Land Acquisition Act, - Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the ‘Act’) was issued on 5.3.1963 in respect of the land admeasuring 139 bighas and 2 biswas including the aforesaid land of the appellant. A declaration under Section 6 of the Act was made in respect of the said land on 22.8.1963. The Land Acquisition Collector made the award under the Act on 29.11.1963. However, no award was made in respect of the land measuring 23 bighas and 7 biswas including the suit land as it had been shown to be the land of Central Government. However, the possession of the land in respect of which the award was made and the land transferred to the appellant was also taken and the Union of India handed it over to 2Page 3 Delhi Electric Supply Units (for short ‘DESU’) for the construction of staff quarters on 5.7.1966. The appellant claimed to have been deprived of the land without paying any compensation whatsoever, thus, there was a regular correspondence by the appellant - In a welfare State, statutory authorities are bound, not only to pay adequate compensation, but there is also a legal obligation upon them to rehabilitate such persons. The nonfulfillment of their obligations would tantamount to forcing the said uprooted persons to become vagabonds or to indulge in anti-national activities as such sentiments would be born in them on account of such ill-treatment. Therefore, it is not permissible for any welfare State to uproot a person and deprive him of his 9Page 10 fundamental/constitutional/human rights, under the garb of industrial development. The appellants have been deprived of their legitimate dues for about half a century. In such a fact-situation, we fail to understand for which class of citizens, the Constitution provides guarantees and rights in this regard and what is the exact percentage of the citizens of this country, to whom Constitutional/statutory benefits are accorded, in accordance with the law”. 11. The instant case is squarely covered by the aforesaid judgment in Tukaram’s case (supra) and thus, entitled for restoration of possession of the land in dispute. However, considering the fact that the possession of the land was taken over about half a century ago and stood completely developed as Ms. Ahlawat, learned counsel has submitted that a full-fledged residential colony of employees of DESU has been constructed thereon, therefore, it would be difficult for respondent no.1 to restore the possession. 12. In such a fact-situation, the only option left out to the respondents is to make the award treating Section 4 notification as, on this date, i.e. 12.2.2013 and we direct the Land Acquisition Collector to make the award after hearing the parties within a period of four 1Page 11 months from today. For that purpose, the parties are directed to appear before Land Acquisition Collector, C/o The Deputy Commissioner, South M.B. Road, Saket, New Delhi on 26.2.2013. The appellant is at liberty to file a reference under Section 18 of the Act and to pursue the remedies available to him under the Act. Needless to say that the appellant shall be entitled to all statutory benefits. 13. With these directions, the appeals are allowed. The judgments impugned herein are set aside. C.A. No. 203/2004 14. In view of the order passed in C.A. Nos. 204-205/2004, the appeal is dismissed.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.  204-205  OF 2004
Bhimandas Ambwani (D) Thr. Lrs.                   …Appellant
Versus
Delhi Power Company Limited                     …Respondents
with
C.A. No. 203/2004
O R D E R
CIVIL APPEAL NOS.  204-205  OF 2004
1. These  appeals  have  been  preferred  against  the  impugned
judgment  and  order  dated  22.3.2002,  passed  by  Delhi  High
Court in LPA No.46 of 1983 and judgment and order dated
21.5.2002 passed in Review Application C.M. No.893 of 2002
therein by way of which the appeal filed by the respondents
Page 2
against  the judgment and order of the learned Single Judge
dated 26.11.1982 had been allowed.
2. Facts and circumstances giving rise to these appeals are that :-
A. The appellant had been conferred title over the land in Khasra
No.307 admeasuring 3 bighas and 3 biswas situate in the revenue
estate of village Kilokri, Delhi and the Conveyance Deed for the same
was registered on behalf of the President of India in favour of the
appellant on 6.6.1962.
A Notification under Section 4 of the Land Acquisition Act,
1894 (hereinafter referred to as the ‘Act’) was issued on 5.3.1963 in
respect of the land admeasuring 139 bighas and 2 biswas including the
aforesaid land of the appellant.  A declaration under Section 6 of the
Act was made in respect of the said land on 22.8.1963.  The Land
Acquisition Collector made the award under the Act on 29.11.1963.
However, no award was made in respect of the land measuring 23
bighas and 7 biswas including the suit land as it had been shown to be
the land of Central Government. However, the possession of the land
in respect of which the award was made and the land transferred to the
appellant was also taken and the Union of India handed it over to
2Page 3
Delhi Electric Supply Units (for short ‘DESU’) for the construction of
staff  quarters  on  5.7.1966.   The  appellant  claimed  to  have  been
deprived of the land without paying any compensation whatsoever,
thus, there was a regular correspondence by the appellant  and in view
thereof Section 4 Notification under the Act was issued on 7.10.1968
in respect of the land admeasuring 31 bighas and 15 biswas including
the land in dispute.  The said Notification under Section 4 was not
acted upon, but a supplementary award No. 1651-A dated 16.2.1974,
was  made  in  respect  of  the  land  in  dispute,  making  reference  to
Section 4 Notification dated 5.3.1963.
B. Aggrieved, the appellant filed Writ Petition No.307 of 1972
before Delhi High Court and the said writ petition was disposed of
vide  judgment  and  order  dated  26.11.1982  making  it  clear  that
acquisition proceedings emanating from Notification dated 5.3.1963
came to an end rather stood superseded by second Notification dated
7.10.1968  and  therefore,  supplementary  award  No.1651-A  dated
16.2.1974 was illegal and without jurisdiction and thus, the award was
quashed.   The  respondents  were  directed  to  handover  the  vacant
possession  of  the  suit  property  to  the  appellant  by  31.12.1983.
However, liberty was given to the State to issue a fresh Notification
3Page 4
under Section 4 of the Act within a period of one year and till then the
possession could be retained by the respondents.
C. It  was  in  view  thereof,  a  Notification  dated  26.3.1983  was
issued under Section 4 of the Act in respect of the suit land and in the
meanwhile, the respondents preferred LPA No.46 of 1983 against the
said judgment and order of the learned Single Judge dated 26.11.1982.
D. Declaration under Section 6 of the Act dated 30.5.1983 was
issued in respect of the suit land and the respondents did not complete
the acquisition proceedings rather abandoned the same.
E. The Division Bench allowed the said LPA vide judgment and
order dated 22.3.2002.  Review Petition against the said LPA filed by
the appellant was dismissed on 21.5.2002.
Hence, these appeals.
3. Shri Arvind Kumar and Ms. Henna George, learned counsel
appearing  for  the  appellant  have  submitted  that  there  had  been  3
successive Notifications under Section 4 of the Act.  Therefore, the
second  Notification superseded  the first  and  the  third  Notification
superseded the second notification.  In response to the first Section 4
4Page 5
Notification there was no award as the Land Acquisition Collector
considered that the suit land belonged to the Central Government. The
supplementary award was made subsequent to the second Section 4
Notification making reference to the first Section 4 Notification dated
5.3.1963 which had already elapsed.  The learned Single Judge has
rightly decided the issue and in pursuance of the same once the third
Section  4  Notification  was  issued  on  26.3.1983  and  no  further
proceedings were taken, it also stood elapsed.  Therefore, in law, there
had been no proceedings regarding acquisition of the land in dispute.
The respondent-authorities cannot be permitted to encroach upon the
land of the appellant without resorting to the procedure prescribed by
law.  The Division Bench  erred in reversing  the  judgment  of the
learned Single Judge under the misconception that there was a valid
award in respect of the land in dispute as it could be made referable to
Notification  under  Section  4  dated  7.10.1968  and  therefore,  the
appeals deserve to be allowed.
4. Per contra, Ms. Avnish Ahlawat, learned counsel appearing for
the  respondent  no.1  and  Shri  Vishnu  Saharya,  learned  counsel
appearing for DDA have opposed the appeal contending that their
5Page 6
land had been acquired by the Union of India and handed over to the
respondent  no.1 after taking the amount of compensation from it.
Therefore, the said respondent cannot be penalised at such a belated
stage for the reason that DESU has deposited a sum of Rs.10,16,400/-
towards the price of land on 24.5.1966.  The judgment of the High
Court does not require to be interfered with and thus, the appeals are
liable to be dismissed.
5. We  have  considered  the  rival  submissions  made  by learned
counsel for the parties and perused the record.
6. There cannot be any dispute to the settled legal proposition that
successive Notifications under Section 4 or successive Declarations
under Section 6 of the Act can be made, however, the effect of the
same would be that earlier notification/declaration stands obliterated/
superseded and in such a fact-situation, it would not be permissible for
either of the parties to make any reference to the said notifications/
declarations which stood superseded.
7. In  Bhutnath Chatterjee v. State of West Bengal & Ors.,
(1969)  3  SCC  675,  this  Court  held  that  where  second  Section  4
Notification has been issued, the market value is to be determined in
6Page 7
terms of the later notification for the reason that there was an intention
to supersede the previous notification and if the Government did not
choose to explain the reasons which persuaded it to issue the second
notification, the court is justified in inferring that it was intended to
supersede the earlier notification by the later notification.
8. In  Land Acquisition Officer-cum-RDO, Chevella Division,
Ranga Reddy District v. A. Ramachandra Reddy & Ors., AIR
2011 SC 662, while dealing with the same issue, this Court held:    
“….. the Government after considering the facts
and circumstances, with a view to avoid further
challenge,  issued  a  fresh  notification  dated
9.9.1993  (gazetted  on  19.11.1993)  followed  by
final  declaration  dated,  16.2.1994.  The  State
Government did not subsequently cancel/rescind/
withdraw  the  notifications  dated  9.9.1993  and
16.2.1994.  The  State  Government  had  clearly
abandoned  the  earlier  notifications dated
3.1.1990 and 10.l.1990 by issuing the subsequent
notifications dated  9.91993  and  16.2.1994.  The
appellant cannot therefore contend that the second
preliminary notification is redundant or that first
preliminary  notification  continues  to  hold
good…..” (Emphasis added)
(See also : Raghunath & Ors. v. State of Maharashtra & Ors., AIR
1988 SC 1615; Hindustan Oil Mills Ltd. & Anr. vs. Special Deputy
Collector  (Land  Acquisition),  AIR  1990  SC  731;  and  Raipur
7Page 8
Development Authority v. Anupan Sahkari Griha Nirman Samiti
& Ors., (2000) 4 SCC 357).
9. In view of the above, Section 4 Notification dated 26.3.1983
and  Declaration  under  Section  6  dated  13.5.1983  superseded  all
earlier notification/declaration.  However, no proceedings were taken
in pursuance of the said notification/declaration issued in the year
1983 and after commencement of the Amendment Act 1987, the said
notification/declaration made in the year 1983 stood elapsed as no
award had been  made within the period stipulated under the Act.
Thus, there can be no sanctity to any of the acquisition proceedings
initiated  by  the  respondents  so  far  as  the  suit  land  is  concerned,
though the appellant stood dispossessed from his land in pursuance of
the Notification under Section 4 dated 5.3.1963.  Thus, we have no
hesitation  in  making  a  declaration  that  the  appellant  had  been
dispossessed  without  resorting  to  any  valid  law  providing  for
acquisition of land.  The Court is shocked as the appellant had been
dispossessed from the land during the period when right to property
was a fundamental right under Articles 31A and 19 of the Constitution
of India and subsequently became a constitutional and human right
under Article 300A.
8Page 9
10. This Court dealt with a similar case in Tukaram Kana Joshi &
Ors.  thr.  Power  of  Attorney  Holder  v.  Maharashtra  Industrial
Development Corporation & Ors., (2013) 1 SCC 353, and held :
“……There is a distinction, a  true and  concrete
distinction,  between  the  principle  of  "eminent
domain" and "police power" of the State. Under
certain  circumstances,  the  police  power  of  the
State may be used temporarily, to take possession
of property but the present case clearly shows that
neither of the said powers have been exercised. A
question then arises with respect to the authority or
power  under  which  the  State  entered  upon  the
land. It is evident that the act of the State amounts
to encroachment, in exercise of "absolute power"
which in common parlance is also called abuse of
power or use of  muscle power. To further clarify
this position, it must be noted that the authorities
have  treated  the  land  owner  as  a  'subject'  of
medieval  India,  but  not  as  a  'citizen'  under  our
constitution.
xx xx xx
Depriving the appellants of their immovable
properties, was a clear violation of Article 21 of
the  Constitution.
  In  a  welfare  State,  statutory
authorities are  bound,  not  only  to  pay  adequate
compensation, but there is also a legal obligation
upon them to rehabilitate such persons. 
The nonfulfillment of their obligations would tantamount
to  forcing  the  said  uprooted  persons  to  become
vagabonds or to indulge in anti-national activities
as  such  sentiments  would  be  born  in  them  on
account of such ill-treatment. Therefore, it is not
permissible   for  any  welfare  State  to  uproot  a
person  and  deprive  him  of  his
9Page 10
fundamental/constitutional/human rights, under the
garb of industrial development.  
The appellants have been deprived of their
legitimate dues for about half a century. In such a
fact-situation, we fail to understand for which class
of  citizens,  the  Constitution  provides guarantees
and rights in this regard  and what is the exact
percentage of the citizens of this country, to whom
Constitutional/statutory  benefits  are  accorded,  in
accordance with the law”. 
11. The instant case is squarely covered by the aforesaid judgment
in  Tukaram’s case  (supra)  and  thus,  entitled  for  restoration  of
possession of the land in dispute.  However, considering the fact that
the possession of the land was taken over about half a century ago and
stood  completely  developed  as  Ms.  Ahlawat,  learned  counsel  has
submitted  that  a  full-fledged  residential  colony  of  employees  of
DESU has been constructed thereon, therefore, it would be difficult
for respondent no.1 to restore the possession.
12. In  such  a  fact-situation,  the  only  option  left  out  to  the
respondents is to make the award treating Section 4 notification as, on
this date, i.e. 12.2.2013 and we direct the Land Acquisition Collector
to make the award after hearing the parties within a period of four
1Page 11
months from today.  For  that  purpose,  the  parties are directed  to
appear  before  Land  Acquisition  Collector,  C/o  The  Deputy
Commissioner, South M.B. Road, Saket, New Delhi on 26.2.2013.
The appellant is at liberty to file a reference under Section 18 of the
Act  and  to  pursue  the  remedies  available  to  him  under  the  Act.
Needless to say that the appellant shall be entitled to all statutory
benefits.
13. With these directions, the appeals are allowed. The judgments
impugned herein are set aside. 
C.A. No. 203/2004
14. In view of the order passed in C.A. Nos. 204-205/2004, the
appeal is dismissed.
..………………………….J.
(Dr. B.S. CHAUHAN)
   .…………………………..J.
(V. GOPALA GOWDA)
New Delhi;
February 12, 2013
1

under Section 100 of the Code of Civil Procedure, 1908, (for short the ‘the CPC’) was limited to only deciding substantial questions of law which arise in a case - when material evidence is not considered, which if considered, would have led to an opposite conclusion, a substantial question of law arises for decision which the High Court can decide in a Second Appeal under Section 100 C.P.C. whether the plaintiff was the owner of the suit property and the first appellate court has held in C.A. No. 1721 on 20.03.2004 that the plaintiff has not been able to prove his ownership 16Page 17 over the suit property and has further held in C.A. No.16-T filed on 19.09.1990 that the plaintiff’s own admitted case in the plaint is that the appellants had purchased the suit property from Col. Girdhar Singh and his family members and were in possession of the same and hence the plaintiff was not entitled to declaration of his title, recovery of possession and injunction. In this case, therefore, the first appellate court had decided the core issue against the plaintiff and no substantial question of law arose for decision in this case by the High Court under Section 100, CPC. 13. In the result, these appeals are allowed and the impugned common judgment and decree of the High Court is set aside. Considering, however, the peculiar facts and circumstances of the case, the parties shall bear their own costs.

Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.   1276  OF 2013
(Arising out of SLP (C) No. 29198 of 2010)
 
Nasib Kaur and Ors.                                        … Appellants
Versus
Col. Surat Singh (Deceased)
through L.Rs & Ors.                                     … Respondents
WITH
CIVIL APPEAL No.   1277  OF 2013
(Arising out of SLP (C) No. 29205 of 2010)
 
Nasib Kaur and Ors.        …
Appellants
Versus
Mrs. Dulari Singh and Ors.                           … Respondents
J U D G M E N T
A. K. PATNAIK, J.
Leave granted.
2. These are the appeals against the common judgment
dated 11.11.2009 of the High Court of Punjab and HaryanaPage 2
in R.S.A. Nos. 2579 of 1997 and 2482 of 2008 by way of
special leave under Article 136 of the Constitution.
3. The facts very briefly are that Col. Surat Singh filed
Civil Suit No. 735-T on 18.04.1987 for declaration that the
plaintiff was the owner and was in possession of suit land.
The plaintiff’s case in the suit was that while he was in
joint holding of some land, he sold 2 bighas and 16 biswas
of land out of his share without specifying any khasra nos.
to Col. Girdhar Singh and his family members (defendant
nos. 1 to 4) and thereafter defendant nos. 1 to 4 sold the
land  in  pieces  to  defendant  nos.  5  to  8  in  the  suit
specifying the khasra nos. and mutation nos. 1120 and
1174.  As the plaintiff did not sell the land specifying the
khasra nos. to Col. Girdhar Singh and his son, they had no
right to sell specific pieces of land with specific khasra
nos.  The plaintiff’s further case in the plaint was that the
specific khasra nos. which had been mutated in favour of
defendant nos. 3, 4 and 5 were not in accordance with the
registered sale deed in favour of Col. Girdhar Singh and
his  family  members.   Defendant  Nos.  1  to  4  did  not
contest the suit, whereas defendant Nos. 5 to 8 appeared
2Page 3
and filed their written statements.  On the pleadings of the
parties, the trial court framed issues and by its judgment
and decree dated 20.02.2004 found that the areas of land
sold under the sale deed dated 17.07.1978 by the plaintiff
was less by        1 Biswas than the area in the mutation
entries and similarly the area of land sold by the plaintiff
as Attorney of Nanak Singh was less than the area shown
in the mutation entries.  The trial court, therefore, ordered
for correction of the mutation entries, but directed that
the corrections to be carried out would have no effect as
regards the possession of the suit property, which has to
continue as before and would be liable to be changed as
and when any partition proceeding is effected between
the co-sharers.  Col. Surat Singh filed an appeal C.A. No.
1721 on 20.03.2004 before the Additional District Judge,
Patiala, but by judgment and decree dated 18.03.2008 the
Additional District Judge, Patiala, dismissed the appeal.
4. Col.  Surat Singh  also filed Civil Suit No. 148-T on
09.03.1987  for  permanent  injunction  restraining  the
defendants  from  raising  any  construction  on  the  suit
property  or  alienating  the  same  in  any  manner
3Page 4
whatsoever.  The plaintiff’s case in the suit was that he
sold 2 bighas and 16 biswas of land out of the joint holding
of his own share without specifying any khasra nos. to one
Col. Girdhar Singh and his son on 17.07.1978 and Col.
Girdhar Singh has thus become a co-sharer to the extent
of  2  bighas  and  16  biswas  in  his  joint  holding  of  the
property.  Col. Girdhar Singh, however, did not file any
partition proceedings seeking partition of his share out of
the joint holding.  Thereafter, Col. Girdhar Singh sold the
share to the extent of 2 bighas and 16 biswas of land to
the defendants in February, 1987 and the defendants are
now threatening to raise a new construction near the farm
house of the plaintiff in a place of their choice on the plea
that they had purchased the land without specific khasra
nos. from Col. Girdhar Singh.  The defendants contested
the suit by filing a written statement and their plea in the
written statement inter alia was that their predecessor-ininterest (Col. Girdhar Singh and his son) had purchased
the suit property from the plaintiff and his uncle, Nanak
Singh, vide sale deeds dated 17.07.1978 and 19.07.1979
and the plaintiff has himself delivered possession of the
4Page 5
property  purchased  by  their  predecessor-in-interest
without  khasra  nos.   Their  further  plea  in  the  written
statement was that Col. Girdhar Singh had constructed his
kothi and quarters and planted Eucalyptus trees on the
suit property and the plaintiff has not raised any objection
and the plaintiff was, therefore, estopped by his act and
conduct  from  filing  the  suit.   On  the  pleadings  of  the
parties, the trial court framed issues and in its judgment
and decree dated 18.08.1998 held that the plaintiff has
sold 4 bighas and 16 biswas of land to Col. Girdhar Singh
and others which is in possession of the defendants and
hence  the  plaintiff  was  not  entitled  to  injunction.
Aggrieved, Col. Surat Singh filed an appeal C.A. No. 16-
T/1989-90 before the learned District Judge, Patiala, but
by judgment and decree dated 16.05.1997, the Additional
District Judge, Patiala, dismissed the appeal.
5. Aggrieved by the judgments and decrees passed by
the Additional District Judge, Patiala, dismissing the two
civil appeals, the wife of the plaintiff, Smt. Dulari Singh,
filed second appeals R.S.A. nos. 2579 of 1997 and 2482 of
2008 before the High Court and by the impugned common
5Page 6
judgment,  the High Court allowed the appeals and set
aside the judgments and decrees of the trial court and the
first appellate court in the two suits and decreed the suit
of  the  plaintiff  for  possession  qua  land  measuring  17
karams X 45 karams after declaring the plaintiff to be the
owner of the said property. The High Court has also held
that  the  plaintiff  was  entitled  for  relief  of  permanent
injunction  restraining  the  defendants  from  raising  any
construction in the said property or alienating the said
property.  Aggrieved, the defendants nos. 5 to 8 in Civil
Suit  No.735-T/18.04.1987  and  the  legal  heirs  of
defendants nos. 1 and 2 and the other defendants in Civil
Suit No. 148-T/09.03.1987 have filed these appeals.
6. Learned  counsel  appearing  for  the  appellants
submitted that in both the suits, the trial court recorded
findings  that  the  appellants  had  purchased  the  suit
property from Col. Girdhar Singh and his family members
to whom the plaintiff had himself delivered possession of
the suit property in the years 1978 and 1979 at the time
of  execution  of  the  two  sale  deeds  and  hence  the
appellants were in possession of the suit properties and
6Page 7
the first appellate court had also concurred with those
findings  and  dismissed  the  First  Appeals  of  the
respondents but the High Court reversed the judgments of
the trial court and the first appellate court.  He submitted
that the High Court’s jurisdiction under Section 100 of the
Code of Civil Procedure, 1908, (for short the ‘the CPC’)
was limited to only deciding substantial questions of law
which  arise  in  a  case  and  in  this  case  there  was  no
substantial question of law which arose for decision and,
therefore, the findings of the first appellate court affirming
the  findings  of  the  trial  court  could  not  have  been
disturbed by the High Court.
7. Learned counsel for the respondents, on the other
hand, submitted that this Court has held in  Ishwar Dass
Jain vs Sohan Lal [(2000) 1 SCC 434] that when material
evidence  is  not  considered,  which  if  considered,  would
have led to an opposite conclusion, a substantial question
of law arises for decision which the High Court can decide
in  a  Second  Appeal  under  Section  100  C.P.C.   He
submitted that the High Court had, therefore, framed a
substantial question  of law  in  the impugned judgment:
7Page 8
whether  the  courts  below  have  failed  to  consider  the
material evidence on record.  He submitted that the core
issue in this case is the very identity of the land sold by
the plaintiff as Attorney of Nanak Singh and the trial court
and the High Court had not addressed this core issue and
hence a substantial question of law had arisen for decision
by the High Court.  He relied on Achintya Kumar Saha vs.
Nanee Printers and Others [(2004) 12 SCC 368] in support
of  this  submisson.   He  submitted  that  the  High  Court
answered  the  aforesaid  substantial  question  of  law  in
favour of the respondents after considering the material
evidence led in the suit.  He submitted that the High Court
found on the basis of the evidence that was adduced in
the suit by the parties that Col. Surat Singh (plaintiff), as
Attorney on behalf of Nanak Singh, had sold two bighas of
land with regard to specific khasra nos. i.e. 167 min (1-10)
and  166  min  (0-10)  by  sale  deed  Ex.PW-7/2  and  the
appellants by virtue of the sale deed in their favour took
possession of the portion marked EHGF in the site plan
Ex.PW-9/A whereas the portion sold was in the western
side  of  portion  marked  ABCD  as  the  said  portion  was
8Page 9
owned by Nanak Singh.  He submitted that the High Court
has held in the impugned judgment that the portion on the
eastern side, i.e., marked with letters EHGF belongs to the
plaintiff Col. Surat Singh and has accordingly declared that
the land measuring 17 karams X 45 karams as depicted
with letters EHGF in site plan Ex.PW-9/A was owned by
plaintiff Col. Surat Singh and the plaintiff was entitled to
the  relief  of  permanent  injunction  restraining  the
defendant from raising any construction in the aforesaid
suit property or alienating the aforesaid suit property.
8. We  find  that  in  Civil  Suit  No.  735-T/18.04.1987,
plaintiff  Col.  Surat  Singh  had  prayed  for  declaration,
injunction and possession and the suit was partly decreed
for correction of some mutation entries but the trial court
clearly held that it would in no manner have any effect
upon the possession of the parties to the suit which may
be  determined  and  finalized  as  and  when  partition
proceedings  are  taken  up  and  decided.   Against  the
decree of the trial court, the plaintiff filed first appeal C.A.
No. 1721 on 20.03.2004 and the Additional District Judge
held by its judgment and decree dated 18.03.2008 that
9Page 10
the trial court is right in coming to the conclusion that
plaintiff had not produced cogent evidence that he was
the owner of the suit property.  Relevant extract from para
29  of  the  judgment  of  the  first  appellate  court  which
records the aforesaid findings and discusses the evidence
in support of the finding is quoted hereinbelow:
“It  was  incumbent  upon  the  plaintiff  to
produce  on  record,  the  revenue  record
relating  to  the  suit  property,  so  as  to
ascertain the share of the plaintiff, as alleged
by him.  The perusal of jamabandi Ex.PW-4/1
for the year 1978-79; jamabandi Ex.PW-7/V
for the year 1978-79; jamabandi Ex.PW-4/1
show  that  these  pertain  only  to  land
measuring  29  bighas  5  biswas,  which  is
recorded to be the ownernship of Col. Surat
Singh and other co sharers and in possession
of one Baghel Singh.  Jamabandi Ex.DW7/V
pertains  to  land  measuring  29  bighas  5
biswas + 9 bighas 12 biswas + 0-4 biswas
which is recorded to be the ownership of Col.
Surat  Singh  and other  co-sharers and only
land  measuring  9  bighas  12  biswas
comprised  in  khasra  No.165(3-1),  166(3-0),
167(1-16)  and  168(1-15)  is  recorded  in
exclusive possession of Col. Surat Singh.  The
trial court has rightly held that other than the
said revenue record no jamabandi of the suit
land has been produced by the plaintiff.  It
has  further  rightly  held  that  as  per  sanad
takseem  Ex.PW7/A  the  land  has  been
partitioned  between  different  co-sharers,
which is mentioned as 72 bighas 8 biswas of
which 15 bighas 12 biswas fell to the share of
Col. Surat Singh.  But even when the plaintiff
10Page 11
has filed the present suit for declaring his to
be owner in possession of the suit property,
he did not bring forth on file any revenue
record pertaining to the suit property except
jamabandies  Ex.PW4/1  and  Ex.PW7/V
pertaining to the year 1978-79 which are in
complete  and  do  not  depict  the  entire
property of Col. Surat Singh as a co-sharer
along with other co-sharers.  Trial court has
rightly  held  that  extent  of  ownership  and
possession of the plaintiff as alleged by him
was  to  be  proved  by  him,  by  brining  on
record  documents  from  which  he  drew  his
title over the suit property.  But no revenue
record  in  the  form  of  jamabandi has  been
produced on record, so as to prove the extent
of ownership and possession of the plaintiff,
so in the absence of any documentary proof
regarding ownership of the suit property and
the revenue record produced by the plaintiff
being  incomplete  and  relating  to  the  year
1978-79, whereas the present suit was filed
in  1987,  copy  of  the  sanad  Takseem
Ex.PW7/A depicting the share of Col. Surat
Singh,  are  not  sufficient  to  establish  the
extent  of  the  property  of  which  Col.  Surat
Sigh was the owner.  Though, Sanad Takseem
Ex.PW7/A was prepared on 30.8.92, but no
revenue record after the preparation of the
sanad takseem has been produced, so as to
prove that the possession has been delivered
and partition had been duly acted upon.”
9. We  find  that  in  Civil  Suit  No.  148-T/9-3-1987,  the
plaintiff  Col.  Surat  Singh  had  prayed  for  permanent
injunction  restraining  the  defendant  from  raising  any
construction or alienating in any manner whatsoever on
the suit property and on the basis of the pleadings of the
11Page 12
parties  one  of  the  issues  framed  was  whether  the
defendants  are  owners  and  are  in  possession  of  the
property purchased by them from Col. Girdhar Singh and
others  but  by  order  dated  08.08.1990  the  trial  court
deleted  this  issue  and  finally  by  judgment  dated
08.08.1990 dismissed the  suit.   The plaintiff  thereafter
filed  Civil  Appeal  No.16  on  19.09.1990  and  contended
before the Additional District Judge inter alia that the trial
court was not right in deleting Issue No.2 by order dated
08.08.1990 at the stage when the parties had already led
their evidence on that issue and the decision on this issue
was  necessary  for  deciding  the  suit  itself  but  the
Additional District Judge rejected this contention of the
plaintiff with the following reasons:
“The simple prayer of the plaintiff made in
the suit is that the defendants be restrained
from raising construction over the suit land,
or alienating the same.  He has admitted in
his  plaint  and  replication  that  the
predecessor-in-interest  of  the  defendants;
namely,  Girdhar  Singh,  purchased the land
from him and Nanak Singh, while the same
was still joint.  Naturally the defendants will
become  co-sharers  in  the  land  after
purchasing the same from Girdhar Singh, as
they  would  step  into  his  shoes.   In  these
circumstances,  there  was  no  necessity  for
12Page 13
framing an issue that the defendants are the
owners of the suit land.”
10. The aforesaid discussion of the findings of the first
appellate court in the two cases shows that in the suit for
declaration  of  title,  the  plaintiff  had  not  been  able  to
produce any evidence to prove his ownership over and
possession over the suit land.  Moreover, in the suit for
injunction,  the  first  appellate  court  had  held  that  the
plaintiff had admitted in plaint that Col. Girdhar Singh, the
predecessor-in-interest of the defendants, had purchased
the land from him and Nanak Singh while the same was
joint and hence there was no necessity for framing the
issue (issue No.2) that the defendants are owners and are
in possession of the suit land.  We find on a reading of the
sale deed dated 17.07.1978 (Ex.PW7/1) executed by the
plaintiff that possession of land measuring 2 bighas 16
biswas out of the share of the plaintiff was handed over to
Col. Girdhar Singh and his family members and it is not in
dispute that Col. Girdhar Singh and his family members
thereafter sold this land to the appellants.  We also find on
a reading of the sale deed dated 19.07.1979 (Ex.PW7/2)
13Page 14
executed by the plaintiff as Attorney of Nanak Singh that
the possession of the land measuring 2 bighas out of the
share of Nanak Singh was also given to Col. Girdhar Singh
and his family members and it is not in dispute that Col.
Girdhar Singh and his family members thereafter sold this
land to the appellants in 1987.  Thus, the appellants were
in lawful possession of the said areas of land by virtue of
the two sale deeds and the plaintiff had not been able to
establish  that  he  was  the  owner  of  the  suit  land  and
consequently  he  is  entitled  to  declaration  of  his  title,
recovery of possession and injunction.
11.    The  plaintiff,  however,  contended  in  the  second
appeal before the High Court that material evidence had
not been taken into consideration by the first appellate
court  and  the  High  Court  has  framed  the  following
substantial question of law:
“Whether  the  Courts  below  have  failed  to
consider the material evidence on record?”
Having framed the substantial question of law, the High
Court should have pointed out in the impugned judgment
the material evidence which had not been considered by
14Page 15
the first appellate court, which if considered, would have
established ownership of the plaintiff to the suit property.
Instead of pointing out the material evidence which has
not been considered by the first appellate court, the High
court has made its own assessment of the entire evidence
as if it was the first appellate court and held that the
plaintiff  was  the  owner  of  the  suit  property  and  was
entitled to possession of 17 karams X 45 karams of land
depicted in letters EHGF in the site plan Ex.PW-9/A and
that  he  was  also  entitled  to  the  relief  of  permanent
injunction  restraining  the  plaintiff  from  raising  any
construction in the said property or alienating the said
property.   The  High  Court  has  itself  noticed  in  the
impugned judgment that the land depicted in the site plan
Ex.PW-9/A as EHGF was delivered to Col. Girdhar Singh
and his family members at the time of execution of the
sale deed by the plaintiff as Attorney of Nanak Singh on
19.07.1979 and the appellants had taken possession of
the aforesaid land from Col. Girdhar Singh and his family
members in 1987.  The appellants were, thus, in legal
possession  of  the  suit  property  and  the  High  Court  in
15Page 16
exercise of its powers under Section 100 CPC could not
have reversed the findings of the trial court and the first
appellate court and decreed the suits for declaration of
title  and  for  recovery  of  possession  and  injunction  in
favour of the respondents so as to adversely affect such
legal possession of the appellants. 
12.    In  Achintya Kumar Saha vs.  Nanee Printers and
Others  (supra)  cited  by  learned  counsel  for  the
respondents, this Court found that the main issue around
which  the  entire  case  revolved  was  whether  the
agreement dated 05.07.1976 was a licence or a tenancy
and though this issue was before the trial court and the
agreement was held to be a licence, the lower appellate
court had not adjudicated upon this issue and this Court
held that when the core issue is not adjudicated upon, it
raises a substantial question  of law  under  section  100
CPC.
 In the present case, the core issue was
whether the
plaintiff was the owner of the suit property and the first
appellate court has held in C.A. No. 1721 on 20.03.2004
that the plaintiff has not been able to prove his ownership
16Page 17
over the suit property and has further held in C.A. No.16-T
filed on 19.09.1990 that the plaintiff’s own admitted case
in the plaint is that the appellants had purchased the suit
property from Col. Girdhar Singh and his family members
and were in possession of the same and hence the plaintiff
was not entitled to declaration of his title, recovery of
possession and injunction.  In this case, therefore, the first
appellate court had decided the core issue against the
plaintiff  and  no  substantial  question  of  law  arose  for
decision in this case by the High Court under Section 100,
CPC.    
13. In  the  result,  these  appeals  are  allowed  and  the
impugned  common  judgment  and  decree  of  the  High
Court is set aside.   Considering,  however,  the peculiar
facts and circumstances of the case, the parties shall bear
their own costs.
.……………………….J.
                                                           (A. K. Patnaik)
………………………..J.
(H. L. Gokhale)
New Delhi,
February 12, 2013.  
17

Section 4(1) of the Rajasthan Land Acquisition Act, 1953 - High Court has allowed the writ petitionsPage 2 filed by the respondent-Diamond and Gem Development Corporation Ltd. (hereinafter referred to as the ‘Company’), for quashing the order of cancellation of allotment of land and directing the appellants for providing the approach/access road. = The cancellation of allotment was made by appellant- RIICO in exercise of its power under Rule 24 of the Rules 1979 read with the terms of the lease agreement. Such an order of cancellation could have been challenged by filing a review application before the competent authority under Rule 24 (aa) and, in the alternative, the respondentcompany could have preferred an appeal under Rule 24(bb)(ii) before Infrastructure Development Committee of the Board. The respondentcompany ought to have resorted to the arbitration clause provided in the lease deed in the event of a dispute, and the District Collector, Jaipur would have then, decided the case. However, the respondentcompany did not resort to either of the statutory remedy, rather preferred a writ petition which could not have been entertained by the High Court. It is a settled law that writ does not lie merely because it is lawful to do so. A person may be asked to exhaust the statutory/alternative remedy available to him in law. 32. In view of the above, the appeals deserve to be allowed. Thus, the appeals are allowed. Judgment and order impugned are set aside and the order of cancellation of allotment in favour of the respondent- 32Page 33 company by the appellant is restored. However, in the facts and circumstances of the case, there shall be no order as to costs.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 7252-7253 OF 2003
The Rajasthan State Industrial Development                 …Appellants
and Investment Corporation & Anr.
Versus
Diamond and Gem Development Corporation Ltd.       …Respondents
& Anr.
WITH
CIVIL APPEAL NOS.  8222-8223 OF 2003
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 Nos. 5481/1994 and
105/1997, by which the High Court has allowed the writ petitionsPage 2
filed by the respondent-Diamond and Gem Development Corporation
Ltd. (hereinafter referred to as the ‘Company’), for quashing the order
of cancellation of allotment of land and directing the appellants for
providing the approach/access road. 
2. As  these  appeals  have  been  preferred  against  the  common
impugned judgment, for the sake of convenience, Civil Appeal Nos.
7252-53/2003 are to be taken to be the leading case.  The facts and
circumstances giving rise to these appeals 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, 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 appellant Rajasthan
State Industrial Development and Investment Corporation (in short
‘RIICO’).
B. 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
2Page 3
requisite statutory requirements contained in the Act, possession of
the land, was taken over by the Government and was subsequently
handed over to appellant-RIICO, on 18.10.1982 and 17.11.1983.  The
Land Acquisition Collector assessed the market value of the land and
made  an  award  on  14.5.1984.   RIICO  made  allotment  of  land
admeasuring 105 acres vide allotment letter dated 10.3.1988 to the
respondent no.1 company,  to facilitate the  establishment of a Gem
Industrial Estate for the manufacturing of Gem stones.
C. In pursuance of the aforesaid allotment letter, a lease deed was
executed  between  the  appellant  and  respondent-company  on
22.5.1989, with a clear stipulation that the land was allotted on an “as
is-where-is”, and that the respondent-company must complete the said
project within a period of 5 years, and further that, in the event that
the terms and conditions of the lease agreement were  not complied
with,  the  appellant  would  be  entitled  to  recover  its  possession  in
addition to which, various other conditions were also incorporated
therein.
D. After  possession  was  taken  by  the  respondent-company,
construction could be carried only on a portion of the land allotted to
it. As the development work was being carried out at an extremely
3Page 4
slow pace, the appellant issued various notices from time to time,
reminding the respondent-company that it was under an obligation to
complete the project within a specified period, owing to which, it
must accelerate work.  Additionally, there also arose some difficulty
with respect to the respondent-company’s attempts to sub-lease the
said premises, or parts thereof, and in view of this, an amendment
dated 4.11.1991 was inserted in Rule 11-A of the Rajasthan Land
Revenue (Industrial area Allotment) Rules, 1959 (hereinafter referred
to as the ‘Rules 1959’), enabling the company to sub-lease the said
land.
E. The  appellant  vide  notice  dated  4.7.1992,  informed  the
respondent-company, that as per clause 2(n) of the lease deed, all
construction had to be completed within a stipulated time period of 5
years.  The respondent-company began asking the appellant to provide
it accessibility via road, from the Jaipur Tonk main road and, as the
same was not provided, the respondent-company filed Writ Petition
No. 5481 of 1994 before the High Court, seeking the issuance of a
direction to the appellant to provide to it, the aforesaid road.
F. During the pendency of the aforesaid writ petition, the appellant
expressing  its  dis-satisfaction  with  regard  to  the  progress  of  the
4Page 5
development of the said land by the respondent-company, filed a reply
to the said writ petition before the High Court stating that it was not
under  any  obligation  to  provide  to  the  respondent-company  the
aforementioned approach road, as the lease deed had been executed
between them, on the basis of an “as-is-where is” agreement. Further,
the  appellant  issued  a  show  cause  notice  dated  29.8.1996,  to
determine the lease in light of the lease  agreement, in lieu of the fact
that the respondent-company had not made any progress regarding the
completion of the project, and even after the expiry of a period of 5
years,  only  10%  of  the  total  construction  stood  completed.  In
pursuance  thereof,  the  lease  deed  was  cancelled  vide  order  dated
1.10.1996, and possession of the land in dispute was taken back by the
appellant on 3.10.1996.
G. The respondent-company filed another Writ Petition No. 105 of
1997,  challenging  the  cancellation  order  dated  1.10.1996  and  the
taking over of possession by the appellant on 3.10.1996. The appellant
contested the said writ petition on the grounds that it was entitled to
restoration of possession, as the respondent-company had failed to
ensure compliance with the terms and conditions incorporated in the
lease deed, according to which, the company was required to complete
5Page 6
the said project within a period of 5 years.  However, presently, the
extent of development completed by it stood at 10%. Therefore, in
light of the aforementioned circumstances, the appellant had no choice
but to cancel the lease deed and take back possession.
H. The High Court vide its impugned judgment and order, allowed
both the writ petitions quashing the order of cancellation, and directed
the restoration of possession of the aforesaid land to the respondentcompany, and further, also directed the appellant to provide to the
respondent-company, the approach/access road demanded by it.
Hence, these appeals.
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, as
the allotment of the land had been made to the respondent-company
on an ‘as-is-where-is” basis, there was no obligation on the part of
RIICO to provide to it, the said access road. The terms of the contract
must be interpreted by court, taking into consideration the intention of
the parties and  not on the basis of equitable grounds. Moreover, the
6Page 7
cancellation  of  the  deed  was  in  accordance  with  the  terms  and
conditions incorporated in the lease deed, and therefore, in light of
the facts and circumstance of the case, the High Court has committed
an  error,  by  quashing  the  order  of  cancellation  and,  in  issuing  a
direction for the restoration of possession and for the provision of the
access road.
The High Court has mis-interpreted the amendment to Rule 11-
A of the Rules 1959, and has thus held that the appellant had no
jurisdiction to cancel the said lease, as the respondent-company by
virtue of the operation of the amended provision, had become a direct
lessee of the State. In such a fact-situation, there was no obligation on
the part of the appellant to provide the approach road as it was not the
lessor of the respondent-company. In case by virtue of the amendment
in Rule 11-A of the Rules 1959, the State Government became the
lessor, the appellant-RIICO lost the title/interest over the property
which had been acquired by it on making payment of the huge money
and that too, without getting any refund. Such an interpretation leads
to absurdity. Thus, the appeals deserve to be allowed.
7Page 8
4. Per contra, Shri P.S. Patwalia, learned senior counsel appearing
for  the  respondent-company,  has submitted  that  the judgment  and
order of the High Court does  not require any interference whatsoever,
for  the  reason  that  the  respondent-company  had  been  invited  to
establish and develop the Gem Stone industrial park at Jaipur. In view
of the fact, that the amendment to Rule 11-A of the Rules 1959 was
made exclusively to facilitate the respondent-company to sub-lease a
part of the developed premises, the High Court has rightly held that
the  State  Government  became  the  lessor  and  that,  RIICO  had  no
concern whatsoever in relation to the said matter, owing to which, it
had no competence to cancel the lease. In the light of the fact that
RIICO  was  in  possession  of  other  lands  surrounding  the  land  in
question, the High Court has directed it to provide to the respondentcompany,  an  access  road  on  equitable  grounds,  taking  into
consideration the fact that, in the event that the respondent-company’s
area remained land locked, it would be impossible for it to develop the
project, and has stated that not providing the access road was in fact,
the basic reason for delay in development. Thus, the appeals lack
merit and, are liable to be dismissed.
8Page 9
5. We  have  considered  the  rival  submissions  made  by learned
counsel for the parties and perused the record.
Before proceeding further, it may be pertinent to refer to the
relevant statutory provisions, and certain terms of the lease deed.
Rule 11-A of the Rules 1959 read :
“………………….
xx xx xx
Clause (iv) of Rule 11-A.- The Rajasthan State Industrial
Development and Investment Corporation Ltd. may sublease  the  leased  land  or  part  thereof  for  industrial
purpose;  including  essential  welfare  and  supporting
services. Provided that in the case of Diamond and Gem
Development Corporation to whom the land has already
been leased out by RIICO for 99 years, the sub-lessee i.e.
DGDC may further sublet and the terms and conditions
and other provisions contained in the rules in so far as
they  relate  to  RIICO  shall  mutatis  mutandis apply  to
DGDC also as if the land in question has been let out to
them by State Government under Rule 11-A.”
(Emphasis added)
6. There has been further amendment to Rule 11-A of the Rules
1959 w.e.f. 12.10.2000, and the relevant part thereof reads as under:
“In  Rule  11-A  of  the  said  rules,  after
condition (iv) and before condition (v), the
9Page 10
following  new  condition  (iv-a)  shall  be
inserted; namely:-
(iv-a) The sub lessee of the Rajasthan State
Industrial  Development  and  Investment
Corporation Limited may further sub-lease
the sub-leased land or part thereof on such
terms  and conditions as may  be  mutually
agreed  between  such  sub-lessee  and
subsequent  sub-lessee.  The  terms  and
conditions  applicable  to  sub-lessee  shall
also  mutatis  mutandis  apply  to  such
subsequent sub-lessee”.
7. Rajasthan State Industrial & Investment Corporation Limited
(Disposal  of  Land)  Rules,  1979  (hereinafter  referred  to  as  `Rules
1979’),  deals with the allotment of land by RIICO to entrepreneurs.
Relevant rules thereof read as under:
“16. The allottee shall not except with the written consent
of the Corporation, be allowed to sublet the constructed
premises  for  industrial  purpose  only  which  can  be
considered on following conditions:
(i) The sub-letting of vacant and/or unutilized land in
the  industrial  areas  of  the  Corporation  shall  not  be
allowed.
(ii) That consent of the Managing Director  be given to
the allottee of the plot (owner) to sublet the whole or part
of the constructed premises after the allottee has cleared
10Page 11
all the outstanding dues of the Corporation and started
the  production  at  the  allotted  plot  on  the  following
conditions:
(iii)       xx   xx xx
(iv) Permission for transfer of surplus/unutilized land
with  the  units  which  have  come  into  commercial
production shall be granted on payment of premium as
may be decided by the Corporation from time to time
which  is presently  equal  to  50%  rate  of  development
charges at the time of such transfer of difference amount
between the prevailing rates of development charges and
the rates of development charges on which the allotment
was made whichever is higher.
24. Cancellation- The Corporation shall have the right
to cancel the allotment after issuing 30 days show cause
notice to the allottee by the concerned Senior Regional
Manager/Regional  Manager  on  any  breach  of  any  of
these  rules, condition of allotment letter and terms of
lease agreement.”
8. It  may  also  be  pertinent  to  refer  the  relevant  terms  and
conditions of lease deed dated 22.5.1989, which read as under:
“AND WHEREAS the lessor has agreed to demise and
the lessor has agreed to take on lease, the piece of land
11Page 12
known as plot no. SP-1 Indusrial Area, Sanganer, PhaseII on “as is where is basis”:
xx xx xx
2(b) That the lessee will bear, pay and discharge all
service charges as may be decided by the lessor from
time to time which for the present would be @ Rs.10.10
(Ten  paisa  per  sq.mtrs.)  per  year  from  the  date,  the
lessor provided as pucca links road in this area.
xx xx xx
(d) That the lessee will erect on the demised premises
…..and  will  commence  such  construction  within  the
period of 6 months and will completely finish the same fit
for use and start production within the  period of 60
months from the date of these presents or within such the
case of these presents, or within such the date of these
presents or within such extended period of time as may
be allowed by the lessor in writing at its discretion.
xx xx xx
(g) That the lessee will provide and maintain in good
repair a properly constructed approached road or path
alongwith the event across drain to the satisfaction of the
lessor/local  Municipal  Authority  leading  from  the
public/cooperation road to the building to be erected on
the demises premises.
xx xx xx
(i) The  lessee  will  not  without  the  general  prior
consent  in  writing  of  the  lessor  transfer,  sublet,
relinquish, mortgage or assign his interest in the demised
premises……..
xx xx xx
(m) ………That lessee shall construct and complete the
said  building  and  put  the  demised  premises  with  the
buildings  constructed  thereon  to  use  hereinabove
mentioned within 54 calendar months from the date of
12Page 13
possession of the said land is handed over to him and in
any case within 60 calendar months from the date of this
agreement provided that the lessor may at his discretion
extend the time hereinbefore provided if in his opinion
the delay is caused for reasons beyond the control of the
lessee. Provided that utilized land of the allotted plot of
land shall revert to the Corporation on the expiry of the
prescribed/extended  period  for  starting  production/
expansion of the unit.
xx xx xx
(r) The lessee will in each year within 2 months from
the expiry of the account in year supply to the lessor a
copy  of  his  profit  and  loss  account  pertaining  to  the
accounting  year  and  the  business  run  by  him  in  the
demised premises.
3(a) Notwithstanding anything hereinbefore contained
if  there  shall  have  been in  opinion of  the  lessor  any
breach by the lessor…. or if the lessee fails to commence
and complete the buildings in time and manner it  shall
be  lawful  for  the  lessor  ….to  reenter  without  taking
recourse to the Court of law up on the demised premises
or any part there of his name of whole and there on this
demise  shall  absolutely  cease  and  determine  and  the
money paid by the Lessee by  virtue of these preset shall
stand forfeited to the lessor without prejudice to rights of
the lessor here under with interest thereon at @19% per
annum  and  the  Lessee  shall  not  be  entitled  to  any
compensation whatsoever.
xx xx xx
3(h) Every dispute, difference or question touching or
arising out or in respect of this agreement to the subject
matter  shall  be  referred  to  the  sole  arbitrator,  the
Collector  of  the  District  wherein  the  leased  plot  is
situated or a, person appointed by him.  The decision of
13Page 14
such  arbitrator  shall  be  final  and  binding  on  the
parties.”
Before entering into merits of the case, it is required to deal
with the legal issues involved herein:
I. Approbate and Reprobate
9. A party cannot be permitted to “blow hot-blow cold”, “fast and
loose” or “approbate and reprobate”.  Where one knowingly accepts
the  benefits  of  a  contract,  or  conveyance,  or  of  an  order,  he  is
estopped from denying the validity of, or the binding effect of such
contract, or conveyance, or order upon himself. This rule is applied to
ensure equity, however, it must not be applied in such a manner, so as
to violate the principles of, what is right and, of good conscience.
(Vide:  Nagubai Ammal & Ors. v. B. Shama Rao & Ors.,   AIR
1956 SC 593; C.I.T. Madras v. Mr. P. Firm Muar, AIR 1965 SC
1216;  Ramesh Chandra Sankla etc. v. Vikram Cement etc., AIR
2009 SC 713; Pradeep Oil Corporation v. Municipal Corporation
of Delhi & Anr.,  AIR 2011 SC 1869;  Cauvery Coffee Traders,
Mangalore  v.  Hornor  Resources  (International)  Company
14Page 15
Limited, (2011) 10 SCC 420; and  V. Chandrasekaran & Anr. v.
The Administrative Officer & Ors., JT 2012 (9) SC 260).
10. Thus, it is evident that the doctrine of election is based on the
rule of estoppel- the principle that one cannot approbate and reprobate
is inherent in it. The doctrine of estoppel by election is one among the
species of estoppels in pais (or equitable estoppel), which is a rule of
equity. By this law, a person may be precluded, by way of his actions,
or conduct, or silence when it is his duty to speak, from asserting a
right which he would have otherwise had.
II. Mutatis Mutandis - means
11. In M/s. Ashok Service Centre & Anr. etc. v. State of Orissa,
AIR 1983 SC 394, this court held as under:
“Earl  Jowitt's  'The  Dictionary  of  English
Law  1959)'  defines  'mutatis  mutandis'  as
'with  the  necessary  changes  in  points  of
detail'. Black's Law Dictionary (Revised 4th
Edn.1968)  defines  'mutatis  mutandis'  as
'with  the  necessary  changes  in  points  of
detail, meaning that matters or things are
generally the same, but to be altered when
necessary,  as  to  names,  offices,  and  the
like…’Extension  of  an earlier  Act  mutatis
mutandis to a later Act, brings in the idea of
adaptation, but so far only as it is necessary
15Page 16
for the purpose, making a change without
altering  the essential  nature of the things
changed,  subject  of  course  to  express
provisions  made  in  the  later  Act….In  the
circumstances  the  conclusion  reached  by
the  High  Court  that  the  two  Acts  were
independent of each other was wrong. We
are of the view that, it is necessary to read
and to construe the two Acts together as if
the two Acts are one, and while doing so to
give effect to the provisions of the Act which
is a later one in preference to the provisions
of the Principal Act wherever the Act has
manifested  an  intention  to  modify  the
Principal Act…”
Similarly, in Prahlad Sharma v. State of U.P. & Ors., (2004)
4 SCC 113, the phrase ‘mutatis mutandis’  has been explained as
under:
“The expression “mutatis mutandis” itself
implies applicability of any provision with
necessary changes in points of detail….”
(See also:  Mariyappa & Ors. v. State of Karnataka & Ors., AIR
1998 SC 1334; and Janba (dead) thr. Lrs. v. Gopikabai (Smt.), AIR
2000 SC 1771).
Thus, the phrase “mutatis mutandis” implies that a provision
contained in other part of the statute or other statutes would have
application as it is with certain changes in points of detail.
16Page 17
III. Contractual disputes and writ jurisdiction
12. There can be no dispute to the settled legal proposition that
matters/disputes relating to contract cannot be agitated nor terms of
the contract can be enforced through writ jurisdiction under Article
226 of the Constitution. Thus, writ court cannot be a forum to seek
any  relief  based  on  terms  and  conditions  incorporated  in  the
agreement by the parties. (Vide: Bareilly Development Authority &
Anr. v. Ajay Pal Singh & Ors., AIR 1989 SC 1076; and  State of
U.P. & Ors. v. Bridge & Roof Co. (India) Ltd., AIR 1996 SC
3515).
13. In  Kerala  State  Electricity  Board  &  Anr.  v.  Kurien  E.
Kalathil & Ors., AIR 2000 SC 2573, this Court held  that a writ
cannot  lie  to  resolve  a  disputed  question  of  fact,  particularly  to
interpret the disputed terms of a contract  observing as under:
“The interpretation and implementation of a
clause in a contract cannot be the subjectmatter of a writ petition. ….If a term of a
contract is violated, ordinarily the remedy is
not the writ petition under Article 226. We
are  also  unable  to  agree  with  the
observations  of  the  High  Court  that  the
17Page 18
contractor  was  seeking  enforcement  of  a
statutory  contract…..The  contract  between
the parties is in the realm of private law. It
is  not  a  statutory  contract.  The  disputes
relating to interpretation of the terms and
conditions of such a contract could not have
been agitated in a petition under Article 226
of the Constitution of India. That is a matter
for  adjudication  by  a  civil  court  or  in
arbitration if provided for in the contract….
The  contractor  should  have  relegated  to
other remedies.”
14. It is evident from the above, that generally the court should not
exercise its writ jurisdiction to enforce the contractual obligation. The
primary purpose of a writ of mandamus, 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).  The grant or
refusal of the writ 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 to establish a legal right, but to enforce one
that is 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
18Page 19
refusal of the writ, and the nature and extent of injury that is likely to
ensue by such grant or refusal.
15. 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 the issuance of the said writ is, whether
or  not  substantial  justice  will  be  promoted.  Furthermore,  while
granting such a writ, the court must make every effort to ensure from
the  averments  of  the  writ  petition,  whether  there  exist  proper
pleadings. In order to maintain the writ of mandamus, the first and
foremost requirement is that the petition must not be frivolous, and
must be 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
19Page 20
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.
IV. Interpretation of terms of contract
16. A party cannot claim anything more than what is covered by the
terms of contract, for the reason that contract is a transaction between
the  two  parties  and  has  been  entered  into  with  open  eyes  and
understanding the nature of contract. Thus, contract being a creature
of an agreement between two or more parties, has to be interpreted
giving literal meanings unless, there is some ambiguity therein.  The
contract is to be interpreted giving the actual meaning to the words
contained in the contract and it is  not permissible for the court to
make a new contract, however is reasonable, if the parties have not
made it themselves. It is to be interpreted in such a way that its terms
may not be varied. The contract has to be interpreted without giving
any outside aid. The terms of the contract have to be construed strictly
without altering the nature of the contract, as it may affect the interest
20Page 21
of either of the parties adversely. (Vide: United India Insurance Co.
Ltd. v. Harchand Rai Chandan Lal, AIR 2004 SC 4794; Polymat
India P. Ltd. & Anr. v. National Insurance Co. Ltd. & Ors.,  AIR
2005 SC 286).
17. In  DLF  Universal  Ltd.  &  Anr.  v.  Director,  T.  and  C.
Planning Department Haryana & Ors., AIR 2011 SC 1463, this
court held:
“It is a settled principle in law that a contract
is interpreted according to its purpose. The
purpose  of  a  contract  is  the  interests,
objectives, values, policy that the contract is
designed to actualise. It comprises joint intent
of the parties. Every such contract expresses
the  autonomy  of  the  contractual  parties’
private  will.  It  creates  reasonable,  legally
protected  expectations  between  the  parties
and reliance  on its results.  Consistent  with
the character of purposive interpretation, the
court  is required  to  determine  the  ultimate
purpose of a contract primarily by the joint
intent of the parties at the time the contract so
formed. It is not the intent of a single party; it
is the joint intent of both parties and the joint
intent of the parties is to be discovered from
the  entirety  of  the  contract  and  the
circumstances surrounding its formation. As
is stated in Anson's Law of Contract, "a basic
principle of the Common Law of Contract is
that  the  parties  are  free  to  determine  for
themselves what primary obligations they will
21Page 22
accept...Today,  the  position  is  seen  in  a
different  light.  Freedom  of  contract  is
generally regarded as a reasonable, social,
ideal  only  to  the  extent  that  equality  of
bargaining  power  between  the  contracting
parties can be assumed and no injury is done
to the interests of the community at large."
The Court  assumes "that the parties to the
contract are reasonable persons who seek to
achieve  reasonable  results,  fairness  and
efficiency...In  a  contract  between  the  joint
intent  of  the  parties  and  the  intent  of  the
reasonable  person,  joint intent trumps,  and
the  Judge  should  interpret  the  contract
accordingly.”
V. “As-is-where-is” – means
18. The phrase, “as is-where-is”, has been explained by this  Court
in  Punjab Urban Planning & Development Authority & Ors. v.
Raghu Nath Gupta & Ors., (2012) 8 SCC 197, holding as under:
“We  notice  that  the  respondents  had
accepted  the  commercial  plots  with  open
eyes,  subject  to  the  abovementioned
conditions. Evidently, the commercial plots
were allotted on “as-is-where-is” basis. The
allottees  would  have  ascertained  the
facilities  available  at  the  time  of  auction
and after having accepted the commercial
plots on “as-is-where-is” basis, they cannot
be  heard  to  contend  that  PUDA  had  not
provided the basic amenities like parking,
lights,  roads,  water,  sewerage,  etc.  If  the
allottees were not interested in taking the
commercial plots on “as-is-where-is” basis,
22Page 23
they should not have accepted the allotment
and after having accepted the allotment on
“as-is-where-is”  basis,  they  are  estopped
from  contending  that  the  basic  amenities
like parking, lights, roads, water, sewerage,
etc. were not provided by PUDA when the
plots were allotted…”
(See also:  UT Chandigarh Admn. & Anr. v. Amarjeet Singh &
Ors., (2009) 4 SCC 660).
VI. “As if” – means
19. The  expression  “as  if”,  is  used  to  make  one  applicable  in
respect of the other. The words "as if" create a legal fiction. By it,
when  a  person  is  "deemed  to  be"  something,  the  only  meaning
possible is that, while in reality he is not that something, but for the
purposes of the Act of legislature he is required to be treated that
something, and not otherwise. It is a well settled rule of interpretation
that, in construing the scope of a legal fiction, it would be proper and
even necessary, to assume all those facts on the basis of which alone,
such  fiction  can  operate.  The  words  “as  if”,  in  fact  show  the
distinction between two things and, such words must be used only for
a  limited purpose. They further show that a  legal fiction must be
limited  to  the  purpose  for  which  it  was  created.   (Vide:
23Page 24
Radhakissen Chamria & Ors. v. Durga Prasad Chamria & Anr.,
AIR 1940 PC 167; Commr. of Income-tax, Delhi v. S. Teja Singh,
AIR 1959 SC 352; Ram Kishore Sen & Ors. v. Union of India &
Ors., AIR 1966 SC 644; Sher Singh v. Union of India & Ors., AIR
1984 SC 200; State of Maharashtra v. Laljit Rajshi Shah & Ors,
AIR 2000 SC 937; Paramjeet Singh Patheja v. ICDS Ltd. AIR
2007  SC  168;  and  Commissioner  of  Income  Tax  v.  Willamson
Financial Services & Ors. (2008) 2 SCC 202).
20. In East  End  Dwelling  Co.  Ltd.  v.  Finsbury  Borough
Council, 1952 AC 109, this Court approved the approach which stood
adopted and followed persistently. It set out as under:
“The statute says that you must imagine a
certain state of affairs; it does not say that
having done so, you must cause or permit
your imagination to boggle when it comes to
the  inevitable  corollaries  of  that  state  of
affairs".
21. In Industrial Supplies Pvt. Ltd. & Anr. v. Union of India &
Ors., AIR 1980 SC 1858, this Court observed as follows:-
"It is now axiomatic that when a legal fiction is
incorporated  in  a  statute,  the  court  has  to
24Page 25
ascertain for what purpose the fiction is created.
After ascertaining the purpose, full effect must be
given  to  the  statutory  fiction  and  it  should  be
carried to its logical conclusion. The court has to
assume all the facts and consequences which are
incidental or inevitable corollaries to giving effect
to the fiction. The legal effect of the words 'as if he
were' in the definition of owner in Section 3(n) of
the Nationalisation Act read with Section 2(1) of
the Mines Act is that although the petitioners were
not the owners, they being the contractors for the
working of the mine in question, were to be treated
as such though, in fact, they were not so."
                     (Emphasis
added)
22. The instant case is required to be decided in the light of the
aforesaid settled legal propositions.
The terms and conditions incorporated in the lease deed reveal
that, the allotment was made on “as-is- where-is” basis. The same was
accepted by the respondent-company without any protest, whatsoever.
The lease deed further enabled the appellant to collect charges, in case
it decided to provide the approach road.  Otherwise, it would be the
responsibility of the respondent-company to use its own means to
develop  such  road, and  there was absolutely no obligation placed
upon the appellant to provide to the respondent the access road. As the
respondent-company  was  responsible  for  the  creation  of  its  own
25Page 26
infrastructure, it has no legal right to maintain the writ petition, and
courts cannot grant relief on the basis of an implied obligation.  The
order of the High Court is in contravention of clause 2(g) of the lease
deed.
23. The State of Rajasthan had acquired the land in exercise of its
eminent domain and transferred the same to the appellant-RIICO after
receiving the consideration amount and executed the lease deed in its
favour.  The State exercised  its power in transferring the  land to
RIICO under the Rules 1959. However, further allotment by RIICO to
the respondent-company was under the Rules 1979. Therefore, the
High  Court  committed  an  error  treating  that  the  whole  case  was
governed only under the Rules 1959, and that Rules 1979 had no
application at all.
24. The High Court recorded a finding, as regards the submission
made  on  behalf  of  the  appellant-RIICO,  stating  that  the  audit
conducted by it showing various irregularities and pointing out the
mis-appropriation of public funds by the respondent-company, was a
matter entirely unrelated to the allotment and development of the said
26Page 27
land.  Rule 11-A of the Rules 1959, as amended created a legal fiction
by which the respondent-company had become a lessee and the State
of  Rajasthan,  the  lessor  and  therefore  the  order  passed  by  the
appellant-RIICO, was wholly without jurisdiction, as after 4.11.1991,
RIICO had no authority whatsoever, to cancel the allotment of land
made in favour of the respondent-company, since it was only the State
of Rajasthan that had the authority to cancel the said allotment; by not
providing for an access road, the purpose for which allotment was
made by RIICO stood defeated, and this was what had resulted in the
delay of the development of the said land, and in such a fact-situation,
cancellation of land was not permissible; there was a constructive
obligation on the part of the appellant-RIICO to provide an approach
road with respect to the land which was allotted; and that RIICO had
failed to co-operate with the respondent-company to accomplish the
task it had undertaken, and that the order of cancellation was liable to
be set aside for lack of jurisdiction and for want of competence.  
25. The aforesaid reasons given by the High Court are mutually
inconsistent. When the High Court came to the conclusion that the
appellant-RIICO had no competence  to deal with the land and to
27Page 28
cancel the allotment made in favour of the respondent-company, there
was  no  justification  to  hold  RIICO  responsible  for  providing  the
approach  road.   Such  a  finding  could  be  permissible  only  if  the
appellant-RIICO had competence to deal with the land in dispute.
26. The High  Court also  erred in  holding that  the provision  of
providing  the  access  road  was  an  obligation  on  the  part  of  the
appellant-RIICO, deciding this on equitable grounds. The terms of the
lease deed clearly stipulated that in case the appellant-RIICO provides
the access road, it will be vested with the right to collect the charges
incurred  by  it  from  the  respondent-company,  therein,   and  in  the
alternative, it would be the obligation of the respondent-company to
develop  its  own  infrastructure,  and  the  same  would  include
development of the access road. Therefore, the appellant-RIICO was
not under any obligation to provide the said access road.  
27. The interpretation given to the amended Rule 11-A of the Rules
1959  by the High Court, takes away the vested right of the appellantRIICO in the title as well as in the interest that it had acquired in the
28Page 29
property, as it had paid the entire amount for the land to the State
when possession of land was handed over to it.
Rule 11-A of the Rules 1959 was amended only to facilitate the
respondent-company  to  grant  further  sub-lease  and  not  to  divest
RIICO from its rights and title. It was found necessary in wake of
difficulties faced by the respondent-company as it was not permissible
for it to grant further sub-lease. Thus, the rule provided a deeming
clause/fiction that for the purpose of sub-lease by the respondentcompany  to  further  allottees,  it  would  be  deemed  that  the  State
Government  had  executed  the  lease  in  favour  of  the  respondentcompany.  The terms “mutatis mutandis”, and “as if”, used in the
amended provisions of Rule 11-A of the Rules 1959 simply facilitated
the sub-letting of a part of the premises by the respondent-company,
and did not take away the title and rights that the appellant-RIICO had
over the land.
The Rule 11-A of the Rules 1959 has further been amended on
12.10.2000 enabling all the allottees of RIICO to sub-lease further.
Thus, if the interpretation given by the High Court is accepted, the
appellant RIICO looses all its lands and properties and rendered the
29Page 30
development  authority  existing  on  papers  only,  without  any
status/authority.
28.        The ultra activist view articulated by the High Court on the
basis  of  supposed  intention  and  imaginative  purpose  to  the
amendment act, is uncalled for and ought to have been avoided. It
rendered  the  appellant-RIICO  totally  insignificant  and  irrelevant
without  realising  that  the  appellant-RIICO  had  autonomous
functioning,  and  the  interpretation  given  by  the  High  Court  has
devastating  effect underlying its status, authority and autonomous
functioning. In fact, by interpretation the High Court had conferred an
authoritarian role to the State, taking away the right of appellantRIICO on its property without realising that the amendment to Rule
11-A of the Rules 1959 had specifically been engrafted therein only,
for the purpose of facilitating the respondent-company to grant further
sub-lease.   Thus, it is evident that the High Court decided the case on
speculative and hypothetical reasons.
29. The  terms  incorporated  in  the  lease  deed  itself  provide  for
timely completion of construction and also for the commencement of
production within a stipulated period. Records however, reveal that
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only  10%  of  total  construction  work  stood  completed  by  the
respondent-company. No proper application was ever filed for seeking
extension of time by the respondent-company, as per the Rules. We
have been taken through the record.
While  providing  justification  for  the  non-completion  of
construction and commencement of production, in very vague terms,
it was submitted by the respondent-company that extension of time
was sought from statutory authorities. However, the said application
did not specify how much more time the company was seeking, and
that too, without meeting any requirements provided in the statutory
rules.
30. According to clause 2(d) of the lease deed the entire project was
to be completed within a period of five years i.e. by 25.5.1994. But it
is evident from the material on record that construction was just made
on the fraction of the entire land. Clause 2 (i) contemplated that, the
lessee will not transfer nor sub-let nor relinquish rights without prior
permission from the appellant-RIICO. However, it is evident from the
record that the respondent-company had negotiated with a third party
for development of the land.
31Page 32
31. The cancellation of allotment was made by appellant- RIICO
in exercise of its power under Rule 24 of the Rules 1979 read with the
terms of the lease agreement. Such an order of cancellation could have
been challenged by filing a review application before the competent
authority under Rule 24 (aa) and, in the alternative, the respondentcompany could have preferred an appeal under Rule 24(bb)(ii) before
Infrastructure Development Committee of the Board. The respondentcompany ought to have resorted to the arbitration clause provided in
the lease deed in the event of a dispute, and the District Collector,
Jaipur would have then, decided the case.  However, the respondentcompany  did  not  resort  to  either  of  the  statutory  remedy,  rather
preferred a writ petition which could not have been entertained by the
High Court. It is a settled law that writ does not lie merely because it
is  lawful  to  do  so.  A  person  may  be  asked  to  exhaust  the
statutory/alternative remedy available to him in law.
32. In view of the above, the appeals deserve to be allowed.  Thus,
the appeals are allowed.  Judgment and order impugned are set aside
and the order of cancellation of allotment in favour of the respondent-
32Page 33
company by the appellant is restored.  However, in the facts and
circumstances of the case, there shall be no order as to costs.
………………………J.
(Dr. B.S. CHAUHAN)
………………………J.
         (V. GOPALA
GOWDA)
New Delhi,                                                                                
February 12, 2013
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