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Friday, May 1, 2015

Obviously, Khatedars were required to be heard as the adjudication of their right was involved in the matter to decide to whom the compensation is payable, and whether the Society was entitled to claim compensation on the basis of void transaction. It was also submitted before us that the Khatedars have sought reference under section 30 against the Society, that question can be decided in those proceedings. However, the factual matrix and its determination of the question as to entitlement of Society is necessary in the instant case, as such we have decided it. More so, the plight of downtrodden class of the Scheduled Castes Khatedars cannot be prolonged and considering the provisions which have been enacted for their protection, and the constitutional mandate, we are inclined to exercise our power to set at rest the dispute between the parties and hold that only Khatedars, in case some of them have died, their legal representatives would be entitled to receive the compensation which has been determined in the instant case. 61. In order to protect the interest of the Scheduled Caste persons, we further direct that the Society or other intermeddler, or power of attorney holder shall not be paid compensation on their behalf and the Collector/Land Acquisition Officer to ensure that the compensation is disbursed directly to the Khatedars or their legal representatives, as the case may be, and that they are not deprived of the same by any unscrupulous devices of land grabbers etc. Let the compensation be disbursed within a period of three months from today along with other permissible statutory benefits. 62. The direction issued by the High Court to grant 25% of the developed land is hereby set aside. The appeals preferred by the Rajasthan Housing Board and the Khatedars are allowed to the aforesaid extent and the remaining appeals are dismissed. Parties to bear their own costs as incurred.

                                                               Reportable



                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION



                     CIVIL APPEAL NOS.1527-1536 OF 2013



Rajasthan Housing Board                      ... Appellant

Vs –

New Pink City Nirman Sahkari Samiti Ltd.
& Anr.                                       ... Respondents


WITH
Civil Appeal Nos.1557-1566/2013,  1577-1586/2013,  1597-1606/2013,     1537-
1546/2013, 1547-1556/2013, 1567-1576/2013,  1587-1596/2013,  1607-1608/2013,
1609-1610/2013,  1611-1612/2013,   1613-1614/2013,   1615-1616/2013,   1617-
1618/2013, 1619-1620/2013, 1621-1622/2013,  1623-1624/2013,  1625-1626/2013,
1627-1628/2013,  1629-1630/2013,  1631-1632/2013,  1633-1634/2013   and   CA
Nos.4183-4192/2015 @ SLP (C) Nos. 21344-21353/2013.





                               J U D G M E N T



ARUN MISHRA, J.



1.    Leave granted in SLP [C] Nos.21344-21353/2015.

2.    The appeals arise out of a common judgment and order dated  29.10.2009
passed by a Division Bench of the High Court of Rajasthan in Special  Appeal
No.13/2001  and  other  connected  matters.  The  Rajasthan  Housing  Board,
original Khatedars and the New Pink City Housing  Construction  Co-operative
Society Ltd. (transferee) (hereinafter referred to  as  the  Society’)  have
assailed  the  impugned  judgment  and  order  on  different  grounds.   The
Rajasthan Housing Board has prayed for setting aside direction  to  consider
25% of developed land and compensation, whereas the original khatedars  have
prayed for  payment  of  compensation  to  them.  Similarly,  the  Rajasthan
Housing Board has also questioned the entitlement of the  Society  to  claim
compensation. The Society has also claimed for more value of  land.

3.          The State Government issued a notification under  section  4  of
the Rajasthan Land Acquisition Act, 1953 (for short ‘the Act  of  1953’)  on
12.1.1982. The land had been acquired for the purpose of housing  scheme  of
Rajasthan Housing Board. On 22.5.1982 the possession had  been  handed  over
to Rajasthan Housing Board under section 9 of the Act of 1953.  The  Society
preferred  objections  before  the  Land  Acquisition  Officer  (LAO).   The
objections  preferred  by  the  Society  were  rejected  vide  order   dated
4.9.1982. Thereafter, Award was passed with respect to  four  cases  by  the
LAO on 30.11.1982 in favour of Khatedars.  With  respect  to  the  remaining
cases the award was passed on 2.1.1989 by  the  LAO.  Notice  under  section
12(2) of the Act of 1953 was issued to  the  Society  with  respect  to  the
award of 30.11.1982 on 31.12.1988.

4.          The Society applied for reference under section 18  of  the  Act
of 1953. On 17.4.1989, the reference was made to the  Civil  Court.  One  of
the Khatedars  namely  Prabhu  also  sought  reference  registered  as  Case
No.43/1989. The Civil Court answered the reference on 23.1.1994  determining
the compensation at Rs.260 per sq.yd. The objection raised  by  the  Housing
Board with respect to the entitlement of Society under  section  42  of  the
Rajasthan Tenancy Act, was brushed aside. On appeal to the High  Court,  the
single Bench vide impugned judgment and order dated  22.3.1999  reduced  the
compensation to Rs.100 per sq.yd. The Division Bench has not  only  affirmed
the aforesaid award but has additionally directed to consider  allotment  of
25% of developed land in view of circular dated 27.10.2005 in terms  of  the
order passed by a Division Bench in Special Appeal No.697/1995.

 5.         The Khatedars have claimed  that  they  are  ‘Bairwa’  by  caste
which is a Scheduled Caste notified under the Constitution Scheduled  Castes
Order, 1950.

6.          The Society has claimed that it had entered  into  an  agreement
to sell with Khatedars of the land on 15.2.1974,  17.2.1974,  21.2.1974  and
22.1.1976. The  Society  has  also  claimed  that  it  had  applied  to  the
Rajasthan  Housing  Finance  Society  Ltd.  for  financial  assistance   for
construction of houses and an NOC dated 7.6.1982 was issued  to  it  by  the
Urban Improvement Trust, Jaipur. The Society  objected  to  the  acquisition
but objections were  rejected  on  3.9.1982  in  four  cases  out  of  which
Reference Case No.1989, 2089, 3089 and 4089 arose. The award was  passed  on
30.11.1982. Later on, the Society appears to have filed  a  civil  suit  for
specific performance of agreement to sell  in  the  year  1986  against  the
Khatedars and compromise decrees are said to have been passed on  2.10.1986,
3.10.1986 and  24.1.1988  thereby  decreeing  the  suit  in  favour  of  the
Society.

7.          It was submitted on behalf of the  State  Government,  Rajasthan
Housing Board and also by the Khatedars that the  transactions  between  the
Society and  Khatedars,  if  any,  were  ab  initio  void  in  view  of  the
provisions contained in section 42  of  the  Rajasthan  Tenancy  Act.  Thus,
decree obtained on the basis of void transaction is a nullity and  no  right
had accrued to the Society to claim compensation.

8.          It was urged before  us  on  behalf  of  the  Society  that  the
compensation determined is inadequate. Oral evidence  has  been  ignored  by
the High Court while reducing the  quantum  of  compensation  determined  by
Reference Court. The Society has a right to claim compensation on the  basis
of the agreement which has been culminated  into  a  decree  passed  by  the
civil court. No action  has  been  taken  by  Khatedars  to  take  back  the
possession under section 175 of the Rajasthan Tenancy Act within the  period
of limitation of 30 years which is prescribed therein. The  High  Court  has
rightly ordered allotment of 25% of the developed land to the  Society.  The
Society is a person interested to receive the compensation on  the  strength
of the judgment and decree of civil court. It has  developed  the  land  and
has spent certain amount on development and the right to hold  the  property
cannot be taken away except in accordance with the provisions of a  statute.
In order to  claim  superior  right  to  hold  the  property  the  procedure
prescribed in a statute must be complied with as provided  in  Article  300A
of  the  Constitution  of  India.  The  State  is  bound  to  treat  various
incumbents similarly as others have been allotted the land. It is  bound  to
act upon its decision and allot  the  25%  of  the  developed  land  to  the
Society.  The plea  based  upon  the  bar  created  by  section  42  of  the
Rajasthan Tenancy Act has not been substantiated by adducing the evidence.

9.          It was contended on behalf of  the  Khatedars  that  though  the
civil court’s decrees are fraudulent and bogus even  otherwise  the  decrees
are a nullity and opposed to public policy on  the  strength  of  provisions
contained in section 42 of the  Rajasthan  Tenancy  Act;  Transaction  being
void, the Society has no locus standi, right, title  or  interest  to  claim
the enhanced compensation;  more  so,  in  view  of  the  rejection  of  its
objection vide order dated 4.9.1982. The award in 1982 was  passed  by  Land
Acquisition Officer in favour of Khatedars. They are  entitled  to  enhanced
compensation and not the Society. The land was  recorded  in  the  names  of
Khatedars in the revenue records. The agreements of 1974 and 1976  have  not
been produced and once the transaction is void, it can be questioned in  the
instant proceedings. They are entitled to compensation and  also  to  obtain
developed land, as and when allotted.

10.         It was contended on behalf of the State Government  as  well  as
the Rajasthan Housing  Board  that  the  Society  is  not  entitled  to  any
compensation as such transactions are declared void by  section  42  of  the
Rajasthan Tenancy Act. The reference sought in the year  1989  with  respect
to the lands covered by the award dated 30.11.1982  was  clearly  barred  by
limitation. The objection had been raised before the Reference  Court  based
upon section 42 of the Rajasthan Tenancy Act and it has  not  been  disputed
at any stage that Khatedars belong to “Bairwa” caste which  is  a  Scheduled
Caste. Thus, the bar enacted under section 42 on transfer of  such  land  is
clearly attracted. The judgments passed by the High Court and the  Reference
Court deserve to be set  aside.  On  merits,  no  case  for  enhancement  of
compensation was made out. The Society has no right, title  or  interest  in
the land. The Division Bench of the High Court had gravely erred in  law  in
directing allotment of 25% of the developed land. The  prayer  made  by  the
Society for allotment of the developed land was rejected  by  the  Rajasthan
Housing  Board  on  14.5.2009  and  16.9.2009.  The  said  orders  were  not
questioned. Even otherwise  the  Circulars  dated  13.11.2001  and  that  of
27.10.2005 are not applicable and not enforceable as  held  by  this  Court.
The direction to allot the developed land deserves to be set aside.

11.         First,  we  advert  to  the  question  whether  reference,  with
respect to the four cases in which  award  was  passed  on  30.11.1982,  was
within period of limitation. Admittedly, possession  from  the  Society  had
been taken on 22.5.1982. The Society submitted  the  objections  before  the
LAO on 20.7.1982. While rejecting the objections on  4.9.1982,  the  Special
Officer, Urban Development Authority, LAO, had  unilaterally  observed  that
the acquisition cannot  be  said  to  be  in  violation  of  the  provisions
contained in Article 300A of the Constitution of India, the Society  has  no
ownership of the land, it has no interest in  the  land.  Thus,  it  has  no
right to raise the objection. The said order had attained finality  and  the
award was passed on 30.11.1982. In the award so passed,  it  has  also  been
mentioned that an Advocate had appeared  on  behalf  of  the  Khatedars  and
wanted  to  file  objections  regarding  compensation.  The  said   Advocate
appeared on behalf of some of the Khatedars and stated that  they  had  sold
the land to the Society. However, no  claim  petition  was  filed  on  their
behalf. There is also a reference in the award dated 30.11.1982  as  to  the
objection filed by the  Society   had  been  rejected  on  4.9.1982.  It  is
apparent from the award that it was passed after  rejecting  the  objections
raised by the Society in favour of Khatedars.

12.         The provisions of Rajasthan Land Acquisition  Act  are  in  pari
materia with the provisions of the Land Acquisition Act,  1894  and  section
12 of the Act of  1953 is extracted hereinbelow :

“12.   Award of Collector when to be final.—(1) Such award  shall  be  filed
in the Collector’s officer and shall, except  as  hereinafter  provided,  be
final and conclusive evidence, as between  the  Collector  and  the  persons
interested, whether they have respectively appeared before the Collector  or
not, of the true area and value of the land, and the  apportionment  of  the
compensation among the persons interested.

(2)  The  Collector  shall  give  immediate  notice  of  his  award  or  the
amendment thereof to such of the  persons  interested  as  are  not  present
personally or by their representatives  when  the  award  or  the  amendment
thereof is made.”




13.   Section 12(2) requires immediate notice to be given of  the  award  to
such of the persons interested as are not present  personally  or  by  their
representative/s when the award is made. Section 18(2) of the  Act  of  1953
requires to file the objections within six weeks from the date of the  award
if the person or the representative was present when the award was made.  In
other  cases, within six weeks of the receipt of notice from  the  Collector
under section 12(2) or  within  six  months  from  the  date  of  the  award
whichever period shall first expire.

14.         In the instant case, notice under section 12(2)  was  issued  to
the Society by the Special Officer on 31.12.1988, treating  the  Society  as
‘person  interested’  and  informing  that  an  award  had  been  passed  on
30.11.1982 in accordance with section 11 of the  Land  Acquisition  Act.  On
the strength of the aforesaid notices it was urged on behalf of the  Society
that the limitation to seek the reference would commence from  the  date  of
receipt of the notices issued and  received  on  31.12.1988.  The  reference
sought was within the period of limitation.

15.         Reliance has been placed on the decision of this Court in  Madan
& Anr. v. State of Maharashtra  [(2014)  2  SCC  720]  and  in  Raja  Harish
Chandra Raj Singh v. The Deputy Land Acquisition Officer &  Anr.  [AIR  1961
SC 1500] in which it has been laid down that  the  party  must  have  either
actual or constructive communication of the  order  which  is  an  essential
requirement of fair play and natural justice. The  date  of  award  used  in
proviso (b) to section 18(2) of the Act must be the date when the  award  is
either communicated to  the  party  or  known  by  him  either  actually  or
constructively. The award in the said case was passed on  25.3.1951.  Notice
of the award was however given to  the  appellant  as  required  by  section
12(2) on 13.1.1953 by which he received  information  about  making  of  the
said award. It was observed that it was necessary for the Collector to  give
immediate notice of his award under section 12(2) of  the  Act.  This  Court
has laid down in Raja Harish Chandra (supra) with respect to  the  knowledge
of the award by a party thus :

“6 ..... The knowledge of the party affected  by  such  a  decision,  either
actual or constructive, is an essential  element  which  must  be  satisfied
before the decision can be brought into force. Thus  considered  the  making
of the award cannot consist merely in the physical act of writing the  award
or signing it or even filing it in the office  of  the  Collector,  it  must
involve the communication of the said award to the  party  concerned  either
actually or constructively. If the award is pronounced in  the  presence  of
the party whose rights are affected by it it can be said  to  be  made  when
pronounced. If the date for the pronouncement of the award  is  communicated
to the party and  it  is  accordingly  pronounced  on  the  date  previously
announced the award is said to be communicated to the  said  party  even  if
the said party is not actually present on the  date  of  its  pronouncement.
Similarly if without notice of the date of its  pronouncement  an  award  is
pronounced and a party is not present the award can be said to be made  when
it is communicated to the party later. The knowledge of the  party  affected
by the award, either actual or constructive, being an essential  requirement
of fair-play and natural justice the expression  "the  date  of  the  award"
used  in  the  proviso  must  mean  the  date  when  the  award  is   either
communicated  to  the  party  or  is  known  by  him  either   actually   or
constructively. In our opinion,  therefore,  it  would  be  unreasonable  to
construe the words "from the date of the  Collector's  award"  used  in  the
proviso to s. 18 in a literal or mechanical way.”



16.    The  decision  of  the  Madras  High  Court  in  Muthia  Chettiar  v.
Commissioner of Income Tax, Madras [AIR 1951 Mad. 204] had  been  considered
and approved by this Court in Harish Chandra (supra) thus:

“10  It may, however, be pertinent to point out that the Bombay  High  Court
has taken a somewhat different view  in  dealing  with  the  effect  of  the
provision as to limitation prescribed by s. 33A(2) of the Indian  Income-tax
Act. This provision prescribes limitation for an application by an  assessee
for the revision of the specified class of orders, and it says that such  an
application should be made within one year from the date of  the  order.  It
is significant that while providing  for  a  similar  period  of  limitation
s. 33(1) specifically lays down that the limitation of  sixty  days  therein
prescribed is to be calculated from the date on which the order in  question
is communicated to the assessee. In other words, in  prescribing  limitation
s. 33(1)expressly provides for the commencement of the period from the  date
of the communication of the order, whereas s. 33A(2) does not refer  to  any
such communication; and naturally the argument was  that  communication  was
irrelevant under s. 33A(2) and limitation would commence as from the  making
of the order without reference  to  its  communication.  This  argument  was
rejected by the Bombay High Court and  it  was  held  that  it  would  be  a
reasonable interpretation to hold that  the  making  of  the  order  implies
notice of the said order,  either  actual  or  constructive,  to  the  party
affected by it. It  would  not  be  easy  to  reconcile  this  decision  and
particularly the reasons given in its support with the decision of the  same
High Court in the case of Jehangir Bomanji AIR 1954 Bom. 419.  The  relevant
clause under s. 33A(2) of the Indian Income-tax Act has also been  similarly
construed by the Madras High Court in  O.A.O.A.M.  Muthia  Chettiar  v.  The
Commissioner of Income-tax, Madras [I.L.R. 1951 Mad. 815.]. "If a person  is
given a right to resort to a remedy to get rid of an adverse order within  a
prescribed time", observed  Rajamannar,  C.J.,  "limitation  should  not  be
computed from a  date  earlier  than  that  on  which  the  party  aggrieved
actually knew of the order or had an opportunity of knowing  the  order  and
therefore must be presumed to have the knowledge of  the  order".  In  other
words the Madras High Court has taken the view that the omission to use  the
words "from the date of communication" in  s.  33A(2)  does  not  mean  that
limitation can start to run against a party even  before  the  party  either
knew or should have  known  about  the  said  order.  In  our  opinion  this
conclusion is obviously right.”



              It  is  thus  clear  that  either  party  should  have  actual
knowledge or constructive notice i.e., should  have  known  about  the  said
order.

17.          In the instant case it is apparent  that  the  Housing  Society
had preferred objections and was aware of the land acquisition  process  and
determination of compensation and has filed objections which stood  rejected
on 4.9.1982. Thus,  the  constructive  knowledge  of  the  award  is  fairly
attributable to it when it was  so  passed.  Constructive  notice  in  legal
fiction signifies that the individual person should  know  as  a  reasonable
person  would  have.  Even  if  they  have  no  actual  knowledge   of   it.
Constructive notice means a man ought to have known  a  fact.  A  person  is
said to have notice of a fact when he actually knows a fact but  for  wilful
abstension from inquiry or search which he ought  to  have  made,  or  gross
negligence he would have known it. Constructive notice is a notice  inferred
by law, as distinguished from actual or formal notice; that  which  is  held
by law to amount to notice. The concept  of  constructive  notice  has  been
upheld by this Court in Harish Chandra (supra).

18.         It is also apparent that the Society had  actively  participated
in the other pending cases with respect to determination of compensation  in
which award had been passed on 2.1.1989. Thus the reference  sought  on  the
strength  of  the  notice  under  section  12(2)  issued  and  received   on
31.12.1988  would  not  provide  limitation  to  the  Society  for   seeking
reference with respect to the four cases in which the award  was  passed  on
30.11.1982 as notice to it was wholly unnecessary in view  of  rejection  of
its objection on the ground that it was not having right, title or  interest
in the land. Thus it could not be said to be  ‘person  interested’  in  view
of the order dated 4.9.1982. The notice was issued for  reasons  best  known
to the Special Officer. It is surprising how and  for  what  reasons  notice
was issued after six years. We need not go into this aspect any  further  as
we are of the opinion that in the facts and circumstances, the  Society  had
a constructive notice of the award dated 30.11.1982. Thus, in  view  of  the
conjoint  reading  of  sections  12(2)  and  18(2)  of  the  Rajasthan  Land
Acquisition Act, it was not open to the LAO to refer the case to  the  civil
court on the basis of the time barred application.

19.         Coming to the question whether in view  of  section  42  of  the
Rajasthan Tenancy Act, the transaction entered into by the Society with  the
original Khatedars are void and whether on that basis, it  had  a  right  to
maintain the reference and to claim compensation? The  Society  is  said  to
have entered into agreements to sell on 17.2.1974, 21.2.1974 and  21.2.1976.
These agreements have not been placed on  record  by  the  Society.  It  was
incumbent upon the Society to file these agreements. Be that as it may.  The
Society has  filed  certain  affidavits  of  Khatedars  along  with  counter
affidavits filed by it. In the case of Ram Pyari and others, the  affidavits
of various Khatedars have been filed by the Societey in  which  their  caste
has been mentioned as ‘Bairwa’. The caste  of  the  original  Khatedars  has
never been disputed. ‘Bairwa’ caste is a Scheduled Caste. Before this  Court
also in the case of Ram Pyari in the  SLP  preferred,  averments  have  been
made to the effect that the original Khatedars  belong  to  Scheduled  Caste
and the sale in favour of a person not belonging to Scheduled Caste is  void
as per the mandate of section 42  of  the  Rajasthan  Tenancy  Act.  In  the
counter affidavit filed on behalf of the Society, the factum that  Khatedars
are ‘Bairwa’ and belongs to Scheduled Caste, has  not  been  denied.  Before
the Reference Court also, the stand of the State Government was that as  the
Khatedars belong to Scheduled  Caste,  the  transaction  was  prohibited  by
section 42 of the Rajasthan Tenancy Act. On behalf of the  Society,  it  was
submitted in counter affidavit that  as  it  is  a  Society,  the  rigor  of
provisions of section 42 is  not  attracted  and  it  had  relied  upon  the
circular  dated  1.9.1984  issued  by  the  Government  of   Rajasthan   for
regularisation of the land sold in violation of section 42 of the  Rajasthan
Tenancy  Act.  The  Society  has  failed  to  deny  clear  and   categorical
averments, non-denial makes the aforesaid facts  undisputed  one.  There  is
not even an evasive denial that Khatedars do not belong to Scheduled  Caste.
Even in the additional affidavit filed on behalf of the Society in the  wake
of the rejoinder filed by the petitioner in reply to the  counter  affidavit
of respondent No.2, the  caste  of  the  original  Khatedars  has  not  been
disputed.  Thus,  we  are  of  the  considered  opinion  that  the  original
Khatedars are ‘Bairwa’ by caste which is a  Scheduled  Caste  and  they  are
entitled to the protection of the provisions contained in section 42 of  the
Rajasthan Tenancy Act.

20.         The provisions of  section  42  of  the  Rajasthan  Tenancy  Act
declare the transaction entered into by a Scheduled Caste  with  any  person
other than a person of a Scheduled Caste or by a Scheduled  Tribe  with  any
other tribe to  be  void.  Section  42  of  the  Rajasthan  Tenancy  Act  is
extracted hereunder :

            “Section 42 - General restrictions on sale, gift & bequest


1[The sale, gift or bequest by a Khatedar tenants of  his  interest  in  the
whole or part of his holding shall be void, if


2[***]


(b) such sale, gift or bequest is by a number of Scheduled Caste  in  favour
of a person who is not a member of the Scheduled Caste, or by a member of  a
Scheduled Tribe in favour of a person who in not a member of  the  Scheduled
Tribe.


3[***]


"[(bb) such sale, gift or bequest,  notwithstanding  anything  contained  in
clause (b), is by a member of Saharia Scheduled Tribe in favour of a  person
who is not a member of the said Saharia tribe."]4



21.   The so-called agreements dated  15.2.1974,  17.2.1974,  21.2.1974  and
21.2.1976 which were purportedly  entered  into  by  the  Society  with  the
Khatedars were thus clearly void as per the mandate of  section  42  of  the
Rajasthan Tenancy Act. The notification in the instant case under section  4
was issued on 12.1.1982. The plea of part-performance under section  53A  of
Transfer  of  Property  Act  was  also  not  available  to  the  Society  as
transaction is void.



22.   The equally futile is the submission  that  since  the  Society  is  a
juristic person, sale cannot be said to be in contravention  of  section  42
of the Rajasthan Tenancy Act. ‘Sale’ is permitted by a person  of  Scheduled
Caste to another person of Scheduled Caste. The Society cannot  be  said  to
be a person of ‘Scheduled Caste’. The Society cannot be said to be a  person
included in the notification issued under Article 341  of  the  Constitution
of India. Article 341 of  the  Constitution  envisages  notification  to  be
issued for inclusion of Scheduled Caste in relation  to  a  State  or  Union
Territory. The  expression  ‘person’  in  section  42(b)  of  the  Rajasthan
Tenancy Act is  to a natural person and not a juristic person and  the  mere
fact that some of the persons of  the  Society  belong  to  Scheduled  Caste
would not make the transaction with such a Housing Society valid  one.  This
Court in State of Rajasthan & Ors. v.  Aanjaney  Organic  Herbal  Pvt.  Ltd.
[(2012) 10 SCC 283] has considered the question of provisions of section  42
of the Rajasthan Tenancy Act and held that bar is attracted  to  a  juristic
person  :

“12. The expressions “Scheduled Castes” and “Scheduled Tribes”, we  find  in
Section 42(b) of the Act have to  be  read  along  with  the  constitutional
provisions and, if so read, the expression “who  is  not  a  member  of  the
Scheduled Caste or Scheduled Tribe” would mean a  person  other  than  those
who have been included in the public notification as per  Articles  341  and
342 of the Constitution. The expression “person” used in  Section  42(b)  of
the Act therefore can only be a natural person and not  a  juristic  person,
otherwise, the entire purpose of that  section  will  be  defeated.  If  the
contention of the Company is accepted, it can purchase land  from  Scheduled
Caste/Scheduled Tribe  and  then  sell  it  to  a  non-Scheduled  Caste  and
Scheduled Tribe, a situation the legislature wanted to avoid. A thing  which
cannot  be  done  directly  cannot  be  done  indirectly  overreaching   the
statutory restriction.

13.    We are, therefore, of the view that the reasoning of the  High  Court
that the respondent being a juristic person, the sale effected by  a  member
of Scheduled Caste to a juristic person, which does not  have  a  caste,  is
not hit  by  Section  42  of  the  Act,  is  untenable  and  gives  a  wrong
interpretation to the abovementioned provision.”

          In view of the aforesaid dictum it is crystal clear that the  sale
to the Society which is  a  juristic  person  is  ab  initio  void  and  not
recognisable in the eye of law.

23.   This Court in Manchegowda & Ors. v. State of Karnataka & Ors.  [(1984)
3 SCC 301] has considered the validity  of  sections  3,  4  and  5  of  the
Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer  of
Certain Lands) Act, 1978 which prohibited  transfer  of  granted  lands  and
provided for resumption thereof,  it  was  held  that  even  the  prohibited
transaction effected prior to commencement of the Act can be  nullified  and
sections 4 and 5 are not violative of Article 19(1)(f) as it stood prior  to
its omission in 1978. Neither the provision is violative of Articles 31  and
31A of the Constitution of India and a transferee  shall  have  no  property
right and recovery of such property would not attract  Article  31  or  31A.
This Court also held that the provisions  have  reasonable  nexus  with  the
object sought to be achieved. The  Scheduled  Castes  and  Scheduled  Tribes
form a distinctive class. Exclusion of other communities from the  provision
is not  discriminatory.  The  right  of  the  Legislature  to  declare  such
transactions to be void has been upheld by this Court in following manner  :


“12.  In pursuance of this policy, the Legislature is undoubtedly  competent
to pass an enactment providing that transfers of such granted lands will  be
void and not merely voidable for properly safeguarding  and  protecting  the
interests of the Scheduled Castes and Scheduled  Tribes  for  whose  benefit
only these lands  had  been  granted.  Even  in  the  absence  of  any  such
statutory provisions, the transfer of granted lands in contravention of  the
terms of the grant or in breach of any  law,  rule  or  regulation  covering
such grant will clearly be voidable  and  the  resumption  of  such  granted
lands after avoiding the voidable transfers in accordance with law  will  be
permitted. Avoidance of  such  voidable  transfers  and  resumption  of  the
granted lands through process of law is hound to take time.  Any  negligence
and delay on the part of the authorities entitled to take  action  to  avoid
such transfers through appropriate legal  process  for  resumption  of  such
grant may be further impediments in the matter of  avoiding  such  transfers
and  resumption  of  possession  of  the  granted  lands.  Prolonged   legal
proceedings will undoubtedly be prejudicial to the interests of the  members
of the Scheduled Caste and Scheduled Tribe for  whose  benefit  the  granted
lands are  intended  to  be  resumed.  As  transfers  of  granted  lands  in
contravention of the terms of the grant  or  any  law,  regulation  or  rule
governing such grants can be legally avoided and possession  of  such  lands
can be  recovered  through  process  of  law,  it  must  be  held  that  the
Legislature for the purpose of avoiding delay and harassment  of  protracted
litigation and in furthering its  object  of  speedy  restoration  of  these
granted lands  to  the  members  of  the  weaker  communities  is  perfectly
competent to make suitable provision for resumption of  such  granted  lands
by  stipulating  in  the  enactment  that  transfers  of   such   lands   in
contravention of the terms of the grant  or  any  regulation,  rule  or  law
regulating such grant will be void and in  providing  a  suitable  procedure
consistent with  the  principles  of  natural  justice  for  achieving  this
purpose without recourse to prolonged litigation  in  Court  in  the  larger
interests of benefiting the members of the Scheduled  Castes  and  Scheduled
Tribes.”



24.   Without payment of compensation, land can be  resumed  has  also  been
held by this Court and even in a case when grant was for a  certain  period,
the land could  be  resumed.  The  vires  of  the  provisions  contained  in
sections 4 and 5 resuming the land without  compensation  has  been  upheld.
In Manchegowda (supra), this Court has laid down thus :

“19.   We have earlier noticed  that  the  title  which  is  acquired  by  a
transferee in  the  granted  lands,  transferred  in  contravention  of  the
prohibition against the transfer of the granted lands, is a  voidable  title
which in law is  liable  to  be  defeated  through  appropriate  action  and
possession of such granted lands transferred in breach of the  condition  of
prohibition could be recovered by the grantor. The right or  property  which
a transferee acquires in the granted lands, is a defeasible  right  and  the
transferee renders himself liable to lose  his  right  or  property  at  the
instance of the grantor. We have further observed that by the  enactment  of
this Act and particularly Section 4 and  Section 5 thereof  the  Legislature
is seeking to defeat the defeasible right of the transferee  in  such  lands
without the process of a prolonged  legal  action  with  a  view  to  speedy
resumption of such granted  lands  for  distribution  thereof  the  original
grantee or their  legal  representatives  and  in  their  absence  to  other
members of the Scheduled Castes and Scheduled  Tribes  Communities.  In  our
opinion, this kind of defeasible right of  the  transferee  in  the  granted
lands  cannot  be   considered   to   be   property   as   contemplated   in
Article 31 and 31A. The nature  of  the  right  of  the  transferee  in  the
granted land on transfer of  such  lands  in  breach  of  the  condition  of
prohibition relating to such transfer, the object  of  such  grant  and  the
terms thereof, also the law governing such grants and  the  object  and  the
scheme of the present Act enacted for the benefit of weaker sections of  our
community, clearly go to indicate that there is in this case no  deprivation
of  such  right   or   property   as   may   attract   the   provisions   of
Articles 31 and 31A of the Constitution.


20. In the case of Amar Singh v. Custodian, Evacuee Property, Punjab  (1957)
S.C.R. 801, this Court while considering the  provisions  of  Administration
of Evacuee Property Act 1930 (XXXI of 1950) and the nature of right  in  the
property allotted to a quasi-permanent allottee held that the  interests  of
a quasi-permanent allottee did not constitute property  within  the  meaning
of  Articles 19(1)(f), 31(1) and 31(2) of  the  Constitution.   This   Court
observed at p. 834:

“Learned Counsel for the Petitioners has strenuously urged  that  under  the
quasi-permanent allotment scheme the allottee is  entitled  to  a  right  to
possession within the limits of the  relevant  notification  and  that  such
right to possession is itself 'property'. That may be so in a sense. But  it
does not affect the question whether  it  is  property  as  to  attract  the
protection of fundamental rights under the Constitution. If the totality  of
the bundle of rights of the quasi-permanent allottee  in  the  evacuee  land
constituting  an  interest  in  such  land,  is  not  property  entitled  to
protection of fundamental rights, mere possession of the land by  virtue  of
such interest is not on any higher footing.”



25.   In the instant case, the transaction is ab initio void that  is  right
from its inception and is not voidable at the  volition  by  virtue  of  the
specific language used in section 42 of the Rajasthan   Tenancy  Act.  There
is declaration that such transaction of sale of holding “shall be void”.  As
the provision is declaratory, no further declaration is required to  declare
prohibited transaction a nullity. No right accrues to a person on the  basis
of such a transaction. The person who enters into an agreement  to  purchase
the same, is aware of the consequences of the provision carved out in  order
to protect weaker sections of Scheduled Castes  and  Scheduled  Tribes.  The
right to claim compensation accrues from right, title  or  interest  in  the
land. When such right, title or interest in  land  is  inalienable  to  non-
SC/ST, obviously the  agreements  entered  into  by  the  Society  with  the
Khatedars are clearly void  and   decrees  obtained  on  the  basis  of  the
agreement are violative of the  mandate  of  section  42  of  the  Rajasthan
Tenancy Act and are a nullity. Such  a  prohibited  transaction  opposed  to
public policy,  cannot  be  enforced.  Any  other  interpretation  would  be
defeasive of the very intent and protection carved out under section  42  as
per the mandate of Article 46 of the Constitution, in  favour  of  the  poor
castes and downtrodden persons, included in the Schedules  to  Articles  341
and 342 of the Constitution of India.

26.   In State of Madhya Pradesh v. Babu Lal & Ors. [1977 (2) SCC  435]  the
provisions contained in section 165(6) of M.P. Land Revenue Code, 1959  came
up for consideration before this Court. The High Court  directed  the  State
to file a suit for declaring the decree null and void. The decision was  set
aside. It was held that the case was a glaring instance of violation of  law
as such the High Court erred in not issuing a  writ.  The  decision  of  the
High Court was set aside. The transfer which was in violation of proviso  to
section 165(6) transferring the right of Bhuswami belonging to a tribe,  was
set aside.

27.   This Court in Lincal Gamango & Ors. v.  Dayanidhi  Jena  &  Ors.  [AIR
2004 SC 3457] while considering the provisions  of  Orissa  Scheduled  Areas
Transfer of Immovable Property (by Scheduled Tribes) Regulation, 1956  which
prohibited alienation of  rural  property  by  a  tribal  to  a  non-tribal,
declared such transaction to be null and  void.  This  Court  while  relying
upon the decision in Amrendra Pratap Singh v. Tej Bahadur Prajapati  &  Ors.
[AIR 2004 SC 3782] has laid down that no right can be  acquired  by  adverse
possession on such inalienable property. Adverse possession operates  on  an
alienable right. It was held that non-tribal would not acquire  a  right  or
title on the basis of adverse possession. Relevant discussion  is  extracted
hereunder :

“7.    We  find  both  these  reasons  given  by  the  High  Court  are  not
sustainable. Coming first to the second point,  we  find  that  there  is  a
decision of this Court direct on the point. It is reported in  AIR  2004  SC
3782, Amrendra Pratap Singh v. Tej Bahadur  Prajapati  and  Ors. The  matter
related to transfer  of  land  falling  in  tribal  area  belonging  to  the
Scheduled Tribes. The matter was governed by Regulations 2,  3  and  7-D  of
the Orissa Scheduled Areas Transfer  of  Immovable  Property  (By  Scheduled
Tribes) Regulations, 1956 viz. the same Regulations which govern  this  case
also. The question involved was  also  regarding  acquisition  of  right  by
adverse possession. Considering the matter in detail, in the  light  of  the
provisions of the aforesaid Regulation, this Court found  that  one  of  the
questions which falls  for  consideration  was  "whether  right  by  adverse
possession can be acquired by a non-aboriginal on the property belonging  to
a member of aboriginal tribe"? (para 14 of the judgment).  In  context  with
the above question posed, this Court observed in para 23 of the judgment  as
follows :

"......The right in the property ought to be one which is alienable  and  is
capable of being acquired by the competitor. Adverse possession operates  on
an alienable right The right stands alienated by operation of  law,  for  it
was capable of being alienated voluntarily and is sought  to  be  recognized
by doctrine of adverse possession as having  been  alienated  involuntarily,
by default and inaction on the part of the rightful claimant....."


“This Court then noticed  two  decisions  one  that  of  the  Privy  Council
reported in AIR 1923 P.C.  205 Madhavrao  Woman  Saundalgekar  and  Ors.  v.
Raghunath  Venkatesh  Deshpande  and  Ors.,  and   Karimullakhan  s/o.  Mohd
Ishaqkhan  and  Anr. v. Bhanupratapsingh, holding  that  title  by   adverse
possession on  inam  lands,  Watan  lands  and  Debutter  was  incapable  of
acquisition since alienation of such land was prohibited in the interest  of
the State. We  further  find  that  the  decision  in  the  case  of Madhiya
Nayak (supra) relied upon by the High Court  was  referred  to  before  this
Court and it is observed that the question as to whether a non-tribal  could
at all commence prescribing acquisition of title by adverse possession  over
the land belonging to a tribal which is  situated  in  a  tribal  area,  was
neither raised nor that point had arisen in the case  of Madhiya  Nayak.  It
is further observed that the provisions of Section 7-D  of  the  Regulations
are to be read in the light of the fact that the acquisition  of  right  and
title by adverse possession is  claimed  by  a  tribal  over  the  immovable
property of another tribal but not where the question is in regard to a non-
tribal claiming title by adverse possession over the  land  belonging  to  a
tribal situate in a tribal area. It is, therefore,  clear  in  view  of  the
decision in the case of Amrendra  Pratap  Singh (supra)  that  a  non-tribal
would not acquire right and  title  on  the  basis  of  adverse  possession.
Therefore, the second ground for setting  aside  the  order  passed  by  the
appellate court falls through. Therefore, the  other  factual  aspect  about
the possession of the respondents over the  disputed  land  and  entries  in
their favour may also not be of much consequence, in any case,  this  aspect
of the matter has to be seen and considered afresh in  the  light  of  other
facts and circumstances of the case.”



28.   This  Court  in  Amrendra  Pratap  (supra)  has  laid  down  that  the
expression ‘transfer’ would include any dealing with the property  when  the
word ‘deal with’ has not been defined in the statute. Dictionary meaning  as
the safe guide can be extended to achieve the intended object  of  the  Act.
The transaction or the dealing with alienable property to transfer title  of
an aboriginal tribe and vesting the same  in  non-tribal  was  construed  as
transfer of immovable property. Extending  the  meaning  of  the  expression
‘transfer of immovable property’ would include dealing  with  such  property
as would have the effect of causing or resulting in transfer of interest  in
immovable property. When the object of  the  legislation  is  to  prevent  a
mischief and to confer protection on the weaker  sections  of  the  society,
the court would  not  hesitate  in  placing  an  extended  meaning,  even  a
stretched one, on the word, if in doing so  the  statute  would  succeed  in
attaining the object sought to be achieved. When the intendment of  the  Act
is that the property should remain so confined in its operation in  relation
to tribals that the immovable property to one tribal may come but the  title
in immovable property is not to come to vest in a non-tribal the  intendment
is to be taken care by the protective arm of  the  law  and  be  saved  from
falling  prey  to  unscrupulous  devices,  and  this  Court  concluded   any
transaction or dealing with immovable property which would have  the  effect
of extinguishing title, possession or right to possess such  property  in  a
tribal and vesting the same in a non-tribal, would be  included  within  the
meaning of ‘transfer of immovable property’.

29.   It was further submitted on  behalf  of  the  Society  that  though  a
purchaser after issuance of notification under  section  4(1)  of  the  Land
Acquisition Act cannot question the legality of the notification,  but,  can
lay a claim for  payment  of  compensation.  Reliance  has  been  placed  on
U.P.Jal Nigam, Lucknow through its Chairman & Anr.  v. Kalra Properties  (P)
Ltd., Lucknow & Ors. [1996 (3) SCC 124].  When  we  consider  the  aforesaid
dictum, this Court has laid down that after notification under section  4(1)
was published, sale of land  is  void  against  the  State  and  M/s.  Kalra
Properties acquired no right, title or interest in the  land  and  it  is  a
settled law that it cannot challenge the validity  of  the  notification  or
the regularity in taking possession of the land before  publication  of  the
declaration under section 6.  M/s.  Kalra  Properties,  though  acquired  no
title to the land, at best would be entitled to step into the shoes  of  the
owner and claim compensation.  However,  in  the  instant  case,  it  was  a
transaction which was not only void against the State but  also  void  inter
se vendor and vendee.

30.       The right to claim compensation cannot be enforced by the  Society
on the basis of such transaction as that would defeat  the  very  object  of
the Act and the constitutional provisions including such castes  and  tribes
under the protective umbrella of the Schedules  to  Articles  341  and  342,
they cannot be deprived of right to obtain  the  compensation  of  the  land
legally held by them and they cannot be made to fall  prey  to  unscrupulous
devices of land grabbers. The  right  to  claim  compensation  is  based  on
right, title or interest in the land, cannot be  transferred  by  virtue  of
the mandate of section 42 to a juristic person like the Society. It  is  the
duty of the State to  ensure  that  the  benefit  reaches  to  such  persons
directly and not usurped  by  intermeddlers  as  what  is  intended  by  the
protection of the right to hold property of SC/ST, cannot be taken  away  by
disbursing the compensation to Society. Persons of SC/ST, as  the  case  may
be, are the only rightful claimants to disbursal of  compensation  and  such
right cannot be  tinkered  with  by  void  transaction  as  the  purpose  of
compensation is the re-settlement of Scheduled Castes or tribes.

31.   The other decision relied upon by the Society  is  V.Chandrasekaran  &
Anr. v. Administrative Officer & Ors.  [2012  (12)  SCC  133]  wherein  this
Court laid down thus :


“15. The issue of maintainability of the writ petitions by  the  person  who
purchases  the  land  subsequent  to  a  notification  being  issued   under
Section 4 of the Act has been considered by this Court time and again.


In Pandit Leela Ram v. Union of India  AIR 1975 SC  2112,  this  Court  held
that,   any   one   who   deals   with   the   land    subsequent    to    a
Section 4 notification being issued, does so,  at  his  own  peril.  In Sneh
Prabha v. State of Uttar Pradesh  AIR 1996 SC 540, this Court  held  that  a
Section 4 notification gives a notice to the public at large that  the  land
in respect to which it has been issued, is needed for a public purpose,  and
it further points out that there will  be  "an  impediment  to  any  one  to
encumber the land acquired thereunder." The alienation thereafter  does  not
bind the State or the beneficiary under the acquisition.  The  purchaser  is
entitled only  to  receive  compensation.  While  deciding  the  said  case,
reliance was placed on an earlier judgment of this Court in Union  of  India
v. Shri Shiv Kumar Bhargava and Ors.: JT (1995) 6 SC 274.


16. Similarly, in U.P. Jal Nigam v. Kalra Properties Pvt. Ltd. AIR  1996  SC
1170, this Court  held  that,  purchase  of  land  after  publication  of  a
Section 4 notification in relation to such land, is void against  the  State
and at the most, the purchaser may be a person-interested  in  compensation,
since he steps into the shoes of the  erstwhile  owner  and  may  therefore,
merely claim compensation. (See also: Star Wire (India)  Ltd.  v.  State  of
Haryana and Ors.


17. In Ajay Kishan Singhal v. Union of India AIR 1996 SC  2677; Mahavir  and
Anr. v. Rural Institute, Amravati and Anr.  (1995) 5 SCC 335; Gian Chand  v.
Gopala and Ors.  (1995) 2 SCC 528; and Meera Sahni  v.  Lieutenant  Governor
of Delhi and Ors. (2008) 9 SCC 177, this Court categorically  held  that,  a
person who purchases land after the publication of a  Section 4 notification
with respect to it, is not entitled to challenge  the  proceedings  for  the
reason, that his title is void and he can at best claim compensation on  the
basis of vendor's title. In view of this, the sale of  land  after  issuance
of a Section 4 notification is void and the purchaser cannot  challenge  the
acquisition proceedings. (See also: Tika Ram v. State of U.P. (2009) 10  SCC
689).


18. In view of the above, the law on the issue  can  be  summarized  to  the
effect that a person who purchases land subsequent  to  the  issuance  of  a
Section 4 notification with respect to it, is  not  competent  to  challenge
the validity of the acquisition proceedings on any  ground  whatsoever,  for
the reason that the sale deed executed in his favour does  not  confer  upon
him, any title and at the most he can claim compensation  on  the  basis  of
his vendor's title.”



32.    Reliance  has  been  placed  on  Dossibai  Nanabhoy   Jeejeebhoy   v.
P.M.Bharucha [1958 (60) Bom.LR 1208] so  as  to  contend  that  the  ‘person
interested’ in the land under section 9 of the Land  Acquisition  Act  would
include a person who claims interest in compensation to be paid  on  account
of acquisition of land and the interest contemplated under section 9 is  not
restricted to legal or proprietary estate or interest in the land  but  such
interest as will sustain a claim to  apportionment,  is  the  owner  of  the
land. In our opinion, the decision is of no avail. The  instant  transaction
being void as per section 42 of the Rajasthan Tenancy Act and  the  property
was inalienable to non-SC. Obviously, the logical corollary has to be  taken
that no right in  apportionment  to  compensation  can  be  claimed  by  the
Society.

33.          In Himalayan Tiles  and  Marble  (P)  Ltd.  v.  Francis  Victor
Coutinho (dead) by LRs. [1980 (3) SCC 223), it was laid  down  that  ‘person
interested’ within the meaning of section 18 of  the  Land  Acquisition  Act
would include a body, local authority, or a company for  whose  benefit  the
land is acquired . The company for whose benefit the land had been  acquired
was liable to pay compensation, was held to be a  ‘person  interested’.  The
decision is of no help  to  the  cause  espoused  by  the  Society  and  the
reliance on same is misplaced.

34.         It was vehemently urged on behalf of  the  Society  that  having
failed to take recourse to the provisions of section 175  of  the  Rajasthan
Tenancy Act, the Khatedars have lost their remedy  for  ignoring  the  title
acquired by the Society which has been perfected by the  compromise  decrees
passed by the civil court. Section 175  of  the  Rajasthan  Tenancy  Act  is
extracted below :

            “Section 175 - Ejectment for illegal transfer or sub-letting


1[(1)] If  a  tenant  transfers  or  sub-lets,  or  executes  an  instrument
purporting to transfer or sublet, the whole  or  any  part  of  his  holding
otherwise than in accordance  with  the  provisions  of  this  Act  and  the
transferee or sub-lessee or the purported such part  in  pursuance  of  such
transfer or sub lease, both the tenant and any  person  who  may  have  thus
obtained or may thus be in possession of the holding  or  any  part  of  the
holding, shall  on  the  application  of  the  land  holder,  be  liable  to
ejectment from the area  so  transferred  or  sub-let  or  purported  to  be
transferred or sub-let.


(2) To every application, under this Section  the  transferee  or  the  sub-
tenant or the purported transferee or the sub-tenant, as the  case  may  be,
shall be joined as a party.


(3) On an application being made under this section, the court  shall  issue
a notice to the opposite  party  to  appear  within  such  time  as  may  be
specified therein and show cause why he should not be ejected from the  area
so transferred or sublet or purported to be transferred or sub-let.]


(4) If appearance is made within the time specified in the  notice  and  the
liability to ejectment is contested, the court  shall,  on  payment  of  the
proper court fees, treat the application to be a suit and proceed  with  the
case as a suit:


Provided that in the  event  of  the  application  having  been  made  by  a
tehsildar in respect of land held directly  from  the  State  Government  no
court-fee shall be payable.


1[4(a) Notwithstanding anything to the  contrary  contained  in  sub-section
(4), if the application is in respect  of  contravention  of  the  provision
contained in section 42 or the proviso to sub-section (2) of section  43  or
section 49A, the court shall, after giving a reasonable opportunity  to  the
parties of being heard, conclude the enquiry in a summary  manner  and  pass
order, as far as may be practicable within a period  of  three  months  from
the date of the  appearance  of  the  non-applicants  before  it,  directing
ejectment of the tenant and his  transferee  or  sub-lessee  from  the  area
transferred or sub-let in contravention of the said provisions.]


(5) If no such  appearance  is  made  or  if  appearance  is  made  but  the
liability to ejectment is not contested the court shall pass  order  on  the
application as it may deem proper.”



35.         There is no  doubt  about  it  that  section  175  provides  for
ejectment for  illegal  transfer  or  subletting  in  contravention  of  the
provisions of the said Act. However,  there  is  no  question  of  ejectment
proceedings being filed in the instant case under  the  aforesaid  provision
that would have been exercised in futility as admittedly the possession  has
already been taken by the State on 22.5.1982. Apart from  that,  voidity  of
the transaction can be looked into in these proceedings also when  right  to
claim compensation is asserted by the Society and  from  factual  conspectus
of the instant case it  is  apparent  that  Khatedars  belong  to  Scheduled
Castes and they cannot be deprived of their  right  to  claim  compensation,
intendment of section 42 can be effectuated in these proceedings.

36.   On behalf of the Society, reliance has been placed on  a  decision  of
this Court In Nathu Ram (dead) by LRs. & Ors. v. State of Rajasthan  &  Ors.
[2004 (13) SCC 585]  in which this Court has considered  the  provisions  of
the Rajasthan Tenancy Act as it stood prior to its  amendment  made  in  the
Act. The limitation prescribed was 12  years  from  the  date  of  transfer.
After the amendment, it is thirty years. It was also laid down  that  though
the transfer was by itself void  but  the  period  of  limitation  would  be
applicable. In the instant case, there is  no  question  of  initiating  the
process under section 175 of  the  Rajasthan  Tenancy  Act  as  much  before
passing of the decrees by the civil court in the year 1986,  possession  had
been taken by the State in May, 1982 much before  limitation  lapsed.  Thus,
institution of proceedings for ejectment was not warranted.

37.   In Ram Karan (dead) through LR & Ors. v. State  of  Rajasthan  &  Ors.
[2014 (8) SCC 282], this Court has laid down that transfer of holding  by  a
member of Scheduled Caste to a member not belonging to  Scheduled  Caste  by
virtue of  section  42  of  the  Rajasthan  Tenancy  Act  is  forbidden  and
unenforceable. Such a transaction is unlawful even under section 23  of  the
Contract Act and an agreement or such transfer would be void  under  section
2(g) of the Contract Act. This Court also considered limitation  for  filing
ejectment under section 175. The proceeding filed after 31  years  was  held
to be barred by limitation. The decision is  distinguishable  for  aforesaid
reasons.

38.   It was next contended on behalf of the Society that  the  Society  has
acquired a right and such right  to  hold  property  cannot  be  taken  away
except in accordance with the provisions of a statute. If a  superior  right
to hold the property is claimed, the due procedure must  be  complied  with.
Reliance has been placed on Lachhman Dass v. Jagat Ram  &  Ors.  [2007  (10)
SCC 448], in which this Court has laid down thus:

“16.   Despite such notice, the appellant was not impleaded as a party.  His
right, therefore, to own and possess the  suit  land  could  not  have  been
taken away without giving him an opportunity of hearing in a matter of  this
nature.  To  hold  property  is  a  constitutional   right   in   terms   of
Article 300A of the Constitution of India. It is also a human  right.  Right
to hold property, therefore, cannot be taken away except in accordance  with
the provisions of a statute. If a superior  right  to  hold  a  property  is
claimed, the procedures therefore must  be  complied  with.  The  conditions
precedent therefore must be satisfied. Even otherwise,  the  right  of  pre-
emption is a very weak right, although it is a statutory right.  The  Court,
while granting a relief in favour of a pre-emptor,  must  bear  it  in  mind
about the character of the right, vis-a-vis, the  constitutional  and  human
right of the owner thereof.”



39.   Reliance has also been placed in Tukaram Kana  Joshi  &  Ors.  through
Power-of-Attorney holder v.  Maharashtra  Industrial  Development  Corpn.  &
Ors. [2013 (1) SCC 353] in which it has been laid down thus :

“8.   The Appellants were deprived of  their  immovable  property  in  1964,
when Article 31 of the Constitution  was  still  intact  and  the  right  to
property  was  a  part  of  fundamental  rights  under   Article 19 of   the
Constitution. It is pertinent to note that even after the Right to  Property
seized to be a Fundamental Right, taking  possession  of  or  acquiring  the
property of a citizen most certainly tantamounts  to  deprivation  and  such
deprivation can take place only in accordance with the "law",  as  the  said
word has specifically been used in Article 300-A of the  Constitution.  Such
deprivation can be  only  by  resorting  to  a  procedure  prescribed  by  a
statute. The same cannot be done by  way  of  executive  fiat  or  order  or
administration caprice. In Jilubhai Nanbhai Khachar, etc. etc. v.  State  of
Gujarat and Anr. AIR 1995 SC 142, it has been held as follows: -

“In other words, Article 300-A only limits the power of the  State  that  no
person shall be deprived of his property save by authority of law. There  is
no deprivation without due sanction of law. Deprivation by  any  other  mode
is not acquisition  or  taking  possession  under  Article 300-A.  In  other
words, if there is no law, there is no deprivation.””



40.   In Rajendra Nagar Adarsh Grah Nirman Sahkari Samiti Ltd. v.  State  of
Rajasthan & Ors. [2013 (11) SCC 1] and Mathew Varghese v. M.Amritha Kumar  &
Ors. [2014 (5) SCC 610], observations as to  the  similar  effect  had  been
made.

41.   When we consider the aforesaid submission, it  is  apparent  that  the
right to hold property cannot be taken away except in  accordance  with  the
provisions of the statute but in the instant case, we are of the  considered
view that the right to hold property albeit had not  been  acquired  by  the
Society, transction was ab initio void and a nullity.  On  the  other  hand,
the land has been acquired by the State Government and  even  the  right  to
claim compensation was  denied  to  the  Society  in  the  award  passed  on
30.11.1982 by rejecting their objections. The recourse to  section  175  was
not required as already held by us.  The  question  of  entitlement  of  the
Society is  involved  in  the  cases  in  view  of  award  dated  30.11.1982
rejecting right of the Society to claim compensation.  Thus,  it  cannot  be
said that there is violation of the principles laid down by this  Court   in
aforesaid cases with respect to right  to  hold  property  which  cannot  be
taken away except as provided in the provisions of the statute.

42.   Coming to the question of direction to consider allotment of land  and
quantum of compensation determined in the instant case, the Reference  Court
had determined compensation at Rs.260 per sq.yd. whereas the High Court  has
determined it at Rs.100 per sq.yd. and the Division Bench  has  in  addition
ventured into directing the State Government  to  consider  the  prayer  for
allotment of 25% of the developed land  to  the  Society  in  the  light  of
Circular dated 27.10.2005 issued by the State Government  and  its  decision
in Smt. Ratni Devi v.  State  of  Rajasthan  &  Ors.  –  DB  Special  Appeal
No.697/1995 decided on 12.4.2007.

           First, we take  up  the  question  as  to  the  legality  of  the
direction issued by the High Court with  respect  to  allotment  of  25%  of
developed land in terms of the order passed in the case of Smt.  Ratni  Devi
(supra).

43.   When we consider the Circular dated 27.10.2005, the  State  Government
considered the prevalent scheme in which Khatedars could  ‘surrender’  their
land without compensation and would obtain 25% of the developed  residential
area in lieu thereof. Paras 1 and 4 of the Circular  are  relevant  and  are
quoted below :

“1. In the matters of land acquisition on making a surrender of the land  by
the Khatedar, he will  be  entitled  for  maximum  20%  residential  and  5%
commercial land to the said person from whom the  land  has  been  acquired.
But for the Khatedar no other person shall be allotted  the  land,  even  if
nominated by him.”

                                  x x x x x

“4.  These  provisions  shall  only  be  applicable,  in  case   of   future
acquisitions.   These  provisions  shall  be  specifically  be   applicable,
wherein the Land Acquisition  Officer have already declared  the  award  and
the compensation amount has been paid/deposited in the  Court  or  15%  land
have been allowed to be allotted in the award.”



44.   It is apparent from para 1 that the  Circular  is  applicable  in  the
matter of land acquisition when the Khatedars surrendered their lands.

45.   Para 4 of circular makes it clear that the provisions shall  apply  in
case of future acquisitions and the provisions shall  not  apply  where  the
Land Acquisition Officers have already passed the award/s.

46.         In the instant case, even the prevalent instructions which  have
been modified did not confer any right on the Society or  the  Khatedars  to
claim the developed land. It was not a  case  of  surrender  of  land;  thus
there was no question of the provisions of the  circular  being  applied  as
the circular was in the form of guidelines  for  future  acquisitions  where
Khatedars surrendered their lands and award has not  been  passed.  For  the
aforesaid reasons, the aforesaid circular could not have been  pressed  into
service by the Society and that  too  at  the  appellate  stage  before  the
Division Bench. The Division Bench has gravely erred in  law  while  issuing
the aforesaid directions which were wholly unwarranted and uncalled for.

47.   When we consider the decision in  Smt.  Ratni  Devi  (supra),  it  was
based upon a concession made by the counsel who appeared on  behalf  of  the
Jaipur Development Authority. The applicability  of  the  Circular  was  not
considered by the Division Bench. The matter was decided  on  the  basis  of
concession and the agreement between the parties. It  was  submitted  before
us on behalf of the Rajasthan Housing Board that a review petition had  been
preferred for recalling the aforesaid concession made unauthorisedly  before
the court. Be that as it may. In our opinion, the  Circular  itself  is  not
applicable and it was clearly a misadventure on the  part  of  the  Division
Bench in the instant case to rely upon the aforesaid decision in Smt.  Ratni
Devi (supra). No negative equality could be claimed.

48.   Earlier Circular dated  13.12.2001  had  been  issued  by  the  Deputy
Secretary to the Government of Rajasthan with respect to  allotment  of  15%
of the developed land. It has not been issued in the name of  the  Governor.
This Court has considered the enforceability of  such  circulars  in  Jaipur
Development Authority & Ors. v. Vijay Kumar Data & Anr. [2011 (12) SCC  94].
This Court has referred to the decision in Jaipur Development  Authority  v.
Radhey Shyam [1994 (4) SCC 370] in which the decision of the  LAO  to  allot
the plots in addition to compensation was set aside and  it  was  held  that
even in execution it was open to raise the question of validity  or  nullity
of the decree. Following is the relevant  discussion  in  Vijay  Kumar  Data
(supra) :


“12.  The  question  whether  the  Land  Acquisition  Officer  could   issue
direction for allotment of land to  the  awardees,  sub-awardees  and  their
nominees/sub-nominees was considered by this  Court  in  Radhey  Shyam  case
[1994 (4) SCC 370]. After noticing the provisions of Sections 31(3) and  (4)
of the 1953  Act  on  which  reliance  was  placed  by  the  Senior  Counsel
appearing for the respondents, this Court held  that  the  Land  Acquisition
Officer did  not  have  the  jurisdiction,  power  or  authority  to  direct
allotment of land to the claimants. This  is  clearly  borne  out  from  the
following extracts of para 7 of the judgment :

“7. A reading of sub-section (4) of Section  31,  in  our  considered  view,
indicates  that   the   Land   Acquisition   Officer   has   no   power   or
[pic]jurisdiction to give any land under acquisition or any  other  land  in
lieu of compensation. Sub-section (4) though  gives  power  to  him  in  the
matter of payment of compensation, it does not empower him to give any  land
in lieu of compensation. Sub-section (3)  expressly  gives  power  ‘only  to
allot  any  other  land  in  exchange’.  In  other  words  the  land   under
acquisition is not liable to be allotted  in  lieu  of  compensation  except
under Section 31(3), that too only to a person having  limited  interest.  …
The problem could be looked at from a different angle. Under  Section  4(1),
the appropriate Government notifies a  particular  land  needed  for  public
purpose. On publication of the declaration under Section 6,  the  extent  of
the land with specified demarcation gets crystallised  as  the  land  needed
for a public purpose. If the enquiry under Section 5-A was  dispensed  with,
exercising the power under Section  17(1),  the  Collector  on  issuance  of
notice under Sections 17, 9 and 10 is entitled to  take  possession  of  the
acquired land for use of public purpose. Even otherwise on making the  award
and offering to pay compensation he is empowered under Section  16  to  take
possession of the land. Such land vests in  the  Government  free  from  all
encumbrances. The only power for the  Government  under  Section  48  is  to
denotify the lands before possession is taken. Thus, in the  scheme  of  the
Act, the Land Acquisition Officer has no power to create an  encumbrance  or
right in the erstwhile owner to claim possession of a part of  the  acquired
land in lieu of compensation. Such power of the Land Acquisition Officer  if
is exercised would be self-defeating and subversive to public purpose.”

13. The Court in Radhey Shyam case  (supra)  also  considered  the  question
whether  the  appellant  could  challenge  the  award   in   the   execution
proceedings and answered the same in the affirmative. The reasons  for  this
conclusion are contained in para 8 of the judgment, the relevant portion  of
which is extracted below :

“8. … We have already said that what is executable is only  an  award  under
Section 26(2), namely, the amount awarded or the  claims  of  the  interests
determined of the respective persons in the acquired lands.  Therefore,  the
decree cannot incorporate any  matter  other  than  the  matters  determined
under Section 11 or those referred to and determined under  Section  18  and
no other. Since we have already held that the Land Acquisition  Officer  has
no power or jurisdiction to allot land in lieu of compensation,  the  decree
even, if any, under Section 18 to the  extent  of  any  recognition  of  the
directions in the award for the allotment of the land  given  under  Section
11 is a nullity. It is open  to  the  appellant  to  raise  the  invalidity,
nullity of the decree in execution in that behalf. Accordingly we hold  that
the execution proceedings directing delivery of possession of  the  land  as
contained   in   the   award   is,   invalid,   void    and    inexecutable.
(emphasis supplied)”


49.   In Vijay Kumar Data (supra), this Court referred to  the  decision  in
Jaipur Development Authority v.  Daulat  Mal  Jain  [1997  (1)  SCC  35]  in
following terms :



“14. The legality and correctness of the order  dated  24-9-1993  passed  by
the Division Bench of the Rajasthan High Court in DBCSAW  No.  680  of  1992
was considered in Jaipur Development Authority v. Daulat Mal  Jain  (supra).
This Court noted that the Lokayukta of  Rajasthan  had  severely  criticised
the  actions  of  the  then  Minister  of  Urban  Development  and   Housing
Department, Commissioner, Jaipur Development Authority and Zonal Officer  of
the Lal Kothi Scheme, referred to the Rajasthan Improvement Trust  (Disposal
of Urban Land) Rules, 1974 and held :

“22. Therefore, there was no policy laid by the Government and it cannot  be
laid contrary to the aforestated rules  and  no  such  power  was  given  to
individual Minister by executive action, as the land  was  already  notified
conclusively under  Section  6(1)  for  public  purpose,  namely,  earmarked
scheme. Since the persons whose land was acquired  were  not  owners  having
limited interest therein, qua  the  owners  having  lost  right,  title  and
interest therein, the sub-awardees or nominees, after the acquisition  under
Section 4(1), would acquire no title to the land nor such ultra  vires  acts
of the Minister would bind the Government. The actions, therefore, taken  by
the Minister-cum-Chairman of the appellate  authority  and  bureaucrats  for
obvious reasons would not clothe the respondents with any vestige  of  right
to allotment. Acceptance of the contentions  of  the  respondents  would  be
fraught with dangerous consequences. It would also bear poisonous  seeds  to
sabotage the schemes defeating  the  declared  public  purpose.  The  record
discloses that such allotment in many a case was in violation of  the  Urban
Land Ceiling  Act  which  prohibits  holding  the  land  in  excess  of  the
prescribed ceiling limit of the urban land.  In  some  instances,  a  person
whose land of 500 sq yd was acquired,  was  compensated  with  allotment  of
2000 sq yd and above, which is against the public policy defeating even  the
Urban Land Ceiling Act. Would any  responsible  Minister  or  a  bureaucrat,
with a sense of public  duty  and  responsibility,  transfer  such  land  to
sabotage the planned development of the scheme? Answer has obviously  to  be
in the negative. The necessary inference is that the policy  does  not  bear
any insignia of a public purpose, but appears to be a device to get  illegal
gratification or  distribution  of  public  property  defeating  the  public
purpose by misuse of public office.”

15. The Court further  held  in  Daulat  Mal  Jain  case  (supra)  that  the
decision taken by the Minister and  the  actions  of  the  bureaucrats  were
meant to benefit only those who  had  illegally  secured  transfer  of  land
after the publication of the notification issued under Section  4  and  that
the so-called policy is a policy to  feed  corruption  and  to  deflect  the
public purpose. This is evinced from para  23  of  the  judgment,  which  is
extracted below:

“23. There is no iota of evidence placed on record that under the  so-called
policy, anyone from general public could equally apply for allotment of  the
plots or was eligible to apply for such allotment nor any [pic]such  general
policy was brought to  our  notice.  The  allotment  has  benefited  only  a
specified class, namely, the awardees, sub-awardees  or  nominees  and  none
else. The decision by the Minister or the actions  of  the  bureaucrats  was
limited to the above class which included the  respondents.  Legitimacy  was
given to the void acts of Chottey Lal, the erstwhile owner as  well  as  the
LAO. Directions were given by the Minister  and  the  bureaucrats  acted  to
allot the land under the very void acts. They are  ultra  vires  the  power.
These acts are in utter disregard of the statute and the  rules.  Therefore,
by no stretch of imagination it can be said to  have  the  stamp  of  public
policy; rather it is a policy to feed corruption and to deflect  the  public
purpose and to  confer  benefits  on  a  specified  category,  as  described
above.”


50.        The plea of discrimination was adversely commented upon  by  this
Court in Vijay Kumar Data (supra) referring to the decision  in  Daulat  Mal
Jain (supra) thus :



“16.  The plea of discrimination which found favour with the High Court  was
also negatived by this Court in Daulat Mal Jain case  (supra) by making  the
following observations:

“24. The question then is whether the action of  not  delivering  possession
of the land to  the  respondents  on  a  par  with  other  persons  who  had
possession  is  an  ultra  vires  act  and  violates  Article  14   of   the
Constitution?  We  had  directed  the  appellants  to  file   an   affidavit
explaining the actions taken regarding the allotment which came to  be  made
to others. An affidavit has been filed in that behalf by Shri  Pawan  Arora,
Deputy  Commissioner,  that  allotments  in  respect  of  47  persons   were
cancelled and possession was not given. He listed various cases  pending  in
this Court and the High Court  and  executing  court  in  respect  of  other
cases. It is clear from the record that as and when any person had  gone  to
the court to get the orders of the LAO  enforced,  the  appellant  Authority
resisted such actions taking consistent stand  and  usually  adverse  orders
have been subjected to decision in various proceedings. Therefore, no  blame
of inaction or favouritism to others can be laid at the door of the  present
set-up of the appellant Authority. When the Minister was  the  Chairman  and
had made illegal allotments following which  possession  was  delivered,  no
action to unsettle any such illegal allotment could have  been  taken  then.
That apart, they were awaiting the outcome of pending cases. It  would  thus
be clear that the present set-up of the bureaucrats has  set  new  standards
to suspend the claims and is trying to legalise the ultra vires  actions  of
Minister and predecessor bureaucrats through the process of law so  much  so
that illegal and ultra vires acts are not allowed to be legitimised nor  are
to be perpetuated by aid of Article  14.  That  apart,  Article  14  has  no
application or justification  to  legitimise  an  illegal  and  illegitimate
action. Article 14 proceeds on the premise that  a  citizen  has  legal  and
valid right enforceable at law and persons having similar right and  persons
similarly circumstanced, cannot be  denied  of  the  benefit  thereof.  Such
person cannot be discriminated  to  deny  the  same  benefit.  The  rational
relationship and legal  back-up  are  the  [pic]foundations  to  invoke  the
doctrine of equality in case of persons similarly situated. If some  persons
derived benefit by illegality and had escaped  from  the  clutches  of  law,
similar persons cannot plead, nor the court  can  countenance  that  benefit
had from infraction of law and must be  allowed  to  be  retained.  Can  one
illegality be compounded by permitting similar illegal  or  illegitimate  or
ultra vires acts? Answer is obviously no.”



      51.   In Vijay Kumar (supra), this Court  after  quoting  circular  of
the State Government dated 6.12.2001 issued by the Deputy Secretary  of  the
Administration has observed thus :


“49.  It is trite to say that all executive actions  of  the  Government  of
India and the Government of a State are required to be taken in the name  of
the President or the Governor of the State concerned, as  the  case  may  be
(Articles 77(1) and 166(1)). Orders and other instruments made and  executed
in the name of the President or the Governor of a State,  as  the  case  may
be, are required to be authenticated in such manner as may be  specified  in
the rules to be made by the President or the Governor, as the  case  may  be
(Articles 77(2) and 166(2)).

                                  x x x x x

52.  Article 166 was interpreted in State of Bihar v. Kripalu Shankar  (1987
(3) SCC 34] and it was observed:

“14. Now, the functioning of Government in a State is  governed  by  Article
166 of the Constitution, which lays down that there shall be  a  Council  of
Ministers with the Chief Minister  at  the  head,  to  aid  and  advise  the
Governor in the exercise of his functions except where  he  is  required  to
exercise his functions under the Constitution, in  his  discretion.  Article
166 provides for the conduct of government business. It is useful  to  quote
this article:

‘166. Conduct of business of the Government of a  State.—(1)  All  executive
action of the Government of a State shall be expressed to be  taken  in  the
name of the Governor.
[pic]
(2) Orders and other instruments made  and  executed  in  the  name  of  the
Governor shall be authenticated in such manner as may be specified in  rules
to be made by the Governor, and the  validity  of  an  order  or  instrument
which is so authenticated shall not be called  in  question  on  the  ground
that it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the  more  convenient  transaction  of
the business of the Government of the State, and for  the  allocation  among
Ministers of the said business insofar as it is not  business  with  respect
to which the Governor is by or under this Constitution required  to  act  in
his discretion.’

15.  Article  166(1)  requires  that  all  executive  action  of  the  State
Government shall be expressed to be taken in the name of the Governor.  This
clause relates to cases where the executive action has to  be  expressed  in
the shape of a formal order or  notification.  It  prescribes  the  mode  in
which an executive action has to be expressed. Noting by an official in  the
departmental file will not, therefore, come within  this  article  nor  even
noting by a Minister. Every executive decision need  not  be  as  laid  down
under Article 166(1) but when it takes the  form  of  an  order  it  has  to
comply with Article 166(1). Article 166(2)  states  that  orders  and  other
instruments made and executed under Article 166(1), shall  be  authenticated
in  the  manner  prescribed.  While  clause  (1)  relates  to  the  mode  of
expression, clause (2) lays down the manner in which  the  order  is  to  be
authenticated and clause (3) relates to the  making  of  the  rules  by  the
Governor for  the  more  convenient  transaction  of  the  business  of  the
Government. A study of this article, therefore,  makes  it  clear  that  the
notings in a file get culminated into an order affecting  right  of  parties
only when it reaches the head of the department  and  is  expressed  in  the
name of the Governor,  authenticated  in  the  manner  provided  in  Article
166(2).”

53.  It is thus clear that unless an order is expressed in the name  of  the
President or the Governor and is authenticated in the manner  prescribed  by
the rules, the same cannot be treated as an order  made  on  behalf  of  the
Government. A reading of the  Letter  dated  6-12-2001  shows  that  it  was
neither expressed in the name of the Governor nor was  it  authenticated  in
the manner prescribed by  the  rules.  That  letter  merely  speaks  of  the
discussion made by the Committee  and  the  decision  taken  by  it.  By  no
stretch of imagination the same can be treated as a policy decision  of  the
Government within the meaning of Article 166 of the Constitution.

54.  We are further of the view that even if the instructions  contained  in
the Letter dated 6-12-2001 could  be  treated  as  policy  decision  of  the
Government, the High Court should have quashed the  same  because  the  said
policy was clearly contrary to the law declared  by  this  Court  in  Radhey
Shyam case (supra) and Daulat Mal Jain case (supra) and was a crude  attempt
by the political functionaries concerned of the State to legalise  what  had
already been declared illegal by this Court.”


52.   Thus, it is apparent that the circular in question cannot  be  pressed
into service  by  the  Society.  Apart  from  inapplicability,  it  is  also
apparent that the very purpose of issuing such circulars is not  to  benefit
the purchaser who has acquired the  right  after  issuance  of  notification
under section 4 of Rajasthan Land  Acquisition  Act,  and  in  violation  of
mandate of section 42. Consequently, the High Court had no  jurisdiction  to
direct  allotment  of  land.  Even  Khatedars  were  not  entitled  to  such
direction/benefit as the circulars are not applicable in such cases.

53.   We may refer to the decision in Hari Ram & Anr. v. State of Haryana  &
Ors. [2010 (3) SCC 621] relied upon on behalf of the  Society in which  this
Court  considered  passing  of  different  orders,  in  respect  of  persons
similarly situated, relating to same  acquisition  proceedings.  The  action
was held to be violative of Article 14 being  discriminatory.  There  is  no
doubt about it that different standards cannot  be  applied  for  withdrawal
from acquisition. The present is not  such  a  case.  The  circular  is  not
applicable. We cannot direct the State to act upon the circulars  which  are
not applicable. Under the Code that all actions of the State are to be  fair
and legitimate, we cannot create negative  equality  and  confer  a  benefit
that too on the strength of a concessional statement which is  not  provided
by circular. Concession made by the counsel in  Ratni  Devi’s  case  (supra)
cannot widen scope of  circular.

54.   We may also refer to other decisions relied  upon  in  Usha  Stud  and
Agricultural Farms Pvt. Ltd. & Ors. v. State of Haryana  &  Ors.  [2013  (4)
SCC 210] laying down that once a State  Government  has  taken  a  conscious
decision to release the land, there would  be  no  justification  whatsoever
for the State for not according similar treatment to the appellants is  also
of no avail to the Society.

55.   Coming to the quantum of compensation to be  awarded  in  the  instant
case, it was submitted on behalf of the Society and Khatedars in  respective
appeals that the compensation determined by  the  High  Court  is  on  lower
side. Adequate compensation has not been determined. It was  submitted  that
oral evidence which was relied upon by the Reference  Court  ought  to  have
been acted upon by the High Court. It was contended that the  oral  evidence
cannot be ignored. By virtue of decisions in State  of  Gujarat  &  Ors.  v.
Rama Rana & Ors. [1997 (2) SCC 693],  Satyanarayana  &  Ors.  v.  Bhu  Arjan
Adhikari & Ors. [2011 (15) SCC 133] and Ramanlal Deochand Shah v.  State  of
Maharashtra & Anr. [2013 (14) SCC 50].

56.          The price of the  land  per  sq.  yd.  was  determined  by  the
Reference Court. The documentary evidence which has been referred to by  the
Reference Court comprises of Ex. 1 agreement dated 26.8.1982 at the rate  of
Rs.135 per sq.yd., Ex. 3 agreement dated 7.1.1982 at the rate of Rs.165  per
sq.yd., agreement dated 28.9.1981 at the rate of Rs.135 per sq.yd.  for  244
sq.yd. and agreement dated 5.5.1979 at the rate of Rs.94 per sq.yd.  Certain
transactions of 1983 were also referred  which  have  to  be  ignored  being
subsequent to the date of notification under section 4.  However,  referring
to the oral statement of the witnesses in which value was stated to be  much
more, the Reference Court has  arrived  at  the  conclusion  of  Rs.260  per
sq.yd. The Single Bench of the High Court considered and  referred  to  both
the oral and documentary evidence.  Ex.1  agreement  dated  26.8.1982  about
the sale of plot No.55 situated in Krishna Vihar Gopalpura  @  Rs.115/-  per
sq. yds., Ex.3 is agreement to sale of land of 200 sq. yds. Agreement  dated
7.1.1982 at the rate of Rs.165/- per sq.  yds.  situated  at  Maharani  Farm
Duragapura. Ex.4-A  agreement to sale of 244  sq.  yds.  dated  29.8.1981  @
Rs.135/-  per  sq.yds.  situated  at  Brijalpur  from  Krishnapuri   Housing
Society, Ex.5 agreement dated 24.7.1982 of 18000 sq.yds. of land @  Rs.125/-
per sq.yds. for a total  amount  of  Rs.22,55,000/-  entered  between  Meena
Kumari Housing Society and trustee Devi  Shanker  Tiwari,  Ex.  7  Agreement
dated  16.9.1983  about  the  sale  of  land  measuring  147  sq.  yds.  for
Rs.22,100/- approx. @ Rs.150/- per sq. yds. and the land  situated  in  gram
panchayat Bhagyawas, Ex.8  agreement dated  5.5.1979  of  34,000  sq.yds.  @
Rs.90-94 per sq. yds.

57.   It also considered oral evidence in detail and  has  not  relied  upon
the same and has arrived at the  average  price  to  be  Rs.135  per  sq.yd.
making certain deduction as large area has been acquired. In  case  area  in
question  had  been  developed,  certain  area  was  bound  to  go  in   the
development. Thus, deduction which has been made to arrive at the figure  of
Rs.100 per sq.yd. is proper. We find in the facts and circumstances  of  the
case that the finding arrived at by the single Bench to be  appropriate.  No
doubt about it. Oral evidence can also be taken into  consideration  but  in
the facts of this case, the best evidence is documentary evidence which  has
to prevail. In the face of the documentary evidence evincing  the  price  of
the land per sq.yd. the oral evidence which was based upon  ipse  dixit  and
without any sound basis, could not  have  been  accepted  by  the  Reference
Court. Thus, the grave error which was committed had  been  rightly  set  at
naught by the single  Bench  of  the  High  Court,  which  determination  of
compensation has also not been interfered by a Division Bench.

58.      Reliance has been placed upon State of Gujarat & Ors. v. Rama  Rana
& Ors. [1997 (2) SCC 693] with respect to acceptance  of  oral  evidence  in
which case there was failure on the part of the Agricultural  Department  to
produce statistics as to the nature of the crops and the  prices  prevailing
at that time. In that context, it was observed that oral evidence cannot  be
rejected due to such failure and the court has a duty to  subject  the  oral
evidence to great scrutiny and to  evaluate  the  evidence  objectively  and
dispassionately to reach a finding on compensation.

59.         Reliance has also been placed  on  Satyanarayana  v.  Bhu  Arjan
Adhikari & Ors. [2011 (15) SCC 133] in which it has been laid down  that  an
analysis of the evidence by the Reference  Court  has  to  be  satisfactory.
Reliance has also  been  placed  on  Ramanlal  Deochand  Shah  v.  State  of
Maharashtra & Anr. [2013 (14) SCC  50]  laying  down  that  it  is  for  the
claimant to prove  that  the  amount  awarded  by  the  Collector  needs  an
enhancement and for that purpose,  oral  and  documentary  evidence  can  be
adduced and when there is non-consideration of material evidence,  the  case
can be remanded to lead evidence. In this case,  there  is  proper  scrutiny
and evaluation of oral and documentary  evidence  by  the  High  Court.  The
decision of the High Court with respect  to  determination  of  compensation
deserves to be upheld.

60.     The High Court has rejected the application under Order  1  Rule  10
filed by the Khatedars. In the facts of  this case,  particularly  when  the
issue of violation of section 42 of Rajasthan Tenancy Act was raised by  the
State Government and reference was also as to the award passed  in  1982  in
favour of Khatedars in which the Society was denied  the  right  to  receive
compensation.  Obviously,  Khatedars  were  required  to  be  heard  as  the
adjudication of their right was involved in the matter  to  decide  to  whom
the compensation is payable, and whether the Society was entitled  to  claim
compensation on the basis of void transaction. It was also submitted  before
us that the Khatedars have sought reference under  section  30  against  the
Society, that question can be decided in  those  proceedings.  However,  the
factual matrix and its determination of the question as  to  entitlement  of
Society is necessary in the instant case, as such we have decided  it.  More
so,  the plight of downtrodden  class  of  the  Scheduled  Castes  Khatedars
cannot be prolonged and considering the provisions which have  been  enacted
for their protection, and the constitutional mandate,  we  are  inclined  to
exercise our power to set at rest the dispute between the parties  and  hold
that  only  Khatedars,  in  case  some  of  them  have  died,  their   legal
representatives would be entitled to  receive  the  compensation  which  has
been determined in the instant case.

61.   In order to protect the interest of the Scheduled  Caste  persons,  we
further direct that the Society or other intermeddler, or power of  attorney
holder  shall  not  be  paid  compensation   on   their   behalf   and   the
Collector/Land Acquisition  Officer  to  ensure  that  the  compensation  is
disbursed directly to the Khatedars or their legal representatives,  as  the
case may be, and that they are not deprived of the same by any  unscrupulous
devices of land grabbers etc. Let the compensation  be  disbursed  within  a
period of three months from today along  with  other  permissible  statutory
benefits.

62.   The direction issued by the High Court to grant 25% of  the  developed
land is hereby set aside. The appeals preferred  by  the  Rajasthan  Housing
Board and the  Khatedars  are  allowed  to  the  aforesaid  extent  and  the
remaining appeals  are  dismissed.  Parties  to  bear  their  own  costs  as
incurred.





.........................................CJI
                                        (H. L. Dattu)




...........................................J.
                                        (A.K. Sikri)



New                                                                   Delhi;
...........................................J.
May 1, 2015.                            (Arun Mishra)

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