STATE OF RAJASTHAN & ORS.versusJEEV RAJ & ORS.

                     [2011] 10 S.C.R. 241


              STATE OF RAJASTHAN & ORS.                                A
                                V.
                     JEEV RAJ & ORS.
           (Civil Appeal Nos. 1585-1586 of 2005)

                       AUGUST 11, 2011
                                                                       B
        [P. SATHASIVAM AND H.L. GOKHALE, JJ.]

     RAJASTHAN LAND REVENUE ACT:

      Power to grant patta - 'Bapi Patta' for 603.16 bighas of         c
 land granted - Patta cancelled, but later restored in respect
 of 460. 15 bighas by Public Health and Engineering
 Department (PHED) - Held: It was the Land Revenue
 Department which alone had the power under the Act to grant
land to any person - The allotment of land was without                 0
jurisdiction as the PHED was not empowered to transfer the
land.

      Section 259 -- Jurisdiction of civil court - Patta for 603. 16
bighas of agricultural land cancelled as the said land was the         E
part of catchment area of a canal- By order dated 23.4.1969
PHED restored 460. ·15 big has of land - Order dated
23.4. 1969 cancelled - Revision petition pending before
Revenue Minister -- Suit filed before the Court of Munsif -
Decreed - Subsequently, Revenue Minister cancelled the                 F
order dated 23.4.1969 - Division Bench of High Court in
appeal arising of a writ petition upheld the validity of the order
dated 23. 4. 1969 on the principle of res judicata - Held: In view
of s. 259, jurisdiction of civil court is ousted - Further, the
validity of allotment order dated 23. 4. 1969 was not considered       G
on merits - Therefore, principle of res judicata shall not apply
- It is not in dispute that validity of the order dated 23.4.1969
has not been adjudicated by any appellate I revisional forum
- Therefore, it is desirable that since the State Government

                                241                                    H
     242     SUPREME COURT REPORTS             [2011] 10 S.C.R.


I\ is going to decide the allotment of 143 bighas of land, it may
   as well decide the grant of remaining 460. 15 bighas of land
   allotted by order dated 23.4.1969 - The Court is also of the
   view that in larger public interest no land can be allotted or
   granted if it obstructs the flow of water - Impugned order of
B High Court is set aside and Revenue Department of the State
   Government is directed to decide the matter afresh - Res
  judicata.

          On 12.10.1941 respondent no. 1 and his brother were
     granted 'Bapi Patta' No. 14 for 603.16 bighas of
C    agricultural land. However, as the land in question was
     part of the catchment area of the canal and the stone
     slabs constructed by the respondents were obstructing
     the flow of water, the patta was cancelled on 19.7.1942
     and the respondents were paid Rs. 9,377/- as
D    compensation. In the year 1968, the respondents again
     claimed compensation of Rs. 73,885/- as price of the land
     in question and the stone slabs. The Public Health and
     Engineering Department (PHED), by an order dated
     23.4.1969 restored the land in question (460.15 bighas) to
E    the respondents in lieu of compensation amount.
     However, the restoration of the land was cancelled by the
     State Government on 1.5.1973. The respondents
     challenged the order in a writ petition and the single
     Judge of the High Court quashed the order dated
F    1.5.1973 with liberty to the State Government to reopen
     the order dated 23.4.1969 by giving opportunity of
     hearing to the respondents. The State Government,
     accordingly, issued notice to the respondents to recall
     the order dated 23.4.1969 and for their eviction. The
G    respondents filed objections, and also filed a suit in the
     Court of Munslf. The suit was decreed on 30.6.1982.
     Subsequently, In the revision petition for cancellation of
     plot granted in 1969,'the Revenue Minister by order dated
     15.12.1992, cancelled the order dated 23.4.1969. The
H    respondents challenged the said order in a writ petition
  STATE OF RAJASTHAN & ORS. v. JEEV RAJ &               243
                   ORS.
before the High Court and the single Judge allowed the         A
same. The Division Bench of the High Court dismissed
the appeal of the State Government and allowed the
cross-objections of the respondents as regards 460.15
bighas of land and remitted the matter to the Revenue
Minister as far as the remaining land of 143 bighas was        B
concerned. Aggrieved, the State Government filed the
appeals.

    Allowing the appeals, the Court

     HELD: 1.1 The order passed on 23.04.1969 was by           C
the Public Health Engineering Department whereas it was
the Land Revenue Department which alone had the
power under the Land Revenue Act to grant land to any
person. Thus, the allotment of land was without
jurisdiction as the PHED was not empowered to transfer         D
such a huge chunk of 460.15 bighas of land which is now
an integral part of the city of Jodhpur. [para 9) [250-C-D]
     1.2'1t is not in dispute that the validity of the order
dated 23.04.1969 has not been adjudicated by any               E
appellate/revisional forum. The respondents cannot be
conferred with such huge benefit of 460.15 bighas of
land without any proper adjudication on merits about the
grant of allotment of land. The judgment and decree dated
30.06.1982 does not dwell upon the merits of the validity      F
of the allotment dated 23.04.1969 but instead proceeds
that such allotment on 23.04.1969 would entail the order
of injunction. [para 10] (250-F-G]

    1.3 The single Judge, on 24.11.1976, set aside the
order of cancellation passed on 01.05.1973 and referred G
the matter back to the State Government to consider it on
merits. However, the Division Bench of the High Court
upheld the validity of order dated 23.04.1969 on the
principle of res judicata. The principle of res judicata shall
not apply inasmuch as neither the subject matter of H
     244        SUPREME COURT REPORTS         [2011] 10 S.C.R.


6.validity of allotment dated 23.04.1969 was considered on
  merits by the Munsif Court nor the decree passed by the
  civil court was within its jurisdiction because the Land
  Revenue Act prohibits the jurisdiction of the civil court
  (s.259). This has led to the validity of the order dated
B 23.04.1969 being left unexamined by the State
  Government despite orders of the single Judge of the
  High Court dated 24.11.1976. [para 10] [250-G-H; 251-A-
     C]     .

      Sabitri Dei and Others. vs. Sarat Chandra Rout and
C Others 1996 (1) SCR 1168 =(1996) 3 SCC 301; Sushi/
  Kumar Mehta vs. Gobind Ram Bohra 1989 (2) Suppl.
  SCR 149 = (1990) 1 SCC 193 - relied on.

       1.4 Therefore, it is desirable that since the State
D Government is going to decide the allotment of 143
  bighas of land in pursuance of the impugned judgment,
  let the State Government may as well decide the grant of
  remaining 460.15 bighas of land allotted by order dated
  23.04.1969 in accordance with law. It is also to point out
E that even the Division Bench in its judgment dated
  14.10.2003 has clearly recorded the fact that the land in
  question was part of the catchment area for canal and
  stone slabs were obstructing the flow of water and,
  therefore, "Bapi Patta" No. 14 granting 603.16 bighas of
F land was cancelled and compensation of Rs.9,377/- was
  paid to the appellants for stone slabs which had been
  removed. The Court also accepts the statement of the
  intervenor, that in the larger public interest no land can
  be allotted or granted if it obstructs the flow of water. This
G principle has been reiterated by this Court in several
  orders. [paras 11 and 12] [251-D-G; 252-C-D]

         1.5 The impugned order passed by the High Court
     on 14.10.2003 is, therefore, set aside and the Revenue
     Department of the State of Rajasthan is directed to decide
H
  STATE OF RAJASTHAN & ORS. v. JEEV RAJ &                   245
                   ORS.
the matter afresh in accordance with law after issuing             A
notice to all the parties concerned. [para 13] [252-F-G]
                      Case Law Reference:
    1996 (1) SCR 1168               relied on        para 9
                                                                   B
    1989 (2) Suppl. SCR 149         relied on        para 9
                                       ,
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1585-1586 of 2005.

    From the Judgment & Order dated 14.10.2003 of the High         C
Court of Judicature for Rajasthan at Jodhpur in D.B. Civil
Special Appeal (w) No. 270 of 2002 and in D.B. Cross
Objection No. 1 of 2003.

     Dipankar Gupta, Dr. Manish Singhvi, Milind Kumar, Puneet      D
Jain, L.N. Gahlot, Pratibha Jain, Gp. Capt. Karan Singh Bhati,
Aishwarya Bhati, K. Singh, R. Bhaskar for the appearing
parties.

    The Judgment of the Court was delivered by
                                                                   E
    P. SATHASIVAM, J. 1. These appeals arise from the final
judgment and order dated 14.10.2003 passed by the High
Court of Judicature for Rajasthan at Jodhpur in D.B. Civil
Special Appeal (W) No. 270 of 2002 and D.B. Cross Objection
No. 1 of 2003 wherein the appeal filed by the appellants herein
                                                                   F
was dismissed and the cross objection filed by the respondents
was allowed by the High Court.

    2. Brief facts:

     (a) On 12.10.1941, respondent No.1 and his brother Pusa       G
Ram (since expired)-his legal representatives are on record,
were granted 'Bapi Patta' No. 14 for agricultural land measuring
about 603.16 bighas in Village ·Gevan, Tehsil Jodhpur by the
then Jodhpur Government. As the land in question was part of
the catchment area of the feeder canal of Kaliberi canal and       H
    246      SUPREME COURT REPORTS                [2011) 10 S.C.R.


A stone slabs which were constructed by the respondents were
  obstructing the flow of water, on 19.07 .1942, at the request of
  the Public Health and Engineering Department (in short "the
  PHED"), Jodhpur Government cancelled the patta and removed
  the stone slabs.
B
         (b) On 05.09.1945, the respondents claimed
    compensation of Rs.37,826/- for the loss of their land and stone
    slabs. On 14.06.1949, the State Government made payment
    of Rs.9,377/- as compensation to the respondents.

C      (c) Thereafter, in the year 1968, after a gap of about 20
  years, the respondents again claimed compensation of
  Rs. 73,885/- as price of the aforesaid land and stone slabs from
  the PHED through a notice. The PHED passed an order dated
  23.04.1969 to restore the land in question to the respondents
D in lieu of compensation amount sought for by them. In
  compliance of the said order, the possession of 460.15 Bighas
  of land was restored to them on 27.05.1969 and the same was
  also mutated in their name.

E      (d) On some complaints being made, the restoration of the
  land was cancelled by the State Government on 01.05.1973.
  Challenging the same, the respondents filed writ petition before
  the High Court. The learned single Judge of the High Court, by
  order dated 24.11.1976, quashed the order dated 01.05.1973
  and directed that in case the State wants to reopen the order
F dated 23.04.1969, it can do so by giving proper opportunity of
  hearing to the petitioners therein. After the aforesaid judgment,
  on 25.03.1978, a notice was served on the respondents by the
  PHED stating that it wanted to get the land back from the
  respondents which had been restored to them for its own use
G and order dated 23.04.1969 was sought to be recalled. It was
  also stated that the respondents are liable to be evicted from
  the land in question. The respondents filed objections against
  the notice for recalling the order dated 23.04.1969.

H         (e) Since the notice for recalling the order dated
  STATE OF RAJASTHAN & ORS. v. JEEV RAJ &                   247
           ORS. [P. SATHASIVAM, J.]
23.04.1969 has not been formally dropped, the respondents          A
filed a suit in the Court of Munsif and Judicial Magistrate,
Jodhpur City, Jodhpur. The Munsif Magistrate, by order dated
30.06.1982, decreed the suit restraining the State Government
from making any alterations in the contract that has come into
existence in pursuance of the order dated 23.04.1969. Notices B
were sent to the respondents to appear before the Revenue
Minister as the Revision Petition for cancellation of the plot
granted in the year 1969 was pending before him. The parties
appeared before the Revenue Minister. By order dated.
15.12.1992, the Revenue Minister cancelled the order dated c
23.04.1969.
    (f) Challenging the order of the Revenue Minister, the
respondents filed a petition being W.P. No. 1526 of 1993
before the High Court. The learned single Judge of the High
Court, by order dated 19.03.2002, allowed the same.                D

      (g) Against the said judgment, the State filed D.B. Civil
Special Appeal (W) No. 270 of 2002 and the respondents also
filed cross objections before the High Court. The Division Bench
of the High Court, by impugned judgment dated 14.10.2003,          E
dismissed the appeal filed by the State and allowed the cross
objection filed by the respondents herein.

     (h) Aggrieved by the said order of the Division Bench, the
State Government filed these appeals before this Court by way      F
of special leave petitions.

     3. Heard Dr. Manish Singhvi, learned counsel for the
appellants, Mr. Dipankar Gupta, learned senior counsel for
respondent Nos. 1-6 and Ms. Bhati, learned counsel for the
intervenor.                                                        G

     4. The main issue in these appeals is about the grant of
460.15 bighas of land on 23.04.1969 by the PHED to the
respondents herein. As far as the remaining land of 143 bighas
is concerned, even the Division Bench of the High Court, in the    H
    248      SUPREME COURT REPORTS                [2011] 10 S.C.R.


A   impugned order, remitted the matter to the Revenue Minister.
    Inasmuch as the issue of remaining land of 143 bighas raised
    by the respondents is pending before the Revenue Minister, the
    same is not relevant for our present consideration.

        5. It is the contention of the learned counsel for the State
8
  that the order dated 23.04.1969 about the grant of 603.16
  bighas of land (including 460.15 bighas - the subject matter of
  present proceedings) was ex facie without jurisdiction as it was
  allotted by the PHED on flimsy and fallacious grounds about
  cancellation of patta way back in the year 1942 and the
C compensation sought in the year 1968. It is relevant to note that
  the same was cancelled way back in 1973. Inasmuch as
  opportunity of hearing was not given, the learned single Judge
  of the High Court, by order dated 24.11.1976, remanded back
  to the State Government for deciding the matter afresh after
D giving due opportunity of hearing to the respondents herein.

          6. On behalf of the State, it was pointed out that it has
   legitimate grievance with the allotment dated 23.04.1969 by the
   PHED. The cancellation was made way back in the year 1942
E for allotment made in the year 1941 on the ground of violation
   of lease conditions. The respondents have claimed huge
   compensation for construction said to have been made during
 · subsistence of lease in the year 1949 itself and filed application
   for compensation with regard to the cancellation of patta in the
F year 1968. According to the State, the said application was
   barred by limitation and it was also filed before wrong forum,
   i.e., the PHED, when it should have been filed before the Land
   Revenue Department, which is the appropriate Department.

       7. It is also the grievance of the State that the allotment
G dated 23.04.1969 was cancelled on 01.05.1973, however. the
  High Court set aside the same on 24.11.1976 on the limited
  ground that there was violation of natural justice and directed
  the State Government to decide it afresh after giving opportunity
  of hearing. In those circumstances, the State wants to exercise
H its power under the Land Revenue Act read with the orders
  STATE OF RAJASTHAN & ORS. v. JEEV RAJ &                      249
           ORS. [P. SATHASIVAM, J.]
passed by the learned single Judge of the High Court dated             A
24.11.1976 and the Re~enue Minister dated 15.12.1992.

      8. It was highlighted that the judgment of the trial Court
dated 30.06.1982 is also nullity since there was no discussion
on merits with regard to the validity of allotment dated               8
23.04.1969. Though it was pointed out by the counsel for the
respondents that it was hit by the principle of res judicata as
clarified by the counsel for the appellants, the principle of res
judicata shall only apply if there is discussion or finding on the
same subject matter. A perusal of the decree of injunction that        C
had been passed on 23.04.1969 shows that it did not advert
to the merits of the case at all. It is also not in dispute that the
subject matter, namely, validity of allotment dated 23.04.1969
has not been gone into.

     9. It is also relevant to point out that by virtue of Section     D
259 of the Land Revenue Act, the jurisdiction of the Civil Court
is ousted and if any decree is passed by the Civil Court
contrary to the said provision, the same is a nullity in the eyes
of law. If the decree is passed coram non judice, as in the
present case, then it is a nullity in the eyes of law and it shall     E
not operate as res judicata. This proposition has been
enunciated in Sabitri Dei and Others. vs. Saraf Chandra Rout
and Others, (1996) 3 SCC 301, wherein this Court held that
once a decree is held to be a nullity, the principle of constructive
res judicata will have no application and its invalidity can be        F
set up whenever it is sought to be enforced or is acted upon
as a foundation for a right even at the stage of execution or in
any collateral proceeding. This proposition has been reiterated
in Sushi/ Kumar Mehta vs. Gobind Ram Bohra (1990) 1 SCC
193. It was held in the aforesaid case' that,
                                                                       G
           "Thus it is settled law that normally a decree passed
     by a court of competent jurisdiction, after adjudication on
     merits of the rights of the parties, operates as res judicata
     in a subsequent suit or proceedings and binds the parties
     or the persons claiming right, title or interest from the         H
    250       SUPREME COURT REPORTS                 [2011] 10 S.C.R.


A         parties. Its validity should be assailed only in an appeal or
          revision as the case may be. In subsequent proceedings
          its validity cannot be questioned. A decree passed by a
          court without jurisdiction over the subject-matter or on other
          grounds wh_ich goes to the root of its exercise or
B         jurisdiction, lacks inherent jurisdiction. It is a coram non
          judice. A decree passed by such a court is a nullity and is
          non est. Its invalidity can be set up whenever it is sought
          to be enforced or is acted upon as a foundation for a right,
          even at the stage of execution or in collateral proceedings."

C It is also relevant to note that the order passed on 23.04.1969
  was by the PHED whereas it was the Land Revenue
  Department which alone had the power under the Land
  Revenue Act to grant land to any person. Thus the allotment of
  land was also without jurisdiction as the PHED was not
D empowered to transfer such a huge chunk of 460.15 bighas of
  land which is now an integral part of the city of Jodhpur.

       10. It is also not in dispute that the validity of the order
  dated 23.04.1969 has not been adjudicated by any appellate/
E revisional forum and according to the learned counsel for the
  State, it wants to decide the validity of order dated 23.04.1969
  on merits and, in that event, the respondents shall have full
  opportunity to put-forth their case and objections, if any,
  available under the law. As rightly pointed out by the learned
F counsel for the State, .the respondents cannot be conferred with
  such huge benefit of 460.15 bighas of land without any proper
  adjudication on merits about the grant of allotment of land. As
  pointed out earlier, the judgment and decree dated 30.06.1982
  does not dwell upon the merits of the validity of the allotment
  dated 23.04.1969 but instead proceeds that such allotment on
G 23.04.1969 would entail the order of injunction. The learned
  single Judge, on 24.11.1976, set aside the order of cancellation
  passed on 01.05.1973 and referred the matter back to the
  State Government to consider it on merits. The learned single
  Judge, on 24.11.1976, has again remitted the matter to the
H
   STATE OF RAJASTHAN & ORS. v. JEEV RAJ &                     251
            ORS. [P. SATHASIVAM, J.]
State Government because no opportunity of hearing was given           A
with regard to 460.15 bighas of land. However, the Division
Bench of the High Court upheld the validity of order dated
23.04.1969 on the principle of res judicata. As discussed and
observed above, the principle of res judicata shall not apply
inasmuch as neither the subject matter of validity of allotment        B
dated 23.04.1969 was considered on merits by the Munsif
Court nor the decree passed by the Civil Court was within its
jurisdiction because the Land Revenue Act prohibits the
jurisdiction of the Civil Court. This has led to the validity of the
order dated 23.04.1969 being left unexamined by the State              c
Government despite orders of the learned single Judge of the
High Court dated 24.11.1976.

       11. In view or the same, it is desirable that since the State
 Government is going to decide the allotment of 143 bighas of
 land in pursuance of the impugned judgment, we are of the view        D
 that let the State Government may as well decide the grant of
 remaining 460.15 bighas of land allotted vide order dated
 23.04.1969 in accordance with law. It is also to point out that
 even the Division Bench in its judgment dated 14.10.2003 has
 clearly recorded the fact that the land in question was part of       E
 the catchment area for canal and stone slabs which were
·obstructing the flow of water and, therefore, "Bapi Patta" No.
 14 granting 603.16 bighas of land was cancelled. The Division
 Bench has also recorded the stand of the State Government
 that soon after "Bapi Patta" was granted, it was realized that        F
 the same had been granted wrongly because the land fell under
 the catchment area of Kailana Lake and it was for this reason
 that subsequently in 1942, the said patta was cancelled and
 compensation of Rs.9,377/- was paid to the appellants therein
 for stone slabs which had been removed. Further, the Revenue          G
  Minister, in his order dated 15.12.1992, has clearly recorded
 that it came to the knowledge that "Bapi Patta" cannot be
 granted to the appellants therein inasmuch as the aforesaid
  land falls within the catchment area of feeder canal of Kaliberi
 and, therefore, the patta was cancelled on 19.07.1942.                H
    252       SUPREME COURT REPORTS              [2011] 10 S.C.R.


A Inasmuch as the land in question was being utilized as
  catchment area of potable water, grant of "Bapi Patta" was void
  ab initio and, therefore, it was cancelled. Even the learned
  single Judge, in his order dated 19.03.2002, has recorded
  while narrating the facts that on 09.03.1978, the Chief Engineer
B of the PHED had issued notices to the respondents along with
  others mentioning that the land was falling in the feeder canal
  catchment area and, therefore, the PHED wanted back the
  complete land of 603 bighas.

           12. We also accept the statement of Mangal Singh, the
.C intervenor, that in the larger public interest no land can be
  allotted or granted if it obstructs the flow of water. The above
  principle has been reiterated by this Court in several orders.
  We h~ve already noted the prohibition, i.e., entertaining a suit
  by the Civil Court in the Land Revenue Act. Further, the land in
D question
     /                         '
             belongs to the Revenue     Department of the State of
  Rajasthan and the PHED had no jurisdiction whatsoever to
  restore 460.15 bighas of land in favour of the respondents
  herein. It is needless to mention that while passing fresh orders
  as directed above, the State Government has to issue notice
E to all the parties concerned and decide the same in accordance
  with law.

       13. In view of the above discussion, factual materials, legal
  issues considering public interest, we set aside the impugned
F order passed by the High Court on 14.10.2003 and direct the
  Revenue Department of the State of Rajasthan to decide the
  matter afresh as discussed above and pass fresh orders within
  a period of four months from the date of the receipt of this
  judgment after affording opportunity to all the parties concerned.
G Both the appeals are allowed on the above terms. No order as
  to costs.

    R.P.                                         Appeals allowed.