S.NAGARAJ (D) BY LRS. Vs B.R.VASUDEVA MURTHY .
Case number: C.A. No.-003038-003038 / 2007
Diary number: 15160 / 2007
Advocates: LAWYER S KNIT & CO Vs
SUSHIL BALWADA
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3038 OF 2007
S. Nagaraj (dead) by LRs. & Ors. ……Appellants
Versus
B.R. Vasudeva Murthy & Ors. Etc. Etc. ……Respondents
With
Civil Appeal Nos. 3037/2007, 3049/2007, 3040- 3047/2007, 3050/2007, 3941-3953/2007, Civil Appeal No. 1477 of 2010 (Arising out of SLP (C) No. 18843/2007, Civil Appeal No. 1478 of 2010 (Arising out of SLP (C) No. 18845/2007) and Civil Appeal No. 1479 of 2010 (Arising out of SLP (C) No. 18846/2007)
JUDGMENT
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. 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
Court of Karnataka in a batch of Writ Petitions in relation to
34 acres and 3 guntas of Inam 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 Bangalore Development Authority has filed Civil
Appeal No.3037/2007, the legal representatives of Inamdars
have filed Civil Appeal No.3038/2007, the Teachers’ Colony
Residents Association has filed Civil Appeal No.3049/2007
and several owners of the house sites have filed the remaining
Civil Appeals.
Facts
3. The relevant facts briefly are that the Mysore (Personal &
Miscellaneous) Inam Abolition Act, 1954 (for short ‘the Inam
2
Abolition Act’) was enacted for abolition of personal Inams and
other miscellaneous Inams in the State of Mysore, except
Bellari District. On the Inam Abolition Act coming into force
on 1.2.1959, all rights, title and interests vested in the
Inamdars ceased and vested absolutely in the State of Mysore
free from all encumbrances. Every Inamdar, however, was
entitled to be registered as an occupant of land and could
make an application before the Special Deputy Commissioner,
Inam Abolition, for such registration as an occupant.
4. Sreenivasa Rao and Babu Rao, two Inamdars, filed
applications for registration as occupants in respect of some
lands in Survey Nos. 45 and 47 of Jakkasandra village,
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 and 47 of Jakkasandra village in favour of
the Sangha. The Divisional Commissioner, Bangalore, while
3
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 Inam Land in respect of which applications for
occupancy rights were still pending settlement before the
Special Deputy Commissioner, Inam 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 Nos.45 and 47 of
Jakkasandra village in favour of the General Secretary of the
Sangha for providing house sites to the Members of the
Sangha subject to the decision in the dispute pending before
the Special Deputy Commissioner, Inam 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
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 a
4
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/- 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.
6. In the meanwhile, the Karnataka Inam Abolition Laws
(Amendment Act) 1979 amended the Inam Abolition Act
providing that the Tribunal constituted under Section 48 of
the Karnataka Land Reforms Act, 1961 (for short ‘the
Tribunal’) instead of the Special Deputy Commissioner, Inam
Abolition, will decide the claims for occupancy rights under
the Inam Abolition Act. Thereafter, the Tribunal by its order
dated 23.6.1982 passed in Case No. I.R.F. INA 419/1979-80
decided the claims of Sreenivasa Rao and Babu Rao for
5
occupancy 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 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 ‘BDA’) and allotted sites
to its members and the members of the Sangha built houses
on some of these sites 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
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
6
Sangha as null and void and for declaring all acts of the BDA
sanctioning the 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
O.S. No.4349/1992 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 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 (C)
No.2833/1999 against the order dated 15.9.1998 passed by
the Division Bench before this Court and on 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
7
claim of Inamdars have ended in favour of the petitioners who
have filed the SLP, it will be open to them to approach the
State Government for modification of the order granting land
to the Sangha. The Teachers’ Colony Residents 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-
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
to the family members of the Inamdars. 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
remitted the matter to the State Government with the direction
8
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 Inamdars also filed Writ Petition
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
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 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 Inamdars filed
I.A. No.3 in the aforesaid SLP alleging contempt and this Court
issued notice in the I.A. on 8.9.2003.
9
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 34
guntas available be handed over to the Inamdars free of
cost.
(b) The land which is utilized by the BDA for formation of
the ring road has to be acquired by the BDA and 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
Inamdars or if the same was not available on date,
compensation in lieu of it from Sangha be paid to the
Inamdars.
(d) The Government will examine to allot 20 acres of land in
Survey No.148 of Kudlu village of Jigani 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 BDA in W.P. No.15614 of 2004,
10
the Sangha in W.P. No.26218 of 2004, the Teachers’ Colony
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
delivered by a Division Bench of the Karnataka High Court on
22.12.2006. The legal representatives of the Inamdars 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.
Findings in the impugned Judgment of the High Court
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 Taluk, did
not vest in the Government on 15.6.1979 because the
applications of the Inamdars for registration as
occupants in respect of the land under in Sections 9
and 10 of the Inam Abolition Act were pending before
11
the Special Deputy 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 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
Inamdars pursuant to the order dated 9.4.1999 of this
Court.
(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 provided for
allotment of land only for agricultural purposes and
the rights given under the provisions of the Act to
Inamdars in respect of land in question could not be
whittled down by the State Government in exercise of
12
its power under the Karnataka Land Grant Rules,
1969.
(iii) The Agreement executed by the Inamdars on
1.11.1980 in favour of the Sangha when the claim of
the Inamdars for registration had not been decided by
the Tribunal was not legal and was void and being an
unregistered agreement could not affect the rights of
the Inamdars to immovable property.
(iv) The orders passed by the Karnataka High Court in 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 Inamdars with reference to the provisions
of the Inam Abolition Act and law laid down by this
Court on various aspects were not 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.
(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
13
22.12.2003 directing the Deputy Commissioner to
resume and restore 182 sites from the land earlier
sanctioned in favour of the Sangha to the Inamdars
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 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 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
have been residing for more than two decades, the
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
14
restoration of 182 sites in favour of the Inamdars and
directed the Sangha to allot to each legal
representative of the Inamdars 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, 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
Inamdars equally. The High Court further directed
that until allotments of the sites and payment of the
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
Inamdars are entitled to receive compensation in
respect of the land acquired by the BDA 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
Inamdars.
15
Contentions of the parties before this Court
12. Mr. Dushyant Dave, learned senior counsel appearing
for the legal representatives of the Inamdars (the appellants in
Civil Appeal No.3038 of 2007), referred to sub-Section (1) of
Section 3 of the Inam 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 Inamdar under Section 9 of
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
notification under sub-section (4) of Section 1 of the Act in
respect of any inam, the Inamdar 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
16
clause (a) of sub-Section (3) of Section 10 of the Inam Abolition
Act 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 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 legislative intent of the Inam Abolition Act,
therefore, was that so long as the application of Inamdar 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 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
17
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 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 Inamdars to be
registered as occupants in respect of the land was still pending
before the Special Deputy Commissioner. Mr. Dave submitted
that a reading of the order dated 15.6.1979 of the State
Government sanctioning the grant of land in favour of the
Sangha was “subject to” the pending proceedings of the
Inamdars for grant of occupancy rights and therefore once the
Tribunal passed the order dated 23.6.1982 in favour of the
Inamdars confirming their occupancy rights, the Inamdars
were entitled to become occupants of the land and the order
dated 15.6.1979 of the State Government was liable 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 Inamdars to the land.
18
13. Mr. Dave next submitted that the High Court was also
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 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 further submitted that Section 79-B of
the Land Reforms Act prohibits 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, 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
19
made in favour of the Sangha. He argued that the order dated
15.6.1979 of the State 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
Court in the impugned order that the agreement executed by
the Inamdars in favour of the Sangha was not legal and void
and did not affect the rights of the Inamdars in respect of the
immovable property was also correct. He argued that under
Section 23 of the Contract Act, an agreement which is opposed
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
Inamdar in respect of the inam land. He cited the decision of
this Court in Murlidhar Aggarwal and Another v. State of
Uttar Pradesh 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
20
Kesekar v. Vishwanath Pandu Barde and Another [(1995)
Supp. (2) SCC 549] in which an agreement entered into with a
tribal for 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 Court in Papaiah v. State of
Karnataka and Others [(1996) 10 SCC 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 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
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
21
hundred rupees and upwards to or in immovable property has
to be registered compulsorily. He submitted that since the
agreement dated 1.11.1980 executed by the Inamdars in
favour of the Sangha is not registered, it cannot affect the
right, title and interest of the Inamdars 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].
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 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
22
it has been held that an 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 representatives of the Inamdars
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 Inamdars to apply to the State
Government for modification of the order dated 15.6.1979 of
the State Government sanctioning the grant of land 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 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 Kerala and Another
23
[(2000) 6 SCC 359].
17. Mr. Dave submitted that in any case this Court has
held in State of Haryana and Others v. M.P. Mohla [(2007)
1 SCC 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 subjected to a legal challenge. He also
cited the decision of this Court in Dharam Dutt and Others
v. Union of India and Others [(2004) 1 SCC 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] 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 Inamdars on all points should not have
denied the reliefs sought by the legal representatives of the
Inamdars and should not have quashed the directions in the
order dated 22.12.2003 of the Minister, Revenue, Government
24
of Karnataka, for resumption and restoration of 182 sites in
favour of the Inamdars. He submitted that in this appeal this
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 Inamdars and for
examination to allot 20 acres of land in favour of the Inamdars
and should set aside the order passed by the Division Bench
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
Inamdars 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
Inamdars agreed by the agreement dated 1.11.1980 to take
from the 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
25
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 the suit of the Inamdars 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 Inamdars had no locus standi to
approach the Court again to challenge the grant of land made
by the State Government in favour of the Sangha. He
submitted that after the Inamdars 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 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,
therefore, the order of the Division Bench of the Karnataka
26
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 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 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 Kerala and Another [(2000) 6 SCC 359]
in which this Court has further held that an 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. No.7574/1996 did not
27
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 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
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 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
28
sites in favour of the legal representatives of the Inamdars.
Mr. Rao relied on the decision of this Court in Madan Mohan
Pathak and Another v. Union of India and 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 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 the Life Insurance
Corporation. He also cited Virender Singh Hooda and
Others v. State of Haryana and Another [(2004) 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
power by the legislature which is against the concept of
separation of power. Learned counsel appearing for the
29
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
the BDA (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 BDA sanctioned the private layout
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 BDA free of
cost. He referred to sub-section (5) of Section 32 of the
Bangalore Development Authority Act, 1976 to show that the
BDA may 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 BDA permanently without
claiming any compensation therefor. He submitted that the
road, civic amenity sites, parks in the Survey Nos.45 and 47 in
Jakkasandra village had, therefore, become the property of the
BDA and yet by the order dated 22.12.2003 passed by the
30
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 Inamdars free of
cost and the land utilized by the BDA for formation of the Ring
Road as per the sanctioned layout plan was directed to be
acquired by the BDA and compensation paid to the Inamdars
as if such land was the private property of the Inamdars. He
submitted that the BDA, therefore, filed Writ Petition
No.15614/2004 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 Inamdars free of cost and directing
acquisition of the land forming the Ring Road and payment of
compensation to the Inamdars 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.
23. Mr. Javali referred to earlier judgment dated
15.9.1998 of the Division Bench of the Karnataka High Court
31
in W.A. No.7574/1996 to show that the Inamdars had filed
petitions before the BDA 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 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 Inamdars 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 BDA went
ahead and sanctioned the private layout plan of the Sangha.
24. Mr. Javali submitted that sub-section (2) of Section
38-A of the Bangalore Development Authority Act, 1976
prohibits the BDA to sell or dispose of any area reserved for
public parks and playgrounds and civic amenities for any
other purpose and it further provides that any disposition so
made by the BDA shall be null and void. He submitted that in
32
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 diversion of the user of area
reserved for public parks or civic amenities or for any other
purpose. He submitted that under Section 65 of the
Bangalore Development Authority Act, 1976, 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 BDA to hand over the properties
of the BDA free of cost to the Inamdars or to acquire the roads
which were already owned by the BDA and pay compensation
to the Inamdars. He relied on Bangalore Development
Authority and Others v. R. Hanumaiah and Others [(2005)
12 SCC 508] in which this Court has held that the power of
the Government under Section 65 of the 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 contrary
33
to the Act and further held that the directions issued by the
Chief Minister to release the lands were destructive of the
purposes of the Act and the purposes for which the BDA 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 amenities sites to the
Inamdars 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 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 Inamdars
on the Government saying that the order dated 9.4.1999 of
this Court in SLP (C) No.2833/1999 was not being complied
with by the State Government. He submitted that Minister,
Revenue, Government of Karnataka, has taken an equitable
34
view of the entire matter and has not disturbed those
members of the Teachers’ Association or Sangha who have
already utilized the house sites for construction of the houses
and has directed resumption and restoration of only the 182
vacant sites in the land in favour of the Inamdars and
cancelled the earlier grant of land in respect of these 182 sites
in favour of the Sangha in 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
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 Inamdars first before
the learned Single Judge in W.P. No. 11412/1990 and on
dismissal of the writ petition by learned Single Judge, before
the Division Bench in W.A. No.7574/1996 and the Division
Bench dismissed the writ appeal of the legal representatives of
the Inamdars 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
35
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 No.7574/1996 had become final and
binding on the parties, namely, the legal representatives of the
Inamdars, 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
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 Inamdars 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 decision before the Special Deputy Commissioner, the
State 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
36
sanctioning the grant of land in favour of the Sangha was
subject to claim of the Inamdars to occupancy rights in
respect 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 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 inamdars, it is made clear that the grant order in favour of Respondent No.3 that the Inamdars are entitled for the price of the land. Therefore, on this count, the order cannot be set back.”
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 Inamdars for
registration under Sections 9 and 10 of the Inam Abolition Act
was pending before the Special Deputy Commissioner and
instead held that in case the claims of the Inamdars to
37
occupancy in respect of the inam land were upheld, they
would be entitled for the price payable for the land.
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 Inamdars have waived their
occupancy rights in respect of the inam land by entering into
the agreement 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:
“The above two paras in the Agreement make it clear that the Inamdars have agreed not to claim any right, not to prosecute with any legal 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 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 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 Inamdars
38
have acted upon the agreement by withdrawing the suit voluntarily. It is also not disputed that the Inamdars have received an amount of Rs.2,000/- per acre in one installment and another sum of Rs.49,000/- and thus, the conduct of the Inamdars 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 land as they like and acted on the said agreement, they have withdrawn the suit and received the amount. Thus, the Inamdars 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 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 notwithstanding the
pendency of the claim of the Inamdars to be registered as
occupants of the land before the Special Deputy
Commissioner, Inam 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 Inamdars to be registered
as occupants of the land was subsequently allowed by the
39
Special Deputy Commissioner or by the Tribunal, the
Inamdars were not entitled to restoration of the land from the
Sanngha but were entitled for the price of the land; third, the
Inamdars 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 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
of the Karnataka High Court in Writ Appeal No.7574/1996
was sought to be challenged by the legal representatives of the
Inamdars before this Court in SLP (C) No.2833/1999, but this
Court did not grant special leave to the legal representatives of
the Inamdars to appeal and instead disposed of the SLP with
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 Special Deputy Commissioner for Abolition of Inam. We are now told that the said
40
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-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.”
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 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
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
41
No.7574/1996 became final and binding on the parties,
namely, the legal representatives of the Inamdars, the State
Government and the Sangha and its members.
32. In Kunhayammed and Others v. State of Kerala
and 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 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 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 order has two implications. Firstly, the statement of law 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 and also the court, tribunal or
42
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 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
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
statement of law is 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 way of judicial discipline, the Supreme Court being
the Apex Court of the country.
43
33. Applying the law laid down by this Court in
Kunhayammed and Others v. State of Kerala and Another
(supra) to the facts of the present case, the judgment dated
15.9.1998 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 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 SLP
(C) No.2833/1999 does not contain any statement of law
which would amount to 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 dispute which was pending
before the Special Deputy Commissioner, Inam Abolition, and
has further taken note of the fact that the proceedings have
44
resulted in favour of the legal representatives of the Inamdars
and thereafter left it open to legal representatives of the
Inamdars to approach the State 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 Inamdars 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 any finding which would
be binding on the legal representatives of the Inamdars, the
State Government, the Sangha and its members, but has only
granted liberty to the legal representatives of the Inamdars 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 period of three months from the receipt
of the application of the legal representatives of the Inamdars.
Hence, the contention raised on behalf of the legal
representatives of the Inamdars before us that the judgment
dated 15.9.1998 of the Division Bench of the Karnataka High
45
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 judicata and were not
binding on the legal representatives of the Inamdars, 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
orders passed by the Karnataka High Court in 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 Inamdars with
reference to the provisions of the Inam Abolition Act and the
law laid down by this Court on various aspects were not
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 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
46
no application to the doctrine of res judicata. To quote
Rankin, C.J. 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 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 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 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.”
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
47
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 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 res judicata. This argument of Mr. Dave is
based on the observations in Mathura Prasad Bajoo Jaiswal
and 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 contention was raised on behalf of the
legal representatives of the Inamdars that there was no power
to grant land for house sites under the Karnataka Land
Grants Rules, 1969 but the Division Bench of the Karnataka
High Court negatived the said contention and held that under
Rule 20 of the Karnatka Land 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
48
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 Inamdars that grant of land in
Survey Nos.45 and 47 of Jakkasandra village could 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 Inamdars while challenging the
order dated 15.6.1979 of the State Government 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
Code of Civil Procedure which has been applied to writ
petitions. In Direct Recruit Class II Engineering Officers’
Association v. State of Maharashtra and Others [(1990) 2
SCC 715] a Constitution Bench of this Court observed at Page
741:
“The decision in Forward Construction Co. v. Prabhat Mandal (Regd.), Andheri [(1986) 1 SCC 100] further clarified the position by holding that an
49
adjudication is 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 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
High Court had not decided this question in the judgment
dated 15.9.1998 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 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-B and 80 shows that these provisions apply to only
“agricultural lands”. We also find from the provisions of sub-
sections (2) and (7) of Section 95 of the Karnataka Land
Revenue Act, 1964 (for short ‘the Land Revenue Act’) that the
50
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 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 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. 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 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-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 the same subject
matter, namely, agricultural lands. We therefore hold that the
51
law permitted the grant of the agricultural land in favour 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.
37. Mr. Dave, however, is right in his submission 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
passed by the Minister, Revenue, Government of Karnataka,
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
adjudication between the same parties. In State of Haryana
and others v. M.P. Mohla [(2007) 1 SCC 457] (supra) cited
by Mr. Dave, this Court has held:
“22. …….. The dispute between the parties has to be 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 specific question which was not raised and which had not been decided by the
52
High Court the same would not debar a party to agitate the same at an appropriate stage, subject, of course, to the applicability of principles of res 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 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
sanctioning the grant of land in favour of the Sangha was valid
and that the Inamdars were only entitled to the price payable
for the land when their claims for registration under Sections
9 and 10 of the Inam Abolition Act were allowed and that the
Inamdars 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 legal representatives of the Inamdars and the
Sangha but also on the State Government. While deciding the
53
application of the legal representatives of the Inamdars for
modification of the order dated 15.6.1979 sanctioning the
grant of land in favour of the Sangha, therefore, the State
Government could not ignore these findings of the Division
Bench of the Karnataka High Court in the judgment dated
15.9.1998 in Writ 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 Government to consider the application
of the legal representatives of the Inamdars 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 Inamdars, ignored the
findings of the Division Bench of the Karnataka High Court in
the judgment dated 15.9.1998 in Writ Appeal No.7574/1996
and took the view in his order dated 22.12.2003 that on the
competent authority granting occupancy right to the Inamdars
by the order dated 23.6.1982, the Inamdars had become the
54
rightful owners of the land and action would have to be taken
to cancel the grant made 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
21.5.1976 issuing a writ of mandamus directing the Life
Insurance Corporation to pay annual cash bonus to Class III
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 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 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
55
Corporation. P.N. Bhagwati, J., as he then was, delivering the
judgment on behalf of himself, Krishna Iyer and Desai, JJ.
held that since 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 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……If by reason of retrospective alteration of the factual or legal situation, the judgment is rendered erroneous, the remedy may be by way of appeal or review, but so long 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 the
Karnataka High Court in Writ Appeal No.7574/1996 had held
that on the occupancy rights of the Inamdars being confirmed,
56
the Inamdars would be entitled to only the price and that the
Inamdars 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 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 Inamdars, the
grant of the land made in favour of the Sangha was liable to be
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 182 sites have to be transferred to the Inamdars or
compensation in lieu of the vacant 182 sites were to be paid by
the Sangha to the Inamdars, 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 guntas
must be handed over to the Inamdars free of cost and the
57
land, which is used by the BDA for formation of the ring road,
has to be acquired by the BDA and the compensation has to
be paid for this land to the Inamdars 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 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 BDA had stipulated that the
roads, civic amenity sites, parks and all connections such as
underground drainage, water supply lines, shall vest with the
BDA free of cost. The civic amenity sites and the road,
therefore, had become properties of the BDA and it was the
BDA only which was empowered to deal with such properties
subject to Section 38-A and other provisions of the Bangalore
Development 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 Inamdars free of cost and directing that the BDA
will acquire the land comprised in the ring road after paying
compensation for the same, was thus without the authority of
58
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
to the Inamdars or for payment of compensation in lieu thereof
by the Sangha to the Inamdars and the directions in the order
dated 22.12.2003 to the BDA to handover the vacant civic
amenity sites to the Inamdars free of cost and to acquire the
land forming the ring road and pay compensation for such
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.
……………………..J. (Dalveer Bhandari)
59
……………………..J. (A.K. Patnaik)
New Delhi, February 08, 2010.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 1480 of 2010 (Arising out of SLP (C) No. 15209 of 2009)
S. Narahari Rao …… Appellant
Versus
Sathyanarayana & Ors. …… Respondents
O R D E R
A.K. PATNAIK, J.
Leave granted.
The background facts in which this Civil Appeal has been
filed are that the appellant filed a suit being O.S. NO.1150 of
2009 in the City Civil Court, Bangalore, along with an
application for temporary injunction (I.A.No.1 of 2009) for
60
restraining the respondents from putting up any construction
on the suit property. On 18.02.2009, the City Civil Court,
Bangalore, while issuing summons/notices to the
respondents, directed the parties to maintain the status quo in
respect of the suit property. In response to the
summons/notices, the respondents appeared in the suit and
filed I.A. No.2 of 2009 praying to the City Civil Court to vacate
the order of status quo on the ground that the entire dispute
was pending before this Court in S.L.P. (C) No.10352 of 2007
and other connected SLPs filed against the common judgment
dated 22.12.2006 of the Division Bench of the Karnataka High
Court. The Trial Court took the view that since the entire
dispute is pending before this Court, this Court alone has
jurisdiction to consider grant of interim relief and by its order
dated 02.04.2009 rejected the application for temporary
injunction. The appellant thereafter filed Miscellaneous First
Appeal No.2519 of 2009 before the Karnataka High Court
against the order dated 02.04.3009 of the City Civil Court, but
the Karnataka High Court by its order dated 08.06.2009 also
dismissed the Miscellaneous First Appeal on the ground that
61
the subject-matter of the suit was also the subject-matter of
S.L.P. (C) No.10352 of 2007 before this Court.
We have heard learned counsel for the parties. On
12.07.2007, this Court granted leave in S.L.P. (C) No.10352 of
2007 and other connected SLPs. On grant of such leave, the
matters were re-numbered as Civil Appeal Nos.3038 of 2007
and other connected Civil Appeals. We have heard these Civil
Appeals and delivered a common judgment today setting aside
the common judgment dated 22.12.2006 of the Division Bench
of the Karnataka High Court and allowing the writ petitions
filed in the High Court.
Since we have decided the dispute pending before this
Court, we set aside the impugned order dated 08.06.2009
passed by the Karnataka High Court in Miscellaneous First
Appeal No.2519 of 2009 and the order dated 02.04.2009
passed by the City Civil Court, Bangalore, in I.A.Nos.1 and 2 of
2009 and remand the matter to the City Civil Court,
Bangalore, to hear the parties and decide the application for
temporary injunction and the suit in accordance with our
62
judgment delivered today in Civil Appeal Nos.3038 of 2007 and
other connected Civil Appeals.
The appeal stands disposed of accordingly. No costs.
A copy of the judgment passed today in Civil Appeal
Nos.3038 of 2007 and other connected Civil Appeals be sent to
the City Civil Court, Bangalore.
……………………..J. (Dalveer Bhandari)
……………………..J. (A.K. Patnaik) New Delhi, February 08, 2010.
63