Rajasthan High Court - Jaipur
State Of Raj And Ors vs Rameshwar Prasad And Ors on 2 April, 2010
Bench: Jagdish Bhalla, Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR JUDGMENT DB Civil Special Appeal (Writ) No. 253/2010 in SB Civil Writ Petition No. 231/1975 State of Rajasthan & ors Vs Rameshwar Prasad & ors 2.4.2010 Hon'ble the Chief Justice Mr Jagdish Bhalla Hon'ble Mr Justice MN Bhandari Mr Virendra Lodha for appellants Mr RK Agrawal Mr RD Rastogi for respondents BY THE COURT:
It is a case where writ petition was filed by the land owner Jagannath to challenge acquisition of land along with ancillary reliefs. Learned Single Judge dismissed the writ petition after taking note that acquisition has already been confirmed in a separate challenge upto the Hon'ble Supreme Court. While dismissing the petition, an observation and direction was issued in favour of respondent No.4-New Pinkcity Grah Nirman Sahkari Samiti Ltd (hereinafter to be referred to as 'the society'). Out of many observations, final observations and directions are quoted hereunder.
This is a case where the respondent No.4 housing society chalked out the residential scheme known as Siddharth Nagar and allotted plots to its members, who have already raised constructions, which is clear from the order of the Authorized Officer passed under section 90-B of the Rajasthan Land Revenue Act and the respondent JDA is now required to proceed further in the matter by issuing lease-deeds to the members of the respondent No.4 housing society.
Aforesaid observations and directions are seriously opposed by the appellants herein.
Learned counsel for appellants submits that when it was a writ petition of land-owner to challenge acquisition then learned Single Judge exceeded to his jurisdiction to pass observations/directions in favour of non-petitioner No.4-society. By virtue of such observations/ directions, it literally turns out to be a writ petition on behalf of non-petitioner No.4-co-operative society. A challenge to the same judgment of learned Single Judge was made by the legal heirs of Jagannath by maintaining separate appeal but they remained unsuccessful. Jaipur Development Authority and Land Acquisition Officer filed a review petition therein. The Division Bench clarified the position to the effect that any factual observation would not come in the way of applicant-JDA. It is now an appeal not only on behalf of the JDA but State of Rajasthan also. It is submitted that any finding by the co-ordinate Division Bench in the appeal filed by the land-holder Jagannath has no effect on the rights of the State, more so when State of Rajasthan is having independent grounds to challenge the impugned judgment of learned Single Judge to the extent it directs issuance of lease deeds in favour of members of non-petitioner No.4- cooperative society despite acquisition of land, that too, in the matter wherein acquisition has been upheld even by the Hon'ble Apex Court.
Learned counsel for cooperative society submits that State of Rajasthan and JDA are unnecessarily pursuing the appeal as otherwise the observations/directions of the learned Single Judge as indicated above, have already been wiped out in a review petition filed by the JDA and the Land Acquisition Officer. One and the same prayer has been made in this appeal to take away observations/directions of the learned Single Judge whereas observations and directions in favour of the society no more exist, rather the JDA and the State Government have been directed to proceed in the matter taking note of physical and actual position of the land on spot and to proceed in accordance with law. The prayer is accordingly to dismiss the appeal.
Learned counsel for land-owner supports the contention of the appellants. It is submitted that there exists litigation between the land holder and the cooperative society regarding agreement to sale of land in dispute and matter is pending before the civil court, however, by making observations contrary to the pleadings of the writ petition and prayer made therein, the benefit has been extended to the cooperative society for a land quite valuable. This is more so when in the civil suit rights claimed by the co-operative society would be determined. The learned Single Judge had passed the judgment in favour of the society ignoring the aforesaid. The proceedings under section 90-B of the Land Revenue Act thus cannot be treated as final.
We have heard rival submissions made by learned counsel for the parties and scanned the matter carefully.
The question is as to whether learned Single Judge was correct in making observations and issuing directions in favour of non-petitioner-cooperative society in a challenge to the land acquisition proceedings. It was a petition by land holder challenging land acquisition proceedings. In view of grounds raised and challenge made, learned Single Judge was expected to decide the matter accordingly. However, while deciding the writ petition regarding challenge to the land acquisition, certain observations and directions have been made in favour of the non-petitioner No.4-cooperative society as if it is a writ petition by them. By virtue of certain observations and directions, there exists self contradiction in the judgment of the learned Single Judge. The writ petition was dismissed regarding challenge to the land acquisition holding it to be legal. Once the land acquisition has been confirmed, land vests in the government/ JDA but ignoring this, observations and directions in contradiction were made for issuance of lease deeds in favour of members of respondent No.4-cooperative society, which otherwise not prayed in the writ petition. It virtually nullifies the right of the State and the JDA on acquisition of land. The matter could have been discussed in detail but in view of submissions of counsel for the society that those observations/directions made in the impugned judgment pertaining to respondent No.4-society have been wiped out by the coordinate Bench of this Court. We find that JDA and the Land Acquisition Officer filed a review petition against the judgment of coordinate Bench deciding the appeal against the same judgment of learned Single Judge. Therein certain clarifications have been made to give liberty to the JDA to proceed in accordance with law. We find that State has independently filed an appeal though along with the JDA and Land Acquisition Officer, however, appeal has been filed by the State Government for the first time. It has to be addressed on the issues raised so as to make things very clear. The State Government has rightly pleaded that there exist self contradiction in judgment affecting right of the State. On one hand, acquisition has been upheld vesting rights of the land in favour of appellant and, on the other hand, a direction in favour of society for issuance of lease in favour of the members of the society, that too in a writ petition filed by the land holder. No observation or direction could have been made in favour of non-petitioner society, otherwise, it becomes a writ petition on behalf of non-petitioner-society and that too when the reply given by the non-petitioner society is not made available to the petitioners JDA and State. The learned Single Judge should have restricted its judgment to the extent of challenge in the writ petition, however, in the present matter, the learned Single Judge exceeded to his jurisdiction in making observations/ directions in favour of non-petitioner society affecting rights of other co-respondents State and the JDA. In view of aforesaid, the observations/ directions need to be taken out and is to be set aside. We, accordingly, make it clear that any observations or direction in regard to respondent No.4-society cannot be kept as a part of the impugned judgment thus the observations and directions in favour of non-petitioner No.4 society deserve are set aside. This is more so when learned counsel appearing on behalf of the society has stated that in the review petition filed by the JDA and the Land Acquisition Officer, observations and directions in favour of the society have been wiped out.
On acquisition of land, if any party has a right or claim they would be at liberty to take legal recourse for their rights.
The outcome of aforesaid is that challenge to the acquisition of land in dispute is held to be legal and to that extent judgment of the learned Single Judge is confirmed however, observations and directions given in favour of the respondent No.1-society have been set aside. The appeal is accordingly allowed to the extent indicated above.
(MN Bhandari) J (Jagdish Bhalla) CJ bnsharma