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Sunday, February 17, 2013

Section 4(1) of the Rajasthan Land Acquisition Act, 1953 - 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 landPage 2 acquisition in favour of respondent No.1 - housing society (hereinafter referred to as `the society’).-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 36Page 37 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. 37Page 38 (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.


Page 1
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
J U D G M E N T
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 landPage 2
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
2Page 3
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  companyrespondent  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
3Page 4
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
4Page 5
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.
5Page 6
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.
6Page 7
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
7Page 8
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.
8Page 9
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;
9Page 10
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."
10Page 11
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
11Page 12
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).
12Page 13
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
13Page 14
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
14Page 15
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.
15Page 16
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.
16Page 17
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
17Page 18
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).
18Page 19
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 illwill  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.
19Page 20
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.
20Page 21
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
21Page 22
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
22Page 23
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 &
23Page 24
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
24Page 25
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.
25Page 26
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
26Page 27
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
27Page 28
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.
28Page 29
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
29Page 30
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  appellantRIICO 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.
30Page 31
- 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
31Page 32
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
32Page 33
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.
33Page 34
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
34Page 35
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
35Page 36
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
36Page 37
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. 
37Page 38
(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)
38Page 39
   .…………………………..J.
(V.  GOPALA
GOWDA)
New Delhi;                                                                                
February 12, 2013
39

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