REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION   

CIVIL APPEAL NO. 7374 OF 2003

Jaipur Development Authority and others ……Appellant

Versus

Vijay Kumar Data and another ……Respondent

WITH  

CIVIL APPEAL NO.7375 of 2003

Jaipur Development Authority ……Appellant

Versus Daya Kishan Data ……Respondent

J U D G M E N T

G.S. Singhvi, J.

1. These  appeals  filed  by  the  Jaipur  Development  Authority  against  

judgment  dated  29.7.2002  of  the  Division  Bench  of  the  Rajasthan  High

Court, Jaipur Bench are illustrative of how unscrupulous elements within the  

State  apparatus  connived  with  the  private  individuals  and  succeeded  in  

partly  frustrating  one  of  the  most  ambitious  schemes  framed  by  Urban  

Improvement  Trust,  Jaipur  (for  short,  “the  Trust”)  (predecessor  of  the  

appellant),  which came to be popularly known as Lal Kothi  Scheme, for  

construction  of  new  building  of  the  Legislative  Assembly,  educational  

institutions, stadium complex, district shopping centre, MLA quarters etc.  

2. By  notification  dated  13.5.1960  issued  under  Section  4  of  the  

Rajasthan Land Acquisition Act, 1953 (for short, “the 1953 Act”), which  

was published in the official gazette dated 29.6.1960, the State Government  

proposed the acquisition of 552 bighas 8 biswas land of village Bhojpura  

and Chak Sudershanpura for planned development of Jaipur city.  The land  

was to be utilised for the purpose mentioned in the preceding paragraph.  

Declaration under Section 6 was issued on 3.5.1961 and was published in  

the official gazette dated 11.5.1961.  Thereafter, notice dated 18.7.1961 was  

issued to the land owners (Khatedars) under Section 9(1) and (3).  Initially,  

65 Khatedars filed claims for compensation but this figure swelled to more  

than  137  because  those  who  purchased  land  from  the  Khatedars  after  

publication  of  the  notification  issued  under  Section  4  and  their  

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nominees/sub-nominees  also  filed  claims  for  compensation.   The  second  

category of persons included Shri Ganesh Narayan Gupta, Advocate and Dr.  

Bhagwan Das Khera, both of whom managed to purchase portions of the  

acquired land from one of the Khatedars, namely, Shri Vijay Lal son of Ram  

Sukhji.    The  Land Acquisition  Officer,  Jaipur  passed an unusual  award  

dated 9.1.1964 whereby he not only determined the amount of compensation  

payable to the landowners and the beneficiaries of illegal transfers, but also  

directed  allotment  of  plots  measuring  1000  to  2000  square  yards  to  the  

owners,  their  transferees  and nominees/sub-nominees  out  of  the  acquired  

land.   

3. After  passing  of  the  award,  Shri  Ganesh  Narayan  Gupta  filed  

execution  application  and  succeeded  in  getting  an  order  for  delivery  of  

possession of 1500 square yards land in the Lal Kothi Scheme.  The revision  

filed against the order of Executing Court was dismissed by the High Court  

and in that sense, the order passed by the Executing Court became final.  

However, as will be seen hereinafter, in view of the judgment of this Court  

in  Jaipur Development Authority v. Radhey Shyam (1994) 4 SCC 370,  

all such orders and judgments will be deemed to have become nullity.

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4. In  the  meanwhile,  12  of  the  awardees  filed  applications  for  

enhancement  of  the  compensation.  District  Judge,  Jaipur  City,  Jaipur  

accepted their claim.  Simultaneously, he rejected the objection raised by the  

State  Government  that  the  Land  Acquisition  Officer  did  not  have  the  

jurisdiction  to  allot  land  in  lieu  of  or  in  addition  to  the  monetary  

compensation.  The appeals filed against the judgment of the learned District  

Judge  were  disposed  of  by  the  High  Court  on  the  basis  of  compromise  

arrived at between the awardees and the Trust.

5. With a view to favour those who manipulated to create documents  

showing purchase of land after publication of the notification issued under  

Section 4 and who had access to the power corridors, the State and the Trust  

deliberately omitted to challenge the direction contained in the award of the  

Land  Acquisition  Officer  for  allotment  of  land  to  the  land  owners  

(awardees),  transferees  (sub-awardees)  and  their  nominees/sub-nominees.  

However when large number  of  execution applications  were filed by the  

beneficiaries,  the functionaries  of  the  State  and the  Trust  appear  to have  

become  alive  to  the  grave  consequences  which  would  have  ensued  by  

implementing  the  direction  given  by  the  Land  Acquisition  Officer.  

Therefore, they questioned the authority of the Land Acquisition Officer to  

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give direction for allotment of land. The Executing Court partly upheld the  

objection but the revisions filed by the beneficiaries were allowed by the  

Division Bench of the High Court, which held that the legality of the award  

cannot be challenged in the execution proceedings.

6. During  the  pendency  of  litigation  before  different  courts,  another  

attempt was made by the functionaries of the State to confer legitimacy on  

the illegal transactions involving purchase of the acquired land.  The then  

Minister of Urban Development of Housing, who was also Chairman of the  

Trust, constituted a Committee for suggesting the methodology for allotment  

of land in terms of the directions given by the Land Acquisition Officer.  

The members of the Committee obliged their master i.e. the Minister and  

recommended that land be allotted to the beneficiaries of illegal transactions  

at  the rate  of Rs.8/-  per  square yard.   Thereafter,  a  circular  disguised as  

policy decision was issued in 1978 for allotment of land to sub-awardees and  

their nominees/sub-nominees at the rate of Rs.8/- per square yard.   

7. In furtherance of the so called policy decision, draw of lots was held  

on 23.12.1980 for allotment of plots to the awardees and the beneficiaries of  

illegal transfers of the acquired land and those who were successful were  

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allotted plots.  This exercise did not satisfy all and those who could not get  

plots filed writ petitions questioning the draw of lots.  The Division Bench  

of the High Court held that the directions given by the Land Acquisition  

Officer and the Minister for allotment of plots were ex-facie illegal and had  

the effect of defeating the public purpose for which the land was acquired.  

Notwithstanding this, the High Court granted relief to the writ petitioners on  

the ground of violation of the equality clause enshrined in Article 14 of the  

Constitution and directed that they should also be allotted plots as per their  

entitlement.   

8. In the meanwhile,  the  Lokayukta  of  Rajasthan made inquiry under  

Section 10 of the Rajasthan Lokayukta and Up-Lokayuktas Act, 1973 in the  

matter of illegal allotments of plots in the Lal Kothi Scheme and submitted  

report dated 12.11.1992, the operative portion of which reads thus:

“In  view  of  what  has  been  stated  above,  it  is  prima  facie  established that Smt Kamala, the then Hon'ble Minister, Urban  Development  and  Housing  Department,  Government  of  Rajasthan-cum-Chairman, JDA Jaipur, Shri M.D. Kaurani, IAS,  the then Commissioner, Jaipur Development Authority and Shri  Subhebhan Mitra,  the then Zonal Officer, Lal Kothi Scheme,  JDA, Jaipur,  have blatantly  misused their  official  position to  favour a few influential and highly placed individuals and have  also thereby caused wrongful gain to them and wrongful loss to  the Jaipur Development Authority and the public at large. But  Smt Kamala,  the  then  Hon'ble  Minister,  Urban Development  and  Housing  Department-cum-Chairman,  JDA  is  not  now  a  

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public  servant  as  defined  in  Section  2(1)  of  the  Rajasthan  Lokayukta and Up-Lokayuktas Act, 1973 (for short ‘the Act’)  because she has ceased to be a Minister. So investigation is not  being commenced against her but the investigation deserves to  be  commenced  against  S/Shri  M.D.  Kaurani,  IAS  and  Subhebhan  Mitra  under  Section  1  of  the  Act,  and  I  order  accordingly.”   

However, as has happened with hundreds of similar reports submitted  

by the Lokayukta and other statutory authorities entrusted with the task of  

making investigation into the acts of favouritism, nepotism and corruption  

committed by the bureaucrats and public representatives, no tangible action  

appears  to  have  been taken  on the  recommendations  contained  in  report  

dated 12.11.1992.

9. The  question  whether  the  Land  Acquisition  Officer  could  issue  

direction  for  allotment  of  land  to  the  awardees,  sub-awardees  and  their  

nominees/sub-nominees was considered by this Court in  Radhey Shyam’s  

case.   After noticing the provisions of Section 31(3) and (4) of the 1953 Act  

on  which  reliance  was  placed  by  the  senior  counsel  appearing  for  the  

respondents, this Court held that the Land Acquisition Officer did not have  

the  jurisdiction,  power  or  authority  to  direct  allotment  of  land  to  the  

claimants.  This is clearly borne out from the following extracts of paragraph  

7 of the judgment:  

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“A reading of sub-section (4) of Section 31, in our considered  view, 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.  Sub-section  (4)  though  gives  power to him in the matter of payment of compensation, it does  not  empower  him to  give any  land  in  lieu  of  compensation.  Sub-section (3) expressly gives power “only to allot any other  land in exchange”. In other words the land under acquisition is  not liable to be allotted in lieu of compensation except under  Section 31(3), that too only to a person having limited interest.  ………..The  problem  could  be  looked  at  from  a  different  angle. Under Section 4(1), the appropriate Government notifies  a particular land needed for public purpose. On publication of  the  declaration  under  Section  6,  the  extent  of  the  land  with  specified demarcation gets crystallised as the land needed for a  public purpose. If the enquiry under Section 5-A was dispensed  with, exercising the power under Section 17(1), the Collector  on issuance of notice under Sections 17, 9 and 10 is entitled to  take possession of the acquired land for use of public purpose.  Even  otherwise  on  making  the  award  and  offering  to  pay  compensation  he  is  empowered  under  Section  16  to  take  possession of the land. Such land vests in the Government free  from all  encumbrances.  The only power  for the  Government  under Section 48 is to denotify the lands before possession is  taken.  Thus,  in the scheme of the Act,  the Land Acquisition  Officer has no power to create an encumbrance or right in the  erstwhile owner to claim possession of a part of the acquired  land  in  lieu  of  compensation.  Such  power  of  the  Land  Acquisition Officer if is exercised would be self-defeating and  subversive to public purpose.”

(emphasis supplied)

The Court also considered the question whether the appellant could  

challenge the award in the execution proceedings and answered the same in  

affirmative.  The reasons for this conclusion are contained in para 8 of the  

judgment, the relevant portion of which is extracted below:

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“…..We  have  already  said  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.  Therefore,  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.  Since we have already held that the Land Acquisition Officer has  no power or jurisdiction to allot land in lieu of compensation, the  decree  even,  if  any,  under  Section  18  to  the  extent  of  any  recognition of the directions in the award for the allotment of the  land given under Section 11 is a nullity. It is open to the appellant  to raise the invalidity, nullity of the decree in execution in that  behalf.   Accordingly  we  hold  that  the  execution  proceedings  directing delivery of possession of the land as contained in the  award is, invalid, void and inexecutable……”

(emphasis supplied)

10. The legality and correctness of order dated 24.9.1993 passed by the  

Division Bench of the Rajasthan High Court in D.B.C.S.A.W. No.680 of  

1992 was considered in Secretary, Jaipur Development Authority, Jaipur  

v. Daulat Mal Jain and others (1997) 1 SCC 35.  This Court noted that the  

Lokayukta  of  Rajasthan  had  severely  criticized  the  actions  of  the  then  

Minister of Urban Development and Housing Department, Commissioner,  

Jaipur  Development  Authority  and  Zonal  Officer  of  Lal  Kothi  Scheme,  

referred  to  the  Rajasthan  Improvement  Trust  (Disposal  of  Urban  Land)  

Rules, 1974 and held:  

“Therefore, there was no policy laid by the Government and it  cannot be laid contrary to the aforestated rules and no such  power was given to individual Minister by executive action,  

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as the land was already notified conclusively under Section  6(1) for public purpose, namely, earmarked scheme. Since the  persons  whose  land  was  acquired  were  not  owners  having  limited interest therein, qua the owners having lost right, title  and interest therein, the sub-awardees or nominees, after the  acquisition under Section 4(1), would acquire no title to the  land nor such ultra vires acts of the Minister would bind the  Government.  The actions,  therefore,  taken by the  Minister- cum-Chairman of the appellate authority and bureaucrats for  obvious reasons would not  clothe the respondents with any  vestige of right to allotment. Acceptance of the contentions of  the  respondents  would  be  fraught  with  dangerous  consequences. It would also bear poisonous seeds to sabotage  the schemes defeating the declared public purpose. The record  discloses that such allotment in many a case was in violation  of the Urban Land Ceiling Act which prohibits  holding the  land in excess of the prescribed ceiling limit of the urban land.  In some instances, a person whose land of 500 square yards  was acquired, was compensated with allotment of 2000 square  yards and above, which is against the public policy defeating  even  the  Urban  Land  Ceiling  Act.  Would  any  responsible  Minister  or  a  bureaucrat,  with  a  sense  of  public  duty  and  responsibility,  transfer  such  land  to  sabotage  the  planned  development of the scheme? Answer has obviously to be in  the negative. The necessary inference is that the policy does  not bear any insignia of a public purpose, but appears to be a  device  to  get  illegal  gratification  or  distribution  of  public  property  defeating  the  public  purpose  by  misuse  of  public  office.”

     (emphasis supplied)

The Court further held that the decision taken by the Minister and the  

actions of the bureaucrats were meant to benefit only those who had illegally  

secured transfer of land after the publication of the notification issued under  

Section 4 and that the so called policy is a policy to feed corruption and to  

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deflect the public purpose.  This is evinced from para 23 of the judgment,  

which is extracted below:

“There is no iota of evidence placed on record that under the so- called policy, anyone from general public could equally apply  for  allotment  of  the  plots  or  was  eligible  to  apply  for  such  allotment  nor  any  such  general  policy  was  brought  to  our  notice.  The  allotment  has  benefited  only  a  specified  class,  namely, the awardees, sub-awardees or nominees and none else.  The decision by the Minister or the actions of the bureaucrats  was limited to the above class which included the respondents.  Legitimacy  was  given  to  the  void  acts  of  Chottey  Lal,  the  erstwhile owner as well as the LAO. Directions were given by  the Minister and the bureaucrats acted to allot the land under  the very void acts. They are ultra vires the power. These acts  are in utter disregard of the statute and the rules. Therefore, by  no stretch of imagination it can be said to have the stamp of  public  policy;  rather  it  is  a  policy  to  feed corruption  and to  deflect the public purpose and to confer benefits on a specified  category, as described above.”

        (emphasis supplied)

The plea of discrimination which found favour with the High Court  

was also negatived by this Court by making the following observations:

“The  question  then  is  whether  the  action  of  not  delivering  possession of the land to the respondents on a par with other  persons who had possession is an ultra vires act and violates  Article 14 of the Constitution? We had directed the appellants  to file an affidavit  explaining the actions taken regarding the  allotment which came to be made to others. An affidavit  has  been  filed  in  that  behalf  by  Shri  Pawan  Arora,  Deputy  Commissioner,  that  allotments  in respect  of  47 persons were  cancelled and possession was not given. He listed various cases  pending in this Court and the High Court and executing court in  respect of other cases. It is clear from the record that as and  

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when any person had gone to the court to get the orders of the  LAO  enforced,  the  appellant-Authority  resisted  such  actions  taking consistent  stand and usually adverse orders have been  subjected  to  decision  in  various  proceedings.  Therefore,  no  blame of inaction or  favouritism to others can be laid at the  door of the present set-up of the appellant-Authority. When the  Minister  was  the  Chairman  and  had  made  illegal  allotments  following which possession was delivered, no action to unsettle  any such  illegal  allotment  could  have  been  taken  then.  That  apart,  they  were  awaiting  the  outcome  of  pending  cases.  It  would thus be clear that the present set-up of the bureaucrats  has set  new standards to suspend the claims and is trying to  legalise  the  ultra  vires  actions  of  Minister  and  predecessor  bureaucrats through the process of law so much so that illegal  and ultra vires acts are not allowed to be legitimised nor are to  be perpetuated by aid of Article 14. That apart, Article 14 has  no  application  or  justification  to  legitimise  an  illegal  and  illegitimate action. Article 14 proceeds on the premise that a  citizen has legal and valid right enforceable at law and persons  having  similar  right  and  persons  similarly  circumstanced,  cannot be denied of the benefit thereof. Such person cannot be  discriminated  to  deny  the  same  benefit.  The  rational  relationship and legal back-up are the foundations to invoke the  doctrine  of  equality  in  case  of  persons  similarly  situated.  If  some  persons  derived  benefit  by  illegality  and  had  escaped  from the clutches of law, similar persons cannot plead, nor the  court can countenance that benefit had from infraction of law  and  must  be  allowed  to  be  retained.  Can  one  illegality  be  compounded by permitting similar illegal or illegitimate or ultra  vires acts? Answer is obviously no.”

While repelling the argument made on behalf of the respondents that  

the  judgment  in  Radhey  Shyam’s case  was  per  incuriam,  this  Court  

observed:

“The basic postulate of the contention is the omission to refer to  Rules  31  and  36  of  the  Rajasthan  Land  Acquisition  Rules,  

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1956. Rule 31 was made to guide the exercise of power of the  Collector (LAO) under Section 31(3) of the Act. As seen, the  Government has empowered the Collector to allot “any other  land'  in  lieu  of  money  compensation  only  when  the  land  acquired  belongs  to  a  person  having  “limited  interest  in  the  land”,  like widow's estate or minor's  estate,  Mutawali  etc.  In  that behalf, Rule 31 amplifies the exercise of the power by the  authorised LAO. It says that the Collector cannot force a party  to take land in lieu of cash. Where, however, the interest of the  party is so limited, as in the case of a trustee of a wakf property  or  a  Hindu  widow,  as  to  make  it  extremely  difficult,  if  not  impossible, to arrive at an adequate cash estimate of its value or  where,  from the  circumstances  of  a  case,  it  is  impossible  to  place the parties concerned by cash compensation in the same  or nearly the same position as before acquisition, sub-section  (3) enables the Collector to arrange to award land (subject to  the  same  limitation  of  interest)  in  lieu  of  cash.  In  Radhey  Shyam case the scope of sub-section (3) of Section 31 has been  considered  and  explained  in  extenso.  Rule  31  is  only  to  elongate the discretion which the LAO is expected to exercise  in  awarding  land  in  lieu  of  cash  consideration  and  the  circumstances  in  which  it  would  be  done.  Equally,  Rule  36  deals with disposal of the excess land acquired by the Collector  for a company and imposition of the conditions for sanction of  transfer of excess land. Therefore, the absence of reference to  them does not make any dent into the principle of law laid in  Radhey Shyam case.”

11. In  Narpat Singh v. Jaipur Development Authority (2002) 4 SCC  

666, this Court again considered whether the Land Acquisition Officer could  

direct allotment of plots measuring 1000 to 2000 sq. yds. to the landowners  

and their  transferees  etc.  The appellants  in that  case were the  owners  of  

some parcels of land acquired by the State Government.  They were also  

beneficiaries of the direction given by the Land Acquisition Officer.  After  

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disposal  of  the  appeals  filed  by  the  Trust  against  the  award  passed  by  

District  Judge,  Jaipur  City,  Narpat  Singh  and  others  filed  execution  

application seeking implementation of the award made by the High Court.  

The appellant, who had succeeded the Trust, did not contest the application.  

Therefore, the Executing Court passed ex parte order and issued warrant of  

possession.   The revisions filed against  the order of the Executing Court  

were dismissed by the High Court, but in the special leave petitions, this  

Court  gave  liberty  to  the  State  Government  and  the  appellant  to  raise  

objections before the Executing Court with a direction to the latter to decide  

the  same  after  hearing  the  parties.   Thereafter,  the  Executing  Court  

reconsidered the matter and passed order dated 1.6.1990 whereby it rejected  

the objections filed against the prayer made by Narpat Singh and others for  

delivery of possession of the plots.  This time, the High Court allowed the  

revision filed against the order of the Executing Court and declared that the  

earlier judgment, which was based on compromise, suffered from inherent  

lack of jurisdiction and, as such, the same could not be executed.  In taking  

this view, the High Court relied upon the judgments of this Court in Radhey  

Shyam’s case  and  Daulat  Mal  Jain’s  case.    Before  this  Court,  it  was  

argued that the law laid down in the two cases was not applicable to the  

appellants’ case because the decree was passed in their favour in terms of the  

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compromise,  but  this  argument  was  not  accepted  by  the  Court  and  the  

appeals were dismissed by making the following observations:  

“Without entering into the question whether it is permissible for  the  Land  Acquisition  Officer  or  the  Reference  Court  or  the  High Court hearing an appeal  against  an award made by the  Reference  Court  to  record  a  compromise  whereunder  the  beneficiary of land acquisition agrees to offer land in lieu of  monetary compensation and whether such a compromise would  be legal and not opposed to public policy, we are of the opinion  that  the  facts  and  circumstances  of  this  case  are  enough  to  decline exercise of jurisdiction by this Court under Article 136  of  the  Constitution  to  the  appellants.  The  exercise  of  jurisdiction conferred by Article 136 of the Constitution on this  Court is discretionary. It does not confer a right to appeal on a  party  to  litigation;  it  only  confers  a  discretionary  power  of  widest amplitude on this Court to be exercised for satisfying the  demands of justice. On one hand, it is an exceptional power to  be exercised sparingly,  with caution and care  and to remedy  extraordinary situations or situations occasioning gross failure  of  justice;  on  the  other  hand,  it  is  an  overriding  power  whereunder the Court may generously step in to impart justice  and remedy injustice. The facts and circumstances of this case  as have already been set out do not inspire the conscience of  this Court to act in the aid of the appellants. It would, in our  opinion, meet the ends of justice, and the appellants too ought  to  feel  satisfied,  if  monetary  compensation  based  on  the  principles  for  assessment  thereof  in  land  acquisition  cases  is  awarded  and  in  addition  they  are  given  each  a  plot  of  reasonable  size  to  rehabilitate  themselves  so  as  to  meet  the  demands of reasonability and consistency.”

12. We  may  now  advert  to  the  facts  of  these  cases.   Shri  Ganesh  

Narayan Gupta, who had purchased the acquired land in 1963 i.e. much after  

publication of the notification issued under Section 4 and declaration issued  

under Section 6, filed suit for injunction, which came to be registered as  

15

Civil Suit No.629/1983 and was renumbered as Civil Suit No.270/1985 with  

the  prayer  that  the  defendant  (appellant  herein)  may  be  restrained  from  

interfering  with  his  possession  over  plot  Nos.C-112 to  C-115,  Lal  Kothi  

Scheme.   During  the  pendency  of  the  suit,  Ganesh  Narayan  Gupta  

transferred the plots to the respondents and two others by registered sale  

deeds,  who  were  impleaded  as  plaintiff  Nos.  2  to  5  vide  order  dated  

19.1.2001.  Shri Ganesh Narayan Gupta claimed title over the plots on the  

basis of the sale deed executed in his favour by Khatedar - Shri Vijay Lal  

and  subsequent  allotment  of  plots  in  his  favour  by  the  Trust.   The  

respondents  laid  their  claim  on  the  basis  of  registered  sale  deeds  dated  

18.4.1993 executed in their favour by Shri Ganesh Narayan Gupta.   

13. In  the  written  statement  filed  on  behalf  of  the  appellant,  it  was  

pleaded that in view of the judgments of this Court in Radhey Shyam’s case  

and  Daulat Mal Jain’s  case, the orders passed in favour of Shri  Ganesh  

Narayan Gupta as also the allotment of plots by the Trust were nullity and,  

as such, he did not acquire any right over the suit land and he could not have  

transferred the plots to the respondents.   

16

14. On the pleadings of the parties, the trial Court framed the following  

issues:

“1. Whether the plaintiff is owner in possession over the plot  since 24.12.82.

2. Whether  the  defendant  out  of  prejudice  and  anger  is  neither accepting the application and site plan from the plaintiff  nor is approving them.

3. Whether  the  defendant  wants  to  demolish  the  construction existing on the disputed plot in an illegal manner  without giving notice?

4. Whether  against  handing  over  possession  in  execution  proceedings, appeal has been preferred and what is its effect on  the suit.

5. Whether  possession  of  the  plaintiff  is  not  legal  possession and he is encroacher.

6. Relief.

Additional Issue No.7

7. Whether the plaintiff No.1 has cased to have any interest  with  the  property  in  dispute.   In  place  of  plaintiff  No.1,  the  plaintiffs Nos. 2 to 5 have got right over the disputed property  in consequence of sale of property.”

15. The  trial  Court  considered  the  evidence  produced  by  the  parties,  

referred to the judgments of this Court in Radhey Shyam’s case and Daulat  

Mal Jain’s case and held that plaintiff No.1 – Shri Ganesh Narayan Gupta is  

not entitled to relief of injunction because he could not prove his ownership  

17

over the suit land. The process of reasoning by which the trial Court reached  

this conclusion is evinced from the discussion made under issue No.1, the  

relevant portions of which are extracted below:

“The  burden  of  proof  regarding  this  issue  lay  on  the  plaintiffs part.  The plaintiff side was required to prove that  since 24.12.82 he has been owner in possession over the plot  in dispute.  The case of the plaintiff as per plaint is that on  6.1.64  the  Land  Acquisition  Officer  passed  a  joint  award  under which the land of the plaintiff No.1 was also acquired  and the plaintiff No.1 was recommended a residential plot of  1500 square yards and compensation amount in lieu thereof  as mentioned in the award.  When the defendant as per the  award  did  not  give  plot  of  land and compensation  to  the  plaintiff No.1, then he filed execution application and over  so many dates when compliance of the award was not made,  then warrant of possession was issued from the court and the  court through sale Ameen handed over physical possession  on site by beating the drum on 24.12.82.  The plaintiff since  then as per para 5 of the plaint has been in possession over  the disputed plot situated in Lal Kothi Bhojpura and Chak  Sudarshanpura  Scheme.   The  defendant  in  the  written  statement has denied these facts alleging to be wrong and  has  stated  that  under  the  judgment  of  Hon’ble  Supreme  Court, the Award in respect of the disputed land has been set  aside.   Filing  of  execution  application  by  the  plaintiff  is  admitted and rest of the averment is denied.

The  plaintiffs  have  not  led  any  oral  and  documentary  evidence  in  support  of  their  case  inspite  of  affording  opportunity nor filed process fee for summoning the record  of Execution Case nor obtained dasti from the court.  The  plaintiffs  for  continuously  five  years  have  not  taken  any  steps for summoning the record of Execution Case inspite of  court direction nor adduced any evidence while on the other  hand the  defendant  produced in  evidence  officer  incharge  Shri Maghraj Ratnu D.W.1, who has stated in his statement  that the Land Acquisition Officer passed award dated 9.1.64  

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for the land in connection with planned development under  the  Lalkothi  Scheme  under  which  besides  cash  compensation simultaneous recommendation to allot plots of  different size was made.  Many awardees were allotted plots.  In  this  connection  various  litigations  were  initiated  in  the  Court.  Similar award was passed in the year 1974.  In the  case of Civil Appeal J.D.A. versus Radheyshyam and others  and Secretary J.D.A. versus Daulatmal Jain and others the  Hon’ble  Supreme  Court  has  affirmed  payment  of  compensation  to  be  right  and  recommendation  regarding  allotment of plots is held to be illegal and void.  The Land  Acquisition  Officer  while  passing  the  award  for  compensation  was  not  competent  to  recommend  for  allotment of plot of land in lieu thereof.   In this  way the  plaintiffs  have  got  neither  any  proprietary  right  nor  any  possession  over  the  disputed  plot  of  land.   The  plaintiffs  have concealed the facts.  The plaintiff Ganesh Narayan has  not been allotted plot of land by the J.D.A.

The plaintiff has not cross examined the said witness D.W.1  produced  by  the  defendant  in  evidence.   I  have  sought  guidance  from judgments  in  both  the  cited  cases  namely  Civil  Appeal  No.12370/96  Secretary  J.D.A.  versus  Daulatmal Jain and Civil Apepal No.4209 and 4210/09.  In  both  the  judgments  the  Hon’ble  Supreme Court  has  held  award  in  respect  of  allotment  of  plot  of  land  by  way  of  compensation under the Lalkothi Scheme to be illegal and  initially null & void.  The plaintiffs have not rebutted the  evidence adduced from the defendant’s  side nor produced  any  evidence.   In  the  light  of  citations  produced  the  ownership of the plaintiff No.1 over the disputed plot since  24.12.82 is not found.  For want of evidence the possession  of the plaintiff is also not proved.  Consequently this issue is  decided against the plaintiff.”

16. After purchasing the plots from Shri Ganesh Narayan Gupta, the  

respondents filed applications under Section 83 of the Jaipur Development  

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Authority  Act,  1982 (for short,  “the 1982 Act”)  questioning notice dated  

19.12.1996  issued  by  the  appellant  for  auction  of  the  two  plots.   The  

Appellate Tribunal constituted under the 1982 Act (hereinafter referred to as,  

`the Tribunal’),  relied upon the judgments in  Radhey Shyam’s case and  

Daulat Mal Jain’s case and held that the respondents do not have the locus  

to challenge the proposed auction because transactions involving purchase of  

land  by  Shri  Ganesh  Narayan  Gupta  from  the  original  Khatedar  and  

subsequent purchase of plots by the respondents were nullity.  Paragraphs 7,  

9  and  11  of  order  dated  22.1.1997  passed  in  Vijay  Kumar  Data’s  case  

(identical order was passed in Daya Kishan Data’s case), which contain the  

detailed reasons recorded by the Tribunal are extracted below:  

“7. The  Land  Acquisition  Act  provides  some  powers  and  jurisdiction  in  favour  of  the  Land  Acquisition  Officer, but simultaneously regarding awarding of land out of  the  land  acquired  to  the  khatedar  or  erstwhile  owner  some  powers  are  vested  about  which  the  Hon'ble  High  Court  in  1994(4) S.C.C. 370 and earlier cited judgment in the case of  J.D.A. versus Daulatmal Jain, it  is clearly laid down that the  Land Acquisition Officer out of the acquired land at the time of  passing the Award cannot award land by way of consideration  and if he has done so, the act of the Land Acquisition Officer is  ab  initio  void,  illegal  and  ineffectual  and  on  that  basis  no  proprietary rights can accrue in respect of that land in favour of  any body    and the Award which in the shape of a decree has  reached the final stage that too cannot bestow any right upon  the appellant, because this decree is ab initio void, illegal and  proceedings done in compliance of it and possession given is  also illegal and irregular.  The Hon'ble Supreme Court in this  judgment under citation has held the allotment of the plot to be  

20

illegal.  In  view  of  these  two  cited  judgments  it  is  clearly  ensured that the Land Acquisition Officer had no right to award  land by way of consideration out of the acquired land and on  the basis of ab initio void and illegal act Ganesh Narayan Gupta  could never acquire proprietary right  because neither  Ganesh  Narayan Gupta could be owner of this  acquired land nor the  Land  Acquisition  Officer  award  any  basis  for  right  of  ownership to Ganesh Narayan Gupta. Thus on the given land no  right  of  ownership  is  accrued  in  favour  of  Ganesh  Narayan  Gupta and entire subsequent proceedings done in respect of this  land is void in itself. Under the circumstances in view of the  cited  judgment  of  Hon'ble  Supreme  Court  when  Ganesh  Narayan had no proprietary right, then after him question does  not  arise  that  the  subsequent  owners  would  have  any  right.  Therefore the appellant also cannot have any basis or right in  respect of this land.  

9. When  the  notification  under  section  4  regarding acquisition of this land was published on 19.6.60 and  declaration under section 6 was published in 1961, then Ganesh Narayan had no right to purchase this land in 1963 and after  publication of this notification out of the land to be acquired if  Ganesh  Narayan  at  all  purchased  any  land,  even  then no right of ownership can accrue to Ganesh Narayan Gupta in  respect  of  this  land.  Thus  the  act  of  Ganesh  Narayan  to  purchase this land is in contravention of rules and is void.

11. The  act  of  the  Land  Acquisition  Officer  of  giving plot of land to Ganesh Narayan out of the land acquired  is ab initio void, publication of notifications under sections 4  and 6 in 1960 and 61 and after publication of this notification  purchasing of land by Ganesh Narayan and subsequently by the  appellant  from  Ganesh  Narayan  is  void,  and  no  right  is  available under the circumstances to the appellant and on the  basis of law laid down in the cited judgments in 1994(4) S.C.C.  370  and  in  J.D.A.  versus  Daulatmal  Jain,  the  appellant  has  failed  to  establish  any of  his  right  or  basis.   Therefore,  this  appeal  of  the  appellant  against  the  respondent  is  not  maintainable.”

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 (emphasis supplied)

17. The respondents challenged the orders passed by the Tribunal in S.B.  

Civil Writ Petition Nos.1047 of 1997 and 1046 of 1997.  They pleaded that  

by virtue of the sale deeds executed by Shri Ganesh Narayan Gupta, they  

have become owners of the plots and the appellant has no right to auction  

the same.  They relied upon Section 144 of the Code of Civil Procedure and  

claimed that the appellant is duty bound to restore the land to them because  

the action taken for depriving them of the possession was wholly illegal.

18. In the written statement filed on behalf of the appellant, it was pleaded  

that plot Nos.C-113 to C-117, Lal Kothi Scheme were allotted to Bhagwan  

Das Khera in 1979 but, later on, the said allotment was cancelled. It was  

further pleaded that in view of the law laid down by this Court in Radhey  

Shyam’s case and Daulat Mal Jain’s case, the allotment made in favour of  

Shri  Ganesh  Narayan  Gupta  in  compliance  of  the  order  passed  by  the  

Executing Court has to be treated as nullity and he had no right to transfer  

the plots to the writ petitioners.

19. The learned Single Judge dismissed the writ  petitions by observing  

that the dispute regarding title of plot Nos.C-113 to C-114 cannot be decided  

22

under Article 226 of the Constitution.  The learned Single Judge noted that  

no material  was placed before the Court to show that the two plots were  

allotted either to the original Khatedar or to the writ petitioners whereas the  

respondents had produced documents to prove that the plots were allotted to  

one Bhagwan Das Khera  and the allotment made in his favour was also  

cancelled.

20. The Division Bench of the High Court did not find any error in the  

view taken by the learned Single Judge that dispute relating to title of the  

property cannot be decided under Article 226 of the Constitution of India,  

but  entertained  and  accepted  an  altogether  new case  put  forward  by  the  

counsel for the writ petitioners (the respondents herein) that in terms of the  

policy decision taken by the State Government, which was circulated vide  

letter dated 6.12.2001 and  order dated 9.1.2002 passed  by another Division  

Bench in D.B. Civil  Writ  Petition No.5776/2001 (suo motu) – Rajasthan  

High Court  v.  State  of  Rajasthan and others,  his  clients  were  entitled  to  

regularization of the plots in question.

21. Shri S.K. Bhattacharya, learned counsel for the appellant assailed the  

impugned judgment mainly on the ground that it runs contrary to the law  

23

laid down in Radhey Shyam’s case and Daulat Mal Jain’s case.  Learned  

counsel submitted that in view of the declaration of law made in  Radhey  

Shyam’s case that the Land Acquisition Officer did not have the jurisdiction  

to  allot  land  to  the  awardees,  sub-awardees  and  their  nominees/sub-

nominees,  the  so-called  policy  framed  by  the  State  Government  for  

regularisation of illegal allotments is liable to be treated as nullity and the  

Division Bench of the High Court committed serious error by extending the  

benefit of that policy to the respondents ignoring that Shri Ganesh Narayan  

Gupta from whom they had purchased the plots did not have title over the  

land and also that no such case was set up in the writ petition filed by them.  

Shri Bhattacharya then argued that the concurrent finding recorded by the  

Tribunal and the trial Court that the transaction involving purchase of land  

by Shri Ganesh Narayan Gupta after publication of the notification under  

Section 4 was nullity is binding on the respondents and they did not have the  

locus to take benefit of the so called policy of regularization contained in  

letter dated 6.12.2001.   

22. Shri M.L. Lahoty, learned counsel for respondent – Vijay Kumar Data  

argued  that  the  order  passed  by  the  Executing  Court  for  delivery  of  

possession of 1500 square yards land to Shri Ganesh Narayan Gupta will be  

24

deemed  to  have  become  final  and  is  binding  on  the  appellant  because  

revision filed against that order was dismissed by the High Court and it is  

not open for the appellant to indirectly question the allotment of plot Nos. C-

113 to C-117 to Shri Ganesh Narayan Gupta.   Shri Lahoty submitted that in  

compliance of the direction given by the Executing Court,  the concerned  

authority  had  delivered  possession  of  the  plots  to  Shri  Ganesh  Narayan  

Gupta and being bonafide purchasers, the respondents are entitled to seek  

protection of their possession.  He then argued that the policy contained in  

circular dated 6.12.2001 is based on the decision taken by the Cabinet Sub-

Committee and the Division Bench of the High Court did not commit any  

error by directing regularisation of the allotment of plot Nos.C-113 to C-114  

in favour of the respondents by relying upon order dated 9.1.2002 passed by  

the  coordinate  Bench  in  D.B.  Civil  Writ  Petition  No.5776 of  2001 (Suo  

Motu).  Shri Lahoty pointed out that in furtherance of the policy decision  

taken by the State Government, the appellant has executed lease deeds in  

favour of large number of persons who had been benefited by the direction  

contained in the award passed by the Land Acquisition Officer and argued  

that  the  appellant  cannot  adopt  different  yardsticks  while  dealing  with  

similarly situated persons.

25

23. In furtherance of the liberty given by the Court on 31.3.2011, Shri  

M.L.  Lahoty  filed  written  arguments  on  7.4.2011  enclosing  therewith  

documents marked as Annexures `A’  to  `E’.   Of these,  Annexure  ‘A’  is  

xerox copy of order dated 20.11.1987 passed by Civil Judge, Jaipur City,  

Jaipur whereby he dismissed an application filed by Dr. Bhagwan Das Khera  

under Section 47 read with Order XXI Rules 97 and 99 of the Code of Civil  

Procedure, 1908.  Annexure ‘B’ is the copy of sale deed dated 18.4.1993  

executed  by  Shri  Ganesh  Narayan  Gupta  in  favour  of  respondent-Vijay  

Kumar Data.  Annexure ‘C’ is the copy of order dated 30.10.2001 by which  

a Committee consisting of Minister of Urban Development, Home Minister,  

Finance  Minister,  Industries  Minister,  State  Minister  for  Mines  was  

constituted for solving the problems pertaining to regularisation of illegal  

construction and encroachment of land in the Lal Kothi and Prithviraj Nagar  

Schemes.  Annexure ‘D’ is xerox copy of order dated 9.1.2002 passed by the  

Division Bench of the High Court in D.B. Civil Writ Petition No.5776 of  

2001 (Suo Motu).  Annexure ‘E’ is a bunch of lease deeds dated 1.1.2003,  

24.8.2002 and 16.8.2002 executed by the appellant  in favour of different  

persons in respect of different plots of land situated in the Lal Kothi Scheme.  

26

24. Shri  A.D.N. Rao,  learned counsel  for  Smt.  Sunita  Agarwal,  whose  

application  for  impleadment  was  allowed  on  31.3.2011,  argued  that  the  

direction given by the Division Bench of the High Court should be set aside  

because plot No.C-114, Lal Kothi Scheme was purchased by his client in the  

auction  held  by  the  appellant  on 26.12.1996.   Shri  Rao pointed out  that  

possession  letter  was  issued  in  favour  of  his  client  on  17.6.2000  and  

registered sale deed was executed on 21.6.2000.  Similar prayer has been  

made  on  behalf  of  Shri  D.S.  Bhandari  and  two  others,  who  also  filed  

impleadment application being I.A. No.3/2008.  In that application, it has  

been averred that the applicants were successful in the auction held by the  

appellant on 19.6.2000 in respect of plot No.C-113, Lal Kothi Scheme and  

after  deposit  of the entire  money,  the appellant  executed sale deed dated  

7.4.2005 and delivered possession on 13.5.2005.  It has been further averred  

that after getting necessary approval from the appellant on 23.1.2007, the  

applicants have constructed house on the plot and occupied a portion thereof  

and leased out another portion to one Mr. Vijay Sharma.

25. We have considered the respective arguments and submissions and  

carefully  scanned  the  records.   We  have  also  gone  through  the  written  

arguments furnished by learned counsel for respondent – Vijay Kumar Data.

27

26. The first question which needs consideration is whether the Division  

Bench of the High Court could have granted relief to the respondents by  

entertaining an altogether new case set up by their counsel with reference to  

the so called policy framed by the State Government for regularization of the  

illegal allotments / encroachments of the acquired land in the Lal Kothi and  

Prithviraj Nagar Schemes.   

27. It is not in dispute that the only issue raised in the writ petitions filed  

by the respondents was whether the Tribunal was right in dismissing the  

applications filed by them against the auction of plot Nos. C-113 and C-114,  

Lal Kothi Scheme.  The Tribunal had negated the respondents’ challenge on  

the ground that Shri Ganesh Narayan Gupta from whom they had purchased  

the  plots  vide  sale  deeds  dated  18.4.1993 did  not  have  valid  title.   The  

Tribunal noted that Shri Ganesh Narayan Gupta had purchased land from its  

Khatedar  Shri  Vijay Lal son of Shri  Ram Sukhji  after  publication of the  

notification issued under Section 4 and held that such transactions did not  

create any title in his favour.  The Tribunal also relied upon the judgments of  

this Court in  Radhey Shyam’s case and Daulat Mal Jain’s case and held  

that  once  the  Supreme  Court  had  declared  the  transactions  involving  

purchase  of  the  acquired  land  and  the  direction  given  by  the  Land  

28

Acquisition Officer for allotment of land to the awardees, sub-awardees and  

their nominees/sub-nominees to be nullity, the transferees of such purchasers  

cannot claim any right over the plots which were auctioned by the appellant.  

In the opinion of the Tribunal, when the purchase of land by Shri Ganesh  

Narayan Gupta was null and void, he could not have transferred a valid title  

in  favour  of  the  respondents  so  as  to  enable  them  to  challenge  the  

advertisement  issued by the  appellant  for  auction of  the  two plots.   The  

learned  Single  Judge  dismissed  both  the  writ  petitions  primarily  on  the  

ground that the disputes questions of fact relating to title of the plots cannot  

be determined under Article 226 of the Constitution and the writ petitioners  

are  free  to  avail  any  other  alternative  remedy for  determination  of  their  

rights.

28. What is most significant is that till the disposal of the writ petitions by  

the learned Single Judge, the seeds of the so called policy decision, which  

was allegedly circulated vide letter dated 6.12.2001 had not even been sown.  

A reading of Annexure `C’, which forms part of the written arguments filed  

by Shri M.L. Lahoty, learned counsel for respondent – Vijay Kumar Data,  

shows  that  the  Committee  of  Ministers  was  formed  vide  order  dated  

30.10.2001  to  suggest  solution  of  the  problems  in  the  regularization  of  

29

illegal  constructions/encroachments  of  land  under  the  Lal  Kothi  and  

Prithviraj Nagar Schemes in relation to which several cases were pending in  

different Courts.  The recommendations made by the Committee were given  

the  colour  of  the  Government’s  decision  (though,  no  material  has  been  

placed on record to show that the recommendations made by the Committee  

were accepted by the State Government) as would appear from letter dated  

6.12.2001  written  by  Deputy  Secretary  (Administration),  Urban  

Development Department to the Secretary, Jaipur Development Authority,  

Jaipur.  That letter reads as under:

“GOVERNMEN OF RAJASTHAN URBAN DEVELOPMENT DEPARTMENT

No.F.3(32)UDD/3/2001    Jaipur Dated: Dec.   ,2001 6 DEC 2001

The Secretary, Jaipur Development Authority,  Jaipur. Subject: Regarding regularization of illegal construction /   

encroachment under Lai Kothi Scheme.

Sir,

In the above context it is stated that under the Ministerial Secretariat  Order No.F. 4(1)M.M./99 dated 30th October, 2001 for the solution of  problems arising  from  comp1ications  of  regularization  of  illegal  construction/encroachments  under  Lal  Kothi  and  Prithviraj  Nagar  Schemes,  a  sub  committee  was  constituted.  This Sub  Committee  comprised  of  Minister,  Urban Development  as convenor and Home  Minister, Finance Minister, Minister for Industries and State Minister  for  minerals  were  nominated  its  members  and  Secretary  Administration,  Urban  Development Department  was  nominated  as  member secretary of this sub committee.

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The Committee discussed in detail over various aspects of Lal Kothi  Scheme  and  after  taking  into  consideration  the  entire  facts  unanimously took the following decision:

1.        As    per    the awards    pronounced    so    far under the  Lal  Kothi     Scheme,   whatever  amount   is  due  for  payment   to  the  awardees,    that      may    be    paid    to    the concerned cultivators.

2. The awardees who besides compensation amount could not be  allotted plot of land or after allotment were cancelled, may now be  allotted  per  awardee  a  plot  measuring  250  square  yards  in  other  schemes of J.D.A. Such plot be awarded at rate of  25 percent  of  the  prevalent residential reserved rate under the scheme.

3. The developed and vacant plots be regularized in the similar  manner. These may be regularized at the following rates:

A) up to 200 sq.yards 25 percent of  the reserved  

residential  rate.

B) More than 200 sq. yards 35 percent of the reserved  residential rate

4. In  the  remaining  cases  of  worth  regularizing  plots  of  Everest and Salt colonies (which    are    about 80 plots) which  could not be regularized inspite of decision of 1976, the rate of  regularization is fixed at 25 percent of the reserved  residential  rate.

5. In     connection  with  regularization  of  the  plots  the  amount on the basis of self-assessment be asked to be deposited  by 28.2.2002.

6. Those  who fail  to  get  regularisation  within  stipulated  time  limit,  it  is  decided  to  afford  them  opportunity  of depositing the amount by 31.3.2002 with 5 per cent, additional  amount to obtain regularization. After expiry of the  said date, it  is  decided   that no regularization be done and after  notice to  such  occupants  over  the  plots  their  construction  shall  be  demolished and such plot's shall then vest in the Authority and  

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for  the  purpose  of  rehaoi1itation  they  shall  be  allotted  as  residential  plots  under  other  schemes  of  Jaipur  Development  Authority.

7. The plots which are not regularized under this order, they  be finally refused and their list be published in the news  paper,  and possession on the site  if any,  be removed.

8. The awardees/sub awardees whose allotments  have not  yet been cancelled, but they have construction on site of their  plots, it is decided that their earlier allotment be cancelled and  treating  the  plot  as  acquired,  on  the  basis  of  possession,  be  regularized under this order. I t  is decided to adjust the amount  deposited  earlier.  On  interest  shall  be  chargeable  on  this  amount.

9. In the cases  wherein  litigation  is  pending in  courts,  in  connection with them it is decided to follow action as under:

(a) Such of the vacant plots where there is stay order  from the  court  or  any  adverse  order  etc.  in  force  and  which have been taken over in possession by the Jaipur  Development Authority as per rules, i t  is decided to sell  them through auction. It is decided to draw a list or such  plots.

b) In    cases    of     acquired    or  under  acquisition and / plot of  land/constructed building  which  is  under  effect  of  any order  or  stay  order  from      the     court, in connection with them it is  decided to follow action as under:

Where  in  connection  with  acquired  or  under  acquisition  land/plot  of  land/constructed  building  stay  order/order for status quo is issued in favour of cultivator,  it is decided to follow regularization proceeding in favour  of  such  cultivator  treating  the  land/  plot  of  land/  constructed  building  in  his  favour.  I f  the  order/  stay  order/  order  for  status  quo is  in  favour  of  J.D.A.  then  treating  the  concerned  plot/land  to be  of J.D.A.  i t  is  

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decided  to  follow  further  taken  and  such  plot/land  is  decided not to be regularized. On the contrary  i f  such  orders  are  in  favour  of  other  person  and  he  is  in  possession, and he withdraws the case from the court,  then  regu1arization  of  that  p lot/ land  be  done  in his  favour.  In cases of plots where J.D.A. has gone in appeal  and  no  decision  is  taken  by  the  court  in  favour  of  the  Authority then honouring the judgment of the court below, case  shall  be withdrawn by the J.D.A.  the  plot/  land/  constructed  building is  decided  to  be regularised in  favour  of  concerned  person. In such cases the basis of regularization will be physical  possession.  In connection with regularization on above basis,  the Samjhota Samiti will review each and every case and give  its decision which shall he binding on J.D.A.  

10.  In        connection      with land under acquisition, land of  9  bigha  6  biswa  of  Pratap  Nursary,  5  bigha  of  Anand Nursary, 2  bigha 12 biswa of Kailashwati, Maharchand & Sons  is  decided  not  to  acquire.  Simultaneously  i t  is  decided  to  regularize on payment of 25 percent of reserved residential rate  of these land.  

No  decision  was  taken  in  connection  with  land  of  Amrudon Ka Bagh. It is thought proper to take any action after  decision from Delhi High Court.  

Yours  faithfully, Sd/- 6.12.01

(H.S. Bhardwaj) Dy. Secretary Administration”

29. In our view, the Division Bench of the High Court committed serious  

error  by  entertaining  an  altogether  new  case  set  up  on  behalf  of  the  

respondents, who had not even prayed for amendment of the pleadings and  

granted relief to them by declaring that they are entitled to get benefit of the  

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policy of regularization contained in letter dated 6.12.2001.  It is difficult, if  

not  impossible,  to comprehend as to  how the Division Bench could rely  

upon  the  so  called  policy  decision  taken  by  the  Government  in  flagrant  

violation of the two judgments of this Court wherein it  was categorically  

held  that  the  transactions  involving  transfer  of  land  after  the  issue  of  

notification under Section 4 were nullity and the Land Acquisition Officer  

did not have the jurisdiction to direct allotment of land to the awardees/sub  

awardees,  their nominees/sub-nominees.   The basics of judicial  discipline  

required that the Division Bench of the High Court should have followed the  

law laid  down by this  Court  in  Radhey Shyam’s case  and  Daulat  Mal  

Jain’s case and refused relief to the respondents.

30. Another  grave error committed by the Division Bench of the High  

Court is that it ignored the unchallenged findings recorded by the Tribunal  

and  the  trial  Court  that  the  transferor  of  the  respondents,  namely,  Shri  

Ganesh Narayan Gupta did not have valid title over the land and he had no  

right to secure allotment of 1500 sq. yds. land in the Lal Kothi Scheme and  

that the order passed by the Executing Court for delivery of possession was  

liable to be ignored in view of the law laid down in Radhey Shyam’s case  

and Daulat Mal Jain’s case.

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31. At this juncture, we may notice order dated 9.1.2002 passed by the  

Division  Bench of  the  Rajasthan High Court  in  D.B.  Civil  Writ  Petition  

No.5776/2001 (Suo Motu) titled Rajasthan High Court v. State of Rajasthan  

and others.  The preface of that order shows that  a learned Single Judge of  

the High Court had suo motu taken cognizance of three different news items  

dated  8.12.2001,  10.12.2001  and  11.12.2001  published  in  the  daily  

newspaper  –  Rajasthan  Patrika,  Jaipur  edition.   The  first  news  item  

highlighted the grievance of one Lali Devi against the construction of road  

through her land.  The second news item related to regularization of the Lal  

Kothi Scheme and the third news item related to the alleged irregularities  

committed in the construction of high rise buildings.  When the matter was  

listed before the Bench, which had the roster to hear such matters, it was felt  

that the issue raised in the order passed by the learned Single Judge who, in  

our  considered  opinion,  was  not  at  all  justified  in  suo  motu  taking  

cognizance  of  the  newspaper  reports  and  the  order  made  by  him  could  

appropriately  be  termed  as  coram non  judis,  directed  that  the  matter  be  

placed before the Division Bench.  On behalf of the State Government and  

the appellant, affidavits were filed to justify the so called policy contained in  

letter dated 6.12.2001.  15 villagers of village Herver and some residents of  

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Everest Colony, Lal Kothi also appeared before the Division Bench through  

their  advocates.   While  dealing with the  second news item, the Division  

Bench did take cognizance of the fact that people having connection in the  

power  corridors  and  those  who  were  economically  affluent  had  illegally  

taken possession of the acquired land and raised construction, but approved  

the so called policy decision taken by the State Government to regularize the  

illegal transfers.  The reasons recorded by the Division Bench of the High  

Court for adopting this course are extracted below:

“The second item with regard to the regularisation of Lal Kothi  Scheme is  concerned,  declaration has been taken as a  part  of  the  policy  by  the  Government  and  there  is  ample  authority  o f  law to support the contention that such   policy  decisions   cannot   be   made   the subject matter of the judicial  review.    No doubt in the cases   where    any policy decision is  taken    for any reasons    which are against the public interest,  the judicial    review    is possible,  but in    case    of this nature,  'it    cannot be said  in the    facts    and circumstances  of    this  case which    have     been established    before    us with  support     of  documents  Including documentary  evidence  of  contemporaneous nature that public interest has not suffered in  any manner by the decision of regu1arisation.    To bring an end  to a 40 years prolonged agony of litigation without any    avail  to     the     State,     realising     the  ground realities   that  demolition of    hundreds    of constructed    houses    of    the  members    of      public belonging    to middle/lower middle  class   is  a    tough task coupled    with    other considerations  which    are germane,    if    the popular (elected) Government  has taken a policy    decision in tune with the pulse of masses,  it is difficult for this Court to say that it is contrary to public  interest.  Public interest litigation  is of-course meant to protect  the  rights and to take  care  of the problems of those  who  cannot  take care of themselves  in want of awareness of   their  

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own    rights or to espouse  a common    cause and in such  cases,  the cognizance can certainly be taken by  the Court even  by way of suo-motu    action in a given   case   on the basis of  the news item   or otherwise,    but   the public interest is neither  an unbridled    nor an unruly horse,  which can enter any arena  in    an    aimless  race.     In view of    the    reply public  interest    is transparent in the State action and we are   satisfied  and convinced that had   there been a correct   and   complete  disclosure   of   full facts    perhaps    the    cognizance may not  have been taken    by    the Court suo-motu.    Be that as it  may, now   that the full   facts have come on record and we have  heard  all  the parties which are present,  we have no hesitation  in holding that in the    instant case,     there   is no scope of any  judicial  review  and  to  sit  over  the  wisdom  of  the  state  functionaries and therefore,   no interference  is warranted by  this  Court  with  the  decision  which  has  been  taken  by  the  Government,   as  a  part  of  public  policy.     In  larger  public  interest  even  if  the  Government  has  to  pay  a little    price,    it is a small price in deed, which has to be paid,  if at all we want the object of a welfare State to prevail.

It may also be observed in all fairness to the State that  after the suo-motu action had been taken by this Court and the  notices had been issued, the Government has shown due regard  for Court's cognizance by, staying its own order as it is stated  before us that the State Government honoured the pendency of  the  matter  in  Court  by  directing  the  J.D.A. vide order  dated  31st December, 2001 not to act  upon the decision dated 6th  December, 2001 and not to proceed further with the process of  regu1arisation and has directed the J.D.A. to produce all  the  relevant records before the Court. It is, therefore, clear that the  decision as had been taken on 6th December, 2001 had been  stayed by the Government itself,  showing due regard for the  action initiated by the Court. Having heard all the parties,  we  find that the policy decision hardly warrants any interference by  this  Court.  The  Government  and  all  concerned  are  free  to  proceed on the basis of the order dated 6th December, 2001 as  had been passed by the Government.”

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32. In our opinion, the High Court had undertaken a wholly unwarranted  

and unjustified exercise  for putting the seal  of approval  on the so called  

policy contained in letter dated 6.12.2001 and, that too, by ignoring the law  

laid down by this Court in  Radhey Shyam’s case and  Daulat Mal Jain’s  

case. What the High Court has done is to legitimised the transactions, which  

were declared illegal by this Court and this was clearly impermissible.  The  

High  Court’s  understanding  of  the  so  called  policy  framed  by  the  

Government was clearly erroneous.  The letter written by Deputy Secretary  

(Administration), Urban Development Department to the Secretary, Jaipur  

Development  Authority,  Jaipur  cannot,  by any stretch of  imagination,  be  

treated as a policy decision taken by the State Government.  No document  

was produced before the High Court and none has been produced before us  

to show that the recommendations made by the Committee of Ministers had  

been approved by the State Government culminating in issuance of a policy  

circular.   It is trite to say that all  executive actions of the Government of  

India and the Government of a State are required to be taken in the name of  

the President or the Governor of the State concerned, as the case may be  

[Articles  77(1)  and  166(1)].  Orders  and  other  instruments  made  and  

executed in the name of the President or the Governor of a State, as the case  

may be, are required to be authenticated in such manner as may be specified  

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in rules to be made by the President or the Governor, as the case may be  

[Articles 77(2) and 166(2)].    Article 77(3) lays down that:

“The  President  shall  make  rules  for  the  more  convenient  transaction of the business of the Government of India, and for  the allocation among Ministers of the said business.”

Likewise, Article 166(3) lays down that:

“The  Governor  shall  make  rules  for  the  more  convenient  transaction of the business of the Government of the State, and  for the allocation among Ministers of the said business insofar  as it is not business with respect to which the Governor is by or  under this Constitution required to act in his discretion.”

Article 166 was interpreted in  State of Bihar v. Kripalu Shankar  

(1987) 3 SCC 34 and it was observed:   

“Now, the functioning of Government in a State is governed by  Article 166 of the Constitution, which lays down that there shall  be a Council of Ministers with the Chief Minister at the head, to  aid  and advise the  Governor in the exercise  of  his  functions  except where he is required to exercise his functions under the  Constitution,  in  his  discretion.  Article  166  provides  for  the  conduct  of  government  business.  It  is  useful  to  quote  this  article:

‘166. Conduct of business of the Government of a State. —(1) All executive action of the Government of a State  shall  be  expressed  to  be  taken  in  the  name  of  the  Governor. (2) Orders and other instruments made and executed in  the name of the Governor shall be authenticated in such  manner as may be specified in rules to be made by the  Governor,  and  the  validity  of  an  order  or  instrument  which is so authenticated shall not be called in question  

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on the ground that it is not an order or instrument made  or executed by the Governor. (3)  The  Governor  shall  make  rules  for  the  more  convenient transaction of the business of the Government  of the State, and for the allocation among Ministers of the  said business insofar as it is not business with respect to  which  the  Governor  is  by  or  under  this  Constitution  required to act in his discretion.’

Article  166(1)  requires  that  all  executive  action  of  the  State  Government shall be expressed to be taken in the name of the  Governor.  This  clause  relates  to  cases  where  the  executive  action has to be expressed in the shape of a formal order or  notification. It prescribes the mode in which an executive action  has to be expressed. Noting by an official in the departmental  file will not, therefore, come within this article nor even noting  by  a  Minister.  Every  executive  decision  need not  be as  laid  down under Article 166(1) but when it  takes the form of an  order it has to comply with Article 166(1). Article 166(2) states  that  orders  and  other  instruments  made  and  executed  under  Article 166(1), shall be authenticated in the manner prescribed.  While clause (1) relates to the mode of expression, clause (2)  lays down the manner in which the order is to be authenticated  and  clause  (3)  relates  to  the  making  of  the  rules  by  the  Governor for the more convenient transaction of the business of  the  Government.  A  study  of  this  article,  therefore,  makes  it  clear  that  the  notings  in  a  file  get  culminated  into  an  order  affecting right of parties only when it reaches the head of the  department  and  is  expressed  in  the  name  of  the  Governor,  authenticated in the manner provided in Article 166(2).”

33. It is thus clear that unless an order is expressed in the name of the  

President or the Governor and is authenticated in the manner prescribed by  

the  rules,  the same cannot  be treated as  an order  made on behalf  of  the  

Government.  A reading of letter dated 6.12.2001 shows that it was neither  

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expressed  in  the  name of  the  Governor  nor  it  was  authenticated  manner  

prescribed by the Rules.  That letter merely speaks of the discussion made  

by the Committee and the decision taken by it.  By no stretch of imagination  

the same can be treated as a policy decision of the Government within the  

meaning of Article 166 of the Constitution.

34. We are further of the view that even if the instructions contained in  

letter dated 6.12.2001 could be treated as policy decision of the Government,  

the High Court should have quashed the same because the said policy was  

clearly contrary to the law declared by this Court in Radhey Shyam’s case  

and  Daulat  Mal  Jain’s case  and was a  crude attempt  by  the  concerned  

political functionaries of the State to legalise what had already been declared  

illegal by this Court.  

35. Although, we are prima facie satisfied that execution of lease deeds by  

the  appellant  in  favour  of  some  persons  in  2002  and  2003  is  a  clear  

indication of deep rooted malaise in the functioning of the appellant and is  

also  indicative  of  sheer  favouritism  and  nepotism,  we  refrain  from  

pronouncing upon the legality of those transactions because the beneficiaries  

are not parties to these appeals.

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36. In the result, the appeals are allowed.  The impugned judgment is set  

aside.    The  writ petitions filed by Vijay Kumar Data and Daya Kishan  

Data are dismissed and they are directed to pay cost of Rs.5 lacs for pursuing  

unwarranted litigation for last over 15 years.   The amount of cost shall be  

deposited with the Rajasthan State Legal Services Authority within a period  

of two months.  The respondents shall be entitled to recover the price paid to  

Shri  Ganesh  Narayan  Gupta  along  with  the  amount  of  cost  by  availing  

appropriate legal remedy.

37. Since we have found that the so called policy decision contained in  

letter dated 6.12.2001 is contrary to the law declared by this Court, the State  

Government and the appellant are restrained from taking any action in future  

on the basis of the said letter.    

…..…..…….………………….…J. [G.S. Singhvi]

…..…..……..…..………………..J.                          [Asok Kumar Ganguly]

New Delhi July 12, 2011.

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