TMI Blog2011 (8) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... l of Kaliberi canal and stone slabs which were constructed by the respondents were obstructing the flow of water, on 19.07.1942, at the request of the Public Health and Engineering Department (in short the PHED ), Jodhpur Government cancelled the patta and removed the stone slabs. (b) On 05.09.1945, the respondents claimed compensation of ₹ 37,826/- for the loss of their land and stone slabs. On 14.06.1949, the State Government made payment of ₹ 9,377/- as compensation to the respondents. (c) Thereafter, in the year 1968, after a gap of about 20 years, the respondents again claimed compensation of ₹ 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 in lieu of compensation amount sought for by them. In compliance of the said order, the possession of 460.15 Bighas of land was restored to them on 27.05.1969 and the same was also mutated in their name. (d) On some complaints being made, the restoration of the land was cancelled by the State Government on 01.05.1973. Challenging the same, the respondents filed writ petition be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue in these appeals is about the grant of 460.15 bighas of land on 23.04.1969 by the PHED to the respondents herein. As far as the remaining land of 143 bighas is concerned, even the Division Bench of the High Court, in the impugned order, remitted the matter to the Revenue Minister. Inasmuch as the issue of remaining land of 143 bighas raised by the respondents is pending before the Revenue Minister, the same is not relevant for our present consideration. (5) It is the contention of the learned counsel for the State that the order dated 23.04.1969 about the grant of 603.16 bighas of land (including 460.15 bighas - the subject matter of present proceedings) was ex facie without jurisdiction as it was allotted by the PHED on flimsy and fallacious grounds about cancellation of patta way back in the year 1942 and the compensation sought in the year 1968. It is relevant to note that the same was cancelled way back in 1973. Inasmuch as opportunity of hearing was not given, the learned single Judge of the High Court, by order dated 24.11.1976, remanded back to the State Government for deciding the matter afresh after giving due opportunity of hearing to the respondents herein. (6) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicata. This proposition has been enunciated in Sabitri Dei and Others. vs. Sarat Chandra Rout and Others, (1996) 3 SCC 301, wherein this Court held that once a decree is held to be a nullity, the principle of constructive res judicata will have no application and its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right even at the stage of execution or in any collateral proceeding. This proposition has been reiterated in Sushil Kumar Mehta vs. Gobind Ram Bohra (1990) 1 SCC 193. It was held in the aforesaid case that, Thus it is settled law that normally a decree passed by a court of competent jurisdiction, after adjudication on merits of the rights of the parties, operates as res judicata in a subsequent suit or proceedings and binds the parties or the persons claiming right, title or interest from the parties. Its validity should be assailed only in an appeal or revision as the case may be. In subsequent proceedings its validity cannot be questioned. A decree passed by a court without jurisdiction over the subject-matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order dated 23.04.1969 being left unexamined by the State Government despite orders of the learned single Judge of the High Court dated 24.11.1976. (11) In view of the same, it is desirable that since the State Government is going to decide the allotment of 143 bighas of land in pursuance of the impugned judgment, we are of the view that let the State Government may as well decide the grant of remaining 460.15 bighas of land allotted vide order dated 23.04.1969 in accordance with law. It is also to point out that even the Division Bench in its judgment dated 14.10.2003 has clearly recorded the fact that the land in question was part of the catchment area for canal and stone slabs which were obstructing the flow of water and, therefore, Bapi Patta No. 14 granting 603.16 bighas of land was cancelled. The Division Bench has also recorded the stand of the State Government that soon after Bapi Patta was granted, it was realized that the same had been granted wrongly because the land fell under the catchment area of Kailana Lake and it was for this reason that subsequently in 1942, the said patta was cancelled and compensation of ₹ 9,377/- was paid to the appellants there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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