Art. 226 - Writ Jurisdiction - Cannot be invoked to create right - It is invoked to enforce pre-existing right The primary purpose of the writ is to protect and establish rights, and to impose a corresponding imperative duty existing in law. It is designed to promote justice (ex debito justiceiae) and its grant or refusal is at the discretion of the court. The writ cannot be granted unless it is established that there is an existing legal right of the applicant, or an existing duty of the respondent. Thus, the writ does not lie to crate or establish a legal right but, to enforce one that stood already established. While dealing with a writ petition, the court must exercise discretion, taking into consideration a wide variety of circumstances, inter-alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, and the nature and extent of injury that is likely to ensue by such grant or refusal.
Hence, discretion must be exercised by the court on grounds of public policy, public interest and public good. The writ is equitable in nature and thus, its issuance is governed by equitable principles. Refusal of relief must be for reasons which would lead to injustice. The prime consideration for issuance of the writ is, whether or not substantial justice will be promoted. Furthermore, while granting such a writ, the court must make every effort to ensure from the averments of the writ petition, whether proper pleadings are being made. Further in order to maintain the writ of mandamus, the first and foremost requirement is that, the petition must not be frivolous and it is filed in good faith. Additionally, the applicant must make a demand which is clear, plain and unambiguous. It must be made to an office having the requisite authority to perform the act demanded. Furthermore, the authority against whom mandamus is issued, should have rejected the demand earlier. Therefore, a demand and its subsequent refusal, either by words, or by conduct are necessary to satisfy the court that the opposite party is determined to ignore the demand of the applicant with respect to the enforcement of his legal right. However, a demand may not be necessary when
the same is manifest from the facts of the case, that is, when it is an empty formality, or when it is obvious that the opposite party would not consider the demand.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7254 OF 2003
The Rajasthan State Industrial Development
…Appellant and Investment Corporation
Versus
Subhash Sindhi Cooperative Housing Society …Respondents
Jaipur & Ors.
WITH
CIVIL APPEAL NO. 853 OF 2013
Citation: 2013III AD (S.C.) 29, AIR2013SC1226, 2013ALT (Rev.) 117, 2013 4 AWC4110SC, 2013(2)CDR465(SC), JT2013(3)SC1, 2013(5)MhLj61, 2013(3)MPLJ591, 2013(2)SCALE434, (2013)5SCC427
Dr. B. S. CHAUHAN, J.
1. These appeals have been preferred against the impugned judgment
and order dated 30.7.2002 passed by the High Court of Rajasthan
(Jaipur Bench) in Civil Writ Petition No. 454 of 1993, by which the
High Court has issued directions to the Rajasthan State Industrial
Development and Investment Corporation (in short `RIICO’), the
appellant herein, to release the land in dispute from land acquisition
in favour of respondent No.1 - housing society (hereinafter referred
to as `the society’).
2. As both the appeals have been preferred against the common
impugned judgment, for convenience, Civil Appeal No. 7254 of 2003 is
taken to be the leading case. The facts and circumstances giving rise
to this appeal are :
A. That, a huge area of land admeasuring 607 Bighas and 5 Biswas
situate in the revenue estate of villages Durgapura, Jhalan Chod,
Sanganer and Dhol-ka-Bad in District Jaipur, including the suit land
measuring about 17 Bighas and 9 Biswas in village Durgapura stood
notified under Section 4(1) of the Rajasthan Land Acquisition Act,
1953 (hereinafter referred to as the `Act’) on 18.7.1979, for a public
purpose i.e. industrial development, to be executed by the RIICO.
B. The respondent society claims to have entered into an agreement
to sell with the Khatedars of the suit land on 21.7.1981.
C. Declaration under Section 6 of the Act was made on 22.6.1982 for
the land admeasuring 591 Bighas and 17 Biswas. After meeting all
requisite statutory requirements contained in the Act, possession of
the land, including the land in dispute was taken by the Government
and was subsequently handed over to RIICO, on 18.10.1982 and
17.11.1983. The Land Acquisition Collector assessed the market value
of the land of the Khatedars, and made an award on 14.5.1984. Vide
allotment letter dated 10.3.1988, RIICO, made allotment of land
admeasuring 105 acres of the land, out of the total acquired land
measuring 591 Bighas, to Diamond & Gem Development Corporation Ltd., a
Private Ltd. Company (hereinafter referred to as the ‘Company’),
respondent no. 37, to facilitate the establishment of a Gem
Industrial Estate for the manufacturing of Gem stones. This piece of
land included within it, the land which was subject matter of an
agreement to sell between the respondent society and the original
khatedars.
D. Acquisition proceedings emanating from the Section 4
Notification dated 18.7.1979, were challenged by the respondent
society, as well as by the khatedars jointly in 1989, by filing of
Writ Petitions before the High Court of Rajasthan at Jodhpur. A lease
deed was executed by appellant-RIICO in favour of the company-
respondent No.37 in relation to 105 acres of land on 22.5.1989,
including the land in question, which is comprised of Khasra Nos. 226
to 230 is village Durgapura. The aforementioned writ petitions filed
by the respondent society and the original khatedars, challenging the
land acquisition proceedings stood dismissed on the ground of delay
and latches, vide judgment and order dated 21.8.1990 passed by the
High Court.
E. Aggrieved, the respondent society and one khatedar filed SLPs
before this Court challenging the judgment and order dated 21.8.1990.
This Court vide order dated 9.9.1992 dismissed the said SLPs, however,
while doing so, the Court made an observation that the dismissal of
the said SLPs, would not operate as res-judicata if the society
approaches the court for release of their land on the ground that
lands owned by similar set of individuals or institutions, if any, has
been released from acquisition. Such a direction was issued in view
of the submissions made by the respondent society, stating that
allotment of the said land in favour of the Company had been made
fraudulently.
F. In view thereof, the society filed a Writ Petition No. 454 of
1993 praying for release of the land admeasuring 17 Bighas and 9
Biswas in Khasra Nos. 226 to 230, in revenue estate of village
Durgapura or in the alternative, for the allotment of equivalent
suitable land, and also for the cancellation of the allotment of 105
acres of land in favour of the Company. The writ petition was
contested by the appellants on the grounds that the respondent society
had no locus standi to challenge the acquisition proceedings which had
attained finality upto this Court; the transfer of land by the
khatedars to the respondent society was void; the respondent society
could not claim parity with other persons/societies, whose land
stood released for bonafide reasons on good grounds. The High Court
heard the said writ petition alongwith another writ petition that had
been filed by the Company, which will be dealt with separately.
During the pendency of the writ petition, certain other developments
took place, that is, the allotment of land made in favour of the
Company, was cancelled by the appellant vide order dated 1.10.1996,
and possession of the same was taken over from it on 3.10.1996.
G. The Division Bench of the High Court allowed the said writ
petition vide judgment and order dated 30.7.2002, thereby releasing
land admeasuring 17 Bighas and 9 Biswas in favour of the respondent
society.
Hence, this appeal.
3. Shri Dhruv Mehta, learned senior counsel appearing on behalf of
the appellant-RIICO, and Shri Manish Singhvi, learned Additional
Advocate General for the State of Rajasthan, have submitted that
challenge to the acquisition proceedings emanating from the Section 4
Notification dated 18.7.1979 had attained finality upto this Court.
However, this Court vide order dated 9.9.1999 had granted very
limited relief to the respondent-society, to the extent that it could
approach the court for release of its land only on the ground of
discrimination qua other tenure holders, whose land stood released and
that the dismissal of the SLP would not operate as res-judicata. The
society had not made any representation before the filing of the first
or the second writ petition, before any appropriate authority for
release of the said land, nor had it raised issue with respect to any
form of discrimination suffered by it. The High Court also did not
consider the case on the basis of any ground of discrimination
whatsoever, rather made a bald observation, stating that as the land
of the other tenure holders had been released, the society too, was
entitled for similar relief. Such an order is not justified for the
reason that court did not compare the facts of two sets of the
parties.
Article 14 is not meant to perpetuate an illegality or fraud.
Moreover, it is to be established that discrimination was made
cautiously. The agreement to sell dated 21.7.1981 in favour of the
respondent-society did not create any title in favour of the society.
Furthermore, any sale subsequent to a Section 4 Notification with
respect to the said land, is void. An agreement to sell, or to
execute any transfer of such land is barred by the Rajasthan Lands
(Restrictions on Transfer) Act, 1976 (hereinafter referred to as, the
`Act 1976’). At the most, the High Court could have directed
consideration of the representation of the society, if there was any,
but it most certainly could not have issued direction to release the
said land itself. The Society had approached the High Court, Jodhpur
(main seat) though, petition could be filed only before the Jaipur
Bench as the suit land situate at Jaipur and all relevant
orders/notifications were issued at Jaipur. Thus, the present appeals
deserve to be allowed.
4. Per contra, Shri Rakesh Dwivedi, learned senior counsel
appearing on behalf of the respondent – society and its members, has
submitted that a representation was in fact made by the society, but
the same was not considered by the State Government, and that the
award made in respect of the land itself, clearly revealed that some
land was released by the government, in favour of various persons and
institutions. The respondent society had therefore, been
discriminated against, by the State authorities. The respondent-
society is entitled for the relief on the basis of the Government
Orders, (hereinafter referred to as G.Os.) provided for release of the
land of Group Housing Societies, if under acquisition. Technical
issue must not be entertained by this Court, as the second writ
petition has been filed under the liberty granted by this Court. Thus,
the present appeals lack merit and are liable to be dismissed.
5. Mr. P.S. Patwalia, learned senior counsel appearing on behalf of
the Company, respondent no. 37, has submitted that the High Court has
directed to release the land in favour of the respondent – society,
from the land which was allotted to the Company, and that Company has
no objection to the order passed by the High Court, releasing a
particular piece of land in favour of the society. Thus, the appeals
are liable to be dismissed.
6. We have considered the rival submissions made by the learned
counsel for the parties and perused the records.
It is a settled legal proposition that acquisition proceedings
cannot be challenged at a belated stage. In the instant case, the
earlier writ petition filed by the society and the khatedars jointly,
was dismissed by the High Court only on the ground of delay. This
Court upheld the said judgment and order, while granting the said
parties liberty to challenge the acquisition afresh, on the ground of
discrimination alone.
7. There can be no quarrel with respect to the settled legal
proposition that a purchaser, subsequent to the issuance of a Section
4 Notification in respect of the land, cannot challenge the
acquisition proceedings, and can only claim compensation as the sale
transaction in such a situation is Void qua the Government. Any such
encumbrance created by the owner, or any transfer of the land in
question, that is made after the issuance of such a notification,
would be deemed to be void and would not be binding on the Government.
(Vide: Gian Chand v. Gopala & Ors., (1995) 2 SCC 528; Yadu Nandan
Garg v. State of Rajasthan & Ors., AIR 1996 SC 520; Jaipur Development
Authority v. Mahavir Housing Coop. Society, Jaipur & Ors. (1996) 11
SCC 229; Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal
Jain & Ors., (1997) 1 SCC 35; Meera Sahni v. Lieutenant Governor of
Delhi & Ors., (2008) 9 SCC 177; Har Narain (Dead) by Lrs. v. Mam Chand
(Dead) by LRs. & Ors., (2010) 13 SCC 128; and V. Chandrasekaran & Anr.
v. The Administrative Officer & Ors., JT 2012 (9) SC 260).
8. Thus, in the instant case, the respondent-society, and its
members, have to satisfy the court as regards their locus standi with
respect to maintenance of the writ petition on any ground whatsoever,
as none of the original khatedars has joined the society in
subsequent petition.
9. In Smt. Kalawati v. Bisheshwar, AIR 1968 SC 261, this Court
held:
"Void means non-existent from its very inception."
10. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth,
Naduvil (dead) & Ors., AIR 1996 SC 906, this Court held:
"The word "void" has a relative rather than an absolute
meaning. It only conveys the idea that the order is invalid
or illegal. It can be avoided. There are degrees of
invalidity, depending upon the gravity or the infirmity, as
to whether it is, fundamental or otherwise.”
11. The word, “void” has been defined as: ineffectual; nugatory;
having no legal force or legal effect; unable in law to support the
purpose for which it was intended. (Vide: Black's Law Dictionary). It
also means merely a nullity, invalid; null; worthless; sipher; useless
and ineffectual and may be ignored even in collateral proceeding as if
it never were.
The word “void” is used in the sense of incapable of
ratification. A thing which is found non-est and not required to be
set aside though, it is sometimes convenient to do so. There would be
no need for an order to quash it. It would be automatically null and
void without more ado. The continuation orders would be nullities too,
because no one can continue a nullity. (Vide: Behram Khurshid Pesikaka
v. State of Bombay, AIR 1955 SC 123; Pankaj Mehra & Anr. v. State of
Maharashtra & Ors., AIR 2000 SC 1953; Dhurandhar Prasad Singh v. Jai
Prakash University & Ors., AIR 2001 SC 2552; and Government of Orissa
v. Ashok Transport Agency & Ors., (2002) 9 SCC 28).
12. Even if the lands of other similarly situated persons has been
released, the society must satisfy the court that it is similarly
situated in all respects, and has an independent right to get the land
released. Article 14 of the Constitution does not envisage negative
equality, and it cannot be used to perpetuate any illegality. The
doctrine of discrimination based upon the existence of an enforceable
right, and Article 14 would hence apply, only when invidious
discrimination is meted out to equals, similarly circumstanced without
any rational basis, or to relationship that would warrant such
discrimination. (Vide: Smt. Sneh Prabha & Ors. v. State of U.P. &
Anr., AIR 1996 SC 540; Yogesh Kumar & Ors. v. Government of NCT Delhi
& Ors., AIR 2003 SC 1241; State of West Bengal & Ors. v. Debasish
Mukherjee & Ors., AIR 2011 SC 3667; and Priya Gupta v. State of
Chhattisgarh & Ors., (2012) 7 SCC 433).
13. The respondent society has placed reliance upon various
policies of the Government, which allowed the exemption of land upon
which construction existed on the date of issuance of Section 4
Notification. In the instant case, the respondent society entered
into an agreement to sell, subsequent to the issuance of the Section 4
Notification, and therefore, the question of the existence of any
construction on the said land by any of its members on the date of
Section 4 Notification does not arise. The aforesaid policy decision
therefore, must be implemented, while strictly adhering to the terms
incorporated therein, as has been held by this Court in Bondu
Ramaswamy & Ors. v. Bangalore Development Authority & Ors., (2010) 7
SCC 129. In the said case, this Court examined the issue of
discrimination with respect to releasing land belonging to one set of
interested persons, while rejecting the release of land belonging to
other similarly situated persons, whose land was situated in close
vicinity to the land released. The Court held:
“We are conscious of the fact that when a person subjected
to blatant discrimination, approaches a court seeking equal
treatment, he expects relief similar to what others have
been granted. All that he is interested is getting relief
for himself, as others. He is not interested in getting the
relief illegally granted to others, quashed. Nor is he
interested in knowing whether others were granted relief
legally or about the distinction between positive equality
and negative equality. In fact he will be reluctant to
approach courts for quashing the relief granted to others
on the ground that it is illegal, as he does not want to
incur the wrath of those who have benefited from the wrong
action. As a result, in most cases those who benefit by the
illegal grants/actions by authorities, get away with the
benefit, while others who are not fortunate to have
“connections” or “money power” suffer. But these are not
the grounds for courts to enforce negative equality and
perpetuate the illegality”
(Emphasis added)
14. The Respondent society claims to have applied before the Jaipur
Development Authority (hereinafter referred to as the ‘JDA’) and
deposited requisite charges etc. for regularisation of their proposed
scheme as per G.Os. issued by the State Government, also for providing
relief to the societies that had no construction on the land which
belonged to them, on the date of initiation of acquisition
proceedings. However, there is nothing on record to show that the
society had ever applied for release of the said land before the
Competent Authority i.e. Secretary to the Department of Industries,
Rajasthan, who had initiated the acquisition proceedings under the
Act. Furthermore, the society is not in a position to show that the
societies whose lands stood released, were similarly situated to
itself in all respects, i.e., such Societies had no title over the
land, and had in fact, entered into an agreement to sell subsequent to
the issuance of the Notification under Section 4 of the Act.
15. This Court explained the phrase “discrimination” in Narmada
Bachao Andolan v. State of Madhya Pradesh & Anr., AIR 2011 SC 1989
observing :
“66. Unequals cannot claim equality. In Madhu Kishwar and
Ors. v. State of Bihar and Ors., AIR 1996 SC 1864, it has
been held by this Court that every instance of
discrimination does not necessarily fall within the ambit
of Article 14 of the Constitution.
67. Discrimination means an unjust, an unfair action in
favour of one and against another. It involves an element
of intentional and purposeful differentiation and further
an element of unfavourable bias; an unfair classification.
Discrimination under Article 14 of the Constitution must be
conscious and not accidental discrimination that arises
from oversight which the State is ready to rectify. (Vide:
Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123;
and M/s Video Electronics Pvt. Ltd. and Anr. v. State of
Punjab and Anr., AIR 1990 SC 820).
68. However, in Vishundas Hundumal and Ors. v. State of
Madhya Pradesh and Ors., AIR 1981 SC 1636; and Eskayef Ltd.
v. Collector of Central Excise, (1990) 4 SCC 680, this
Court held that when discrimination is glaring, the State
cannot take recourse to inadvertence in its action
resulting in discrimination. In a case where denial of
equal protection is complained of and the denial flows from
such action and has a direct impact on the fundamental
rights of the complainant, a constructive approach to
remove the discrimination by putting the complainant in the
same position as others enjoying favourable treatment by
inadvertence of the State authorities, is required.”
(Emphasis added)
16. Thus, a party seeking relief on the ground of discrimination
must take appropriate pleadings, lay down the factual foundation and
must provide details of the comparable cases, so that the court may
reach a conclusion, whether the authorities have actually
discriminated against that party; and whether there is in fact any
justification for discrimination, assessing the facts of both sets of
cases together.
17. The primary purpose of the writ is to protect and establish
rights, and to impose a corresponding imperative duty existing in law.
It is designed to promote justice, (ex debito justiceiae) and its
grant or refusal is at the discretion of the court. The writ cannot be
granted unless it is established that there is an existing legal right
of the applicant, or an existing duty of the respondent. Thus, the
writ does not lie to create or establish a legal right but, to enforce
one that stood already established. While dealing with a writ
petition, the court must exercise discretion, taking into
consideration a wide variety of circumstances, inter-alia, the facts
of the case, the exigency that warrants such exercise of discretion,
the consequences of grant or refusal of the writ, and the nature and
extent of injury that is likely to ensue by such grant or refusal.
Hence, discretion must be exercised by the court on grounds of
public policy, public interest and public good. The writ is equitable
in nature and thus, its issuance is governed by equitable principles.
Refusal of relief must be for reasons which would lead to injustice.
The prime consideration for issuance of the writ is, whether or not
substantial justice will be promoted. Furthermore, while granting such
a writ, the court must make every effort to ensure from the averments
of the writ petition, whether proper pleadings are being made. Further
in order to maintain the writ of mandamus, the first and foremost
requirement is that, the petition must not be frivolous and it is
filed in good faith. Additionally, the applicant must make a demand
which is clear, plain and unambiguous. It must be made to an officer
having the requisite authority to perform the act demanded.
Furthermore, the authority against whom mandamus is issued, should
have rejected the demand earlier. Therefore, a demand and its
subsequent refusal, either by words, or by conduct are necessary to
satisfy the court that the opposite party is determined to ignore the
demand of the applicant with respect to the enforcement of his legal
right. However, a demand may not be necessary when the same is
manifest from the facts of the case, that is, when it is an empty
formality, or when it is obvious that the opposite party would not
consider the demand. (Vide: Commissioner of Police, Bombay v.
Govardhandas Bhanji, AIR 1952 SC 16; Praga Tools Corporation v. Shri
C.V Imanual & Ors., AIR 1969 SC 1306; Punjab Financial Corporation v.
Garg Steel, (2010) 15 SCC 546; Union of India & Ors. v. Arulmozhi
Iniarasu & Ors., AIR 2011 SC 2731; and Khela Banerjee & Anr. v. City
Montessori School & Ors., (2012) 7 SCC 261).
18. This Court in General Officer Commanding v. CBI & Anr., AIR 2012
SC 1890, explained the phrase “good faith” :
“…Good faith has been defined in Section 3(22) of the
General Clauses Act, 1897, to mean a thing which is, in
fact, done honestly, whether it is done negligently or not.
Anything done with due care and attention, which is not
malafide, is presumed to have been done in good faith. There
should not be personal ill-will or malice, no intention to
malign and scandalize. Good faith and public good are though
the question of fact, it required to be…..In Brijendra Singh
v. State of U.P. & Ors., AIR 1981 SC 636, this Court while
dealing with the issue held:
“In the popular sense, the phrase 'in good faith' simply
means ;honestly, without fraud, collusion, or deceit;
really, actually, without pretence and without intent to
assist or act in furtherance of a fraudulent or otherwise
unlawful scheme….. It is a cardinal canon of construction
that an expression which has no uniform, precisely fixed
meaning, takes its colour, light and content from the
context.”
Thus, it is evident that a writ is not issued merely as is legal
to do so. The court must exercise its discretion after examining pros
and cons of the case.
19. Executive instructions which have no statutory force, cannot
override the law. Therefore, any notice, circular, guidelines etc.
which run contrary to statutory laws cannot be enforced. (Vide: B.N.
Nagarajan & Ors., etc. v. State of Mysore and Ors. etc., AIR 1966 SC
1942; Sant Ram Sharma v. State of Rajasthan & Ors., AIR 1967 SC 1910;
Secretary, State of Karnataka & Ors. v. Umadevi & Ors., AIR 2006 SC
1806; and Mahadeo Bhau Khilare (Mane) & Ors. v. State of Maharashtra &
Ors., (2007) 5 SCC 524).
20. During the hearing of the case if it is pointed out to the court
that the party has raised the grievance before the
statutory/appropriate authority and the authority has not decided the
same, it is always warranted that the court may direct the said
authority to decide the representation within a stipulated time by a
reasoned order. However, it is not desirable that the court take upon
itself the task of the statutory authority and pass an order. (Vide:
G. Veerappa Pillai v. Raman and Raman Ltd. & Ors., AIR 1952 SC 192;
Life Insurance Corporation of India v. Mrs. Asha Ramchandra Ambedkar &
Anr., AIR 1994 SC 2148; H.P. Public Service Commission v. Mukesh
Thakur & Anr., AIR 2010 SC 2620; and Manohar Lal (D) by Lrs. v.
Ugrasen (D) by Lrs. & Ors., JT 2011 (12) SC 41).
21. The instant case, requires to be examined in the light of
aforesaid settled legal propositions.
The material on record revealed, that after entering into an
agreement to sell just after the Section 4 Notification in respect of
the suit land was issued, the respondent society submitted a plan for
approval before the JDA, and also applied for conversion of the user
of the land before the Revenue Authority. In relation to this, it
also deposited requisite conversion charges on 13.8.1986. However, as
certain developments took place in the interim period, and the
Government of Rajasthan made a public advertisement dated 27.2.1982,
asking people to get their agricultural land converted to land to be
used for non-agricultural purposes. Circular dated 1.3.1982 issued by
the Government of Rajasthan enabled the persons/tenure holders seeking
conversion and regularization. The Circular also provided that land
covered by buildings or by any constructed area as on the cut-off
date, i.e. 20.8.1981 would also be exempted from acquisition
proceedings, if any. Similar benefits were conferred upon those who
were purchasers of land subsequent to the issuance of a Section 4
Notification, though such transfer was void. The benefit was also
extended to cooperative housing societies, which had made certain
developments and constructions prior to the said cut-off date i.e.
20.8.1981, and even to those areas where no construction was made or
even where no sale deed had been executed, but there existed an
agreement to sell prior to 20.8.1981.
22. More so, the relevant part of the Circular dated 1.3.1982 issued
by the Revenue Department, Government of Rajasthan, reads as under:
“….Land acquisition notifications are statutorily issued by
the Administrative Department of the State Government and
therefore the lands which are proposed to be de-acquired
will have to be notified by the Government itself.”
(Emphasis added)
Thus, it is evident from the Circular that even if, the
Government wanted to exempt the land, it would require a notification
by the Government. Law provides a notification under Section 48 of the
Land Acquisition Act, 1894, (hereinafter called as `Act 1894’) or
abandonment of the land acquisition proceedings by the State but it is
permissible only prior to taking possession of the land. Once the land
is vested in the State free from all encumbrances it cannot be
divested. Therefore, we do not find any force in the submission
advanced on behalf of the respondent-society that they were entitled
for release of the land.
The object and purpose of issuing such circulars could be to
regularise the construction of residential houses where the land was
sought to be acquired for residential purposes. Various states have
issued circulars to meet such a situation. However, such a
construction should be in consonance with the development scheme, or
may be compatible with certain modification. Even in absence of such
schemes, this Court has dealt with the issue and held that where the
land is acquired for establishing residential, commercial, or
industrial area and the application for release of the land reveal
that the land has been used for the same purpose, the Government may
release the land, if its existence does not by any means hinder
development as per the notification for acquisition. (Vide : Union of
India & Anr. v. Bal Ram Singh & Anr., 1992 Suppl (2) SCC 136; Sube
Singh & Ors. v. State of Haryana & Ors., (2001) 7 SCC 545; Jagdish
Chand & Anr. v. State of Haryana & Anr., (2005) 10 SCC 162; and
Dharam Pal v. State of Haryana & Ors., (2009) 2 SCC 397).
In the instant case land has been acquired for industrial
development. The respondent-society wants the said land for
developing the residential houses. Therefore, such a demand is not
worth acceptance.
23. Be that as it may, there can be no estoppel against the law or
public policy. The State and statutory authorities are not bound by
their previous erroneous understanding or interpretation of law.
Statutory authorities or legislature cannot be asked to act in
contravention of law. “The statutory body cannot be estopped from
denying that it has entered into a contract which was ultra vires for
it to make. No corporate body can be bound by estoppel to do something
beyond its powers, or to refrain from doing what it is its duty to
do.” Even an offer or concession made by the public authority can
always be withdrawn in public interest. (Vide: State of Madras & Anr.
v. K.M. Rajagopalan, AIR 1955 SC 817; Badri Prasad & Ors. v. Nagarmal
& Ors., AIR 1959 SC 559; and Dr. H.S. Rikhy etc. v. The New Delhi
Municipal Committee, AIR 1962 SC 554).
In Surajmull Nagoremull v. Triton Insurance Co. Ltd., AIR 1925
PC 83, it was held as under:
“..No court can enforce as valid, that which competent
enactments have declared shall not be valid, nor is
obedience to such an enactment a thing from which a court
can be dispensed by the consent of the parties or by a
failure to plead or to argue the point at the outset...”
A similar view was re-iterated by the Privy Council in Shiba
Prasad Singh v. Srish Chandra Nandi, AIR 1949 PC 297.
Thus, in view of the above, we are of the considered opinion
that the respondent-society is not entitled to take any advantage of
those illegal circulars.
24. There was correspondence between the JDA and the appellant
RIICO, and also other departments. There were also meetings held with
higher officials of the State Government, including the Chief Minister
but despite this, the land of the appellant was not released.
It was in fact, after the order of this Court dated 9.9.1992,
that the respondent society sent a telegram dated 17.10.1992, to the
Chief Secretary demanding justice, and there was no request made to
the Competent Authority to release the said land in its favour.
Immediately thereafter, the second writ petition was filed. It is
pertinent to mention here, that the said telegram cannot be termed a
comprehensive representation. It does not furnish any detail, or give
any reason, with respect to how not releasing the land of the society
could amount to violative of any provision of the Constitution of
India including Article 14. It also did not disclose any comparable
cases, where land belonging to persons/institutions who were similarly
situated to itself, stood released. The said telegram reads as under:
“Only our land Khasra Nos. 226 to 230 at village Durgapura
without notice to us or Khatedar was ex-parte acquired under
award dated 14.5.84 leaving all others land of Durgapura
notified earlier. Perpetrating discrimination despite contrary
directions by J.D.A. under Chairmanship of Chief Minister – 105
acre including our land was fraudulently and in abuse of power
were allotted by RIICO to Diamond and Gem Development
Corporation (DGDC) in a biggest land scandal with collusive acts
of officials of RIICO. The said DGDC is in big way encroaching
on our land despite the knowledge and notice of order dated
9.9.92 in SLP No. 165, 67-69/90 - Banwarilal and Or. v. State
of Rajasthan & Ors. Kindly quash allotment of 105 acre land to
DGDC and return land Khasra Nos. 226 to 230 or equivalent land
to us within seven days and meanwhile stop all encroachment on
our land failing which filing writ petitions in Hon’ble High
Court pursuant to Supreme Court order dated 9.9.92 at your cost
and consequences.
Subhash Sindhi Housing Co-operative Society Ltd. and its
Members through K.K. Khanna Advocate.”
25. When the writ petition was filed, the High Court asked the
respondent therein, to furnish an explanation of the alleged
discrimination claimed by it. The authorities thereafter, filed
affidavits, stating that the fact could be ascertained from the award
dated 14.5.1984 itself. The relevant portion thereof reads as under:
“The Deputy Secretary Industries (Group I) Department Rajasthan
Jaipur released from acquisition the land in Durgapura, Khasra
No. 137, measuring 6 Bigha 2 Biswas in village Jaland chod,
Khasra No. 124 measuring 2 Bighas 4 Biswas, Khasra No. 2389
measuring 1 Bigha – 2 Biswas, Khasra No. 250, measuring 0.05
Biswas, 261 measuring 0.08 Biswas in village Dolka Abad Khasra
No. 44 measuring 1 Bigha 11 Biswas, Khasra No. 45 measuring 2
Bigha 11 Biswas, Khasra No. 45 measuring 2 Bigha, 13 Biswas,
vide his order Nos. P-(4)/IND/75 dated 19.10.1981 No.
P(4)Ind/1/79 dated 1.1.1982 and No. P5(4) Ind/75 dated 22.6.82.
Besides the Industries Department also released from acquisition
the total land measuring 126 Bighas 13 Biswas vide notification
P5 (4)/Ind/1/75 dated 31.7.1982 in village Jalana Chod of
Khasra No. 177, 181, 182, 184, 185, 186 and 180 min,. and 187,
the land which is acquired by the Rajasthan Housing Board. All
these lands was de-acquired under Section 48 of the Act whose
possession was not taken by concerned Department. Assistant
Manager (adarboot) RIICO Jaipur vide his letter No. IPI/3/6-76
dated 31.10.1983 to Deputy Secretary Industries Department
Rajasthan Government recommended release for acquisition of
Khasra No. 126 Min. measuring 2 Bighas as there being no passage
and there godown being situated there. Therefore, it is not
possible to consider this till final orders are received. Only
after the receipt of the final decision of the concerned
department further action can be possible.”
26. It is thus evident from the award itself, that land admeasuring
126 Bighas 13 Biswas was de-notified on 31.7.1982, in the village
Jalana Chod, for the reason that the said land had also been notified
under the Act for some other public purpose, i.e., the same had been
acquired for the Rajasthan Housing Board, and therefore, such land was
de-notified under Section 48 of the Act 1894. In other cases, small
pieces of land measuring 6 bighas 2 biswas, and 2 bighas and 4 biswas
were also released, for the reason that construction existed on some
of this land and the other piece of land was found to be entirely land-
locked, with no passage to access it.
27. A large number of issues were agitated before the High Court,
however, the High Court did not deal with any of those. The Court
allowed the petition merely observing:
“The petitioner Subhash Sindhi Cooperative Housing Society is
contesting only for a limited piece of land measuring 17 Bighas
9 Biswas which had been acquired and given to DGDC by the RIICO.
The case of the society is that in view of the observations made
by the Supreme Court in its order, it has pleaded its case in
this petition on the basis that the other land which had been
acquired had been released or it stood de facto released and the
government was itself a party to it in releasing the acquired
land and large number of lands of this nature de facto stood
released from acquisition inasmuch as houses have been
constructed thereon; the Government itself has acquiesced with
such construction and has also taken steps for regularisation of
such construction and the decision which was taken by the JDA in
the meeting headed by the Chief Minister was implemented qua all
others except the land of petitioner Society, merely because the
petitioner society’s land had been given to DGDC/RIICO. This
small piece of land which is claimed by the society in the facts
and circumstances of the case, can very well be restored to the
Society and to that extent, land allotted to DGDC can be
curtailed without having any adverse impact on the prospects of
business of DGDC. Facts have come on record through documents
that to start with, DGDC had demanded only 35 acres of land.
This demand was raised from time to time and ultimately, it
reached upto 105 acres. It is also on record that the RIICO had
given only 80 acres of land to DGDC as against the allotment of
105 acres. In such a situation, if a small piece of land
measuring 17 Bighas 9 Biswas out of the land allotted to DGDC is
restored back to the petitioner Society it cannot have any
adverse impact on the business prospects of DGDC nor the RIICO
may have any just objection and the State Government which has
already acquiesced with the release of such acquired lands in
large number of cases, cannot have any legitimate case to
contest the grant of relief to the petitioner society and the
petitioner Society is found to be entitled for the same on the
principles of parity as well as equity.”
28. The High Court had asked the authorities of the appellant-RIICO
to provide an explanation regarding the release of land in village
Durgapura, and in its reply to the said order, an additional affidavit
was filed. The High Court, after taking note of the same held as
under:
“As per the acquisition proceedings which commenced in July,
1979, the land which was sought to be acquired in Village
Durgapura, was 119 Bighas 4 Biswas.
- The land (of which possession was not taken) measured 12 Bighas
& Biswas (comprised in Khasra Nos. 126, 128, 129, 137, 153 and
156).
- Land of which possession was taken 106 Bighas 18 Biswas.
- Land for which acquisition proceedings were quashed as per the
judgment rendered on 12.7.79 in CWP No. 324/89 i.e. S.D. Agarwal
v. State of Rajasthan) 20 Bighas
- And thus, the balance land remained 86 Bighas 18 Biswas.
- Land belonging to the petitioner Subhash Sindhi Cooperative
Housing Society Ltd. – 17 Bighas 9 Biswas.
- After deducting this land measuring 17 Bighas 9 Biswas from the
balance land of 86 Bighas 18 Biswas, the remaining land measures
69 Bighas 9 Biswas and this is the land of which although
possession was taken during the acquisition proceedings
somewhere in 1982-83 yet on submission of the scheme plans by
various Cooperative Housing Societies much after taking of the
possession plans were approved in compliance of various orders
issued by the Government of Rajasthan after 1986.
- Compensation to the recorded khatedars of the land was also paid
in terms of the award dated 14.5.1984 and the amount was duly
received by the khatedars/persons having interest in the land.
29. The High Court herein above, has observed that land admeasuring
69 Bighas 9 Biswas of which possession had been taken in acquisition
proceedings, stood released in favour of various group housing
societies in view of the G.Os. issued after 1986, on extraneous
considerations. Such observation is not based on any material
whatsoever. Learned counsel appearing for the society could not
point out any document on record, on the basis of which such an
observation could be made. Same remained the position when the High
Court held, that it was evident from the documents on record that the
tenure holders whose land had been acquired, could not be paid
compensation for the reason “that there was shortage of funds with the
government”. While recording the aforesaid findings, reliance was
placed on the affidavit filed by the officers of the appellant.
However, there is no such averment in the said affidavit. There are
claims and counter claims regarding the payment of compensation, as
there are some documents on record to show that compensation had been
deposited by the appellant-RIICO, in favour of the predecessor-in-
interest of the society in the court.
30. Be that as it may, the High Court has not recorded any finding
to the effect that the land referred to hereinabove (in village
Durgapura), which stood released from acquisition proceedings, was
also acquired by group housing societies subsequent to the issuance of
the Section 4 Notification, or the society had acquired interest in
the same on the basis of an agreement to sell, or on any other ground
similar to those raised by the respondent society. The situation of
societies whose land stood released, was not compared with the case of
the respondent society. Moreover, in case the government had assured
such release by issuing several circulars or floating schemes, and the
application of the respondent society was in fact pending before the
authority concerned, the court ought to have directed the authority to
consider the same. But the court, in such facts could not decide the
case itself.
31. In the instant case, at the initial stage, the writ petition was
filed before the High Court at Jodhpur. Admittedly, the land is
situated in the heart of the Jaipur city, and all relevant orders
including notifications for acquisition were issued at Jaipur. The
writ petition ought to have been filed before the Jaipur Bench as per
the statutory requirements therein. Learned counsel appearing for the
parties could not furnish any explanation, as under what circumstances
the first writ petition had been filed by the society alongwith tenure-
holders at Jodhpur. Therefore, we are not only doubtful regarding the
sanctity of the order passed by the High Court rather, it creates
doubt about the bonafides of the parties and further, as to whether
such a move could have been made in good faith.
This Court has on various occasions dealt with the similar
situation and explained as where the writ petition is maintainable.
(See: Sri Nasiruddin v. State Transport Appellate Tribunal, AIR 1976
SC 331; U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow, v.
State of U.P. & Ors., AIR 1995 SC 2148; Rajasthan High Court Advocates
Association v. Union of India & Ors., AIR 2001 SC 416; and Dr. Manju
Verma v. State of U.P. & Ors., (2005) 1 SCC 73).
32. In the instant case, the government itself labeled the sale
deeds, executed after issuance of Section 4 Notification as Void, we
fail to understand as for what reasons the State authorities could
think to regularise such orders. The right to administer, cannot
obviously include the right to maladminister. Thus, we find no words
to express anguish as what kind of governance it had been. (Vide: In
Re: The Kerala Education Bill, 1957, AIR 1958 SC 956; All Bihar
Christian Schools Association & Anr. v. State of Bihar & Ors., AIR
1988 SC 305; Sindhi Education Society & Anr. v. The Chief Secretary,
Govt. of NCT of Delhi & Ors., (2010) 8 SCC 49; and State of Gujarat &
Anr. v. Hon’ble Mr. Justice R.A. Mehra (Retd.) & Ors., JT 2013 (1) SC
276).
33. In view of the above discussion, we reach the following
inescapable conclusions:
(i) The society members had entered into an agreement to sell even
though, a Notification under Section 4 to carry out acquisition
had been issued by the Govt., fully knowing the legal
consequences that may arise.
(ii) The agreement to sell, made by the society (an unregistered
document), did not create any title in favour of the society.
iii) The acquisition proceedings were challenged after a decade of
the issuance of Notification under Section 4, and 5 years after
the date of award, by the society alongwith original khatedars.
The petitions in which the aforesaid acquisition proceedings
were challenged were dismissed by the High Court on the ground
of delay and latches.
iv) When the land in dispute is situated in Jaipur city, the
society, for reasons best known, had filed the writ petition
challenging the acquisition proceedings at Jodhpur and not at
Jaipur bench of the High Court. No explanation could be
furnished by the learned counsel for the respondent society, as
regards the circumstances under which the petition was filed at
Jodhpur, and whether the same was maintainable.
v) The first writ petition cannot be held to have been filed in
good faith and the bonafides of the parties, becomes doubtful.
vi) Challenge to the acquisition proceedings attained finality so
far as the khatedars are concerned, upto this court.
vii) The respondent society never made any application for release of
the land on any ground whatsoever, before the Competent
Authority i.e. Secretary to the Department of Industries,
instead, it applied for regularization before the JDA and before
the revenue authorities for conversion of user of the land.
viii) After the order of this court dated 9.9.1992, a telegram was
sent by the society to the Chief Secretary stating that great
injustice had been done to them, as their land was not released,
raising the issue of discrimination qua other societies, but no
factual foundation was laid therein, pointing out the
discrimination meted out.
ix) The High Court entertained the writ petition, without comparing
the actual facts of the respondent society qua other societies.
x) The High Court did not consider a single objection raised by the
appellant RIICO before it. The finding of fact recorded to the
effect that compensation could not be paid to the khatedars for
want of money, is based on no evidence even though a reference
was made to an affidavit filed by the State Authorities. Such
findings are absolutely perverse.
xi) There is no denial in specific terms as to whether the tenure
holders had received compensation for the land in dispute, even
though in the earlier proceedings, some khatedars were parties.
xii) The schemes floated by the State Government (knowing well that
acquiring land after the issuance of Section 4 Notification
would be void), indicates a sorry state of affairs. Such orders
have been passed without realizing that administration does not
include mal-administration.
xiii) The circulars issued by the State Government, being inconsistent
with the policy and the law regarding acquisition, cannot be
taken note of. Issuance of such circulars amounts to committing
fraud upon statutes, and further, tantamounts to colourable
exercise of power. The State in exercise of eminent domain
acquires the land. Thus, before completing the acquisition
proceedings, it should not release the land in favour of some
other person who could not have acquired title over it at any
point of time.
xiv) The land had been acquired for industrial development and thus,
cannot be permitted to be used for residential purposes.
Therefore, the demand of the respondent-society cannot be held
to be justified.
34. In view of the above, both the appeals are allowed. The impugned
judgment and order of the High Court dated 30.7.2002 in Civil Writ
Petition No. 454 of 1993 is hereby set aside. No costs.
..………………………….J.
(Dr.
B.S. CHAUHAN)
.…………………………..J.
(V. GOPALA GOWDA)
New Delhi;
February 12, 2013
Print Page
Hence, discretion must be exercised by the court on grounds of public policy, public interest and public good. The writ is equitable in nature and thus, its issuance is governed by equitable principles. Refusal of relief must be for reasons which would lead to injustice. The prime consideration for issuance of the writ is, whether or not substantial justice will be promoted. Furthermore, while granting such a writ, the court must make every effort to ensure from the averments of the writ petition, whether proper pleadings are being made. Further in order to maintain the writ of mandamus, the first and foremost requirement is that, the petition must not be frivolous and it is filed in good faith. Additionally, the applicant must make a demand which is clear, plain and unambiguous. It must be made to an office having the requisite authority to perform the act demanded. Furthermore, the authority against whom mandamus is issued, should have rejected the demand earlier. Therefore, a demand and its subsequent refusal, either by words, or by conduct are necessary to satisfy the court that the opposite party is determined to ignore the demand of the applicant with respect to the enforcement of his legal right. However, a demand may not be necessary when
the same is manifest from the facts of the case, that is, when it is an empty formality, or when it is obvious that the opposite party would not consider the demand.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7254 OF 2003
The Rajasthan State Industrial Development
…Appellant and Investment Corporation
Versus
Subhash Sindhi Cooperative Housing Society …Respondents
Jaipur & Ors.
WITH
CIVIL APPEAL NO. 853 OF 2013
Dr. B. S. CHAUHAN, J.
1. These appeals have been preferred against the impugned judgment
and order dated 30.7.2002 passed by the High Court of Rajasthan
(Jaipur Bench) in Civil Writ Petition No. 454 of 1993, by which the
High Court has issued directions to the Rajasthan State Industrial
Development and Investment Corporation (in short `RIICO’), the
appellant herein, to release the land in dispute from land acquisition
in favour of respondent No.1 - housing society (hereinafter referred
to as `the society’).
2. As both the appeals have been preferred against the common
impugned judgment, for convenience, Civil Appeal No. 7254 of 2003 is
taken to be the leading case. The facts and circumstances giving rise
to this appeal are :
A. That, a huge area of land admeasuring 607 Bighas and 5 Biswas
situate in the revenue estate of villages Durgapura, Jhalan Chod,
Sanganer and Dhol-ka-Bad in District Jaipur, including the suit land
measuring about 17 Bighas and 9 Biswas in village Durgapura stood
notified under Section 4(1) of the Rajasthan Land Acquisition Act,
1953 (hereinafter referred to as the `Act’) on 18.7.1979, for a public
purpose i.e. industrial development, to be executed by the RIICO.
B. The respondent society claims to have entered into an agreement
to sell with the Khatedars of the suit land on 21.7.1981.
C. Declaration under Section 6 of the Act was made on 22.6.1982 for
the land admeasuring 591 Bighas and 17 Biswas. After meeting all
requisite statutory requirements contained in the Act, possession of
the land, including the land in dispute was taken by the Government
and was subsequently handed over to RIICO, on 18.10.1982 and
17.11.1983. The Land Acquisition Collector assessed the market value
of the land of the Khatedars, and made an award on 14.5.1984. Vide
allotment letter dated 10.3.1988, RIICO, made allotment of land
admeasuring 105 acres of the land, out of the total acquired land
measuring 591 Bighas, to Diamond & Gem Development Corporation Ltd., a
Private Ltd. Company (hereinafter referred to as the ‘Company’),
respondent no. 37, to facilitate the establishment of a Gem
Industrial Estate for the manufacturing of Gem stones. This piece of
land included within it, the land which was subject matter of an
agreement to sell between the respondent society and the original
khatedars.
D. Acquisition proceedings emanating from the Section 4
Notification dated 18.7.1979, were challenged by the respondent
society, as well as by the khatedars jointly in 1989, by filing of
Writ Petitions before the High Court of Rajasthan at Jodhpur. A lease
deed was executed by appellant-RIICO in favour of the company-
respondent No.37 in relation to 105 acres of land on 22.5.1989,
including the land in question, which is comprised of Khasra Nos. 226
to 230 is village Durgapura. The aforementioned writ petitions filed
by the respondent society and the original khatedars, challenging the
land acquisition proceedings stood dismissed on the ground of delay
and latches, vide judgment and order dated 21.8.1990 passed by the
High Court.
E. Aggrieved, the respondent society and one khatedar filed SLPs
before this Court challenging the judgment and order dated 21.8.1990.
This Court vide order dated 9.9.1992 dismissed the said SLPs, however,
while doing so, the Court made an observation that the dismissal of
the said SLPs, would not operate as res-judicata if the society
approaches the court for release of their land on the ground that
lands owned by similar set of individuals or institutions, if any, has
been released from acquisition. Such a direction was issued in view
of the submissions made by the respondent society, stating that
allotment of the said land in favour of the Company had been made
fraudulently.
F. In view thereof, the society filed a Writ Petition No. 454 of
1993 praying for release of the land admeasuring 17 Bighas and 9
Biswas in Khasra Nos. 226 to 230, in revenue estate of village
Durgapura or in the alternative, for the allotment of equivalent
suitable land, and also for the cancellation of the allotment of 105
acres of land in favour of the Company. The writ petition was
contested by the appellants on the grounds that the respondent society
had no locus standi to challenge the acquisition proceedings which had
attained finality upto this Court; the transfer of land by the
khatedars to the respondent society was void; the respondent society
could not claim parity with other persons/societies, whose land
stood released for bonafide reasons on good grounds. The High Court
heard the said writ petition alongwith another writ petition that had
been filed by the Company, which will be dealt with separately.
During the pendency of the writ petition, certain other developments
took place, that is, the allotment of land made in favour of the
Company, was cancelled by the appellant vide order dated 1.10.1996,
and possession of the same was taken over from it on 3.10.1996.
G. The Division Bench of the High Court allowed the said writ
petition vide judgment and order dated 30.7.2002, thereby releasing
land admeasuring 17 Bighas and 9 Biswas in favour of the respondent
society.
Hence, this appeal.
3. Shri Dhruv Mehta, learned senior counsel appearing on behalf of
the appellant-RIICO, and Shri Manish Singhvi, learned Additional
Advocate General for the State of Rajasthan, have submitted that
challenge to the acquisition proceedings emanating from the Section 4
Notification dated 18.7.1979 had attained finality upto this Court.
However, this Court vide order dated 9.9.1999 had granted very
limited relief to the respondent-society, to the extent that it could
approach the court for release of its land only on the ground of
discrimination qua other tenure holders, whose land stood released and
that the dismissal of the SLP would not operate as res-judicata. The
society had not made any representation before the filing of the first
or the second writ petition, before any appropriate authority for
release of the said land, nor had it raised issue with respect to any
form of discrimination suffered by it. The High Court also did not
consider the case on the basis of any ground of discrimination
whatsoever, rather made a bald observation, stating that as the land
of the other tenure holders had been released, the society too, was
entitled for similar relief. Such an order is not justified for the
reason that court did not compare the facts of two sets of the
parties.
Article 14 is not meant to perpetuate an illegality or fraud.
Moreover, it is to be established that discrimination was made
cautiously. The agreement to sell dated 21.7.1981 in favour of the
respondent-society did not create any title in favour of the society.
Furthermore, any sale subsequent to a Section 4 Notification with
respect to the said land, is void. An agreement to sell, or to
execute any transfer of such land is barred by the Rajasthan Lands
(Restrictions on Transfer) Act, 1976 (hereinafter referred to as, the
`Act 1976’). At the most, the High Court could have directed
consideration of the representation of the society, if there was any,
but it most certainly could not have issued direction to release the
said land itself. The Society had approached the High Court, Jodhpur
(main seat) though, petition could be filed only before the Jaipur
Bench as the suit land situate at Jaipur and all relevant
orders/notifications were issued at Jaipur. Thus, the present appeals
deserve to be allowed.
4. Per contra, Shri Rakesh Dwivedi, learned senior counsel
appearing on behalf of the respondent – society and its members, has
submitted that a representation was in fact made by the society, but
the same was not considered by the State Government, and that the
award made in respect of the land itself, clearly revealed that some
land was released by the government, in favour of various persons and
institutions. The respondent society had therefore, been
discriminated against, by the State authorities. The respondent-
society is entitled for the relief on the basis of the Government
Orders, (hereinafter referred to as G.Os.) provided for release of the
land of Group Housing Societies, if under acquisition. Technical
issue must not be entertained by this Court, as the second writ
petition has been filed under the liberty granted by this Court. Thus,
the present appeals lack merit and are liable to be dismissed.
5. Mr. P.S. Patwalia, learned senior counsel appearing on behalf of
the Company, respondent no. 37, has submitted that the High Court has
directed to release the land in favour of the respondent – society,
from the land which was allotted to the Company, and that Company has
no objection to the order passed by the High Court, releasing a
particular piece of land in favour of the society. Thus, the appeals
are liable to be dismissed.
6. We have considered the rival submissions made by the learned
counsel for the parties and perused the records.
It is a settled legal proposition that acquisition proceedings
cannot be challenged at a belated stage. In the instant case, the
earlier writ petition filed by the society and the khatedars jointly,
was dismissed by the High Court only on the ground of delay. This
Court upheld the said judgment and order, while granting the said
parties liberty to challenge the acquisition afresh, on the ground of
discrimination alone.
7. There can be no quarrel with respect to the settled legal
proposition that a purchaser, subsequent to the issuance of a Section
4 Notification in respect of the land, cannot challenge the
acquisition proceedings, and can only claim compensation as the sale
transaction in such a situation is Void qua the Government. Any such
encumbrance created by the owner, or any transfer of the land in
question, that is made after the issuance of such a notification,
would be deemed to be void and would not be binding on the Government.
(Vide: Gian Chand v. Gopala & Ors., (1995) 2 SCC 528; Yadu Nandan
Garg v. State of Rajasthan & Ors., AIR 1996 SC 520; Jaipur Development
Authority v. Mahavir Housing Coop. Society, Jaipur & Ors. (1996) 11
SCC 229; Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal
Jain & Ors., (1997) 1 SCC 35; Meera Sahni v. Lieutenant Governor of
Delhi & Ors., (2008) 9 SCC 177; Har Narain (Dead) by Lrs. v. Mam Chand
(Dead) by LRs. & Ors., (2010) 13 SCC 128; and V. Chandrasekaran & Anr.
v. The Administrative Officer & Ors., JT 2012 (9) SC 260).
8. Thus, in the instant case, the respondent-society, and its
members, have to satisfy the court as regards their locus standi with
respect to maintenance of the writ petition on any ground whatsoever,
as none of the original khatedars has joined the society in
subsequent petition.
9. In Smt. Kalawati v. Bisheshwar, AIR 1968 SC 261, this Court
held:
"Void means non-existent from its very inception."
10. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth,
Naduvil (dead) & Ors., AIR 1996 SC 906, this Court held:
"The word "void" has a relative rather than an absolute
meaning. It only conveys the idea that the order is invalid
or illegal. It can be avoided. There are degrees of
invalidity, depending upon the gravity or the infirmity, as
to whether it is, fundamental or otherwise.”
11. The word, “void” has been defined as: ineffectual; nugatory;
having no legal force or legal effect; unable in law to support the
purpose for which it was intended. (Vide: Black's Law Dictionary). It
also means merely a nullity, invalid; null; worthless; sipher; useless
and ineffectual and may be ignored even in collateral proceeding as if
it never were.
The word “void” is used in the sense of incapable of
ratification. A thing which is found non-est and not required to be
set aside though, it is sometimes convenient to do so. There would be
no need for an order to quash it. It would be automatically null and
void without more ado. The continuation orders would be nullities too,
because no one can continue a nullity. (Vide: Behram Khurshid Pesikaka
v. State of Bombay, AIR 1955 SC 123; Pankaj Mehra & Anr. v. State of
Maharashtra & Ors., AIR 2000 SC 1953; Dhurandhar Prasad Singh v. Jai
Prakash University & Ors., AIR 2001 SC 2552; and Government of Orissa
v. Ashok Transport Agency & Ors., (2002) 9 SCC 28).
12. Even if the lands of other similarly situated persons has been
released, the society must satisfy the court that it is similarly
situated in all respects, and has an independent right to get the land
released. Article 14 of the Constitution does not envisage negative
equality, and it cannot be used to perpetuate any illegality. The
doctrine of discrimination based upon the existence of an enforceable
right, and Article 14 would hence apply, only when invidious
discrimination is meted out to equals, similarly circumstanced without
any rational basis, or to relationship that would warrant such
discrimination. (Vide: Smt. Sneh Prabha & Ors. v. State of U.P. &
Anr., AIR 1996 SC 540; Yogesh Kumar & Ors. v. Government of NCT Delhi
& Ors., AIR 2003 SC 1241; State of West Bengal & Ors. v. Debasish
Mukherjee & Ors., AIR 2011 SC 3667; and Priya Gupta v. State of
Chhattisgarh & Ors., (2012) 7 SCC 433).
13. The respondent society has placed reliance upon various
policies of the Government, which allowed the exemption of land upon
which construction existed on the date of issuance of Section 4
Notification. In the instant case, the respondent society entered
into an agreement to sell, subsequent to the issuance of the Section 4
Notification, and therefore, the question of the existence of any
construction on the said land by any of its members on the date of
Section 4 Notification does not arise. The aforesaid policy decision
therefore, must be implemented, while strictly adhering to the terms
incorporated therein, as has been held by this Court in Bondu
Ramaswamy & Ors. v. Bangalore Development Authority & Ors., (2010) 7
SCC 129. In the said case, this Court examined the issue of
discrimination with respect to releasing land belonging to one set of
interested persons, while rejecting the release of land belonging to
other similarly situated persons, whose land was situated in close
vicinity to the land released. The Court held:
“We are conscious of the fact that when a person subjected
to blatant discrimination, approaches a court seeking equal
treatment, he expects relief similar to what others have
been granted. All that he is interested is getting relief
for himself, as others. He is not interested in getting the
relief illegally granted to others, quashed. Nor is he
interested in knowing whether others were granted relief
legally or about the distinction between positive equality
and negative equality. In fact he will be reluctant to
approach courts for quashing the relief granted to others
on the ground that it is illegal, as he does not want to
incur the wrath of those who have benefited from the wrong
action. As a result, in most cases those who benefit by the
illegal grants/actions by authorities, get away with the
benefit, while others who are not fortunate to have
“connections” or “money power” suffer. But these are not
the grounds for courts to enforce negative equality and
perpetuate the illegality”
(Emphasis added)
14. The Respondent society claims to have applied before the Jaipur
Development Authority (hereinafter referred to as the ‘JDA’) and
deposited requisite charges etc. for regularisation of their proposed
scheme as per G.Os. issued by the State Government, also for providing
relief to the societies that had no construction on the land which
belonged to them, on the date of initiation of acquisition
proceedings. However, there is nothing on record to show that the
society had ever applied for release of the said land before the
Competent Authority i.e. Secretary to the Department of Industries,
Rajasthan, who had initiated the acquisition proceedings under the
Act. Furthermore, the society is not in a position to show that the
societies whose lands stood released, were similarly situated to
itself in all respects, i.e., such Societies had no title over the
land, and had in fact, entered into an agreement to sell subsequent to
the issuance of the Notification under Section 4 of the Act.
15. This Court explained the phrase “discrimination” in Narmada
Bachao Andolan v. State of Madhya Pradesh & Anr., AIR 2011 SC 1989
observing :
“66. Unequals cannot claim equality. In Madhu Kishwar and
Ors. v. State of Bihar and Ors., AIR 1996 SC 1864, it has
been held by this Court that every instance of
discrimination does not necessarily fall within the ambit
of Article 14 of the Constitution.
67. Discrimination means an unjust, an unfair action in
favour of one and against another. It involves an element
of intentional and purposeful differentiation and further
an element of unfavourable bias; an unfair classification.
Discrimination under Article 14 of the Constitution must be
conscious and not accidental discrimination that arises
from oversight which the State is ready to rectify. (Vide:
Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123;
and M/s Video Electronics Pvt. Ltd. and Anr. v. State of
Punjab and Anr., AIR 1990 SC 820).
68. However, in Vishundas Hundumal and Ors. v. State of
Madhya Pradesh and Ors., AIR 1981 SC 1636; and Eskayef Ltd.
v. Collector of Central Excise, (1990) 4 SCC 680, this
Court held that when discrimination is glaring, the State
cannot take recourse to inadvertence in its action
resulting in discrimination. In a case where denial of
equal protection is complained of and the denial flows from
such action and has a direct impact on the fundamental
rights of the complainant, a constructive approach to
remove the discrimination by putting the complainant in the
same position as others enjoying favourable treatment by
inadvertence of the State authorities, is required.”
(Emphasis added)
16. Thus, a party seeking relief on the ground of discrimination
must take appropriate pleadings, lay down the factual foundation and
must provide details of the comparable cases, so that the court may
reach a conclusion, whether the authorities have actually
discriminated against that party; and whether there is in fact any
justification for discrimination, assessing the facts of both sets of
cases together.
17. The primary purpose of the writ is to protect and establish
rights, and to impose a corresponding imperative duty existing in law.
It is designed to promote justice, (ex debito justiceiae) and its
grant or refusal is at the discretion of the court. The writ cannot be
granted unless it is established that there is an existing legal right
of the applicant, or an existing duty of the respondent. Thus, the
writ does not lie to create or establish a legal right but, to enforce
one that stood already established. While dealing with a writ
petition, the court must exercise discretion, taking into
consideration a wide variety of circumstances, inter-alia, the facts
of the case, the exigency that warrants such exercise of discretion,
the consequences of grant or refusal of the writ, and the nature and
extent of injury that is likely to ensue by such grant or refusal.
Hence, discretion must be exercised by the court on grounds of
public policy, public interest and public good. The writ is equitable
in nature and thus, its issuance is governed by equitable principles.
Refusal of relief must be for reasons which would lead to injustice.
The prime consideration for issuance of the writ is, whether or not
substantial justice will be promoted. Furthermore, while granting such
a writ, the court must make every effort to ensure from the averments
of the writ petition, whether proper pleadings are being made. Further
in order to maintain the writ of mandamus, the first and foremost
requirement is that, the petition must not be frivolous and it is
filed in good faith. Additionally, the applicant must make a demand
which is clear, plain and unambiguous. It must be made to an officer
having the requisite authority to perform the act demanded.
Furthermore, the authority against whom mandamus is issued, should
have rejected the demand earlier. Therefore, a demand and its
subsequent refusal, either by words, or by conduct are necessary to
satisfy the court that the opposite party is determined to ignore the
demand of the applicant with respect to the enforcement of his legal
right. However, a demand may not be necessary when the same is
manifest from the facts of the case, that is, when it is an empty
formality, or when it is obvious that the opposite party would not
consider the demand. (Vide: Commissioner of Police, Bombay v.
Govardhandas Bhanji, AIR 1952 SC 16; Praga Tools Corporation v. Shri
C.V Imanual & Ors., AIR 1969 SC 1306; Punjab Financial Corporation v.
Garg Steel, (2010) 15 SCC 546; Union of India & Ors. v. Arulmozhi
Iniarasu & Ors., AIR 2011 SC 2731; and Khela Banerjee & Anr. v. City
Montessori School & Ors., (2012) 7 SCC 261).
18. This Court in General Officer Commanding v. CBI & Anr., AIR 2012
SC 1890, explained the phrase “good faith” :
“…Good faith has been defined in Section 3(22) of the
General Clauses Act, 1897, to mean a thing which is, in
fact, done honestly, whether it is done negligently or not.
Anything done with due care and attention, which is not
malafide, is presumed to have been done in good faith. There
should not be personal ill-will or malice, no intention to
malign and scandalize. Good faith and public good are though
the question of fact, it required to be…..In Brijendra Singh
v. State of U.P. & Ors., AIR 1981 SC 636, this Court while
dealing with the issue held:
“In the popular sense, the phrase 'in good faith' simply
means ;honestly, without fraud, collusion, or deceit;
really, actually, without pretence and without intent to
assist or act in furtherance of a fraudulent or otherwise
unlawful scheme….. It is a cardinal canon of construction
that an expression which has no uniform, precisely fixed
meaning, takes its colour, light and content from the
context.”
Thus, it is evident that a writ is not issued merely as is legal
to do so. The court must exercise its discretion after examining pros
and cons of the case.
19. Executive instructions which have no statutory force, cannot
override the law. Therefore, any notice, circular, guidelines etc.
which run contrary to statutory laws cannot be enforced. (Vide: B.N.
Nagarajan & Ors., etc. v. State of Mysore and Ors. etc., AIR 1966 SC
1942; Sant Ram Sharma v. State of Rajasthan & Ors., AIR 1967 SC 1910;
Secretary, State of Karnataka & Ors. v. Umadevi & Ors., AIR 2006 SC
1806; and Mahadeo Bhau Khilare (Mane) & Ors. v. State of Maharashtra &
Ors., (2007) 5 SCC 524).
20. During the hearing of the case if it is pointed out to the court
that the party has raised the grievance before the
statutory/appropriate authority and the authority has not decided the
same, it is always warranted that the court may direct the said
authority to decide the representation within a stipulated time by a
reasoned order. However, it is not desirable that the court take upon
itself the task of the statutory authority and pass an order. (Vide:
G. Veerappa Pillai v. Raman and Raman Ltd. & Ors., AIR 1952 SC 192;
Life Insurance Corporation of India v. Mrs. Asha Ramchandra Ambedkar &
Anr., AIR 1994 SC 2148; H.P. Public Service Commission v. Mukesh
Thakur & Anr., AIR 2010 SC 2620; and Manohar Lal (D) by Lrs. v.
Ugrasen (D) by Lrs. & Ors., JT 2011 (12) SC 41).
21. The instant case, requires to be examined in the light of
aforesaid settled legal propositions.
The material on record revealed, that after entering into an
agreement to sell just after the Section 4 Notification in respect of
the suit land was issued, the respondent society submitted a plan for
approval before the JDA, and also applied for conversion of the user
of the land before the Revenue Authority. In relation to this, it
also deposited requisite conversion charges on 13.8.1986. However, as
certain developments took place in the interim period, and the
Government of Rajasthan made a public advertisement dated 27.2.1982,
asking people to get their agricultural land converted to land to be
used for non-agricultural purposes. Circular dated 1.3.1982 issued by
the Government of Rajasthan enabled the persons/tenure holders seeking
conversion and regularization. The Circular also provided that land
covered by buildings or by any constructed area as on the cut-off
date, i.e. 20.8.1981 would also be exempted from acquisition
proceedings, if any. Similar benefits were conferred upon those who
were purchasers of land subsequent to the issuance of a Section 4
Notification, though such transfer was void. The benefit was also
extended to cooperative housing societies, which had made certain
developments and constructions prior to the said cut-off date i.e.
20.8.1981, and even to those areas where no construction was made or
even where no sale deed had been executed, but there existed an
agreement to sell prior to 20.8.1981.
22. More so, the relevant part of the Circular dated 1.3.1982 issued
by the Revenue Department, Government of Rajasthan, reads as under:
“….Land acquisition notifications are statutorily issued by
the Administrative Department of the State Government and
therefore the lands which are proposed to be de-acquired
will have to be notified by the Government itself.”
(Emphasis added)
Thus, it is evident from the Circular that even if, the
Government wanted to exempt the land, it would require a notification
by the Government. Law provides a notification under Section 48 of the
Land Acquisition Act, 1894, (hereinafter called as `Act 1894’) or
abandonment of the land acquisition proceedings by the State but it is
permissible only prior to taking possession of the land. Once the land
is vested in the State free from all encumbrances it cannot be
divested. Therefore, we do not find any force in the submission
advanced on behalf of the respondent-society that they were entitled
for release of the land.
The object and purpose of issuing such circulars could be to
regularise the construction of residential houses where the land was
sought to be acquired for residential purposes. Various states have
issued circulars to meet such a situation. However, such a
construction should be in consonance with the development scheme, or
may be compatible with certain modification. Even in absence of such
schemes, this Court has dealt with the issue and held that where the
land is acquired for establishing residential, commercial, or
industrial area and the application for release of the land reveal
that the land has been used for the same purpose, the Government may
release the land, if its existence does not by any means hinder
development as per the notification for acquisition. (Vide : Union of
India & Anr. v. Bal Ram Singh & Anr., 1992 Suppl (2) SCC 136; Sube
Singh & Ors. v. State of Haryana & Ors., (2001) 7 SCC 545; Jagdish
Chand & Anr. v. State of Haryana & Anr., (2005) 10 SCC 162; and
Dharam Pal v. State of Haryana & Ors., (2009) 2 SCC 397).
In the instant case land has been acquired for industrial
development. The respondent-society wants the said land for
developing the residential houses. Therefore, such a demand is not
worth acceptance.
23. Be that as it may, there can be no estoppel against the law or
public policy. The State and statutory authorities are not bound by
their previous erroneous understanding or interpretation of law.
Statutory authorities or legislature cannot be asked to act in
contravention of law. “The statutory body cannot be estopped from
denying that it has entered into a contract which was ultra vires for
it to make. No corporate body can be bound by estoppel to do something
beyond its powers, or to refrain from doing what it is its duty to
do.” Even an offer or concession made by the public authority can
always be withdrawn in public interest. (Vide: State of Madras & Anr.
v. K.M. Rajagopalan, AIR 1955 SC 817; Badri Prasad & Ors. v. Nagarmal
& Ors., AIR 1959 SC 559; and Dr. H.S. Rikhy etc. v. The New Delhi
Municipal Committee, AIR 1962 SC 554).
In Surajmull Nagoremull v. Triton Insurance Co. Ltd., AIR 1925
PC 83, it was held as under:
“..No court can enforce as valid, that which competent
enactments have declared shall not be valid, nor is
obedience to such an enactment a thing from which a court
can be dispensed by the consent of the parties or by a
failure to plead or to argue the point at the outset...”
A similar view was re-iterated by the Privy Council in Shiba
Prasad Singh v. Srish Chandra Nandi, AIR 1949 PC 297.
Thus, in view of the above, we are of the considered opinion
that the respondent-society is not entitled to take any advantage of
those illegal circulars.
24. There was correspondence between the JDA and the appellant
RIICO, and also other departments. There were also meetings held with
higher officials of the State Government, including the Chief Minister
but despite this, the land of the appellant was not released.
It was in fact, after the order of this Court dated 9.9.1992,
that the respondent society sent a telegram dated 17.10.1992, to the
Chief Secretary demanding justice, and there was no request made to
the Competent Authority to release the said land in its favour.
Immediately thereafter, the second writ petition was filed. It is
pertinent to mention here, that the said telegram cannot be termed a
comprehensive representation. It does not furnish any detail, or give
any reason, with respect to how not releasing the land of the society
could amount to violative of any provision of the Constitution of
India including Article 14. It also did not disclose any comparable
cases, where land belonging to persons/institutions who were similarly
situated to itself, stood released. The said telegram reads as under:
“Only our land Khasra Nos. 226 to 230 at village Durgapura
without notice to us or Khatedar was ex-parte acquired under
award dated 14.5.84 leaving all others land of Durgapura
notified earlier. Perpetrating discrimination despite contrary
directions by J.D.A. under Chairmanship of Chief Minister – 105
acre including our land was fraudulently and in abuse of power
were allotted by RIICO to Diamond and Gem Development
Corporation (DGDC) in a biggest land scandal with collusive acts
of officials of RIICO. The said DGDC is in big way encroaching
on our land despite the knowledge and notice of order dated
9.9.92 in SLP No. 165, 67-69/90 - Banwarilal and Or. v. State
of Rajasthan & Ors. Kindly quash allotment of 105 acre land to
DGDC and return land Khasra Nos. 226 to 230 or equivalent land
to us within seven days and meanwhile stop all encroachment on
our land failing which filing writ petitions in Hon’ble High
Court pursuant to Supreme Court order dated 9.9.92 at your cost
and consequences.
Subhash Sindhi Housing Co-operative Society Ltd. and its
Members through K.K. Khanna Advocate.”
25. When the writ petition was filed, the High Court asked the
respondent therein, to furnish an explanation of the alleged
discrimination claimed by it. The authorities thereafter, filed
affidavits, stating that the fact could be ascertained from the award
dated 14.5.1984 itself. The relevant portion thereof reads as under:
“The Deputy Secretary Industries (Group I) Department Rajasthan
Jaipur released from acquisition the land in Durgapura, Khasra
No. 137, measuring 6 Bigha 2 Biswas in village Jaland chod,
Khasra No. 124 measuring 2 Bighas 4 Biswas, Khasra No. 2389
measuring 1 Bigha – 2 Biswas, Khasra No. 250, measuring 0.05
Biswas, 261 measuring 0.08 Biswas in village Dolka Abad Khasra
No. 44 measuring 1 Bigha 11 Biswas, Khasra No. 45 measuring 2
Bigha 11 Biswas, Khasra No. 45 measuring 2 Bigha, 13 Biswas,
vide his order Nos. P-(4)/IND/75 dated 19.10.1981 No.
P(4)Ind/1/79 dated 1.1.1982 and No. P5(4) Ind/75 dated 22.6.82.
Besides the Industries Department also released from acquisition
the total land measuring 126 Bighas 13 Biswas vide notification
P5 (4)/Ind/1/75 dated 31.7.1982 in village Jalana Chod of
Khasra No. 177, 181, 182, 184, 185, 186 and 180 min,. and 187,
the land which is acquired by the Rajasthan Housing Board. All
these lands was de-acquired under Section 48 of the Act whose
possession was not taken by concerned Department. Assistant
Manager (adarboot) RIICO Jaipur vide his letter No. IPI/3/6-76
dated 31.10.1983 to Deputy Secretary Industries Department
Rajasthan Government recommended release for acquisition of
Khasra No. 126 Min. measuring 2 Bighas as there being no passage
and there godown being situated there. Therefore, it is not
possible to consider this till final orders are received. Only
after the receipt of the final decision of the concerned
department further action can be possible.”
26. It is thus evident from the award itself, that land admeasuring
126 Bighas 13 Biswas was de-notified on 31.7.1982, in the village
Jalana Chod, for the reason that the said land had also been notified
under the Act for some other public purpose, i.e., the same had been
acquired for the Rajasthan Housing Board, and therefore, such land was
de-notified under Section 48 of the Act 1894. In other cases, small
pieces of land measuring 6 bighas 2 biswas, and 2 bighas and 4 biswas
were also released, for the reason that construction existed on some
of this land and the other piece of land was found to be entirely land-
locked, with no passage to access it.
27. A large number of issues were agitated before the High Court,
however, the High Court did not deal with any of those. The Court
allowed the petition merely observing:
“The petitioner Subhash Sindhi Cooperative Housing Society is
contesting only for a limited piece of land measuring 17 Bighas
9 Biswas which had been acquired and given to DGDC by the RIICO.
The case of the society is that in view of the observations made
by the Supreme Court in its order, it has pleaded its case in
this petition on the basis that the other land which had been
acquired had been released or it stood de facto released and the
government was itself a party to it in releasing the acquired
land and large number of lands of this nature de facto stood
released from acquisition inasmuch as houses have been
constructed thereon; the Government itself has acquiesced with
such construction and has also taken steps for regularisation of
such construction and the decision which was taken by the JDA in
the meeting headed by the Chief Minister was implemented qua all
others except the land of petitioner Society, merely because the
petitioner society’s land had been given to DGDC/RIICO. This
small piece of land which is claimed by the society in the facts
and circumstances of the case, can very well be restored to the
Society and to that extent, land allotted to DGDC can be
curtailed without having any adverse impact on the prospects of
business of DGDC. Facts have come on record through documents
that to start with, DGDC had demanded only 35 acres of land.
This demand was raised from time to time and ultimately, it
reached upto 105 acres. It is also on record that the RIICO had
given only 80 acres of land to DGDC as against the allotment of
105 acres. In such a situation, if a small piece of land
measuring 17 Bighas 9 Biswas out of the land allotted to DGDC is
restored back to the petitioner Society it cannot have any
adverse impact on the business prospects of DGDC nor the RIICO
may have any just objection and the State Government which has
already acquiesced with the release of such acquired lands in
large number of cases, cannot have any legitimate case to
contest the grant of relief to the petitioner society and the
petitioner Society is found to be entitled for the same on the
principles of parity as well as equity.”
28. The High Court had asked the authorities of the appellant-RIICO
to provide an explanation regarding the release of land in village
Durgapura, and in its reply to the said order, an additional affidavit
was filed. The High Court, after taking note of the same held as
under:
“As per the acquisition proceedings which commenced in July,
1979, the land which was sought to be acquired in Village
Durgapura, was 119 Bighas 4 Biswas.
- The land (of which possession was not taken) measured 12 Bighas
& Biswas (comprised in Khasra Nos. 126, 128, 129, 137, 153 and
156).
- Land of which possession was taken 106 Bighas 18 Biswas.
- Land for which acquisition proceedings were quashed as per the
judgment rendered on 12.7.79 in CWP No. 324/89 i.e. S.D. Agarwal
v. State of Rajasthan) 20 Bighas
- And thus, the balance land remained 86 Bighas 18 Biswas.
- Land belonging to the petitioner Subhash Sindhi Cooperative
Housing Society Ltd. – 17 Bighas 9 Biswas.
- After deducting this land measuring 17 Bighas 9 Biswas from the
balance land of 86 Bighas 18 Biswas, the remaining land measures
69 Bighas 9 Biswas and this is the land of which although
possession was taken during the acquisition proceedings
somewhere in 1982-83 yet on submission of the scheme plans by
various Cooperative Housing Societies much after taking of the
possession plans were approved in compliance of various orders
issued by the Government of Rajasthan after 1986.
- Compensation to the recorded khatedars of the land was also paid
in terms of the award dated 14.5.1984 and the amount was duly
received by the khatedars/persons having interest in the land.
29. The High Court herein above, has observed that land admeasuring
69 Bighas 9 Biswas of which possession had been taken in acquisition
proceedings, stood released in favour of various group housing
societies in view of the G.Os. issued after 1986, on extraneous
considerations. Such observation is not based on any material
whatsoever. Learned counsel appearing for the society could not
point out any document on record, on the basis of which such an
observation could be made. Same remained the position when the High
Court held, that it was evident from the documents on record that the
tenure holders whose land had been acquired, could not be paid
compensation for the reason “that there was shortage of funds with the
government”. While recording the aforesaid findings, reliance was
placed on the affidavit filed by the officers of the appellant.
However, there is no such averment in the said affidavit. There are
claims and counter claims regarding the payment of compensation, as
there are some documents on record to show that compensation had been
deposited by the appellant-RIICO, in favour of the predecessor-in-
interest of the society in the court.
30. Be that as it may, the High Court has not recorded any finding
to the effect that the land referred to hereinabove (in village
Durgapura), which stood released from acquisition proceedings, was
also acquired by group housing societies subsequent to the issuance of
the Section 4 Notification, or the society had acquired interest in
the same on the basis of an agreement to sell, or on any other ground
similar to those raised by the respondent society. The situation of
societies whose land stood released, was not compared with the case of
the respondent society. Moreover, in case the government had assured
such release by issuing several circulars or floating schemes, and the
application of the respondent society was in fact pending before the
authority concerned, the court ought to have directed the authority to
consider the same. But the court, in such facts could not decide the
case itself.
31. In the instant case, at the initial stage, the writ petition was
filed before the High Court at Jodhpur. Admittedly, the land is
situated in the heart of the Jaipur city, and all relevant orders
including notifications for acquisition were issued at Jaipur. The
writ petition ought to have been filed before the Jaipur Bench as per
the statutory requirements therein. Learned counsel appearing for the
parties could not furnish any explanation, as under what circumstances
the first writ petition had been filed by the society alongwith tenure-
holders at Jodhpur. Therefore, we are not only doubtful regarding the
sanctity of the order passed by the High Court rather, it creates
doubt about the bonafides of the parties and further, as to whether
such a move could have been made in good faith.
This Court has on various occasions dealt with the similar
situation and explained as where the writ petition is maintainable.
(See: Sri Nasiruddin v. State Transport Appellate Tribunal, AIR 1976
SC 331; U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow, v.
State of U.P. & Ors., AIR 1995 SC 2148; Rajasthan High Court Advocates
Association v. Union of India & Ors., AIR 2001 SC 416; and Dr. Manju
Verma v. State of U.P. & Ors., (2005) 1 SCC 73).
32. In the instant case, the government itself labeled the sale
deeds, executed after issuance of Section 4 Notification as Void, we
fail to understand as for what reasons the State authorities could
think to regularise such orders. The right to administer, cannot
obviously include the right to maladminister. Thus, we find no words
to express anguish as what kind of governance it had been. (Vide: In
Re: The Kerala Education Bill, 1957, AIR 1958 SC 956; All Bihar
Christian Schools Association & Anr. v. State of Bihar & Ors., AIR
1988 SC 305; Sindhi Education Society & Anr. v. The Chief Secretary,
Govt. of NCT of Delhi & Ors., (2010) 8 SCC 49; and State of Gujarat &
Anr. v. Hon’ble Mr. Justice R.A. Mehra (Retd.) & Ors., JT 2013 (1) SC
276).
33. In view of the above discussion, we reach the following
inescapable conclusions:
(i) The society members had entered into an agreement to sell even
though, a Notification under Section 4 to carry out acquisition
had been issued by the Govt., fully knowing the legal
consequences that may arise.
(ii) The agreement to sell, made by the society (an unregistered
document), did not create any title in favour of the society.
iii) The acquisition proceedings were challenged after a decade of
the issuance of Notification under Section 4, and 5 years after
the date of award, by the society alongwith original khatedars.
The petitions in which the aforesaid acquisition proceedings
were challenged were dismissed by the High Court on the ground
of delay and latches.
iv) When the land in dispute is situated in Jaipur city, the
society, for reasons best known, had filed the writ petition
challenging the acquisition proceedings at Jodhpur and not at
Jaipur bench of the High Court. No explanation could be
furnished by the learned counsel for the respondent society, as
regards the circumstances under which the petition was filed at
Jodhpur, and whether the same was maintainable.
v) The first writ petition cannot be held to have been filed in
good faith and the bonafides of the parties, becomes doubtful.
vi) Challenge to the acquisition proceedings attained finality so
far as the khatedars are concerned, upto this court.
vii) The respondent society never made any application for release of
the land on any ground whatsoever, before the Competent
Authority i.e. Secretary to the Department of Industries,
instead, it applied for regularization before the JDA and before
the revenue authorities for conversion of user of the land.
viii) After the order of this court dated 9.9.1992, a telegram was
sent by the society to the Chief Secretary stating that great
injustice had been done to them, as their land was not released,
raising the issue of discrimination qua other societies, but no
factual foundation was laid therein, pointing out the
discrimination meted out.
ix) The High Court entertained the writ petition, without comparing
the actual facts of the respondent society qua other societies.
x) The High Court did not consider a single objection raised by the
appellant RIICO before it. The finding of fact recorded to the
effect that compensation could not be paid to the khatedars for
want of money, is based on no evidence even though a reference
was made to an affidavit filed by the State Authorities. Such
findings are absolutely perverse.
xi) There is no denial in specific terms as to whether the tenure
holders had received compensation for the land in dispute, even
though in the earlier proceedings, some khatedars were parties.
xii) The schemes floated by the State Government (knowing well that
acquiring land after the issuance of Section 4 Notification
would be void), indicates a sorry state of affairs. Such orders
have been passed without realizing that administration does not
include mal-administration.
xiii) The circulars issued by the State Government, being inconsistent
with the policy and the law regarding acquisition, cannot be
taken note of. Issuance of such circulars amounts to committing
fraud upon statutes, and further, tantamounts to colourable
exercise of power. The State in exercise of eminent domain
acquires the land. Thus, before completing the acquisition
proceedings, it should not release the land in favour of some
other person who could not have acquired title over it at any
point of time.
xiv) The land had been acquired for industrial development and thus,
cannot be permitted to be used for residential purposes.
Therefore, the demand of the respondent-society cannot be held
to be justified.
34. In view of the above, both the appeals are allowed. The impugned
judgment and order of the High Court dated 30.7.2002 in Civil Writ
Petition No. 454 of 1993 is hereby set aside. No costs.
..………………………….J.
(Dr.
B.S. CHAUHAN)
.…………………………..J.
(V. GOPALA GOWDA)
New Delhi;
February 12, 2013
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