Rajasthan High Court - Jaipur
Ashapura Vikas Samiti And Anr. vs State And Ors. on 20 March, 2002
Equivalent citations: 2002(5)WLC361, 2002(5)WLN107
JUDGMENT Madan, J.
1. The case of the petitioner i.e. Ashapura Vikas Samiti for short the 'Samiti' is that it is a registered society under the provisions of the Registration of Societies Act, 1958. The said Samiti has been formed by the members of the Anand Bhawan Nirman Sahaka'ri Samiti Ltd. Jaipur i.e. respondent No. 5 having 237 members which was formed with a view to safeguard the interest of its members and for development of the colony. All the aforesaid members are having the residential plots in the scheme known as 'Ashapura Scheme' of respondent No. 5.
2. It is further the case of the Samiti that it is in possession of the land in dispute and the patta thereof was also issued to its members by respondent No. 5 which fact is apparent from Schedule-A on the record. The Samiti is existing in Khasra Nos. 84 to 90, 124 min, 125 to 36, 137 min, 138 min, 139 to 143 and 151 to 154 in total measuring 48 Bighas 2 Biswas situated in village Bhojpura, Tehsil, Distt. Jaipur which is popularly known as 'Amroodon Ka Bagh'. The aforesaid plots were allotted to the members of the Samiti through Housing Cooperative Society known as Anand Bhawan Nirman Sahakari Samiti Ltd. which is also a duly registered Cooperative Society under the provisions of the Rajasthan Cooperative Societies Act, 1965 in the year 1975 and ever since they are in possession of the land in dispute.
3. It is further the case of the petitioner Samiti that the said land was reserved by late His Highness Sawai Man Singh of erstwhile state of Jaipur for the construction of a Palace for Maharaj Kumar and thereafter this land was shown in the name of Maharaj Kumar Bhawani Singh by way of Parcha Settlement (vide Annexure-8) to the Additional Affidavit during the settlement operations of Samvat Year 2015 to 2034 and Khasra Girdawari had also been issued in his favour for the Samvat Year 2035 to 2038 showing his name in the revenue records as khatedar of the said land.
4. Thereafter, on 3,5.1975 the said land was purchased by respondent No. 5, the Anand Bhawan Nirman Sahakari Samiti Ltd., Jaipur from Col. Bhawani Singh through agreement of sale and possession of the same had also been taken over by the petitioner Samiti on the same day.
5. The Samiti chalked out a plan for having construction of residential plots over the land in question in the name and style of Ashapura Scheme and for approval of which the Samiti filed an application before the JDA depositing conversion charges in part in due compliance of the requirements. On the said application the then Minister Incharge of the matter (Urban Development) vide order dt. 5.6.1989 (Annexure-5) permitted the petitioner-Samiti to raise the boundary wall around the land in question.
6. One such circular was issued by the State Government on 1.3.1982, wherein a policy decision was taken to the effect that the Land Acquisition Officer will drop the land acquisition proceedings regarding the land in question and it was also decided that if the construction over the said land is in progress prior to 20.8.1981, such land should be de-acquired. However, with regard to the lands of Housing Cooperative Societies, the State Government vide its aforesaid order clarified that those Societies who had had purchased the agricultural land or even had entered into an agreement of sale simultaneously with the delivery of possession for allotment of plots to its members to construct residential houses, even if the land of the Samiti had not been utilised for construction of residential houses, still it will be released from purview of acquisition proceedings.
7. As regards the acquisition of the proceedings of the land in question, it is the case of the petitioner that pursuant to the order dt. 15.2.1977 and 17.9.1988 and subsequent order dt. 23.2.1994 by which the acquisition proceedings were initiated against the petitioners under the relevant provisions of the Land Acquisition Act, 1994 stood dropped. Thereafter, on 18.2.1994, the State Govt. passed the order directing regularisation of the land of the plots of the scheme belonging to the petitioner Samiti but the benefits of regularisation were denied to the petitioner Samiti.
8. On 22.3.1994, the JDA issued a notice which was duly published in Rajasthan Patrika in pursuance of the order dt. 18.2.94 regarding regularisation of the land forming part of the aforesaid scheme pertaining to the Samiti. In pursuance of the said order of the JDA, the petitioner Samiti deposited the requisite charges for regularisation of the land in question.
9. On 27.2.1999, the State Govt. issued a circular fixing rates of the plots for conversion and regularisation and subsequently another order was issued by the State Govt. on 9.3.2000 to the same effect fixing the rates for conversion and from time to time orders dt. 24.1.2001 and 5.2.2001 were also issued to the same effect. Thereafter, on 21.3.1997, the Deputy Minister for Urban Development and Housing, Govt. of Rajasthan issued an order recommending for regularisation of the land belonging to the petitioner Samiti i.e. Ashapura Vikas Samiti but as nothing was done in this regard nor it was implemented, the petitioners were constrained to move this Court by way of this writ petition,
10. During the course of hearing, Shri. B.L. Sharma, learned counsel for the petitioner has drawn the attention of the Court to the Additional Affidavit of one Pramod Kumar Bajaj who is a duty elected Secretary of the petitioner Samiti Jaipur from the perusal of which, it is revealed that at the time when the writ petitioner was filed in the year 1994, policy of regularisation of plot holders of authorised housing cooperative society was governed by the decision of the Slate Govt. dt. 18.2.94 (Ann. 12) to the writ petition as such the petitioner Samiti filed the writ petition for getting an order from this Court for regularising the land in question. Thereafter, much water has flown and a drastic change in the Government and Legislative policy has taken place. In the additional Affidavit, Shri Bajaj mentioned different types of lands pursuant to the Circular dt. 18.2.94 which is reproduced for ready reference, as under :-
(a) Land affected by Urban Land Ceiling and Regularisation Act, 1976;
(b) Land affected by Rajasthan Land Reforms and Acquisition of Land-owners Estates Act, 1963;
(c) Land belonging to Scheduled Caste and Scheduled Tribes;
(d) Government land on which trespass has been committed.
(e) Land affected by Master Plan."
11. Clause (1) of the aforesaid Government Order dated 18.2.94 is in respect of land affected by the Land Acquisition Act, in this clause it has been mentioned that certain lands shall not be deacquired. At Sr. No. 11 there is a mention of Amaroodon Ka Bag whereby it may mean that the land of Amaroodon Ka Bag shall not be deacquired. The actual language used in this para is as under :-
"Jaipur Vikas Pradhikaran Avam Rajasthan Avasan Mandal ki Niman Yojanaon mem Avapti Ki Karyavahi vapis nahin li jayagi."
12. Shri Bajaj further submitted that inclusion of land of Amaroodon Ka Bag in Clause (1) of the decision of the State Government dated 18.2.1994 does not affect the regularisation of the land in favour of the members of the petitioner Samiti. He further submits that when the land was not acquired, no question of existence of any scheme of Jaipur Development Authority or that of the Rajasthan Housing Board arises and these authorities can make their schemes only on the lands which have been acquired or are under acquisition for the purposes of their schemes. The present land has neither been acquired nor is under any acquisition under the Land Acquisition Act, 1894 for any scheme of these authorities. The Govt. vide Circular dt. 27.9.1999 prescribed the rates for regularisation of several types of lands, as under :-
"For lands in which the applicant has got legal right or has purchased the same on the basis of agreement and even though the same may be affected by the Urban Land Ceiling and Regulation Act or even though it may have been paid on which have been affected by the provisions of Rajasthan Land Reforms and Acquisition of Land Owners Estates Act, 1963 or the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973. For such lands it has been prescribed that normal rate of regularisation charges shall have to be paid by the plot holders.
Where the plot of the plot holder is situated in government land i.e. sivai chak land, charagah land or the land which has been acquired of which the compensation has been paid and other government land then the rate has been prescribed as 25% of reserve price or Rs. 300/-per square yard which is higher and so on."
13. From the perusal of the above, 1 am of the considered view that the land in question is not under any acquisition proceedings and has not been acquired and be that as it may that the land in question comes within the purview of Rajasthan Land Reforms and Acquisition of Land Owners Estates Act, 1963, in that situation also, the charges as prescribed in Clause (1) as above, at the most can be charged from the petitioner-Samiti.
14. It will further not be out of place to mention from the above that land in question does not vest in the JDA.
15. In support of his contention that the land in question does not vest in the JDA, learned counsel for the petitioner placed reliance upon the provisions of Section 54 of the JDA Act under which the land can only be vested. Section 54 of the JDA Act provides, as under :-
"54. Land to vest in the Authority and its disposal- (1) Notwithstanding anything contained in the Rajasthan Land Revenue Act, 1956, the land as defined in Section 103 of that Act, excluding land referred to in sub Clause (ii) of Clause (a) of the said Section and nazul land placed at the disposal of a local authority Under Section 102-A of the Act in Jaipur Region shall, immediately after establishment of the Authority under Section 3 of this Act, be deemed to have been placed at the disposal of and vested in the Authority which shall take over land for and on behalf of the State Government and may use the same for the purposes of this Act and may dispose of the same subject to such conditions and restrictions as the State Government may, from time to time, law down and in such manner as it may from time to time, prescribe:
Provided that the Authority may dispose of any such.
(a) without undertaking or carrying out any development thereon; or
(b) after undertaking or carrying out such development as it thinks fit, to such person in such manner and subject to such covenants and conditions, as it may consider expedient to impose for securing development according to plan.
(2) No development of any land shall be undertaken or carried out except by or under the control and supervision of the Authority.
(3) If any land vested in the Authority is required at any time thereafter by the State Government, the Authority shall, by notification in the Official Gazette place it at the disposal of the State Government upon such terms and conditions as may be agreed upon between the State Government and the Authority.
(4) All land acquired by the Authority, or by the State Government and transferred to the Authority shall be disposed of by Authority in the same manner as may be prescribed for land in sub section (1)."
Counsel for the petitioner further placed reliance upon the provisions of Section 103 of the Rajasthan Land Revenue Act, 1956 which provides, as under :-
103. Land and Abadi defined from the purpose of Chapter VI For the purpose of this Chapter unless the subject or context otherwise
(a) "Land" means land belonging to all or any of the following.
(i) Land as defined in Clause (24) of Section 5 of the Rajasthan Tenancy Act, 1955;
(ii) Land acquired under the provisions of the Rajasthan Land Acquisition Act, 1958 for the purpose of Government or a local authority or an educational institution while such land remains the property of Government or such local authority or educational institution as the case may be.
(iii) Land surveyed and recorded, whether before or after the commencement of this Act, during any proceeding relating to survey and preparation of records or otherwise belonging to the Government, or a local authority, which is used for any public purpose such as a road or pathway.
(iv) Land surveyed and recorded as aforesaid for the use of the community such as gocher, cremation ground or graveyard.
(v) Land in possession of the Government or a local authority obtained by transfer or otherwise.
(vi) Nazul land as defined in Clause (iv) of Section 3 and
(vii) Land within the abadi area vesting in a local authority or land reserved and set apart for special purposes under Section 92, and includes benefits to arise out of such land and things attached to the earth or permanently fastened to anything attached to the earth; and
(b) "Abadi" or "Abadi Area" or "Abadi Land" means the populated area of a village, town or city, land reserved and set apart under Section 92 for the development of abadi therein and land held therein for building purposes whether a building has been constructed thereon or not."
16. From the perusal of the aforesaid provisions particularly Clause (ii) of the said Section, four things are clear thus :-
(i) that the land in question acquired under the Land Acquisition Act, 1953 for the purpose of the Government or Local Authority or an educational institution has not been vested in the JDA hence, in the present case since the land in question being the private property and belonging to Col. Bhawani Singh who sold the same to Anand Bhawan Nirman Sahakari Samiti through agreement of sale, the question of vesting the land in dispute in the JDA does not arise;
(ii) further the land in question is not surveyed and earmarked in the land records as belonging to the government or a Local Authority which is used for any public purpose such as road and pathway.
(iii) the land in question is not mentioned in the land records or anywhere else as gocher, cremation ground or graveyard;
(iv) the land in question is neither in the possession of the Government or a local authority obtained by transfer or otherwise nor a nazul land belonging to the Govt.
(v) apart from above, as per the provisions of Section 92 of the Land Revenue Act, 1956 the land in question was never set apart for any special purposes.
17. In order to appreciate the contention of the petitioner, 1 would like to quote herein the provisions of Section 92 of the Act of 1956, as under :-
"92. Land may be set apart for special purposes (1) Subject to the general orders of the State Government, the collector may set apart land for any special purpose, such as for free pasturage of cattle, for forest reserve, for development of abadi or for any other public or municipal purpose, and such land shall not be used otherwise than for such purpose without the previous sanction of the Collector."
18. In order to strengthen my view that the land in question is also not a nazul land, I would like to quote hereinbelow the provisions of Section 102-A of the Act of 1956 :-
"102A-Land which may be entrusted with Local Authorities- Any Nazul land or land set apart under Section 102 may be placed by the State Government at the disposal of a Local Authority having jurisdiction and such local authority may take over with the land so placed at its disposal for and on behalf of the State Government or may use the same for the special purpose for which it has been set apart, to such extent and subject to such conditions and restrictions as the State Government may, from time to time, lay down and in such manner as it may, from time to time prescribe."
19. From the above, it is crystal clear that except the provisions of Section 54 of the Act of 1982 no other land can be vested in the JDA.
20. For a moment, even assuming for the sake of argument raised on behalf of the JDA that the land in question has been acquired by a Notification of the Govt. under Section 7 of the aforesaid Act which was issued in 1975, since the said notification has already been set-aside, the land in question would automatically stand de-notified being free from acquisition.
21. Even if it is taken that the land in question is an agricultural land, then also it is in the khatedari rights of Col. Bhawani Singh under the provisions of Section 6 of the Act of 1963 and in my considered view a khatedari land cannot be vested in the State in any manner whatsoever but, at the most the State Govt., can only impose the land revenue on the khatedar which may be under an obligation to pay and nothing more.
22. Moreover, from perusal of Annexure-C dt. 27.9.1999 i.e. the Circular issued by the State Govt., it is clear that the Govt. considered itself that the land in question be regularised at the revised rate of conversion charges @ 25% of the reserve price or Rs. 300/- per square yard whichever is higher from the plot holders for regularisation even if the land has been purchased through Agreement of Sale.
23. Hence, from the stand taken by the Govt. vide the aforesaid Circular, nothing remains disputed that the land in question does not vest with the Govt. on JDA in any manner and that the said land has been purchased by the petitioner Samiti through agreement of sale and also deposited conversion charges etc. hence, in my considered view, the petitioner Samiti shall be entitled for regularisation of its land; which requisite requirement has. already been complied with by the Samiti as mentioned hereinabove.
24. If it is viewed from another angle that the State Govt. vide subsequent order dt. 24.1.2001 decided to charge conversion charges @ 180A per square yard for regularisation of the land which are affected by the Rajasthan Land Reforms and Acquisition of Land Owners Estates Act, 1963, then also the Govt. cannot act contrary to its earlier stand/decision that the lands allotted by various Housing Cooperative Societies as in the present case shall be regularised.
25. Learned counsel for the petitioner has placed reliance upon the ratio of the following judgments in (1) S.S. Dhanoa v. Municipal Corporation Delhi (1) and (2) Adhunik Gran Nirman Sahakari Samiti Ltd. v. State (2).
26. In Adhunik Grab Nirman Sahakari Samiti (supra), the apex court observed as under :-
"18. As regards the question as to whether the lands in dispute i.e. which fall within Khasra Nos. 421 and 426 fall within the purview of the definition of 'land' as contained in Section 2(f) of the Act is concerned it is consistently held by the High Court that as the land fell within the exception of Section 2(f) it would not fall within the definition of 'land' Section 2(f) reads :
2 (f) "land" means any land held or let for purposes of agriculture or for purposes ancillary thereto including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans and
(a) tanks, lakes, ponds, river and water channels held for purposes of irrigation,
(b) surface of hills,
(c) landing grounds or strips, and
(d) shikargah but does not include forts, palace buildings and building plots, specified in the inventory.
The last part of this provision "but does not include forts, palace buildings, building plots specified in the inventory" is the relevant portion of the definition which was considered by the court below and is the question which deserves to be considered."
27. In para 19, the apex court defined Section 2(b) as under :-
"estate' means land or right, title or interest in land held by a landowner;
28. This clearly talks of land or right, title or interest in land held by landowner and land as already discussed above is defined in Section 2(f) of the Act. It is therefore clear that if this property did not fall within the ambit of the definition of land, it could not be said to be estate under Section 2(b) and therefore could not vest in the State under Section 7 of the Act.
29. In rebuttal, Mr. J.S. Rastogi, learned counsel appearing for the respondents JDA has placed reliance upon the judgments in (1) Sunil Kumar Jain v. Kishan (3), (2) Topkhana Desh Gran Nirman Sahakari Samiti Ltd. v. State of Raj. (4), (3) State v. Smt. Gayatri Devi (5), (4) State v. Bhawani Singh Former Highness Jaipur (6), (5) State of Uttar Pradesh v. District Judge (7).
30. In State v. Gayatri Devi (supra) the Single Bench of this Court held Chapters IV, VI and the Schedule to the Rajasthan Land Reforms & Acquisition of Land Owners' Estates Act 1964 as ultra vires being violative of Articles 14 & 31 of the Constitution but in letters patent appeal against which, the learned Division Bench of this Court held that on account of the amendment Act No. 15 of 1975 which has been given retrospective effect and its inclusion in the Ninth Schedule, the validity of the original Act and the Amendment could not be challenged and the appeals filed by the State Government were bound to be accepted.
31. Again in State of Rajasthan v. Bhawani Singh Former His Highness Jaipur (supra), the learned Division Bench of this Court while partly accepting special appeal of the State held that the land is presumed to be agricultural land unless the same has been put to non-agricultural use by construction of forts, palaces or has specifically been set apart as building plots and the same has been recognised as such by the Central Government. It was also held that to bring the case within the exception it is not sufficient for the land holder to only prove that the land in dispute contains a fort, palace, buildings or building plots. He is further required to prove that the same had been specified as such in the inventory and unless both the above noted conditions are fulfilled, the land owner cannot save the land from its acquisition under the Act. Thus it was a case where word "land" was given broad meaning so as to hold private properly of Ex. Ruler within satisfaction of two conditions (a) land contains palace, fort, building, or building plot and (b) it is specified in inventory to save it from acquisition.
32. In State of UP v. District Judge (supra), tenure holder entered into agreement to sell certain lands before appointed day and possession was handed over to proposed transferees, the Apex Court held that land is still includible in tenure holder's holding for purpose of ceiling area and thus section 53-A of the Transfer of Property Act was held not attracted.
33. In Sunil Kumar Jain v. Kishan (supra, notification under Section 4(1) of the Land Acquisition Act was published acquiring the lands in question and the Collector also made an award and the petitioner laid claim for a higher amount to Award of Rs. 38,500/- and a reference was made under Section 18 of the Acquisition Act. The Apex Court observed as under :-
It is settled law that the agreement of sale does not confer title and, therefore, the agreement holder even assuming that the agreement is valid, does not acquire any title to the property. It is seen that the agreement is subsequent to the notification under Section 4(1). The Government is not bound by such an agreement. The inter-se dispute is only with respect to the title as on the date of notification under Section 4(1). The respondent is the undoubted owner of the property as per Section 4 notification and, that, therefore, the compensation was directed to be paid to the respondence since he is one of the members. We cannot filed any illegality in the order passed by the Courts. However if the petitioner has got any claim under Section 30 of the Land Acquisition Act, it is open to him to take such action as open to him under law."
34. I have perused the aforesaid judgments and without disputing the dictum of law laid down on the basis of the facts and circumstances of those cases, I find that the ratio of the aforesaid judgments are not attracted to the instant case.
35. As a result of the aforesaid discussion, the writ petition is allowed. The respondents are directed to delete/remove the name of the land in question from the order dt. 18.2.1994 of the State Government (Annex.12) and the public notice of the Jaipur Development Authority, Jaipur dated 22.3.1994 (Annex. 13). The respondents are further directed to regularise the land/plots in question belonging to the members of the petitioner society within a period of 90 days from today and to give all such benefits as admissible to the members of the petitioner Samiti in pursuance of the order dated 18.2.1994. It is further directed that if any regularisation charges are admissible to be paid to the respondents in accordance with the recent govt. policies, the members of the petitioner Samiti are directed to deposit with the Samiti within the aforesaid period in accordance with the Govt. policies contained in Circulars dated 27.9.99. No order as to costs.