# 2 S.C.R. 586 S. NAGARAJ (DEAD) BY LRS. & ORS v. B.R. VASUDEVA MURTHY & ORS. ETC. ETC

- **Citation:** [2010] 2 S.C.R. 586
- **Court:** Supreme Court of India
- **Decided:** 2010-02-08
- **Case number:** Civil Appeal No. 3038 of 2007
- **Bench:** A.K. Patnaik, Dalveer Bhandari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2-s-c-r-586-s-nagaraj-dead-by-lrs-ors-v-b-r-vasudeva-murthy-ors-etc-etc-26624
- **Pages:** 47

## Headnote

Mysore (Personal and Miscellaneous)lnam Abolition Act,
1954 - Abolition of lnams - During pendency of lnamdars'
C application for registration as occupants, the land granted to
a Sangha for construction of house - Conversion fine paid -
lnamdars initially challenging the grant, but later settled the
matter out of Court agreeing for an amount in addition to the
amount towards the price of the land -
The competent
D authority later confirming the occupancy rights of the
lnamdars - Layout plan for the allotted land sanctioned by
Development Authority - Sites allotted to the members of the
Sangh and houses constructed -
Thereafter Legal
Representatives of the lnamdars challenging the order of
E grant, in a suit and writ petition - Suit withdrawn - Writ petition
and writ appeal thereagainst dismissed - In special Leave
Petition, Supreme Court observing that occupancy .rights
having been granted in favour of lnamdars it was open to their
Legal Representatives to approach the State for modification
F of the order granting the land to the Sangh -
State
Government's direction to acquire sites in the lay out
developed plan for allotment of the same to the. LRs of the
lnamdars challenged by the 14 a/lattes - The wit petitions were
allowed - Matter remitted to State to comply with direction
issued by Supreme Court - States' direction to stop the
G construction on the site challenged - High Court directing the
State to decide the matter within prescribed time - State
directing to handover vacant civic amenity sites, and the
vacant sites to the LRs of lnamdars and compensation to be
H
586
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 587
MURTHY & ORS. ETC. ETC.
paid to them for the land utilized by BOA for construction of A
road - The order challenged - High Co"urt gave the finding
in favour of the LRs of lndamdars, but quashed the direction
of the State for resumption and restoration of the sites in
favour of lnamdars - Court directed to allot each LR of
lnamdar a site in the same layout in lieu of the 182 sites and
B
pay compensation to them - Review petition dismissed - On
appeal, held: The issue having been decided in writ apoeal
and having attained finality, cannot be re-opened for fresh
adjudication in subsequent challenge - The lnamadars by
entering into the agreement with the Sangha, waived their c
occupancy right - lnamdars were bound by the agree1r;ent ~
The grant in favour of Sangha not liable to be cancelled - The
grant was also not contrary to ss. 79A, 798 and 80 of Land
Reforms Act as the conversion fine was paid uls. 95 (2) and
(7) of Land Revenue Act - Moreover, this issue was also not 0
raised at initial stage - Kamataka Land Reforms Act, 1961 -
ss. 79A, 798 and 80 - Kamataka Land Revenue Act, 1964 -
s. 95 (2) and (7).
Doctrines I Principles - Doctrine of merger - Order
refusing special leave to appeal does not stand substituted
E
in place of order under challenge - Such order could not
come within meaning of Article 141 - Doctrine of merger will
not be attracted in such case - Constitution of India, 1950 -
Articles 136 and 141.
Judgment - Per-in-curium - Applicability of - Judgment
passed per-in-curium is relevant to the doctrine of precedent
and not to the doctrine of res-judicata.
F
After abolition of lnams every lnamdar was entitled
to be registered as an occupant of the land. Two G
lnamdars made applications for registration as occupants
in respect of the land in question. During pendency of the
applications, the State granted the land to an Association
(Sangha) for construction of house sites. State fixed the
H
588
SUPREME COURT REPORTS
[2010] 2 S.C.R.
A price of the land and a conversion fine was also imposed
which was deposited by the Sangha.
Both the lnamdars challenged the grant in a suit but
the matter was settled out of court between the parties.
8 The Sangha agreed to pay certain amount to the
lnamdars in addition to the amount towards the price of
ttae land.
Thereafter, the competent authority decided the
claim

## Text

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A
B
[201 O] 2 S.C.R. 586
S. NAGARAJ (DEAD) BY LRS. & ORS.
v.
B.R. VASUDEVA MURTHY & ORS. ETC. ETC.
(Civil Appeal No. 3038 of 2007)
FEBRUARY 08, 2010
[A.K. PATNAIK AND DALVEER BHANDARI, JJ.]
Mysore (Personal and Miscellaneous)lnam Abolition Act,
1954 - Abolition of lnams - During pendency of lnamdars'
C application for registration as occupants, the land granted to
a Sangha for construction of house - Conversion fine paid -
lnamdars initially challenging the grant, but later settled the
matter out of Court agreeing for an amount in addition to the
amount towards the price of the land -
The competent
D authority later confirming the occupancy rights of the
lnamdars - Layout plan for the allotted land sanctioned by
Development Authority - Sites allotted to the members of the
Sangh and houses constructed -
Thereafter Legal
Representatives of the lnamdars challenging the order of
E grant, in a suit and writ petition - Suit withdrawn - Writ petition
and writ appeal thereagainst dismissed - In special Leave
Petition, Supreme Court observing that occupancy .rights
having been granted in favour of lnamdars it was open to their
Legal Representatives to approach the State for modification
F of the order granting the land to the Sangh -
State
Government's direction to acquire sites in the lay out
developed plan for allotment of the same to the. LRs of the
lnamdars challenged by the 14 a/lattes - The wit petitions were
allowed - Matter remitted to State to comply with direction
issued by Supreme Court - States' direction to stop the
G construction on the site challenged - High Court directing the
State to decide the matter within prescribed time - State
directing to handover vacant civic amenity sites, and the
vacant sites to the LRs of lnamdars and compensation to be
H
586
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 587
MURTHY & ORS. ETC. ETC.
paid to them for the land utilized by BOA for construction of A
road - The order challenged - High Co"urt gave the finding
in favour of the LRs of lndamdars, but quashed the direction
of the State for resumption and restoration of the sites in
favour of lnamdars - Court directed to allot each LR of
lnamdar a site in the same layout in lieu of the 182 sites and
B
pay compensation to them - Review petition dismissed - On
appeal, held: The issue having been decided in writ apoeal
and having attained finality, cannot be re-opened for fresh
adjudication in subsequent challenge - The lnamadars by
entering into the agreement with the Sangha, waived their c
occupancy right - lnamdars were bound by the agree1r;ent ~
The grant in favour of Sangha not liable to be cancelled - The
grant was also not contrary to ss. 79A, 798 and 80 of Land
Reforms Act as the conversion fine was paid uls. 95 (2) and
(7) of Land Revenue Act - Moreover, this issue was also not 0
raised at initial stage - Kamataka Land Reforms Act, 1961 -
ss. 79A, 798 and 80 - Kamataka Land Revenue Act, 1964 -
s. 95 (2) and (7).
Doctrines I Principles - Doctrine of merger - Order
refusing special leave to appeal does not stand substituted
E
in place of order under challenge - Such order could not
come within meaning of Article 141 - Doctrine of merger will
not be attracted in such case - Constitution of India, 1950 -
Articles 136 and 141.
Judgment - Per-in-curium - Applicability of - Judgment
passed per-in-curium is relevant to the doctrine of precedent
and not to the doctrine of res-judicata.
F
After abolition of lnams every lnamdar was entitled
to be registered as an occupant of the land. Two G
lnamdars made applications for registration as occupants
in respect of the land in question. During pendency of the
applications, the State granted the land to an Association
(Sangha) for construction of house sites. State fixed the
H
588
SUPREME COURT REPORTS
[2010] 2 S.C.R.
A price of the land and a conversion fine was also imposed
which was deposited by the Sangha.
Both the lnamdars challenged the grant in a suit but
the matter was settled out of court between the parties.
8 The Sangha agreed to pay certain amount to the
lnamdars in addition to the amount towards the price of
ttae land.
Thereafter, the competent authority decided the
claims of the lnamdars for occupancy rights and
C confirmed the occupancy rights in their favour. The
lnamdars withdrew the amount deposited by the Sangha.
The Sangha got the layout plan sanctioned from the
Development Authority and allotted sites to its members
and the members built the houses on some of the sites.
D
The Legal Representatives of the lnamdars,
thereafter, filed writ petition challenging the order granting
the land in favour of the Sangha. They also filed a suit
challenging the same, but it was dismissed as withdrawn.
E Writ Petition was dismissed by the Single Judge of High
Court. Writ appeal thereagainst was also dismissed. In
Special Leave Petition against the same, Supreme court
observed that in view of the proceedings regarding
occupancy rights having been ended in favour of the
lnamdars, it would be open to them to approach the State
F for modification of the order granting the land to the
Sangha. The Resident Association which was impleaded
as a party in the SLP, filed an application for recalling the
order of Supreme Court, but the same was dismissed.
G
State directed to acquire 14 sites in the lay-out
developed by the Sangha and to allot the same to tt~e
family members of the lnamdars. The owners of the 14
sites challenged the order in a writ petition which was
allowed by High Court and the matter was remitted to the
H State to comply with the order passed by Supreme Court.
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 589
MURTHY & ORS. ETC. ETC.
The legal representatives of the lnamdars also filed writ A
petitions seeking deletion of the condition of the grant
made in their favour, but the same was withdrawn by
them.
State directed to stop construction on the land in
B
question till final disposal of the case. The same was
challenged in writ petition. The High Court dismissed the
same directing the State Government to decide the matter
within specified time. On failure on the part of the State
to comply with the order of Supreme Court, the lnamdars C
filed contempt petition.
The State passed an order dated 22.12.2003 directing
that the vacant civil amenities to a certain extent to be
handed over to the lnamdars free of cost; directed the
Development Authority to pay compensation to the D
lnamdars for the land utilized by them for formation of
road; directed transfer of 182 sites to the lnamdars and
if not available, to pay compensation in lieu of the same.
It also directed the State to examine to allot 20 acres of
land to compensate for the losses. The order was E
challenged in the writ petitions separately by the
Development Authority, the Sangha, residents'
Association and different owners of house sites.
High Court by the impugned order held that the State
has no power to pass the order according sanction for
F
grant of the land in favour of the Sangha during
pendency of the applications of the lnamdars for
registration of their occupancy rights as the land did not
rest in the State on that date; that the State was justified
in passing the order dated 22.12.2003 canceling the grant G
and ordering resumption and restoration of 182 sites in
favour of the lnamdars; that sanction of the grant of the
land was void ab initio being in violation of s. 79A, 798
and 63(7) of Karnataka Land Reforms Act; that the
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[2010) 2 S.C.R.
A agreement in favour of the Sangha by the lnamdars,
during pendency of the application for occupancy rights
was not legal; that the order passed by the High Court
in the earlier proceedings do not operate as res judicata
as the case of the lnamdars with reference to the
B
provisions of lnam Abolition Act were not considered
therein, and the same was per incurium. However, in view
of the facts that the members of the Sangha had already
constructed the houses and were residing there, for
considerable time, the High Court quashed the directions
c in the order- dated 22.12.2003 for resumption and
restoration of 182 sites and directed the Sangha to allot
each LR of the lnamdars a site and in lieu of the 182 sites
to pay compensation. High Court further held that the
LRs were entitled to receive compensation in respect of
0
the land acquired by the Development Authority for
formation of the road. High Court also quashed the
direction to examine whether further 20 acres of the land
could be allotted to the lnamdars. The review petition filed
by the LRs of lnamdars was dismissed. Hence, the
E present appeals by the LRs of lnamdars, the
Development Authority, the Residents' Association and
several owners of the house sites.
Disposing of the appeals,· the Court
F
HELD: 1. The Division Bench of the Karnataka High
Court decided" three issues in its judgment dated
15.9.1998 in the Writ Appeal first, that the State
Government had the power to sanction grant of the land
in Survey Nos.45 and 47 in favour of the Sangha by the
G order dated 15.6.1979 notwithstanding the pendency of
the claim of the lnamdars to be registered as occupants
of the land before the Special Deputy Commissioner,
lnam Abolition, and therefore the order dated 15.6.1979
of the State Government of Karnatka sanctioning the land
H in favour of the Sangha cannot held to be bad; second,
S. NAGARAJ (DEAD) BY LRS. v. 8. R. VASUDEVA 591
MURTHY & ORS. ETC. ETC.
in the event the claim of the lnamdars to be registered as
A
occupants of the land was subsequently allowed by the
Special Deputy Commissioner or by the Tribunal, the
lnamdars were not entitled to restoration of the land from
the Sangha but were entitled for the price of the land;
third, the lnamdars had waived thei.r right of occupation
B
of the land by the agreement dated 1.11.1980 and by
withdrawing the suit in which they challenged the order
dated 15.6.1979 of the State Government of Karnataka,
sanctioning the grant of land in favour of the Sangha and
by receiving Rs.2,000/- per acre and Rs.49,000/- in c
addition to the price of Rs.10,000/- per acre. [Para 29)
[620-G-H; 621-A-D]
1.2. On interpreting the two orders dated 9.4.1999 and
28.8.2000 of Supreme Court, the decisions on the three
Issues in the judgment dated 15.9.1998 of the Division
D
Bench of the High Court in the Writ Appeal were not
disturbed by this Court in the SLP and, therefore, the
decisions on the three issues of the Division Bench of
the Karnataka High Court in the Writ Appeal became final
and binding on the parties, namely, the legal
E ·
representatives of the lnamdars, the State Government
and the Sangha and its members. [Para 31) [622-C-D]
1.3. In order refusing special leave to appeal does not
stand substituted in place of order under challenge and
F
all that it means is that this Court was not inclined to
exercise its discretion so as to allow the appeal being
filed. If the order refusing leave to appeal makes a
statement of law, such statement of law is declaration of
law by this Court within the meaning of Article 141 of the G
Cons.titution of India and if the order records some
finding other than the declaration of law such finding
would bind the parties thereto and also
1 the Court,
Tribunal or Authority in any proceeding subsequent
thereto by way of judicial discipline, the Supreme Court
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[2010] 2 S.C.R.
A being the Apex Court of the country. [Para 32] [622-F-G;
622-H; 623-A-B]
1.4. The judgment dated 15.9.1998 of the Division
Bench of the Karnataka High Court in the Writ Appeal
which was challenged in SLP before this Court, does not
8 stand substituted by the order dated 9.4.1999 of this Court
in the SLP because this Court has not granted special
leave to appeal against such judgment. Further, the order
dated 9.4.1999 of this Court does not contain any
statement of law which would amount to declaration of
C law by the Supreme Court within the meaning of Article
141 of the Constitution of India. In the o_rder dated 9.4.1999
this Court has also not recorded any finding which would
be binding on the legal representatives of the lnamdars,
the State Government, the Sangha and its members, but
D , has only granted liberty to the legal representatives of the
lnamdars to approach the State Government for
modification of the order granting land in favour of the
Sangha and has given further direction to the State
Government to dispose of such application within the
E period of three months from the receipt of the application
.of the legal representatives of the lnamdars. Hence, the
contention raised on behalf of the legal representatives
of the lnamdars that the judgment dated 15.9.1998 of the
Division Bench of the High Court got merged in the order
F -dated 9.4.1999 in the SLP and the findings on the three
issues in the order dated 15.9.1998 in the Writ Appeal did
not operate as res judicata and were not binding on the
legal representatives of the lnamdars, the State
Government, the Teachers' Colony Association or the
G Sangham and its members, is misconceived. [Para 33]
[624-A-C; 624-E-H; 625-A]
H
Kunhayammed and Ors. v. State of Kera/a and Anr.
(2000) 6 sec 359, relied on
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 593
MURTHY & ORS, ETC. ETC.
2. The High Court in the impugned order has taken
A
a view that the orders passed by the High Court in the
earlier proceedings in the Writ Petition and the Writ
Appeal do not operate as res judicata as the case of the
lnamdars with reference to the provisions of the lnam
Abolition Act and the law laid down by this Court on
B
various aspects were not considered in the earlier writ
petitions and writ appeal and the decisions rendered by
the Division Bench of the High Court in the Writ Appeal
were per incurium. The High Court lias failed to appreciate
that the principle of per incurium has relevance to the c
doctrine of precedents but has no application to the
doctrine of res judicata. [Para 34] [625-B-D]
Tarini Charan Bhattacharjee and Ors. v. Kedar Nath
Haldar AIR 1928 Calcutta 777, referred to
D
3.1. From the judgment of the Division Bench of the
Karnataka High Court in the Writ Appeal, it is not found
that any contention was raised on behalf of the legal
representatives of the lnamdars that-grant of land in
Survey Nos.45 and 47 could not be sanctioned in favour
E
of the Sangha for house sites because of the restrictions
F
in Sections 79-A, 79-B and 80 of the Land Reforms Act. If
this ground of attack had not been taken by the legal
representatives of the lnamdars while challenging the
order dated 15.6.1979 of the State Government
sanctioning the grant of land in favour of the Sangha, this
contention could not be raised by them before the High
Court in a subsequent proceeding because of the
principle of constructive res judicata underlying
Explanation IV of Section 11 of the CPC which has been
G
applied to writ petitions. [Para 35] [626-E-H]
Direct Recruit Class II Engineering Officers' Association
v. State of Maharashtra and Ors. (1990) 2 SCC 715, followed
H
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SUPREME COURT REPORTS
[2010] 2 S.C.R.
A
Mathura Prasad Bajoo Jaiswal and Ors. v. Dossibai N.B.
Jeejeebhoy, referred to
3.2. Chaptet,,'V of the Land Refor~s Act is titled
"Restrictions on holding on transfer of agricultural lands"
8
and th~ language of Sections 79-A, 79-B and 80 shows
that these provisions apply to only "agricultural lands".
From the provisions of sub-sections (2) and (7) of Section
95 of the Karnataka Land Revenue Act, 1964 it is seen
that the land held for agricultural purpose can be
, . permitted to be diverted . for other purposes on payment
C of fine. In the order dated 15.6.1979 of the State
Government sanctioning the grant of the land in favour
of the Sangha, it is clearly stipulated that the Sangha shall
pay such conversion fine to be levied as per the rules
made under the Revenue Act. The Karnataka Land
D Grants Rules, 1969 made under Section 179 of the Land
Revenue Act and in particular Rule 18 has also made
elaborate provisions for grant of building sites on
payment of price. [Para 36] [627-E-H; 628-A]
E
3.3. Sections 79-A, 79-B and 80 of the Land Reforms
Act, therefore, have to be read together with Section 95
of the Land Revenue Act as all these provisions deal with
the same subject matter, namely, agricultural lands. The
law permitted the grant of the agricultural land in favour
F of the Sangha for house sites on payment of conversion
fine and the grant made by the State Government in
favour of the Sangha by the order dated 15.6.1979 was
not void ab initio on this count. [Para 36] [628-C-D]
'Principles of Statutory Interpretation' by Justice G.P.
G Singh 12th Edition p. 298, referred to
4.1. It is correct to say that res judicata will not
operate as a bar for entertaining a fresh cause of action
and in the present case the order dated 22.12.2003
H passed by the Minister, Revenue, Government of
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 595
MURTHY & ORS. ETC. ETC.
Karnataka, gave rise to a fresh cause of action. But even
A
where a fresh cause of action arises, issues between the
parties which have been decided cannot be re-opened
before the Court for fresh adjudication between the same
parties. The findings of the Division Bench of the High
Court in the judgment dated 15.9.1998 in the Writ Appeal s
that the order dated 15.6.1979 of the State Government
sanctioning the grant of land in favour of the Sangha was
valid and that the lnamdars were only entitled to the price
payable for the land when their claims for registration
under Sections 9 and 10 of the lnam Abolition Act were c
allowed and that the lnamdars have waived their right of
occupation in the land by entering into the agreement
dated 1.11.1980 and by accepting the price of Rs.10,000/
- per acre deposited by the Sangha and the additional
amount paid by the Sangha were binding not only on the
D
legal representatives of the lnamdars and the Sangha but
also on the State Government. [Paras 37 and 38] (628-EF; 629-C-E]
State of Haryana and Ors. v. M.P. Moh/a (2007) 1 sec
457, relied on.
E
4.2. While deciding the application of the legal
representatives of the lnamdars for modification of the
order dated 15.6.1979 sanctioning the grant of land in
favour of the Sangha, therefore, the State Government
F
could not ignore these findings of the Division Bench of
the High Court in the judgment dated 15.9.1998. In the
order dated 9.4.1999 of this Court in the SLP there was
no mandamus to the State Government to modify or
cancel the order dated 15.6.1979 of the State Government G
sanctioning the grant of land in favour of the Sangha, but
there was only a direction to the State Government to
consider the application of the legal representatives of
the lnamdars for modification of the order dated
15.6.1979. [Para 38] [629-E-G]
H
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SUPREME COURT REPORTS
[201 OJ 2 S.C.R.
A
Madan Mohan Pathak and Anr. v. Union of India and Ors.
(1978) 2 sec 50, referred to.
4.3. The Revenu Minister, Government of Karnataka,
while considering the application of the lnamdars,
8
ignored the findings of the Division Bench of the High
Court in the judgment dated 15.9.1998 and took the view
in his order dated 22.12.2003 that on the competent
authority granting occupancy right to the lnamdars by the
order dated 23.6.1982, the lnamdars had become the
rightful owners of the land and action would have to be
C taken to cancel the grant made in favour of the Sangha.
[Para 38] [629-G-H; 630-A-B]
4.4. The judgment dated 15.9.1998 of the Division
Bench
0of the High Court had held that on the occupancy
D rights of the lnam~ars being confirmed, the lnamdars
would be entitled to only the price and that the lnamdars
had waived their right to occupy the land by accepting
the price and by accepting further additional amounts
from the Sangha and this judgment of the Division Bench
E of the High Court had not been disturbed by this Court
in SLP and the Minister, Revenue, Government of
Karnataka, could not have taken a view that on the
confirmation of the occupancy rights of the lnamdars, the
grant of the land made in favour of the Sangha was liable
F to be cancelled. [Para 39] [631-B-D]
4~5 .. Once it is held that the grant made in favour of
the Sangha was not .liable to be cancelled, the order of
the Minister, Revenue,. Government of Karnataka,
directing that the vacant 182 sites have to be transferred
G to the lnamdars or compensation in lieu of the vacant 182
sites were to be paid by the Sangha to the lnamdars, has
to be .set aside. Further, the. order that the vacant civic
amenity sites to an.extent of 2 acres 34 guntas must.be
H
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 597.
·
MURTHY & ORS. ETC. ETC.
handed over to the lnamdars free of cost and the land,
A
which is used by the BOA for formation of the ring road,
has to be acquired by the BOA and the compensation has
to be paid for this land to the lnamdars as if the same was
private property, has also to be set aside. This is because
the civic amenity sites measuring 2 acres 34 guntas and
B
the ring road were part of the land measuring 34.03 acres
given on grant to the Sangha. Moreover, at the time of
sanctioning the layout plan of the Sangha, the BOA had
stipulated that the roads, civic amenity sites, parks and
all connections such as underground drainage, water C
supply lines, shall vest with the BOA free of cost. The
civic amenity sites and the road, therefore, had become
properties of the BOA and it was the BOA only which was
empowered to deal with such properties subject to
Section 38-A and other provisions of the Bangalore D
Development Authority Act, 976. The order dated
22.12.2003 of the Minister, Revenue, Government of
Karnataka, directing that the civic amenity sites be
handed over to the lnamdars free of cost and directing
that the BOA will acquire the land comprised in the ring
road after paying compensation for the same, was thus
E
without the authority of law. [Para 40] [631-E-H; 632-A-C]
Taherakhatoon (D) by L.Rs. v. Salambin Mohammad
(1999) 2 SCC 635; Kunhayammed and Ors. v. State of
Kera/a and Anr. (2000) 6 SCC 359; Virender Singh Hooda
and Ors. v. State of Haryana and Anr. (2004) 12 SCC 588;
Bangalore Medical Trust v. B.S. Muddappa and Ors. (1991)
4 SCC 54; Bangalore Development Authority and Ors. v. R.
Hanumaiah and Ors. (2005) 12 SCC 508, referred to.
Case Law Reference:
F
G
(1974) 2 sec 472
Referred to
(1995) Supp. (2) SCC 549
Referred to
(1996) 10 sec 533
Referred to
Para 14
Para 14
Para 14
H
598
SUPREME COURT REPORTS
[2010] 2 S.C.R.
A
(2004) 1 sec 459
Referred to
Para 14
(1995) 5 sec 109
Referred to
Para 15
(2004) 11 sec 186
Referred to
Para 15
B
(1990) 1 sec 201
Referred to
Para 16
(1988) 2 sec 580
Referred to
Para 16
(2004) 1 sec 112
Referred to
Para 17
(2004) 3 sec 1
Referred to
Para 17
c
(1999) 2 sec 635
Referred to
Para 20
(2004) 12 sec 588
Referred to
Para 21
(1991) 4 sec 54
Referred to
Para 24
D
(2005) 12 sec 508
Referred to
Para 24
(2000) s sec 359
Referred to
Para 33
AIR 1928 Calcutta 777
Referred to
Para 34
E
(1970) 1 sec 613
Referred to.
Para 35
(1990) 2 sec 115
Followed
Para 35
. (2001) 1 sec 457
Relied on
Para 37
(1978) 2 sec 50
Referred to
Para 39
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3038 of 2007.
From the Judgment & Order dated 22.12.2006 of the High
G Court qf Karnataka at Bangalore in W.P. Nos. 20331, 7332,
10303, 12024, 12094, 14858, 15614, 16833, 17883, 20678,
22145, 25372, 26218, 32203, 36796, 10305 of 2004, 21620 ·
of 2005 and Review Petition No. 107 of 2007.
H
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 599
MURTHY & ORS. ETC. ETC.
WITH
A
C.A. Nos. 3037, 3049, 3040-3047, 3050 and 3941-3953 of
2007.
C.A. Nos.1477,1478 and 1479 of 2010
B
Dushyant A. Dave, P. Vishwanath Shetty, S.S. Jawali and
P.P.Rao, S. U.K. Sagar, Ms. Bina Madhavan, Shwetank (for
Lawyers' Knit & Co.), M. Gireesh Kuamar, A.A. Kalebudde,
Vijay Kumar, G.V. Chandrashekar, Purushottam S.T. Sahar
Bakht, Ustav Sidhu, Anjana Chandrashekar, R.S. Hegde, c
Chandra Prakash, Rahul Tyagi, Ashwani Garg, P.P. Singh,
Bhaskar Y.Kulkarni,Ms. K.V. Bharathi Upadhyaya, Dr. Sushil
Balwada, E.C. Vidya Sagar, K.K. Mani, Pantosh Gupta (for
Lawyers' Knit & Co.), Sanjay R. Hegde, A Rohen Singh, Ms.
Deepa Kulkarni and D.P. Chaturvedi for the appearing parties.
D
The Judgment of the Court was delivered by
A.K. PATNAIK, J. Permission to file Special Leave
Petition (C) Nos.18843/2007 and 18846/2007 granted. Delay
condoned and leave granted in the Special Leave Petitions.
E
We also condone the delay in filing the applications for
substitution and allow the applications for substitution. We also
allow the applications for impleadment.
F
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 lnam land in Bangalore District which
was allotted by the State Government to an association of
teachers for construction of houses and for which the Bangalore
Development Authority has sanctioned a lay out plan. The
G
Bangalore Development Authority has filed Civil Appeal
No.3037/2007, the legal representatives of lnamdars have filed
Civil Appeal No.3038/2007, the Teachers' Colony Residents
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[2010} 2 S.CR.
A Association has filed Civil Appeal _tio .•. 3049/2007 and several
owners of the hous_et-sH-es~tlave filed the remaining Civil
Appeals.
Facts
B
3. The relevant facts briefly are that the Mysore (Personal
& Miscellaneous) lnam Abolition Act, 1954 (for short 'the lnam
Abolition Act') was enacted for abolition of personal lnams and
other miscellaneous lnams in the State of Mysore, except Bellari
District. On the lnam Abolition Act coming into force on
C 1.2.1959, all rights, title and interests vested in the lnamdars
ceased and vested absolutely in the State of Mysore free from
911 encumbrances. Every lnamdar, however, was entitled to be
registered as an occupant of land and could make an
application before the Special Deputy Commissioner, lnam
D Abolition, for such registration as an occupant.
4. Sreenivasa Rao and Babu Rao, two lnamdars, filed
applications for registration as occupants in respect of some
lands in Survey Nos. 45 and 47 of Jakkasandra village,
E Bangalore South Taluk. When these applications were pending
before the Special Deputy Commissioner, Kendra Upadhyayara
Sangha (for short 'the Sangha'), an association of teachers,
applied for grant of land for house sites to its members and the
Special Deputy Commissioner, Bangalore District, proposed
grant of land measuring 34 acres 3 guntas in Survey Nos. 45
F and 47 of Jakkasandra village in favour of the Sangha. The
. Divisional Commissioner, Bangalore, while recommending the
proposal of the Special Deputy Commissioner, Bangalore
District, for grant of the land in favour of the Sangha, reported
that the land in question was a Devadaya lnam Land in respect
G of which applications for occupancy rights were still pending
settlement before the Special Deputy Commissioner, lnam
Abolition. The Government of Karnataka in the Revenue
Department by an order dated 15.6.1979 accorded· sanction
for grant of the land measuring 34 acres 3 guntas out of Survey
H Nos.45 and 47 of Jakkasandra village in favour of the General
' ........ ~. .
. ,_,
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 601
MURTHY & ORS. ETC. ETC. [AK. PATNAIK, J.]
Secretary of the Sangha for providing house sites to the
A
Members of the Sangha subject to the decision in the dispute
pending before the Special Deputy Commissioner, lnam
Abolition. The Government also fixed a price of Rs.10,000/- per
acre amounting to Rs.3,40, 750/- for grant of the land and a
conversion fine of Rs.4,000/- per acre in its order dated
B
15.06.1979 and the amounts were deposited by the Sangha.
5. On 4.8.1979, Sreenivasa Rao filed O.S. No.687/1979
in the Civil Court, Bangalore, questioning the grant made by
the State Government in favour of the Sangha and praying for
C
a decree of permanent injunction against the Sangha in respect
of the land. On 1.11.1980, however, Sreenivasa Rao and Babu
Rao entered into an agreement with the Sangha to withdraw
the suit on receipt of Rs.2,000/- per acre in respect of 34 acres
and 3 guntas of land in addition to the amount of Rs.3,40, 750/
D
- deposited by the Sangha towards the price of the entire land
with the Government. Accordingly, on 8.11.1980 Sreenivasa
Rao filed a memo in the Court saying that he does not want to
press O.S. No.687/1979 as the suit has been settled out of court
and on 10.11.1980 the Principal Munsif, Bangalore, dismissed
E
the suit as not pressed.
6. In the meanwhile, the Karnataka lnam Abolition Laws
(Amendment Act) 1979 amended the lnam Abolition Act
providing that the Tribunal constituted under Section 48 of the
Karnataka Land Reforms Act, 1961 (for short 'the Tribunal')
F
instead of the Special Deputy Commissioner, lnam Abolition,
will decide the claims for occupancy rights under the lnam
Abolition Act. Thereafter, the Tribunal by its order dated
23.6.1982 passed in Case No. l.R.F. INA 419/1979-80 decided
the claims of Sreenivasa Rao and Babu Rao for occupancy
G
rights in respect of the land and ordered the confirmation of the
occupancy rights in the suit land in favour of Sreenivasa Rao
and Babu Rao jointly. Pursuant to the order dated 26.6.1982
of the Tribunal, Sreenivasa Rao and Babu Rao withdrew the
amount of Rs.3,40, 750/- deposited with the Government by the
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[2010] 2 S.C.R.
A Sangha. During the years 1982 to 1990, the Sangha got the
layout plan of the land of 34 acres 3 guntas allotted to the
Sangha sanctioned from the Bangalore Development Authority
(for short the 'BOA') and allotted sites to its members and the
members of the Sangha built houses on some of these sites
B and some members also transferred their house sites to others.
7. In the year 1990, however, Nagaraj, Venkojirao and
Narhari, the legal representatives of Sreenivasa Rao filed W.P.
No.11412/1990 in the Karnataka High Court challenging the
C order dated 15.6.1979 of the State Government of Karnataka
granting the land in favour of the Sangha. On 8.7.1992, the legal
representatives of Sreenivas Rao, namely, Nagaraj, Venkojirao
and Narhari also filed the suit O.S. No.4349/1992 for declaring
the grant of the aforesaid land in favour of the Sangha as null
and void and for declaring all acts of the BOA sanctioning the
D layout in respect of the suit land in favour of the Sangha as
illegal and for delivery of vacant possession of the suit land to
them. On 17.6.1995, the three legal representatives of
Sreenivasa Rao filed a memo in the Court of Additional Civil
Judge, Bangalore, for withdrawal of the suit 0.S. No.4349/1992
E and on 24.9.1995 the suit was dismissed as withdrawn by the
Court. On 28.6.1996, W.P. No. 11412/1990 was dismissed by
the learned Single Judge of the Karnataka High Court. Nagaraj,
Venkojirao and Narhari, however, filed Writ Appeal No.7574/
1996 against the order passed by the learned Single Judge
F but the Division Bench of the Karnataka High Court by its order
dated 15.9.1998 after deciding various issues raised by the
parties dismissed the writ appeal. Nagaraj and- Narhari then
filed SLP (G) No.2833/1999 against the order dated 15.9.1998
passed by the Division Bench before this Court. and on
G 9.4.1999 this Court, without issuing notice in the SLP and while
disposing of the SLP, made observations that if the
proceedings pending before the Special Deputy Commissioner
with regard to the claim of lnamdars have ended in favour of
the petitioners who have filed the SLP, it will be open to them
H to approach the State Government for modification of the order
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 603
MURTHY & ORS. ETC. ETC. [A.K. PATNAIK, J.]
granting land to the Sangha. The Teachers' Colony Residents
A
Association (for short the 'Association') which was impleaded
as respondent No.5 in SLP(C) 2833/1999 filed an application
before this Court for recalling the order dated 9.4.1999, but this
Court in its order dated 28.8.2000 in SLP(C) 2833/1999
observed that there was nothing adverse to respondent No.5B
Society and accordingly dismissed the application for recalling.
8. Thereafter, on 6.8.2002 the State Government of
Karnataka directed the Special Commissioner to acquire 14
sites in the layout developed by the Association with a further
direction to the Special Deputy Commissioner to allot 14 sites
C
to the family members of the lnamdars. The owners of the 14
sites filed W.P. Nos.32462-473/2002 in the Karnataka High
Court, challenging the order dated 6.8.2002 of the State
Government and by an order dated 28.11.2002 the learned
Single Judge of the High Court allowed the Writ Petitions and
D
remitted the matter to the State Government with the direction
to comply with the order dated 9.4.1999 of this Court after
hearing the petitioners and the respondents in the writ petitions
and any other person interested in the matter. The legal
representatives of the lnamdars also filed Writ Petition
E
Nos.39046-48/2002 seeking deletion of a condition of the
grant made in their favour, but on 9.1.2003 they withdrew the
writ petitions as not pressed. The State Government of
Karnataka by its order dated 10.2.2003 then directed the
Special Deputy Commissioner to stop construction on the land
F
in dispute till disposal of the final proceedings and this order
dated 10.2.2003 was challenged before the Karnataka High
Court in W.P. No.8551/2003, but by an order dated 6.3.2003
the High Court while dismissing the writ petitions directed the
State Government to decide the matter within two months. The
G
Special Deputy Commissioner then submitted his report to the
Statement Government on 28.5.2003 and when the State
Government did not pass any order in compliance of the order
of this Court in SLP(C) 2833/1999, the lnamdars filed I.A. No.3
in the aforesaid SLP alleging contempt and this Court itisued
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A notice in the I.A. on 8.9.2003.
B
c
D
E
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
lnamdars free of cost.
(b)
The land which is utilized by the BDA for formation
of the ring road has to be acquired by the BOA and
the compensation paid as this was private property.
(c)
The vacant 182 sites which were available as on
the day of the inspection by the Special Deputy
Commissioner, Bangalore, on 28.5.2003 would be
transferred to the lnamdars or if the same was not
available on date, compensation in lieu of it from
Sangha be paid to the lnamdars.
(d)
The Government will examine to allot 20 acres of
land in Survey No.148 of Kudlu village of Jigani
Hobli, Anekal Taluk, to compensate for the losses.
10. This order dated 22.12.2003 of the Minister, Revenue,
Government of Karnataka, was challenged before the
Karnataka High Court by the BOA in W.P. No.15614 of 2004,
the Sangha in W.P. No.26218 of 2004, the Teachers' Colony
F
Residents Association in W.P. No.7332 of 2004 and different
owners of house sites in W.P. Nos.20331, 10303, 12024,
12094, 14771, 14858, 16833, 17883, 20678, 22145, 25372,
32203, 36796 of 2004 and 21620 of 2005. The writ petitions
were heard analogously and decided by a common judgment
G delivered by a Division Bench of the Karnataka High Court on
22.12.2006. The legal representatives of the lnamdars filed
Review Petition No.107/2007 against the common judgment
dated 22.12.2006 of the Division Bench of the Karnataka High
Court but the same was dismissed on 19.04.2007.
H
S. NAGARAJ (DEAD) BY LRS. v. B. R. VASUDEVA 605
MURTHY & ORS. ETC. ETC. [AK. PATNAIK, J.]
Findings in the impugned Judgment of the High Court
A
11. In the impugned judgment dated 22.12.2006, the High
Court has recorded the following findings and conclusions:
(i)
The 34 acres 3 guntas of land in Survey Nos. 45
and 47 of Jakkasandra village, Bangalore South
B
Taluk, did not vest in the Government on 15.6.1979
because the applications of the lnamdars for
registration as occupants in respect of the land
under in Sections 9 and 1 O of the lnam J\bolition
Act were pending before the Special Deputy c
Commissioner and therefore the State Government
had no power to pass the order dated 15.6.1979
according sanction for grant of the land in favour of
the Sangha and the Minister, Revenue, Government
of Karnataka, was justified in passing the order D
dated 22.12.2003 cancelling the grant in favour of
the Sangha and ordering resumption and
restoration of 182 house sites in favour of the
lnamdars pursuant to the order dated 9.4.1999 of
this Court.
E
(ii)
The order dated 15.6.1979 of the State Government
sanctioning the grant of the land in favour of the
Sangha for allotment of house sites to its members
was void ab initio in law as Sections 79-A, 79-B
F
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 lnamdars in respect of land in question
could not be whittled down by the State Government
in exercise of its power under the Karnataka Land
G
Grant Rules, 1969.
(iii)
The Agreement executed by the lnamdars on
1.11.1980 in favour of the Sangha when the claim
of the lnamdars for registration had not been
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B
c
D
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F
G
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[2010] 2 S.C.R.
decided by the Tribunal was not legal and was void
and being an unregistered agreement could not
affect the rights of the lnamdars to immovable
property.
(iv)
The orders passed by the Karnataka High Court in
the earlier proceedings in W.P. No.11412/1990 and
W .A. No. 757 4/1996 do not operate as res judicata
as the case of the lnamdars with reference to the
provisions of the lnam Abolition Act and law laid
down by this Court on various aspects were not
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
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 lnamdars
were maintainable as the order entailed serious
consequences for the allottees/purchasers of the
sites.
(vi)
The order dated 22.12.2003 passed by the
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
S. NAGARAJ (DEAD) BY LRS. v. 8. R. VASUDEVA 607
MURTHY & ORS. ETC. ETC. [A.K. PATNAIK, J.]
have been residing for more than two decades, the
A
reliefs claimed in the writ petitions should be
moulded. The High Court accordingly quashed the
direction in the order dated 22.12.2003 of Minister,
Revenue, Government of Karnataka for resumption
and restoration of 182 sites in favour of the
B
lnamdars and directed the Sangha to allot to each
legal representative of the lnamdars a site
measuring 40 X 60 feet in the same layout and in
lieu of the 182 sites, pay compensation for each
site @ of Rs.1,00,000/- for 30 X 40 feet, c
Rs.1, 75,000/- for 40 X 60 feet or proportional
amount for any other lesser or higher dimension
sites to the legal representatives of the lnamdars
equally.