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        Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.1527-1536 OF 2013

Rajasthan Housing Board ... Appellant

- Vs –

New Pink City Nirman Sahkari Samiti Ltd. & Anr. ... Respondents

WITH Civil Appeal Nos.1557-1566/2013, 1577-1586/2013, 1597-1606/2013, 1537-1546/2013, 1547-1556/2013, 1567-1576/2013, 1587-1596/2013, 1607-1608/2013, 1609-1610/2013, 1611-1612/2013, 1613-1614/2013, 1615-1616/2013, 1617-1618/2013, 1619-1620/2013, 1621-1622/2013, 1623-1624/2013, 1625-1626/2013, 1627-1628/2013, 1629-1630/2013, 1631-1632/2013,  1633-1634/2013  and  CA Nos.4183-4192/2015  @ SLP (C) Nos. 21344-21353/2013.

J U D G M E N T

ARUN MISHRA, J.

1. Leave granted in SLP [C] Nos.21344-21353/2015.

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2. The appeals arise out of a common judgment and order dated

29.10.2009  passed  by  a  Division  Bench  of  the  High  Court  of

Rajasthan in Special Appeal No.13/2001 and other connected matters.

The Rajasthan Housing Board, original Khatedars and the New Pink

City  Housing  Construction  Co-operative  Society  Ltd.  (transferee)

(hereinafter referred to as the Society’) have assailed the impugned

judgment  and  order  on  different  grounds.  The  Rajasthan  Housing

Board  has  prayed  for  setting  aside  direction  to  consider  25%  of

developed  land  and  compensation,  whereas  the  original  khatedars

have  prayed  for  payment  of  compensation  to  them.  Similarly,  the

Rajasthan Housing Board has also questioned the entitlement of the

Society to claim compensation. The Society has also claimed for more

value of  land.

3. The  State  Government  issued  a  notification  under

section 4 of the Rajasthan Land Acquisition Act, 1953 (for short ‘the

Act  of  1953’)  on  12.1.1982.  The  land  had  been  acquired  for  the

purpose  of  housing  scheme  of  Rajasthan  Housing  Board.  On

22.5.1982 the possession had been handed over to Rajasthan Housing

Board  under  section  9  of  the  Act  of  1953.  The  Society  preferred

objections before the Land Acquisition Officer (LAO). The objections

preferred  by  the  Society  were  rejected  vide  order  dated  4.9.1982.

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Thereafter, Award was passed with respect to four cases by the LAO

on 30.11.1982 in favour of Khatedars. With respect to the remaining

cases the award was passed on 2.1.1989 by the LAO. Notice under

section 12(2) of the Act of 1953 was issued to the Society with respect

to the award of 30.11.1982 on 31.12.1988.

4. The Society applied for reference under section 18 of

the Act of 1953. On 17.4.1989, the reference was made to the Civil

Court.  One  of  the  Khatedars  namely  Prabhu also  sought  reference

registered  as  Case  No.43/1989.  The  Civil  Court  answered  the

reference on 23.1.1994 determining the compensation at Rs.260 per

sq.yd. The objection raised by the Housing Board with respect to the

entitlement of Society under section 42 of the Rajasthan Tenancy Act,

was brushed aside. On appeal to the High Court, the single Bench vide

impugned  judgment  and  order  dated  22.3.1999  reduced  the

compensation to Rs.100 per sq.yd. The Division Bench has not only

affirmed the aforesaid award but has additionally directed to consider

allotment  of  25%  of  developed  land  in  view  of  circular  dated

27.10.2005  in  terms  of  the  order  passed  by  a  Division  Bench  in

Special Appeal No.697/1995.

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5.         The Khatedars have claimed that they are ‘Bairwa’ by caste

which is a Scheduled Caste notified under the Constitution Scheduled

Castes Order, 1950.

6. The  Society  has  claimed  that  it  had  entered  into  an

agreement to sell with Khatedars of the land on 15.2.1974, 17.2.1974,

21.2.1974 and 22.1.1976.  The Society has  also claimed that  it  had

applied to the Rajasthan Housing Finance Society Ltd. for financial

assistance for construction of houses and an NOC dated 7.6.1982 was

issued  to  it  by  the  Urban  Improvement  Trust,  Jaipur.  The  Society

objected to the acquisition but objections were rejected on 3.9.1982 in

four  cases  out  of  which Reference  Case  No.1989,  2089,  3089 and

4089  arose.  The  award  was  passed  on  30.11.1982.  Later  on,  the

Society appears to have filed a civil suit for specific performance of

agreement  to  sell  in  the  year  1986  against  the  Khatedars  and

compromise  decrees  are  said  to  have  been  passed  on  2.10.1986,

3.10.1986 and 24.1.1988 thereby decreeing the suit in favour of the

Society.  

7.           It  was  submitted  on  behalf  of  the  State  Government,

Rajasthan  Housing  Board  and  also  by  the  Khatedars  that  the

transactions between the Society and Khatedars, if any, were ab initio

void in view of the provisions contained in section 42 of the Rajasthan

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Tenancy Act. Thus, decree obtained on the basis of void transaction is

a  nullity  and  no  right  had  accrued  to  the  Society  to  claim

compensation.

8. It was urged before us on behalf of the Society that the

compensation  determined  is  inadequate.  Oral  evidence  has  been

ignored  by  the  High  Court  while  reducing  the  quantum  of

compensation determined by Reference Court. The Society has a right

to claim compensation on the basis of the agreement which has been

culminated into a decree passed by the civil court. No action has been

taken by Khatedars to take back the possession under section 175 of

the Rajasthan Tenancy Act within the period of limitation of 30 years

which  is  prescribed  therein.  The  High  Court  has  rightly  ordered

allotment of 25% of the developed land to the Society. The Society is

a person interested to receive the compensation on the strength of the

judgment and decree of civil court. It has developed the land and has

spent  certain  amount  on  development  and  the  right  to  hold  the

property  cannot  be  taken  away  except  in  accordance  with  the

provisions of a statute.  In order to claim superior  right to hold the

property the procedure prescribed in a statute must be complied with

as provided in Article 300A of the Constitution of India. The State is

bound  to  treat  various  incumbents  similarly  as  others  have  been

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allotted the land. It is bound to act upon its decision and allot the 25%

of the developed land to the Society.  The plea based upon the bar

created  by  section  42  of  the  Rajasthan  Tenancy  Act  has  not  been

substantiated by adducing the evidence.

9. It was contended on behalf of the Khatedars that though

the civil court’s decrees are fraudulent and bogus even otherwise the

decrees are a nullity and opposed to public policy on the strength of

provisions  contained  in  section  42  of  the  Rajasthan  Tenancy  Act;

Transaction being void, the Society has no locus standi, right, title or

interest to claim the enhanced compensation; more so, in view of the

rejection of its objection vide order dated 4.9.1982. The award in 1982

was passed by Land Acquisition Officer in favour of Khatedars. They

are entitled to enhanced compensation and not the Society. The land

was recorded in the names of Khatedars in the revenue records. The

agreements of 1974 and 1976 have not been produced and once the

transaction is void,  it  can be questioned in the instant  proceedings.

They are entitled to compensation and also to obtain developed land,

as and when allotted.

10. It was contended on behalf of the State Government as

well as the Rajasthan Housing Board that the Society is not entitled to

any compensation as such transactions are declared void by section 42

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of the Rajasthan Tenancy Act. The reference sought in the year 1989

with respect to the lands covered by the award dated 30.11.1982 was

clearly barred by limitation. The objection had been raised before the

Reference Court based upon section 42 of the Rajasthan Tenancy Act

and it  has not been disputed at  any stage that Khatedars belong to

“Bairwa” caste  which is  a  Scheduled  Caste.  Thus,  the  bar  enacted

under  section  42 on transfer  of  such  land  is  clearly  attracted.  The

judgments passed by the High Court and the Reference Court deserve

to be set aside. On merits, no case for enhancement of compensation

was made out. The Society has no right, title or interest in the land.

The Division Bench of the High Court had gravely erred in law in

directing allotment of 25% of the developed land. The prayer made by

the Society for allotment of the developed land was rejected by the

Rajasthan  Housing  Board  on  14.5.2009  and  16.9.2009.  The  said

orders  were  not  questioned.  Even  otherwise  the  Circulars  dated

13.11.2001  and  that  of  27.10.2005  are  not  applicable  and  not

enforceable as held by this Court. The direction to allot the developed

land deserves to be set aside.  

11.         First,  we advert to the question whether reference, with

respect to the four cases in which award was passed on 30.11.1982,

was  within  period  of  limitation.  Admittedly,  possession  from  the

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Society  had  been  taken  on  22.5.1982.  The  Society  submitted  the

objections  before  the  LAO  on  20.7.1982.  While  rejecting  the

objections  on  4.9.1982,  the  Special  Officer,  Urban  Development

Authority, LAO, had unilaterally observed that the acquisition cannot

be said to be in violation of the provisions contained in Article 300A

of the Constitution of India, the Society has no ownership of the land,

it  has  no  interest  in  the  land.  Thus,  it  has  no  right  to  raise  the

objection.  The  said  order  had  attained  finality  and  the  award  was

passed  on  30.11.1982.  In  the  award  so  passed,  it  has  also  been

mentioned that an Advocate had appeared on behalf of the Khatedars

and  wanted  to  file  objections  regarding  compensation.  The  said

Advocate appeared on behalf of some of the Khatedars and stated that

they had sold the land to the Society. However, no claim petition was

filed  on their  behalf.  There  is  also  a  reference  in  the  award dated

30.11.1982 as to the objection filed by the Society  had been rejected

on 4.9.1982. It  is  apparent from the award that it  was passed after

rejecting the objections raised by the Society in favour of Khatedars.

12. The provisions of Rajasthan Land Acquisition Act are in

pari materia with the provisions of the Land Acquisition Act, 1894

and section 12 of the Act of  1953 is extracted hereinbelow :

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“12.   Award of Collector when to be final.—(1) Such award shall be filed in the Collector’s officer and shall,  except  as  hereinafter  provided,  be  final  and conclusive evidence, as between the Collector and the persons  interested,  whether  they  have  respectively appeared before the Collector or not, of the true area and value  of  the land,  and the apportionment  of  the compensation among the persons interested.

(2)  The Collector shall give immediate notice of his  award  or  the  amendment  thereof  to  such  of  the persons interested as are not present personally or by their representatives when the award or the amendment thereof is made.”

13. Section  12(2)  requires  immediate  notice  to  be  given of  the

award to such of the persons interested as are not present personally or

by their representative/s when the award is made. Section 18(2) of the

Act of 1953 requires to file the objections within six weeks from the

date of the award if the person or the representative was present when

the award was made. In other  cases, within six weeks of the receipt of

notice from the Collector under section 12(2) or within six months

from the date of the award whichever period shall first expire.  

14. In  the  instant  case,  notice  under  section  12(2)  was

issued to the Society by the Special Officer on 31.12.1988, treating the

Society as ‘person interested’ and informing that an award had been

passed  on  30.11.1982  in  accordance  with  section  11  of  the  Land

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Acquisition Act. On the strength of the aforesaid notices it was urged

on behalf of the Society that the limitation to seek the reference would

commence from the date of receipt of the notices issued and received

on  31.12.1988.  The  reference  sought  was  within  the  period  of

limitation.

15. Reliance has been placed on the decision of this Court

in Madan & Anr. v. State of Maharashtra [(2014) 2 SCC 720] and in

Raja  Harish  Chandra  Raj  Singh  v.  The  Deputy  Land  Acquisition

Officer & Anr. [AIR 1961 SC 1500] in which it has been laid down

that the party must have either actual or constructive communication

of the order which is an essential requirement of fair play and natural

justice. The date of award used in proviso (b) to section 18(2) of the

Act must be the date when the award is either communicated to the

party or known by him either actually or constructively. The award in

the  said  case  was  passed  on  25.3.1951.  Notice  of  the  award  was

however  given  to  the  appellant  as  required  by  section  12(2)  on

13.1.1953 by which he received information about making of the said

award. It was observed that it was necessary for the Collector to give

immediate notice of his award under section 12(2) of the Act.  This

Court has laid down in Raja Harish Chandra (supra) with respect to

the knowledge of the award by a party thus :

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“6 ..... The knowledge of the party affected by such a decision,  either  actual  or  constructive,  is  an essential element  which must  be  satisfied  before  the  decision can be brought into force. Thus considered the making of the award cannot consist merely in the physical act of writing the award or signing it or even filing it in the office  of  the  Collector,  it  must  involve  the communication  of  the  said  award  to  the  party concerned  either  actually  or  constructively.  If  the award is pronounced in the presence of the party whose rights are affected by it it can be said to be made when pronounced. If the date for the pronouncement of the award  is  communicated  to  the  party  and  it  is accordingly  pronounced  on  the  date  previously announced the award is said to be communicated to the said party even if the said party is not actually present on the date of its pronouncement. Similarly if without notice of  the  date  of  its  pronouncement  an award is pronounced and a party is not present the award can be said to be made when it is communicated to the party later.  The  knowledge  of  the  party  affected  by  the award, either actual or constructive, being an essential requirement  of  fair-play  and  natural  justice  the expression "the date of the award" used in the proviso must  mean  the  date  when  the  award  is  either communicated to the party or is known by him either actually or constructively. In our opinion, therefore, it would be unreasonable to construe the words "from the date of the Collector's  award" used in the proviso to s. 18 in a literal or mechanical way.”

16. The decision of the Madras High Court in Muthia Chettiar v.

Commissioner of Income Tax, Madras [AIR 1951 Mad. 204] had been

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[I.L.R. 1951 Mad. 815.]. "If a person is given a right to resort to a remedy to get rid of an adverse order within a  prescribed  time",  observed  Rajamannar,  C.J., "limitation should not be computed from a date earlier than that on which the party aggrieved actually knew of the order or had an opportunity of knowing the order and therefore must be presumed to have the knowledge of the order". In other words the Madras High Court has taken the view that the omission to use the words "from the date of communication" in s.  33A(2) does not mean that limitation can start to run against a party even  before  the  party  either  knew  or  should  have known  about  the  said  order.  In  our  opinion  this conclusion is obviously right.”

             It is thus clear that either party should have actual knowledge

or constructive notice i.e., should have known about the said order.  

17.          In the instant case it is apparent that the Housing Society had

preferred objections and was aware of the land acquisition process and

determination of compensation and has filed objections which stood

rejected on 4.9.1982. Thus, the constructive knowledge of the award is

fairly attributable to it when it was so passed. Constructive notice in

legal  fiction  signifies  that  the  individual  person  should  know as  a

reasonable person would have. Even if they have no actual knowledge

of it. Constructive notice means a man ought to have known a fact. A

person is said to have notice of a fact when he actually knows a fact

but for wilful abstension from inquiry or search which he ought to

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have made, or gross negligence he would have known it. Constructive

notice  is  a  notice  inferred  by  law, as  distinguished  from actual  or

formal  notice;  that  which is  held by law to amount  to  notice.  The

concept of constructive notice has been upheld by this Court in Harish

Chandra (supra).  

18. It  is  also  apparent  that  the  Society  had  actively

participated in the other pending cases with respect to determination

of compensation in which award had been passed on 2.1.1989. Thus

the reference sought on the strength of the notice under section 12(2)

issued and received on 31.12.1988 would not provide limitation to the

Society for seeking reference with respect to the four cases in which

the  award  was  passed  on  30.11.1982  as  notice  to  it  was  wholly

unnecessary in view of rejection of its objection on the ground that it

was not having right, title or interest in the land. Thus it could not be

said to be  ‘person interested’ in view of the order dated 4.9.1982. The

notice was issued for reasons best known to the Special Officer. It is

surprising how and for what reasons notice was issued after six years.

We need not go into this aspect any further as we are of the opinion

that  in  the facts  and circumstances,  the  Society  had a  constructive

notice of the award dated 30.11.1982. Thus, in view of the conjoint

reading of sections 12(2) and 18(2) of the Rajasthan Land Acquisition

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Act, it was not open to the LAO to refer the case to the civil court on

the basis of the time barred application.

19. Coming to the question whether in view of section 42 of

the Rajasthan Tenancy Act, the transaction entered into by the Society

with the original Khatedars are void and whether on that basis, it had a

right  to  maintain  the  reference  and  to  claim  compensation?  The

Society is said to have entered into agreements to sell on 17.2.1974,

21.2.1974 and 21.2.1976. These agreements have not been placed on

record by the Society. It was incumbent upon the Society to file these

agreements. Be that as it may. The Society has filed certain affidavits

of Khatedars along with counter affidavits filed by it. In the case of

Ram Pyari and others, the affidavits of various Khatedars have been

filed  by  the  Societey  in  which  their  caste  has  been  mentioned  as

‘Bairwa’. The caste of the original Khatedars has never been disputed.

‘Bairwa’ caste is a Scheduled Caste. Before this Court also in the case

of Ram Pyari in the SLP preferred, averments have been made to the

effect that the original Khatedars belong to Scheduled Caste and the

sale in favour of a person not belonging to Scheduled Caste is void as

per the mandate of section 42 of the Rajasthan Tenancy Act. In the

counter  affidavit  filed  on  behalf  of  the  Society,  the  factum  that

Khatedars are ‘Bairwa’ and belongs to Scheduled Caste, has not been

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denied.  Before  the  Reference  Court  also,  the  stand  of  the  State

Government was that as the Khatedars belong to Scheduled Caste, the

transaction was prohibited by section 42 of  the Rajasthan Tenancy

Act. On behalf of the Society, it was submitted in counter affidavit

that  as  it  is  a  Society, the rigor  of  provisions of  section  42 is  not

attracted and it had relied upon the circular dated 1.9.1984 issued by

the Government  of  Rajasthan for  regularisation of  the land sold in

violation of section 42 of the Rajasthan Tenancy Act. The Society has

failed to deny clear and categorical averments, non-denial makes the

aforesaid facts undisputed one. There is not even an evasive denial

that  Khatedars  do  not  belong  to  Scheduled  Caste.  Even  in  the

additional affidavit filed on behalf of the Society in the wake of the

rejoinder filed by the petitioner in reply to the counter  affidavit  of

respondent  No.2,  the  caste  of  the  original  Khatedars  has  not  been

disputed.  Thus,  we  are  of  the  considered  opinion  that  the  original

Khatedars are ‘Bairwa’ by caste which is a Scheduled Caste and they

are entitled to the protection of the provisions contained in section 42

of the Rajasthan Tenancy Act.

20. The provisions of section 42 of the Rajasthan Tenancy

Act declare the transaction entered into by a Scheduled Caste with any

person other than a person of a Scheduled Caste or by a Scheduled

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22. The equally futile is the submission that since the Society is a

juristic person, sale cannot be said to be in contravention of section 42

of  the  Rajasthan  Tenancy  Act.  ‘Sale’  is  permitted  by  a  person  of

Scheduled Caste to another person of Scheduled Caste. The Society

cannot  be  said  to  be  a  person  of  ‘Scheduled  Caste’.  The  Society

cannot be said to be a person included in the notification issued under

Article  341  of  the  Constitution  of  India.  Article  341  of  the

Constitution  envisages  notification  to  be  issued  for  inclusion  of

Scheduled  Caste  in  relation  to  a  State  or  Union  Territory.  The

expression ‘person’ in section 42(b) of the Rajasthan Tenancy Act is

to a natural person and not a juristic person and the mere fact that

some of the persons of the Society belong to Scheduled Caste would

not make the transaction with such a Housing Society valid one. This

Court in State of Rajasthan & Ors. v. Aanjaney Organic Herbal Pvt.

Ltd. [(2012) 10 SCC 283] has considered the question of provisions of

section 42 of the Rajasthan Tenancy Act and held that bar is attracted

to a juristic person  :

“12.  The  expressions  “Scheduled  Castes”  and “Scheduled Tribes”, we find in Section 42(b) of the Act have to be read along with the constitutional provisions and, if so read, the expression “who is not a member of the Scheduled Caste or Scheduled Tribe” would mean a person other than those who have been included in the public notification as per Articles 341 and 342 of the  Constitution.  The  expression  “person”  used  in

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Section 42(b) of the Act therefore can only be a natural person and not a juristic person, otherwise, the entire purpose  of  that  section  will  be  defeated.  If  the contention of the Company is accepted, it can purchase land from Scheduled Caste/Scheduled Tribe and then sell it to a non-Scheduled Caste and Scheduled Tribe, a situation the legislature wanted to avoid. A thing which cannot  be  done  directly  cannot  be  done  indirectly overreaching the statutory restriction.

13.    We are, therefore, of the view that the reasoning of the High Court that the respondent being a juristic person,  the  sale  effected  by a  member  of  Scheduled Caste to a juristic person, which does not have a caste, is not hit by Section 42 of the Act, is untenable and gives  a  wrong  interpretation  to  the  abovementioned provision.”

         In view of the aforesaid dictum it is crystal clear that the sale to

the  Society  which  is  a  juristic  person  is  ab  initio void  and  not

recognisable in the eye of law.  

23. This Court in Manchegowda & Ors. v. State of Karnataka &

Ors. [(1984) 3 SCC 301] has considered the validity of sections 3, 4

and  5  of  the  Karnataka  Scheduled  Castes  and  Scheduled  Tribes

(Prohibition of Transfer of Certain Lands) Act, 1978 which prohibited

transfer of granted lands and provided for resumption thereof, it was

held  that  even  the  prohibited  transaction  effected  prior  to

commencement of the Act can be nullified and sections 4 and 5 are

not violative of  Article 19(1)(f)  as  it  stood prior  to its  omission in

1978. Neither the provision is violative of Articles 31 and 31A of the

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Constitution of India and a transferee shall have no property right and

recovery of such property would not attract Article 31 or 31A. This

Court also held that the provisions have reasonable nexus with the

object sought to be achieved. The Scheduled Castes and Scheduled

Tribes form a distinctive class. Exclusion of other communities from

the provision is  not  discriminatory. The right  of  the Legislature  to

declare such transactions to be void has been upheld by this Court in

following manner :  

“12.   In  pursuance  of  this  policy, the  Legislature  is undoubtedly competent to pass an enactment providing that transfers of such granted lands will be void and not merely  voidable  for  properly  safeguarding  and protecting  the  interests  of  the  Scheduled  Castes  and Scheduled Tribes for  whose benefit  only these  lands had  been  granted.  Even  in  the  absence  of  any  such statutory  provisions,  the  transfer  of  granted  lands  in contravention of the terms of the grant or in breach of any law, rule  or  regulation  covering  such  grant  will clearly be voidable and the resumption of such granted lands  after  avoiding  the  voidable  transfers  in accordance with law will be permitted. Avoidance of such voidable transfers and resumption of the granted lands  through process  of  law is  hound to take  time. Any negligence and delay on the part of the authorities entitled to take action to avoid such transfers through appropriate legal process for resumption of such grant may be further impediments in the matter of avoiding such  transfers  and  resumption  of  possession  of  the granted  lands.  Prolonged  legal  proceedings  will undoubtedly  be  prejudicial  to  the  interests  of  the members of the Scheduled Caste and Scheduled Tribe

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for whose benefit the granted lands are intended to be resumed. As transfers of granted lands in contravention of the terms of the grant or any law, regulation or rule governing  such  grants  can  be  legally  avoided  and possession  of  such  lands  can  be  recovered  through process of law, it must be held that the Legislature for the  purpose  of  avoiding  delay  and  harassment  of protracted  litigation  and  in  furthering  its  object  of speedy  restoration  of  these  granted  lands  to  the members  of  the  weaker  communities  is  perfectly competent to make suitable provision for resumption of such granted lands by stipulating in the enactment that transfers of such lands in contravention of the terms of the grant or any regulation, rule or law regulating such grant will be void and in providing a suitable procedure consistent  with  the  principles  of  natural  justice  for achieving this purpose without recourse to prolonged litigation in Court in the larger interests of benefiting the members of the Scheduled Castes and Scheduled Tribes.”

24. Without payment of compensation, land can be resumed has

also been held by this Court and even in a case when grant was for a

certain period, the land could be resumed. The vires of the provisions

contained in sections 4 and 5 resuming the land without compensation

has been upheld.  In Manchegowda (supra), this Court has laid down

thus :

“19.   We have earlier noticed that the title which is acquired  by  a  transferee  in  the  granted  lands, transferred in contravention of the prohibition against the  transfer  of  the  granted  lands,  is  a  voidable  title

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(f), 31(1) and 31(2) of  the  Constitution.  This  Court observed at p. 834:

“Learned  Counsel  for  the  Petitioners  has strenuously  urged  that  under  the quasi-permanent  allotment  scheme  the allottee  is  entitled  to  a  right  to  possession within the limits of the relevant notification and  that  such  right  to  possession  is  itself 'property'. That may be so in a sense. But it does  not  affect  the  question  whether  it  is property  as  to  attract  the  protection  of fundamental rights under the Constitution. If the  totality  of  the  bundle  of  rights  of  the quasi-permanent allottee in the evacuee land constituting an interest  in such land,  is  not property  entitled  to  protection  of fundamental  rights,  mere  possession of  the land by virtue of such interest is not on any higher footing.”

25. In the instant case, the transaction is ab initio void that is right

from its inception and is not voidable at the volition by virtue of the

specific language used in section 42 of the Rajasthan  Tenancy Act.

There is declaration that such transaction of sale of holding “shall be

void”.  As  the  provision  is  declaratory,  no  further  declaration  is

required to declare prohibited transaction a nullity. No right accrues to

a person on the basis of such a transaction. The person who enters into

an agreement to purchase the same, is aware of the consequences of

the  provision  carved  out  in  order  to  protect  weaker  sections  of

Scheduled  Castes  and  Scheduled  Tribes.  The  right  to  claim

compensation accrues from right, title or interest in the land. When

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such  right,  title  or  interest  in  land  is  inalienable  to  non-SC/ST,

obviously  the  agreements  entered  into  by  the  Society  with  the

Khatedars are clearly void and  decrees obtained on the basis of the

agreement are violative of the mandate of section 42 of the Rajasthan

Tenancy Act and are a nullity. Such a prohibited transaction opposed

to public policy, cannot be enforced. Any other interpretation would

be defeasive of the very intent and protection carved out under section

42 as per the mandate of Article 46 of the Constitution, in favour of

the poor castes and downtrodden persons, included in the Schedules to

Articles 341 and 342 of the Constitution of India.

26. In State of Madhya Pradesh v. Babu Lal & Ors. [1977 (2) SCC

435] the provisions contained in section 165(6) of M.P. Land Revenue

Code, 1959 came up for consideration before this Court.  The High

Court directed the State to file a suit for declaring the decree null and

void.  The  decision  was  set  aside.  It  was  held  that  the  case  was  a

glaring instance of violation of law as such the High Court erred in not

issuing a  writ.  The  decision  of  the High Court  was  set  aside.  The

transfer  which  was  in  violation  of  proviso  to  section  165(6)

transferring the right of Bhuswami belonging to a tribe, was set aside.

27. This Court in  Lincal Gamango & Ors. v. Dayanidhi Jena &

Ors. [AIR 2004 SC 3457] while considering the provisions of Orissa

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Scheduled  Areas  Transfer  of  Immovable  Property  (by  Scheduled

Tribes) Regulation, 1956 which prohibited alienation of rural property

by a tribal to a non-tribal,  declared such transaction to be null  and

void. This Court while relying upon the decision in Amrendra Pratap

Singh v. Tej Bahadur Prajapati & Ors. [AIR 2004 SC 3782] has laid

down that  no right  can be acquired by adverse possession on such

inalienable  property.  Adverse  possession  operates  on  an  alienable

right. It was held that non-tribal would not acquire a right or title on

the  basis  of  adverse  possession.  Relevant  discussion  is  extracted

hereunder :

“7.    We find both these reasons given by the High Court are not sustainable. Coming first to the second point,  we find  that  there  is  a  decision  of  this  Court direct  on  the  point.  It  is reported  in  AIR  2004  SC 3782, Amrendra  Pratap  Singh v. Tej  Bahadur Prajapati  and  Ors. The  matter  related  to  transfer  of land falling in tribal area belonging to the Scheduled Tribes. The matter was governed by Regulations 2, 3 and  7-D  of  the  Orissa  Scheduled  Areas  Transfer  of Immovable  Property  (By  Scheduled  Tribes) Regulations,  1956  viz.  the  same  Regulations  which govern this case also. The question involved was also regarding acquisition  of  right  by adverse  possession. Considering  the  matter  in  detail,  in  the  light  of  the provisions  of  the  aforesaid  Regulation,  this  Court found  that  one  of  the  questions  which  falls  for consideration  was  "whether  right  by  adverse possession can be acquired by a non-aboriginal on the property belonging to a member of aboriginal tribe"?

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(para 14 of the judgment). In context with the above question posed, this Court observed in para 23 of the judgment as follows :

"......The right in the property ought to be one which is  alienable  and is  capable  of  being acquired  by  the  competitor.  Adverse possession operates on an alienable right The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognized by doctrine of adverse possession as having been alienated involuntarily, by default and inaction on the part of the rightful claimant....."

“This Court then noticed two decisions one that of the Privy  Council  reported  in AIR  1923  P.C. 205 Madhavrao  Woman  Saundalgekar  and  Ors. v. Raghunath  Venkatesh  Deshpande  and  Ors.,  and  Karimullakhan  s/o.  Mohd  Ishaqkhan  and Anr. v. Bhanupratapsingh, holding that title by adverse possession on inam lands,  Watan lands and Debutter was incapable of acquisition since alienation of such land  was  prohibited  in  the  interest  of  the  State.  We further find that  the decision in the case of Madhiya Nayak (supra)  relied  upon  by  the  High  Court  was referred to before this Court and it is observed that the question  as  to  whether  a  non-tribal  could  at  all commence prescribing acquisition of  title  by adverse possession over the land belonging to a tribal which is situated  in  a  tribal  area,  was  neither  raised  nor  that point  had arisen in the case of Madhiya Nayak.  It  is further observed that the provisions of Section 7-D of the Regulations are to be read in the light of the fact that  the  acquisition  of  right  and  title  by  adverse possession is claimed by a tribal over the immovable property of another tribal but not where the question is in  regard  to  a  non-tribal  claiming  title  by  adverse possession over the land belonging to a tribal situate in a  tribal  area.  It  is,  therefore,  clear  in  view  of  the decision in the case of Amrendra Pratap Singh (supra) that a non-tribal would not acquire right and title on the basis  of  adverse  possession.  Therefore,  the  second

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ground  for  setting  aside  the  order  passed  by  the appellate  court  falls  through.  Therefore,  the  other factual aspect about the possession of the respondents over the disputed land and entries in their favour may also  not  be  of  much  consequence,  in  any  case,  this aspect  of  the  matter  has  to  be  seen  and  considered afresh in the light of other facts and circumstances of the case.”

28. This Court in Amrendra Pratap (supra) has laid down that the

expression  ‘transfer’  would  include  any  dealing  with  the  property

when  the  word  ‘deal  with’  has  not  been  defined  in  the  statute.

Dictionary meaning as the safe guide can be extended to achieve the

intended  object  of  the  Act.  The  transaction  or  the  dealing  with

alienable property to transfer title of an aboriginal tribe and vesting

the  same  in  non-tribal  was  construed  as  transfer  of  immovable

property.  Extending  the  meaning  of  the  expression  ‘transfer  of

immovable  property’ would  include  dealing  with  such  property  as

would have the effect of causing or resulting in transfer of interest in

immovable property. When the object of the legislation is to prevent a

mischief  and  to  confer  protection  on  the  weaker  sections  of  the

society, the court would not hesitate in placing an extended meaning,

even a stretched one, on the word, if in doing so the statute would

succeed  in  attaining  the  object  sought  to  be  achieved.  When  the

intendment of the Act is that the property should remain so confined in

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its operation in relation to tribals that the immovable property to one

tribal may come but the title in immovable property is not to come to

vest in a non-tribal the intendment is to be taken care by the protective

arm  of  the  law  and  be  saved  from  falling  prey  to  unscrupulous

devices,  and  this  Court  concluded  any  transaction  or  dealing  with

immovable  property  which  would  have  the  effect  of  extinguishing

title,  possession  or  right  to  possess  such  property  in  a  tribal  and

vesting  the  same  in  a  non-tribal,  would  be  included  within  the

meaning of ‘transfer of immovable property’.  

29. It was further submitted on behalf of the Society that though a

purchaser after issuance of notification under section 4(1) of the Land

Acquisition Act cannot question the legality of the notification, but,

can  lay  a  claim  for  payment  of  compensation.  Reliance  has  been

placed on  U.P.Jal Nigam, Lucknow through its Chairman & Anr.  v.

Kalra  Properties  (P)  Ltd.,  Lucknow  &  Ors.  [1996  (3)  SCC  124].

When we consider the aforesaid dictum, this Court has laid down that

after notification under section 4(1) was published, sale of land is void

against the State and M/s. Kalra Properties acquired no right, title or

interest in the land and it is a settled law that it cannot challenge the

validity of the notification or the regularity in taking possession of the

land before publication of the declaration under section 6. M/s. Kalra

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Properties,  though  acquired  no  title  to  the  land,  at  best  would  be

entitled to step into the shoes of the owner and claim compensation.

However, in the instant case, it was a transaction which was not only

void against the State but also void inter se vendor and vendee.  

30.       The right to claim compensation cannot be enforced by the

Society on the basis of such transaction as that would defeat the very

object  of  the  Act  and  the  constitutional  provisions  including  such

castes and tribes under the protective umbrella of  the Schedules to

Articles 341 and 342, they cannot be deprived of right to obtain the

compensation of  the land legally held by them and they cannot be

made to fall prey to unscrupulous devices of land grabbers. The right

to claim compensation is based on right, title or interest in the land,

cannot  be  transferred  by  virtue  of  the  mandate  of  section  42  to  a

juristic person like the Society. It is the duty of the State to ensure that

the  benefit  reaches  to  such  persons  directly  and  not  usurped  by

intermeddlers as what is intended by the protection of the right to hold

property  of  SC/ST,  cannot  be  taken  away  by  disbursing  the

compensation to Society. Persons of SC/ST, as the case may be, are

the only rightful claimants to disbursal of compensation and such right

cannot  be  tinkered  with  by  void  transaction  as  the  purpose  of

compensation is the re-settlement of Scheduled Castes or tribes.

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court shall pass order on the application as it may deem proper.”

35. There is no doubt about it that section 175 provides for

ejectment  for  illegal  transfer  or  subletting  in  contravention  of  the

provisions of the said Act. However, there is no question of ejectment

proceedings  being  filed  in  the  instant  case  under  the  aforesaid

provision that would have been exercised in futility as admittedly the

possession has already been taken by the State on 22.5.1982. Apart

from  that,  voidity  of  the  transaction  can  be  looked  into  in  these

proceedings also when right to claim compensation is asserted by the

Society and from factual conspectus of the instant case it is apparent

that  Khatedars  belong  to  Scheduled  Castes  and  they  cannot  be

deprived of their right to claim compensation, intendment of section

42 can be effectuated in these proceedings.

36. On  behalf  of  the  Society,  reliance  has  been  placed  on  a

decision of this Court In Nathu Ram (dead) by LRs. & Ors. v. State of

Rajasthan  & Ors.  [2004  (13)  SCC 585]   in  which  this  Court  has

considered the provisions of the Rajasthan Tenancy Act as it  stood

prior to its amendment made in the Act. The limitation prescribed was

12 years from the date of transfer. After the amendment, it is thirty

years. It was also laid down that though the transfer was by itself void

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but the period of limitation would be applicable. In the instant case,

there is no question of initiating the process under section 175 of the

Rajasthan Tenancy Act as much before passing of the decrees by the

civil court in the year 1986, possession had been taken by the State in

May,  1982  much  before  limitation  lapsed.  Thus,  institution  of

proceedings for ejectment was not warranted.

37. In Ram Karan (dead) through LR & Ors. v. State of Rajasthan

& Ors. [2014 (8) SCC 282], this Court has laid down that transfer of

holding by a member of Scheduled Caste to a member not belonging

to Scheduled Caste by virtue of section 42 of the Rajasthan Tenancy

Act is forbidden and unenforceable.  Such a transaction is  unlawful

even under section 23 of the Contract Act and an agreement or such

transfer would be void under section 2(g) of the Contract Act. This

Court  also  considered  limitation  for  filing  ejectment  under  section

175. The proceeding filed after  31 years was held to be barred by

limitation. The decision is distinguishable for aforesaid reasons.

38. It was next contended on behalf of the Society that the Society

has acquired a right and such right to hold property cannot be taken

away  except  in  accordance  with  the  provisions  of  a  statute.  If  a

superior right to hold the property is claimed, the due procedure must

be complied with.  Reliance has been placed on  Lachhman Dass v.

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Jagat Ram & Ors. [2007 (10) SCC 448], in which this Court has laid

down thus:

“16.    Despite  such  notice,  the  appellant  was  not impleaded as a party. His right, therefore, to own and possess the suit land could not have been taken away without  giving  him  an  opportunity  of  hearing  in  a matter  of  this  nature.  To  hold  property  is  a constitutional  right  in  terms  of  Article 300A of  the Constitution of India. It is also a human right. Right to hold property, therefore, cannot be taken away except in  accordance  with  the  provisions  of  a  statute.  If  a superior  right  to  hold  a  property  is  claimed,  the procedures  therefore  must  be  complied  with.  The conditions precedent therefore must be satisfied. Even otherwise,  the  right  of  pre-emption  is  a  very  weak right, although it is a statutory right. The Court, while granting a relief in favour of a pre-emptor, must bear it in mind about the character of the right, vis-a-vis, the constitutional and human right of the owner thereof.”

39. Reliance has also been placed in Tukaram Kana Joshi & Ors.

through  Power-of-Attorney  holder v.  Maharashtra  Industrial

Development Corpn. & Ors. [2013 (1) SCC 353] in which it has been

laid down thus :

“8.   The Appellants were deprived of their immovable property in 1964, when Article 31 of the Constitution was still intact and the right to property was a part of fundamental  rights  under  Article 19 of  the Constitution. It is pertinent to note that even after the Right to Property seized to be a Fundamental Right, taking  possession  of  or  acquiring  the  property  of  a

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citizen most certainly tantamounts to deprivation and such  deprivation  can  take  place  only  in  accordance with the "law", as the said word has specifically been used  in  Article 300-A of  the  Constitution.  Such deprivation  can  be  only  by  resorting  to  a  procedure prescribed by a statute. The same cannot be done by way  of  executive  fiat  or  order  or  administration caprice. In Jilubhai Nanbhai Khachar, etc. etc. v. State of Gujarat and Anr. AIR 1995 SC 142, it has been held as follows: -

“In  other  words,  Article 300-A only  limits the power of the State that no person shall be deprived of his property save by authority of law. There is no deprivation without due sanction  of  law. Deprivation  by  any  other mode is not acquisition or taking possession under Article 300-A. In other words, if there is no law, there is no deprivation.””

40. In Rajendra Nagar Adarsh Grah Nirman Sahkari Samiti Ltd.

v. State of Rajasthan & Ors. [2013 (11) SCC 1] and Mathew Varghese

v. M.Amritha Kumar & Ors. [2014 (5) SCC 610], observations as to

the similar effect had been made.

41. When we consider the aforesaid submission, it is apparent that

the right to hold property cannot be taken away except in accordance

with the provisions of the statute but in the instant case, we are of the

considered view that the right to hold property albeit  had not been

acquired by the Society, transction was ab initio void and a nullity. On

the other hand, the land has been acquired by the State Government

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and even the right to claim compensation was denied to the Society in

the  award  passed  on  30.11.1982  by  rejecting  their  objections.  The

recourse to section 175 was not required as already held by us. The

question of entitlement of the Society is involved in the cases in view

of  award  dated  30.11.1982  rejecting  right  of  the  Society  to  claim

compensation.  Thus,  it  cannot be said that there is violation of the

principles laid down by this Court  in aforesaid cases with respect to

right to hold property which cannot be taken away except as provided

in the provisions of the statute.  

42. Coming to the question of direction to consider allotment of

land and quantum of compensation determined in the instant case, the

Reference Court had determined compensation at Rs.260 per sq.yd.

whereas the High Court has determined it at Rs.100 per sq.yd. and the

Division  Bench  has  in  addition  ventured  into  directing  the  State

Government  to  consider  the  prayer  for  allotment  of  25%  of  the

developed land to the Society in the light of Circular dated 27.10.2005

issued by the State Government and its decision in Smt. Ratni Devi v.

State of Rajasthan & Ors. – DB Special Appeal No.697/1995 decided

on 12.4.2007.  

          First, we take up the question as to the legality of the direction

issued  by  the  High  Court  with  respect  to  allotment  of  25%  of

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developed land in terms of the order passed in the case of Smt. Ratni

Devi (supra).

43. When we consider  the  Circular  dated  27.10.2005,  the  State

Government  considered  the  prevalent  scheme  in  which  Khatedars

could ‘surrender’ their land without compensation and would obtain

25% of the developed residential area in lieu thereof. Paras 1 and 4 of

the Circular are relevant and are quoted below :

“1.  In  the  matters  of  land  acquisition  on  making  a surrender  of  the  land  by  the  Khatedar,  he  will  be entitled  for  maximum  20%  residential  and  5% commercial  land  to  the  said  person  from whom the land has been acquired.  But for the Khatedar no other person shall be allotted the land, even if nominated by him.”

x x x x x

“4. These provisions shall only be applicable, in case of  future  acquisitions.   These  provisions  shall  be specifically  be  applicable,  wherein  the  Land Acquisition  Officer have already declared the award and the compensation amount has been paid/deposited in  the  Court  or  15% land  have  been  allowed  to  be allotted in the award.”    

44. It is apparent from para 1 that the Circular is applicable in the

matter of land acquisition when the Khatedars surrendered their lands.

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45. Para 4 of circular makes it clear that the provisions shall apply

in case of future acquisitions and the provisions shall not apply where

the Land Acquisition Officers have already passed the award/s.  

46.         In the instant case, even the prevalent instructions which have

been modified did not confer any right on the Society or the Khatedars

to claim the developed land. It was not a case of surrender of land;

thus  there  was  no question  of  the  provisions  of  the  circular  being

applied  as  the  circular  was  in  the  form  of  guidelines  for  future

acquisitions where Khatedars surrendered their lands and award has

not been passed. For the aforesaid reasons, the aforesaid circular could

not have been pressed into service by the Society and that too at the

appellate stage before the Division Bench. The Division Bench has

gravely erred in law while issuing the aforesaid directions which were

wholly unwarranted and uncalled for.

47. When we consider the decision in  Smt. Ratni Devi (supra), it

was based upon a concession made by the counsel who appeared on

behalf of the Jaipur Development Authority. The applicability of the

Circular was not considered by the Division Bench. The matter was

decided on the basis  of  concession and the agreement  between the

parties. It was submitted before us on behalf of the Rajasthan Housing

Board  that  a  review  petition  had  been  preferred  for  recalling  the

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aforesaid concession made unauthorisedly before the court. Be that as

it may. In our opinion, the Circular itself is not applicable and it was

clearly a misadventure on the part of the Division Bench in the instant

case to rely upon the aforesaid decision in Smt. Ratni Devi (supra). No

negative equality could be claimed.  

48. Earlier  Circular  dated  13.12.2001  had  been  issued  by  the

Deputy  Secretary  to  the  Government  of  Rajasthan  with  respect  to

allotment of 15% of the developed land. It has not been issued in the

name of the Governor. This Court has considered the enforceability of

such circulars in Jaipur Development Authority & Ors. v. Vijay Kumar

Data  & Anr.  [2011 (12)  SCC 94].  This  Court  has  referred  to  the

decision in Jaipur Development Authority v. Radhey Shyam [1994 (4)

SCC 370]  in  which  the  decision  of  the  LAO to  allot  the  plots  in

addition to compensation was set aside and it was held that even in

execution it was open to raise the question of validity or nullity of the

decree.  Following  is  the  relevant  discussion  in  Vijay  Kumar  Data

(supra) :  

“12. 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 case [1994 (4) SCC 370]. After noticing the provisions of Sections 31(3) and (4) of the 1953 Act on which reliance was placed by the Senior  Counsel  appearing for  the  respondents,  this  Court

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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 para 7 of the judgment :  

“7. 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.”

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13.  The  Court  in  Radhey  Shyam  case  (supra) also considered  the  question  whether  the  appellant  could challenge  the  award  in  the  execution  proceedings  and answered the same in the affirmative. The reasons for this conclusion  are  contained  in  para  8  of  the  judgment,  the relevant portion of which is extracted below :  

“8.  …  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)”

49. In  Vijay  Kumar  Data (supra),  this  Court  referred  to  the

decision in  Jaipur Development Authority v. Daulat Mal Jain [1997

(1) SCC 35] in following terms :

“14.  The  legality  and  correctness  of  the  order  dated 24-9-1993 passed by the Division Bench of the Rajasthan High Court in DBCSAW No. 680 of 1992 was considered in Jaipur Development Authority v.  Daulat Mal Jain (supra).

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This  Court  noted  that  the  Lokayukta  of  Rajasthan  had severely criticised the actions of the then Minister of Urban Development  and  Housing  Department,  Commissioner, Jaipur Development Authority and Zonal Officer of the Lal Kothi Scheme, referred to the Rajasthan Improvement Trust (Disposal of Urban Land) Rules, 1974 and held :

“22. 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,  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 sq yd was acquired, was compensated with allotment of 2000 sq yd 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

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device to get illegal gratification or distribution of public  property  defeating the  public  purpose  by misuse of public office.”

15. The Court further held in  Daulat Mal Jain case (supra) 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 deflect the public purpose. This is evinced from para 23 of the judgment, which is extracted below:  

“23.  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.”

50.        The plea of discrimination was adversely commented upon by

this Court in  Vijay Kumar Data (supra) referring to the decision in

Daulat Mal Jain (supra) thus :

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“16.  The plea of discrimination which found favour with the High Court was also negatived by this Court in Daulat Mal  Jain  case   (supra)  by  making  the  following observations:  

“24. 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 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

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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.”

51. In Vijay Kumar (supra), this Court after quoting circular of the

State Government dated 6.12.2001 issued by the Deputy Secretary of

the Administration has observed thus :  

“49.  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  in  the rules to be made by the President or the Governor, as the case may be (Articles 77(2) and 166(2)).

x x x x x

52.   Article  166  was  interpreted  in  State  of  Bihar v. Kripalu Shankar (1987 (3) SCC 34] and it was observed:

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“14. 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 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.’

15.  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

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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).”

53.  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 the Letter dated 6-12-2001 shows that it was neither expressed in the name of  the  Governor  nor  was  it  authenticated  in  the  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.

54.  We are further of the view that even if the instructions contained  in  the  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 case (supra) and Daulat Mal Jain case (supra) and was a crude attempt by the political functionaries concerned of the State to legalise what had already been declared illegal by this Court.”

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52. Thus,  it  is  apparent  that  the  circular  in  question  cannot  be

pressed into service by the Society. Apart from inapplicability, it  is

also apparent that the very purpose of issuing such circulars is not to

benefit  the  purchaser  who has  acquired  the  right  after  issuance  of

notification under section 4 of Rajasthan Land Acquisition Act, and in

violation of mandate of section 42. Consequently, the High Court had

no jurisdiction to direct allotment of land. Even Khatedars were not

entitled to such direction/benefit as the circulars are not applicable in

such cases.

53. We may refer to the decision in  Hari Ram & Anr. v. State of

Haryana & Ors.  [2010 (3)  SCC 621] relied upon on behalf of the

Society in which this Court considered passing of different orders, in

respect  of  persons  similarly  situated,  relating  to  same  acquisition

proceedings. The action was held to be violative of Article 14 being

discriminatory.  There  is  no  doubt  about  it  that  different  standards

cannot be applied for withdrawal from acquisition. The present is not

such a case. The circular is not applicable. We cannot direct the State

to act upon the circulars which are not applicable. Under the Code that

all actions of the State are to be fair and legitimate, we cannot create

negative equality and confer a benefit  that too on the strength of a

concessional statement which is not provided by circular. Concession

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made by the counsel in Ratni Devi’s case (supra) cannot widen scope

of  circular.

54. We may also refer to other decisions relied upon in Usha Stud

and Agricultural Farms Pvt. Ltd. & Ors. v. State of Haryana & Ors.

[2013 (4) SCC 210] laying down that once a State Government has

taken  a  conscious  decision  to  release  the  land,  there  would  be  no

justification  whatsoever  for  the  State  for  not  according  similar

treatment to the appellants is also of no avail to the Society.

55. Coming to the quantum of compensation to be awarded in the

instant case, it was submitted on behalf of the Society and Khatedars

in respective appeals that the compensation determined by the High

Court  is  on  lower  side.  Adequate  compensation  has  not  been

determined. It was submitted that oral evidence which was relied upon

by the Reference Court ought to have been acted upon by the High

Court. It was contended that the oral evidence cannot be ignored. By

virtue of decisions in  State of Gujarat & Ors. v. Rama Rana & Ors.

[1997 (2) SCC 693], Satyanarayana & Ors. v. Bhu Arjan Adhikari &

Ors. [2011 (15) SCC 133] and  Ramanlal Deochand Shah v. State of

Maharashtra & Anr. [2013 (14) SCC 50].  

56.          The price of the land per sq. yd. was determined by the

Reference Court. The documentary evidence which has been referred

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to  by  the  Reference  Court  comprises  of  Ex.  1  agreement  dated

26.8.1982 at  the  rate  of  Rs.135  per  sq.yd.,  Ex.  3  agreement  dated

7.1.1982 at the rate of Rs.165 per sq.yd., agreement dated 28.9.1981 at

the  rate  of  Rs.135  per  sq.yd.  for  244  sq.yd.  and  agreement  dated

5.5.1979 at the rate of Rs.94 per sq.yd. Certain transactions of 1983

were also referred which have to be ignored being subsequent to the

date  of  notification under section 4.  However, referring to  the oral

statement of the witnesses in which value was stated to be much more,

the Reference Court has arrived at the conclusion of Rs.260 per sq.yd.

The Single Bench of the High Court considered and referred to both

the oral and documentary evidence.  Ex.1 agreement dated 26.8.1982

about the sale of plot No.55 situated in Krishna Vihar Gopalpura @

Rs.115/- per sq. yds., Ex.3 is agreement to sale of land of 200 sq. yds.

Agreement dated 7.1.1982 at the rate of Rs.165/- per sq. yds. situated

at Maharani Farm Duragapura. Ex.4-A  agreement to sale of 244 sq.

yds. dated 29.8.1981 @ Rs.135/- per sq.yds. situated at Brijalpur from

Krishnapuri  Housing  Society,  Ex.5  agreement  dated  24.7.1982  of

18000 sq.yds. of land @ Rs.125/- per sq.yds. for a total amount of

Rs.22,55,000/- entered between Meena Kumari Housing Society and

trustee Devi Shanker Tiwari, Ex. 7 Agreement dated 16.9.1983 about

the sale  of  land measuring 147 sq.  yds.  for  Rs.22,100/-  approx.  @

Rs.150/-  per  sq.  yds.  and  the  land  situated  in  gram  panchayat

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Bhagyawas,  Ex.8   agreement  dated  5.5.1979  of  34,000  sq.yds.  @

Rs.90-94 per sq. yds.  

57. It  also considered oral  evidence in detail  and has not relied

upon the same and has arrived at the average price to be Rs.135 per

sq.yd. making certain deduction as large area has been acquired. In

case area in question had been developed, certain area was bound to

go in the development. Thus, deduction which has been made to arrive

at the figure of Rs.100 per sq.yd. is proper. We find in the facts and

circumstances  of  the  case  that  the  finding arrived  at  by  the  single

Bench to be appropriate. No doubt about it. Oral evidence can also be

taken into consideration but in the facts of this case, the best evidence

is  documentary  evidence  which  has  to  prevail.  In  the  face  of  the

documentary evidence evincing the price of the land per sq.yd.  the

oral evidence which was based upon ipse dixit and without any sound

basis, could not have been accepted by the Reference Court. Thus, the

grave error which was committed had been rightly set at naught by the

single Bench of the High Court, which determination of compensation

has also not been interfered by a Division Bench.  

58.      Reliance has been placed upon  State of Gujarat & Ors. v.

Rama Rana & Ors. [1997 (2) SCC 693] with respect to acceptance of

oral  evidence  in  which  case  there  was  failure  on  the  part  of  the

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Agricultural Department to produce statistics as to the nature of the

crops and the prices prevailing at that  time. In that  context,  it  was

observed that oral evidence cannot be rejected due to such failure and

the court has a duty to subject the oral evidence to great scrutiny and

to evaluate  the evidence  objectively and dispassionately  to  reach a

finding on compensation.  

59.         Reliance has also been placed on Satyanarayana v. Bhu Arjan

Adhikari & Ors. [2011 (15) SCC 133] in which it has been laid down

that  an analysis  of  the evidence  by the Reference  Court  has to  be

satisfactory. Reliance has also been placed on  Ramanlal  Deochand

Shah v. State of Maharashtra & Anr. [2013 (14) SCC 50] laying down

that it is for the claimant to prove that the amount awarded by the

Collector  needs  an  enhancement  and  for  that  purpose,  oral  and

documentary  evidence  can  be  adduced  and  when  there  is

non-consideration of material evidence, the case can be remanded to

lead evidence. In this case, there is proper scrutiny and evaluation of

oral and documentary evidence by the High Court. The decision of the

High Court with respect to determination of compensation deserves to

be upheld.  

60.     The High Court has rejected the application under Order 1 Rule

10 filed by the Khatedars. In the facts of  this case, particularly when

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the issue of  violation of  section 42 of  Rajasthan Tenancy Act  was

raised by the State Government and reference was also as to the award

passed  in  1982  in  favour  of  Khatedars  in  which  the  Society  was

denied the right to receive compensation. Obviously, Khatedars were

required to be heard as the adjudication of their right was involved in

the  matter  to  decide  to  whom  the  compensation  is  payable,  and

whether the Society was entitled to claim compensation on the basis

of void transaction. It was also submitted before us that the Khatedars

have  sought  reference  under  section  30  against  the  Society,  that

question can be decided in those proceedings. However, the factual

matrix  and  its  determination  of  the  question  as  to  entitlement  of

Society is necessary in the instant case, as such we have decided it.

More so,  the plight of downtrodden class of the Scheduled Castes

Khatedars cannot be prolonged and considering the provisions which

have been enacted for their protection, and the constitutional mandate,

we are inclined to exercise our power to set at rest the dispute between

the parties and hold that only Khatedars, in case some of them have

died,  their  legal  representatives  would  be  entitled  to  receive  the

compensation which has been determined in the instant case.   

61. In order to protect the interest of the Scheduled Caste persons,

we further direct that the Society or other intermeddler, or power of

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attorney holder shall not be paid compensation on their behalf and the

Collector/Land Acquisition Officer to ensure that the compensation is

disbursed directly to the Khatedars or their legal representatives, as

the case may be, and that they are not deprived of the same by any

unscrupulous devices of land grabbers etc. Let the compensation be

disbursed within a period of three months from today along with other

permissible statutory benefits.

62. The direction issued by the High Court to grant 25% of the

developed  land  is  hereby  set  aside.  The  appeals  preferred  by  the

Rajasthan  Housing  Board  and  the  Khatedars  are  allowed  to  the

aforesaid extent and the remaining appeals are dismissed. Parties to

bear their own costs as incurred.  

.........................................CJI (H. L. Dattu)

...........................................J. (A.K. Sikri)

New Delhi; ...........................................J. May 1, 2015. (Arun Mishra)