Rajasthan High Court - Jaipur
Chhotu Ram S/O Pratap vs Jaipur Development Authority on 10 May, 2019
Author: Veerendr Singh Siradhana
Bench: Veerendr Singh Siradhana
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HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 26894/2018
1. Chhotu Ram S/o Pratap, Aged About 74 Years, By Caste
Yadav Resident Of Roshan Farm House, Beed Khatipura,
Vaishali Nagar, Jaipur.
2. Ramdas S/o Harlal, Aged About 82 Years, By Caste Yadav
Resident Of Roshan Farm House, Beed Khatipura, Vaishali
Nagar, Jaipur.
----Petitioners
Versus
1. Jaipur Development Authority, Through Its Secretary, Jln
Marg, Jaipur.
2. Additional Director, Revenue And Property Disposal, Jda,
Jaipur
3. Deputy Commissioner, Zone 7, Jaipur Development
Authority, Jaipur
4. State of Rajasthan through the Additional Chief Secretary,
Urban Development & Housing Department, Government of
Rajasthan, Government Secretariat, Jaipur.
----Respondents
For Petitioner(s) : Mr. R.K. Mathur, Sr. Counsel with Mr.
Achintya Kaushik
For Respondent(s) : Mr. Anil Mehta, AAG, Mr. Yashodhar
Pandey, Mr. Amit Kuri, Ms. Kanika
Burman, Ms. Archana
HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA
Order
10/05/2019
Instant writ petition has been instituted by Chotu Ram and
Ramdas i.e. the petitioners, with the prayer to quash and set aside
the impugned order dated 01st November, 2018, made by the
Jaipur Development Authority Appellate Tribunal (for short, the
Tribunal), and further, to hold the acquisition proceedings of the
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subject land involved herein, initiated under the Urban Land
(Ceiling and Regulation) Act, 1976 (for short, the 'ULCAR Act'), to
have lapsed being illegal; and therefore, return the subject land,
back to the petitioners. The prayer clause of the writ application,
reads thus:
"(i) Call for the record of the entire proceedings;
(ii) Quash and set aside the order dated 01.11.2018
passed by the Jaipur Development Authority Appellate
Tribunal in Appeal No.490/2018, Shri Chhotu Ram &
Another V. Jaipur Development Authority & Others
(Annexure-1);
(iii) Restrain the respondents from creating third party
rights on the land in question;
(iv) Hold the alleged acquisition proceedings under
ULCAR Act, 1976 as being illegal and vitiated on account
of not taking of possession of the land in question by the
respondents and non-payment of compensation;
(v) Direct the respondents to restore the possession
Khasra No.193, 193/248 situated in Village Beed
Khatipura, Jaipur to the petitioners.
(vi) Or in the alternate direct the respondents to decide
the representation of the petitioners in a time bound
manner while maintaining status quo on the land in
question;
(vii) Any other relief, order or direction that this Hon'ble
Court deems fit in the interest of equity, justice and
good conscience."
2. Shorn off unnecessary details, the essential skeletal material
facts necessary for adjudication of the controversy raised are: that
the petitioners purchased the subject land comprising of Khasra
No. 193 and 193/248, situated in Village Beed Khatipura, Jaipur, in
the year of 1967. The competent authority issued notifications
under Section 10 (3) of the ULCAR Act, with reference to Khasra
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No. 193 vide notification dated 4th January, 1984 and relating to
Khasra No. 193/248 vide notification dated 28 th January, 1984.
The subject land in question, as stated, was acquired by taking
forcible possession on 6th December, 1986. Thereafter, the
petitioners filed appeals bearing No. 54/91 and 55/91, before the
Divisional Commissioner, unsuccessfully. Aggrieved thereof, the
petitioners instituted writ applications bearing SBCWP No.
2008/93 and SBCWP No. 2209/93; challenging the applicability of
the ULCAR Act to the land in question. The ULCAR Act was
repealed in the State of Rajasthan, with effective from 07 th
October, 1999. It is pleaded case of the petitioners that the State
Government inserted Section 83-A in the Jaipur Development
Authority Act, 1982 (for short, the 'JDA Act'), for constitution of
'Settlement Committee', to resolve the disputes between Jaipur
Development Authority (JDA) and other persons vide notification
dated 26th May, 2001. The 'Settlement Committee', vide order
dated 10th April, 2002, directed for the subject land to be
regularized at the cost of 25% of the reserve price, subject to the
condition that petitioners withdrew the pending writ applications
before the High Court and Supreme Court involving the same
subject land. The respondent-JDA, issued a demand notice dated
18th May, 2002, thereby demanding Rs. 3,81,23,291.25/- (Rupees
Three Crore Eighty One Lakh Twenty Three Thousand Two
Hundred Ninety One and Twenty Five paise Only), for
regularization of the subject land involved herein. The petitioners
made a payment of Rs. 1,45,05,000/- (Rupees One Crore Forty
Five lakhs Five Thousand Only). Meanwhile, a Public Interest
Litigation (PIL), bearing No. 2658/03, was filed in this High Court
challenging the constitution of the 'Settlement Committee' under
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Section 83-A of the JDA Act. The State Government, pending the
PIL, withdrew the notification for constitution of the 'Settlement
Committee' on 15th September, 2004. Be that as it may, the
petitioners addressed a representation, dated 13 th August, 2013,
to the State Government for regularization and compliance of the
order dated 10th April, 2002, made by the 'Settlement Committee'.
The State Government constituted an 'Empowered Committee' on
19th September, 2013, seeking its legal opinion in the matter of
the subject land involved herein. The Committee, in its legal
opinion dated 17th November, 2013, opined that for the entire
amount for regularization was not deposited by the petitioners;
therefore, the respondent-JDA was not obliged to regularize the
subject land after a lapse of 11 years and this fact was conveyed
to the petitioners vide order dated 20th November, 2013.
3. Thereafter, the petitioners filed a writ application (SBCWP
12656/2014), challenging the orders dated 17 th November, 2013
and 20th November, 2013, and to further allow the subject land in
question to be regularized. The writ application was dismissed vide
order dated 25th February, 2015, so also the intra-court appeal
against the order dated 25th February, 2015, vide order dated 27 th
February, 2015, by the Division Bench. The petitioners then
approached the Apex Court of the land by way of a Special Leave
Petition, which was also dismissed vide order dated 02 nd March,
2015. A review petition filed by the petitioners before the Division
Bench of this court, was also declined vide order dated 13 th May,
2016. And then a special leave petition against the order dated
13th May, 2016, before the Apex Court of the land, wherein the
SLP, was withdrawn by the petitioners with the liberty reserved to
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them to address a representation to the State Government in
order to deal with the question of non-payment of compensation
and possession taken or not ?. in lieu of acquisition of the subject
land involved herein. This prayer was granted by the Supreme
Court.
4. The petitioners, therefore, addressed a representation to the
State Government whereby the Urban Development Department
requested the respondent-JDA, to submit a 'Factual Report'
regarding the subject land in question on the issues aforesaid. The
respondent-JDA, submitted the 'Factual Report' dated 07 th
September, 2017 to the Urban Development Department, wherein
it has been specifically stated that there is no evidence on record
as to possession and compensation paid to the petitioners, of the
subject land in question. Be that as it may, the State Government
did not take any action even in the face of the 'factual report'
aforesaid while the respondent-JDA has notified auction of some
parts of the subject land in question. The petitioners, therefore,
moved the JDA Appellate Tribunal, against the said auction notice.
And the application of the petitioners before the Tribunal, has
been declined vide impugned order dated 1st November, 2018; of
which the petitioners are aggrieved of.
5. Mr. R.K. Mathur, learned senior counsel for the petitioners
with Achintya Kaushik, Advocate, vehemently argued that the
petitioners were the erstwhile Khatedar tenants of agricultural
land bearing Khasra No. 193 and Khasra No. 193/248 ad-
measuring 25 Bigha 2 Biswas and 12 Bigha 5 Biswas, respectively;
situated in Village Beed Khatipura, Jaipur. The subject land in
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question was purchased by the petitioners in 1967. Acquisition
proceedings were initiated vide notifications under Section 10 (3)
of the ULCAR Act, with respect to Khasra No. 193 vide notification
dated 04th January, 1984 and with respect to Khasra No. 193/248
vide notification dated 28th January, 1984, although the land in
question was outside the limits of Jaipur City and was being used
for agricultural purposes; therefore, at the very first instance, the
acquisition proceedings initiated were illegal to begin with. Further,
the State Government determined the compensation to be Rs.
2,00,000/- (Rupees Two Lakhs Only) per Bigha, to be the
compensation that was to be paid in lieu of the acquisition but no
such compensation was ever paid to the petitioners.
6. According to Mr. Mathur, the petitioners challenged the
acquisition proceedings initiated under the ULCAR Act, before the
Divisional Commissioner and thereafter before this Court. And
while the matter was still pending, the State Government repealed
the ULCAR Act of 1976 vide notification dated 07 th October, 1999.
Later-on, the State Government vide notification dated 26 th May,
2001, inserted a provision for the constitution of a 'Settlement
Committee' under Section 83-A of the JDA Act, 1982, for
resolution of disputes between the JDA and other persons. It is
further pointed out that the petitioners along with other
Khatedars, filed an application before the 'Settlement Committee'
and the same was registered as Application No. 26/2002. The
'Settlement Committee' upon hearing both parties vide order
dated 10th April, 2002, concluded, that since the possession of the
land in question was not taken and compensation was also not
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paid to the petitioners, and further, the subject land in question
was used for agricultural purposes by the petitioners; hence, the
subject land in question shall be regularized as per circular dated
26th May, 2005, issued by the State Government, by charging
25% of the reserve price of the concerned area of Chitrakoot
Scheme. Thus, the petitioners were to deposit Rs. 1650/- (Rupees
One thousand six hundred and fifty Only), per Square Meter to the
JDA. The 'Settlement Committee' further directed the petitioners
that they would also withdraw the case pending before the Apex
Court of the land along with all other cases pending before various
courts or forums.
7. Learned senior counsel further added that the petitioners,
thereafter, in compliance of the order dated 10 th April, 2002, of the
Settlement Committee; withdrew all pending litigation from
various courts, and thereafter the respondent-JDA, issued a
demand letter dated 18th May, 2002, to the petitioners along with
other khatedars, raising a total demand of Rs. 3,81,23,291.25/-
(Rupees Three Crore Eighty One Lakh Twenty Three Thousand Two
Hundred Ninety One and Twenty Five paisa Only), as the amount
for regularization of the subject land of the petitioners along with
land of other Khatedars. The petitioners and other Khatedars in
compliance to the said demand, deposited a substantial sum of Rs.
1,45,05,000/- (Rupees One Crore Forty Five Lakhs Five Thousand
Only), through various challans with the respondent-JDA. Further,
the petitioners and other Khatedars were ready and willing to
deposit the balance amount as well to the respondent-JDA, but the
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respondent-JDA refused to receive the remaining amount on one
pretext or the other.
8. It is further sated that lateron, a 'Public Interest Litigation'
was filed bearing No. 2658/2003, titled as Ram Saran Singh Vs.
State of Rajasthan and Ors., challenging the formation of
'Settlement Committee' for resolution of disputes. During the
pendency of the aforesaid PIL, it was conveyed to the respondent-
JDA to keep the decisions of the 'Settlement Committee' in
abeyance but to the contrary the respondent-JDA refused to
accept the remaining amount for the regularization of the subject
land involved herein. Though the petitioners on several occasions
requested the respondent-JDA to accept the remaining amount for
regularization of the subject land in question but the respondent-
JDA refused to do so. Further, on an application of the petitioners,
the erstwhile Commissioner of the JDA, addressed a
communication dated 23rd May, 2007, to the Dy. Secretary, UHD,
seeking permission of the State Government to regularize the
subject land, in compliance of the order dated 10 th April, 2002, of
the 'Settlement Committee'. Permission was accorded by the State
Government along with the direction to release the lay out plan of
the Scheme as per rules after deposit the remaining amount along
with interest from the petitioners and the other Khatedars. But, to
the dismay of the petitioners, the respondent-JDA, even then,
refused to receive the remaining amount for the regularization and
remained idle.
9. In the meanwhile, the Public Interest Litigation, aforesaid
[Ram Saran Singh Vs. State of Rajasthan and Ors.], was
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adjudicated upon vide order dated 16 th August, 2012, holding that
since the 'Settlement Committee', was already dissolved on 15 th
September, 2004; hence, the pending cases cannot be decided by
the said Committee. The petitioners then addressed a
representation to the UDH on 13th August, 2013; once again
requesting for regularization of the subject land in question, in
compliance of the order dated 10th April, 2002 of the 'Settlement
Committee'. The State Government constituted an 'Empowered
Committee' through the UDH Department, in its meeting dated
11th September, 2013; and the matter was placed before the said
'Empowered Committee'.
10. Learned counsel for the petitioners further pointed out the
fact that the 'Empowered Committee', sought legal opinion in the
matter and on 17th November, 2013, wherein it was opined that
for the entire amount for regularisation was not deposited by the
petitioners, and therefore, the respondent-JDA, was not obelized
regularize the subject land in question after a lapse of 11 years,
and it was so communicated to the petitioners vide order dated
20th November, 2013.
11. It is evident from the findings of the Settlement Committee
vide order dated 10th April, 2002, that possession of the subject
land in fact was never taken and no compensation was paid to the
petitioners. It is for these reasons, the 'Settlement Committee'
directed that the subject land involved herein may be regularized
by the respondent-JDA. Moreover, the respondent JDA in utter
disregard to the order of the Settlement Committee sent its
officers on to the subject land and threatened to take possession
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from the petitioners. For no heed was paid to the representation of
the petitioners and no decision was been taken on the pending
representation, the petitioners were left with no alternative but to
approach this court, and accordingly, they did file a writ petition
bearing SBCWP No. 12656/2014 [Chotu Ram and Another Vs.
State of Rajasthan and Another], praying the following reliefs:
"It is, therefore, humbly prayed that in the interest of
justice this writ petition may kindly be allowed and entire
record of the case may kindly be called for and be perused
by this Hon'ble Court if so pleases:
A. By an appropriate writ, order or direction, the
respondents may kindly be directed to regularize the land
of the petitioners bearing Khasra No.193, 193/248 situated
in Village Beed Khatipura, Jaipur in compliance of the order
dated 10.4.2002 (Annex.1) passed by the State Level
Committee;
B. By an appropriate writ, order or direction, the
respondents may kindly be directed not to take possession
of the land of the petitioners in Khasra No.193, 193/248
situated in Village Beed Khatipura, Jaipur;
C. By an appropriate writ, order or direction, the
respondents may kindly be directed not to deprive the
petitioners of their legitimate right of enjoyment of
property;
D. Any other order or direction which this Hon'ble Court
may deem fit and proper in the facts and circumstances of
the case and in favour of the petitioners may also be
passed.
E. Cost of the writ petition may kindly be awarded in
favour of the petitioners."
12. As soon as the writ petition was filed in the morning of 11 th
November, 2014, the respondent-JDA, sent its officials in the
afternoon and pasted notices under section 34 - A (1) of the JDA
Act, on the premises of the subject land in question of the
petitioners. For a part of subject land had been used as 'marriage
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gardens' since 2008 and for which proper licenses have been
obtained from the Jaipur Nagar Nigam; hence, the facts were very
much in the knowledge of the respondent-JDA. Further, the time
given in the said notices was only 24 hours and that too without
any show cause notice; thus, the said notices were totally
arbitrary to the provisions of the JDA Act and it was just a method
devised to harass the petitioners. Thereafter, the respondent-JDA
communicated the decision of the State Government dated 17 th
November, 2014, informing that for the representation addressed
by the petitioners that since the petitioners failed to deposit the
entire amount for regularization of the land in question; therefore,
the petitioners cannot compel the respondent-JDA to comply with
the decision of the 'Settlement Committee' after a lapse of 11
years. Thus, in view of these new developments, during the
course of the pending proceedings, it became necessary to amend
the writ petition. Accordingly, the writ petition was amended with
the following prayers:
"It is, therefore, humbly prayed that in the interest of
justice this writ petition may kindly be allowed and entire
record of the case may kindly be called for and be perused
by this Hon'ble Court if so pleases:
A. By an appropriate writ, order or direction, the
respondents may kindly be directed to regularize the land of
the petitioners bearing Khasra No.193, 193/248 situated in
Village Beed Khatipura, Jaipur in compliance of the order
dated 10.4.2002 (Annex.1) passed by the State Level
Committee;
B. By an appropriate writ, order or direction, the
respondents may kindly be directed not to take possession
of the land of the petitioners in Khasra No.193, 193/248
situated in Village Beed Khatipura, Jaipur;
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C. By an appropriate writ, order or direction, the
respondents may kindly be directed not to deprive the
petitioners of their legitimate right of enjoyment of
property;
C1. By an appropriate writ, order or direction the notices
dated 20.11.2014 (Annexure-14, 15, 16, 17 and 18) issued by
the respondent no.2 under section 72 of the JDA Act, 1982
to the petitioners may kindly be quashed and set aside and
further all the notices u/s 72 of JDA Act, 1982 dated
14.11.2014 issued regarding the shops situated on khasra
no.193 and 193/248 be also quashed and set aside and all
subsequent action taken in. furtherance thereof also be
quashed and set aside.
C2. By an appropriate writ, order or direction the orders
dated 17.11.2014 (Annexure-9 and Annexure-11) passed by
the respondent no.1 and orders dated 20.11.2014 (Annexure-
8 and Annexure-10) passed by the respondent no.2 may be
quashed and set aside.
C3. By an appropriate writ, order or direction all the notices
dated 11.11.2014 issued under section 34(A) of the Act of
1982 be also quashed and set aside.
C4. By an appropriate writ, order or direction it may be held
that the subject land of khasra no. 193 and 193/248
situated at Beed Khatipura, Jaipur is not government
property and the petitioners are having legal and valid title
and rights over the said land.
D. Any other order or direction which this Hon'ble Court may
deem fit and proper in the facts and circumstances of the
case and in favour of the petitioners may also be passed.
E. Cost of the writ petition may kindly be awarded in favour
of the petitioners."
13. The writ petition aforesaid, was dismissed by this Court vide
order dated 25th February, 2015, holding that possession in terms
of Section 10 (6) of the ULCAR Act, was taken on 21 st June, 1986
and compensation was disbursed as well. The petitioners,
aggrieved of the order of the learned Single Judge, preferred an
intra-court appeal before the Division Bench, bearing DB SAW No.
201/2015, titled as Chotu Ram and Another Vs. State of Rajasthan
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and Another. The judgment of the Single Judge dated 25 th
February, 2015, was upheld by the Division Bench and the intra-
court appeal, was thus, dismissed vide order dated 27 th February,
2015. Thereafter, the petitioners preferred a Special Leave Petition
before the Apex Court of land bearing No. 7366/2015, which was
also declined vide order dated 2nd March, 2015.
14. Learned senior counsel for the petitioners asserted the fact
that the possession of the subject land involved herein was
actually taken for the first time on 02 nd March, 2015, and this fact
has been communicated to the petitioners in response to an
application seeking information under Right To Information Act,
2005 (for short, Act of 2005). Thereafter, the petitioners in the
face of this new fact surfaced to their knowledge, filed a review
petition for review of the order of the Division Bench instituting
D.B. Civil Review Petition No. 55/2016 [Chotu Ram Vs. State of
Rajasthan], which was again dismissed vide order dated 13 th May,
2016. The petitioners, once again instituted an appeal against the
order dated 13th May, 2016, of the Division Bench, before the Apex
Court of the land through SLP (C) No. 13844/2016 and SLP (C)
No. 20233/2016, [Chotu Ram Vs. State of Rajasthan]. The matter
was heard by the Supreme Court and during the course of the
arguments, the Apex Court of the land suggested the petitioners
that the factum of non-dispossession from the land in question
and non-payment of compensation in lieu of the acquisition of the
land involved herein; could be more accurately and aptly be dealt
with by the State-respondents. Therefore, liberty was sought for
to address a representation before the State Government with
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respect to the same, by the petitioners and it was generously
granted by the Apex Court of the land. The said SLPs, were
accordingly, withdrawn by the petitioners with the liberty to
address representation that was granted by the Supreme Court
vide order dated 29th July, 2016.
15. Mr. Mathur, further stated that the petitioners accordingly
addressed a representation to the State-respondents and on the
receipt of the representation, the State Government sought a
'Factual Report' from the respondent-JDA with respect to the
subject land in question. Thereafter, the Secretary, JDA, in
compliance forwarded the 'Factual Report' on 7 th September, 2017
with the facts as stated therein, which reads thus:
"27. That it seems that on receipt of the representation
of the petitioners, the state Government sought factual
report from Jaipur Development Authority with respect
to the land in question. It is submitted that as per the
information received under RTI, the Secretary, Jaipur
Development Authority has forwarded the factual report
on 07.09.2017 with the following observations:
. No Fard Kabja evidencing the forceful possession of the
land in question being taken on or after 06.12.1986 is
available on record. The order dated 06.12.1986 which is
available on record does not evidence the handing over of
possession by the petitioners by way of either signature
or thumb impression.
. No document evidencing either the payment of
compensation or the preparation of the said cheques is
available.
. Deposition of Rs.1,45,05,000/- as part payment of
Rs.3,81,23,291/- in pursuance order of Settlement
Committee dated 10.04.2002 is evidenced from the
record.
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Copy of the factual report dated 07.09.2017 along with
notesheet is annexed herewith and marked as Annexure-
23."
16. A copy of the 'Factual Report' has already been placed on
record that was furnished to the petitioners in response to an
application under the Right to Information Act, 2005. According to
learned counsel that a bare perusal of the report clearly explains
and proves that the forceful possession of the land in question was
never actually taken on 6th December, 1986, contrary to what was
portrayed before the courts and the order dated 6 th December,
1986 doesn't anywhere evidences the handing over of possession
by the petitioners. Moreover, there is no evidence of payment of
compensation to the petitioners as well. The alleged
communications made by the respondents as regards the cheques
were just a fraud played in order to mislead the courts to get the
scales in their favour. The communications indicate that Cheque
No. 131584 was issued on 16 th March, 1991 and the Cheque No.
131587 was issued on 13 th March, 1991, which shows that the
cheque bearing a later number was issued at first. Thus, the
authenticity of the said cheques issued and alleged payment of
compensation made is a farce and a way that was devised to
mislead the court.
17. Mr. R.K. Mathur, learned senior counsel insistently argued
that the respondents while have repeated the plea which were
raised in earlier writ proceedings have not disputed the contents
of para 27 and 28 of the instant writ application whereas it is
specific stand of the petitioners that physical possession of the
subject land involved herein was taken for the first time only on
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2nd March, 2015, and this fact is admitted by the respondents as
would be evident from communication dated 7 th September, 2017.
Further, no compensation of the subject land involved herein has
been paid to the petitioners and there is no evidence to this effect
as admitted by the respondents in view of communication dated
7th September, 2017.
18. Learned senior counsel further argued that the State
Government being conscious of the fact that fraud in fact was
played in the proceedings involving the land in question of the
petitioners; is now not acting upon the 'Factual Report' dated 7 th
September, 2017, submitted by the respondent-JDA. Moreover,
the respondent-JDA is now intending to create third party rights
over the land in question by auctioning parts of it. The petitioners,
therefore, afraid of losing their land, moved to Jaipur Development
Authority Appellate Tribunal under section 83 (8) (a) of the JDA
Act, against the auction notice dated 18 th July, 2018, passed by
the respondent JDA.
19. In order to fortify his stand learned counsel has relied upon
the opinions, in the case of State of TN V. Mahalakshmi Ammal:
AIR 1996 SC 866, Patasi Devi V. State of Haryana:AIR 2013
SC 856,- to emphasize that Panchnama is the only legally
accepted norm to take possession. Reliance is also placed on the
opinion in the case of B.Valamarthi v. Govt. of TN: W.P.
4988/2010 (Madras HC), to assert that acquisition proceedings
would stand abated if compensation has not been validly paid
before the Repealing Act of 1999. It is further pointed out that
acquisition under the ULCAR Act, cannot be said to have been
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concluded, if, the possession of the land in question was not taken
before the Repeal Act [vide Gajanan Kamlya Patil v. Addl. Collector
(2014) 12 SCC 523 and Vinayak K. Kashinath Shilkar V. Deputy
Collector (2012) 4 SCC 18]. Further, liberty of representation
must reach its logical conclusion and the cause of action would be
subsist and the matter cannot be said to be infructuous [vide Baij
Nathu Sharma V. Rajasthan High Court (1998) 7 SCC 44].In the
light of law declared in the case of Takaram Kana Joshi v. MIDC:
(2013) 1 SCC 353, the petitioners have staked claim for
payment of compensation at the prevalent market rate.
20. Per contra: Mr. Anil Mehta, learned Additional Advocate
General, representing the State-respondent, declined to file a
separate counter affidavit on behalf of the State-respondent,
despite opportunity granted to so, has relied upon and adopted
the counter-affidavit submitted on behalf of respondent-JDA.
Further, Mr. Anil Mehta, while endorsing the stand of the
respondent-JDA, has relyied upon paragraph 20 of the Coordinate
Bench of this Court in earlier round of litigation i.e. SBCWP No.
12656/2014 [Chhotu Ram & Anr. Vs. State of Raj. And ors.],
decided on 25th February, 2015, wherein it was observed that the
respondents appear to have taken possession of the subject land
leaving 1500 sq. meters of land out of the subject land from each
of the khasra number. Reference has also been made to paragraph
23 to assert that the possession was taken by the State
Government. According to Additional Advocate General, no fresh
cause of action accrued to the petitioners to institute the present
writ application. Further, the matter is barred by principle of res-
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judicata. Learned counsel further added that action of the
respondent-JDA in issuance of notice under Section 34 (A) and
Section 72 of the JDA Act, cannot be faulted for the same was
held to be justified vide judgment dated 25th February, 2015.
21. Mr. Amit Kuri, learned counsel representing the respondent-
JDA, vociferously argued that the conduct of petitioners in making
wrongful use of the land involved herein speaks volumes, and
therefore, they are not entitled to any indulgence by this Court.
Learned counsel has reiterated the submissions and stand that
was considered by a Coordinate Bench of this Court while
adjudicating upon the matter on writ application No.12656/2014,
vide judgment dated 25th February, 2015. According to Mr. Kuri,
the issue of possession taken of the vacant land stands resolved in
view of findings arrived at by the Coordinate Bench of this Court
vide judgment dated 25th February, 2015, under paragraph 20 and
23. Thus, the writ application is barred by principle of res-judicata.
However, the response to the writ application is cryptically silent
on the pleadings of para 27 and 28 of the writ application for
reasons best known to the petitioners.
22. I have heard the learned counsel for the parties and with
their assistance perused the materials available on record as well
as gave my thoughtful consideration to the rival submissions at
bar, as well as considered the opinions referred to and relied upon.
23. Indisputably, the writ application No.12656/2014, instituted
by the petitioners and adjudicated upon by a Coordinate Bench of
this Court vide judgment dated 25th February, 2015, is not in
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(19 of 32) [CW-26894/2018]
dispute. The sole basis for institution of the present writ
application is the subsequent information that has surfaced to the
petitioner in view of response by the respondents to application
under Right to Information Act, 2005, to one Chandra Shekhar
Sharma, as would be evident from communication dated 16 th
November, 2015 (Annexure-18) and communication dated 18 th
December, 2015 (Annexure-19).
24. At this juncture, it will be profitable to take note of the
contents of the 'Factual Report' dated 7 th September, 2017, which
reads thus:
"dk;kZy; t;iqj fodkl izkf/kdj.k] t;iqjA
bUnzk xk¡/kh lfdZy] ts-,y-,u ekxZ] t;iqjA
dzekad%tfoizk@mik]@tksu&7@2017@Mh&3037
'kklu lfpo&izFke]
uxjh; fodkl foHkkx]
jktLFkku ljdkj] t;iqjA
fo"k;%&Notice for restoration of land bearing khasra no.
193 and 193/248 in village beed khatipura, Jaipur
acquired under of the urban land ceiling act 1976.
lUnHkZ% vkidk i= dzekad Ik-1 (55) ufofo@t;iqj ikVZ 22 fnukad 31-07-
2017 ds dze esaA
mijksDr fo"k;kUrxZr lUnfHkZr i= esa [kljk ua- 193] 193@248
xzke chM [kkrhiqjk] t;iqj ds laca/k esa rF;kRed fVIi.kh pkgh gS] tks
fuEu izdkj gS%&
1- izkFkhZx.k Jh NksVwjke o jkenkl [kkrsnkj [kljk ua- 193 o
193@248 xzke chM[kkrhiqjk dk vH;kosnu e; nLrkost izkIr gqvk gS]
ftlds lkFk ekuuh; mPp U;k;ky; dk ,l,yih (lh)] 13844@16
o 20233@16 esa ikfjr vkns'k fnukad 29-07-2016 Hkh layXu gSA
2- izdj.k esa rF; ;g gS fd uxj Hkwfe (vf/kdre lhek ,oa
fofu;eu) vf/kfu;e 1976 jktLFkku jkT; esa fnukad 19-03-1976 ls
ykxw gqqvk gSA o"kZ 1991 ls iwoZ xzke chM [kkrhiqjk esa [kljk ua 193
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(20 of 32) [CW-26894/2018]
jdck 25&02 ch?kk Hkwfe NksVwjke iq= izrki tkfr vghj o 193@248
jdck 12&05 ch?kk Hkwfe jkenkl iq= gjyky tkfr vghj ds uke
ntZ FkhA
3- uxj Hkwfe (vf/kdre lhek ,oa fofu;eu) vf/kfu;e 1976 dh
/kkjk 10 (6)ds rgr vius vf/kdkjksa ,oa ''kfDr;ksa dk iz;ksx djrs
gq;s eSa ihMh ikyhoky l{ke vf/kdkjh izFke uxj Hkwfe ,oa Hkou dj
foHkkx t;iqj [kljk ua- 193] 193@248 o 204 xzke chM [kkrhiqjk dk
dqy jdck 194] 310 o-xh- dk dCtk cy iz;ksx dj tfoizk ds
euksfur vf/kdkjh Jh jkes'oj lkeksrk rglhynkj dks fnukad 16-12-
86 dks ekSds ij lEyk;k tkrk gS] ds vkns'k ikfjr fnukad 06-12-
1986 dks tkjh fd;s x;sA mldss mijkUr mDr [kljk ua- 193 o
193@248 ifoizk ds uke ntZ fd;k x;k] tks ukekUrdj.k la[;k 148
ls fnukad 07-07-1991 dks Lohdkj fd;k x;kA
4- mDr [kljku ij cyiwoZd dCtk vUrxZr /kkjk 10 (6) vf/kfu;e
1976 fnukad 06-12-1986 dks ysuk crk;k gS] bl laca/k esa QnZ dCtk
i=koyh ij miyC/k ugha gSA fnukad 06-12-1986 ds laca/k esa tks
nLrkost i=koyh ij miyC/k gS] ml ij izkFkhZx.kka }kjk dCtk
lEHkykus ds laca/k esa dksbZ gLrk{kj vaxwBk fu'kkuh ugha gSA mDr
[kljk uEcjku dk izFke ckj HkkSfrd dCtk fnukad 02-03-2015 dks
fy;k x;k gSA
5- eqvkotk jkf'k ds laa/k esa uk rks dHkh eqvkotk izkFkhZx.k dksk fn;s
tkus vkSj uk gh eqvkotk jkf'k ds pSd] tfoizk ds }kjk rS;kj fd;s
tkus ds laca/k esa dksbZ nLrkost miyC/k ugha gSA mDr lwpuk vfr-
funs'kd ,oa insu jkT; yksd lwpuk vf/kdkjh (jktLo ,oa lEifRr
fuLrkj.k) tfoizk] t;iqj ds i=kad Mh&666 fnukad 18-12-2015 ls
lwpuk ds vf/kdkj esa lwpuk nh xbZ gSA
6- i=koyh ij le>kSrk lfefr }kjk ikfjr vkns'k fnukad 10-04-
2002 miyC/k gS ftlesa rRdkyhu le>kSrk lfefr }kjk izkFkhZx.k dk
mDr [kljk uecjku ijk dCtk ekuk gSA le>kSrk lfefr }kjk
fnukad 10-04-2002 ls 3 lIrkg esa 3]81]23]291@& :i;s tek djkus
dk ekax i= tkjh fd;k x;k Fkk mlesa ls fnukad 08-08-2002 rd
1]45]05]000@& :i;s gh tek fd;s x;s gSaA
7- xzke chM [kkrhiqjk rg- t;iqj ds [kljk ua- 193 o 193@248 dk
HkkSfrd dCtk fnukad 02-03-2015 dks fy;k x;kA mDr [kljk
uEcjku dk dCtk fy;s tkus ij mDr [kljk uEcjku ij t;iqj
fodkl izkf/kdj.k }kjk dqcsj dkWeySDl ;kstuk l`ftr dj ekufp=
vuqlkj ;kstuk esa fefJr Hkw&mi;ksx=16624-37 o-eh-] xzqi gkmflax
= 21609-85 o-eh-] vkoklh; =1516-16 o-eh-] fjVsy 'kkWi =2031-
43 o-eh] ikdZ =4029-71 o-eh-] ikfdZax = 1224-03 o-eh-] lMd
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(21 of 32) [CW-26894/2018]
= 15378-96 o-eh-] QsflfyVh = 1240-27 o-eh] gkWfLiVy =
22500-00 o-eh-] dCts ls ckgj Hkwfe = 3749-36 o-eh dqy 89]904-14
o-eh- Hkwfe ntZ fd;k gSA
8- vf/kdk'ka Hkw[k.Mksa o nqdkuksa dks ykWVjh (vkWuykbZu) }kjk cspku
fd;k tk pqdk gSA
vr% mijksDr fcUnqvksa ds dze esa rF;kRed fjiksVZ lknj izLrqr gSA
lfpo]
t;iqj fodkl izkf/kdj.k]
t;iqjA"
25. A glance of the 'Factual Report' dated 7th September, 2017
(Annexure-23) supra, which has been furnished in response to
application(s) under RTI, in no uncertain and undisputed terms
details out the following facts:
(a) there is no 'Fard Kabja' to evidence the forceful possession of
the subject land involved herein taken on or after 6 th December,
1986, on record. The document/order dated 6th December, 1986,
available on record does not evidence handing over of possession
by the petitioners for it neither bear signature or thumb
impressions of the petitioners,
(b) there is no documentary evidence available on record to
evidence either payment of compensation or preparation of the
cheques as per details on record and;
(c) deposition of an amount of Rs.1,45,05,000/- (Rupees one
crore forty five lakhs five thousand) as part payment against a
demand of Rs. 3,81,23,291/- (Rupees three crore eighty one lakhs
twenty three thousand two hundred ninety one) in pursuance to
order of 'Settlement Committee' dated 10th April, 2002, is
substantiated from the record.
26. From the 'Factual Report' as extracted herein above,
indisputably, it is evident that there is no evidence of forceful
possession of the subject land involved herein, taken on 6 th
December, 1986, in accordance with law. It is also not in dispute
that no compensation has been paid to the petitioners in lieu of
acquisition of the subject land involved herein whereas the
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petitioners deposited part payment in pursuance to order made by
'Settlement Committee' dated 10th April, 2002.
27. In the case of Gajanan Kamlya Patil (supra), the Apex
Court of the land on a survey of earlier opinions dealing with the
peaceful and forcible possession of lands in the backdrop of the
provisions of ULCAR Act, held thus:
"5. Shri Shekhar Naphade, learned senior Counsel
appearing for the Appellant, submitted that the issue
raised in this case stands fully covered by the judgment of
this Court in State of U.P. v. Hari Ram
MANU/SC/0226/2013 : (2013) 4 SCC 280 and that the
High Court has committed a grave error in holding that
the MMRDA is in possession of the land in Survey No.
54/4 and hence the question as to whether possession had
been legally taken or not has to be decided by the Civil
Court. Learned senior Counsel also submitted that the
State of Maharashtra has adopted the Repeal Act, 1999
on 1.12.2007 and that Respondent No. 1 had executed the
possession receipt in favour of Respondent No. 3 on
2.7.2008 behind the back of the Appellant, without
following the due process of law. Learned senior Counsel
submitted that since possession had not been taken in
accordance with law, the Appellant is entitled to the
benefit of the Repeal Act, 1999, as was rightly held in
respect of Survey No. 47/10.
11. We may indicate, apart from the affidavits filed by
the officials in this case, no other document has been
made available either before the High Court or before
this Court, either showing that the Appellant had
voluntarily surrendered or the Respondents had taken
peaceful or forcible possession of the lands. In Hari Ram
(supra) this Court examined the meaning and context of
Sub-sections (3) to (6) of Section 10 of the ULC Act and
held as follows:
"30. Vacant land, it may be noted, is not actually acquired
but deemed to have been acquired, in that deeming things
to be what they are not. Acquisition, therefore, does not
take possession unless there is an indication to the
contrary. It is trite law that in construing a deeming
provision, it is necessary to bear in mind the legislative
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purpose. The purpose of the Act is to impose ceiling on
vacant land, for the acquisition of land in excess of the
ceiling limit thereby to regulate construction on such
lands, to prevent concentration of urban lands in the
hands of a few persons, so as to bring about equitable
distribution. For achieving that object, various
procedures have to be followed for acquisition and
vesting. When we look at those words in the above setting
and the provisions to follow such as Sub-sections (5) and
(6) of Section 10, the words "acquired" and "vested" have
different meaning and content. Under Section 10(3), what
is vested is de jure possession not de facto, for more
reasons than one because we are testing the expression
on a statutory hypothesis and such an hypothesis can be
carried only to the extent necessary to achieve the
legislative intent.
Voluntary surrender
31. The "vesting" in Sub-section (3) of Section 10, in our
view, means vesting of title absolutely and not possession
though nothing stands in the way of a person voluntarily
surrendering or delivering possession. The Court in
Maharaj Singh v. State of U.P. (MANU/SC/0361/1976 :
1977 (1) SCC 155), while interpreting Section 117(1) of the
U.P. Zamindari Abolition and Land Reforms Act, 1950 held
that "vesting" is a word of slippery import and has many
meanings and the context controls the text and the
purpose and scheme project the particular semantic shade
or nuance of meaning. The Court in Rajendra Kumar v.
Kalyan (MANU/SC/0474/2000 : 2000 (8) SCC 99) held as
follows: (SCC p. 114, para 28)
28. ... We do find some contentious substance in the
contextual facts, since vesting shall have to be a 'vesting'
certain. 'To "vest", generally means to give a property in.'
(Per Brett, L.J. Coverdale v. Charlton (1878) 4 QBD 104
(CA): Stroud's Judicial Dictionary, 5th Edn., Vol. VI.)
Vesting in favour of the unborn person and in the
contextual facts on the basis of a subsequent adoption
after about 50 years without any authorisation cannot
however but be termed to be a contingent event. To
'vest', cannot be termed to be an executory devise. Be it
noted however, that 'vested' does not necessarily and
always mean 'vest in possession' but includes 'vest in
interest' as well.
32. We are of the view that so far as the present case is
concerned, the word "vesting" takes in every interest in
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the property including de jure possession and, not de
facto but it is always open to a person to voluntarily
surrender and deliver possession, under Section 10(3) of
the Act.
33. Before we examine Sub-section (5) and Sub-section
(6) of Section 10, let us examine the meaning of Sub-
section (4) of Section 10 of the Act, which says that
during the period commencing on the date of publication
under Sub-section (1), ending with the day specified in
the declaration made under Sub-section (3), no person
shall transfer by way of sale, mortgage, gift or
otherwise, any excess vacant land, specified in the
notification and any such transfer made in contravention
of the Act shall be deemed to be null and void. Further,
it also says that no person shall alter or cause to be
altered the use of such excess vacant land. Therefore,
from the date of publication of the notification under
Sub-section (1) and ending with the date specified in the
declaration made in Sub-section (3), there is no question
of disturbing the possession of a person, the possession,
therefore, continues to be with the holder of the land.
Peaceful dispossession
34. Sub-section (5) of Section 10, for the first time,
speaks of "possession" which says that where any land is
vested in the State Government under Sub-section (3) of
Section 10, the competent authority may, by notice in
writing, order any person, who may be in possession of it
to surrender or transfer possession to the State
Government or to any other person, duly authorised by
the State Government.
35. If de facto possession has already passed on to the
State Government by the two deeming provisions under
Sub-section (3) of Section 10, there is no necessity of
using the expression "where any land is vested" under
Sub-section (5) of Section 10. Surrendering or transfer
of possession under Sub-section (3) of Section 10 can
be voluntary so that the person may get the
compensation as provided under Section 11 of the Act
early. Once there is no voluntary surrender or delivery
of possession, necessarily the State Government has to
issue notice in writing under Sub-section (5) of Section
10 to surrender or deliver possession. Sub-section (5) of
Section 10 visualises a situation of surrendering and
delivering possession, peacefully while Sub-section (6)
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of Section 10 contemplates a situation of forceful
dispossession.
Forceful dispossession
36. The Act provides for forceful dispossession but
only when a person refuses or fails to comply with an
order under Sub-section (5) of Section 10. Sub-section
(6) of Section 10 again speaks of "possession" which
says, if any person refuses or fails to comply with the
order made under Sub-section (5), the competent
authority may take possession of the vacant land to be
given to the State Government and for that purpose,
force--as may be necessary-- can be used. Sub-section
(6), therefore, contemplates a situation of a person
refusing or fails to comply with the order under Sub-
section (5), in the event of which the competent
authority may take possession by use of force. Forcible
dispossession of the land, therefore, is being resorted
to only in a situation which falls under Sub-section (6)
and not under Sub-section (5) of Section 10. Sub-
sections (5) and (6), therefore, take care of both the
situations i.e. taking possession by giving notice, that is,
"peaceful dispossession" and on failure to surrender or
give delivery of possession under Section 10(5), then
"forceful dispossession" under Sub-section (6) of
Section 10.
37. The requirement of giving notice under Sub-
sections (5) and (6) of Section 10 is mandatory. Though
the word "may" has been used therein, the word "may"
in both the Sub-sections has to be understood as
"shall" because a court charged with the task of
enforcing the statute needs to decide the
consequences that the legislature intended to follow
from failure to implement the requirement. Effect of
non-issue of notice under Sub-section (5) or Sub-
section (6) of Section 11 is that it might result in the
landholder being dispossessed without notice,
therefore, the word "may" has to be read as "shall".
12. We have, therefore, clearly indicated that it was
always open to the authorities to take forcible
possession and, in fact, in the notice issued under
Section 10(5) of the ULC Act, it was stated that if the
possession had not been surrendered, possession would
be taken by application of necessary force. For taking
forcible possession, certain procedures had to be
followed. Respondents have no case that such
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procedures were followed and forcible possession was
taken. Further, there is nothing to show that the
Respondents had taken peaceful possession, nor there
is anything to show that the Appellants had given
voluntary possession. Facts would clearly indicate that
only de jure possession had been taken by the
Respondents and not de facto possession before
coming into force of the repeal of the Act. Since there
is nothing to show that de facto possession had been
taken from the Appellants prior to the execution of
the possession receipt in favour of MRDA, it cannot
hold on to the lands in question, which are legally
owned and possessed by the Appellants. Consequently,
we are inclined to allow this appeal and quash the
notice dated 17.2.2005 and subsequent action taken
therein in view of the repeal of the ULC Act. The
above reasoning would apply in respect of other
appeals as well and all proceedings initiated against the
Appellants, therefore, would stand quashed."
28. In the case of Vinayak K. Kashinath Shilkar (supra), the
Supreme Court in no uncertain terms held that mere vesting of
the vacant land with the State Government by operation of law
without actual possession is not sufficient for operation of Section
3(1)(a) of the Repeal Act. The difference between de facto and de
jure possession was once again reiterated in view of the earlier
opinions. At this juncture, it will be profitable to take note of
contents of para 7 to 10, which reads thus:
"7. Section 2 of the Repeal Act reads as follows:
"2. Repeal of Act 33 of 1976.-The Urban Land (Ceiling
and Regulation) Act, 1976 (hereinafter referred to as the
principal Act) is hereby repealed.
8. Section 3 of the Repeal Act reads as follows:
3: Savings-(1) The repeal of the principal Act shall not
affect-
(a) the vesting of any vacant land under Sub-section (3)
of Section 10, possession of which has been taken over by
the State Government or any person duly authorised by
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(27 of 32) [CW-26894/2018]
the State Government in this behalf or by the competent
authority;
(b) the validity of any order granting exemption under
Sub-section (1) of Section 20 or any action taken
thereunder, notwithstanding any judgment of any court to
the contrary;
(c) any payment made to the State Government as a
condition for granting exemption under Sub-section (1) of
Section 20.
(2)Where-
(a) any land is deemed to have vested in the State
Government under Sub-section (3) of Section 10 of the
principal Act but possession of which has not been taken
over by the State Government or any person duly
authorised by the State Government in this behalf or by
the competent authority; and
(b) any amount has been paid by the State Government
with respect to such land, then, such land shall not be
restored unless the amount paid, if any, has been
refunded to the State Government.
9. It is clear from the above provisions that where the
possession of the vacant land has not been taken over by
the State Government or by any person duly authorised
by the State Government in this behalf or by the
Competent Authority, the proceedings under the Act
would not survive. Mere vesting of the vacant land with
the State Government by operation of law without actual
possession is not sufficient for operation of Section 3(1)
(a) of the Repeal Act.
10. We are fortified in our view by a recent decision of
this Court in Ritesh Tewari and Anr. v. State of Uttar
Pradesh and Ors. This Court in Ritesh Tewari : (2010) 10
SCC 677 considered the matter thus:
"14.Shri Jayant Bhushan, learned Senior Counsel
appearing for the Appellants has submitted that as the
State Government had not taken possession of the land in
exercise of its powers under Section 10(6) of the 1976
Act, on coming of the 1999 Act into force, the
proceedings stood abated and the Respondents have no
business to interfere with the peaceful possession and
enjoyment of the property.
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15. We find full force in the submissions so made by Shri
Jayant Bhushan to a certain extent, and hold that all
proceedings pending before any court/authority under
the 1976 Act, stood abated automatically on coming of
1999 Act into force, provided the possession of the land
involved in a particular case had not been taken by the
State. Such a view is in consonance with the law laid down
by this Court in Pt. Madan Swaroop Shrotiya Public
Charitable Trust v. State of U.P. : (2000) 6 SCC 325,
Ghasitey Lal Sahu v. Competent Authority (2004) 13 SCC
452, Mukarram Ali Khan v. State of U.P.:(2007) 11 SCC 90
and Sulochana Chandrakant Galande v. Pune Municipal
Transport."
29. In the case of Baij Nathu Sharma (supra), while dealing
with the principle of res-judicata, the Apex Court of the land,
observed thus:
"5. We do not think that High Court was right in holding
that the second writ petition (CWP No. 3455/97) was
barred by principle of res judicata. Appellant made his
representations on the basis of observations made by
the High Court on 27.05.1996 in his earlier writ petition.
When this writ petition came up for hearing again, the
appellant had retired. He, therefore, withdrew the writ
petition. Liberty was granted to him to file another writ
petition, "if occasion arises". This certainly does not
mean that fresh writ petition could be filed only if fresh
cause of action arose. In any case fresh cause of action
did arise when representations of the appellant were
rejected by the High Court and his case for promotion to
RHJS was not considered for giving him notional
promotion. However, our holding that second writ
petition was not barred by principle of res judicata does
not help the appellant as his writ petition was also
dismissed on merit. There is some controversy if grant
of selection grade to the appellant would give him
seniority over those officers who though senior in the
seniority list of RJS were not granted selection grade.
Admittedly seniority list was never under challenge. This
controversy is, however, not material for our purposes
inasmuch as it is not disputed that on the date when the
appellant retired from service, posts in the promotional
quota were available and the appellant could have been
considered for promotion to RHJS in that quota. He was
not so considered because the High Court had taken a
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decision by resolution of the Full Court dated 09.02.1996
not to make further promotions from RJS till
recruitment from the Bar to RHJS was made. The
appellant in his first writ petition had challenged the
resolution of the Full Court not to make promotions to
the cadre of RHJS till appointments from the Bar were
made. This resolution of the Full Court he certainly could
not challenge in the second writ petition. High Court in
its counter affidavit has given justification as to why it
took decision not to make any promotion to the cadre of
RHJS though at the relevant time 21 posts of Additional
District and Sessions Judges were vacant to be filled in
by promotion and direct recruitment in the ratio of 3:1
as per Rule 9(2) of the Rajasthan Higher Judicial Service
Rules, 1969. This is how the High Court justified its
decision: -
"The Full Court in its meeting held on 09.02.1996
resolved that no promotion shall be made till direct
recruitment is made. The decision to this effect was
taken by Full Court keeping in view the inequitable
operation of quota 3:1 which has to be maintained
between promotees and direct recruits to the R.H.J.S.
which was not being done. While vacancy in the direct
recruit quota were being determined on the basis of
sanctioned strength of the cadre, the promotional quota
was being operated on the basis of the recruitment.
There were 89 sanctioned posts but factually more than
200 officers were working on the R.H.J.S. posts. The
posts in excess of 89 were being manned by
temporary/ad hoc promotees from R.H.J.S. only and
therefore factually the proportion of direct recruits has
gone down abysmally. The embargo on promotions was
therefore, imposed by the Full Court to stop further
inequality and imbalance in the proportions between the
two quotas which created problems in determining inter
se seniority in R.H.J.S. on the basis of Rota-quota rule.
Therefore, the Full Court took the decision not to
promote the officers from R.J.S. cadre to R.H.J.S. cadre
till the direct recruitment is made keeping in view the
inequitable operation of Rota- quota rule. The resolution
passed by the Full Court in its meeting held on
09.02.1996 did not require any interference of his
excellency the Governor. Therefore it is wrong to
contend that the Full Court has no authority to stop the
promotions by way of recruitment to the R.H.J.S. to
maintain the proportional representation and inter se
seniority between direct recruits and promotees."
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(30 of 32) [CW-26894/2018]
30. From the pleadings of the parties and materials available on
record it is not in dispute that neither physical possession de-facto
of the subject land involved herein, was taken, in accordance with
law nor compensation paid to the petitioners rather part payment
of charges for regularization was made in pursuance of order of
'Settlement Committee', by the petitioners. The 'Factual Report'
dated 7th September, 2017, which has not been disputed, has
surfaced, vital factual matrix on the aspects of de facto possession
not taken by the respondents and compensation not paid to the
petitioners. The 'Factual Report' is based on the materials
available on record with the respondents. The 'Factual Report',
appears to have been drawn in view of notice for restoration of
subject land addressed on behalf of the petitioners. The 'Factual
Report' leaves no room for any doubt that the petitioners are
sought to be deprived of their land without de-facto possession
taken so also without payment of compensation, contrary to law
declared by the Apex Court of the land as has been taken note of
herein above. In the singular matrix of the case at hand, the
principle of res-judicata cannot be attracted for the respondents
themselves have admitted the fact that for the first time the de- facto possession of the subject land involved herein, was physically taken only on 2nd March, 2015, and there is no evidence of the fact that compensation was ever paid to the petitioners in lieu of acquisition of the subject land.
31. The requirement of notice under Sub-sections (5) and (6) of Section 10 is mandatory and the word "may" used in both the Sub-sections has to be construed as "shall" because a court (Downloaded on 29/06/2019 at 12:34:10 AM) (31 of 32) [CW-26894/2018] charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under Sub-section (5) or Sub-section (6) of Section 11 is that it might result in the landholder being dispossessed without notice, therefore, the word "may" has to be read as "shall". To enter upon taking forcible possession, the procedures relevant have to be followed [vide Rajendra Kumar v. Kalyan] supra. Whereas in the case at hand these mandatory procedures were not followed and forcible physical possession, if any, for the first time, was taken only on 2nd March, 2015.
32. By now it is well settled law that Panchnama, is, the only legally accepted norm to take possession. Further, the acquisition proceedings would stand lapsed, if, compensation is not paid in accordance with the procedure prescribed before the Repealing Act of 1999. Acquisition under the ULCAR Act, 1976, could not be construed as concluded, unless, possession of the subject land involved herein, was not taken before the Repeal Act, 1999. It is also relevant to take note of the fact that once liberty of representation was reserved to the petitioners by the apex court of the land while allowing their review petition to be withdrawn, the reptresentation must have been taken to its logical conclusion. However, the respondent-State did not adjudicate upon the representation for reasons best known to it. Be that as it may, the cause of action would continue to subsist and the petitioners cannot be denied of remedy. The petitioners' claim for payment of compensation at the prevalent market rate, has substance. (Downloaded on 29/06/2019 at 12:34:10 AM)
(32 of 32) [CW-26894/2018]
33. For the reasons aforesaid and in view of the conspicuous factual matrix of the case at hand so also in the face of the undisputed 'Factual Report' of the respondent-JDA, the claim and prayer of the petitioners merits acceptance.
34. Accordingly, the writ application succeeds, and is, hereby allowed.
35. In the result, the impugned order dated 1st November, 2018, made by the Jaipur Development Authority Appellate Tribunal in Appeal No.490/2018 (Chhotu Ram and anr. Vs. Jaipur Development Authority and ors.); is hereby quashed. The acquisition proceedings in ULCAR Act, 1976, stand vitiated for non-payment of compensation so also for not taking de-facto possession of the subject land. As a consequence, the respondents are directed to restore possession of the subject land involved herein to the petitioners forthwith.
36. However, in the facts and circumstances of the case, there shall be no order as to costs.
(VEERENDR SINGH SIRADHANA),J pcg/ (Downloaded on 29/06/2019 at 12:34:10 AM) Powered by TCPDF (www.tcpdf.org)