Rajasthan High Court - Jaipur
Topkhana Desh Grah Niraman Sah vs J D A Jaipur & Anr on 8 May, 2012
Author: Arun Mishra
Bench: Arun Mishra
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR DB Civil Special Appeal (W) No.570/2012 Topkhana Desh Grah Nirman Sahakari Samiti Ltd. Vs. Jaipur Development Authority & Ors. Date:08/05/2012 HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA HON'BLE Mr. JUSTICE NARENDRA KUMAR JAIN-I Mr. R.K. Agrawal, Sr. Adv. with Mr. Kunal Jaiman, for appellant. Mr. N.K. Maloo, Sr. Adv. with Mr. V.K. Tamoliya, for respondent JDA.
The appellant has questioned legality of the order dated 27.3.2012 passed by Single Bench in Civil Writ Petition No.9182/05.
For extension of Airport at Jaipur, land acquisition proceedings were initiated more than four decades ago way back in the year 1969. Notification under Section 4 of the Rajasthan Land Acquisition Act, 1953 was issued on 21.7.1969. Declaration under Section 6 was made on 28.2.1973 and published in the Official Gazette on 12.4.1973. Original Khatedar, namely, Sardar Labh Singh filed Writ Petition No.1446/74 questioning the land acquisition proceedings which came to be dismissed on merits vide order dated 8.5.1975. Intra court appeal which has been filed before the Division Bench as against dismissal of the writ application was also dismissed. The Rajasthan Land Acquisition Act was repealed on 24.9.1984. Award was passed on 28.12.1988. Petitioner-Topakhana Desh Grah Nirman Sahakari Samiti entered into three agreements to purchase the property in question with Khatedars on 30.4.1975, 25.3.1978 and 25.3.1981 after the notification under Section 4 and declaration under Section 6 had already been made. No sale-deed has been executed in favour of the appellant-Housing Society. Though the land stood acquired, however, the Housing Society proceeded to allot the land to its members and they filed reference application under Section 83 of the Jaipur Development Authority Act, 1982 on 17.5.2005 for claiming regularization of their land. The JDA Tribunal rejected the application vide impugned order dated 22.9.2005 against which, the writ petition was preferred. There were certain references sought by individual members, which were also rejected by the JDA Tribunal. However, the orders which were passed by the JDA Tribunal on 20.7.2005 and 21.11.2005 were not questioned, hence, they attained finality. No writ petition against said orders have been preferred. It is pertinent to mention here that in reference application, only regularization of land was sought. There was no whisper in the reference application that acquisition was illegal. On the other hand, it was admitted that the land stood acquired by the State Government for the purpose of extension of Airport at Jaipur. The JDA was raising construction of boundary wall; it was prayed that the same be restrained. As against the order passed by Tribunal, writ petition was filed in which only regularization was claimed. There was no whisper that acquisition was illegal in any manner or acquisition stood lapsed for any reason whatsoever good, bad or otherwise. There was no prayer made either before the Tribunal or, in the writ petition to treat the acquisition as having lapsed.
Questioning the order passed by Single Bench, Shri R.K. Agrawal, learned senior counsel appearing on behalf of appellant Housing Society has urged at length at the cost of repetition and with full vehemence on his command that the Court should entertain the question with regard to lapse of acquisition as award was not passed within two years from the date of repeal of the Rajasthan Land Acquisition Act and the date on which the Land Acquisition Act, 1894 came into force in the State of Rajasthan i.e.24.9.1984. The award was passed in the year 1988. Thus, the acquisition stood lapsed in view of Section 11A.
He has relied upon the decision of the Apex Court in Rajendra Singh Verma (Dead) through LRs & Ors. Vs. Lieutenant Governor (NCT of Delhi) & Ors. (2011) 10 SCC 1 to contend that being pure question of law, new point can be permitted to be raised in the intra-court appeal. He has also relied upon the decision of the Apex Court in Shehla Burney (Dr.) & Ors. Vs. Syed Ali Mossa Raza (Dead) by LRs & Ors. (2011) 6 SCC 529 in this regard.
Learned senior counsel has also addressed us on the issue of jurisdiction of this Court under Articles 226 & 227 of the Constitution of India and submitted that this Court can entertain the argument which has been raised under writ jurisdiction for the first time and in this regard, he has relied upon the decision of the Supreme Court in Ramesh Chandra Sankla & Ors. Vs. Vikram Cement & Ors. (2008) 14 SCC 58.
He has further submitted that when the award was not passed within limitation, the acquisition stood lapsed. This Court is bound to take notice of the aforesaid fact and grant relief to the appellant-Society by directing regularization of the land in question, he has relied upon decision of the Supreme Court in Raghunath Rai Bareja & Anr. Vs. Punjab National Bank & Ors. (2007) 2 SCC 230 and another decision of the Apex Court in Damodaran Pillai & Ors. Vs. South Indian Bank Ltd. (2005) 7 SCC 300. He also submitted that in case award has not been passed within the time frame envisaged under Section 11A of the Land Acquisition Act, 1894, the acquisition stands lapsed. For this proposition, he has relied upon decision of the Apex Court in Girnar Traders Vs. State of Maharashtra & Ors. (2007) 7 SCC 555, R. Indira Saratchandra Vs. State of Tamil Nadu & Ors. (2011) 10 SCC 344, Rajinder Singh Bhatti & Ors. Vs. State of Haryana & Ors. (2009) 11 SCC 480 and Kunwar Pal Singh (Dead) by LRs Vs. State of U.P. & Ors. (2007) 5 SCC 85.
On the other hand, Shri N.K. Maloo, learned senior counsel appearing on behalf of the respondent- JDA has submitted that the prayer made by the appellant before the JDA Tribunal was for regularization of the land. Land acquisition has not been questioned in any manner whatsoever nor, it was averred that acquisition stood lapsed for any reason. This ground has also not been taken in the writ petition. The question cannot be said to be pure question of law. He has also submitted that the question of regularization itself came up for consideration before the Apex Court in JDA Vs. Vijay Kumar Datta 2011(12) SCC 94. He also submitted that transactions involving transfer of land after the issue of notification under Section 4 were nullity. He has also submitted that the appellant was mere agreement-holder and in view of clear provisions contained in the Rajasthan Lands (Restrictions On Transfer) Act, 1976, no agreement could have been entered into as Section 4 of the Act of 1976 clearly imposes restriction on transfer of lands in relation to which acquisition proceedings have been initiated except with the prior permission of the competent authority in writing. There can be no sale, mortgage, gift, lease or otherwise of any land or part thereof situated in the State of Rajasthan. Thus, agreements to sale in the present matter are illegal. It was further submitted that no sale deed has been executed so far. Merely on the basis of agreement, it was not open to the Housing Society to file even reference before the JDA Tribunal and much less to question the legality of acquisition proceedings which stood concluded in the year 1988 for which acquisition proceedings were initiated way back in 1969. At no point of time, appellant has questioned legality of the acquisition proceedings. Now this question cannot be raised for the first time in the intra-court appeal.
Though we have been addressed at length by Shri R.K. Agrawal, learned senior counsel appearing on behalf of the appellant, but we find that it was totally misadventure on the part of the appellant to raise the question of validity of land acquisition proceedings for the first time in the intra-court appeal. It is apparent that challenge to the acquisition proceedings was made by the original Khatedar by way of filing Writ Petition No.1446/74. The said writ petition was dismissed on merits on 8.5.1975 against which intra-court appeal was preferred, which was also dismissed by this Court. This fact is not in dispute. In case award was not passed within period of limitation, it was open to question the same on this ground but, no writ petition was ever filed questioning that the award was not passed within the period of limitation of two years as provided in Section 11A of the Land Acquisition Act, 1894.
We have gone through the reference application filed before the Tribunal as also the writ petition which was filed before the Single Bench with the help of counsel for the appellant. We find that there is no whisper with respect to lapse of the land acquisition proceedings in the reference application filed before the JDA Tribunal or, in writ petition filed before the Single Bench. Land acquisition was not even questioned on any ground whatsoever good, bad or otherwise. On the other hand, candid admission was made in reference application that land stood acquired, its validity was not put in issue and only regularization was being sought by the Society. It does not lie in the mouth of the appellant-Society to contend for the first time in the intra-court appeal that question of lapse of acquisition proceedings in view of Section 11A of Land Acquisition Act, 1894 is a pure question of law; it is not pure question of law. There were several litigations which were filed and there was interim stay also on passing of the award as mentioned in the award itself. When interim order was vacated and how many injunctions were there, all these aspects could have been looked into, in case this question would have been raised by the appellant in the writ petition or, in the reference application filed before the Tribunal. Section 11A of the Act of 1894 itself provides that while computing the period of limitation, the period during which acquisition proceedings remained stayed by order of the Court, shall be excluded. Thus, the question raised that acquisition stood lapsed cannot be said to be pure question of law as it depends on facts, rather it was purely mixed question of fact and law. It was necessary to raise this issue in reference application or, in the writ petition, which has not been done. We find that no such submission can be raised in the intra-court appeal, that too, belatedly. It is clearly an afterthought and impermissible challenge in the facts of the case. We have no hesitation in rejecting the submission that this question be permitted to be raised now in the intra-court appeal without pleading and challenge to acquisition proceedings in the reference/writ petition.
The decisions which have been cited by the learned counsel for the appellant with respect to lapse of acquisition proceedings in Girnar Traders Vs. State of Maharashtra & Ors.(supra), R. Indira Saratchandra Vs. State of Tamil Nadu & Ors.(supra), Rajinder Singh Bhatti & Ors. Vs. State of Haryana & Ors.(supra) and Kunwar Pal Singh (Dead) by LRs Vs. State of U.P. & Ors.(supra) are of no avail as this question, without any factual foundation, cannot be permitted to be raised in intra court appeal once acquisition itself has not been questioned in reference application filed under Section 83 of JDA Act or in writ petition filed before Single Bench impugning order of JDA Tribunal.
Learned senior counsel has also relied upon the decisions of the Apex Court in Raghunath Rai Bareja & Anr. Vs. Punjab National Bank & Ors.(supra) and Damodaran Pillai & Ors. Vs. South Indian Bank Ltd.(supra) and submitted that there is no question of equity in the matter of limitation. We agree with the submission of learned senior counsel. Question of limitation has to be strictly looked into. But, in the instant case, the question of lapse of acquisition under Section 11A has not been raised as this question cannot be said to be pure question of law. Thus, the appellant having failed to question land acquisition on any ground whatsoever, same cannot be permitted in intra court appeal now that too belatedly after three decades as an afterthought. In the instant case, against rejection of reference application filed under Section 83 of JDA Act, 1982, petition under Articles 226 & 227 of the Constitution of India was filed. It was not a petition filed invoking original jurisdiction under Articles 227 & 227 of the Constitution of India. Order of Tribunal was questioned. Thus, jurisdiction of this Court was confined to the question raised in the reference application under Section 83 of the Act of 1982. Before the Single Bench also, validity of land acquisition which has been raised in the appeal, was not raised. The order of Tribunal was limited to the question of regularization and raising of boundary walls.
Learned senior counsel has also taken us to the decisions of the Apex Court in Ramesh Chandra Sankla & Ors. Vs. Vikram Cement & Ors. (supra) with respect to scope of interference under Articles 226 & 227 of the Constitution of India. In the said case, the Apex Court has laid down that relief exercising power under Article 227 can be granted by this Court to meet the ends of justice in equity. In the instant case, we find that no relief can be granted. Entertaining prayer made at this stage to question validity of acquisition, would amount to gross abuse of process of the Court. This question has not been raised before. Thus, we are not inclined to grant any relief nor the factual situation envisages so in the instant case.
Learned senior counsel has also referred to the decisions of the Supreme Court in Rajendra Singh Verma (Dead) through LRs & Ors. Vs. Lieutenant Governor (NCT of Delhi) & Ors.(supra) and Shehla Burney (Dr.) & Ors. Vs. Syed Ali Mossa Raza (Dead) by LRs & Ors.(supra) to contend that this Court can permit new questions to be raised in the appeal. In Rajendra Singh Verma (Dead) through LRs & Ors. Vs. Lieutenant Governor (NCT of Delhi) & Ors.(supra), the Apex Court has laid down that when there is factual foundation already laid, new plea can be permitted to be raised in the intra-court appeal. In the instant case, there is no factual foundation laid so as to entertain the submission with regard to lapse of acquisition proceedings on the ground of Section 11A. On the other hand, the foundation is that acquisition has already been made without questioning its validity. The foundation on which Shri Agrawal has tried to build a castle is not available in the instant case. We find the endeavour made by the appellant in the appeal to be wholly untenable and a misconceived venture.
It was submitted that compensation has been paid in 2005 and possession has also been taken in 2005 itself, hence, this Court should interfere with. We find that no case for interference is made out at the instance of the appellant for various reasons; firstly, he has not questioned the validity of the acquisition award which has been passed on any ground whatsoever. Once award has been passed land stood absolutely vest with the State. Secondly, the appellant is only an agreement-holder. No sale deed has been executed so far in favour of the appellant. The agreements were executed after notifications were issued under Section 4 and declaration under Section 6 of the Rajasthan Land Acquisition Act.
Section 4 of the Rajasthan Lands (Restrictions on Transfer) Act, 1976 is clear that without prior permission in writing of the competent authority, there cannot be any transfer by sale, mortgage, gift, lease or otherwise of any land or part thereof situated in the State of Rajasthan, once acquisition proceedings have been initiated. Section 4 of the Act of 1976 is quoted below:-
4. Restriction on transfer of lands in relation to which acquisition proceedings have been initiated.- No person shall, except with the previous permission in writing of the competent authority, transfer or purport to transfer by sale, mortgage, gift, lease or otherwise any land or part thereof situated in the State of Rajasthan, which is proposed to be acquired in connection with the scheme and in relation to which a declaration to the effect that such land or part thereof is needed for a public purpose having been made by the State Government under Section 6 of the Rajasthan Land Acquisition Act, 1953 or under the corresponding provision of any other law providing for acquisition of land for a public purpose, and the State Government has not withdrawn from the acquisition under section 48 of that Act or under any such law.
Thus, the two agreements which have been executed in the present matter after Act of 1976 came into force are clearly hit by aforesaid provisions contained in Section 4. It is not the case that any permission of the competent authority has been taken at any point of time. Violation of provisions of Section 4 is also punishable under Section 9 of the Act of 1976 with imprisonment for a term which may extend to three years or with fine or with both. Section 9 providing penalty is quoted below:-
9. Penalty.- If any person contravenes the provisions of section 3 of section 4, he shall be punishable, with imprisonment for a term which may extend to three years or with fine or with both.
Besides that, we find from reference in the award passed in 1988 that possession of various lands was also taken. We cannot permit the appellant to raise the plea now at this stage that acquisition stood lapsed for aforesaid reasons. Two of the agreements are also hit by provisions of Section 4 of the Act of 1976. The appellant cannot question the acquisition on the basis of due embargo put by Section 4 of the Act of 1976. In fact, proceedings should have been initiated under Section 9 of the Act of 1976 against the appellant for violating the provisions of Section 4 of the Act of 1976. It was not open to the appellant to divide the plot and sell to innocent persons. Such act of the appellant is wholly illegal and unauthorized.
It is also pertinent to mention that order passed by Single Bench has not been questioned on any other ground except the aforesaid submission which was not raised before Single Bench or before JDA Tribunal.
Consequently, we find no ground so as to interfere in the impugned order passed by Single Bench. The appeal is entirely devoid of merit and misconceived venture to reopen land acquisition which has been concluded. The same is dismissed with cost of Rs.1 Lac. Stay application is also dismissed.
(NARENDRA KUMAR JAIN-I)J. (ARUN MISHRA)CJ.
GS
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Govind Sharma, PA