Rajasthan High Court - Jaipur
J D A And Anr vs Vidhayak Nagar Vikas Samit And on 17 November, 2016
Author: Ajay Rastogi
Bench: Ajay Rastogi
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR
DB Civil Special Appeal (Writ) No. 1953/2008
1. Jaipur Development Authority through its Secretary, Ram
Kishore Vyas Bhawan, Jawaharlal Nehru Marg, Indira Cricle, Jaipur.
2. The Deputy Commissioner, Lal Kothi Zone, Jaipur
Development Authority, Ram Kishore Vyas Bhawan, Jawaharlal
Marg, Indira Circle, Jaipur.
...Appellants/Non-petitioners No.2&3
Versus
1. Vidhayak Nagar Vikas Samiti through Shri Dinesh Agarwal S/o.
Shri Shanti Lal Agarwal, r/o.B-1, New Light Colony, Tonk Road,
Jaipur.
..Respondent/Petitioner
2. The State of Rajasthan through Secretary to the Government ,
urban Development & Housing Department , Government of
Rajasthan, Secretariat , Jaipur.
3. The Apolo Nagar Housing Cooperative Society Ltd. Narain
Niwas, Dayal Nagar, Gopalpura Bypass, Jaipur.
4. Chanda Lal S/o. Shri Mangla, r/o Mangal ji Ki Kothi, Near Jyoti
Nagar, Housing Board, lal Kothi, jaipur through its power of
Attorney Holder Gyaneshwar Dutt Sharma S/o Hari Prakash Sharma.
R/o, 660, Sindhi Colony , Adarsh Nagar, Jaipur.
...Respondents/Non-petitioners
DB Civil Special Appeal (Writ) No. 623/2009
The State of Rajasthan through Secretary to the Government ,
urban Development & Housing Department , Government of
Rajasthan, Secretariat , Jaipur.
...Appellant/Non-petitioner No.2
Versus
1. Vidhayak Nagar Vikas Samiti through Shri Dinesh Agarwal S/o.
Shri Shanti Lal Agarwal, r/o.B-1, New Light Colony, Tonk Road,
Jaipur.
2. The Apolo Nagar Housing Cooperative Society Ltd. Narain
Niwas, Dayal Nagar, Gopalpura Bypass, Jaipur.
3. Chanda Lal S/o. Shri Mangla, r/o Mangal ji Ki Kothi, Near Jyoti
Nagar, Housing Board, lal Kothi, jaipur through its power of
Attorney Holder Gyaneshwar Dutt Sharma S/o Hari Prakash Sharma.
R/o, 660, Sindhi Colony , Adarsh Nagar, Jaipur.
...Respondents
4. Jaipur Development Authority through its Secretary, Ram
kishore Vyas Bhawan, jawaharlal Nehru Marg, Indira Circle, Jaipur.
5. The Deputy Commissioner, Lal Kothi Zone, Jaipur Development
Authority, Ram Kishore Vyas Bhawan, Jawaharlal Nehru Marg, Indira
Circle, Jaipur.
.... Proforma Respondents
DB Civil Special Appeal (Writ) No. 1080/2009
Chanda Lal S/o Late Shri Mangla, aged about 32 years,
resident of Mangaliji Ki Kothi, Near Jyoti Nagar, Housing Board, Lal
Kothi, jaipur
...Appellant/Non-petitioner
Versus
1. Vidhayak Nagar Vikas Samiti through Shri Dinesh Agarwal S/o.
Shri Shanti Lal Agarwal, r/o.B-1, New Light Colony, Tonk Road,
Jaipur.
Respondent-Petitioner
2. The State of Rajasthan through Secretary to the Government ,
urban Development & Housing Department , Government of
Rajasthan, Secretariat , Jaipur.
3. Jaipur Development Authority through its Secretary, Ram
kishore Vyas Bhawan, jawaharlal Nehru Marg, Indira Circle, Jaipur.
4. The Deputy Commissioner, Lal Kothi Zone, Jaipur Development
Authority, Ram Kishore Vyas Bhawan, Jawaharlal Nehru Marg, Indira
Circle, Jaipur.
...Performa- respondents-non-petitioner
5. The Apolo Nagar Housing Cooperative Society Ltd. Narain
Niwas, Dayal Nagar, Gopalpura Bypass, Jaipur.
...Respondent- Non-petitioner
Date of Order - 17.11.2016
HON'BLE MR. JUSTICE AJAY RASTOGI
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Mr. S.K. Gupta, AAG Counsel for the petitioners.
Mr. Sarthak Rastogi, Counsel for the respondents.
Instant special appeal is directed against the Judgment of the learned Single Judge dated 13/05/2008 the Vidhayak Nagar Vikas Samiti through Shri Dinesh Agarwal son of Shanti Lal Agarwal approached this court by filing of the Civil Writ Petition No.1081/2002 with many fold grievances and the learned Single Judge disposed of the writ petition with the direction to the concerned authorities to regularise the remaining land/plots of the members of the Samiti Keeping in view the mandate of clause 3 circular of the policy decision dated 06/12/2001 of the said Government and we consider appropriate to quote the final direction issued by the learned Single Judge under Order impugned.
Counsel for the State Mr. S.K. Gupta AAG placed reliance on the Judgment of the Apex Court reported in 2011(12) SCC 94 Jaipur Development Authority & Ors. Vs. Vijay Kumar Data & Ano. And brought to our notice that the very circular relied upon by the learned Single Judge of which reference has been quoted by the Apex Court in para 42 of the Judgment which reads ad infra:-
"The recommendations made by the Committee were given the color of the Government's decision (though, no material has been placed on record to show that the recommendations made by the Committee were accepted by the State Government) as would appear from letter dated 6.12.2001 written by Deputy Secretary (Administration), Urban Development Department to the Secretary, Jaipur Development Authority, Jaipur. That letter reads as under:
GOVERNMEN OF RAJASTHAN URBAN DEVELOPMENT DEPARTMENT No. F.3(32)UDD/3/2001 No. F.3(32)UDD/3/2001 Jaipur Dated: Dec., 2001 6 DEC 2001 The Secretary, Jaipur Development Authority, Jaipur.
Jaipur Dated: Dec. ,2001 6 DEC 2001 Subject: Regarding regularization of illegal construction / encroachment under Lai Kothi Scheme.
Sir, In the above context it is stated that under the Ministerial Secretariat Order No. F. 4(1)M.M./99 dated 30th October, 2001 for the solution of problems arising from comp1ications of regularization of illegal construction/encroachments under Lal Kothi and Prithviraj Nagar Schemes, a sub committee was constituted. This Sub Committee comprised of Minister, Urban Development as convenor and Home Minister, Finance Minister, Minister for Industries and State Minister for minerals were nominated its members and Secretary Administration, Urban Development Department was nominated as member secretary of this sub committee.
The Committee discussed in detail over various aspects of Lal Kothi Scheme and after taking into consideration the entire facts unanimously took the following decision:
1. As per the awards pronounced so far under the Lal Kothi Scheme, whatever amount is due for payment to the awardees, that may be paid to the concerned cultivators.
2. The awardees who besides compensation amount could not be allotted plot of land or after allotment were cancelled, may now be allotted per awardee a plot measuring 250 square yards in other schemes of J.D.A. Such plot be awarded at rate of 25 percent of the prevalent residential reserved rate under the scheme.
3. The developed and vacant plots be regularized in the similar manner. These may be regularized at the following rates:
A) up to 200 sq. yards percent of the reserved residential rate. B) More than 200 sq. yards percent of the reserved residential rate
4. In the remaining cases of worth regularizing plots of Everest and Salt colonies (which are about 80 plots) which could not be regularized inspite of decision of 1976, the rate of regularization is fixed at 25 percent of the reserved residential rate.
5. In connection with regularization of the plots the amount on the basis of self-assessment be asked to be deposited by 28.2.2002.
6. Those who fail to get regularisation within stipulated time limit, it is decided to afford them opportunity of depositing the amount by 31.3.2002 with 5 per cent, additional amount to obtain regularization. After expiry of the said date, it is decided that no regularization be done and after notice to such occupants over the plots their construction shall be demolished and such plot's shall then vest in the Authority and for the purpose of rehaoi1itation they shall be allotted as residential plots under other schemes of Jaipur Development Authority.
7. The plots which are not regularized under this order, they be finally refused and their list be published in the news paper, and possession on the site if any, be removed.
8. The awardees/sub awardees whose allotments have not yet been cancelled, but they have construction on site of their plots, it is decided that their earlier allotment be cancelled and treating the plot as acquired, on the basis of possession, be regularized under this order. I t is decided to adjust the amount deposited earlier. On interest shall be chargeable on this amount.
9. In the cases wherein litigation is pending in courts, in connection with them it is decided to follow action as under:
(a) Such of the vacant plots where there is stay order from the court or any adverse order etc. in force and which have been taken over in possession by the Jaipur Development Authority as per rules, it is decided to sell them through auction. It is decided to draw a list or such plots.
b) In cases of acquired or under acquisition and / plot of land/constructed building which is under effect of any order or stay order from the court, in connection with them it is decided to follow action as under:
Where in connection with acquired or under acquisition land/plot of land/constructed building stay order/order for status quo is issued in favour of cultivator, it is decided to follow regularization proceeding in favour of such cultivator treating the land/ plot of land/ constructed building in his favour. If the order/ stay order/ order for status quo is in favour of J.D.A. then treating the concerned plot/land to be of J.D.A. it is decided to follow further taken and such plot/land is decided not to be regularized. On the contrary if such orders are in favour of other person and he is in possession, and he withdraws the case from the court, then regu1arization of that plot /land be done in his favour. In cases of plots where J.D.A. has gone in appeal and no decision is taken by the court in favour of the Authority then honouring the judgment of the court below, case shall be withdrawn by the J.D.A. the plot/ land/ constructed building is decided to be regularised in favour of concerned person. In such cases the basis of regularization will be physical possession. In connection with regularization on above basis, the Samjhota Samiti will review each and every case and give its decision which shall he binding on J.D.A.
10. In connection with land under acquisition, land of 9 bigha 6 biswa of Pratap Nursary, 5 bigha of Anand Nursary, 2 bigha 12 biswa of Kailashwati, Maharchand & Sons is decided not to acquire. Simultaneously it is decided to regularize on payment of 25 percent of reserved residential rate of these land.
No decision was taken in connection with land of Amrudon Ka Bagh. It is thought proper to take any action after decision from Delhi High Court. Yours faithfully, Sd/- 6.12.01 (H.S. Bhardwaj)"
And finally observed in reference to the letter dated 06/12/2001 in the para 42 to 53,54,54 and 55 and finally observed in reference to the letter dated 06/12/2001 which reads ad infra:-
"Likewise, Article 166(3) lays down that: The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.
Article 166 was interpreted in State of Bihar v. Kripalu Shankar (1987) 3 SCC 34 and it was observed: Now, the functioning of Government in a State is governed by Article 166 of the Constitution, which lays down that there shall be a Council of Ministers with the Chief Minister at the head, to aid and advise the Governor in the exercise of his functions except where he is required to exercise his functions under the Constitution, in his discretion. Article 166 provides for the conduct of government business. It is useful to quote this article:
166. Conduct of business of the Government of a State. -(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.
Article 166(1) requires that all executive action of the State Government shall be expressed to be taken in the name of the Governor. This clause relates to cases where the executive action has to be expressed in the shape of a formal order or notification. It prescribes the mode in which an executive action has to be expressed. Noting by an official in the departmental file will not, therefore, come within this article nor even noting by a Minister. Every executive decision need not be as laid down under Article 166(1) but when it takes the form of an order it has to comply with Article 166(1). Article 166(2) states that orders and other instruments made and executed under Article 166(1), shall be authenticated in the manner prescribed. While Clause (1) relates to the mode of expression, Clause (2) lays down the manner in which the order is to be authenticated and Clause (3) relates to the making of the rules by the Governor for the more convenient transaction of the business of the Government. A study of this article, therefore, makes it clear that the notings in a file get culminated into an order affecting right of parties only when it reaches the head of the department and is expressed in the name of the Governor, authenticated in the manner provided in Article 166(2).
33. It is thus clear that unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order made on behalf of the Government. A reading of letter dated 6.12.2001 shows that it was neither expressed in the name of the Governor nor it was authenticated manner prescribed by the Rules. That letter merely speaks of the discussion made by the Committee and the decision taken by it. By no stretch of imagination the same can be treated as a policy decision of the Government within the meaning of Article 166 of the Constitution.
34. We are further of the view that even if the instructions contained in letter dated 6.12.2001 could be treated as policy decision of the Government, the High Court should have quashed the same because the said policy was clearly contrary to the law declared by this Court in Radhey Shyam's case and Daulat Mal Jain's case and was a crude attempt by the concerned political functionaries of the State to legalise what had already been declared illegal by this Court.
35. Although, we are prima facie satisfied that execution of lease deeds by the Appellant in favour of some persons in 2002 and 2003 is a clear indication of deep rooted malaise in the functioning of the Appellant and is also indicative of sheer favouritism and nepotism, we refrain from pronouncing upon the legality of those transactions because the beneficiaries are not parties to these appeals.
36. In the result, the appeals are allowed. The impugned judgment is set aside. The writ petitions filed by Vijay Kumar Data and Daya Kishan Data are dismissed and they are directed to pay cost of Rs. 5 lacs for pursuing unwarranted litigation for last over 15 years. The amount of cost shall be deposited with the Rajasthan State Legal Services Authority within a period of two months. The Respondents shall be entitled to recover the price paid to Shri Ganesh Narayan Gupta along with the amount of cost by availing appropriate legal remedy.
37. Since we have found that the so called policy decision contained in letter dated 6.12.2001 is contrary to the law declared by this Court, the State Government and the Appellant are restrained from taking any action in future on the basis of the said letter."
And finally observed that so called policy decision of the State Government containing letter dated 06/12/2001 is contrary to law as decided by the Apex Court.
In the light of the judgment of the Apex Court in our considered view what is being observed by the learned Single Judge is directing the state authorities to comply with keeping in view the the mandate of their letter dated 06/12/2001 does not hold good.
Consequently, the appeal succeeds and is allowed. The order of the learned Single Judge is quashed and set aside. No cost.
(SANJEEV PRAKASH SHARMA), J. (AJAY RASTOGI), J.
M.Meena Jr. P.A.