Rajasthan High Court - Jaipur
Taruchaya Nagar Ramaram Vikas vs State Of Raj & Ors on 10 December, 2012
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.695/2004 With Stay Application No.632/2004 Taruchaya Nagar Ramaram Vikas Samiti Jaipur and Another Vs. The State of Rajasthan and Others Date of Order ::: 10.12.2012 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Bajrang Lal Sharma, Senior Advocate, with Shri Babu Lal Sharma, for petitioners Shri Amit Kuri, counsel for respondents #### //Reportable// By the Court:-
This writ petition has been filed by petitioner Taruchaya Nagar Ramaram Vikas Samiti Jaipur through its Secretary Dr. Kavita Sharma, inter alia with prayer that respondents be directed to regularize their possession of land/plots in question belongs to the members of the petitioner Taruchaya Nagar Ramaram Vikas Samiti Jaipur (hereinafter shall be referred to as 'the petitioner samiti'), and further the respondents be directed to give all benefits to the members of the petitioner Samiti as per the circulars dated 18.02.1994 and 10.07.1999. The petitioner Samiti is shown to have been registered as a charitable society under the Rajasthan Societies Registration Act, 1958. The petitioner Samiti has been formed by the members of Subhash Sindhi Cooperative Housing Society Limited, Jaipur, to safeguard the interest of its members and for the development of the colony. All members of petitioner Samiti were allotted plots in the scheme known as Taruchaya Nagar by Subhash Sindhi Cooperative Housing Society Limited (hereinafter shall be referred to as 'the housing society').
Dispute herein pertains to the land, which was acquired for industrial purpose by the State Government pursuant to Government notification issued under Section 4 of the Land Acquisition Act, 1894 (for short, 'the Act of 1894'), dated 04.02.1991. Further notification under Section 6 of the Act of 1894, was issued on 27.03.1992 and award of acquisition was passed on 18.09.1994 and 08.11.1994 for acquisition of the land. Upon the challenge to the aforesaid acquisition notification made by the land owners, the Single Bench of this court vide judgment dated 25.01.2007 in Writ Petition No.3732/1996 Ratan Kumar Sharma Vs. The State of Rajasthan and Others, and Writ Petition No.3394/1996 Mahesh Sharma and Others Vs. The State of Rajasthan and Others, upheld the acquisition and dismissed the writ petitions. It was thereafter that Special Appeals No.342/2007 and 343/2007 were filed challenging the aforesaid judgment of the Single Bench. The Division Bench vide judgment dated 11.08.2011 dismissed the appeals. An argument was raised before the Division Bench on behalf of the plot holders that even after upholding the acquisition, it should be left open to the State to regularize certain plots in favour of plot holders. The Division Bench after considering the said argument, rejected the same observing that we have no hesitation in rejecting the submission. The government cannot enter into such misadventure. Original writ petitioners and some of plot holders then filed Review Petitions before the Division Bench contending that the question of regularization may be left open. The review petitions were dismissed vide common judgment dated 05.01.2012. It was thereafter that the judgments/orders of the division bench in Special Appeals and Review Petitions were subjected to challenge before the Supreme Court by filing Petitions for Special Leave to Appeal (Civil) CC 8249-8250/2012. The Supreme Court, vide judgment dated 09.05.2012 dismissed the Special Leave to Appeals.
Shri Bajrang Lal Sharma, learned senior counsel appearing on behalf of petitioner samiti, argued that the members of the petitioner samiti holds their plots in the aforesaid scheme existing in Khasra nos.232, 243/302, 233/301, 244, 245 and 246 measuring 61 bigha and 12 biswa of the land. The scheme consists of about 300 plots. The Central Government as well as the State Government have been encouraging formation of housing cooperative societies with a view to providing land/houses to the needy persons at the reasonable rates. The State Government took a policy decision way back in the year 1969 to convert the agriculture land for residential purposes. The State Government in 1981 frame Rules known as Rajasthan Land Reforms (Allotment, Conversion and Regularization of the Agricultural Land for Residential Purposes in Urban Areas) Rules, 1981 (for short, 'the Rules of 1981'). The Government then in order to clarify its intention for speedy conversion and regularization and for finalization of the cases in this behalf, issued a circular on 01.03.1982 providing that land acquisition proceedings in regard to land indicated in the said circular, shall stand withdrawn and possession of such citizens, who have either constructed or are in process of constructing the houses prior to 21.08.1981, shall be regularized and the land shall be deacquired. The housing society, in present case, purchased the land in dispute vide agreement to sell dated 15.04.1975 from its owners. It deposited a sum of Rs.3,44,590.76 as conversion charges with Additional Collector (South), Agricultural Land Conversion, Jaipur, much before 31.05.1982, who, vide letter dated 13.08.1986, forwarded the statement of deposited amount to the Senior Town Planner, Jaipur Development Authority, Jaipur. Development charges of Rs.5,77,143.33 were also deposited by the members of the petitioner samiti with the Jaipur development Authority, on various dates upto 01.09.1995. The State Government vide communication circulated by Deputy Secretary, Urban Development Housing Department on 31.12.1983, conveyed to RIICO that it was not suitable to set up an industrial area near village Durgapura. Building Plan Committee of the Jaipur Development Authority, in its meeting held on 14.06.1989 recommended approval of the scheme no.23 of the housing society, to Collector, Jaipur.
Shri Bajrang Lal Sharma, learned senior counsel, further argued that the judgment of the division bench of this court, referred to above, is per incurium and therefore does not bind the single bench of this court in this writ petition not to entertain and decide the entitlement of the petitioner Samiti and its members to regularization of their possession of the plots allotted by the housing society. Learned senior counsel submitted that this question was neither directly nor indirectly involved in the writ petition before the division bench which was concerned only with the question of validity of the award of acquisition and/or the notifications issued under Sections 4 and 6 of the Act of 1894 of the disputed plots and the award of acquisition passed thereabout. Learned counsel in support of his arguments, relied on the judgment of he Supreme Court in A.R. Antulay Vs. R.S. Nayak and Another (1988) 2 SCC 602, and argued that the Supreme Court therein held that per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases, some part of the decision or some step in the reasoning on which it is based, is found, on that account, to be demonstrably wrong. If a decision has been given per incuriam the court can ignore it. Learned senior counsel therefore argued that the single bench in the present writ petition can ignore the adverse observations made by the division bench with regard to rights of members of the petitioner samiti to claim regularization of their plots. Learned senior counsel, in this connection, cited another judgment of the Supreme Court in Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. and Others (1985) 1 SCC 260, and argued that better wisdom of the court below must yield to the higher wisdom of the court above. Learned counsel has relied on yet another judgment of the division bench of this court in M/s. Diamond and Gem Development Corporation and 2 Others Vs. The State of Rajasthan and Another 2003 (1) WLC (Raj.) 112, to argue that in that case, Subhash Sindhi Cooperative Housing Society Limited, Jaipur had filed a writ petition for release of 17 bigha 9 biswa of land of Khasra Nos.226 to 230 adjoining the land in dispute in present case, with the alternative prayer that the State Government be directed to allot suitable land other than the said land out of 105 acres of land allotted to M/s Diamond and Gem Development Corporation by RIICO. The land holders challenged the acquisition proceedings reclaiming aforesaid land measuring 17 bigha 9 biswa of Khasra nos.226 to 230. Four writ petitions were filed before this court at its principal seat Jodhpur; one by land holders and three by 34 members of the housing society. The division bench of this court vide judgment dated 31.08.1990 dismissed all the writ petitions on the ground of delay and laches. Four SLPs were filed thereagainst, which were dismissed by the Supreme Court observing that dismissal of SLP would not operate res judicata if the society of which the petitioners are members, approaches the court for release of their land on the ground that the land claimed by similarly situated individuals, if any, were released from acquisition. It was argued by learned senior counsel that even after dismissal of SLP by the Supreme Court, the writ petition by the housing society was entertained by this court and decided on merits. He therefore sought to canvass that dismissal of SLP even in present case would not be res judicata for entertaining and deciding this writ petition on merits. Reliance was also placed on a judgment of this court in Jagdish Chandra Kanwat Vs. State of Rajasthan and Others, S.B. Civil Writ Petition No.5389/1990, decided vide order dated 14.05.1992.
Per contra, Shri Amit Kuri, learned counsel appearing on behalf of the respondents, opposed the writ petition and submitted that the issue in so far as entitlement of the members of the petitioner samiti to claim regularization of their plots is concerned, stands concluded against them by the division bench judgment of this court in Special Appeal No.342/2007 dated 11.08.2011, supra, where some of the plot holders were also represented before the division bench, on whose behalf an argument was raised that the question of their right to claim regularization of the plots should be left open. The argument was considered and rejected by the division bench by observing that the State Government cannot enter into such misadventure. This clearly indicates the intention of the division bench that regularization in any case cannot be made. It was thereafter that some of the plot holders filed review petitions, which were also dismissed by the division bench vide judgment dated 05.01.2012. Against both the judgments in Special Appeals and Review Petitions, petitions for Special Leave to Appeals were filed, which too were dismissed by the Supreme Court vide order dated 09.05.2012. It was argued that no such liberty, as was granted by the Supreme Court in the case cited by the learned senior counsel, has been given by the Supreme Court in the present case in favour of the plot holders. Issue therefore stands concluded against them. It is prayed that writ petition be dismissed.
I have considered rival submissions and perused the material on record. I am unable to accept the submission that issue with regard to rights of the members of the petitioner samiti to claim regularization of the plots in their possession allotted to them by the housing society was neither directly nor indirectly involved and therefore, observations made by the division bench are per incuriam. True it is, what was under challenge before the single bench in the writ petition filed by Ratan Kumar Sharma and Mahesh Sharma and Others were notifications under Sections 4 and 6 of the Act of 1894 as also the final award passed on that basis. Once the award has been upheld, the petitioner samiti cannot be held to have acquired any right on the strength of agreement to sell alone, which did not ultimately culminate in registration of sale deed by land holders in favour of the petitioner society and which sale deed in any case could not be registered because the land stood acquired. When therefore a specific argument was raised on behalf of the plot holders that ...it may be left open to the government to regularize certain plots in favour of the appellants, observation of the division bench in rejecting such argument that We have no hesitation in rejecting the submission. The government cannot enter into such misadventure., cannot be said to be per incuriam. The Constitution Bench judgment of the Supreme Court in A.R. Antulay, supra, possibly cannot extend any help to the petitioner because what was observed therein was that per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, but in the present case neither any inconsistent provision has been cited nor any such contrary binding authority has been shown to justify attribution of ignorance or forgetfulness to the division bench. To say the least, argument is hardly palatable to logic or reason. The argument of per incuriam cannot be upheld only on the strength of certain government circulars. Reliance in this connection may be placed on the decision of the Supreme Court in CCE v. Gurukripa Resins (P) Ltd. - (2011) 13 SCC 180, wherein it was held that such circulars may be binding on the authorities under the respective statute. When the Supreme Court and the High Court have declared the law on the question arising for their consideration, it would not be appropriate for the courts or the tribunals in subsequent litigation to direct that the government circulars should be given effect to over the view expressed in the decision of the Supreme Court or of a High Court.
The Supreme Court in State of M.P. Vs Narmada Bachao Andolan - (2011) 7 SCC 639, observed that 'per incuriam are those decision which are given in ignorance or forgetfulness of some decisions or authority binding on the court concerned or statement of law because of inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. It cannot be said that the aforesaid observation with regard to which objection is being raised by the petitioners, was made without application of mind or without any reason, so as to be described as demonstrably wrong.
The judgment of the division bench in M/s. Diamond and Gem Development Corporation, supra, arose out of certain other khasras of the land, though which land also was claimed by Subhash Sindhi Cooperative Housing Society, on the strength of certain agreement to sell. The writ petitions filed by the land owners was dismissed in that case where against Special Leave to Appeals were filed. In that case, there was specific order by the Supreme Court that dismissal of the petitions for Special Leave to Appeal would not operate as a res judicata if the society, of which the petitioners are members, approaches the court for relief on the ground that the land claimed by similarly situated individuals and institutions, if any, were released from acquisition. In the present case, the division bench judgment, both in special appeals and review petitions, were subjected to challenged before the Supreme Court and the Supreme Court vide order dated 09.05.2012 dismissed the same in the following manner:-
Heard Mr. Pallav Sishodia, learned senior counsel for the petitioners.
Delay condoned.
Special leave petitions are devoid of any substance and they are dismissed accordingly.
Evidently no such liberty similar to the one in the cited case, was granted to the members of the petitioner-samiti or for that matter, the members of housing society. It needs be mentioned that hierarchal system of the courts, when higher court has ruled on a particular issue in favour of one and against another party, if the matter is brought before a court in lower tier, as rightly observed by the Supreme Court in Assistant Collector of Central Excise Vs. Dunlop India Limited, supra, the better wisdom of the court below must yield to the higher wisdom of the Court above. since that is the strength of the hierarchal judicial system.
In view of discussion made above, I do not find any merit in the writ petition and the same is accordingly dismissed with no order as to costs. Consequent upon dismissal of writ petition, stay application, filed therewith, does not survive and same is also dismissed.
(Mohammad Rafiq) J.
//Jaiman// All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW