Jaipur Development
Authority Vs. Mahesh Sharma & ANR. [2010] INSC 756 (21 September 2010)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8590 OF 2003 Jaipur
Development Authority .......
Appellant Versus
Mahesh Sharma & Anr.
......Respondents
With CIVIL APPEAL NO. 9158 OF 2003 With CIVIL APPEAL NO. 9161 OF 2003 With
CIVIL APPEAL NO. 9162 OF 2003
Dr. Mukundakam
Sharma, J.
CIVIL APPEAL NO. 8590
OF 2003
1.
We
propose to dispose of these appeals together since the issues in these matters
are interconnected.
2.
A
narration of the facts leading to the filing of the present appeal would
indicate as to how money and land of the Government has been squandered away by
some of the Government officials of Jaipur by joining hand with certain private
parties. The facts of the present case would also reflect how unscrupulous and
adventurous people in connivance with bureaucrats and persons in power have not
only sought to give undue advantage of giving compensation for land but also
sought to grab valuable lands causing willful loss to the Government exchequer
and gain unto themselves. Facts of the present case appropriately reflects the
earlier observations of this court in Secy., Jaipur Development Authority v.
Daulat Mal Jain, reported at (1997) 1 SCC 35 wherein it was stated that public
policy cannot be a camouflage for abuse of power and trust entrusted with a
public authority or public servant for the performance of public duty and an
illegal allotment of land founded upon ultra vires and 2 illegal policy of
allotment made to some other persons wrongly would not form a legal premise to
ensure it to the respondent or to repeat or perpetuate such illegal order nor
would it be legalized.
3.
These
points find close imitation in the facts of this case, which we may briefly
narrate here. This appeal arises out of an order passed by the Rajasthan High
Court in a contempt petition filed against the appellant, Jaipur Development
Authority, for failure to comply with an order of the High Court of Rajasthan
passed in 1984 to award the respondent not only compensation for the land
acquired but also directing for allotment of a plot of developed land
admeasuring 2500 sq. yards. On 18.02.1952, the Rajasthan Land Reforms and
Resumption of Jagir Act (hereinafter "Jagir Act" for short) came into
force whereby all Jagir lands from the commencement of the Act was made liable
to payment of land revenue to the Government. With the coming into force of the
aforesaid Act, land measuring 29 Bighas and 17 Biswas under the occupation of
Idol of which Mahant Ram Narain was the Manager, being the sole priest of the
temple, also vested with the Government. The said land measuring 29 Bighas and
17 Biswas was resumed by the Government effective from 01.08.1960. A
Notification, however, was issued under Section 4(1) of the Rajasthan Land
Acquisition Act (hereinafter "the Act" for short), which was
published in the Rajasthan Gazatte on 09.06.1960, to acquire 552 Bighas and 8
Biswas of land in village Bhojpura and Chak Sudershanpura Tehsil Jaipur. The
land which was sought to be acquired under this Notification also included the
aforesaid 29 Bighas and 17 Biswas of land, which is included in Khasra Nos.
257, 258, and 259, which was popularly known as Lal Kothi scheme, which is
adjacent to Jaipur city for a planned development of the city. On 03.05.1961, a
Notification under Section 6 of the Rajasthan Land Acquisition Act came to be
published in the Rajasthan Gazette for the same area of land. The sole priest
of the temple submitted a statement of his claim on 16.09.1965 for payment of
compensation by treating his Maufi rental income of Rs. 1,000/- before the
Jagir Commissioner. An order was passed on 17.10.1968 by 4 the Jagir Commissioner
sanctioning the payment of a sum of Rs. 2250/- as interim compensation and
rehabilitation grant payable to the Jagirdar Mahant Ram Narain under Section 36
of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952. The aforesaid
compensation was received by Jagirdar Mahant Ram Narain on 29.10.1968 as
interim compensation under the Jagir Act.
4.
Despite
the aforesaid fact of vesting of the land on the State Government by virtue of
the provisions of Jagir Act and despite the payment of interim compensation
under Jagir Act, an Award was passed by the Land Acquisition Officer on
29.04.1971, determining a sum of Rs. 2,62,680/- as compensation in lieu of the
acquisition of the land. Surprisingly and rather peculiarly, the Land
Acquisition Officer apart from determining the compensation for the land, also
recommended allotment of developed plot of land measuring 2,500 sq. yds. to be
given to the respondent. The Government of Rajasthan taking the stand that the
aforesaid issuance of 5 notifications under Sections 4 and 6 of the Act as
also passing of the Award on 29.04.1971 was a nullity, issued an order dated
26.09.1973 deacquiring the land under Section 48 of the Rajasthan Land
Acquisition Act stating therein that the possession of the land in question
stood resumed on the day under the Jagir Act. On 27.11.1973, the Land
Acquisition Officer moved an application for withdrawal of reference on the
ground that the land already stood deacquired, consequent upon which the
learned Civil Judge, Jaipur City, dismissed the reference on 14.05.1974 as
withdrawn. The respondent seems to have been aggrieved by the aforesaid order
and accordingly preferred an application on 06.09.1974 before the Land
Acquisition Officer for payment of compensation amount, which was rejected by
the Land Acquisition Officer holding inter alia that since the land stood
resumed under the Jagir Act there is no question of payment of compensation.
5.
The
Government officials adopted the stand that the land was Government land after
its vesting with the Government under the provisions of the Jagir Act. The said
position was also fortified by entry made in the Memo of Entries (Jamabandi) of
village Bhojpura Tehsil, Jaipur District, Jaipur, wherein the entire land
measuring 29 Bighas and 17 Biswas was shown with Khasra numbers as government
land and the said land stood as Government land for the period between Samvat
2015 to 2034 which is years 1958 to 1977. The aforesaid jamabandi entries,
therefore, clearly indicate the land in the revenue record was recorded as
Government land during the period from 1958 to 1977. But despite the said fact,
a Notification under Section 4(1) of the Act was issued for acquiring the land
by the State Government followed by a Notification under Section 6 of the Act.
Further, not only did
an award come to be passed on 29.04.1971 by the Land Acquisition Officer
determining a sum of Rs. 2,62,680/- as compensation in lieu of the acquired
land, but the Land Acquisition Officer also recommended the allotment of additional
land measuring 2500 sq. yds. of developed land to be given to the respondent.
6.
The
respondent being aggrieved by the issuance of the aforesaid Notification by the
Government under Section 48 of the Rajasthan Land Acquisition Act preferred a writ
petition before the Rajasthan High Court praying for the quashing and setting
aside of the Notification dated 26.09.1973 with a further prayer to direct the
appellant herein to make immediate payment of an amount of Rs. 2,62,680/-
awarded under the award dated 29.04.1971 and also to allot the land measuring
2500 sq. yds in compliance of the award. The said writ petition was heard by
the learned single Judge of the High Court, who allowed the writ petition filed
by Mahant Ram Narain and pursued by his son, the present respondent No. 1 as
Ram Narain himself expired before the judgment was pronounced. The High Court
while allowing the writ petition quashed the Notification issued by the State
Government under Section 48 of the Rajasthan Land Acquisition Act with a
further direction to the State Government to deposit the compensation amount in
the court of the Civil Judge, 8 Jaipur within three months and also to allot a
plot of land of 2500 sq. yds.
7.
Aggrieved
by the aforesaid Judgment and Order passed by the learned Single Judge, the
appellant herein preferred a DB Civil Special Appeal before the Division Bench
of the High Court of Rajasthan contending inter alia that the land acquisition
proceedings were void ab initio as the land had already vested in the State and
therefore, no benefit could be granted to the respondent under illegal and void
proceedings, particularly when the entire land acquisition proceedings was a
nullity. It was also contended before the Division Bench of the High Court that
the predecessor- in-interest of the respondent had accepted the interim
compensation under the Jagir Act, which indicates that he explicitly admitted
resumption of the land, and therefore, there was no occasion to take possession
under the Land Acquisition Act. The Division Bench of the High Court admitted
the appeal filed by the appellant herein but ultimately dismissed the said
appeal on 06.02.1996 on the ground that the State had failed to take necessary
steps.
On 17.04.2002, an
application for recalling the order dated 06.02.1996 was filed and the High
Court dismissed the matter holding inter alia that the application was pending
for last six years. As against the aforesaid order a special leave to appeal
petition was filed in this Court, which was also dismissed on 11.10.2002.
8.
It
appears thereafter the respondent preferred a fresh petition before the High
Court under Article 226 of the Constitution on 22.07.2002 for contempt of court
in view of the alleged non-compliance of the order passed by the High Court. On
27.11.2002, the Division Bench of the High Court took up the aforesaid writ
petition and rejected the same.
9.
The
contention of the appellant before the High Court was that the order dated
27.11.2002 was non est and a nullity.
Before the High Court
it was also stated by the appellant that not only was the initiation of the
acquisition proceedings by issuance of notifications under Sections 4(1) and 6
of the Land Acquisition Act a nullity, but even 10 the passing of the award
was also a nullity. In support of the contentions, reliance was placed on the
decisions of this Court in Jaipur Development Authority v. Radhey Shyam,
reported at (1994) 4 SCC 370 and Secretary, Jaipur Development Authority v.
Daulat Mal Jain, reported at (1997) 1 SCC 35, as also the case of Narpat Singh
& others vs. Jaipur Development Authority & Another reported at (2002)
4 SCC 666.
10.
The
Division Bench, however, by the impugned order dated 27.11.2002, held that the
Division Bench cannot enter into a controversy so as to find out whether the
order dated 17.05.1984 is a nullity once the order dated 17.05.1984 has
attained its finality upto the Supreme Court, and therefore, a direction was
issued to the appellant herein to carry out the order. Being aggrieved by the aforesaid
order dated 27.11.2002 passed by the Division Bench of the High Court, the
appellant preferred the present Special Leave Petition in which initially a
notice was issued and an interim order was passed staying the operation of the
impugned order. However, an order 11 came to be passed on 03.11.2003 by this
Court granting leave and also making interim order absolute till the disposal
of the appeal. It was, however, ordered by this Court in the same order dated
03.11.2003 that the amount awarded would be deposited before the Registrar of
the High Court within a period of four weeks and that the same would be
permitted to be withdrawn by the respondents on furnishing security to the
satisfaction of the Registrar of the High court. Now the appeal being ready in
all respects was listed for hearing and in the light of the aforesaid
background facts we heard the learned counsel appearing for the appellant in
this appeal but none appeared for the respondent despite the matter being heard
on several dates.
11.
Mr.
S.K. Bhattacharya, counsel appearing for the appellant submitted before us that
the land measuring 29 Bighas and 17 Biswas having been vested with the
Government, and with the legislation and enforcement of the Jagir Act the said
land having been resumed, and there being a case of resumption of the entire
land by the Government effective from 01.08.1960, there could not have been any
notification under Section 4(1) and 6 of the Land Acquisition Act seeking to
acquire land belong to the Government itself, and therefore, entire initiation
of the proceedings under the Land Acquisition Act and passing of the award
under the Land Acquisition Act was a nullity. It was also submitted by him that
the land in question belonged to the Idol and not to Ram Narain, who was only a
Mahant being the sole priest of the temple and therefore passing of the Award
of compensation in favour of Ram Narain, the predecessor-in-interest of the
respondent was not only illegal, but also a nullity, and therefore, even on
that ground the award is non est in the eyes of law. His further submission was
that in any case the order passed by the Land Acquisition Officer directing
allotment of land measuring 2500 sq. yds. in favour of Ram Narain was void ab
initio and that the aforesaid directions of the Land Acquisition Officer were
contrary to and unknown to the law of the land. He also drew our attention to
an agreement dated 21.04.2001, copy of which is placed on record, whereby the
respondent no. 1 herein had entered 13 into an agreement for the development
of land measuring 3 Bighas and 15 Biswas covered by Khasra No. 130 with Messrs
Ganpati Royal Estate, who is described as partner/purchaser. In the said
agreement, it was stated by the respondent no. 1 that the aforesaid property is
entered in the revenue record and papers in the name of father of first party
Shri Ram Narayan Sharma and consequent upon his death, the owner of the
aforesaid land, proprietor is first party and land owner. It was further stated
in the said agreement that the aforesaid land is under acquisition proceeding
initiated by the Government of Rajasthan but no award or compensation has yet
been paid to the land owner - respondent for which litigation is pending, and
therefore, the agreement is being executed for development of the aforesaid
land under the said agreement.
12.
Our
attention was also drawn by the learned counsel appearing for the appellant to
a Circular dated 13.12.1991, which was issued by the Deputy Secretary, Admn.,
Government of Rajasthan, Jaipur to the Deputy 14 Director, Bikaner, Settlement
Commissioner, Jaipur. The subject of the said Circular described the Entry of
the name of Pujari along with Mandir Dev Statue for khatedari of land. In the
said Circular, it was stated that the question has been raised time and again
that when such Mandirs which have their personal lands, whether the name of the
Pujari should be entered in the revenue records (Jamabandi) along with the Idol
(Dev Statue). In paragraph 3 of the said Circular, it was also clarified that
the right position is that the name of the Pujari or Shiwayat should not be
mentioned in the Jamabandi.
13.
In
view of the aforesaid position and for the protection of the Dev statue and in
order to check the unwarranted litigation relating to the land of the Dev
statue, it was decided that in the Jamabandi to be prepared by the Revenue
Department or by the Settlement Department in future, the name of Pujari will
not be mentioned along with the name of the Dev statue. Another direction which
was issued was that in Jamabandis which have been prepared and presently in
force, the name of Pujari 15 wherever it occurs alongwith name of Dev statue
be struck off and be mentioned in the aforesaid register. It was also informed
under the aforesaid Circular that the aforesaid directions shall come into
force with immediate effect.
14.
During
the course of his arguments, the learned counsel appearing for the appellant
relied upon the copy of Jamabandi for the period between 1958 to 1977, wherein
the entire 29 Bighas and 17 Biswas of land was shown to have been registered as
Government land in the Jamabandi.
15.
The
facts of the present case, which we have delineated at length, clearly disclose
that the entire land of 29 Bighas and 17 Biswas stood in the name of the
Government and has been shown as Government land in the Jamabandi for the
period between 1958 to 1977. That entry came to be entered into in view of the
promulgation of the Jagir Act w.e.f. 18.02.1952 and was fortified by the
resumption of the entire land effective from 01.08.1960. The order of the Jagir
Commissioner dated 17.10.1968 is also placed on record. A bare perusal of the
said order proves and establishes that a sum of Rs. 2250/- was sanctioned as
interim compensation and rehabilitation grant payable to the Jagirdar Ram
Narain under Section 36 of the Rajasthan Land Reforms and Resumption of Jagirs
Act, 1952. There could have been a mistake in describing Ram Narain as Jagirdar
as the land belonged to the Idol/Dev statue and Ram Narain being only a priest
of the said temple. Such description of Ram Narain as Jagirdar was also not in
tune with the circular dated 13.12.1991. This fact gets established even by the
application filed before the Jagir Commissioner by showing Ram Narain as the
Pujari and Manager and showing the Idol as the Jagirdar.
In paragraph 1 of the
said application filed by the predecessor-in-interest of respondent no. 1
herein, it was clearly stated that there is a temple with an Idol of Lord
Hanuman Ji in which Ram Narain is the only Pujari and Manager. He had stated in
the said application that with the vesting and resumption of the land, he is
entitled to get compensation under Section 22 of the Land Reforms and
Resumption of Jagir Act, which should be paid to him.
17 Pursuant to the
same, order for interim compensation was made by the Jagir Commissioner,
Rajasthan. The predecessor-in-interest of respondent no. 1 received the interim
compensation thereunder without any protest and demur. Consequently, he was, at
the most, entitled to receive balance compensation under the Jagir Act.
16.
Despite
vesting of the land with the Government under the provisions of the Jagir Act
and also resumption of the said land measuring 29 Bighas and 17 Biswas by the
Government, a notification proposing acquisition of the said land was issued by
the Government under Section 4(1) of the Act followed by the notification under
Section 6 of the Act. The Land Acquisition Officer even proceeded to pass an
award in respect of the land, which already belonged to the Government, by
determining compensation, and proceeded further in directing retention of
interim compensation paid under Jagir Act and also by directing the allotment
of a plot of developed land measuring 2500 sq. yds. Although there was no law
supporting such action, the said action on the part of the 18 Land Acquisition
Officer directing the payment of compensation and also allotting a plot of land
in favour of the respondent indicates as to how Government officials, who are
protectors of the Government property, abuse their power and trust under the
camouflage of performance of their public duty. The respondent no. 1 entering
into a private agreement describing himself as the owner of the land is in
itself a disclosure as to how property belonging to an Idol is being frittered
away by a trustee who is a Manager for promoting his self interest and self
gain. If on the one hand, a Government officer of the status of Land
Acquisition Officer, who is entrusted with a public authority while performing
a public duty has sought to make an illegal acquisition of land and also making
illegal allotment of land, on the other hand it is a trustee and the Manager
who has abused his position and has, following the trust reposed on him, sought
to fritter away a property belonging to the Idol.
17.
Unfortunately,
the learned Single Judge while hearing the first writ petition completely
ignored the aforesaid position 19 and instead issued a direction for not only
for retaining payment of the interim compensation under the Jagir Act but also
ordered for payment of compensation under the Land Acquisition Act along with
interest, but also upheld the order of allotment of additional land. The
Division Bench of the High Court dismissed the appeal filed therefrom on the
ground that the appellant has failed to take appropriate steps. The special
leave petition by this Court was dismissed for non-prosecution as the appellant
failed to take steps in the appeal. In the subsequent writ petition, the
Division Bench of the High Court by the impugned order directed for payment of
compensation, totally ignoring the contention of the appellant that such an
order is a nullity in the eyes of law which submission was enforced by at least
three decisions of this Court.
18.
In
Jaipur Development Authority v. Radhey Shyam, reported at (1994) 4 SCC 370, at
page 372, it was held by this Court that the power expressly given to the Land
Acquisition Officer is only in respect of enquiry into the true area of the
land acquired and determination of the compensation which in his opinion should
be allowed to the acquired land and apportionment of the compensation among the
claimants who appeared before him or persons known or believed to be interested
in the land whether appeared or not and that it excludes by implication any
other power other than that given to the Collector by Section 11. It was also
held in the said decision that the award is only an offer made after
consideration of the above matters and is only made subsequent to reference and
determination made under sub-section (1) of Section 23 of the amounts awardable
thereunder or any other amount awarded under any or all other clauses
thereunder including sub-section (2). Subsequently, an award shall be made by
court and such award by operation of sub-section (2) of Section 26 would be
deemed to be a decree. In Para 7, this Court laid down that a reading of
sub-section (4) of Section 31 indicates that the Land Acquisition Officer has
no power or jurisdiction to give any land under acquisition or any other land
in lieu of compensation. The contention of the learned counsel for the
claimants was that while awarding compensation, the 21 Collector (Land
Acquisition Officer) has a higher power than the limited power given under
sub-section (3) of Section 31. It was held that such a position is not tenable,
and would run counter to the scheme envisaged in the Act and such
interpretation, if accepted would result in defeating the public purpose. This
Court clearly held in the said decision that what is executable is only an
award under Section 26(2), namely, the amount awarded or the claims of the
interests determined of the respective persons in the acquired lands and that
the decree cannot incorporate any matter other than the matters determined
under Section 11 or those referred to and determined under Section 18 and no
other.
19.
The
subsequent decision of this Court in Secy., Jaipur Development Authority v.
Daulat Mal Jain, reported at (1997) 1 SCC 35 is almost to the same effect. In
the said decision, this Court has laid down almost to the same extent while
interpreted the provisions of the Rajasthan Land Acquisition Act, 1953. This
Court held in paragraphs 11, 12 and 13 as under:
"11. .........
In a democratic society governed by rule of law, power is conferred on the
holder of the public office or the authority concerned by the Constitution by
virtue of appointment. The holder of the office, therefore, gets opportunity to
abuse or misuse the office. The politician who holds public office must perform
public duties with the sense of purpose, and a sense of direction, under rules
or sense of priorities. The purpose must be genuine in a free democratic
society governed by the rule of law to further socio-economic democracy. The
Executive Government should frame its policies to maintain the social order,
stability, progress and morality. All actions of the Government are performed
through/by individual persons in collective or joint or individual capacity.
Therefore, they
should morally be responsible for their actions.
12. ........The
Government acts through its bureaucrats, who shape its social, economic and
administrative policies to further the social stability and progress socially,
economically and politically. Actions of the Government, should be accounted
for social morality. Therefore, the actions of the individuals would reflect on
the actions of the Government. The actions are intended to further the goals
set down in the Constitution, the laws or administrative policy.
The action would,
therefore, bear necessary integral connection between the `purpose' and the end
object of public welfare and not personal gain. The action cannot be divorced
from that of the individual actor. The end is something aimed at and only
individuals can have and shape the aims to further the social, economic and
political goals. The ministerial responsibility thereat comes into
consideration.........
13. All purposes or
actions for which moral responsibility can be attached are actions performed by
individual persons composing the department. All government actions, therefore,
means actions performed by individual persons to further the objectives set
down in the Constitution, the laws and the administrative policies to develop
democratic traditions, social and economic democracy set down in the Preamble,
Part III and Part IV of the Constitution. The intention behind the government
actions and 23 purposes is to further the public welfare and the national
interest. Public good is synonymous with protection of the interests of the
citizens as a territorial unit or nation as a whole. It also aims to further
the public policies. The limitations of the policies are kept along with the
public interest to prevent the exploitation or misuse or abuse of the office or
the executive actions for personal gain or for illegal gratification."
What the Court has
said in paragraphs 14 and 15, have been extracted right at the beginning of
this Judgment.
20.
In
State of Orissa v. Brundaban Sharma, reported at 1995 Supp (3) SCC 249, this
Court has held that the Land Acquisition Act does not contemplate or provide
for the acquisition of any interest belonging to the Government in the land on
acquisition. It reiterated the settled position of law that the Government
being the owner of the land need not acquire its own land merely because person
mistakenly resorted to acquire the land and later on mistakenly published
notifications under Sections 4 and 6 of the Act.
21.
The
aforesaid position was reiterated in a subsequent decision of this Court in
Meher Rusi Dalal v. Union of India, reported at (2004) 7 SCC 362. In paragraphs
15 24 and 16 of the said judgment, this Court has held that the High Court has
clearly erred in setting aside the order of the Special Land Acquisition
Officer declining a reference since it is settled law that in land acquisition
proceedings the Government cannot and does not acquire its own interest. While
laying down the aforesaid law, this Court has referred to its earlier decision
in the case of Collector of Bombay v. Nusserwanji Rattanji Mistri & Ors.
reported at (1955) 1
SCR 1311.
22.
We
may at this stage appropriately refer to the decision of this Court in the case
of Kiran Singh & Ors. v. Chaman Paswan & Ors. reported in (1955) 1 SCR
117. In the said case this Court has held that judgment passed by a Court
without jurisdiction is a nullity and such a judgment could be challenged even
in execution or collateral proceedings.
Court on page 121 at
para 6 held thus:
"...........................
It is a fundamental principle well-established that a decree passed by a Court
without jurisdiction is a nullity, and that its invalidity could be set up
whenever and wherever it is sought to be enforced or relied upon, even at the
stage of execution and even in collateral proceedings. .................."
23.
In
the case of State of Jammu & Kashmir v. Sanahullah Mir reported in (1980) 3
SCR 281 this court dealing with a case regarding resumption of land on pages
286-287 at para 9 held thus: - "..................... On going through
these documents it appears to us that under the influence of some high-ups a
case was made out for payment of compensation to the respondent in respect of
the land acquired 60 years ago by acquiring it again which naturally led to the
determination of the market value of the land in or about the year 1955. The
State Exchequer cannot be made to suffer for such wanton and illegal actions of
its officers. The land had been resumed long ago. It belonged to the State. The
whole proceeding of land acquisition was a nullity. The Award resulting
therefrom was also-ultra vires and a nullity. It mattered little whether the
proceeding was taken as a result of the fraud or mistake or otherwise. We are
accepting the findings of the courts below that the respondent had not
practised and fraud nor was the land acquisition proceeding started as a result
of any mistake of fact. It was either as a result of gross negligence or a
deliberate act on the part of the officials at the instance of some high-ups to
help the respondent. It is well-settled that there is no question of any
acquisition of the State's own land as was purported to be done in this
case."
24.
In
view of the aforesaid decisions of this Court, it is crystal clear that the
issuance of notifications under Sections 4 and 6 of the Act as also the Award
passed for acquisition of the land was a nullity and the subsequent action of
the Government de-requisitioning land by issuance of notification under Section
48 was just and proper as that was an action for rectification of the mistake.
The subsequent land acquisition officer was justified in refusing to refer to
the Reference Court in view of the fact that the land was already a Government
land and was so described in the revenue record itself. The Land Acquisition
Officer, who passed the award, committed an illegality by not only determining
the compensation under the Land Acquisition Act but also directing for
retention of the interim compensation paid under Jagir Act and also in
directing for allotment of a developed plot of land admeasuring 2500 sq. yds.
Initiation of the acquisition proceedings as also award passed by the said Land
Acquisition Officer is nullity in the eyes of law and void ab initio and
therefore could be held so and set aside in a proceeding of this nature. We,
therefore, hold that the directions for payment of compensation under the
Rajasthan Land Acquisition Act to the predecessor-in- interest of the
respondent no. 1 and subsequently to respondent no. 1 are illegal and without
jurisdiction as the award passed by the land acquisition officer was only an
offer which itself was a nullity. Payment made to the 27
predecessor-in-interest of the respondent no. 1 and also to the respondent no.
1 as its successor is also held unwarranted as the said orders were passed
considering them as the owners of the land and not as a trustee or manager.
Therefore, the said orders directing for payment of compensation and withdrawal
of the compensation by respondent no. 1 is held to be illegal and without
jurisdiction. We set aside the said orders by allowing the appeal filed by the
appellant. The amount deposited pursuant to the orders of this Court, if, has
been withdrawn by respondent no. 1 shall be realized from him through the
process of the High Court. The Registrar General of the High Court would take
necessary steps to realise the amount paid to the respondent by invoking the
security furnished and if necessary by resorting to remedy in accordance with
law. In terms of the aforesaid order the appeal is allowed but we leave the
parties to bear their own costs.
CIVIL APPEAL NO. 9158
OF 2003 WITH CIVIL APPEAL NO. 9161 OF 2003 28 AND CIVIL APPEAL NO. 9162 OF 2003
25.
The
remaining appeals may be disposed together since the facts and circumstances in
these cases are similar.
26.
In
all these appeals, the respondents are sub-awardees who have come to the fore
after a Notification under Section 4 of the Rajasthan Land Acquisition Act was
published in the State Gazette for acquisition of land in village Bhojpura and
Chak Sudershanpura Tehsil Jaipur., for the purpose of construction of a scheme
popularly known as Lal Kothi scheme, which is adjacent to Jaipur City for a
planned development of the city.
27.
These
appeals merit the same observations as we have made in Civil Appeal No. 8590 of
2003, wherein the Land Acquisition Officer proceeded to pass an award in
respect of the land acquired, which was already vested with the Government
after the coming into force of the Rajasthan Land Reforms and Resumption of
Jagir Act (hereinafter "Jagir Act" for short) on 18.02.1952, by
determining 29 compensation, and went further by directing for allotment of a
plot of developed land measuring 2500 sq. yds. We have made it clear in the
aforesaid appeal that the Land Acquisition Officer, through such an action, was
not only acting beyond his mandate and jurisdiction, but was also betraying the
public trust reposed on him by virtue of being a public servant.
28.
Pursuant
to such an illegal award that we have held in the aforesaid appeal to be non
est and void ab initio, the sub- awardees who are also Respondents in the
present appeals made representations to the Urban Improvement Trust, Jaipur for
allotment of land. Unfortunately, the Trust not only complied with these
representations but also drew up allotment plans, asking the Respondents to
deposit money in lieu of the same.
29.
Kamla
Mehta, who is the respondent in Civil Appeal No. 9162, claims to have paid the
full price for this reallotted plot on 17.12.1970. Dr. S.K. Sharma, who is the
respondent in Civil Appeal No. 9161, was initially allotted a plot no. 32 in
the Lal Kothi Scheme by the Urban Improvement Trust and he had deposited the
full amount 30 of the plot on 31.3.1970. In the case of Pushpa Saxena, the
appellant in Civil Appeal No. 9158, she had purchased land measuring 400 sq.
yards from one Usha Kumari vide an agreement to sell dated 7.7.72. The said
Usha Kumari who had purchased the plot from the original Khatedar, one Narpat
Singh, was allotted a plot no H-256 in the Lal Kothi Scheme vide allotment
letter dated 13.9.1970.
30.
The
Respondents, in their Writ Petitions submitted before the High Court of
Rajasthan had complained that the said allotments were not being made
expeditiously. The High Court allowed the Writ Petitions holding inter alia
that the actions of the appellants herein cannot be sustained and that once an
allotment has been made by the Urban Improvement Trust, the same cannot remain
unfulfilled.
31.
We
heard the counsel for parties at length. Mr. S.K. Bhattacharya, Advocate
appearing for the appellant submitted before us that the entire initiation of
proceedings and passing of the award under the Land Acquisition Act was a
nullity. The learned counsel for the appellant based his argument on the
contention that the Land Acquisition Officer had no authority or right to allot
31 plots in addition to monetary compensation. It was also the submission of
the appellant that the allotment of the plots in respect of the Respondents was
cancelled and possession was taken back. Therefore, according to the appellant,
the High Court's decision to allow the claims of the Respondents on the basis
of policy was erroneous as the High Court failed to appreciate that the policy
of the State Government is inapplicable to the facts of these cases and that
such action allowing sub-awardees, nominees, dealers and even encroachers to
obtain developed land at nominal rates, as opposed to the high market prices. On
this count, the appellant also submitted that recognizing the claim of the
Respondents would tantamount to recognizing the right of dealers in land, since
nearly all the original Khatedars have sold their anticipated allotment in
favour of unscrupulous dealers.
32.
The
learned counsel for the Respondents, on the other hand, submitted before us
that the principles of natural justice were not followed in the proceedings
that led to the cancellation of allotment in that the Respondents were not
provided an opportunity to be heard. Moreover, it was the 32 submission of the
Respondent that the appellant was delivering possession to a number of other
allottees who were similarly situated.
33.
It
is amply clear from our decision in Civil Appeal No. 8590 of 2003 that the
issuance of notifications under Sections 4 and 6 of the Land Acquisition Act as
also the Award passed for acquisition of the land was a nullity and the
subsequent action of the Government de-requisitioning land by issuance of
Notification under Section 48 was just and proper as that was merely by way of
rectification of the mistake committed therein. In the light of this decision,
we find that the Respondents herein have no claim or right to a fresh allotment
of land, as directed by the Land Acquisition Officer. That other allottees have
been wrongly delivered possession by the appellant does not, in any way,
entitle the Respondents to claim the same benefit for a wrong action cannot be
allowed to be perpetuated on the ground of discrimination, which is not at all
applicable. Furthermore, it is important to note that none of the Respondents
herein has been in possession of the said land allotted to them.
34.
Moreover,
this Court in Yadu Nandan Garg v. State of Rajasthan, reported at (1996) 1 SCC
334, on a case dealing with the lapse on the part of the Land Acquisition
Officer in wrongly granting a benefit to one party, has held that the benefit
thus wrongly granted cannot entitle others to get the same or to press claims
of invidious discrimination.
35.
In
Jaipur Development Authority v. Radhey Shyam, reported at (1994) 4 SCC 370, at
page 372, it was held by this Court that the power expressly given to the Land
Acquisition Officer is only in respect of enquiry into the true area of the
land acquired and determination of the compensation which in his opinion should
be allowed to the acquired land and apportionment of the compensation among the
claimants who appeared before him or persons known or believed to be interested
in the land whether appeared or not and that it excludes by implication any
other power other than that given to the Collector by Section 11. Seen in the
light of the facts and circumstances of the present appeals, and from our
decision in Civil Appeal No. 8590 of 2003, there is no 34 doubt that the award
passed by the Land Acquisition Officer determining compensation and allotting
fresh plots of land to the Respondents is illegal and void ab initio.
36.
Furthermore,
it is settled law that sub-awardees and subsequent purchasers possess right
vis-`-vis the original vendor only and not against the State Government as the
purchases were subsequent to passing of the award. When the acquisition
proceedings are itself a nullity, there clearly cannot be a valid claim to
allotment as has been contended by the Respondents in this case. In Secy.,
Jaipur Development Authority v. Daulat Mal Jain, reported at (1997) 1 SCC 35,
this Court has held at page 43 :
"The diverse
contentions give rise to the first question: whether the respondents have a
right to allotment of the lands? It is an admitted position that they purchased
the lands from Chhote Lal, the erstwhile owner, pursuant to the sale deeds
executed by him in 1970 or an agreement of sale etc. Their source of title,
therefore, is Chhote Lal, the erstwhile owner. The sales obviously are void
since Chhote Lal had no right, title and interest in the land acquired pursuant
to notification under Section 4(1) issued on 29-6-1960 and possession taken
under Section 16 of the Central Act and equivalent to Section 16 of the State
Act. The pre-existing right, title and interest had by Chhote Lal stood ceased
and 35 the same were vested in the appellant free from all encumbrances. The
nomenclature of sub-awardees or nominees does not get elevated above the source
and they had no right, title or interest under void sale except, if at all,
only to claim compensation under Section 23(1) of the Act. In Gian Chand v. Gopala
this Court had held that after the notification under Section 4(1) is
published, any encumbrances created by the owner of the land does not bind the
Government. The agreement of sale, if any, was frustrated by the publication of
the notification under Section 4(1) and the declaration under Section
6. In Yadu Nandan
Garg v. State of Rajasthan and a catena of other decisions, this Court has held
that the purchase after notification under Section 4(1) published in the
Gazette was not lawful which did not clothe the sale with any colour of title
as against the State. All encumbrances stand extinguished by operation of
Section 16 of the Act. Therefore, the purchaser gets no title to the acquired
land. The sale (being opposed to the public policy) was void under Section 23
of the Contract Act, 1872. Consequentially, the respondents acquired no right,
title or interest either under the sale deeds or agreement entered into by them
with Chhote Lal, the erstwhile owner."
37.
So
far as the respondents-claimants, namely, Pushpa Saxena, Kamla Mehta and Dr.
S.K. Sharma are concerned, there is no dispute to the fact that they purchased
a part of the acquired land after the same was vested with the State Government
under the Jagir Act and after the 36 Government had resumed possession of the
said land. All the aforesaid purchases were in any case subsequent to the
notification issued by the State Government under Section 4 of the Land
Acquisition Act and even after passing of the award, so as to take advantage of
the undue and invalid direction for allotment of additional land by the Land
Acquisition Officer.
38.
Pushpa
Saxena purchased her land from Usha Kumari vide sale deed dated 07.07.1972 and
the area of land which was purchased by her was only 400 sq. yards. Usha Kumari
had earlier purchased the land from Khatedar, Narpat Singh. The total area of land
of Raja Narpat Singh that was acquired was 872.22 sq. yards whereas he was
given an area of plot of 1,000 sq. yards as an alternative plot, which itself
proves and establishes how some government officers got together to give undue
benefit to unscrupulous person and were thereby trying to cause wrongful loss
to the government of their assets.
39.
There
were many such awardees who were being given more land as an alternative to the
area of the land which was sought to be acquired by issuing the notification
37 under Section 4. There were 12 awardees who also entered into compromise
and they were awarded plots of land in additional to mandatory compensation as
under:
S.No Name of the Sl.
No. of Area of The area of . Awardee the Land Land (in plot to be sq.yards)
given in addition to cash compensati on as per the award
1. Sh. Radhuveer 50 1361
1500 Singh
2. Sh. Ram 27 2108 2000
Lal/Pokhermal
3. Sh. Raja 36 872.22
1000 Narpat Singh
4. Smt. Sharda 54 1097
1000 Dhapar
5. Smt. Jyotsna 28 2089
2000 Kumari
6. Sr. Tulsi 48 2166
2000 Vishnoi
7. Sr. Rameshwari 33
2658 2000 Sethi
8. Amrit Chain 29 2089
2000 Kumari
9. Madhu and 60 2166
2000 Vibhu Kashyap
10. Alok Prasad 52 298
500 Mathur
11. B.P. Bhatnagar 500
40.
Incidentally,
Raja Narpat Singh who was the original Khatedar and from whom Usha Kumari
purchased land of 38 which Pushpa Saxena purchased about 400 sq. yards,
approached the Supreme Court but he himself was not allotted any plot of land
whereas Pushpa Saxena, who purchased the land from Usha Kumari, is now seeking
for allotment of alternative land at least to the extent of 250 sq. yards.
41.
In
so far as the claim of Dr. S.K. Sharma is concerned, his case is similar to
that of Kamla Mehta whose case is disposed by the judgment of the High Court of
Rajasthan dated 2nd June, 2000. Dr. S.K. Sharma purchased the land from
Rajendra Singh whose area of land that was acquired was 3508 sq. yards as
against which there was an order for allotment of alternative land of an area
of 2000 sq. yards. Kamla Mehta, out of the anticipated allotment of land
measuring 1500 sq. yards in favour of Raghubir Singh, entered into an agreement
for allotment of land measuring 375 sq. yards. She has lodged her claim on the
basis of documents like receipt and the alleged agreement to sale and she put
forth her request for allotment of land in her favour on the basis of such
anticipated allotment.
42.
The
decision to allot alternative plot of land was given by the Land Acquisition
Officer in the absence of any supporting law to support such claim on the
ground of alleged rehabilitation of the person whose land is sought to be
acquired by the Government.
43.
Necessarily,
none of the aforesaid awardees, namely, Pushpa Saxena, Kamla Mehta and Dr. S.K.
Sharma falls into the aforesaid category. When they entered into the agreements
to sale there was no allotment of land in favour of the vendors and there was
just an anticipated and possible action of allotment of some alternative land either
to the vendors or the Khatedars from whom the vendors purchased through
agreement to sell. While ordering for allotment of land in favour of such
persons the concerned officers misused their position and the trust reposed on
them. In any case, as of now, there is neither vacant land available in the Lal
Kothi area nor are any of the aforesaid respondents-claimants is entitled to
allotment of any alternative land.
44.
In
the light of the aforesaid decisions of this Court, and our discussion in Civil
Appeal 8590 of 2003, we find that 40 the cases of the Respondents are devoid of
any merit. We, therefore, hold that the directions for payment of compensation
and allotment of land under the Rajasthan Land Acquisition Act to the
Respondents are illegal and without jurisdiction as the award passed by the
land acquisition officer was only an offer which itself was a nullity. They are
not entitled to an allotment of 250 sq. yards of plot, for any direction to
allot such plot of land could amount to unjust enrichment of a person who had
sought to bind the Government, although, in law no such binding effect came
into existence as the land already vested in the Government. If any one of them
has paid the charges for allotment of alternative land they can only get back
the same from the competent authority, in which case, they shall be paid
interest at the rate of 7.5% p.a from the date of the deposit of the amount
till the date of the payment.
..........................................J.
[Dr. Mukundakam Sharma]
........................................J.
[Anil R. Dave ]
New
Delhi,
September
21, 2010.
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