Rajasthan High Court - Jaipur
Jaipur Development Authority Through ... vs Ghasiram S/O Chuna on 28 September, 2020
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 9144/2018
Jaipur Development Authority Through Its Secretary, Indra
Circle, Jawahar Lal Nehru Marg, Jaipur
----Petitioner
Versus
1. Ghasiram S/o Chuna, By Caste Jat, R/o Village Boytawala,
Tehsil Jaipur, District Jaipur, Rajasthan
2. Ramu S/o Munna, By Caste Jat, R/o Village Boytawala,
Tehsil Jaipur, District Jaipur, Rajasthan
3. Kana S/o Munna, By Caste Jat, R/o Village Boytawala,
Tehsil Jaipur, District Jaipur, Rajasthan
4. Bhagwana S/o Munna, By Caste Jat, R/o Village
Boytawala, Tehsil Jaipur, District Jaipur, Rajasthan
5. Mooli Widow Of Prabhat, By Caste Jat, R/o Village
Boytawala, Tehsil Jaipur, District Jaipur, Rajasthan
----Respondents
For Petitioner(s) : Mr. Anil Mehta, AAG with Mr. Yashodhar Pandey, Adv.
Ms. Archana, Adv.
Mr. Mehul Harkawat, Adv.
For Respondent(s) : Mr. Rakesh Kumar, Adv.
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Judgment /Order Reserved on 03/09/2020 Pronounced on 28/09/2020
1. By way of this writ petition, the petitioner-Jaipur Development Authority (hereinafter referred as 'JDA') has assailed the order dated 17/01/2018 passed by the learned JDA Appellate Tribunal whereby the appeal preferred by the respondents under Section 83(8)(a) of the Jaipur Development Authority Act, 1982 (Downloaded on 28/09/2020 at 08:55:53 PM) (2 of 27) [CW-9144/2018] has been allowed holding the respondents entitled to be allotted 15% of the developed land in terms of Circular dated 13/12/2001 in one or more available plots at Vidhyadhar Nagar, Gokul Nagar, Truck Terminal and Vaishali Nagar Schemes and has set aside the order dated 21/03/2017 whereby the JDA had rejected claim of the respondents.
2. The present case bears a chequered history and a brief reference to the same deserves to be noted.
2.1 The Defence Ministry of the Government of India required land for Field Firing Range near the existing cantonment area at Jaipur and the State of Rajasthan acquired land situated in revenue villages of Niwaroo Mansa Rampura, Boyatawala and Benad and exchanged the entire land acquired with the land in possession of military authorities situated; at present known as Vidhyadhar Nagar.
2.2 The peasants and farmers, whose land was acquired from the aforesaid villages, were originally having lands in pieces as members of the families as co-tenants. The respondents were one of those co-tenants and an award was passed by the Land Acquisition Officer on 26/03/1983.
2.3 As has now come on record, the amount of compensation as enhanced by the reference court was never deposited by the State/JDA.
2.4 In the meanwhile, on 13/12/2001 the Government of Rajasthan issued a circular offering land in lieu of acquired land on submitting of option by such interested persons. The circular also mentioned that in cases where the land in lieu of acquired land is granted, no cash compensation was tobe paid. The (Downloaded on 28/09/2020 at 08:55:53 PM) (3 of 27) [CW-9144/2018] application/option was sought from the erstwhile farmers/land owners upto 28/02/2002.
2.5 Admittedly, the respondents and other co-tenants which included one Chotu Ram submitted their option application for receiving 15% developed land in lieu of their land which was acquired.
2.6 The present litigation is a fall out from the earlier litigation which commenced when the JDA authorities, while invoking the circular dated 13/12/2001, allotted developed lands to some of the similarly situated persons whose land had been acquired while the others were deprived of such land in Vidhyadhar Scheme. 2.7 When an auction notice for selling of group housing plots was issued, it was challenged before the JDA Appellate Tribunal. The Tribunal annulled the said auction notice vide its judgment dated 18/08/2003 and held that the JDA would not be able to sell or auction plots till the concerned appellants are allotted 15% developed land in Vidhyadhar Scheme.
2.8 A writ petition was preferred by the JDA before this Court which came to be dismissed on 04/01/2005. Thereafter, the Deputy Secretary. Housing Department of the Government of Rajasthan vide its letter dated 01/07/2005 offered 15% of the land in terms of circular dated 13/12/2001 to the land owners/Khatedars and beneficiaries, whose land had been acquired, at village Lalchandpura and Anantpura by way of lottery system.
2.9 The said decision was again challenged before the JDA Appellate Tribunal and the JDA Appellate Tribunal vide its judgment dated 18/10/2005 again reiterated that they were entitled to allotment of 15% of the developed land in Vidhyadhar (Downloaded on 28/09/2020 at 08:55:53 PM) (4 of 27) [CW-9144/2018] Nagar Scheme and restrained from allotting or selling such land to others. It recorded that the land at Vidhyadhar Nagar has been handed over to JDA in lieu of the land acquired for Field Firing Range by the Ministry of Defence and therefore, the JDA was bound to provide the same to the Khatedars whose land has been acquired for Field Firing Range and could not have been asked to take developed land at Lalchandpura and Anantpura village which was far off and was not even developed.
2.10.It is an admitted position that one Sedu and Nathu, whose land had also been acquired, had already been allotted 15% developed land in Vidhyadhar Nagar Scheme, however, the rest had not been allotted.
2.11 When the order dated 18/10/2005 was not complied with, SB Civil Writ Petition No.9908/2008 came to be filed before this Court and vide judgment dated 23/10/2008, the learned Single Judge directed the JDA to comply with the directions within a period of two months noticing that the judgment of the Tribunal dated 18/10/2005 had not been challenged.
2.12 DB Special Appeal No.1879/2008 was preferred by the JDA which came tobe dismissed by Division Bench of this Court on 17/11/2008.
2.13 SLP was preferred which also came to be disposed of by the Supreme Court on 20/07/2009.
2.14 In the meanwhile, the JDA assailed the original order passed by the JDA Tribunal dated 18/10/2005 in SB Civil Writ Petition No.539/2009.
2.15 In the circumstances, the Supreme Court, while disposing of SLP No.2901/2009, observed that the order passed by the Division Bench upholding the order of the Single Bench would be subject to (Downloaded on 28/09/2020 at 08:55:53 PM) (5 of 27) [CW-9144/2018] any order which may be passed in the writ petition assailing the original order of the Tribunal dated 18/10/2005. 2.16 The writ petition No.539/2009 filed by the JDA against the Tribunal's order was dismissed on 11/01/2010 and thereafter DB Special Appeal No.276/2010 was filed before the Division Bench. The Division Bench vide its judgment dated 12/08/2011 held that the JDA Tribunal's decision was beyond the purview of its jurisdiction and it was not open for it to direct the JDA for allotment of land at Vidhyadhar Nagar Scheme and further held that the circular dated 13/12/2001 having not been issued in the name of Governor of the State as required under Article 166(1) of the Constitution of India and mandated under Article 166(2) thereof, could not be considered as a statutory direction and does not have any statutory force and therefore, could not have been said to be enforceable in law.
2.17 The decision of the Division Bench came to be challenged before the Supreme Court by Lala Ram and other appellants in bunch of Civil Appeals which came to be allowed by the Supreme Court in its decision reported in 2016(11) SCC 31 (Lala Ram & Ors. Vs. Jaipur Development Authority & Anr.) and four other Civil Appeals and the Supreme Court held as under:-
"61. As per Rule 8, subject to the orders of the Chief Minister Under Rule 14, all cases referred to in the Second Schedule to the Rules would be brought before the Council or a Sub-committee thereof in accordance with the provisions of the Rules contained in Part III. The restriction in matters in which finance department is required to be consulted Under Rule 10 is carved out in the proviso to Rule 8. Rule 9 in categorical terms underlines that the Minister-in- charge or the Minister of State-in-charge of a department shall be primarily responsible for the (Downloaded on 28/09/2020 at 08:55:53 PM) (6 of 27) [CW-9144/2018] disposal of the business pertaining to that department. While Rule 11 enjoins that all orders or instruments made or executed by or on behalf of the Government of Rajasthan shall be expressly made or executed in the name of the Governor, Rule 12 requires that every order or instrument of the Government shall be signed by a Secretary, a Special Secretary, an Additional Secretary, a Joint Secretary etc. as enumerated therein so much so that such signature shall be deemed to be a proper authentication of such order or instrument.
117. Even otherwise, having regard to the consistency in approach of the State Government in the matter of allotment of developed land in lieu of compensation as is evident from the series of circulars commencing from 22.4.1992 to 27.10.2005 in continuum, motivated by the objective of early culmination of the process of acquisition of land on the spirit of mutual settlement, the same irrefutably present an inviolable scheme of proclaimed State action for compliance, thereby making it invocable against the Respondents, more particularly as the same had been acted upon over the years. The plea of the Respondents, at this belated stage, to take refuge of unenforceability of the circular dated 13.12.2001 in isolation, as not being a binding policy, cannot receive judicial imprimatur.
118. The process leading to the allotment of land at Lalchandpura and Anantpura villages, as the records produced discloses, did originate from the circular dated 13.12.2001, and received the approval of the Chief Minister at an appropriate stage. It would thus be conspicuously patent, that all concerned State functionaries were not only aware of the relevance and the obligatory bearing of the said circular, but also had participated in the exercise, contemplated by it for allotment of developed land in lieu of compensation. The Respondents, in the totality of the existent facts and circumstances are thus estopped from questioning the status and efficacy of the said circular in vesting a right in the Appellants to claim their due in law there under.
121. Be that as it may, the land offered to the Appellants at Lalchandpura and Anantpura as well as at Boytawala and Mansarampura have been held by this Court, as recently on 7.5.2015, to be not fully developed and more importantly conceded to be so by the JDA as recorded in the said order. According to (Downloaded on 28/09/2020 at 08:55:53 PM) (7 of 27) [CW-9144/2018] the JDA, it would require further two years to develop the land thereat. The land of the Appellants, as acquired, was situated at Boytawala which, thus has not yet been fully developed as on date. Thus, in any view of the matter, the market value of the land at Boytawala cannot be an acceptable yardstick to identify the developed land to which they are entitled. This is more so, as for the last thirty years and above, the Respondents have failed to allot 15% developed land as envisaged by the policy to the Appellants. Admittedly, two of the land oustees had been allotted developed land at Vidyadhar Nagar and as the letter dated 16.10.2007 referred to hereinabove would reveal, till then, land at the same site was available. As a matter of fact, allotment of land at Lalchandpura, Anantpura, Boytawala and Mansarampura, which admittedly had not been fully developed, was in breach of the promise engrafted in the policy dated 13.12.2001.
129. In summa, the right to property having been elevated to the status of human rights, it is inherent in every individual, and thus has to be venerably acknowledged and can, by no means, be belittled or trivialized by adopting an unconcerned and nonchalant disposition by anyone, far less the State, after compulsorily acquiring his land by invoking an expropriatory legislative mechanism. The judicial mandate of human rights dimension, thus, makes it incumbent on the State to solemnly respond to its constitutional obligation to guarantee that a land looser is adequately compensated. The proposition does not admit of any compromise or laxity.
138. In course of the arguments, as adverted to hereinabove, host of pleadings have been exchanged portraying contrary view points on the developed status of the land sought to be allotted, the summary whereof has been extracted hereinabove. It appears there from that the sites at Boytawala, Lalchandpura, Anantpura and Mansarampura are located within a range of 14.70 K.M. to 39 K.M. from the central point Jaipur, the nearest being at Boytawala. All these lands have been recorded by this Court, as admitted by the JDA, to be not fully developed. The plots offered by the Respondents at Rohini Phase I, Anupam Vihar, Pitambara Scheme including Rajbhawan Yojana, Rohini Phase II, Abhinav Vihar Vistar and Harit Vihar are situated within a distance of (Downloaded on 28/09/2020 at 08:55:53 PM) (8 of 27) [CW-9144/2018] 25.40 K.M. to 36.80 K.M. from the central point, Jaipur.
140. At this distant point of time, we are disinclined to sustain this demur of the Respondents. As the facts have unfolded, the Appellants cannot be held accountable for the delay in between, the Respondents having failed to offer developed land as contemplated in the policy. This stands fortified, amongst others, by the order dated 7.5.2015 vis-a- vis the land at Boytawala, Lal Chandpura, Anantpura and Mansarampura. The other plots offered by the Respondents, also having regard to the attributes of developed land as envisioned by the Rajasthan Act do not accord with the letter and spirit of the policy."
2.18 The Supreme Court then directed as under:-
"154. In the overall view of the matter, we are of the confirmed opinion, that in the singular facts and circumstances of the case and for the sake of complete justice, the Appellants are entitled to be allotted their quota of 15% developed land in the terms of policy/circular dated 13.12.2001 in one or more available plots at Vidyadhar Nagar, Gokul Nagar, Truck Terminal and Vaishali Nagar as enumerated by them in their affidavit dated 17.8.2015. The Respondents are hereby directed to accommodate them accordingly.
155. In the wake up of above, the appeals are allowed. The impugned judgment and order is set- aside. The Respondents would allot the developed land as per policy decision dated 13.12.2001 to the Appellants at the places indicated hereinabove without fail and within a period of six weeks herefrom. To secure a permanent resolution to the lingering lis, the Respondents would ensure that a transparent and fair process is undertaken, if necessary, to be overseen by an appropriate authority to obviate any disparity in treatment in the matter of allotment as ordered.
156. We part with the belief and expectation that the Respondents would be alive to their duty cast by law and would not precipitate any further cause of action necessitating the intervention of this Court with stringent initiatives. No costs."(Downloaded on 28/09/2020 at 08:55:53 PM)
(9 of 27) [CW-9144/2018] 2.19 However, while the Supreme Court expected the JDA to remain alive to its duty cast by law, the JDA has again taken up this litigation when the Tribunal passed order in favour of the present respondents granting them the same relief under the Circular dated 13/12/2001 as had been granted earlier in its order dated 18/10/2005 and ultimately upheld by the Supreme Court.
3. Written submissions have been filed by the JDA and it is stated that plots had been allotted in Lalchandpura and Anantpura to the respondent-Ghasiram in the year 2005 and after 12 years, he cannot challenge the same. It is further submitted that the respondents were not parties to the litigation which was initiated before the JDA Appellate Tribunal in the year 2003 by Choturam and others and culminated vide judgment dated 01/12/2015. The JDA has further asserted that while the entire land acquired of the co-tenants including the respondents and Choturam was 37 Bigha 16 Biswa out of total 1368 Bigha 13 Biswa, the share of Chotu Ram was much less and as Choturam alone had taken up the cause on the basis of circular dated 13/12/2001, 15% developed land equal to the share of co-tenant Choturam, could be given to him alone and it is stated that so far as Choturam is concerned, he has been already allotted the said land after he preferred contempt petition before the Supreme Court.
3.1 The JDA does not deny this fact that Choturam had again preferred contempt petition and also stated that he was representing all the other co-tenants who jointly had 37 Bigha and 16 Biswa land but it is stated that as Choturam withdrew the contempt petition, the present respondents could not have claimed 15% developed land in Vidhyadhar Nagar Scheme as they (Downloaded on 28/09/2020 at 08:55:54 PM) (10 of 27) [CW-9144/2018] have been sleeping over their rights and were waiting in the stands.
3.2 The JDA has further asserted that one of the co-tenant Murli son of Hukma had accepted the allotment at Lalchandpura and Anantpura and therefore, the appeal before the JDA Appellate Tribunal for seeking 15% developed land at Vidhyadhar Nagar Scheme and other three areas against the total land of 37 Bigha 16 Biswa was not maintainable. The submission of the JDA is further to the count that representation had been made by Choturam on which the JDA passed order on 21/03/2017 rejecting the representation of Choturam while the appeal was preferred by Ghasiram and the same was therefore, not maintainable and the JDA Appellate Tribunal ought to have rejected the appeal. It is asserted by the JDA that the Supreme Court was only referring to the shares of the appellants before it and therefore, the benefit of the said judgment could not be claimed by the other co-tenants/ khatedars as they had not claimed for 15% developed land at that relevant time.
3.3 Learned counsel for the JDA has also taken this Court to the pleadings of the memo of appeal filed by Choturam and it is asserted that from perusal whereof it is seen that there is no pleading about the appeal being filed by or on behalf of the Khatedars of acquired land of 37 Bigha 16 Biwas or on behalf of the family. The claim of the respondents, therefore, is stalled and old and cannot be accepted.
3.4 Learned counsel for the JDA relied on the judgment passed in Ambey Devi (Smt.) Vs. State of Bihar & Anr.: 1996(9) SCC 84, more particularly para 4, which reads as under:- (Downloaded on 28/09/2020 at 08:55:54 PM)
(11 of 27) [CW-9144/2018] "4. We accept the finding of the High Court that the appellant had not made any application under Section 18, though the appellant has asserted that she did make an application but no evidence has been placed before the High Court or in this Court. Thus, is difficult to accept that such an application was in fact made before the Land Acquisition Officer within the limitation prescribed under Section 18(2) of the Act. Accordingly, we hold that the appellant had not filed any application, as required under Section 18(1) read with Section 18(2) of the Act. Section 53 does not apply to the facts of the case. The procedure prescribed under Section 18 and 30 is inconsistent with the procedure prescribed under Order 1, Rule 10 CPC. Order 1, Rule 10 CPC would apply to implead a necessary or proper party to effectuate complete adjudication of all the disputes having arisen between all the necessary or proper parties who may be bound by the decision. That question does not arise since inconsistent procedure has been prescribed under the Act. As held earlier, making an application in writing under Sub-section (1) and within the limitation prescribed under-Sub-section (2) of Section 18 are conditions precedent for the Land Acquisition Officer to make a reference under Section 18; only on its receipt, under Section 20 Civil Court jurisdiction to issue notice and thereafter to conduct enquiry, as contemplated under the Act. At that stage, the procedure of trial etc., as contemplated under the CPC, would apply and Section 53 of the Act would become applicable. It is an admitted position that the co-owner filed an application and had sought reference under Section 18 in respect of his share only. So, it is, as a fact, claims for compensation in specie and was paid towards 1/4th share to the claimants. By no stretch of imagination, the application under Section 18(1) by one of the co- sharers would be treated as one made on behalf of all the co-shares. Accordingly, we hold that the appellant is not entitled to lay any higher compensation pursuant to an award made by the reference Court under Section 26 at the instance of one of the co- owners."
3.5 Learned counsel for JDA has also relied on the judgment in Ashwani Kumar Dhingra Vs. State of Punjab :1992(2) SCC 592, more particularly para 8 which reads as under:- (Downloaded on 28/09/2020 at 08:55:54 PM)
(12 of 27) [CW-9144/2018] "8. We are afraid that the decision of the Supreme Court relied upon has no application to the facts of the present case. In the writ petition No. 3465 of 1973 or Letters Patent Appeal No. 14 of 1977 neither the appellant's father nor his brother made any representation that they were filing writ petition on behalf of the appellant herein either express or by necessary implication. The earlier litigation referred to by us was filed by Shri Sudhir Kumar Dhingra and Shri Nand Lal Dhingra (brother and father of the appellant respectively) in their own right only and not on behalf of the appellant herein. Father and brother had not pleaded any coparcenary with the appellant herein. Before us also no co-parcenary is being pleaded by the appellant with his father and brother. Only co- ownership or coparcenary was claimed with his brother Shri Sudhir Kumar Dhingra. There could be no coparcenary in the presence of the father between the brothers only by excluding the father. One co-owner may challenge the acquisition whereas the other co- owner may be satisfied with the acquisition and ask for compensation and even for enhancement of compensation; other brother may challenge the acquisition proceedings in his own right; merely because one brother accepts compensation, other brother is not estopped from challenging acquisition. Similarly, where one co-owner challenges acquisition, his rights will not be affected merely because other co-
owner had accepted acquisition and the
compensation."
3.6 Learned Counsel for the JDA has also relied upon judgment in M/s. Rup Diamonds & Ors. Vs. Union of India & Ors.:1989(2) SCC 356, more particularly Para 8 which reads as under:-
"8. Apart altogether from the merits of the grounds for rejection - on which it cannot be said that the mere rejection of the Special Leave Petitions in the cases of M/s. Ripal Kumar & Co., and M/s. H. Patel & Co., could, by itself, be construed as the imprimatur (Downloaded on 28/09/2020 at 08:55:54 PM) (13 of 27) [CW-9144/2018] of this Court on the correctness of the decisions sought to be appealed against -
there is one more ground which basically sets the present case apart. Petitioners are re-agitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else's case came to be decided.
Their case cannot be considered on the analogy of one where a law had been declared unconstitutional and void by a Court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void.
There is also an unexplained, inordinate delay in preferring this writ petition which is brought after almost an year after the first rejection. From the orders in M/s. Ripal Kumar & Co.'s case and M/s. H. Patel & Co.'s case it is seen that in the former case the application for revalidation and endorsement was made on 12-3-1984 within four months of the date of the redemption certificate dated 16-11-1983 and in the latter case the application for revalidation was filed on 20-6-1984 in about three months from the Redemption Certificate dated 9-3-1984."
3.7 Learned counsel for the JDA has submitted that the family settlement placed on record before the Tribunal could not have been looked into by the Tribunal as it was part of the appeal as preferred by Choturam earlier. However, it is submitted that if the family settlement is read, it shows that part of 37 Bigha and 16 Biswa land had been sold by unregistered sale deed to one Ranveer Singh son of Chanda Ram and therefore, the claim of the respondents ought not be entertained. It is further submitted that if at all claim was to be made, the respondents sought to have persuaded the contempt petition before Hon'ble the Supreme Court. Learned counsel further submitted that the decision of the Supreme Court cannot be treated to be a judgment in rem as the (Downloaded on 28/09/2020 at 08:55:54 PM) (14 of 27) [CW-9144/2018] earlier order passed by the Supreme Court dated 07/05/2015 makes it clear that directions were only for the appellants before the Supreme Court. The note-sheets of the JDA also could not have been relied upon for the purpose of deciding the appeal.
4. Per-contra, learned counsel appearing for the respondents, who have also submitted their written submissions, submitted that the respondents had placed on record the family settlement which authorized Choturam to take up cause of the entire family with regard to the land acquired by the JDA and for receiving 15 of the developed land. Learned counsel for the respondents submitted that case of the respondents cannot be distinguished with those who have been already allotted land in terms of the circular dated 13/12/2001. Learned counsel further submitted that the respondents had submitted their option alongwith Choturam on 15/01/2002. Choturam had been allotted the land after the supreme Court laid down the law holding the circular dated 13/12/2001 to be enforceable as against the JDA and the State. Further, the Supreme Court has also allowed the claim on the ground of discrimination as similarly situated other persons namely; Sedu and Nathu had been allotted 15% developed land in Vidhyadhar Nagar Scheme. Learned counsel has also pointed out that the Supreme Court has reached to the conclusion that the land in Lalchandpura and Anantpura is not developed land and therefore, the contention of JDA of having allotted 15% developed land to the respondents is contrary to the findings arrived at by the Supreme Court in its judgment in Lala Ram & Ors. Vs. Jaipur Development Authority & Anr. (supra). It is further stated that out of the total applicants who had applied for 15% developed land, some co-tenants accepted the compensation for (Downloaded on 28/09/2020 at 08:55:54 PM) (15 of 27) [CW-9144/2018] 17 Bigha 16 Biswa of land and therefore, only those, whose share came under 20 Bigha of the land, remained to be compensated by allotting 15% developed land. The respondents fall in that category who had not been compensated against the land acquired of 20 Bigha. Learned counsel further submitted that the respondents are co-tenants for Khasra Nos. 2, 8, 10 and 12 of village Boytawala and all the co-tenants by their family settlements nominated Choturam to contest their case before the Court of law and therefore, they cannot be discriminated on the basis of not named in the array of petitioners as the litigation was for collective chunk of land.
4.1 It is further stated on behalf of respondents that the Supreme Court in its judgment dated 01/12/2015 specifically held in Para 115 that the circular dated 13/12/2001 is a policy decision of the State and thus enforceable against State and in Para 120 of the judgment it has been held that the lands offered at Lalchandpura, Anantpura etc. are not fully developed and thus the allotment at places not fully developed will amount to breach of promise en-grafted in the policy dated 13?12/2001 and thus non- allotment of plots to respondents would be not only against the public policy but also would be against the judgment of Supreme Court.
4.2 It is further asserted on behalf of the respondents that it is an admitted fact that the respondents have not received any compensation under the policy of 13/12/2001 till date and the land which has been grabbed by the State is an infringement of constitutional as well as human rights of the citizens as held by Hon'ble Supreme Court in State of Haryana Vs. Mukesh Kumar (Downloaded on 28/09/2020 at 08:55:54 PM) (16 of 27) [CW-9144/2018] & Ors.: (2011) 10 SCC 404 wherein the following proposition has been made:-
33. The right to property is now considered to be not only constitutional or statutory right but also a human right. Human rights have already been considered in realm of individual rights such as right to health, right to livelihood, right to shelter and employment etc. But now human rights are gaining a multi faceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context.
34. The changing attitude of the English Courts is quite visible from the judgment of Beaulane Properties Ltd. v. Palmer (2005) 3 WLR 554. The Court here tried to read the human rights position in the context of adverse possession. But what is commendable is that the dimension of human rights have widened so much that now property dispute issues are also being raised within the contours of human rights. With the expanding jurisprudence of the European Courts of Human Rights, the Court has taken an unkind view to the concept of adverse possession."
4.3 The respondents have further asserted that the State is also bound by the principle of promissory estoppel and is bound by the policy decision dated 13/12/2001 under which the respondents alongwith co-tenant Choturam applied for compensation of land in lieu of land as held in Nestle India Ltd. and Monnet Ispat and Energy Limited Vs. Union of India & ors.: (2012) 11 SCC 1 in the terms as under:-
"182.1. Where one party has by his words or conduct made to the other clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is, in fact, so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be (Downloaded on 28/09/2020 at 08:55:54 PM) (17 of 27) [CW-9144/2018] inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or not.
182.2. The doctrine of promissory estoppel may be applied against the Government where the interest of justice, morality and common fairness dictate such a course. The doctrine is applicable against the State even in its governmental, public or sovereign capacity where it is necessary to prevent fraud or manifest injustice. However, the Government or even a private party under the doctrine of promissory estoppel cannot be asked to do an act prohibited in law. The nature and function which the Government discharges is not very relevant. The Government is subject to the rule of promissory estoppel and if the essential ingredients of this doctrine are satisfied, the Government can be compelled to carry out the promise made by it."
4.4 The respondents have further submitted that it is the doctrine of fairness and legitimate expectation of the citizens from State and the respondents are no exceptions as the legitimate expectation is defined in Halsbury's Laws of England, Fourth Edition, Volume 1(1) 151 as under:-
81. Legitimate expectations- A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice.
The existence of a legitimate expectation may have a number of different consequences; it may give locus standi to seek leave to apply for judicial review; it may mean that the authority ought not to act so as to defeat the expectation without some overriding reason of public policy to justify its doing so; or it may mean that, if the authority proposes to defeat a person's legitimate expectation, it must afford him an opportunity to make representations on the matter. The courts also distinguish, for example in licensing cases, between original applications, applications to (Downloaded on 28/09/2020 at 08:55:54 PM) (18 of 27) [CW-9144/2018] renew and revocations; a party who has been granted a licence may have a legitimate expectation that it will be renewed unless there is some good reason not to do so, and may therefore be entitled to greater procedural protection than a mere applicant for a grant."
4.5 It has also been averred by the respondents that the State cannot discriminate its citizens from one another and cannot interplay between administrative powers and discretion as held in Noida Entrepreneurs Association Vs. Noida and others:
(2011) 6 SCC 508 as under:-
"39. State actions are required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in conformity with some principle which meets the test of reason and relevance. Functioning of a "democratic form of Government demands equality and absence of arbitrariness and discrimination". The rule of law prohibits arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favoritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law.
40. The Public Trust Doctrine is a part of the law of the land. The doctrine has grown from Article 21 of the Constitution. In essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fides, as it would only be a case of colorable exercise of power. The Rule of Law is the foundation of a democratic society. (Vide: Erusian Equipment and Chemicals Ltd. v. State of West Bengal and Anr. Ramana Dayaram Shetty v. The International Airport Authority of India and Ors., Haji T.M. Hassan Rawther v. Kerala Financial Corporation, Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. and Ors., and M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Ors.).(Downloaded on 28/09/2020 at 08:55:54 PM)
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41. Power vested by the State in a Public Authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact-situation of a case. "Public Authorities cannot play fast and loose with the powers vested in them". A decision taken in arbitrary manner contradicts the principle of legitimate expectation. An Authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In this context, "in good faith" means "for legitimate reasons". It must be exercised bona fide for the purpose and for none other. (Vide: Commissioner of Police, Bombay v. Gordhandas Bhanji, Sirsi Municipality v. Ceceila Kom Francis Tellis, The State of Punjab and Anr. v. Gurdial Singh and Ors., The Collector (Distt. Magistrate) Allahabad and Anr. v. Raja Ram Jaiswal, Delhi Administration (Now NCT of Delhi) v. Manohar Lal, and N.D. Jayal and Anr. v.
Union of India and Ors.)"
4.6 The respondents have also asserted that the citizens of this country are protected by the Constitution of India and for enforcement of fundamental rights. In the case of Ningappa Thotappa Angadi, SLP No.11015/2017, decided on 13/12/2019, the Supreme Court has held that those in interest if did not claim their right whether they are entitled to be benefited as similarly situated, the Hon'ble Supreme Court following the judgment of Dheeraj Singh Vs. State of Haryana:
(2014) 14 SCC 127 has held that the similarly situated claimants are entitled to seek parity and thus claim the same amount of fair and just compensation as has been awarded to other land owners.
The judgment of Supreme Court like in the present case is the case of Lala Ram & Ors. Vs. Jaipur Development Authority & Anr. (supra) wherein a policy of Government is upheld and thus applicable to all the citizens benefited by the policy as held by the (Downloaded on 28/09/2020 at 08:55:54 PM) (20 of 27) [CW-9144/2018] Supreme Court in State of U.P. & Ors. Vs. Arvind Kumar Srivastava & Ors.: (2015) 1 SCC Para 11.
4.7 Learned counsel for the respondents also relied on a recent judgment in The Executive Engineer, Nimna Dudhna Project, Selu Vs. The State of Maharashtra & Ors.: 2020(3) SCC 255.
5. I have considered the submissions and perused the impugned order passed by the JDA Appellate Tribunal.
6. In the present writ petition, this Court is only required to examine whether the Tribunal could have granted relief to the respondents as prayed by them.
6.1 The arguments of learned counsel for the JDA that as Choturam was the only person who had taken up the matter to Supreme Court, the judgment passed by the Supreme Court would be treated as in personam and is not required to be examined with regard to all the other co-tenants. 6.2 In this regard, this Court finds that the Supreme Court was examining the validity and veracity of the Circular dated 13/12/2001 and has reached to the conclusion that a right is created in favour of the land holders under the Circular/Policy dated 13/12/2001 for allotment of 15% developed land in lieu of the land acquired in-stead of receiving cash amount. 6.3 This Court also notices that the Supreme Court in its judgment in Lala Ram & Ors. Vs. Jaipur Development Authority & Anr. (supra) has reached to the conclusion in Para 121 (supra) that the land offered at Lalchandpura and Anantpura cannot be said to be fully developed. Thus the offer made by the JDA to the respondents for allotment of land at Lalchandpura, Anantpura as well as Boytawala and Mansarampura in terms of the (Downloaded on 28/09/2020 at 08:55:54 PM) (21 of 27) [CW-9144/2018] Circular/Policy dated 13/12/2001 cannot be said to be a valid offer of allotment of 15% developed land as the land cannot be said to be developed. This Court is, therefore, unable to accept the contention of the JDA that the respondents have already been allotted developed land which they have by not objecting, accepted and would not be entitled to 15% developed land in Vidhyadhar Nagar at par with Lalaram, Chhoturam and others. 6.4 It also cannot be said that the respondents-co-tenants had acquiesced as this Court finds that respondents had submitted their option on 26/01/2002 along with Chhoturam before the stipulated dated i.e. 28/02/2002 and had also given their undertaking that they have not taken any compensation in lieu of surrendered land.
6.5 The JDA has also not been able to disprove the family settlement and affidavit filed by the respondents before the Tribunal which authorized Choturam to contest on their behalf in relation to the land acquired by the JDA which was one piece of land ad-measuring 37 Bigha 16 Biswa against which 15% developed land was required to be given by the JDA. 6.6 While it is settled that 15% developed land has to be given to each co-tenant according to his share of the total piece of land measuring 37 Bigha 16 Biswa and therefore, Choturam individually would only receive his part of the share of 15% developed land. Thus, as per the written submissions, the respondents would be entitled to 15% developed land which falls in their share out of the total 37 Bigha 16 Biswa which means only 15% developed land of 20 Bigha is required to be compensated. Out of 20 Bigha of land, the share of Choturam was compensated and therefore, the other co-tenants of Choturam would be entitled (Downloaded on 28/09/2020 at 08:55:54 PM) (22 of 27) [CW-9144/2018] to their share of 15%. This is also evident from the document Annexure-R/7 filed by the respondents as well as from the fact that Mula had received compensation for 17 Bigha and 16 Biswa. Thus, all persons, were held entitled to 15% developed land out of the total 37 Bigha 16 Biswa land and, therefore, the case of the respondents cannot be distinguished from that of Lalaram or Choturam. The Tribunal, therefore, cannot be said to have committed any error of law.
6.7 The contention of the petitioner-JDA is with regard to the delay in filing of an appeal before the Tribunal. This requires to be examined in the light of the judgment cited at Bar.
(i). In Baljeet Singh (Dead) Through Legal Representatives & Ors. Vs. State of Uttar Pradesh & Ors.:
(2019) 15 SCC 33, the individual land owners approached the Court against grant of lesser compensation after a period of 21 years when they came to know that another set of land owners belonging to another village had approached the High Court wherein the Court enhanced the compensation amount from Rs.30/- to Rs.65/- per square yard and the Supreme Court held as under:-
"7. The matter requires examination from another aspect, viz., laches and delay. It is a very recognised principle of jurisprudence that a right not exercised for a long time is nonexistent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases, courts have coined the doctrine of laches and delay as well as doctrine of acquiescence and nonsuited the litigants who approached the court belatedly without any justifiable explanation for bringing the action after unreasonable delay. In those cases, where the period of limitation is prescribed within which the action is to be brought before the court, if the action is not brought within that prescribed period, the aggrieved party loses remedy and cannot enforce (Downloaded on 28/09/2020 at 08:55:54 PM) (23 of 27) [CW-9144/2018] his legal right after the period of limitation is over, however, subject to the prayer for condonation of delay and if there is a justifiable explanation for bringing the action after the prescribed period of limitation is over and sufficient cause is shown, the court may condone the delay. Therefore, in a case where the period of limitation is prescribed and the action is not brought within the period of limitation and subsequently proceedings are initiated after the period of limitation along with the prayer for condonation of delay, in that case, the applicant has to make out a sufficient cause and justify the cause for delay with a proper explanation. It is not that in each and every case despite the sufficient cause is not shown and the delay is not properly explained, the court may condone the delay. To make out a case for condonation of delay, the applicant has to make out a sufficient cause/reason which prevented him in initiating the proceedings within the period of limitation. Otherwise, he will be accused of gross negligence. If the aggrieved party does not initiate the proceedings within the period of limitation without any sufficient cause, he can be denied the relief on the ground of unexplained laches and delay and on the presumption that such person has waived his right or acquiesced with the order. These principles are based on the principles relatable to sound public policy that if a person does not exercise his right for a long time then such right is non-existent."
(ii). In K. Subbarayudu Vs. LAO: (2017) 12 SCC 840, the Supreme Court condoned the delay taking into consideration facts of the case case. However, in Dhiraj Singh Vs. State of Haryana (2014) 14 SCC 127 the delay was not found to be material. In Baljeet Singh (Dead) Through Legal Representatives & Ors. Vs. State of Uttar Pradesh & Ors. (supra), the aforesaid judgments were distinguished as there was an unexplained delay of 21 years.
(iii). In Ningappa Thotappa Angadi (Dead) through LRs. Vs. The Special Land Acquisition Officer & Anr. (Civil (Downloaded on 28/09/2020 at 08:55:54 PM) (24 of 27) [CW-9144/2018] Appeal No.9415/2019), decided on 13/12/2019, three Judges Bench of the Supreme Court held as under:-
"10. It is undeniable that this Court vide judgment dated November 11, 2016 passed in C.A. No. 2927/2010 (Ningappa Thotappa Angadi v. Special Land Acquisition Officer & Anr.) has set aside the order of the High Court and restored the compensation as was awarded by the Reference Court. In the cited case, this Court held as follows:
"We have heard the learned counsel for the parties to some length and carefully perused the material on record. We are of the considered opinion that the impugned judgment and order of the High Court deserves to be set aside and judgment and order passed by the Reference Court restored. We say so because, this Court has in a similar appeal directed against the very same order set aside the impugned judgment and restored the enhancement granted by the Reference Court. We see no reason to take a different view in the present case. We, accordingly, allow this appeal and while setting aside the impugned judgment insofar as the same relates to the appellant, restore the judgment and order passed by the Reference Court. The parties shall, however, bear their own costs."
11. The appellant(s) are also similarly placed claimants. They are, thus, entitled to seek parity and claim the same amount of fair and just compensation as has been awarded to other land owners. The appellant(s) are, however, not entitled to seek interest for the period for which they did not approach this Court."
6.8 The Supreme Court in Lala Ram & Ors. Vs. Jaipur Development Authority & Anr.(supra), has set aside the said conclusions of the High Court and has held the Circular dated 13/12/2001 to be enforceable whereafter appeal has been (Downloaded on 28/09/2020 at 08:55:54 PM) (25 of 27) [CW-9144/2018] preferred before the JDA Appellate Tribunal that has enforced of the rights under Circular dated 13/12/2001. 6.9 Keeping in view the aforesaid facts, the claim of the respondents cannot be said to be either belated nor it can be said to be barred by principle of 'acquiescence' and 'estoppel' as the allotted land at Lalchandpura cannot be said to be developed land and is not in terms of circular dated 13.12.2001. 6.10 The judgments cited by learned counsel for the petitioner in Ambey Devi (Smt.) Vs. State of Bihar & Anr.: 1996(9) SCC 84 (supra), will have no application to the facts of the present case as in that case, the co-sharers did not seek reference for enhancement of compensation whereas in the present case, all the 13 Khatedars of Khasra No.2, 8, 10 and 12 who are co-tenants and had applied for seeking 15% developed plots under Circular dated 13/12/2001 have not been given developed plots. 6.11 The law laid down by the Apex Court in the judgment cited by learned counsel for the petitioner in Popat Bahiru Govardhane & Ors. Vs. Special Land Acquisition Officer & Anr.: (2013) 10 SCC 765 was with reference to the question of limitation being applied for determination of compensation under Section 28A) of the Land Acquisition Act. The question of limitation for determination does not arise in the present case and it cannot be said that the respondents are fence-sitter as they have already applied and were very much aware of their rights. They had also entered into an agreement to allow Choturam to take up cause of the co-sharers and co-tenants in relation to the land which was commonly held by them. The contentions of the petitioners are therefore without merit.
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(26 of 27) [CW-9144/2018] 6.12 All the more, this Court also finds that the Supreme Court in Lala Ram & Ors. Vs. Jaipur Development Authority & Anr. (supra) reached to the conclusion that the JDA has committed an act of discrimination by granting allotment to two other persons at Vidhyadhar Nagar while denying 15% developed land to the co- tenants Lalaram and Choturam etc.. Thus, on the ground of discrimination, the judgment was passed by the Supreme Court. In the circumstances, this Court would not discriminate between the co-sharers and co-tenants who would be also entitled to the same relief as already granted to Lalaram and Choturam etc. 6.13 The second round of litigation which has been initiated by the JDA again relating to the acquisition proceedings undertaken in the year 1988 is therefore, deprecated. The order passed by the learned JDA Appellate Tribunal dated 17/01/2018 does not warrant any interference.
6.14.This Court is conscious to its limitations in examining a judgment passed by a Tribunal constituted under the Act. This Court does not sit in appeal and therefore, would not be required to form an opinion different from the findings arrived at by the Tribunal on factual aspects. Of-course, if this Court finds that any order passed by a Tribunal is based on adverse findings or where material evidence has been ignored to be noticed or that there has been a jurisdictional error, the powers under Section 226 & 227 of the Constitution of India can be invoked. See also 1983 (4) SCC 566 Mohd. Yunus vs Mohd. Mustaqim and 22 SCC OnLine SC 540 Mohd. Inam vs. Sanjay Kumar Singhal & Ors.
7. In the result, the writ petition is found to be without force and is accordingly dismissed.
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8. The respondents would be entitled to the relief as granted by the learned JDA Appellate Tribunal. The petitioner-JDA is directed to allot 15% developed land to the respondents in terms of the judgment passed in Lala Ram & Ors. Vs. Jaipur Development Authority & Anr.(supra) by providing plots at Vidhyadhar Nagar, Gokul Nagar, Truck Terminal and Vaishali Nagar Schemes. No costs.
9. All pending applications stand disposed of.
(SANJEEV PRAKASH SHARMA),J Raghu/ (Downloaded on 28/09/2020 at 08:55:54 PM) Powered by TCPDF (www.tcpdf.org)