Rajasthan High Court - Jaipur
Jhutharam & Ors vs State Of Rajasthan & Ors on 15 October, 2015
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR SB CIVIL WRIT PETITION NO.2442/15. Jhutharam & Ors. Petitioners. Vs. State of Rajasthan & Ors. - Respondents.
DATE OF ORDER: 15th OCTOBER, 2015. PRESENT HON'BLE MS. JUSTICE BELA M. TRIVEDI Mr. Nageshwara Rao, Sr. Advocate with Mr. R.K. Agrawal, Sr. Advocate and Mr. Pradeep Choudhary for the petitioner/s. Mr. P.S. Narsimha, Addl. Solicitor General with Mr. Rajendra Prasad, AAG for the respondent/s. J U D G M E N T REPORTABLE
1. The petitioners have filed the present petition under Article 226 of the Constitution, seeking declaration that the proceedings initiated under the Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as 'the ULC Act') in respect of the land bearing Khasra No. 194 had lapsed in view of the ULC Repeal Act, 1999, and the declaration that the proceedings initiated under the Land Acquisition Act, 1894 (hereinafter referred to as 'the L.A. Act') in respect of the said land had also lapsed in view of Section 24(2) of the Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013 (hereinafter referred to as 'the Act of 2013'). The petitioners have also sought directions against the respondents to pass orders in favour of the petitioners with regard to the conversion applications (Annex.49 to 54) filed by them under Section 90-A of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as 'the Revenue Act') and not to take any coercive measures for taking possession of the land in question from the petitioners. In the alternative, the petitioners have prayed to regularise the said land in compliance of the order dated 10.4.02 passed by the State Level Settlement Committee and to quash and set aside the orders dated 17.11.14 (Annex.57 and 59) passed by the respondent No.1-State of Rajasthan and the orders dated 20.11.14 (Annex. 56 and 58) passed by the respondent No.2-JDA.
2. FACTUAL MATRIX 2(i) The short facts, as emerging from the record of the case, are that originally Khasra No. 194 having an area of 23 Bighas and 8 Biswas situated at Village Beed Khatipura, Jaipur was entered in the name of Dr. Gopal Singh in the year 1966-69. The said Dr. Gopal Singh sold out the said Khasra number to one Shri Manmohan Lal in the year 1971, in respect of which the mutation No. 16 dated 24.4.1971 was opened in the revenue records. The said Manmohan Lal thereafter sold the said land to the petitioner No.1 Jhutha Ram and the petitioner No.2 Shaitan Singh by executing the sale-deed dated 10.11.75, in respect of which mutation No. 77 dated 3.1.76 was opened in the revenue records. Thus the petitioner No.1 and petitioner No.2 became the Khatedars of the said Khasra No. 194. The copies of Jamabandi reflecting the entries are annexed to the petition as Annex. 1 and 2 respectively. In the year 1976, the ULC Act having come into force in the State of Rajasthan with effect from 9.3.76, the petitioner No.1 Jhutha Ram filled in the form under Section 6 of the ULC Act declaring his holdings including Khasra No. 194. According to the petitioners, the said form was filed by the petitioner No.1 by way of abundant caution and thereafter he was not aware about any proceedings held by the competent authority under the ULC Act. The petitioner Nos.1 and 2 thereafter were threatened to dispossess by the officers of the JDA somewhere in the month of September, 1991 and at that time they learnt that the competent authority under the ULC Act had proceeded ex-parte against them and the proceedings were pending for service of notices under Section 10(5) of the ULC Act as on 10.9.91. The petitioner No.1 thereafter filed an appeal being No. 57/91 before the Divisional Commissioner on 18.12.91, which came to be dismissed vide order dated 29.3.93 (Annex.6) on the ground of being barred by the law of limitation. The petitioner No.1 on the same day i.e. on 29.3.93 filed SBCWP No. 2011/93 before the High Court challenging the very applicability of ULC Act to the said land. The said writ petition alongwith other writ petitions came to be dismissed by the High Court vide order dated 26.4.97(Annex.11).
2(ii) It appears that pending the said proceedings under the ULC Act, the respondent-State initiated the acquisition proceedings under the L.A. Act for acquiring the said land bearing Khasra No. 194, by publishing the notification on 23.10.91 under Section 4 thereof, and thereafter issuing declaration on 5.5.93 under Section 6 thereof. The award was also made on 27.5.95 which was approved by the State Government on 30.6.95 and declared on 3.7.95 (Annex.12). The petitioner Nos. 1 and 2 after the declaration of the award, challenged the acquisition proceedings by way of filing SBCWP No. 3235/95 on 17.7.95 on the ground that the said acquisition proceedings were initiated in the name of erstwhile Khatedar Shri Manmohan Lal and therefore the said petitioners could not know the factum of acquisition proceedings. The said petition was dismissed by the High Court vide order dated 24.4.97 (Annex.17), against which the petitioner Nos. 1 and 2 had preferred the DB Special Appeal No. 1398/97. The said appeal also came to be dismissed by the Division Bench vide order dated 26.9.2000(Annex.18). The petitioner Nos. 1 and 2 therefore preferred the Special Leave Petition being No. 21538/2000 before the Supreme Court. The said SLP was admitted by the Supreme Court on 12.1.2001, however was subsequently withdrawn by the petitioner Nos. 1 and 2 as per the order dated 8.5.02 (Annex. 22 and 23).
2(iii) It appears that in the meantime the State Level Settlement Committee was constituted by the State Government for settling the disputes between the JDA and other persons under Section 83-A of the Jaipur Development Authority Act, 1983 (hereinafter referred to as 'the JDA Act'). The petitioner Nos. 1 and 2 alongwith Khatedars of adjoining Khasra Nos. 193 and 193/248 therefore filed an application before the said Committee which came to be registered as the application No. 26/02. The Settlement Committee vide the order dated 10.4.2002 (Annex.21) directed that the lands bearing Khasra Nos. 193, 193/248 and 194 be regularised as per the State Govt. Circular dated 26.5.2000, after obtaining from the petitioners 25% of the reserved price fixed for the Chitrakoot Scheme or the relevant area. The said petitioners No. 1 and 2 were also directed to withdraw the pending cases from the courts and the JDA was directed to issue demand notices for the said amount within three weeks of the production of orders of withdrawal of the petitions by the petitioners. The petitioners were also directed to deposit the amount of demand notice that may be issued by the JDA, within three weeks of the receipt of the demand notices. The petitioner Nos. 1 and 2 on having withdrawn the SLP, the respondent-JDA issued notices dated 18.5.02 making demand of Rs. 3,81,23,291.25/- for the regularisation of the land in question of the petitioners. The petitioners No. 1 and 2 deposited 1,45,05,000/- through various challans with the JDA. According to the petitioners, the JDA thereafter did not accept the said amount of the demand notices on one pretext or the other.
2(iv) It is pertinent to note that after passing of the order dated 10.4.02 by the Settlement Committee, one PIL being No. 2658/03 was filed before this court, challenging the constitution of the said committee. The court in the said PIL had orally observed that all the decisions of the State Level Settlement Committee be kept in abeyance during the pendency of the said PIL. According to the petitioners the JDA did not accept the said remaining amount of the demand notices in view of the oral order passed by the court in the said PIL. The petitioners No. 1 and 2 thereafter had approached the JDA showing their willingness to deposit the remaining amount and therefore the erstwhile Commissioner of the JDA had written the letter dated 23.5.07 (Annex.28), to the Dy. Secretary, UDH seeking permission from the State Government to regularise the land of the said petitioners in the light of the circulars dated 26.5.2000 and 16.5.02 issued by the State Government. The State Government in response to the said letter accorded the permission to the JDA vide letter dated 21.8.07 (Annex.29) to regularise the land bearing Khasra No. 194 of the Khatedars in compliance of the orders passed by the State Level Settlement Committee and also directed that the lay-out plan of the scheme be released as per rules, after obtaining the payment of the remaning amount of the demand notice dated 18.5.02 with interest. According to the petitioners, the JDA did not accept the remaning amount even after the said letter of the State Government. The petitioner No.1 thereafter made a representation to the UDH Minister on 13.8.13 (Annex.31) requesting him to regularise the land of the petitioners in compliance of the order of the Settlement Committee dated 10.4.02 and to place the matter before the empowered committee. The said matter remained pending before the State Government.
2(v) According to the petitioners, the said Khasra No. 194 having khatedari rights of the petitioner Nos. 1 and 2 was subsequently partitioned and accordingly Khasra No. 194/1 having an area of 11 Bighas 10 Biswas was entered in the name of the petitioner No.1 Jhutharam, Khasra No. 194/2 having an area of 8 Biswas was kept in the joint possession of the petitioner Nos. 1 and 2 and the Khasra No. 194/3 having an area of 11 Bighas 10 Biswas was entered in the name of the petitioner No. 2 Shaitan Singh. On 21.8.14, the petitioner No.2 Shaitan Singh sold out 6 Bighas 14 Biswas out of Khasra No. 194/3 and 4 Biswas of Khasra No. 194/2 (total area of 6 Bighas & 18 Biswas) to M/s. United Land Developers i.e. the petitioner No. 3 vide the registered sale-deed dated 21.8.14 and supplementary amended deed dated 1.9.14 (Annex. 35 & 36 respectively). Similarly the petitioner No.1 Jhutharam sold out 6 Bighas 9 Biswas out of Khasra No. 194/1 and 0.1 Biswas out of Khasra No. 194/2 (Total 6 Bighas 10 Biswas) to M/s. United Land Developers i.e. petitioner No.3 vide the registered sale-deed dated 25.8.14 (Annex.37). The said petitioner No.3 M/s. United Land Developers sold out different parts of the said land purchased by it, to the other petitioner Nos. 3 to 7 by executing separate sale deeds. It appears that accordingly the mutation entries were also opened in the names of all the petitioners.
2(vi) It is further case of the petitioner that all the petitioners thereafter submitted separate applications (Annex. 49 to 54) on different dates to the JDA under the provisions contained in Section 90-A of the Land Revenue Act for conversion of their respective lands for residential purposes. However, the JDA did not pass any order on the said applications. The JDA thereafter communicated to the petitioners vide separate letters (Annex.55-A to 55-C) that because of the stay in revenue matter being No. 72/14, titled as JDA Vs. State, pending before the Collector, Jaipur, it was not possible to proceed further in the matter. The JDA also communicated to the petitioners No. 1 and 2 vide letters dated 20.11.14 that the State Government had taken the decision on 17.11.14 to the effect that no further decision for regularising the petitioners land was required to be taken as the petitioners had not complied with the order of the Settlement Committee, even after the expiry of about eleven years. The copies of the letters dated 20.11.14 and 17.11.14 are produced at Annex. 56 to 59 respectively. According to the petitioners, the respondents-authorities under the garb of the said orders were disputing the ownership of the land bearing Khasra No. 194 of the petitioners and were bent upon taking the possession of the said land from the petitioners and therefore the petition has been filed. According to the petitioners, they have remained in possession of the said Khasra number all through out and were also not paid the compensation of the acquisition proceedings initiated under the L.A. Act and therefore the entire proceedings had stood lapsed in view of the provisions contained in Section 24(2) of the Act of 2013 which came into force with effect from 1.1.2014. According to them the proceedings under the ULC Act had also stood lapsed in view of the ULC Repeal Act of 1999, the physical possession of the said Khasra number having remained with the petitioners. The petitioners have prayed for directing the respondents to pass conversion orders in favour of the petitioners under Section 90-A of the Land Revenue Act, and not to take any coercive action against the petitioners in respect of the possession of the land in question. The petitioners have also prayed in the alternative to regularise the said land in compliance of the order dated 10.4.02 passed by the Settlement Committee.
3. CONTENTIONS RAISED BY THE RESPONDENTS 3(i) The respondents have resisted the writ petition by filing the reply contending interalia that the petition suffers from misjoinder of parties and causes of action and the petition also suffers from suppression of material facts. According to the respondents, pursuant to the form filed by the petitioner No.1 under Section 6 of the ULC Act in respect of his holdings including the land bearing Khasra No. 194, the proceedings were initiated under the said Act, and the land had vested in the State Government under Section 10(3) of the said Act. Thereafter the appeal filed by the petitioner No.1 before the Divisional Commissioner was dismissed, against which the petitioner No.1 had filed the writ petition being No. 2011/93 on 29.3.93 and the said petition was also dismissed by the High Court on 26.4.97.
3(ii) As regards the proceedings under the Land Acquisition Act, it has been contended that the petitioners had deliberately not produced on record the notification issued under the L.A. Act as their names were not mentioned in the said notification as the Khatedar-tenants of the land in question. The petitioners had also not produced the Schedule to the award dated 27.5.95 as the Schedule indicated that the title of the land was yet to be decided. The respondents have produced the notification under Section 4, the declaration under Section 6 and the complete award dated 27.5.95 as Annex.R/1, R/2 and R/3 respectively. It is also contended that the petitioner Nos. 1 and 2 had filed the writ petition being No. 3235/95 challenging the acquisition proceedings on 17.7.95, however had suppressed the material facts with regard to the pendency of proceedings under the ULC Act as well as the writ petition having been filed by them challenging proceedings under the ULC Act. According to the respondents, the proceedings under the L.A. Act were continued by the competent authority oblivious of the proceedings under the ULC Act which were being continued by the different authority.
3(iii) As regards the constitution of Settlement Committee under Section 83-A of the JDA Act, it has been contended that the findings recorded by the said Committee as regards the possession were erroneous and the same were not binding to the State Govt. It is further contended that the petitioners themselves had submitted an application praying for regularisation of their possession upon the land in question, on payment of 25% of the reserved price of the land and therefore the Committee considering the said application had passed the order on 10.4.02 on the conditions mentioned therein, however the petitioner Nos. 1 and 2 had failed to comply with the said directions so far as the deposit of the amount with JDA for regularisation of the possession and use of the land in question was concerned. Since it was informed by the JDA to the State Government that the petitioner Nos.1 and 2 had not deposited the money within the time prescribed by the Committee and even within extended time limit, the State Government had stayed the direction dated 21.8.07 vide its letter dated 16.11.07 (Annex.R/4).
3(iv) It is further contended that the petitioner Nos. 1 and 2 had lost their khatedari rights with the acquisition of the land in question, and had raised unlawful construction of 43 shops and 4 marriage gardens upon the said land for carrying out commercial activities. It is also contended that the petitioner Nos. 1 and 2 could not have sold out the land in question to the other petitioners when the land had vested in the respondent-JDA and therefore all the transfers were void-ab-initio and did not confer any right upon the petitioner Nos. 3 to 7. According to the respondents, the mutations opened in favour of the said petitioner Nos. 3 to 7 were already quashed and set aside by the District Collector vide the order dated 10.2.15, which order was not disclosed by the petitioners in the writ petition. Since the land did not belong to the petitioners, they could not have made applications under Section 90-A of the Rajasthan Land Revenue Act for conversion of the use from agricultural to residential.
3(v) It is also contended by the respondents that by making application before the Settlement Committee for regularisation of land on payment of 25% of the reserved price as per the Government circular, the petitioner Nos. 1 and 2 had accepted the vesting of land in Government and consequently in JDA, and had accepted the completion of acquisition proceedings. By agreeing to make payment of 25% of the reserved price as the cost of regularisation without any claim for compensation, the said petitioners had also waived their right to receive the compensation for the land in question and therefore no further action was required to be taken under the L.A. Act. As regards the lapsing of land acquisition proceedings, it has been contended that the proceedings under the L.A. Act had already stood completed and therefore the question of lapsing did not arise.
4. The petitioners had filed the rejoinder and an additional affidavit for bringing on record the subsequent development namely issuance of notices by the respondent-JDA under Section 72 of the JDA Act. The respondents have filed the counter affidavit to the said additional affidavit for submitting that the petitioners had carried out illegal encroachment and construction over the land in question and therefore, the notices were issued to them under Section 72 of the JDA Act.
5. The learned counsels for the parties have argued at length pressing into service various provisions of the respective Acts and various decisions of the Supreme Court in support of their respective submissions, which shall be dealt with apropos the following questions involved in the petition.
(i) Whether the proceedings under the ULC Act had lapsed?
(ii) Whether the proceedings under the L.A. Act had lapsed?
(iii) Whether the petitioners are entitled to seek the reliefs as prayed for?
6. Whether the proceedings under the ULC Act had lapsed?
6(i) In the first limb of his arguments, the learned senior counsel Mr. Nageshwara Rao for the petitioners submitted that though the form filled in by the petitioner No. 1 in respect of the land in question was processed under the ULC Act, the actual physical possession of the land in question was not taken by the competent authority under the said Act, till the said Act was repealed by the ULC Repeal Act, 1999 and therefore the proceedings under the ULC Act had stood lapsed in view of Section 3 of the Repeal Act of 1999. He has relied upon the decision of the Apex Court in case of State of U.P. Vs. Hari Ram (2013) 4 SCC 280 and in case of Gajanan Kamalya Patil Vs. Addl. Collector & Competent Authority (2014) 12 SCC 523 in support of his submission. The learned Addl. Solicitor General Mr. P.S Narsimha and the Addl. Advocate Geneal Mr. Rajendra Prasad, AAG for the respondents also fairly conceded that the respondents have not been able to produce on record any document to show that the defacto possession of land was taken over by the competent authority under the ULC Act till the Repeal of the ULC Act in 1999, though the lands had already vested with the respondent-State in view of the proceedings under Section 10(3) of the said ULC Act.
6(ii) So far as the proceedings under the ULC Act are concerned, it traspires from the documents on record that the petitioner No.1 had filled in the form under Section 6 of the ULC Act in respect of his holdings including the Khasra No. 194. The said form was processed and the said land had vested in the State Government under Section 10(3) of the said Act. The notices under Section 10(5) were also issued to the petitioner No.1 by the competent authority. Thereafter he filed the appeal being No. 57/91 before the Divisional Commissioner on 18.12.91 on the ground that he was not aware about the order passed by the competent authority till the possession was forcibly sought to be taken from him in September, 1991. The said appeal came to be dismissed vide order dated 29.3.93 (Annex.6), on the ground of being barred by law of limitation. On the same day, he filed the Writ Petition being No. 2011/93 before the High Court challenging the very applicability of the ULC Act to the said land. It appears that the High Court passed an interim order dated 6.4.93 in the said petition directing the respondents not to dispossess the petitioner from the said land. The said order continued till the dismissal of the petition on 26.4.97. The said order passed in the SBCWP No. 2011/93 remained unchallenged at the instance of the said petitioner, however the possession was not taken by the competent authority because of the order passed by the High Court in one another petition being No. 3235/95 filed by the said petitioner, challenging the land acquisition proceedings initiated by the respondent-State in respect of the said land. Be that as it may, the fact remains that the actual possession of the land was not taken by the competent authority though the land had vested in State Government under Section 10(3) of the ULC Act. The learned counsels for the respondents have also not been able to show the defacto possession having been taken by the respondent-State till the ULC Act was repealed by the Act of 1999. Under the circumstances, the inescapable conclusion would be that the proceedings under the ULC Act had stood lapsed in view of the provisions contained in the Repeal Act of 1999.
7. Whether the proceedings under the L.A. Act had lapsed?
7(i) Surprisingly though the subject land was deemed to have been acquired by the State Government as back as in 1991 on the declaration published, and thereafter had vested absolutely in the State Government, by virtue of the proceedings held under Section 10(3) of the ULC Act, and though the notices under Section 10(5) of the ULC Act were also issued to the petitioner No.1 as back as in 1991, the respondent-State initiated the proceedings to acquire the said land under the L.A. Act by issuing notification under Section 4 of the L.A. Act on 23.10.91 (Annex.R/1).
7(ii) It is also pertinent to note that even the petitioner Nos. 1 and 2 who had filed the writ petition being No. 2011/93 challenging the applicability of the ULC Act to the land in question, and had also filed the Writ Petition being No. 3235/95 challenging the acquisition proceedings under the L.A. Act, had also not stated the correct facts in the said petitions. When the Writ Petition being No. 2011/93 was filed challenging the proceedings under the ULC Act, the respondent-State had already issued the notification under Section 4 of the L.A. Act, and when the said petition was dismissed by the High Court on 26.4.97, the award under the L.A. Act was already made by the competent authority under the L.A. Act on 27.5.95. In the meantime the petitioner Nos. 1 and 2 had challenged the acquisition proceedings by filing the Writ Petition No. 3235/95 on 17.7.95, however the said petitioners did not disclose about the pendency of the Writ Petition No. 2011/93 in the said Writ Petition No. 3235/95. They also did not disclose about the pendency of Writ Petition No. 3235/95, when the Writ Petition NO. 2011/93 was being heard and disposed of by the High Court on 26.4.97. Thus, it clearly transpires that the petitioner Nos. 1 and 2 had suppressed the material facts in the said petitions and had tried to mislead the courts.
7(iii) In any case, it appears that the interim order dated 6.4.93 passed by the High Court in Writ Petition No. 2011/93 restraining the respondents from dispossessing the petitioner No.1 from the subject land remained in force till the disposal of the said petition on 26.4.97. In the meantime the petitioner Nos. 1 and 2 also filed the Writ Petition No. 3235/95 challenging the proceeding of acquisition initiated under the L.A. Act, and obtained an interim order on 4.9.95, which continued till the dismissal of the said Writ Petition on 24.4.97. The said order dated 24.4.97 was challenged by the petitioner Nos. 1 and 2 before the Division Bench by filing the DB Special Appeal No. 1398/97, which came to be dismissed vide order dated 26.9.2000. Again, when the said order was challenged before the Supreme Court by filing SLP being SLP(C) No. 21538/2000, the Supreme Court had directed the parties to maintain status-quo as regards the possession of the land in question vide the order dated 12.1.01.
7(iv) It further appears that the State Government in the meantime had constituted a State Level Settlement Committee under Section 83/A of the JDA Act to resolve the disputes between the JDA and other persons. The petitioner Nos. 1 and 2 therefore had approached the said committee also by filing an application being No. 26/02. The constitution of the said committee, of course was challenged by some other persons by filing a PIL, however at this juncture it is suffice to say that in the said application, the said committee had passed the order dated 10.4.02 (Annex.21), giving certain directions to the petitioner Nos. 1 and 2 and to the JDA for regularisation of the land. The petitioner Nos. 1 and 2 thereafter sought permission to withdraw the SLP pending in Supreme Court and accordingly the said SLP was permitted to be withdrawn as per the order dated 8.5.02 (Annex.24). The petitioner Nos. 1 and 2 thereafter partly complied with the said order of Settlement Committee and the matter remained under consideration before the respondent-JDA and the State Government. The petitioners also thereafter made applications under Section 90-A of the Land Revenue Act seeking necessary permission to convert use of the said land somewhere in September-October, 2014.
7(v) In the light of aforestated state of affairs, it has been sought to be submitted by the learned senior counsel Mr. Nageshwara Rao for the petitioners that the respondents having failed to take possession of the land in question and also failed to pay compensation to the concerned petitioners pursuant to the award dated 27.5.95 made under Section 11 of the L.A. Act, and that five years having elapsed to the said award, the proceedings under the L.A. Act had stood lapsed in view of Section 24(2) of the Act of 2013. He also submitted that the participation of the petitioner Nos. 1 and 2 in the Settlement Committee proceedings was without prejudice, and that merely because the petitioner Nos. 1 and 2 had approached the Settlement Committee, the said petitioners cannot be said to have conceded their claim over the land bearing Khasra no. 194, or waived their right to the compensation under the L.A. Act. According to him, the said Settlement Committee was constituted by the State Government under Section 83-A of the JDA Act and there was no repugnancy between the L.A. Act and the JDA Act, inasmuch as Section 45 of the JDA Act permitted acquisition of lands for the purpose of any function of the JDA, under and in accordance with the provisions of the L.A Act. The land acquisition proceedings in question therefore having been initiated under the L.A. Act, had to be either terminated or completed after following the prescribed procedure under the said Act only. He has placed reliance on the decisions of the Apex Court in case of Pune Municipal Corporation Vs. Harakchand Misrimal Solanki (2014) 3 SCC 183, in case of Magnum Promoters Pvt. Ltd. Vs. Union of Indis (2015) 3 SCC 327 and in case of Shree Balaji Nagar Residents Association Vs. State of Tamil Nadu (2015) 3 SCC 353, to buttress his submission that the actual physical possession and not the symbolic possession of the land should have been taken by the respondent-State for the purpose of construing the provisions contained in Section 24(2) of the Act of 2013. He has also relied upon the decision of the Supreme Court in the case of Union of India Vs. Shiv Raj (2014) 6 SCC 564, to submit that even the subsequent purchasers of the land under the acquisition proceedings are entitled to challenge the acquisition proceedings and seek reliefs.
7(vi) However, the learned counsels appearing for the respondents, taking the court to the various proceedings filed by the petitioner Nos. 1 and 2 before the Settlement Committee, before the JDA and before the State Government, and taking the court to the subsequent events and intervening circumstances submitted that the petitioner Nos. 1 and 2 had accepted the fact of vesting of subject land in the State Government and had also accepted the possession of the State Government, and therefore had agreed before the Settlement Committee to pay the prescribed amount for regularisation of their unauthorised occupation and change of use of the land from agricultural to non-agricultural purpose. According to them, the said petitioners, having availed of the alternative statutory mechanism under the JDA Act and prayed for the benefit under the circulars issued by the State Government, and having failed in the litigations before the High Court and the Supreme Court, had consciously and voluntarily chosen to surrender their rights in the land in question in favour of the respondents, with a clear object of getting back the residential lease of land by way of regularisation as per the rules on payment of prescribed amount to the respondents, and therefore the question of taking actual physical possession of the land in question and the question of making payment of compensation pursuant to the award did not arise, though the JDA had already sent the cheque of Rs. 22,96,367/- to the Land Acquisition Officer on 19.1.02 towards compensation of the land in question. Thus according to the learned counsels for the respondents, the proceedings under the L.A. Act had already stood completed, on the petitioner Nos. 1 and 2 having accepted the vesting of the land in Government and subsequently in the JDA, and they having impliedly surrendered the possession of the land in the Government, accepting the status of trespasser and praying for regularisation of the possession in view of the Government circulars. They further submitted that the proceedings under the L.A. Act being not pending as on 1.1.14 when the Act of 2013 came into force, the question of lapsing of the said proceedings also did not arise. Placing reliance on the decision of the Supreme Court in case of Banda Development Authority Vs. Moti Lal Agarwal (2011) 5 SCC 394, the learned counsel Mr. Rajendra Prasad, AAG submitted that taking of possession did not mean throwing the person or his belongings physically out of the land, and that taking of possession would mean that the Government should do some act to assert its rights over the land in question.
7(vii) Having considered the submissions made by the learned counsels for the parties, in the light of the documents on record and in the light of the provisions contained in the relevant Acts, the court does find some substance in the submissions made by the learned counsels for the respondents that the petitioner Nos. 1 and 2 had accepted the vesting of land in the Government and consequently in the JDA. Since vesting of land in Government would take place only when the Government takes possession of the land, it could be said that the petitioner Nos. 1 and 2 had impliedly surrenderred the possession of the land in the Government, more particularly when the petitioner Nos. 1 and 2 had agreed to make payment of 25% of reserve price as cost of regularisation, in view of the circulars issued by the State Government, without asserting their right to receive the compensation as per the award. The said submissions of the learned counsels for the respondents, though sound logical and attractive, it is difficult to accept the same. The L.A. Act being an exproprietory Statute, its provisions have to be strictly complied with. It is well settled principle that if a legislature prescribes a mode for exercising the power to interfere with the property rights, that power should be exercised in that manner and in no other manner. Beneficial reference of the decisions of the Supreme Court in case of DLF Qutab Enclave Complex Educational Chatirable Trust Vs. State of Haryana & Ors. (2003) 5 SCC 622, of Steel Authority of India Ltd Vs. Suini Sangam & Ors. (2009) 16 SCC, 1, of Godrej & Boyce Manufacturing Co. Ltd. & Anr. Vs. State of Maharashtra & Ors.(2014) 3 SCC 430 etc. be made in this regard. It has also been held by the Apex Court in case of Pune Municipal Corporation Vs. Harakchand (supra) in para 18 that -
"18. 1894 Act being an expropriatory legislation has to be strictly followed. The procedure, mode and manner for payment of compensation are prescribed in Part V (Sections 31-34) of the 1894 Act. The Collector, with regard to the payment of compensation, can only act in the manner so provided. It is settled proposition of law (classic statement of Lord Roche in Nazir Ahmad1 ) that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden "
7(viii) Section 16 of the L.A. Act envisages that when the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances. There is nothing on the record to suggest that the LAO after making of the award under Section 11 had taken the physical possession of the land in question. As rightly submitted by the learned counsel for the petitioners, it is the physical possession and not the symbolic possession which should have been taken over by the respondents, for the purpose of interpreting Section 24(2) of the Act of 2013. The Supreme Court in case of Pune Municipal Corporation (supra) has also held that --
"11. Section 24(2) also begins with non obstante clause. This provision has overriding effect over Section 24(1). Section 24(2) enacts that in relation to the land acquisition proceedings initiated under 1894 Act, where an award has been made five years or more prior to the commencement of the 2013 Act and either of the two contingencies is satisfied, viz; (i) physical possession of the land has not been taken or (ii) the compensation has not been paid, such acquisition proceedings shall be deemed to have lapsed. On the lapse of such acquisition proceedings, if the appropriate government still chooses to acquire the land which was the subject matter of acquisition under the 1894 Act then it has to initiate the proceedings afresh under the 2013 Act. The proviso appended to Section 24(2) deals with a situation where in respect of the acquisition initiated under the 1894 Act an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries then all the beneficiaries specified in Section 4 notification become entitled to compensation under 2013 Act. "
It is further held in para 17 as under :-
"17. While enacting Section 24(2), Parliament definitely had in its view Section 31 of the 1894 Act. From that one thing is clear that it did not intend to equate the word paid to offered or tendered. But at the same time, we do not think that by use of the word paid, Parliament intended receipt of compensation by the landowners/persons interested. In our view, it is not appropriate to give a literal construction to the expression paid used in this sub-section (sub-section (2) of Section 24). If a literal construction were to be given, then it would amount to ignoring procedure, mode and manner of deposit provided in Section 31(2) of the 1894 Act in the event of happening of any of the contingencies contemplated therein which may prevent the Collector from making actual payment of compensation. We are of the view, therefore, that for the purposes of Section 24(2), the compensation shall be regarded as paid if the compensation has been offered to the person interested and such compensation has been deposited in the court where reference under Section 18 can be made on happening of any of the contingencies contemplated under Section 31(2) of the 1894 Act. In other words, the compensation may be said to have been paid within the meaning of 10 Page11 Section 24(2) when the Collector (or for that matter Land Acquisition Officer) has discharged his obligation and deposited the amount of compensation in court and made that amount available to the interested person to be dealt with as provided in Sections 32 and 33."
7(ix) In the instant case, it appears that though the JDA had sent the cheque of Rs. 22,96,367/- to the LAO for making payment of compensation towards the acquisition of the lands in question as back as in January 2002, the said cheque was returned by the Land Acquisition Officer in view of the order passed by the Supreme Court directing the parties to maintain status-quo and thereafter the said amount was neither offered nor paid to the petitioner Nos. 1 and 2. As a result thereof, neither the actual physical possession of the subject land was taken by the Land Acquisition Officer nor the compensation was paid in the manner prescribed under the Act for the acquisition of the land in question.
7(x) It is true that the petitioner Nos. 1 and 2 had agreed before the Settlement Committee constituted under Section 83-A of the JDA Act, to pay 25% of the reserve price fixed for the Chitrakoot Scheme, for regularisation of their land in question in view of the Government Circular dated 26.5.2000. It is also true that the petitioner Nos. 1 and 2 did not comply with the order passed by the Settlement Committee and did not pay the amount against the demand letters issued by the JDA, however nothing happened thereafter for about 5 years. In 2007 on the application submitted by the petitioner Nos. 1 and 2 seeking permission to deposit the remaining amount to the JDA, the matter was referred to the State Government. Thereafter some correspondence ensued between the said petitioners and the State Government, however the fact remains that the order dated 10.4.2002 passed by the Settlement Committee was not complied with by the petitioner Nos. 1 and 2.
7(xi) The court at this juncture refrains itself from examining the legality and validity of the order dated 10.4.02 passed by the Settlement Committee and also from examining the very constitution of the said Settlement Committee. The net effect of all the proceedings was that the occupation and use of the land in question by the petitioner Nos. 1 and 2 continued to remain unauthorised and illegal, the same having not been regularised till this date, on account of non-compliance of the order dated 10.4.2002 passed by the Settlement Committee, nonetheless the respondents-State Government could not be permitted to take plea that the possession was impliedly handed over by the said petitioners to the Government, or that LAO was not required to take possession or pay compensation as per the L.A. Act. There was no overt act done or clarification made by the respondent-State or the JDA or the Land Acquisition Officer at any point of time to show that the petitioner Nos. 1 and 2 had impliedly surrendered the possession to the LAO or had waived their right to receive compensation under the L.A. Act, by agreeing to pay 25% of the reserve price of Chitrakoot Scheme for regularisation of the land in view of the order passed by the Settlement Committee. There is also nothing on record to suggest that the acquisition proceedings initiated in respect of the land in question had stood terminated on account of the petitioner Nos. 1 and 2 having approached the Settlement Committee constituted under Section 83-A of the JDA Act, and on account of the said committee having passed the order on 10.4.02.
7(xii) The court probably would have accepted such submissions of implied taking over of the possession and payment of compensation, and resultantly termination of land acquisition proceeedings, if the petitioner Nos. 1 and 2 had acted as per the proposal made by them, and the respondent-State and the JDA had accordingly regularised their possession and use of land in view of the Government Circulars accepting the reserve price from the petitioner Nos. 1 and 2. However, the said event having not taken place, it is difficult to hold that the respondent-State was not required to take actual physical possession or was not required to pay the compensation for the acquisition of the lands in question after passing of the award under Section 11 of the L.A. Act. If the petitioner Nos. 1 and 2 had not complied with the said order passed by the Settlement Committee, the respondents were required to take action for taking over the possession and making payment of compensation as per the award. No such action as such was taken by the respondents till the Act of 2013 came into force. Since the award was already made on 27.5.95, and thereafter neither the physical possession of the land was taken nor the compensation was paid by the respondents in the manner prescribed under the L.A. Act, it is required to be held that the land acquisition proceedings had lapsed in view of Section 24(2) of the Act of 2013.
8. Whether the petitioners are entitled to the reliefs as prayed for?
8(i) The learned counsels for the petitioners in the next limb of their submissions had pressed into service the decision of the Settlement Committee in the light of the circulars issued by the State Government for regularisation of the use of the subject land, as also the applications filed by the petitioners under Section 90-A of the Land Revenue Act. According to them, the proceedings having lapsed under the ULC Act as well as under the Land Acquisition Act, they were entitled to the conversion of the use of land from agricultural to residential purposes as per their applications, however, the respondent-JDA was sitting tight over the matter under the guise that the said proceedings of land acquisition were pending. They also submitted that the officers of JDA are also threatening the petitioners to dispossess them from the land in question under the guise of the notices issued under Section 72 of JDA Act.
8(ii) Per contra, the learned AAG Mr. Rajendra Prasad, relying upon the additional affidavit and the counter affidavit filed on behalf of the respondents, submitted that the petitioners had suppressed the material facts from the court and had not come with clean hands. According to him, the petitioner Nos. 1 and 2 had already converted the use of land for commercial activities since long time by constructing 43 shops and 4 marriage gardens, for which the respondent-JDA has issued the notices to the petitioners, as well as to the other persons who are in illegal occupation of the land in question. He also submitted that the subject land having vested in the Government and the JDA, the petitioner Nos. 1 and 2 could not have sold the land in question to the rest of the petitioners pending the legal proceedings and the mutation entries made on the basis of the said illegal sale deeds executed by the petitioner Nos. 1 and 2 were also cancelled by the Revenue authorities, which fact was also suppressed by the petitioners. The petitioners therefore were not entitled to the regularisation or conversion of the use of the land under Section 90-A of the Land Revenue Act or under any other Act.
8(iii) In order to appreciate the rival contentions raised by the learned counsels for the parties, it would be apposite to reproduce the relevant part of Section 90-A of the Land Revenue Act, which reads as under :-
"90-A. Use of agricultural land for non-agricultural purposes: (1) No person holding any land for the purpose of agriculture, and no transferee of such land or any part thereof, shall use the same or any part thereof, by the construction of buildings thereon or otherwise, for any other purpose except with the written permission of the State Government obtained in the manner hereinafter laid down and otherwise than in accordance with the terms and conditions of such permission.
(2) ....
(3) ....
(4) ....
(5) If any such land is so used
(a) without the written permission of the State Government being first obtained, or
(b) otherwise than in accordance with the terms and conditions of such permission, or
(c) after such permission having been refused under sub-section(3) or
(d) without making any of the payments referred to in sub-section (4) the person originally holding the land as aforesaid for the purpose of agriculture as well as all subsequent transferees, if any, shall be deemed to be a trespasser or trespassers, as the case may be, and shall be liable to ejectment from such land in accordance with Section 91 as if he or they had occupied or continued to occupy such land without lawful authority and to every such proceeding the provisions of Section 212 of the Rajasthan Tenancy Act, 1955 shall apply as if such land were in danger or being wasted damaged or alienated:
Provided that the State Government may, in lieu of having such person and the subsequent transferees so ejected from the land in question, allow him or them, as the case may be, to retain such land, use the same for any purpose other than that of agriculture on payment to the State Government, in addition to the urban assessment and premium payable under sub-section (4), of such fine by way of penalty as may be prescribed.
(6) Where permission under this section is sought with respect to a land situated in an urban area, the permission shall be granted only if the desired non-agricultural purpose is permissible in accordance with the law applicable in that area and is in consonance with the master plan or any other development plan or scheme, by whatever name called, in force, if any, in that area.
8(iv) From the bare reading of the aforestated provision, it appears that the person who holds any land for the purpose of agriculture or the transferee of such land, cannot use such land for any other purpose, except with the written permission of the State Government obtained by him or them, and if such land is used without such permission of the State Government, the person originally holding the land for the purpose of agriculture, as well as all the subsequent transferees are deemed to be the trespassers and are liable to ejectment from such land in accordance with the provisions of the said Act, as if they had occupied and continued to occupy such land without lawful authority. At this juncture, it is required to be mentioned that the petitioners have stated in their petition interalia that the petitioner Nos. 1 and 2 were the khatedars of Khasra No. 194 and were in continuous possession and were cultivating their lands since the date of their purchase i.e. 10.11.1975 without any interruption. They have also stated that they being absolute owners and khatedars of the said Khasra No. 194, were free to deal with the said land in the capacity of khatedari tenant/owner. The petitioner Nos. 1 and 2 therefore had partitioned the same, by which the Khasra No. 194/1, having an area of 11 Bigha 10 Biswas, was entered in the name of petitioner No.1 Chhoturam and the Khasra No. 194/2 having an area of 8 Bigha had remained in the joint possession of both the petitioners Nos. 1 and 2, and the Khasra No. 194/3 having an area of 11 Bigha 10 Biswas was entered in the name of the petitioner No.2 Shaitan Singh. As stated hereinabove, both the petitioners had further sold out the part of the said lands to the petitioner No.3 i.e. United Land Developers in October 2014 by executing the sale deeds, who also further sold out the part of the subject land to the rest of the petitioner Nos. 4 to 7. According to them, the mutations were also opened in the names of the said petitioners in respect of the respective part of the lands purchased by them. However, according to affidavit and the reply filed on behalf of the respondents, the said mutation enteries opened in favour of the said petitioner Nos. 3 to 7 on 26.2.14 were already quashed and set aside by the District Collector, Jaipur vide the order dated 10.2.15 in the Revenue Appeal No. 72/14 and that the said fact was concealed by the petitioners in the petition, which was filed after passing of the said order. It is also stated that all the petitioners have converted the use of the subject land for commercial purposes by putting up or permitting to put up shops and run marriage gardens thereon.
8(v) It is very significant to note that apart from concealing the material facts from the court, the petitioners appear to have acted in contravention of the provisions contained in the Tenancy Act, Land Revenue Act and the JDA Act. Since the proceedings in respect of the land bearing Khasra No. 194 were pending initially under the ULC Act and thereafter under the Land Acquisition Act, the petitioner Nos. 1 and 2 could not have sold or transfered the interest of their khatedari rights in the said Khasra No. 194 in favour of the other petitioners. As per Section 63(1)(iii) of the Tenancy Act, the interest of tenant in his holding or a part thereof would stand extinguished, when his land has been acquired under the Land Acquisition Act, 1894. As this case has a chequerred history, and the proceedings under the Land Acquisition Act had attained finality, the petitioner Nos. 1 and 2 having lost in the petitions filed by them right upto the Supreme Court. It is only because the Act of 2013 came into force and the physical possession was not taken by the State Government under the said L.A. Act due to the pendency of proposals for regularisation/conversion, this court for the first time by this order has held that the said acquisition proceedings have lapsed, otherwise the subject land had already vested in the Government and then the JDA. The petitioner Nos. 1 and 2 therefore could not have sold or transferred the said Khasra No. 194 in favour of the petitioner No. 3, much less the petitioner No.3 could have sold or transferred the said land in favour of the other petitioners as sought to be done. All the transactions for sale and transfer having been done by the petitioners absolutely in violation of the provisions contained in the Tenancy Act and the Land Revenue Act, the said sale deeds are required to be held as illegal and void-ab-initio.
8(vi) As transpiring from the record, not only the petitioners have executed illegal sale deeds, they have also converted the use of the land from agricultural to commercial. The respondents have produced on record the number of notices issued by the respondent-JDA, under Section 72 of the JDA Act, to the petitioners as well as to the other persons who have allegedly made encroachments and carried out illegal constructions of shops and marriage gardens on the land in question. The petitioners have not specifically challenged the said notices in the present petition, however have referred the same in their additional affidavit for taking subsequent developments on the record by stating interalia that the JDA had acted in high-handed and arbitrary manner by issuing such notices under the colourable exercise of powers under Section 72 of the JDA Act. Without expressing any opinion on the legality and validity of the said notices issued by the JDA under Section 72 of the JDA Act, suffice is to say that from the said notices it is limpidly established that the petitioners have converted the use of the subject land from agricultural to commercial by raising or permitting to raise illegal construction of shops and marriage gardens thereon, without any written permission from the State Government as contemplated under Section 90-A of the Land Revenue Act, and therefore the petitioners are required to be treated as the trespassers, liable to ejectment from such land in accordance with the provisions contained in the Land Revenue Act, Tenancy Act or JDA Act, as the case may be.
8(vii) In that view of the matter, it is held that despite the findings recorded by this court about the lapsing of the proceedings under the ULC Act, and under the Land Acquisition Act, the respondents shall be at liberty to take action against the petitioners in accordance with law for the illegal use of the subject land made by them.
8(viii) The petitioners have prayed to quash and set aside the orders dated 15.12.14 (Annex.55A-55C) and to pass final conversion orders in favour of the petitioners in view of their applications (Annex.49-54) filed under Section 90-A of the Land Revenue Act. However, the said prayer cannot be granted in view of the illegal conversion and use of land made by them without the permission of the respondents as contemplated under Section 90-A of the Land Revenue Act. The petitioners have also in the alternative prayed to regularise the said land in view of the order dated 10.4.02 (Annex.29) passed by the State Level Committee by quashing and setting aside the orders dated 17.11.14 (Annex. 57 and 59) passed by the respondent No.1 and the orders dated 20.11.14 (Annex. 56 and 58), however the said alternative prayers also do not deserve any consideration, when the directions given in the order dated 10.4.02 passed by the Settlement Committee were not complied with by the petitioner Nos. 1 and 2 for about more than 12 years. The orders passed by the respondent-JDA and the State Government at Annex. 56 to 59 therefore could not be said to be legally flawed. Considering the totality of facts and circumstances of the case, the court has reached to an irresistible conclusion that the petitioners had not only not disclosed the correct facts in the petition but had taken the law into their hands by illegally converting the use of the land in question from agriculture to commercial and creating third party interest therein. The petitioners, while annexing the notices issued by the JDA under Section 72 of the JDA Act, alongwith the additional affidavit filed by them, have not disputed the contents of the said notices that they had illegally put up construction of the shops, houses and the marriage gardens in the said land. The petitioners had also changed their stands from time to time to suit their purposes and had not approached the court with clean hands. It is trite to say that every litigant is bound to make full and true disclosure of facts, and the litigant approaching the court making misleading or inaccurate statements cannot be granted any relief much less equitable relief by the court while exercising extraordinary jurisdiction under Article 226 of the Constitution of India. In this regard beneficial reference of the decisions in case of M/s. Tilokchand and Motichand & Ors. Vs. H.B. Munshi & Anr. (1969) 1 SCC 110, K.D. Sharma Vs. Steel Authority of India Ltd. & Ors. (2008) 12 SCC 481 and Kishore Samrite Vs. State of Uttar Pradesh & Ors. (2013) 2 SCC 398 deserves to be made.
9. In the aforesaid premises, it is held that the proceedings initiated under the ULC Act, 1976 in respect of the land bearing Khasra No. 194 in question, have stood lapsed in view of the provisions contained in the Repeal Act of 1999, and that the proceedings held for the acquisition of the said Khasra No. 194 under the Land Acquisition Act 1894 have also stood lapsed in view of Section 24(2)(b) of the Act of 2013. However, it is further held that the petitioners are not entitled to any other reliefs as claimed in the petition, and that the respondents shall be at liberty to take action against the petitioners in accordance with law, for the illegal conversion and use of the said land, and also for the illegal encroachment and construction made over the land. The petition stands partly allowed accordingly.
(BELA M. TRIVEDI) J.
MRG All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
MRG/P