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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
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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
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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
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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.
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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.
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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
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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.
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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;
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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."
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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
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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).
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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
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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
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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.
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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.
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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
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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).
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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.
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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.
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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
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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
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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 &
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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
