreme Court observing that occupancy .rights
having been granted in favour of lnamdars it was open to their
Legal Representatives to approach the State for modification
F of the order granting the land to the Sangh - State
Government's direction to acquire sites in the lay out
developed plan for allotment of the same to the. LRs of the
lnamdars challenged by the 14 a/lattes - The wit petitions were
allowed - Matter remitted to State to comply with direction
issued by Supreme Court - States' direction to stop the
G construction on the site challenged - High Court directing the
State to decide the matter within prescribed time - State
directing to handover vacant civic amenity sites, and the
vacant sites to the LRs of lnamdars and compensation to be
H 586
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 587
MURTHY & ORS. ETC. ETC.
paid to them for the land utilized by BOA for construction of A
road - The order challenged - High Co"urt gave the finding
in favour of the LRs of lndamdars, but quashed the direction
of the State for resumption and restoration of the sites in
favour of lnamdars - Court directed to allot each LR of
lnamdar a site in the same layout in lieu of the 182 sites and B
pay compensation to them - Review petition dismissed - On
appeal, held: The issue having been decided in writ apoeal
and having attained finality, cannot be re-opened for fresh
adjudication in subsequent challenge - The lnamadars by
entering into the agreement with the Sangha, waived their c
occupancy right - lnamdars were bound by the agree1r;ent ~
The grant in favour of Sangha not liable to be cancelled - The
grant was also not contrary to ss. 79A, 798 and 80 of Land
Reforms Act as the conversion fine was paid uls. 95 (2) and
(7) of Land Revenue Act - Moreover, this issue was also not 0
raised at initial stage - Kamataka Land Reforms Act, 1961 -
ss. 79A, 798 and 80 - Kamataka Land Revenue Act, 1964 -
s. 95 (2) and (7).
Doctrines I Principles - Doctrine of merger - Order
refusing special leave to appeal does not stand substituted E
in place of order under challenge - Such order could not
come within meaning of Article 141 - Doctrine of merger will
not be attracted in such case - Constitution of India, 1950 -
Articles 136 and 141.
F
Judgment - Per-in-curium - Applicability of - Judgment
passed per-in-curium is relevant to the doctrine of precedent
and not to the doctrine of res-judicata.
After abolition of lnams every lnamdar was entitled
to be registered as an occupant of the land. Two G
lnamdars made applications for registration as occupants
in respect of the land in question. During pendency of the
applications, the State granted the land to an Association
(Sangha) for construction of house sites. State fixed the
H
588 SUPREME COURT REPORTS [2010] 2 S.C.R.
A price of the land and a conversion fine was also imposed
which was deposited by the Sangha.
Both the lnamdars challenged the grant in a suit but
the matter was settled out of court between the parties.
The Sangha agreed to pay certain amount to the
8
lnamdars in addition to the amount towards the price of
ttae land.
Thereafter, the competent authority decided the
claims of the lnamdars for occupancy rights and
C confirmed the occupancy rights in their favour. The
lnamdars withdrew the amount deposited by the Sangha.
The Sangha got the layout plan sanctioned from the
Development Authority and allotted sites to its members
and the members built the houses on some of the sites.
D
The Legal Representatives of the lnamdars,
thereafter, filed writ petition challenging the order granting
the land in favour of the Sangha. They also filed a suit
challenging the same, but it was dismissed as withdrawn.
E Writ Petition was dismissed by the Single Judge of High
Court. Writ appeal thereagainst was also dismissed. In
Special Leave Petition against the same, Supreme court
observed that in view of the proceedings regarding
occupancy rights having been ended in favour of the
lnamdars, it would be open to them to approach the State
F for modification of the order granting the land to the
Sangha. The Resident Association which was impleaded
as a party in the SLP, filed an application for recalling the
order of Supreme Court, but the same was dismissed.
G State directed to acquire 14 sites in the lay-out
developed by the Sangha and to allot the same to tt~e
family members of the lnamdars. The owners of the 14
sites challenged the order in a writ petition which was
allowed by High Court and the matter was remitted to the
H State to comply with the order passed by Supreme Court.
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 589
MURTHY & ORS. ETC. ETC.
The legal representatives of the lnamdars also filed writ A
petitions seeking deletion of the condition of the grant
made in their favour, but the same was withdrawn by
them.
State directed to stop construction on the land in B
question till final disposal of the case. The same was
challenged in writ petition. The High Court dismissed the
same directing the State Government to decide the matter
within specified time. On failure on the part of the State
to comply with the order of Supreme Court, the lnamdars C
filed contempt petition.
The State passed an order dated 22.12.2003 directing
that the vacant civil amenities to a certain extent to be
handed over to the lnamdars free of cost; directed the
Development Authority to pay compensation to the D
lnamdars for the land utilized by them for formation of
road; directed transfer of 182 sites to the lnamdars and
if not available, to pay compensation in lieu of the same.
It also directed the State to examine to allot 20 acres of
land to compensate for the losses. The order was E
challenged in the writ petitions separately by the
Development Authority, the Sangha, residents'
Association and different owners of house sites.
High Court by the impugned order held that the State
has no power to pass the order according sanction for F
grant of the land in favour of the Sangha during
pendency of the applications of the lnamdars for
registration of their occupancy rights as the land did not
rest in the State on that date; that the State was justified
in passing the order dated 22.12.2003 canceling the grant G
and ordering resumption and restoration of 182 sites in
favour of the lnamdars; that sanction of the grant of the
land was void ab initio being in violation of s. 79A, 798
and 63(7) of Karnataka Land Reforms Act; that the
H
590 SUPREME COURT REPORTS [2010) 2 S.C.R.
A agreement in favour of the Sangha by the lnamdars,
during pendency of the application for occupancy rights
was not legal; that the order passed by the High Court
in the earlier proceedings do not operate as res judicata
as the case of the lnamdars with reference to the
B provisions of lnam Abolition Act were not considered
therein, and the same was per incurium. However, in view
of the facts that the members of the Sangha had already
constructed the houses and were residing there, for
considerable time, the High Court quashed the directions
c in the order- dated 22.12.2003 for resumption and
restoration of 182 sites and directed the Sangha to allot
each LR of the lnamdars a site and in lieu of the 182 sites
to pay compensation. High Court further held that the
LRs were entitled to receive compensation in respect of
the land acquired by the Development Authority for
0
formation of the road. High Court also quashed the
direction to examine whether further 20 acres of the land
could be allotted to the lnamdars. The review petition filed
by the LRs of lnamdars was dismissed. Hence, the
E present appeals by the LRs of lnamdars, the
Development Authority, the Residents' Association and
several owners of the house sites.
Disposing of the appeals,· the Court
F HELD: 1. The Division Bench of the Karnataka High
Court decided" three issues in its judgment dated
15.9.1998 in the Writ Appeal first, that the State
Government had the power to sanction grant of the land
in Survey Nos.45 and 47 in favour of the Sangha by the
G order dated 15.6.1979 notwithstanding the pendency of
the claim of the lnamdars to be registered as occupants
of the land before the Special Deputy Commissioner,
lnam Abolition, and therefore the order dated 15.6.1979
of the State Government of Karnatka sanctioning the land
H in favour of the Sangha cannot held to be bad; second,
S. NAGARAJ (DEAD) BY LRS. v. 8. R. VASUDEVA 591
MURTHY & ORS. ETC. ETC.
in the event the claim of the lnamdars to be registered as A
occupants of the land was subsequently allowed by the
Special Deputy Commissioner or by the Tribunal, the
lnamdars were not entitled to restoration of the land from
the Sangha but were entitled for the price of the land;
third, the lnamdars had waived thei.r right of occupation B
of the land by the agreement dated 1.11.1980 and by
withdrawing the suit in which they challenged the order
dated 15.6.1979 of the State Government of Karnataka,
sanctioning the grant of land in favour of the Sangha and
by receiving Rs.2,000/- per acre and Rs.49,000/- in c
addition to the price of Rs.10,000/- per acre. [Para 29)
[620-G-H; 621-A-D]
1.2. On interpreting the two orders dated 9.4.1999 and
28.8.2000 of Supreme Court, the decisions on the three
Issues in the judgment dated 15.9.1998 of the Division D
Bench of the High Court in the Writ Appeal were not
disturbed by this Court in the SLP and, therefore, the
decisions on the three issues of the Division Bench of
the Karnataka High Court in the Writ Appeal became final
and binding on the parties, namely, the legal E ·
representatives of the lnamdars, the State Government
and the Sangha and its members. [Para 31) [622-C-D]
1.3. In order refusing special leave to appeal does not
stand substituted in place of order under challenge and F
all that it means is that this Court was not inclined to
exercise its discretion so as to allow the appeal being
filed. If the order refusing leave to appeal makes a
statement of law, such statement of law is declaration of
law by this Court within the meaning of Article 141 of the G
Cons.titution of India and if the order records some
finding other than the declaration of law such finding
would bind the parties thereto and also 1 the Court,
Tribunal or Authority in any proceeding subsequent
thereto by way of judicial discipline, the Supreme Court H
592 SUPREME COURT REPORTS [2010] 2 S.C.R.
A being the Apex Court of the country. [Para 32] [622-F-G;
622-H; 623-A-B]
1.4. The judgment dated 15.9.1998 of the Division
Bench of the Karnataka High Court in the Writ Appeal
which was challenged in SLP before this Court, does not
8
stand substituted by the order dated 9.4.1999 of this Court
in the SLP because this Court has not granted special
leave to appeal against such judgment. Further, the order
dated 9.4.1999 of this Court does not contain any
statement of law which would amount to declaration of
C law by the Supreme Court within the meaning of Article
141 of the Constitution of India. In the o_rder dated 9.4.1999
this Court has also not recorded any finding which would
be binding on the legal representatives of the lnamdars,
the State Government, the Sangha and its members, but
D , has only granted liberty to the legal representatives of the
lnamdars to approach the State Government for
modification of the order granting land in favour of the
Sangha and has given further direction to the State
Government to dispose of such application within the
E period of three months from the receipt of the application
.of the legal representatives of the lnamdars. Hence, the
contention raised on behalf of the legal representatives
of the lnamdars that the judgment dated 15.9.1998 of the
Division Bench of the High Court got merged in the order
F -dated 9.4.1999 in the SLP and the findings on the three
issues in the order dated 15.9.1998 in the Writ Appeal did
not operate as res judicata and were not binding on the
legal representatives of the lnamdars, the State
Government, the Teachers' Colony Association or the
G Sangham and its members, is misconceived. [Para 33]
[624-A-C; 624-E-H; 625-A]
Kunhayammed and Ors. v. State of Kera/a and Anr.
(2000) 6 sec 359, relied on
H
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 593
MURTHY & ORS, ETC. ETC.
2. The High Court in the impugned order has taken A
a view that the orders passed by the High Court in the
earlier proceedings in the Writ Petition and the Writ
Appeal do not operate as res judicata as the case of the
lnamdars with reference to the provisions of the lnam
Abolition Act and the law laid down by this Court on B
various aspects were not considered in the earlier writ
petitions and writ appeal and the decisions rendered by
the Division Bench of the High Court in the Writ Appeal
were per incurium. The High Court lias failed to appreciate
that the principle of per incurium has relevance to the c
doctrine of precedents but has no application to the
doctrine of res judicata. [Para 34] [625-B-D]
Tarini Charan Bhattacharjee and Ors. v. Kedar Nath
Haldar AIR 1928 Calcutta 777, referred to
D
3.1. From the judgment of the Division Bench of the
Karnataka High Court in the Writ Appeal, it is not found
that any contention was raised on behalf of the legal
representatives of the lnamdars that-grant of land in
Survey Nos.45 and 47 could not be sanctioned in favour E
of the Sangha for house sites because of the restrictions
in Sections 79-A, 79-B and 80 of the Land Reforms Act. If
this ground of attack had not been taken by the legal
representatives of the lnamdars while challenging the
order dated 15.6.1979 of the State Government F
sanctioning the grant of land in favour of the Sangha, this
contention could not be raised by them before the High
Court in a subsequent proceeding because of the
principle of constructive res judicata underlying
Explanation IV of Section 11 of the CPC which has been G
applied to writ petitions. [Para 35] [626-E-H]
Direct Recruit Class II Engineering Officers' Association
v. State of Maharashtra and Ors. (1990) 2 SCC 715, followed
H
594 SUPREME COURT REPORTS [2010] 2 S.C.R.
A Mathura Prasad Bajoo Jaiswal and Ors. v. Dossibai N.B.
Jeejeebhoy, referred to
3.2. Chaptet,,'V of the Land Refor~s Act is titled
"Restrictions on holding on transfer of agricultural lands"
and th~ language of Sections 79-A, 79-B and 80 shows
8
that these provisions apply to only "agricultural lands".
From the provisions of sub-sections (2) and (7) of Section
95 of the Karnataka Land Revenue Act, 1964 it is seen
that the land held for agricultural purpose can be
,. permitted to be diverted .for other purposes on payment
C of fine. In the order dated 15.6.1979 of the State
Government sanctioning the grant of the land in favour
of the Sangha, it is clearly stipulated that the Sangha shall
pay such conversion fine to be levied as per the rules
made under the Revenue Act. The Karnataka Land
D Grants Rules, 1969 made under Section 179 of the Land
Revenue Act and in particular Rule 18 has also made
elaborate provisions for grant of building sites on
payment of price. [Para 36] [627-E-H; 628-A]
E 3.3. Sections 79-A, 79-B and 80 of the Land Reforms
Act, therefore, have to be read together with Section 95
of the Land Revenue Act as all these provisions deal with
the same subject matter, namely, agricultural lands. The
law permitted the grant of the agricultural land in favour
F of the Sangha for house sites on payment of conversion
fine and the grant made by the State Government in
favour of the Sangha by the order dated 15.6.1979 was
not void ab initio on this count. [Para 36] [628-C-D]
'Principles of Statutory Interpretation' by Justice G.P.
G Singh 12th Edition p. 298, referred to
4.1. It is correct to say that res judicata will not
operate as a bar for entertaining a fresh cause of action
and in the present case the order dated 22.12.2003
H passed by the Minister, Revenue, Government of
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 595
MURTHY & ORS. ETC. ETC.
Karnataka, gave rise to a fresh cause of action. But even A
where a fresh cause of action arises, issues between the
parties which have been decided cannot be re-opened
before the Court for fresh adjudication between the same
parties. The findings of the Division Bench of the High
Court in the judgment dated 15.9.1998 in the Writ Appeal s
that the order dated 15.6.1979 of the State Government
sanctioning the grant of land in favour of the Sangha was
valid and that the lnamdars were only entitled to the price
payable for the land when their claims for registration
under Sections 9 and 10 of the lnam Abolition Act were c
allowed and that the lnamdars have waived their right of
occupation in the land by entering into the agreement
dated 1.11.1980 and by accepting the price of Rs.10,000/
- per acre deposited by the Sangha and the additional
amount paid by the Sangha were binding not only on the D
legal representatives of the lnamdars and the Sangha but
also on the State Government. [Paras 37 and 38] (628-E-
F; 629-C-E]
State of Haryana and Ors. v. M.P. Moh/a (2007) 1 sec
457, relied on. E
4.2. While deciding the application of the legal
representatives of the lnamdars for modification of the
order dated 15.6.1979 sanctioning the grant of land in
favour of the Sangha, therefore, the State Government F
could not ignore these findings of the Division Bench of
the High Court in the judgment dated 15.9.1998. In the
order dated 9.4.1999 of this Court in the SLP there was
no mandamus to the State Government to modify or
cancel the order dated 15.6.1979 of the State Government G
sanctioning the grant of land in favour of the Sangha, but
there was only a direction to the State Government to
consider the application of the legal representatives of
the lnamdars for modification of the order dated
15.6.1979. [Para 38] [629-E-G]
H
596 SUPREME COURT REPORTS [201 OJ 2 S.C.R.
A Madan Mohan Pathak and Anr. v. Union of India and Ors.
(1978) 2 sec 50, referred to.
4.3. The Revenu Minister, Government of Karnataka,
while considering the application of the lnamdars,
ignored the findings of the Division Bench of the High
8
Court in the judgment dated 15.9.1998 and took the view
in his order dated 22.12.2003 that on the competent
authority granting occupancy right to the lnamdars by the
order dated 23.6.1982, the lnamdars had become the
rightful owners of the land and action would have to be
C taken to cancel the grant made in favour of the Sangha.
[Para 38] [629-G-H; 630-A-B]
4.4. The judgment dated 15.9.1998 of the Division
0
Bench of the High Court had held that on the occupancy
D rights of the lnam~ars being confirmed, the lnamdars
would be entitled to only the price and that the lnamdars
had waived their right to occupy the land by accepting
the price and by accepting further additional amounts
from the Sangha and this judgment of the Division Bench
E of the High Court had not been disturbed by this Court
in SLP and the Minister, Revenue, Government of
Karnataka, could not have taken a view that on the
confirmation of the occupancy rights of the lnamdars, the
grant of the land made in favour of the Sangha was liable
F to be cancelled. [Para 39] [631-B-D]
4~5 .. Once it is held that the grant made in favour of
the Sangha was not .liable to be cancelled, the order of
the Minister, Revenue,. Government of Karnataka,
directing that the vacant 182 sites have to be transferred
G to the lnamdars or compensation in lieu of the vacant 182
sites were to be paid by the Sangha to the lnamdars, has
to be .set aside. Further, the. order that the vacant civic
amenity sites to an.extent of 2 acres 34 guntas must.be
H
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 597.
· MURTHY & ORS. ETC. ETC.
handed over to the lnamdars free of cost and the land, A
which is used by the BOA for formation of the ring road,
has to be acquired by the BOA and the compensation has
to be paid for this land to the lnamdars as if the same was
private property, has also to be set aside. This is because
the civic amenity sites measuring 2 acres 34 guntas and B
the ring road were part of the land measuring 34.03 acres
given on grant to the Sangha. Moreover, at the time of
sanctioning the layout plan of the Sangha, the BOA had
stipulated that the roads, civic amenity sites, parks and
all connections such as underground drainage, water C
supply lines, shall vest with the BOA free of cost. The
civic amenity sites and the road, therefore, had become
properties of the BOA and it was the BOA only which was
empowered to deal with such properties subject to
Section 38-A and other provisions of the Bangalore D
Development Authority Act, 976. The order dated
22.12.2003 of the Minister, Revenue, Government of
Karnataka, directing that the civic amenity sites be
handed over to the lnamdars free of cost and directing
that the BOA will acquire the land comprised in the ring
road after paying compensation for the same, was thus E
without the authority of law. [Para 40] [631-E-H; 632-A-C]
Taherakhatoon (D) by L.Rs. v. Salambin Mohammad
(1999) 2 SCC 635; Kunhayammed and Ors. v. State of
Kera/a and Anr. (2000) 6 SCC 359; Virender Singh Hooda F
and Ors. v. State of Haryana and Anr. (2004) 12 SCC 588;
Bangalore Medical Trust v. B.S. Muddappa and Ors. (1991)
4 SCC 54; Bangalore Development Authority and Ors. v. R.
Hanumaiah and Ors. (2005) 12 SCC 508, referred to.
Case Law Reference: G
(1974) 2 sec 472 Referred to Para 14
(1995) Supp. (2) SCC 549 Referred to Para 14
(1996) 10 sec 533 Referred to Para 14 H
598 SUPREME COURT REPORTS [2010] 2 S.C.R.
A (2004) 1 sec 459 Referred to Para 14
(1995) 5 sec 109 Referred to Para 15
(2004) 11 sec 186 Referred to Para 15
(1990) 1 sec 201 Referred to Para 16
B
(1988) 2 sec 580 Referred to Para 16
(2004) 1 sec 112 Referred to Para 17
(2004) 3 sec 1 Referred to Para 17
c (1999) 2 sec 635 Referred to Para 20
(2004) 12 sec 588 Referred to Para 21
(1991) 4 sec 54 Referred to Para 24
D (2005) 12 sec 508 Referred to Para 24
(2000) s sec 359 Referred to Para 33
AIR 1928 Calcutta 777 Referred to Para 34
E (1970) 1 sec 613 Referred to. Para 35
(1990) 2 sec 115 Followed Para 35
. (2001) 1 sec 457 Relied on Para 37
(1978) 2 sec 50 Referred to Para 39
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3038 of 2007.
From the Judgment & Order dated 22.12.2006 of the High
Court qf Karnataka at Bangalore in W.P. Nos. 20331, 7332,
G
10303, 12024, 12094, 14858, 15614, 16833, 17883, 20678,
22145, 25372, 26218, 32203, 36796, 10305 of 2004, 21620 ·
of 2005 and Review Petition No. 107 of 2007.
H
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 599
MURTHY & ORS. ETC. ETC.
WITH A
C.A. Nos. 3037, 3049, 3040-3047, 3050 and 3941-3953 of
2007.
C.A. Nos.1477,1478 and 1479 of 2010
B
Dushyant A. Dave, P. Vishwanath Shetty, S.S. Jawali and
P.P.Rao, S. U.K. Sagar, Ms. Bina Madhavan, Shwetank (for
Lawyers' Knit & Co.), M. Gireesh Kuamar, A.A. Kalebudde,
Vijay Kumar, G.V. Chandrashekar, Purushottam S.T. Sahar
Bakht, Ustav Sidhu, Anjana Chandrashekar, R.S. Hegde, c
Chandra Prakash, Rahul Tyagi, Ashwani Garg, P.P. Singh,
Bhaskar Y.Kulkarni,Ms. K.V. Bharathi Upadhyaya, Dr. Sushil
Balwada, E.C. Vidya Sagar, K.K. Mani, Pantosh Gupta (for
Lawyers' Knit & Co.), Sanjay R. Hegde, A Rohen Singh, Ms.
Deepa Kulkarni and D.P. Chaturvedi for the appearing parties. D
The Judgment of the Court was delivered by
A.K. PATNAIK, J. Permission to file Special Leave
Petition (C) Nos.18843/2007 and 18846/2007 granted. Delay
condoned and leave granted in the Special Leave Petitions. E
We also condone the delay in filing the applications for
substitution and allow the applications for substitution. We also
allow the applications for impleadment.
2. These Civil Appeals are directed against the common
judgment dated 22.12.2006 of the Division Bench of the High
F
Court of Karnataka in a batch of Writ Petitions in relation to 34
acres and 3 guntas _of lnam land in Bangalore District which
was allotted by the State Government to an association of
teachers for construction of houses and for which the Bangalore
Development Authority has sanctioned a lay out plan. The G
Bangalore Development Authority has filed Civil Appeal
No.3037/2007, the legal representatives of lnamdars have filed
Civil Appeal No.3038/2007, the Teachers' Colony Residents
H
600 SUPREME COURT REPORTS [2010} 2 S.CR.
A Association has filed Civil Appeal _tio.•.3049/2007 and several
owners of the hous_et-sH-es~tlave filed the remaining Civil
Appeals.
Facts
B 3. The relevant facts briefly are that the Mysore (Personal
& Miscellaneous) lnam Abolition Act, 1954 (for short 'the lnam
Abolition Act') was enacted for abolition of personal lnams and
other miscellaneous lnams in the State of Mysore, except Bellari
District. On the lnam Abolition Act coming into force on
C 1.2.1959, all rights, title and interests vested in the lnamdars
ceased and vested absolutely in the State of Mysore free from
911 encumbrances. Every lnamdar, however, was entitled to be
registered as an occupant of land and could make an
application before the Special Deputy Commissioner, lnam
D Abolition, for such registration as an occupant.
4. Sreenivasa Rao and Babu Rao, two lnamdars, filed
applications for registration as occupants in respect of some
lands in Survey Nos. 45 and 47 of Jakkasandra village,
E Bangalore South Taluk. When these applications were pending
before the Special Deputy Commissioner, Kendra Upadhyayara
Sangha (for short 'the Sangha'), an association of teachers,
applied for grant of land for house sites to its members and the
Special Deputy Commissioner, Bangalore District, proposed
grant of land measuring 34 acres 3 guntas in Survey Nos. 45
F and 47 of Jakkasandra village in favour of the Sangha. The
. Divisional Commissioner, Bangalore, while recommending the
proposal of the Special Deputy Commissioner, Bangalore
District, for grant of the land in favour of the Sangha, reported
that the land in question was a Devadaya lnam Land in respect
G of which applications for occupancy rights were still pending
settlement before the Special Deputy Commissioner, lnam
Abolition. The Government of Karnataka in the Revenue
Department by an order dated 15.6.1979 accorded· sanction
for grant of the land measuring 34 acres 3 guntas out of Survey
H Nos.45 and 47 of Jakkasandra village in favour of the General
' ........ ~. . . ,_,
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 601
MURTHY & ORS. ETC. ETC. [AK. PATNAIK, J.]
Secretary of the Sangha for providing house sites to the A
Members of the Sangha subject to the decision in the dispute
pending before the Special Deputy Commissioner, lnam
Abolition. The Government also fixed a price of Rs.10,000/- per
acre amounting to Rs.3,40, 750/- for grant of the land and a
conversion fine of Rs.4,000/- per acre in its order dated B
15.06.1979 and the amounts were deposited by the Sangha.
5. On 4.8.1979, Sreenivasa Rao filed O.S. No.687/1979
in the Civil Court, Bangalore, questioning the grant made by
the State Government in favour of the Sangha and praying for C
a decree of permanent injunction against the Sangha in respect
of the land. On 1.11.1980, however, Sreenivasa Rao and Babu
Rao entered into an agreement with the Sangha to withdraw
the suit on receipt of Rs.2,000/- per acre in respect of 34 acres
and 3 guntas of land in addition to the amount of Rs.3,40, 750/ D
- deposited by the Sangha towards the price of the entire land
with the Government. Accordingly, on 8.11.1980 Sreenivasa
Rao filed a memo in the Court saying that he does not want to
press O.S. No.687/1979 as the suit has been settled out of court
and on 10.11.1980 the Principal Munsif, Bangalore, dismissed
the suit as not pressed. E
6. In the meanwhile, the Karnataka lnam Abolition Laws
(Amendment Act) 1979 amended the lnam Abolition Act
providing that the Tribunal constituted under Section 48 of the
Karnataka Land Reforms Act, 1961 (for short 'the Tribunal') F
instead of the Special Deputy Commissioner, lnam Abolition,
will decide the claims for occupancy rights under the lnam
Abolition Act. Thereafter, the Tribunal by its order dated
23.6.1982 passed in Case No. l.R.F. INA 419/1979-80 decided
the claims of Sreenivasa Rao and Babu Rao for occupancy G
rights in respect of the land and ordered the confirmation of the
occupancy rights in the suit land in favour of Sreenivasa Rao
and Babu Rao jointly. Pursuant to the order dated 26.6.1982
of the Tribunal, Sreenivasa Rao and Babu Rao withdrew the
amount of Rs.3,40, 750/- deposited with the Government by the H
602 SUPREME COURT REPORTS [2010] 2 S.C.R.
A Sangha. During the years 1982 to 1990, the Sangha got the
layout plan of the land of 34 acres 3 guntas allotted to the
Sangha sanctioned from the Bangalore Development Authority
(for short the 'BOA') and allotted sites to its members and the
members of the Sangha built houses on some of these sites
B and some members also transferred their house sites to others.
7. In the year 1990, however, Nagaraj, Venkojirao and
Narhari, the legal representatives of Sreenivasa Rao filed W.P.
No.11412/1990 in the Karnataka High Court challenging the
C order dated 15.6.1979 of the State Government of Karnataka
granting the land in favour of the Sangha. On 8.7.1992, the legal
representatives of Sreenivas Rao, namely, Nagaraj, Venkojirao
and Narhari also filed the suit O.S. No.4349/1992 for declaring
the grant of the aforesaid land in favour of the Sangha as null
and void and for declaring all acts of the BOA sanctioning the
D layout in respect of the suit land in favour of the Sangha as
illegal and for delivery of vacant possession of the suit land to
them. On 17.6.1995, the three legal representatives of
Sreenivasa Rao filed a memo in the Court of Additional Civil
Judge, Bangalore, for withdrawal of the suit 0.S. No.4349/1992
E and on 24.9.1995 the suit was dismissed as withdrawn by the
Court. On 28.6.1996, W.P. No. 11412/1990 was dismissed by
the learned Single Judge of the Karnataka High Court. Nagaraj,
Venkojirao and Narhari, however, filed Writ Appeal No.7574/
1996 against the order passed by the learned Single Judge
F but the Division Bench of the Karnataka High Court by its order
dated 15.9.1998 after deciding various issues raised by the
parties dismissed the writ appeal. Nagaraj and- Narhari then
filed SLP (G) No.2833/1999 against the order dated 15.9.1998
passed by the Division Bench before this Court. and on
G 9.4.1999 this Court, without issuing notice in the SLP and while
disposing of the SLP, made observations that if the
proceedings pending before the Special Deputy Commissioner
with regard to the claim of lnamdars have ended in favour of
the petitioners who have filed the SLP, it will be open to them
H to approach the State Government for modification of the order
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 603
MURTHY & ORS. ETC. ETC. [A.K. PATNAIK, J.]
granting land to the Sangha. The Teachers' Colony Residents A
Association (for short the 'Association') which was impleaded
as respondent No.5 in SLP(C) 2833/1999 filed an application
before this Court for recalling the order dated 9.4.1999, but this
Court in its order dated 28.8.2000 in SLP(C) 2833/1999
observed that there was nothing adverse to respondent No.5- B
Society and accordingly dismissed the application for recalling.
8. Thereafter, on 6.8.2002 the State Government of
Karnataka directed the Special Commissioner to acquire 14
sites in the layout developed by the Association with a further
direction to the Special Deputy Commissioner to allot 14 sites C
to the family members of the lnamdars. The owners of the 14
sites filed W.P. Nos.32462-473/2002 in the Karnataka High
Court, challenging the order dated 6.8.2002 of the State
Government and by an order dated 28.11.2002 the learned
Single Judge of the High Court allowed the Writ Petitions and D
remitted the matter to the State Government with the direction
to comply with the order dated 9.4.1999 of this Court after
hearing the petitioners and the respondents in the writ petitions
and any other person interested in the matter. The legal
representatives of the lnamdars also filed Writ Petition E
Nos.39046-48/2002 seeking deletion of a condition of the
grant made in their favour, but on 9.1.2003 they withdrew the
writ petitions as not pressed. The State Government of
Karnataka by its order dated 10.2.2003 then directed the
Special Deputy Commissioner to stop construction on the land F
in dispute till disposal of the final proceedings and this order
dated 10.2.2003 was challenged before the Karnataka High
Court in W.P. No.8551/2003, but by an order dated 6.3.2003
the High Court while dismissing the writ petitions directed the
State Government to decide the matter within two months. The G
Special Deputy Commissioner then submitted his report to the
Statement Government on 28.5.2003 and when the State
Government did not pass any order in compliance of the order
of this Court in SLP(C) 2833/1999, the lnamdars filed I.A. No.3
in the aforesaid SLP alleging contempt and this Court itisued H
604 SUPREME COURT REPORTS [2010) 2 S.C.R.
A notice in the I.A. on 8.9.2003.
9. The Minister, Revenue, Government of Karnataka, then
passed the order on 22 .12 .2003 directing that :
(a) The vacant civic amenity sites to an extent of 2 acres
B 34 guntas available be handed over to the
lnamdars free of cost.
(b) The land which is utilized by the BDA for formation
of the ring road has to be acquired by the BOA and
c the compensation paid as this was private property.
(c) The vacant 182 sites which were available as on
the day of the inspection by the Special Deputy
Commissioner, Bangalore, on 28.5.2003 would be
transferred to the lnamdars or if the same was not
D available on date, compensation in lieu of it from
Sangha be paid to the lnamdars.
(d) The Government will examine to allot 20 acres of
land in Survey No.148 of Kudlu village of Jigani
E Hobli, Anekal Taluk, to compensate for the losses.
10. This order dated 22.12.2003 of the Minister, Revenue,
Government of Karnataka, was challenged before the
Karnataka High Court by the BOA in W.P. No.15614 of 2004,
the Sangha in W.P. No.26218 of 2004, the Teachers' Colony
F Residents Association in W.P. No.7332 of 2004 and different
owners of house sites in W.P. Nos.20331, 10303, 12024,
12094, 14771, 14858, 16833, 17883, 20678, 22145, 25372,
32203, 36796 of 2004 and 21620 of 2005. The writ petitions
were heard analogously and decided by a common judgment
G delivered by a Division Bench of the Karnataka High Court on
22.12.2006. The legal representatives of the lnamdars filed
Review Petition No.107/2007 against the common judgment
dated 22.12.2006 of the Division Bench of the Karnataka High
Court but the same was dismissed on 19.04.2007.
H
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 605
MURTHY & ORS. ETC. ETC. [AK. PATNAIK, J.]
Findings in the impugned Judgment of the High Court A
11. In the impugned judgment dated 22.12.2006, the High
Court has recorded the following findings and conclusions:
(i) The 34 acres 3 guntas of land in Survey Nos. 45
and 47 of Jakkasandra village, Bangalore South B
Taluk, did not vest in the Government on 15.6.1979
because the applications of the lnamdars for
registration as occupants in respect of the land
under in Sections 9 and 1O of the lnam J\bolition
Act were pending before the Special Deputy c
Commissioner and therefore the State Government
had no power to pass the order dated 15.6.1979
according sanction for grant of the land in favour of
the Sangha and the Minister, Revenue, Government
of Karnataka, was justified in passing the order D
dated 22.12.2003 cancelling the grant in favour of
the Sangha and ordering resumption and
restoration of 182 house sites in favour of the
lnamdars pursuant to the order dated 9.4.1999 of
this Court. E
(ii) The order dated 15.6.1979 of the State Government
sanctioning the grant of the land in favour of the
Sangha for allotment of house sites to its members
was void ab initio in law as Sections 79-A, 79-B
and 63(7) of the Karnataka Land Reforms Act F
provided for allotment of land only for agricultural
purposes and the rights given under the provisions
of the Act to lnamdars in respect of land in question
could not be whittled down by the State Government
in exercise of its power under the Karnataka Land G
Grant Rules, 1969.
(iii) The Agreement executed by the lnamdars on
1.11.1980 in favour of the Sangha when the claim
of the lnamdars for registration had not been H
606 SUPREME COURT REPORTS [2010] 2 S.C.R.
A decided by the Tribunal was not legal and was void
and being an unregistered agreement could not
affect the rights of the lnamdars to immovable
property.
(iv) The orders passed by the Karnataka High Court in
B the earlier proceedings in W.P. No.11412/1990 and
W .A. No. 7574/1996 do not operate as res judicata
as the case of the lnamdars with reference to the
provisions of the lnam Abolition Act and law laid
down by this Court on various aspects were not
c considered in the earlier writ petitions and writ
appeal and the decisions rendered by the Division
Bench of the Karnataka High Court in W.A.
No.7574/1996 was per incurium.
D (v) The writ petitions filed by the allottees/purchasers
of the house sites against the order passed by the
Minister, Revenue, Government of Karnataka dated
22.12.2003 directing the Deputy Commissioner to
resume and restore 182 sites from the land earlier
E sanctioned in favour of the Sangha to the lnamdars
were maintainable as the order entailed serious
consequences for the allottees/purchasers of the
sites.
(vi) The order dated 22.12.2003 passed by the
F Minister, Revenue, Government of Karnataka,
pursuant to the order of this Court dated 9.4.1999
in SLP(C) 2833 of 1999 canceling the grant in
favour of the Sangha and directing the· Deputy
Commissioner of the district to resume and restore
G the lands to the extent of 182 sites which were
vacant was legal and valid.
(vii) In the facts and circumstances of the case,
particularly, when the members of the Sangha have
already constructed houses in the house sites and
H
S. NAGARAJ (DEAD) BY LRS. v. 8. R. VASUDEVA 607
MURTHY & ORS. ETC. ETC. [A.K. PATNAIK, J.]
have been residing for more than two decades, the A
reliefs claimed in the writ petitions should be
moulded. The High Court accordingly quashed the
direction in the order dated 22.12.2003 of Minister,
Revenue, Government of Karnataka for resumption
and restoration of 182 sites in favour of the B
lnamdars and directed the Sangha to allot to each
legal representative of the lnamdars a site
measuring 40 X 60 feet in the same layout and in
lieu of the 182 sites, pay compensation for each
site @ of Rs.1,00,000/- for 30 X 40 feet, c
Rs.1, 75,000/- for 40 X 60 feet or proportional
amount for any other lesser or higher dimension
sites to the legal representatives of the lnamdars
equally. The High Court further directed that until
allotments of the sites and payment of the
0
compensation are made by the Sangha, no
construction shall be put up on the vacant sites and
status quo shall be maintained. The High Court
further held that the legal representatives of the
lnamdars are entitled to receive compensation in E
respect of the land acquired by the BOA for
formation of the road, if any. The High Court also
quashed the direction in the order dated
22.12.2003 to examine whether further 20 acres of
land can be allotted to the lnamdars.
F
Contentions of the parties before this Court
12. Mr. Dushyant Dave, learned senior counsel appearing
for the legal representatives of the lnamdars (the appellants in
Civil Appeal No.3038 of 2007), referred to sub-Section (1) of G
Section 3 of the lnam Abolition Act which states the
consequences of a notification under sub-Section (4) of
Section 1 in respect of any inam and submitted that the
expression "save as otherwise expressly provided in the Act"
in this provision saves the right of lnamdar under Section 9 of H
608 SUPREME COURT REPORTS [2010) 2 S.C.R.
A the Act to be registered as an occupant in respect of the land
from the consequences of vesting even after a notification was
issued under sub-section (4) of Section 1 of the Act. He
submitted that clause (c) of sub-section (1) of Section 3 makes
this position further clear by stating that upon an issue of a
B notification under sub-section (4) of Section 1 of the Act in
respect of any inam, the lnamdar shall cease to have any
interest in the inam "other than the interests expressly saved
by or under the provisions" of the Act. He contended that clause
(a) of sub-Section (3) of Section 10 of the lnam Abolition Act
c further provides that no person shall be entitled to be registered
as an occupant under Section 9 unless the claimant makes an
application to the Tribunal (earlier the Special Deputy
Commissioner) within three years from the date of vesting of
the inam concerned or 31.12.1999 whichever was later and
D clause (b) of sub-section (3) of Section 10 provides that where
no application is made within a period specified in clause (a),
the right of any person to be registered as an occupant shall
stand extinguished and the land shall vest in the State
absolutely and such land shall be disposed of in accordance
with the rules relating to grant of land. He submitted that the
E legislative intent of the lnam Abolition Act, therefore, was that
so long as the application of lnamdar to be registered as an
occupant has been filed within the period specified in clause
(a) of sub-section (3) of Section 10 of the Act and such
application is pending before the Tribunal (earlier the Special
F Deputy Commissioner) the land in respect of the inam does
not vest in the State and such· land cannot be disposed of in
accordance with the rules relating to grant of land. He submitted
that the High Court was thus right in coming to the conclusion
in the impugned order that the State Government had no power
G to pass the order dated 15.6.1979 according sanction for grant
of land in favour of the Sangha, because on 15.6.1979 the
application of the lnamdars to be registered as occupants in
respect of the land was still pending before the Special Deputy
Corpmissioner. Mr. Dave submitted that a reading of the order
H dated 15.6.1979 of the State Government sanctioning the grant
S. NAGARAJ {DEAD) BY LRS. v. B. R. VASUDEVA 609
MURTHY & ORS. ETC. ETC. [AK. PATNAIK, J.]
of land in favour of the Sangha was "subject to" the pending A
proceedings of the lnamdars for grant of occupancy rights and
therefore once the Tribunal passed the order dated 23.6.1982
in favour of the lnamdars confirming their occupancy rights, the
lnamdars were entitled to become occupants of the land and
the order dated 15.6.1979 of the State Government was liable B
to be cancelled. He submitted that since the Sangha did not
challenge the order of the Tribunal, the Sangha or its members
cannot, at this stage, question the right, title and interest of the
lnamdars to the land.
13. Mr. Dave next submitted that the High Court was also C
right in coming to the conclusion in the impugned order that the
grant of land by the State Government by the order dated
15.6.1979 in favour of the Sangha for allotment of house sites
to its members was void ab initio as the land could only be
allotted for agricultural purposes and not for house sites under D
the Karnataka Land Reforms Act {for short 'the Land Reforms
Act'. He also submitted that Section 79-A of the Land Reforms
Act prohibits acquisition of any land by any person or a family
or a joint family which has an assured annual income of not less
than Rs.2 lakhs from sources other than agricultural lands. He E
further submitted that Section 79-B of the Land Reforms Act
.p(ohibits any person other than the person cultivating land
personally from holding any land and Section 80 of the Act
further prohibits transfer of land to non-agriculturists. He
submitted that Section 81 of the Land Reforms Act, however, F
provides that nothing in Section 79-A or Section 79-B or
Section 80 of the Act shall apply to the transactions or to the
institutions and companies mentioned therein, but this Section
does not exempt the grant of the land made in favour of the
Sangha. He argued that the order dated 15.6.1979 of the State G
Government making the grant or land in favour of the Sangha
was, therefore, hit by the statutory provisions of Sections 79-
A, 79-B and 80 of the Land Reforms Act.
14. Mr. Dave further submitted that the finding of the High H
610 SUPREME COURT REPORTS [2010) 2 S.C.R.
A Court in the impugned order that the agreement executed by
the lnamdars in favour of the Sangha was not legal and void
and did not affect the rights of the lnamdars in respect of the
immovable property was also correct. He argued that under
Section 23 of the Contract Act, an agreement which is opposed
B to public policy is void and the agreement dated 1.11. 1980 is
contrary to the public policy laid down in Sections 9 and 10 of
the Act conferring a statutory right of occupancy on the lnamdar
in respect of the inam land. He cited the decision of this Court
in Mur/idhar Aggarwal and Another v. State of Uttar Pradesh
c and Others [(1974) 2 SCC 472] in which Section 3 of the U.P.
(Temporary) Control of Rent and Eviction Act, 1947 was held
to be based on public policy. He also relied on the decision of
this Court in Murlidhar Dayandeo Kesekar v. Vishwanath
Pandu Barde and Another [(1995) Supp. (2) SCC 549) in
0 . . which an agreement entered into with a triballor purchase of
5 acres of land without prior permission of the competent
authority was held to be contrary to public policy laid down in
Article 46 of the Constitution of India and as void under Section
23 of the Contract Act. He also referred to the decision of this
E Court in Papaiah v. State of Kamataka and Others [(1996) 10
sec 533] for the proposition that there can be no estoppel
against a statute. He submitted that in Jayamma v. Maria Bai
Dead by proposed L.Rs. and Another[(2004) 7 SCC 459], this
Court has held that when an assignment or transfer is made in
contravention of statutory provisions, the consequence whereof
F would be that the same is invalid and thus opposed to public
policy and the same shall attract the provisions of Section 23
of the Indian Contract Act.
15. Mr. Dave submitted that Section 17 of the Registration
G Act provides that any non-testamentary instruments which
purport or operate to create, declare, assign, limit or extinguish
any right, title or interest of the value of one hundred rupees and
upwards to or in immovable property has to be registered
compulsorily. He submitted that since the agreement dated
H 1.11.1980 executed by the Inamdars in favour of the Sang ha
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 611
MURTHY & ORS. ETC. ETC. [A.K. PATNAIK, J.]
is not registered, it cannot affect the right, title and interest of A
the lnamdars in respect of the land. In support of this
proposition, he relied on Bhoop Singh v. Ram Singh Major
and Others [(1995) 5 SCC 709] and Appineni Vidyasagar v.
State of A.P. and Others [(2004) 11 SCC 186].
B
16. Mr. Dave also supported the conclusion of the High
Court in the impugned order that the orders passed by the
Karnataka High Court in earlier proceedings in W.P. No.11412/
1990 and W.A. No.7574/1996 do not operate as res judicata.
He submitted that the question of res judicata does not arise C
because the order dated 15.6.1979 of the State Government
sanctioning the land in favour of the Sangha was void ab initio.
He cited the decisions of this Court in Mathura Prasad Bajoo
Jaiswal and Others. v. Dossibai N.B. Jeejeebhoy [(1970) 1
• SCC 613] and Smt. Bismillah v. Janeshwar Prasad and
Others [(1990) 1 SCC 207] in which it has been held that an D
earlier decision will not be res judicata when the earlier decision
declares valid a transaction which is prohibited by law. He
submitted that in any case the order dated 15.9.1998 passed
by the Division Bench of the Karnataka High Court in W.A.
No.7574/1996 was challenged before this Court by the legal E
representatives of the lnamdars in SLP(C) No.2833/1999 and
by an order dated 9.4.1999 passed in the SLP, this Court
permitted the legal representatives of the lnamdars to apply to
the State Government for modification of the order dated
15.6.1979 of the State Government sanctioning the grant of land F
in favour of the Sangha. He argued that since there was a
merger of the order passed by the Division Bench of the
Karnataka High Court in W.A. No.7574/1996 in the order dated
9.4.1999 passed by this Court in SLP(C) 2833/1999, the order
passed by the Division Bench of the Karnataka High Court G
cannot operate as res judicata. In support of this submission
he relied on Union of India v. All India Services Pensioners'
Association and Another [(1988) 2 SCC 580] and
Kunhayammed and Others v. State of Kera/a and Another
[(2000) s sec
359J. H
612 SUPREME COURT REPORTS [2010] 2 S.C.R.
A 17. Mr. Dave submitted that in any case this Court has
held in State of Haryana and Others v. M.P. Moh/a ((2007) 1
sec 457) that if a subsequent cause of action arises in the
matter of implementation of a judgment and order, the fresh
cause of action can be ~ubjected to a legal challenge. He also
B cited the decision of this Court in Dharam Dutt and Others v.
Union of India and Others [(2004) 1 sec 712) in which it was
held that a challenge to Ordinance withdrawn does not operate
as res judicata to challenge the Act. He also relied on Ashok
Leyland Ltd. v. State of T.N. and Another ((2004) 3 SCC 1)
c for the proposition that if a jurisdictional question is wrongly
decided, the principle of res judicata would not be attracted.
18. Mr. Dave vehemently contended that the High Court
having recorded its findings and conclusions in favour of the
representatives of the lnamdars on all points should not have
D denied the reliefs sought by the legal representatives of the
lnamdars and should not have quashed the directions in the
order dated 22.12.2003 of the Minister, Revenue, Government
of Karnataka, for resumption and restoration of 182 sites in
favour of the lnamdars. He submitted that in this appeal this
E Court should restore the order dated 22.12.2003 of the
Minister, Revenue, Government of Karnataka, for resumption
and restoration of 182 sites in favour of the lnamdars and for
examination to allot 20 acres of land in favour of the lnamdars
and should set aside the order passed by the Division Bench
F of the Karnataka High Court.
19. Mr. P.P. Rao, learned senior counsel appearing for the
Teachers' Colony Residents AssoCiation (the appellants in Civil
Appeal Nos.3049/2007), on the other hand, submitted that
G lnamdars were only entitled to the occupancy price of
Rs.10,000/- per acre amounting to Rs.3,40, 750/- for the entire
land measuring 34 acres 3 guntas which was given as grant
by the State Government to the Sangha and they have in fact
withdrawn the amount of Rs. 3,40,750/-. He submitted that in
addition to the price of Rs.10,000/- per acre, the lnamdars
H
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 613
MURTHY & ORS. ETC. ETC. [A.K. PATNAIK, J.]
agreed by the agreement dated 1.11.1980 to take from the A
Sangha a further amount of Rs.2,000/- per acre and on receipt
of Rs.2,000/- per acre withdrew O.S. No.687/1979 from the
Court of Principal Munsif, Bangalore, in which the grant of land
made by the State Government in favour of the Sangha by order
dated 15.6.1979 had been challenged. He submitted that after B
the suit of the lnamdars were dismissed as withdrawn, the right
to challenge the grant made in favour of the Sangha by the
State Government by order dated 15.6.1979 did not survive
and, therefore, the legal representatives of the lnamdars had
no locus standi to approach the Court again to challenge the c
grant of land made by the State Government in favour of the
Sangha. He submitted that after the lnamdars have opted to
receive the price or compensation in lieu of the land, their legal
representatives cannot claim occupancy rights in respect of the
land now granted to the Sangha by the order dated 15.6.1979 D
of the State Government.
20. Mr. Rao next submitted that by the order dated
9.4.1999 passed by this Court in SLP (C) No.2833/1999 no
special leave to appeal against the order dated 15.9.1998 of
the Division Bench in W.A. No.7574/1996 was granted and, E
therefore, the order of the Division Bench of the Karnataka High
Court, which was challenged by the SLP, was not disturbed by
the ex-parte order dated 9.4.1999 of this Court. He submitted
that this is also clear from the order dated 28.8.2000 passed
in I.A. No.1 in which this Court has observed that the Court did F
not find anything adverse to the respondent-society in the order
dated 9.4.1999 and with this observation dismissed I.A. No.1
which was filed by the respondent-society to recall the order
dated 9.4.1999. He cited Taherakhatoon (D) by L.Rs. v.
Salambin Mohammad [(1999) 2 SCC 635] in which this Court G
has taken a view that even where SLP is admitted and special
leave is granted, the appellant has to show special
circumstances to justify this Court's interference. He relied on
Kunhayammed and Others v. State of Kera/a and Another
[(2000) 6 SCC 359] in which this Court has further held that an H
614 SUPREME COURT REPORTS [2010] 2 S.C.R.
A order refusing special leave to appeal does not stand
substituted in place of the order under challenge and, therefore,
an order refusing special leave to appeal does not attract the
doctrine of merger. He vehemently argued that the judgment of
the Division Bench of the Karnataka High Court in W.A.
B No.7574/1996 did not get merged in the order dated 9.4.1999
of this Court in the SLP in which the judgment of the Division
Bench of Karnataka High Court was under challenge. He agued
that as no special leave was granted by this Court against the
said order of the Division Bench of the Karnataka High Court
c in W.A. No.7574/1996, ·the contention of Mr. Dave that the
judgment of the Division Bench of the Karnataka High Court in
W.A. No.7574/1996 got merged with the order dated 9.4.1999,
is misconceived.
21. Mr. Rao next submitted that the judgment dated
D 15.9.1998 of the Division Bench of the Karnataka High Court
in W.A. No.7574/1996 had, therefore, become final and binding
on the parties and the rights which had accrued in favour of the
Sangha and its members to occupy the land granted to its
members by the Sangha under the judgment dated 15.9.1998
E could not be taken away by an executive order and yet the
Minister, Revenue, Government of Karnataka, passed orders
on 22.12.2003 canceling the grant of land made in favour of
the Sangha and issuing directions for resumption and
restoration of land to the extent of 182 sites in favour of the legal
F representatives of the lnamdars. Mr. Rao relied on the decision
of this Court in Madan Mohan Pathak and Another v. Union
of India {!Jnd Others ((1978) 2 SCC 50] in which the Life
Insurance Corporation claimed that it was absolved of its
obligation to carry out the writ of mandamus issued by the Court
G because of the provisions of an amending Act but this Court
did not accept this plea of the Life Insurance Corporation and
held that there was nothing in the amending Act which set at
naught the effect of the judgment of the Calcutta High Court or
the binding character of the writ of mandamus issued against
H the Life Insurance Corporation. He also cited Virender Singh
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 615
MURTHY & ORS. ETC. ETC. [A.K. PATNAIK, J.]
Hooda and Others v. State of Haryana and Another [(2004) A
12 SCC 588} in which this Court has held that the legislature
can change the basis on which a decision is given by the Court
but without changing the basis of a decision given by the Court
cannot set aside the individual decision of the Court inter
parties because this will amount to exercise of the judicial B
power by the legislature which is against the concept of
separation of power. Learned counsel appearing for the owners
of the house sites in the Civil Appeals and the Special Leave
Petitions adopted all the arguments of Mr. Rao.
22. Mr. S.S. Javali, learned senior counsel appearing for C
the BOA (the appellant in Civil Appeal No.3037 of 2007)
submitted that after the order dated 15.6.1979 of the State
Government sanctioning the grant of land in favour of the
Sangha, a private layout plan was submitted by the Sangha in
respect of the land and the BOA sanctioned the private layout D
plan subject to conditions inter alia that the roads, civic amenity
sites, parks and all connections such as underground drainage,
water supply lines, shall vest with the BOA free of cost. He
referred to sub-section (5) of Section 32 of the Bangalore
Development Authority Act, 1976 to show that the BOA may E
call upon an applicant for layout plan to agree to transfer the
ownership of the roads, drains water supply lines and open
space laid out to the BOA permanently without claiming any
compensation therefor. He submitted that the road, civic
amenity sites, parks in the Survey Nos.45 and 47 in F
Jakkasandra village had, therefore, become the property of the
BOA and yet by the order dated 22.12.2003 passed by the
Minister, Revenue, Government of Karnataka, the vacant civic
amenity sites to an extent of 2 acres 34 guntas of the layout
plan were directed to be handed over to the lnamdars free of G
cost and the land utilized by the BOA for formation of the Ring
Road as per the sanctioned layout plan was directed to be
acquired by the BOA and compensation paid to the lnamdars
as if such land was the private property of the lnamdars. He
submitted that the BOA, therefore, filed Writ Petition No.15614/ H
616 SUPREME COURT REPORTS [2010] 2 S.C.R.
A 2004 before the Karnataka High Court challenging the order
dated 22.12.2003 of the Minister, Revenue, Government of
Karnataka, directing handing over of the civic amenity sites to
the lnamdars free of cost and directing acquisition of the land
· forming the Ring Road and payment of compensation to the
B lnamdars for such acquisition, but these directions in the order
dated 22.12.2003 of the Minister, Revenue, Government of
Karnataka, have not been set aside by the Division Bench of
the Karnataka High Court in the impugned judgment.
C 23. Mr. Javali referred to earlier judgment dated 15.9.1998
of the Division Bench of the Karnataka High Court in W.A.
No.7574/1996 to show that the lnamdars had filed petitions
before the BOA saying that they had entered into an agreement
with the Sangha and waived their -right to challenge the grant
of land by the State Government in favour of the Sangha and
D had also agreed not to take or prosecute legal proceedings in
respect of the disputed land and, therefore, had acquiesced to
the grant in favour of the Sangha. He also referred to the
aforesaid order of the Division Bench of the Karnataka High
Court in Writ Appeal No.7574/1996 to show that the lnamdars
E had agreed to carry out some work in the land by the Sangha
to co-operate with the Sangha for removal of sheds which they
claimed to be belonging to them. He submitted that considering
all these aspects, the BOA went ahead and sanctioned the
private layout plan of the Sangha.
F
24. Mr. Javali submitted that sub-section (2) of Section 38-
A of the Bangalore Development Authority Act, 1976 prohibits
the BOA to sell or dispose of any area reserved for public parks
and playgrounds and civic amenities for any other purpose and
G Tt further provides that any disposition so made by the BOA shall
be null and void. He submitted that in Bangalore Medical Trust
v. B.S. Muddappa and Others [(1991) 4 SCC 54], this Court
interpreting Section 38-A of the Act held that the legislative
intent of Section 38-A of the aforesaid Act was to prevent the
H diversion of the user of area reserved for public parks or civic
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 617
MURTHY & ORS. ETC. ETC. [A.K. PATNAIK, J.]
amenities or for any other purpose. He submitted that under A
Section 65 of the Bangalore Deve_lopment Authority Act, 197-6? ,
the Government has the power to give such directions to the
authority as in its opinion are necessary or expedient for
carrying out the purposes of the Act but in exercise of such
power the State Government cannot direct the BOA to hand B
over the properties of the BOA free of cost to the lnamdars or
to acquire the roads which were already owned by the BOA
and pay compensation to the lnamdars. He relied. on
Bangalore Development 'Authority and Others v. R.
Hanumaiah and Others [(2005) 12 SCC 508] in which this c
Court has held that the power of the Government under Section
65 of th1:1 Bangalore Development Authority Act, 1976 is not
unrestricted and the directions which can be issued are those
which are to carry out the objective of the Act and not those
which are i.;ontrary to the Act and further held that the directions 0
issued by the Chief Minister to release the lands were
destructive of the purposes of the Act and the purposes for
which the BOA was created. He submitted that the directions
in the order dated 22.12.2003 of the Minister, Revenue,
Government of Karnataka, to handover the vacant civil E
amenities sites to the lnamdars and to acquire the land forming
the Ring Road, therefore are contrary and destructive of the
objects of the Act and cannot be sustained.
25. Mr. Sanjay Hegde, learned counsel appearing for
State of Karnataka, supported the order dated 22.12.2003 F
passed by the Minister, Revenue, Government of Karnataka,
by referring to the reasons indicated in the order itself. He
further submitted that this order was passed by the Minister,
Revenue, Government of Karnataka, because of the pressure
of contempt put by the legal representatives of the lnamdars G
on the Government saying that the order dated 9.4.1999 of this-
Court in SLP (C) No.283311999 was not being complied with
by the State Government. He submitted that Minister, Revenue,
Government of Karnataka, has taken an equitable view of the
entire matter and has not disturbed those members of the H
618 SUPREME COURT REPORTS [2010] 2 S.C.R.
A Teac;;hers' Association or Sangha who have already utilized the
hou·se ,sites for construction of the houses and has directed
resumptlbn and restoration of only the 182 vacant sites in the
land in favour of the lnamdars and cancelled the earlier grant
of land in respect of these 182 sites in favour of the Sangha in
B exercise of powers under Rule 25 of the Karnataka Land Grants
, Rules, 1969.
Our conclusions with reasons
26. The order dated 15.6.1979 of the State Government
C sanctioning the grant of 34 acres 3 guntas of land in favour of
the Sangha was earlier challenged before the Karnataka High
Court by the legal representatives of the lnamdars first before
the learned Single Judge in W.P. No. 11412/1990 and on
dismissal of the writ petition by learned Single Judge, before
D the Division Bench in W.A. No.7574/1996 and the Division
Bench dismissed the writ appeal of the legal representatives
of the lnamdars by its judgment dated 15.9.1998. We also find
that some of the contentions raised before us were also raised
- before the Division Bench of the Karnataka High Court in Writ
E Appeal No. 7574/1996 and the Division Bench of the Karnataka.
High Court has recorded its findings on the contentions in the
judgment dated 15.9.1998. Hence, the main question that we
will have to decide is whether findings recorded by the Division
Bench in the judgment dated 15.9.1998 in Writ Appeal
F No.7574/1996 had become final and binding on the parties,
namely, the legal representatives of the lnamdars, the State of
Karnatka and the Sangha or Teachers' Colony Residents
Association.
27. On a reading of the judgment dated 15.9.1998 of the
G Division Bench of the Karnataka High Court in Writ Appeal
No. 7574/1996, it appears that contentions were raised on
behalf of the legal representatives of the lnamdars that so long
as the claim petition for registration of the occupancy rights
under Sections 9 and 10 of the Inam Abolition Act was pending
H
,.
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 619
MURTHY & ORS. ETC. ETC. [A.K. PATNAIK, J.]
decision before the Special Deputy Commissioner, the State A
Government had no power to sanction grant of the land
measuring 34 acres 3 guntas in Survey_ Nos. 45 and 47 of
Jakkasandra village in favour of the Sangha and that in any
case the order dated 15.6.1979 of the State Government
sanctioning the grant of land in favour of the Sangha was 8
subject to claim of the lnamdars to occupancy rights in resp-'ect
of the inam land. In the judgment dated 15.9.1998, the Division
Bench of the Karnataka High Court held:
"In the order it is specifically mentioned that the land in
question is required for public purpose and if there are C
claims, they are eligible for occupancy certificate by price
payable for the land. Therefore, it is manifestly clear that
in case the rights of the claimants/inamdars are upheld,
they are entitled for price payable for the land. Though the
grant is subject to the order of the grant in favour of D
inamdars, it is made clear that the grant order in favour of
Respondent No.3 that the lnamdars are entitled for the
price of the land. Therefore, on this count, the order cannot
be set back."
E
Thus, the Division Bench of the Karnataka High Court in
the judgment dated 15.9.1998 in Writ Appeal No. 7574/1996
negatived the contention that the order dated 15.6.1979 of the
State Government sanctioning the grant of land in favour of the
Sangha was bad because the claim of the lnamdars for F
registration under Sections 9 and 10 of the lnam Abolition Act
was pending before the Special Deputy Commissioner and
instead held that in case the claims of the lnamdars to
occupancy in respect of the inam land were upheld, they would
be entitled for the price payable for the land.
G
28. On a reading of the judgment dated 15.9.1998 of the
Division Bench of the Karnataka High Court in Writ Appeal
No.7574/1996, we further find that it was contended on behalf
of the Sangha that the lnamdars have waived their occupancy
rights in respect of the inam land by entering into the agreement H
620 SUPREME COURT REPORTS [2010) 2 S.C.R.
. ·:.. ,
A dated 1.11.1980 and by receiving the amounts towards the
land price apart from the compensation of Rs.3,40, 750/- and
the Division Bench of the Karnataka High Court accepted the ;
contentions raised on behalf of the Sangha and recorded the
following findings:
B 'The above two paras in jhe Agreement make it clear that
the lnamdars have agreed not to claim any right, not to
prosecute with any legfl proceedings and the agreement
further shows that they agreed that it is open to Respondent
No.3 - Society Members to enjoy the lands as they like and
c it is also stated that the existing sheds can be removed
by Respondent No.3 - Society itself, for which they will co-
operate and they also agreed to withdraw the suit filed in
O.S. No.687/1979 pending on the file of the II Munsiff's
Court, Bangalore. In pursuance of the agreement, they
D have filed a petition to withdraw the suit and the suit came
to be withdrawn as settled out of court by an order dated
3.11.1980. Thus, the lnamdars have acted upon the
agreement by withdrawing the suit voluntarily. It is also not
disputed that the lnamdars have received an amount of
E Rs.2,000/- per acre in one installment and another sum of
Rs.49,000/- and thus, the conduct of the lnamdars shows
that they have agreed not to prosecute the legal
proceedings and they relinquish their right in the land and
then they permitted respondent No.3 - Society to enjoy the
F land as they like and acted on the said agreement, they
have withdrawn the suit and received the amount. Thus,
the lnamdars have waived their right in the land."
29. It is thus clear that the Division Bench of the Karnataka
High Court decided three issues in its judgment dated
G 15.9.1998 in Writ Appeal No.7574/1996: first, that the State
Government had the power to sanction grant of the land in
Survey Nos.45 and 47 in Jakkasandra village in favour of the
Sangha by the order dated 15.6.1979 notwithstan,ding the
pendency of the claim of the lnamdars to be registered as
H
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 621
MURTHY & ORS. ETC. ETC. [AK. PATNAIK, J.]
occupants of the land before the Special Deputy Commissioner, A
lnam Abolition, and therefore the order dated 15.6.1979 of the
State Government of Karnatka sanctioning the land in favour of
the Sangha cannot held to be bad; second, in the event the claim
of the lnamdars to be registered as occupants of the land was
subsequently allowed by the Special Deputy Commissioner or B
by the Tribunal, the lnamdars were not entitled to restoration of
the land from the Sanngha but were entitled for the price of the
land; third, the lnamdars had waived their right of occupation of
the land by the agreement dated 1.11.1980 and by withdrawing
the suit O.S. No.687/1979 in which they challenged the order c
dated 15.6.1979 of the State Government of Karnataka,
sanctioning the grant of land in favour of the Sangha and by
receiving Rs.2,000/- per acre and Rs.49,000/- in addition to the
price of Rs.10,000/- per acre totaling to Rs.3,40, 750/-.
30. The judgment dated 15.9.1998 of the Division Bench D
of the Karnataka High Court in Writ Appeal No. 7574/1996 was
sought to be challe~ged by the legal representatives of the
lnamdars before this Court in SLP (C) No.2833/1999, but this
Court-did not grant special leave to the legal representatives
of the lnamdars to appeal and instead disposed of the SLP with E
the following order:
"It appears from the order of grant made in favour of the
respondent-society that it was made condition upon the
outcome of the dispute which was pending then before the F
Special Deputy Commissioner for Abolition of lnam. We
are now told that the said proceedings have resulted in
favour of the petitioners. If that is so, it would be open to
the petitioners to approach the State Government for
modification of the order granting land to the respondent- G
society. If such application is made, the State Government
shall dispose of the same within the period of three months
from the receipt of the application. The Special Lave
Petition is disposed of accordingly."
H
0
622 SUPREME COURT REPORTS [2010] 2 S.C.R.
A Thereafter, an I.A. was filed by the Teachers' Colony
Residents Association which was the fifth respondent in the
SLP and this Court dismissed the I.A. by order dated
28.8.2000 with the following order:
"We do not find anything adverse to the fifth respondent
B
society in the order of this Court dated 9.4.1999 so as to
recall the same. I.A. No.1 is therefore dismissed."
31. On interpreting the two orders dated 9.4.1999 and
28.8.2000 of this Court, we have no doubt that the decisions
C on the three issues in the judgment dated 15.9.1998 of the
Division Bench of the Karnataka High Court in Writ Appeal
No.7574/1996 were not disturbed by this Court in the SLP and,
therefore, the decisions on the three issues of the Division
Bench of the Karnataka High Court in Writ Appeal No. 75741
D 1996 became final and binding on the parties, namely, the legal
representatives of the lnamdars, the State Government and the
Sangha and its members.
32. In Kunhayammed and Others v. State of Kera/a and
E Another (supra),"this Court considered the question whether
there was any merger of the order under challenge in the event
this Court refuses special leave to appeal against the order and
R.C. Lahoti, J., as he then was, speaking for a Bench of three
Judges summed up the conclusions of the Court in para 44 of
F the judgment on this question thus:
"(iv) An order refusing special leave to appeal may be a
non-speaking order or a speaking one. In either case it
does not attract the doctrine of merger. An order refusing
special leave to appeal does not stand substituted in place
G of the order under challenge. All that it means is that the
Court was not inclined to exercise its, discretion so as to
allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order,
i.e., gives reasons for refusing the grant of leave, then the
H
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 623
MURTHY & ORS. ETC. ETC. [A.K. PATNAIK, J.]
order has two implications. Firstly, the statement of law A
contained in the order is a declaration of law by the
Supreme Court within the meaning of Article 141 of the
Constitution. Secondly, other than the declaration of law,
whatever is stated in the order are the findings recorded
by the Supreme Court which would bind the parties thereto B
and also the court, tribunal or authority in any proceedings
subsequent thereto by way of judicial discipline, the
Supreme Court being the Apex Court of the country. But,
this does not amount to saying that the order of the court,
tribunal or authority below has stood merged in the order c
of the Supreme court rejecting the special leave petition
or that the order of the Supreme Court is the only order
binding as res judicata in subsequent proceedings
between the parties."
Hence, an order refusing special leave to appeal does not D
stand substituted in place of order under challenge and all that
it means is that this Court was not inclined to exercise its
discretion so as to allow the appeal being filed. The aforesaid
law laid down by this Court however makes it clear that if the
order refusing leave to appeal makes a statement of law, such E
statement of law ls declaration of law by this Court within the
meaning of Article 141 of the Constitution of India and if the
order records some finding other than the declaration of law
such finding would bind the parties thereto and also the Court,
Tribunal or Authority in any proceeding subsequent thereto by F
way of judicial discipline, the Supreme Court being the Apex
Court of the country. ·
33. Applying the law laid down by this Court in
Kunhayammed and Others v. State of Kera/a and Another G
(supra) to the facts of the present case, the judgment dated
16.9.1998 of the Division Bench of the Karnataka High Court
In Writ Appeal No.7574/1996, which was challenged in SLP
(C) No.2833/1999 before this Court, does not stand substituted
by the order dated 9.4.1999 of this Court in the SLP because
H
624 SUPREME COURT REPORTS [2010] 2 S.C.R.
A this Court has not granted special leave to appeal against such
judgment dated 15.9.1998 in Writ Appeal No. 7574/1996 of the
Division Bench of the Karnataka High Court. Further, the order
dated 9.4.1999 of this Court in SL!g (C) No.2833/1999 does
not contain any statement of law which would amount to
B declaration of law by the Supreme Court within the meaning of
Article 141 of the Constitution of India. The order dated
9.4.1999 of this Court in SLP (C) No.2833/1999, however, has
taken note of the condition in the order of grant made in favour
of the Sangha that the grant was subject to the outcome of the
c dispute which was pending before the Special Deputy
Commissioner, lnam Abolition, and has further taken note of
the fact that the proceedings have resulted in favour of the legal
representatives of the lnamdars and thereafter left it open to
legal representatives of the lnamdars to approach the State
D Government for modification of the order granting land to the
Sangha and directed the State Government to dispose of such
application made on behalf of the legal representatives of the
lnamdars within a period of three months from the receipt of
the application. In the aforesaid order dated 9.4.1999 in SLP
(C) No.2833/1999, this Court has therefore also not recorded
E any finding which would be binding on the legal representatives
of the lnamdars, the State Government, the Sangha and its
members, but has only granted liberty to the legal
representatives of the lnamdars to approach the State
Government for modification of the order granting land in favour
F of the Sangha and has given further direction to the State
Government to dispose of such application within the period
of three months from the receipt of the application of the legal
representatives of the lnamdars. Hence, the contention raised
on behalf of the legal representatives of the lnamdars before
G us that the judgment dated 15.9.1998 of the Division Bench of
the Karnataka High Court in Writ Appeal No.7574/1996 got
merged in the order dated 9..4.1999 in SLP (C) No.2833/1999
and the findings on the three issues in the order dated
15.9.1998 in Writ Appeal No.7574/1996 did not operate as res
H
S. NAGARAJ (DEAD) BY LRS. v. B. R.. VASUDEVA 625
MURTHY & ORS. ETC. ETC. [AK. PATNAIK, J.]
judicata and were not binding on the legal representatives of A
the lnamdars, the State Government, the Teachers' Colony
Association or the Sangha and its members, is misconceived.
34. In the common judgment impugned in the present
appeals, however, the High Court has taken a view that the B
orders passed by the Karnataka High Court in the earlier
proceedings in W. P. ~o.11412/1990 and W .A. No. 7574/1996
do not operate as res'fudicata as the case of the lnamdars with
reference to the provisions of the lnam Abolition Act and the
l~w laid down by this Court on various aspects were not
considered in the earlier writ petitions and writ appeal and the C
decisions rendered by the Division Bench of the Karnataka
· High Court in W.A. No.7574/1996 were per incurium. The High
Court has failed to appreciate that the principle of per incurium
has relevance to the doctrine of precedents but has no
application to the doctrine of res judicata. To quote Rankin, C.J. D
of the Calcutta High Court in Tarini Charan Bhattacharjee and
Others v. Kedar Nath Haldar [AIR 1928 Calcutta 777 at 781]:
''The question whether decision is correct or erroneous has
no bearing upon the question whether it operates or does E
not operate as res judicata. The doctrine is that in certain
circumstances the Court shall not try a suit or issue but shall
deal with the matter on the footing that it is a matter no
longer open to contest by reason of a previous decision.
In these circumstances it must necessarily be wrong for a F
Court to try the suit or issue, come to its own conclusion
thereon, consider whether the previous decision is right
and give effect to it or not according as it 'conceives the
previous decision to be right or wrong. To say, as a result
of such disorderly procedure, that the previous decision G
was wrong and that it was wrong on a point of law, or on
a pure point of law, and that therefore it may be
disregarded, is an indefensible form of reasoning. For this
purpose, it is not true that a point of law is always open to
a party."
H
626 SUPREME COURT REPORTS [2010] 2 S.C.R.
A 35. We now come to the argument of Mr. Dave that the
order dated 15.6.1979 of the State Government sanctioning
grant of land in favour of Sangha for house sites was void ab
initio because of the prohibitions in Sections 79-A, 79-B and
80 of the Land Reforms Act and that if the Court holds that the
B order dated 15.6.1979 was void ab initio on this ground, the
earlier decision dated 15.9.1998 of the Division Bench of the
Karnataka High Court in Writ Appeal No.7574/1996 would not
operate as re$ judicata. This argument of Mr. Dave is based
on the observations in Mathura Prasad Bajoo Jaiswal and
c Others. v. Dossibai N.B. Jeejeebhoy (supra) that "when the
earlier decision declares valid a transaction which is prohibited
by law" it does not operate as res judicata. We find from a
reading of the order dated 15.9.1998 of the Division Bench of
the Karnataka High Court in Writ Appeal No.7574/1996 that a
D contention was raised on behalf of the legal representatives of
the lnamdars that there was no power to grant land for house
sites under the Karnataka Land Grants Rules, 1969 but the 0
Division Bench of the Karnataka High Court negatived the said
contention and held that under Rule 20 of the Karnatka Land
E Grants Rules, 1969, the State Government had the power to
grant land to the Sangha for house sites. We do not find from
the judgment of the Division Bench of the Karnataka High Court
in Writ Appeal No. 7574/1996 that any contention was raised
on behalf of the legal representatives of the lnamdars that grant
of land in Survey Nos.45 and 47 of Jakkasandra village could
F not be sanctioned in favour of the Sangha for house sites
because of the restrictions in Sections 79-A, 79-B and 80 of
the Land Reforms Act. If this ground of attack had not been
taken by the legal representatives of the lnamdars while
challenging the order dated 15.6.1979 of the State Government
G sanctioning the grant of land in favour of the Sangha, this
contention could not be raised by them before the High Court
in a subsequent proceeding because of the principle of
constructive res judicata underlying Explanation IV of Section
11 of ttie Code of Civil Procedure which has been applied to
H writ petitions. In Direct Recruit Class II Engineering Officers'
S. NAGARAJ (DEAD} BY LRS. v. B. R. VASUDEVA 627
MURTHY & ORS. ETC. ETC. [A.K. PATNAIK, J.]
Association v. State of Maharashtra and Others ((1990) 2 SCC A
715] a Constitution Bench of this Court observed at Page 741:
"The decision in Forward Construction Co. v. Prabhat
Manda/ (Regd.), Andheri [(1986) 1 SCC 100] further
clarified the position by holding that an adjudication is
8
conclusive and final not only as to the actual matter
determined but as to every other matter which the parties
might and ought to have litigated and have had decided
as incidental to or essentially connected with subject matter
of the litigation and every matter coming into the legitimate C
purview of the original action both in respect of the matters
of claim and defence. Thus, the principle of constructive
res judicata underlying Explanation IV of Section 11 of the
Code of Civil Procedure was applied to writ case."
36. Nonetheless, as the Division Bench of the Karnataka D
High Court had not decided this question in the judgment dated
15.9.199~ in Writ Appeal No.7574/1996 and the High Court
has decided this question in the impugned common judgment
dated 22.12.2006, we think it necessary to examine this
question in these Civil Appeals against the impugned common E
judgment dated 22.12.2006. We find that Chapter V of the Land
Reforms Act is titled "Restrictions on holding on transfer of
agricultural lands" and the language of Sections 79-A, 79-8 and
80 shows that these provisions apply to only "agricultural lands".
We also find from the provisions of sub- sections (2) and (7) of F
Section 95 of the Karnataka Land Revenue Act, 1964 (for short
'the Land Revenue Act') that the land held for agricultural
purpose can be permitted to be diverted for other purposes on
payment of fine. In the order dated 15.6.1979 of the State
Government sanctioning the grant of the land in favour of the G
Sangha, it is clearly stipulated that the Sangha shall pay such
conversion fine to be levied as per the rules made under the
Revenue Act. The Karnataka Land Grants Rules, 1969 made
under Section 17~ of the Land Revenue Act and in particu\ar
Rure 18 has also made elaborate provisions for grant of H
628 SUPREME COURT REPORTS (2010] 2 S.C.R.
A building sites on payment of price. Justice G.P. Singh in
Principles of Statutory Interpretation, 12th Edition at page 298
says:
".............. a statute must be read as a whole as words are
B to be understood in their context. Extension of this rule of
context permits reference to other statutes in pari materia,
i.e. statutes dealing with the same subject-matter or
forming part of the same.system."
Sections 79-A, 79-8 and 80 of the Land Reforms Act,
C therefore, have to be read together with Section 95 of the Land
Revenue Act as all these provisions deal the same subject
matter, namely, agricultural lands. We therefore hold that the law
permitted the grant of the agricultural land in favour of the
Sangha for house sites on payment of conversion fine and the
D grant made by the State Government in favour of the Sangha
by the order dated 15.6.1979 was not void ab initio on this
count.
37. Mr. Dave, however, is right in his submission that res
E judicata will not operate as a bar for entertaining a fresh cause
of action and in the present case the order dated 22.12.2003
passed by the Minister, Revenue, Government of Kamataka,
gave rise to a fresh cause of action. But even where a fresh
cause of action arises, issues between the parties which have
been decided cannot be re-opened before the Court for fresh
F adjudication between the,;osame parties. In State of Haryana
and others v. M.P. Moh/a ((2007) 1 SCC 457] (supra) cited
by Mr. Dave, this Court has held:
"22. . ....... The dispute between the parties has to be
G decided in accordance with law. What, however, cannot
be denied or disputed is that a dispute between the
parties once adjudicated must reach its logical conclusion.
If a sp·ecific question which was not raised and which had
not been decided by the High Court the same would not
H debar a party to agitate the same at an appropriate stage,
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 629
MURTHY & ORS. ETC. ETC. [A.K. PATNAIK, J.]
subject, of course, to the applicability of principles of res A
judicata or constructive res judicata.
23. It is also trite that if a subsequent cause of action has
arisen in the matter of implementation of a judgment a fresh
writ petition may be filed, as a fresh cause of action has B
arisen."
38. The result of our aforesaid discussion is that the
findings of the Division Bench of the Karnataka High Court in
the judgment dated 15.9.1998 in Writ Appeal No.7574/1996
that the order dated 15.6.1979 of the State Government C
sanctioning the grant of land in favour of the Sangha was valid
and that the lnamdars were only entitled to the price payable
for the land when their claims for registration under Sections 9
and 10 of the lnam Abolition Act were allowed and that the
lnamdars have waived their right of occupation in the land by D
entering into the agreement dated 1.11.1980 and by accepting
the price of Rs.10,000/- per acre deposited by the Sangha and
the additional amount paid by the Sangha were binding not only
on the legal representatives of the lnamdars and the Sangha
but also on. the State Government. While deciding the E
application of the legal representatives of the lnamdars for
modification of the order dated 15.6.1979 sanctioning the grant
of land in favour of the Sangha, therefore, the State Governmenf
could not ignore these findings of the Division Bench of the
Karnataka High Court in the judgment dated 15.9.1998 in Writ F
Appeal No. 7574/1996. In the order dated 9.4.1999 of this Court
in SLP(C) No.2833/1999 there was no mandamus to the State
Government to modify or cancel the order dated 15.6.1979 of
the State Government sanctioning the grant of land in favour of
the Sangha, but there was only a direction to the State G
Government to consider the application of the legal
representatives of the lnamdars for modification of the order
dated 15.6.1979. In the instant case, however, the Minister,
Revenue, Government of Karnataka, while considering the
application of the lnamdars, ignored the findings of the Division H
Bench of the Karnataka High Court in the judgment dated
630 SUPREME COURT REPORTS [2010] 2 S.C.R.
A 15.9.1998 in Writ Appeal No.7574/1996 and took the view in
his order dated 22.12.2003 th~t on the competent authority
granting occupancy right to the lnamdars by the order dated
23.6.1982, the lnamdars had tiecome the rightful owners of the
land and action would have to be taken to cancel the grant made
s in favour of the Sangha.
39. In Madan Mohan Pathak and Another v. Union of
India and Others (supra), the Calcutta High Court in Writ
Petition No. 371 of 1976 had delivered ·the judgment dated
C 21.5.1976 issuing a writ of mandamus directing the Life
Insurance Corporation to pay annual cash bonus to Class Ill and
Class IV employees for the year April 1, 1975 to March 31,
1976 along with their salary for the month of April, 1976.
Against the said judgment of learned Single Judge of the
Calcutta High Court, Letters Patent Appeal was filed but by the
D time Letters Patent Appeal came up for hearing, the Life
Insurance Corporation (Modification of Settlement) Act, 1976
came into force and there was no provision in this Act absolving
the Life Insurance Corporation from its obligation to carry out
the writ of mandamus issued by the learned Single Judge of
E the Calcutta High Court. For some reason or the other, the
Letters Patent Appeal against the judgment of the learned
Single Judge was withdrawn by the Life Insurance Corporation.
P.N. Bhagwati, J., as he then was, delivering the judgment on
behalf of himself, Krishna Iyer and Desai, JJ. held that since
F the Life Insurance Corporation did not press the Letters Patent
Appeal, the judgment of the learned Single Judge of the
Calcutta High Court granting the writ of\ mandamus became
final and binding on the parties and in these circumstances, the
Life Insurance Corporation could not claim to be absolved from
, G the obligation imposed by the judgment to carry out the writ of
mandamus by relying on the Life Insurance Corporation
(Modification of Settlement) Act, 1976. Bhagwati, J. held:
"9 ...... lf by reason of retrospective alteration of the factual
or legal situation, the judgment is rendered erroneous, the
H
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 631
MURTHY & ORS. ETC. ETC. [A.K. PATNAIK, J.]
remedy may be by way of appeal or review, but so long A
as the judgment stands, it cannot be disregarded or
ignored and it must be obeyed by the Life Insurance
Corporation."
The judgment dated 15.9.1998 of the Division Bench of 8 .
the Karnataka High Court in Writ Appeal No. 7574/1996 had
held that on the occupancy rights of the lnamdars being
confirmed, the lnamdars would be entitled to only the price and
that the lnamdars had waived their right to occupy the land by
accepting the price and by accepting further additional amounts C
from the Sangha and this judgment of the Division Bench of the
Karnataka High Court had not been disturbed by this Court in
SLP(C) No.2833/1999 and the Minister, Revenue, Government
of Karnataka, could not have taken a view that on the
confirmation of the occupancy rights of the lnamdars, the grant
of the land made in favour of the Sangha was liable to be D
cancelled.
40. Once we hold that the grant made in favour of the
Sangha was not liable to be cancelled, the order of the Minister,
Revenue, Government of Karnataka, directing that the vacant E
182 sites have to be transferred to the lnamdars or
compensation in lieu of the vacant 182 sites were to be paid
by the Sangha to the lnamdars, has to be set aside. Further,
the order of the Minister, Revenue, Government of Karnataka,
that the vacant civic amenity sites to an extent of 2 acres 34 F
guntas must be handed over to the lnamdars free of cost and
the land, which is used by the BOA for formation of the ring road,
has to be acquired by the BOA and the compensation has to
be paid for this land to the lnamdars as if the same was private
property, has also to be set aside. This is because the civic G
amenity sites measuring 2 acres 34 guntas and the ring road
were part of the land measuring 34.03 acres given on grant to
the Sangha. Moreover, at the time of sanctioning the layout plan
of the Sangha, the BOA had stipulated that the roads, civic
amenity sites, parks and all connections such as underground H
632 SUPREME COURT REPORTS [2010] 2 S.C.R.
A drainage, water supply lines, shall vest with the BOA free of
cost. The civic amenity sites and the road, therefore, had
become properties of the BOA and it was the BOA only which
was empowered to deal with such properties subject to Section
38-A and other provisions of the Bangalore Development
B Authority Act, 1976. The order dated 22.12.2003 of the
Minister, Revenue, Government of Karnataka, directing that the
civic amenity sites be handed over to the lnamdars free of cost
and directing that the BOA will acquire the land comprised in
the ring road 'after paying compensation for the same, was thus
c without the authority of law.
41. For the aforesaid reasons, the directions in the order
dated 22.12.2003 of the Minister, Revenue, Government of
Karnataka, for cancellation of grant made in favour of the
Sangha and for transfer of vacant 182 sites from the Sangha
D to the lnamdars or for payment of compensation in lieu thereof
by the Sangha to the lnamdars and the directions in the order
dated 22.12.2003 to the BOA to handover the vacant civic
amenity sites to the lnamdars free of cost and to acquire the
l~nd forming the ring road and pay compensation for such
E acquisition, are set aside. The impugned common judgment
dated 22.12.2006 of the Karnataka High Court is also set aside
and the writ petitions filed before the Karnataka High Court are
allowed. The Civil Appeals are disposed of accordingly. No
costs.
F
K.K.T. Appeals disposed of.
\
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