Supreme Court - Daily Orders
Moti Bhawan Sahkari Samiti Ltd. vs Sohan Lal Mali . on 11 January, 2017
Bench: Chief Justice, D.Y. Chandrachud
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C)No. 26953 of 2012
MOTI BHAWAN SAHKARI SAMITI LTD .....APPELLANT
VERSUS
SOHAN LAL MALI & ORS .....RESPONDENTS
WITH
SPECIAL LEAVE PETITION (C)No. 31730 of 2012
ORDER
These proceedings arise from a judgment and order of the Rajasthan High Court dated 9 August 2012. Allowing a petition which was instituted in public Signature Not Verified Digitally signed by PARVEEN KUMAR Date: 2017.01.24 17:30:53 IST Reason: interest, the High Court directed the Jaipur Development Authority (‘JDA’), the 2 Municipal Corporation and other authorities including the police to remove all encroachments from a cremation ground within a fortnight and to report compliance to the court. The judgment of the High Court has been questioned in two special leave petitions, one by a co-operative society which claims interest in the land and the second by a group of allottees of residential plots from the co-operative society.
2 The land in question forms a part of khasra No.31/133/1 of village Brijlalpura. On 6 April 1962, an order was passed by the Sub-Divisional and Land Officer, Jaipur. An objection was lodged by a person by the name of Sheobaksh during the course of settlement, claiming that the land in question was in his possession with cultivation rights and the name of Dilip Kumar Mukherji (the respondent to those proceedings) had been recorded wrongfully. Sheobaksh sought a correction of the revenue entries. Mukherji, as the order records, did not appear despite service of notice in the proceedings which proceeded ex parte. The SDO accepted the case of Sheobaksh that an extent of 10 bighas was in his possession and cultivation while on an area admeasuring about 3 bighas a 3 cremation ground was in existence. This order of the SDO has held the field since 1962 and has neither been challenged nor modified. 3 Moti Bhawan Sahkari Samiti Limited claims that Dilip Kumar Mukherji was the owner of the land and that his name was reflected in the jamabandi for the years samvat 2015-2034 (corresponding to 1958-1977). Mukherji is alleged to have transferred the land to Nasira Begum between 1968 and 1971 and she in turned is stated to have transferred the land to Santosh Kumari. The co-operative society claims to have entered into an agreement to sell dated 11 January 1980 in respect of the land with Santosh Kumari. The claim of the society and necessarily of all those who claim through it, is based on the agreement to sell dated 11 January 1980.
4 In 1999, the Tehsildar submitted an application before the authorized officer under Section 90B of the Rajasthan Land Revenue Act, 1956, stating that Santosh Kumari had transferred land admeasuring 29 bighas and 19 biswas to the members of the co-operative society for non-agricultural purposes. In the course of the enquiry, notice was issued to the non-applicants which was dully served besides being published in the newspapers. By an order dated 4 12 November 1999, the authorized officer found that the agricultural land was being used for non-agricultural purposes and in consequence directed that the land be resumed by the state after revoking the khatedari rights of the non-applicants. Consequent to this direction, the authorized officer also ordered that the land be vested in Jaipur Development Authority in pursuance of the provisions of Section 54 of the Jaipur Development Authority Act, 1982. The petitioners have accepted that on 28 December 1999, a mutation order was issued by which the name of JDA was inserted in place of Santosh Kumari in the revenue records.
5 On 25 February 2004, the Executive Engineer of the Municipal Corporation, Jaipur sanctioned a fund of Rs.8,93,865/- for the development of a cremation ground on the land in dispute. On 11 September 2004, the Municipal Corporation is alleged to have started the work of developing a cremation ground through its officers and employees. In 2006, according to the petitioners, a suit was instituted before the Additional Civil Judge (Junior Division) No.2, Jaipur City for a permanent injunction restraining the development of a cremation ground over the land in dispute. In Civil Suit No. 266 of 2006 (titled as Tika Ram Sharma 5 v. Municipal Corporation Jaipur), the Municipal Corporation was the sole defendant. JDA was not impleaded to those proceedings. On 9 March 2007, the trial court decreed the suit by granting a permanent injunction restraining development of the property as a cremation ground. Appeals (Regular Civil Appeal Nos. 34 and 35 of 2007) questioning the judgment and decree of the trial court were dismissed on 18 January 2008. According to the petitioners, the decree of permanent injunction attained finality.
6 In 2012, a petition was filed in public interest by the first respondent before the Rajasthan High Court seeking inter alia a direction that 3 bighas of land forming a part of the cremation ground at Brijlalpura should be directed to be used only as a cremation ground and JDA be restrained either from constructing a park thereon or from regularizing plots of land alleged to have been allotted by “the land mafia”. Notably, an application for impleadment was filed by as many as fifteen persons, claiming to be the residents of Swami Vihar colony. According to them, the land which was originally owned by Dilip Kumar Mukherji had subsequently devolved on Nasira Begum and Santosh Kumari by subsequent transfers until eventually, it was purchased by Moti Bhawan Sahkari Samiti 6 Limited. The disputed land was, according to the application for impleadment, shown in the layout plan filed before the competent authority as a ‘facility area’. The application for impleadment relied upon the judgment and decree of the trial court in the suit for permanent injunction (referred to above) and upon the order of the first appellate court dismissing the appeals.
7 In response to the petition, affidavits were filed before the High Court by the state government and by JDA. According to the state government, the revenue records indicate that the land in dispute was Gair Mumkin Abadi land of JDA. The state government disputed the claim that the land was developed as a graveyard. In the counter affidavit filed by JDA, the same position was adopted. JDA in the course of its counter affidavit submitted that the Municipal Corporation had no jurisdiction to issue a work order dated 25 February 2004 for the development of a cremation ground.
8 Though this was the position which was adopted in the affidavits that were filed on behalf of the state government and JDA, the High Court noted that during the course of the hearing the Deputy Commissioner, JDA admitted that there existed on the spot a cremation ground and that in the map which was submitted 7 by the co-operative society a way was left to approach the cremation ground. The Deputy Commissioner apprised the High Court that a Committee was constituted and JDA would keep the area reserved for a cremation ground. An apology was tendered for the wrong statement of facts on affidavit denying the existence of a cremation ground. Similar was the case with the state government on whose behalf the Additional Advocate General made a statement that “there is a cremation ground as apparent from the documents on record”. An apology was tendered on behalf of the Deputy Commissioner for having filed an affidavit containing wrong statements of fact.
9 The High Court by its judgment came to the conclusion that the order passed by the SDO in 1962 established that 3 bighas of land were reserved for a cremation ground and on that basis, an entry had been made in the khasra reflecting the land as being reserved for a cremation ground. The High Court expressed its dismay at the manner in which facts had been denied in the counter affidavits filed before it. The High Court adverted to the fact that the averments in the affidavits have been admitted to be incorrect by the officers and counsel present before the court. The High Court found that the Municipal 8 Corporation had sanctioned the construction of a boundary wall and the development of the cremation ground in 2004.
10 As regards the decree in the civil suit, the High Court came to the conclusion that the suit was instituted without impleading JDA. Hence, the decree in its view could not bind JDA which was not a party to the proceedings though the land had been vested in it. In the view of the High Court, though the land was transferred to JDA, the revenue entry reflecting the reservation for a cremation ground could not be changed, particularly, in light of a circular issued by the state government to that effect. In the view of the High Court, even otherwise JDA had stated in its return that the land was reserved for a facility area, which could also include a cremation ground. In conclusion, the High Court held that since 1992, 3 bighas of land were reserved for a cremation ground. However, there was an entry of 2 bighas, 5 biswas of land (the remaining part of land having been encroached upon). In issuing the directions which we have noted earlier, the High Court held that the area which was reserved for a cremation ground had to be protected and the encroachments existing as of the date of the order would have to be removed.
911 In support of the special leave petitions, reliance has been primarily placed by learned counsel appearing on behalf of the petitioners on the judgment and decree of the civil court dated 9 March 2007 which was confirmed in appeal, and as a result of which a permanent injunction came to be issued (according to the petitioners) restraining the development of a cremation ground on the land in question. The next limb of the submission is that the petitioners have furnished a complete chain by which ownership devolved upon the co-operative society as a result of intervening transfers made by the original owner, Dilip Kumar Mukherji to Nasira Begum and by the latter to Santosh Kumari (from whom the co-operative society claims under an agreement to sell dated 11 January 1980). Hence, it was urged that in the course of adjudicating upon a PIL, the High Court ought not to have negated the judgment and decree of the civil court which has attained finality.
12 Having regard to the two pronged submissions, it has become necessary for the court to consider whether the land in dispute forming a part of khasra No.31/133/1 of village Brijlalpura was the subject matter of the judgment and decree of the trial court in the suit for permanent injunction. 10 13 We have before us a copy of the judgment of the trial court dated 9 March 2007. The suit, as we have noted earlier, was instituted by Tika Ram Sharma and ten other persons against the Municipal Corporation. The judgment of the trial court indicates that PW1 Tika Ram Sharma during the course of his cross-examination denied that the site in dispute in the suit was situated in khasra No.31/133/1 which was shown as a cremation ground. In that context, the trial court observed thus :
“This witness has stated in his cross examination that it is incorrect to state that disputed site is situated in Khasra No.31/133/1 and which has been shown as cremation ground by JDA, in fact disputed site is a park….” “….Counsel for the Defendant has put all the above witnesses to lengthy cross examination, but the examination in chief of the witnesses remained un impeached and they have stated that the disputed site is a park and have denied the suggestion that disputed site owned by JDA has been recorded as cremation ground.” Dealing with the testimony of the witness produced by the Municipal Corporation, the trial court observed thus :
“…though DW-1 Tarun Kumar Sinha, witness of the Defendant has stated that it is the land of Khasra No.31/133/1 of village Brijlalpura, Jaipur and is 11 recorded as cremation ground owned by the JDA in the Revenue records and has denied that it is a common park, but no such documentary evidence has been produced on behalf of the Defendant that the disputed land is the land forming part of Khasra No.31/133/1 of village Brijlal Pura, Jaipur nor has produced any such documentary evidence from which it is proved that disputed site is a cremation ground.” These extracts from the findings recorded by the trial court make it abundantly clear that the land in dispute in the suit (which resulted in the decree for permanent injunction) was not situated in khasra No. 31/133/1 which, according to the judgment, was recorded as a cremation ground and was owned by JDA. Once it is evident that the decree for permanent injunction in the suit did not relate to khasra No.31/133/1 (which is the land in dispute in the present case) the proceedings of that suit and the result will be of no relevance to the present proceedings. The main challenge of the petitioners as we have noted earlier is that the High Court in the exercise of its jurisdiction under Article 226 while deciding a public interest petition was not justified in reversing the effect of a decree for permanent injunction passed by a court of competent jurisdiction. There is no substance in this plea, once we have come to the conclusion that the land which was in dispute in the suit was not the land in khasra No.31/133/1 12 pertaining to the cremation ground which formed the subject matter of the proceedings before the High Court.
14 Now it is in this background, that we will briefly advert to the document under which the co-operative society claims an interest. According to it, an agreement to sell was entered into by Santosh Kumari in its favour on 11 January 1980. A bare agreement to sell, it is well-settled, creates no right title or interest in land. Besides, it is material to note that the agreement refers to 29 bighas and 19 biswas of land in khasra No.31/133/1 for a total consideration of Rs 8,98,500/-. Out of the purported consideration an amount of Rs 8500/- is stated to have been received as an advance in cash while the balance was to be payable within a period of six months. The agreement contemplated that a registered sale deed would be executed. No sale deed was admittedly executed. The entire case of the society thus rests on a document which is merely an agreement to sell and on a purported payment of Rs 8,500/- in cash out of a total consideration of Rs. 8.9 lakh. The society made no effort to perfect its title. On the contrary, it has been aware all along of the order that was passed under 13 section 90B of the Rajasthan Land Revenue Act, 1956 by which on 12 November 1999 the land was resumed by the state and was vested in JDA. 15 As regards the existence of a cremation ground, there is ample material on record to support the finding which was arrived at by the High Court. Foremost among the documentary evidence is the order of the SDO dated 6 April 1962 directing that while the name of Sheobaksh be recorded in relation to 10 bighas of land within khasra No.31/133/1, 3 bighas of land be recorded as a cremation ground. The first respondent has relied upon extracts from the khasra girdwari. The extracts which have been placed on record demonstrate the existence of a cremation ground on the land in question. Significantly, this entry has existed both before and after the mutation of the land in the name of JDA. It is also evident from the record that JDA while approving the plan for the private colony specifically mentioned that for approaching the cremation facility area, a passage was required to be made available and hence plot numbers 274 to 276 may be disapproved. The contemporaneous record of JDA therefore also supports the existence of a cremation ground. The facts as they have emerged from the record make it abundantly clear that since the order of the SDO of 6 April 1962, 14 3 Bighas of land were recorded as a cremation ground. After the land vested in JDA, this position has continued and infact has been accepted by the development authority. The High Court was in these circumstances justified in coming to the conclusion that the land was reserved for a cremation ground and was required to be protected.
16 Section 54B of the Jaipur Development Authority Act, 1982 provides that all lands which are deemed to have been placed at the disposal of the authority under Section 90B of the Rajasthan Land Revenue Act, 1956 shall upon resumption or surrender of tenancy rights be available for allotment or regularization preferably to persons having possession over such land. However, no allotment or regularization shall be made on land which has been duly earmarked for public utilities/services such as a cremation ground, park or graveyard. Section 54B reads thus :
“[54-B. Allotment, regularization etc. of certain lands. – (1) All lands which are deemed to have been placed at the disposal of the Authority under section 90-B of the Rajasthan Land Revenue Act, 1956 (Act No.15 of 1956) upon resumption or surrender of tenancy rights and interest of khatedars thereof, as the case may be, shall be available for allotment, or regularization, preferably to the persons having possession over such land 15 or part thereof, as the case may be, on the basis of allotment made or Patta given to them by the Housing Co-operative Society or on the basis of any other document of transfer of land to them either by tenant or any other person claiming through the tenant, whose tenancy rights have been resumed or surrendered, under the said provision on such terms and conditions and subject to payment to the Authority of such charges or premium or both, as the case may be, and at such rates as may be prescribed by the State Government in this behalf :
Provided that no allotment or regularization of any land shall be made which has been duly earmarked for public utilities/services such as park, nursery, civil or military aviation, bus stand, transport terminal, railways, public telephone lines, hospital, school, educational institution, university, cremation ground, grave-yard and such other purposes as the State Government may specify by notification in the Official Gazette.” In terms of the proviso, the land which was set apart for a facility as a cremation ground could not be allotted or regularized for any other purpose.
17 The petitioners have made an undisguised attempt to negate the reservation of the land for a cremation ground which has been in existence since 1962. Their claim is totally lacking in substance. In these circumstances, while we are inclined to affirm the judgment of the High Court, we deem it appropriate 16 and proper to impose costs upon the petitioners while dismissing the special leave petitions. No ground to interfere with the impugned order is made out under Article 136 of the Constitution of India.
18 The special leave petitions are dismissed with costs, quantified at Rs.5,00,000/- in each of the special leave petitions, to be deposited with the Supreme Court Advocates-on-Record Welfare Trust, within four weeks from today.
19 In case, the aforesaid costs are not deposited within the time granted, the Registry is directed to re-list the matter for recovery of costs.
..…….......................................CJI [JAGDISH SINGH KHEHAR] .…...............................................J [Dr DY CHANDRACHUD] New Delhi January 11, 2017 17 ITEM NO.1 COURT NO.1 SECTION XV S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s). 26953/2012 (Arising out of impugned final judgment and order dated 09/08/2012 in DBCWP No. 3181/2012 passed by the High Court Of Rajasthan At Jaipur) MOTI BHAWAN SAHKARI SAMITI LTD.& ORS. Petitioner(s) VERSUS SOHAN LAL MALI & ORS. Respondent(s) (with appln(s) for seeking permission to file additional documents, exemption from filing OT, interim relief and office report) (for final disposal) WITH SLP(C) No. 31730/2012(with Office Report) Date : 11/01/2017 These petitions were called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE DR. JUSTICE D.Y. CHANDRACHUD For Petitioner(s) Dr. Manish Singhvi, Adv.
In SLP 26953/2012 Mr. Prasenjit Pritam, Adv.
Mr. Shantanu Sagar,Adv.
For Petitioner(s) Mr. Dushyant Dave, Sr. Adv.
In SLP 31730/2012 Mr. Satya Mitra, Adv.
Mr. Shantanu Sagar, Adv.
For Respondent(s) Mr. Sushil Kr. Jain, Sr. Adv.
(Sohan Lal Mali) Ms. Christi Jain, Adv.
Mr. Abhinav Gupta, Adv.
Mr. Pankaj Sharma, Adv.
for Ms. Pratibha Jain,AOR
for JDA Mr. Milind Kumar,Adv.
18
for impleaded Mr. Krishnanand Pandeya,Adv.
party Mr. Amrendra Kr. Choubey, Adv.
For State of Ms. Ruchi Kohli,Adv.
Rajasthan Ms. Nidhi Jaswal, Adv.
UPON hearing the counsel the Court made the following O R D E R For the reasons given in the signed order, the special leave petitions are dismissed with costs, quantified at Rs.5,00,000/- in each of the special leave petitions, to be deposited with the Supreme Court Advocates-on-Record Welfare Trust, within four weeks from today.
In case, the aforesaid costs are not deposited within the time granted, the Registry is directed to re-list the matter for recovery of costs.
(Renuka Sadana) (Parveen Kumar)
Assistant Registrar AR-cum-PS
[signed order is placed on the file]