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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO.  13940   OF 2015      [ARISING OUT OF S.L.P. (C) NO. 28415 OF 2011]

LALARAM & OTHERS         …..APPELLANTS

VERSUS

JAIPUR DEVELOPMENT AUTHORITY & ANR. ..RESPONDENTS

WITH  

CIVIL APPEAL NO.  13941   OF 2015 [ARISING OUT OF S.L.P. (C) NO. 29515 OF 2011]

CHOTU RAM           …..APPELLANT

VERSUS

JAIPUR DEVELOPMENT AUTHORITY & ANR. ..RESPONDENTS

WITH

CIVIL APPEAL NO. 13942  OF 2015 [ARISING OUT OF S.L.P. (C) NO. 36111 OF 2011]

KANA RAM & OTHERS      …..APPELLANTS

VERSUS

JAIPUR DEVELOPMENT AUTHORITY & ANR. ..RESPONDENTS

WITH CIVIL APPEAL NO.  13943  OF 2015

[ARISING OUT OF S.L.P. (C) NO. 36175 OF 2011]

MADAN LAL & OTHERS      …..APPELLANTS

VERSUS

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JAIPUR DEVELOPMENT AUTHORITY    ..RESPONDENT

WITH

CIVIL APPEAL NO.  13944  OF 2015 [ARISING OUT OF S.L.P. (C) NO. 36179 OF 2011]

RUKMANI DEVI & OTHERS      …..APPELLANTS

VERSUS

JAIPUR DEVELOPMENT AUTHORITY & ANR. ..RESPONDENTS

J U D G M E N T

AMITAVA ROY,J.

Leave granted.

2. A procrastinated legal tussle spanning over three decades  

has spiralled up the judicial tiers to this Court seeking a quietus to  

the issue of adequate reparation of the appellants, consequent upon  

the compulsory acquisition of their lands for the Indian Army for its  

“Field Firing Range” in the year 1981.

3. The  debate  centres  around  the  grant  of  15% developed  

residential land in lieu of compensation which, as perceived by the  

oustees, had been promised by the Urban Development Department  

of the State Government by its proclaimed policy dated 13.12.2001.  

The State of Rajasthan (for short, hereinafter to be referred to as “the  

State/State Government”) and the Jaipur Development Authority (for  

short, hereinafter to be referred to as “JDA”) have taken turf together

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to successfully laciniate the appellants’ identification of such land,  

thus impelling them to impeach the impugned judgment and order  

dated  12.8.2011  rendered  by  the  High  Court  of  Judicature  for  

Rajasthan upholding  the  refutation.   Since  the  verdict  assailed  is  

common in all the appeals, the instant adjudication would suffice for  

the analogous disposal thereof.

4. We have heard Dr. Rajeev Dhawan and Mr. Dhruv Mehta,  

learned senior counsel for the appellants in Civil Appeals arising out  

of  S.L.P.(C)  Nos.  28415  of  2011  and  29515  of  2011,  Ms.  Bina.  

Madhavan, learned counsel for the appellants in Civil Appeals arising  

out of S.L.P. (C) Nos. 36111 and 36179 of 2011, Mr. Sakal Bhushan,  

learned counsel for the appellants in Civil Appeal arising out of S.L.P.  

(C) No. 36175 of 2012,  Mr. C.A. Sundaram, learned senior counsel  

for the respondent No. 1 and Mr. S.S. Shamshery, learned counsel for  

the respondent No. 2.

5. Filtering  out  the  unnecessary  details,  the  indispensable  

facts  are  that  the  lands  of  the  appellants  situated  at  Village  

Boytawala,  District  Jaipur  was  acquired  by  the  State  under  the  

Rajasthan Land Acquisition Act,  1953 (for  short,  hereinafter  to be  

referred to as “Rajasthan Act”) and the Notification under Section 4  

thereof to this effect was issued on 8.5.1981.  To reiterate, the land  

was acquired for the purpose of the Army for its “Field Filing Range”.

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The  award  under  the  Rajasthan  Act  was  passed  by  the  Land  

Acquisition Officer on 26.3.1983 and the possession of the land was  

taken over on 26.3.1983. Though the compensation was awarded by  

the Land Acquisition Officer @ Rs. 1500 per bigha, on reference being  

made  under  the  aforementioned  statute,  the  Reference  Court  

enhanced the same to Rs. 15000/- per bigha by its decision dated  

11.4.1994.  The determination of market value of the lands made by  

the Reference Court was unsuccessfully challenged by the Authority  

and its appeals were dismissed by the High Court on 30.8.2000.  The  

compensation  awarded  at  Rs.  15000/-  per  bigha,  thus  attained  

finality.  Compensation, the above notwithstanding, was deposited in  

the court concerned @ Rs. 1500 per bigha on 11.10.2001.  Thus, the  

amount  of  compensation  deposited  was  not  at  the  enhanced  rate  

fixed by the Reference Court and affirmed by the High Court.

6. Meanwhile,  by  circular  No.  F.6(19)UDH/3/89,  Jaipur  

dated  21.9.1999  issued  by  the  Government  of  Rajasthan,  Urban  

Development and Housing Department, it was notified by the State  

Government that it had taken a decision with reference to the earlier  

circulars,  as  mentioned therein,  that  developed land equivalent  to  

15% of the area required, may be given to the khatedars/land owners  

in  lieu  of  the  land  being  acquired/held  under  

acquisition/surrendered,  as  the  case  may  be,  in  land  acquisition

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cases  for  commercial  purposes.    A  meeting,  thereafter  of  a  High  

Powered  Body  under  the  chairmanship  of  the  Minister  of  the  

Department  of  Urban  Development,  Rajasthan  was  held  on  

18.10.2001 in which it was discussed that in several cases of land  

acquisition, though award had been passed, the compensation had  

not been paid to the land owners. It was decided that, in cases where  

compensation amount awarded had not been paid, though award had  

been  passed,  one  more  opportunity  to  the  khatedars  to  opt  for  

developed land  ought  to be afforded and on the basis of the merit of  

such claims, 15% developed land be allotted to them.  The option was  

made valid till 31.3.2001 and it was resolved that the allotment of  

land  would  be  made  through  the  allotment  committee  of  the  

concerned organization.  As the minutes of the said meeting would  

reveal, it was resolved as well that the developed land in lieu of the  

acquired land would be usually allotted only in the scheme area and  

at the place where the land acquired was situated and if it was not  

possible to develop the scheme within the fixed period of five months  

or if   it was not possible to give the land in the same area, only then  

the  land  would  be  allotted  in  some  other  area.   It  was  however  

underlined, that the concerned committee would as far as possible  

make an endeavour to allot such land to the land losers near the  

scheme area.

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7. The circular No. F6(19)/UDD/89, Jaipur dated 13.12.2001  

occupying the centre stage of the debate was thereafter issued by the  

Under  Secretary  to  the  Department  of  Urban  Development  with  

reference  to  the  circular/notification  No.  F.6(9)/UDH/89  dated  

21.9.1999, adverted to hereinabove.  The said circular took note of  

the pendency of land acquisition matters in which, though award had  

been passed but compensation could not be paid to the land owners.  

It noted as well, that said land owners in the past could not submit  

their options within the time prescribed due to lack of information  

about the provision of  allotment of  developed land in lieu of  cash  

compensation.   The circular recorded the decision of the State, to the  

effect  that  in  old  cases  in  which  award  had  been  passed  but  

compensation  could  not  be  made  to  the  khatedars,  one  more  

opportunity ought to be granted to them.   As a corollary, thereby the  

khatedars/land owners were left at liberty to exercise their option till  

28.2.2002 to be allotted 15% developed land in the scheme area by  

the  allotment  committee  of  the  concerned  organization,  after  the  

approval from the State.  The composition of the Committee in the  

eventualities  as  mentioned  therein  was  also  delineated.   The  

conditions  for  allotment  required,  inter  alia,  that  the  land  to  be  

allotted was to be developed residential land located “normally in the  

same scheme area and at the very place from where the land had

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been acquired” and not a commercial land.

8. Admittedly,  the  appellants  exercised  their  options  and  

submitted their applications within the time allowed for being allotted  

15% developed land in lieu of  the compensation payable  to them.  

They  did  so  in  writing  on  15.1.2002  whereby  in  the  applications  

addressed to the concerned authority, they recorded their request for  

15% developed land in Vidyadhar Nagar Scheme.

9. While  the  matter  rested  at  that,  the  JDA  on  17.5.2003  

issued an auction notice for sale of Group Housing plots in Vidyadhar  

Nagar Scheme.  This was challenged before the Appellate Tribunal,  

Jaipur  Development  Authority  Jaipur  (for  short,  hereinafter  to  be  

referred to  as “the Tribunal”)  under  Section 83(8)(a)  of  the Jaipur  

Development Authority Act, 1982 (hereinafter, in short to be referred  

to as “JDA Act”) , inter alia, alleging discrimination on the ground  

that persons similarly situated like the appellants, had been allotted  

developed lands in Vidyadhar Nagar Scheme, while they were sought  

to be deprived by the assailed initiative to auction the land within the  

said scheme.  The Tribunal, by its ruling dated 18.8.2003, annulled  

the auction notice and held that the JDA would not sell or auction  

the  plots  mentioned  therein,  till  the  appellants  were  allotted  15%  

developed land in the Vidyadhar Nagar Scheme.  The Writ Petition  

filed by the JDA before the High Court impugning the above decision

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of the Tribunal was dismissed on 4.1.2005.

10. Subsequent thereto, on 1.7.2005, the Deputy Secretary to  

the Government of Rajasthan, Nagariye Vibhag, addressed a letter to  

the Commissioner, JDA, Jaipur offering allotment of land in terms of  

the  Circular  dated  13.12.2001  to  the  concerned  

khatedars/beneficiaries, at Villages Lalchandpura and Anantpura  to  

be allotted through lottery.  Being aggrieved by the said decision and  

also the follow up process in connection therewith,  the appellants  

approached the Tribunal afresh. By the judgment and order dated  

18.10.2005, the Tribunal returned a finding that  appellants were  

entitled  to  be  allotted  15%  developed  land  in  Vidyadhar  Nagar  

Scheme,  as  plots  were  available  thereat.   Thereby the  respondent  

J.D.A was directed that the appellants be allotted developed land at  

Vidyadhar Nagar in lieu of their acquired land and also restrained it  

from allotting  or  selling  such  land  to  others.   In  arriving  at  this  

conclusion,  as  the  narration  in  the  decision  would  reveal,  the  

Tribunal took cognizance of the fact that the land of the appellants  

situated in Village Boytawala was acquired for Field Firing Range, in  

exchange whereof, the Ministry of Defence had handed over to the  

JDA, land at Vidyadhar Nagar.  It also recorded the fact that the JDA  

had  admitted  in  its  reply  that  the  price  of  the  offered  land  in  

Lalchandpura and Anantpura Villages was negligible in comparison

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to that of Vidyadhar Nagar.  It, thus held the view, that the proposal  

for allotment of land at Lalchandpura and Anantpura Villages to the  

appellants,  by  distinguishing  them  from  others  to  whom  15%  

developed  land  in  lieu  of  compensation  had  been  allotted  in  

Vidyadhar Nagar, was inappropriate.

11. Time rolled by without making any endeavour on the part  

of the JDA, to comply with the determination of the Tribunal.  It was,  

at  this  juncture,  that  the  JDA,  after  two years  addressed a  letter  

dated 16.10.2007 to the Deputy Secretary (P), Chief Minister Office,  

Rajasthan Government  reciting summarily  the  above facts.   While  

admitting that out of the khatedars, alike the appellants, whose land  

at Boytawala village had been acquired, two namely; S/Sh. Sedu and  

Nathu had been allotted 15% developed land in the Vidyadhar Nagar  

Scheme,  it  disclosed  that  at  that  point  of  time  as  well,   land  

measuring 1,10,500 sq. meters was available in the Vidyadhar Nagar  

Scheme.

12. Situated thus and appalled by the inaction on the part of  

JDA, the appellants approached the High Court with S.B. Civil Writ  

Petition  9908  of  2008,  complaining  of  non-compliance  of  the  

operative  directions  contained  in  the  judgment  and  order  dated  

18.10.2005 of the Tribunal.  By order dated 23.10.2008, the learned  

Single  Judge  required  the  JDA  to  comply  with  the  aforesaid

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directions within a period of two months.  It was recorded that the  

JDA  had  not  questioned  the  verdict  dated  18.10.2005  of  the  

Tribunal.  Being aggrieved, the JDA filed D. B. Civil Special Appeal  

No. 1879 of 2008 which also came to be dismissed on 17.11.2008.  

The JDA,  undaunted by the reverses,  approached this  Court  with  

Special leave Petition (C) No. 2901 of 2009 which was disposed on  

20.7.2009,  as  in  the  interregnum,  the  judgment  and  order  dated  

18.10.2005 of the Tribunal came to be assailed by the JDA in S. B.  

(Civil)  W.P. No. 539 of 2009 before the High Court.   By the order  

dated  20.7.2009,  this  Court,  however,  did  observe,  without  

expressing  any  opinion  on  the  merits  of  the  dispute,  that  the  

judgment and order dated 17.11.2008 of Division Bench of the High  

Court in challenge before it,  would be subject to any order,   that  

would be passed in the writ petition.

13. The Writ Petition No. 539 of 2009 was dismissed by the  

High  Court on 11.1.2010 where after the JDA preferred D.B. Civil  

Special  Appeal  No.  276  of  2010  against  the  same.  The  decision  

impugned  in  the  present  batch  of  appeals  arises  from  the  said  

verdict.

14. As the judgment under scrutiny herein would demonstrate,  

whereas the appellants  asserted that in terms of circulars, which  

they perceived to be in the form of state policy, they were entitled to

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15% developed land at  Vidyadhar Nagar,  as  the  land therein was  

given by the Army in exchange of the one at Boytawala, acquired for  

the  Field  Firing  Range,  the  JDA  emphatically  countered  the  said  

claim   pleading  that  not  only  land  at  Vidyadhar  Nagar  was  

unavailable for allotment, being reserved for various purposes under  

the  Group  Housing  Scheme,  the  Tribunal  lacked  jurisdiction   to  

entertain such a prayer and in particular in issuing a direction to  

allot such land at Vidyadhar Nagar to the appellants.  In response to  

the appellants’ contention that in lieu of the compensation not paid  

to  them,  they  were  entitled  to  15% developed  land  at  Vidyadhar  

Nagar as an adequate substitute thereof in terms of the Government  

circular/policy dated 13.12.2001 and that the denial of the benefit of  

the policy was apparently discriminatory, the JDA, amongst others,  

sought to substantiate that the land at Vidyadhar Nagar was much  

more valuable compared to the acquired land at Boytawala and the  

price  of  the  land  at  Lalchandpura  and  Anantpura   Villages  was  

adequately commensurate to the land acquired.   While alleging that  

the awarded amount had been deposited in the  concerned  Court but  

not withdrawn by the appellants, the JDA, however, admitted that  

the area of the 15% developed land to be allotted was 6539 sq. meters  

but  maintained  that  a  plot  of  this  extent  was  not  available  at  

Vidyadhar Nagar.

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15. The  State  in  turn pleaded,  that  the  policy  decision had  

been taken under the chairmanship of the Minister of Department of  

Urban  Development  on  18.10.2001,  whereafter  consequential  

notifications had been issued from time to time.  It however urged as  

well, that in compliance of the award passed by the Land Acquisition  

officer, cheques for the amount of compensation had been issued and  

deposited  in  favour  of  khatedars,  which  however  remained  

uncollected from this Reference Court in which it is deposited.

16. The Division Bench, in course of the adjudication noticed,  

that the Reference Court had enhanced the amount of compensation  

from Rs. 1500 per bigha accorded by the Land Acquisition Officer to  

Rs.  15000/-  per  bigha  in  the  year  1994  and  that  the  appeals  

preferred by the JDA against the same had been dismissed.  It also  

recounted the fact, that the land of the appellants situated in village  

Boytawala had been acquired for establishing a Field Firing Range for  

which the land at Vidyadhar Nagar earlier  earmarked for the said  

purpose  had  been  released  in  favour  of  JDA  for  Group  Housing  

Scheme.  It recorded as well the fact, that after the enhancement of  

compensation made by the Reference Court, the State had issued the  

circular dated 13.12.2001, pursuant to a meeting of a sub-committee  

under  the  chairmanship  of  the  Minister  of  Department  of  Urban  

Development on 18.10.2001, resolving to allot 15% developed land in

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cases where compensation had not been accepted by the claimants.  

That in response to the option called for from such willing land losers  

pursuant  to  the  circular  dated  13.12.2001,  the  same  had  been  

submitted in time, was noted as well.

17. The Division Bench, however, on a survey of the  Sections  

83 and 90 of the JDA Act held, in the prevailing conspectus of facts,  

that  the  decision  impugned  before  the  Tribunal  was  beyond  the  

purview of its jurisdiction and that it was not open for it to direct the  

respondents for allotment of land at Vidyadhar Nagar.  This finding of  

fact rendered by the High Court was premised on a deduction that  

the circular dated 13.12.2001 had not been issued in the name of the  

Governor  of  the  State  as  required  under  Article  166(1)  of  the  

Constitution of India and was not authenticated by the Governor as  

well as mandated under Article 166(2).  It also mentioned that the  

circular dated 13.12.2001 was bereft of any reference to the JDA Act,  

and thus the decision contained therein could not be construed to be  

one under the said statute.  Though it did notice that the decision  

was taken at the level of departmental minister and did relate to the  

land acquired under the Rajasthan Act,  it  was of  the view that  it  

could not be said to have been taken under any provision of the JDA  

Act.  Therefore, it has held that the circular dated 13.12.2001 did not  

have any statutory force.

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18. Referring  to  the  decision  of  this  Court  in  particular  in  

Jaipur Development Authority and Others vs. Vijay Kumar Data  

& Another (2011) 12 SCC 94 and in State of Bihar  Vs. Kripalu  

Shankar (1987) 3 SCC 34, the Division Bench entered a finding on  

the above aspect that the decision contained in the circular dated  

13.12.2001 being not in conformity with the precept of Article 166 of  

the Constitution of India, it was therefore not enforceable in law.   It  

held  the  view  that,  even  if,  it  could  be  construed  to  be  a  policy  

decision enforceable in law, it was not open for the Tribunal to direct  

allotment of land at Vidyadhar Nagar as the value  of the land was  

highly disproportionate to the one acquired from the appellants.  It  

recorded the finding that apart from the fact that land at Vidyadhar  

Nagar  was  not  available,  the  plea  of  discrimination  urged  by  the  

appellants  on  the  ground    that  two  of  the  similarly  situated  

khatedars/beneficiaries  had been offered land at  Vidyadhar  Nagar  

was untenable.  It recorded that the land at Vidyadhar Nagar had  

been released to the State for Group Housing Scheme of the JDA and  

that allotment of 15% developed land thereat to the appellants would  

amount to dissipation of valuable property for unjust enrichment of a  

chosen few.  The appellants were left at liberty to receive the amount  

of compensation as awarded @ Rs. 15000 per bigha.

19. Before adverting to the rival contentions advanced, it would

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be expedient to complete the narration of facts pleaded before this  

Court and having a significant bearing on the course of adjudication.

20. By  order  dated  15.01.2013  this  Court  formulated  the  

following  queries  requiring  the  respondent  State  and  the  JDA  to  

respond thereto by filing an additional affidavit.

“  Query  No.1.   Did  the  State  Government/Jaipur  Development Authority ever formulate any policy providing  for allotment of “land in lieu of land” acquired by the State  Government/Jaipur  Development  Authority.   If  so,  when  was the policy formulated and by whom?

Query No.2. If the policy in question was formulated by and  under  the  orders  of  the  Minister  In-charge  of  the  Department concerned, Government of Rajasthan, was the  matter  relating  to  the  formulation  of  the  said  policy  submitted to the Chief Minister in terms of Rule 31, sub- rule (2)  of  the Rajasthan Rules of  Business? In case, the  matter was submitted, what were the orders passed by the  Chief Minister on the said matter of the proposed policy?

Query No.3.  Was the land for land policy given effect to in  relation  to  acquisitions  made  for  Boyatwala  Field  Firing  Range.  If  so,  how much land was allotted and in whose  favour and under whose orders?

Query No.4.  Was any  application made  for  allotment  by  Madan Lal & Others, petitioners in Special Leave Petition  No.36175 of 2011, as legal representatives of the deceased  Ananda – original Khatedar for allotment of any land, under  the policy mentioned above?  If so, was the application ever  considered and/or any orders on the same passed?  Copies  of the order dealing with the request for allotment of land be  also placed on record.

Query No.5. Do the appellants before this Court qualify for  allotment of land in lieu of acquired land in terms of the  policy? If so, is the State Government/Jaipur Development

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Authority ready and willing to make suitable allotment of  land in accordance with the policy in their favour?

Query No.6.  Is  the  land offered to  petitioners  in  Special  Leave  Petition  No.28415  of  2011  in  Anantpura/Lalchandpura  on  the  outskirts  of  City  Jaipur  still available for allotment in their favour?

Query  No7. Whether  land  referred  to  in  Circular  dated  16.10.2007,  found  at  page  157  of  Special  Leave  Petition  No.28415  of  2011,  issued  by  the  Jaipur  Development  Authority  is  available  with  the  Jaipur  Development  Authority?   In  case,  it  is  available,  has  the  area  been  reserved  for  any  specific  purpose?”

21. To be exact in the portrayal, it would be apt to extract ad  

verbatim the averments in the affidavit filed on 22.01.2013 on behalf  

of  the  Urban Development  Department  of  Rajasthan Government.  

Precise  answers to  the  queries  No.1,  2  and 7   have been quoted  

hereinbelow:

“Response to Query No.1. –  It  is  respectfully  submitted  that the State of Rajasthan has issued some Policy circulars  of giving land in lieu of compensation.  The details of such  circulars  dated  21.09.1999,  31.12.2001,  22.04.1992  and  27.10.2005 are as follows:

(a) Policy Circular dated 22.04.1992: Allotment of  12% developed land in lieu of cash compensation for  the acquired land was provided for in this circular.  This  circular  was  issued  with  the  approval  of  Minister-in-Charge of the Department.   (b) Policy Circular dated 21.09.1999: This policy  Circular provides for 15% developed land in lieu of  cash compensation for  the  acquired land,  provided  that  the  award  was  not  passed  earlier  and  compensation  had  not  been  paid  till  then.   This  circular was issued with the approval of Minister-in-

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Charge of the Department. (c) Circular  dated  13.12.2001:   This  circular  provided for time extension for exercising option to  the land holders for 15% developed land in lieu of the  acquired  land.   In  this  circular,  the  date  of  submitting options was fixed as 28.02.2002. (d) Policy  Circular  dated  27.10.2005:   In  this  circular provision for 25% developed land, instead of  15% earlier was made.  This policy was given effect  for the land acquisition cases after this date.  This  circular  was  issued  with  the  approval  of  Hon’ble  Chief Minister.   

Response to Query No.2  

a.  It  is  respectfully  submitted  that  there  are  Rajasthan  Rules of Business under Article 166 of the Constitution of  India.  All the cases referred to in the second schedule  shall  be  brought  before  Council  of  Ministers  or  a  constituted sub-committee in accordance with Part III of  the Rules.  

b. Rule 31(1)(ii) provides the cases which have to be referred  to Chief Minister before issuance of orders and the cases  raising  question  of  policy  and  all  the  cases  of  administrative importance not already covered by second  schedule.  

c. It is also respectfully submitted that each Department is  headed  by  Minister  in  Charge  and  all  the  respective  functions  are  enumerated  in  allocation  of  concerned  department.   For  example,  the  Urban  Development  Department work is enumerated at item no. XI-D (Urban  Development & Housing Department) and which includes  acquisition  of  land  for  JDA/UIT  Scheme  and  Housing  Board.  

d. There are also standing orders under Rule 21 which are  issued  for  purposes  of  governing  the  concerned  Department  with  the  Minister-in-Charge  as  Head.  It  would  be  relevant  to  mention  that  the  standing  orders  issued  under  Rule  21,  at  Item  106  it  was  clearly  mentioned  that  the  Minister-in-Charge  was  competent

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authority in matters relating to land acquisition and also  for releasing the land under acquisition.  The competent  authority in relation to land acquisition/release of  land  under  acquisition  shall  be  the  Minister  in  Charge.  However,  by notification dated 08.07.2004,  the rules of  Business Allocation have been amended and now the land  under  acquisition/release  of  land  from  acquisition  has  been brought within the ambit of second schedule, and by  virtue of Rule 8 read in conjunction with Rule 31, the file  has to be approved by Hon’ble Chief Minister.

e. Since  the  matter  of  land  in  lieu  of  compensation  is  considered  as  matter  relating  to  acquisition  or  for  releasing the land under acquisition, it is within the ambit  of  Rule  21  and  therefore  the  Minister-in-Charge  was  capable of said decision.  It is relevant to mention that as  far as the circular dated 27.10.2005 is concerned, it has  been  duly  approved  by  the  Hon’ble  Chief  Minister  and  therefore the Circular of 27.10.2005 does not suffer from  legal  infirmity  that  the  Rules  of  Business  were  not  followed.  

Response to Query No.7

The land mentioned in the letter dated 16.10.2007 is still  vacant  and  there  are  plots  of  different  categories  like  individual  residential  plots,  group  housing,  commercial,  institutional and reserved for other uses.  Some of the land  is simply marked as ‘reserved’.  The word ‘reserved’ denotes  no  specific  land  use  but  it  could  be  used  for  schools,  hospital, parks, public amenities etc.”  

22. In substance, the State Government in its reply affidavit  

did  admit  that  it  had  issued  the  policy  circulars  alluded  to,  for  

providing  land  in  lieu  of  compensation  including  the  one  dated  

13.12.2001, which  provided for extension of time for the exercise of  

option by the land holders for 15% developed land in lieu of their  

acquired land.  That prior thereto, provision for allotment of 12%

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developed land in lieu of compensation, subsequently enhanced to  

15%  developed  land  was  made  by  the  policy  circulars  dated  

22.04.1992  and  21.09.1999,  issued  with  the  approval  of  the  

Minister-in-Charge  of  the  department,  was  averred  as  well.   The  

additional affidavit disclosed further that by a later policy circular  

dated  27.10.2005  issued  with  the  approval  of  the  Hon’ble  Chief  

Minister, the extent of developed land was further enhanced to 25%.

23. Significantly,  it  was  stated  in  unambiguous  terms with  

reference to Rule 31(2) of the Rules of Business for Rajasthan (for  

short,  hereinafter  to be referred to as “the Rules”),  framed under  

Article 166 of the Constitution of India that in terms of the Standing  

Order  framed  under  Rule  21,  the  Minister-in-Charge  of  the  

Department as per the Business allocation under the Rules was the  

competent  authority  in  matters  relating  to  land  acquisition  and  

release  of  land  therefrom.   It  was,  however,  averred  that  by  

notification dated 08.07.2004, the Rules of Business allocation had  

been amended and the subject of land under acquisition/release of  

land from acquisition had been brought within the ambit of Second  

Schedule consequent whereupon, by virtue of Rule 8 read with Rule  

31 of Rules, any decision with regard thereto was to be approved by  

the Chief Minister of the State. The affidavit elaborated that as the  

issue of land in lieu of compensation was one relating to acquisition

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and/or release of land under acquisition, it was within the ambit of  

Rule 21 of Rules and, therefore, the Minister-in-Charge was capable  

of taking a decision in connection therewith.  The pleaded stand of  

the State on the competence of the Minister-in-Charge of the Urban  

Development Department, at the relevant point of time to take a final  

decision with regard to the issue of land in lieu of compensation in  

the  context  of  the  policy  circular  dated 13.12.2001 thus  did  not  

admit of any ambiguity.

24. The affidavit further stated that there was no developed  

land in Boytawala and Niwaru range and that out of the 54 land  

owners affected, 45 including the appellants had been allotted land  

at  Lalchandpura/Anantpura.   That  two  out  of  the  affected  land  

owners  had  been  allotted  land  under  such  policy  circular  at  

Vidyadhar Nagar was admitted.

25. It was disclosed as well that Vidyadhar was located 5 km  

away from Boytawala range whereas Lalchandpura/Anantpura were  

situated  35  kms  and  14  kms  respectively  from such  range.   As  

would be apparent from the reply to query No.7, the State admitted  

that the land referred to in letter dated 16.10.2007 issued by the  

JDA,  and  located  at  Vidyadhar  Nagar  was  still  vacant.  It  was,  

however  maintained  that  the  plots  therein  were  identified  for  

residential, group housing, commercial and institutional purposes.

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26. In course of the hearing of these appeals, this Court in its  

order dated 07.05.2015 recorded the submission advanced on behalf  

of  the  JDA   that  although  sufficient  land  was  available  at  

Lalchandpura,  Boytawala,  Anantpura  and  Mansarampura,  those  

were not fully developed and that it would require another two years  

to develop the same.  The willingness of the JDA to offer developed  

land in other areas in discharge of its obligation under the policy  

was  recorded.   This  Court,  as  prayed  for  on  behalf  of  the  JDA,  

granted it four weeks’ further time to enable it to identify and place  

on record the particulars of the land representing 15% of the area  

acquired from the appellants in a developed colony.  The JDA was  

required within the time granted, to file an affidavit indicating the  

proposed area for allotment to the appellants.  It was observed in no  

uncertain terms, that the area(s) offered ought to be in developed  

colonies unlike area(s) which had been earlier offered but were not  

fully developed.

27. The JDA in its  additional  affidavit  dated 16.07.2015 in  

turn  offered  land(s)  in  the  following  schemes  for  allotment,  as  

substantial  investments had been made to carry out development  

works thereat.

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S.No. JDA  Zone  No.

Name of Schemes Total available  land for  

allotment 1 11 Rohini Nagar – I 50598.22 Sq. mtr. 2. 11 Anupam Vihar 50598.22 Sq.mtr. 3. 13 Pitambara

Rajbhawan

50598.22 Sq. mtr.

4. 14 Abhinav Vihar  

Vistar

50598.22 Sq. mtr.

5. 14 Rohini Nagar – II 50598.22 Sq. mtr. 6. 14 Harit Vihar 50598.22 Sq. mtr.

28. The appellants in their reply affidavit dated 17.08.2015 to  

the  affidavit  dated  16.7.2015,  rejected  the  lands  so  offered  

emphatically contending that those were not developed land and did  

not offer even minimum essential facilities of water, electricity, road  

etc.  According to the appellants, these lands were situated in the  

rural  belt  and were in fact grazing plots,  totally  undeveloped and  

shorn of any attribute of development as contemplated by the policy  

circular dated 13.12.2001.  In addition to the photographs of  the  

plots  offered  by  the  JDA,  the  appellants  in  a  tabular  form  also  

depicted  the  relevant  features  thereof,  excerpts  of  particulars  of  

which are extracted herein below:

Sr.No. Name of  scheme

Nature of land Year Amenities  Available

1 Rohini  Phase I

Pasture  (Charagah/grazing) Totally  undeveloped and  in rural belt

2005 No Road,  water,  

electricity,  drainage,  sewerage,  

etc. Not a single

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house/flat  is  

constructed  in the whole  

scheme 36.80 Km  

from  Central  Jaipur

2 Anupam  Vihar

Both villages Pasture  (Charagah/grazing) Totally  undeveloped and  in rural belt

2008 No Road,  water,  

electricity,  drainage,  sewerage,  

etc. Not a single  house/flat  

is  constructed  in the whole  

scheme 25.4 Km  

from  Central  Jaipur

3. Pitambara  Scheme

Khasra No.2 (Area  139-01 hectares);  Khasra No.3  (Barren land; Area  93-06 hectares)  Khasra No.5  (barren land; Area  2-01 hectares);  Khasra No.39- Area 3-16  hectares  

2006 No Road,  water,  

electricity,  drainage,  sewerage,  

etc. Not a single  house/flat  

is  constructed  in the whole  

scheme

35.00 Km  from  

Central  Jaipur

Rajbhawan  Yojana

Pasture  (Charagah/grazing) Totally  undeveloped and  

2006 No Road,  water,  

electricity,  drainage,

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in rural belt sewerage,  etc.

Not a single  house/flat  

is  constructed  in the whole  

scheme

35.00 Km  from  

Central  Jaipur

4. Rohini  Phase II

Pasture  (Charagah/grazing) Totally  undeveloped and  in rural belt

2006 Same as  above –

36.80 Km  from  

Central  Jaipur

5. Abhinav  Vihar  Vistar

Pasture  (Charagah/grazing) Totally  undeveloped and  in rural belt

2014 No Road,  water,  

electricity,  drainage,  sewerage,  

etc. Not a single  house/flat  

is  constructed  in the whole  

scheme 31.70 Km  

from  Central  Jaipur

6. Harit Vihar  Pasture  (Charagah/grazing) Totally  undeveloped and  in rural belt

2010 No Road,  water,  

electricity,  drainage,  sewerage,  

etc. Not a single  house/flat  

is  constructed  in the whole

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scheme

31.70 Km  from  

Central  Jaipur

29. The  appellants  also  furnished  in  their  aforementioned  

counter-affidavit particulars of the land referred by this Court in its  

order dated 17.05.2015, plots offered by the JDA in its additional  

affidavit dated 16.07.2015 and the lands suggested by them to be  

allotted in terms of the policy circular dated 13.12.2001 as depicted  

in the tables hereunder:  

I DISTANCE FROM CENTRAL POINT JAIPUR OF SCHEMES/VILLAGES  EARLIER  PROPOSED  BY  JAIPUR  DEVELOPMENT  AUTHORITY  BY  AFFIDAVITS DATED 17.09.2014 AND 26.04.2015 AND WHICH HAV  EBEEN REJECTED BY THIS HON’BLE COURT VIDE ORDER DATED  07.05.2015 Srl. No. Scheme/Village Distance from  

Central Point  Jaipur

1 Lal Chandpura 17 KM 2 Mansarampura (Not a JDA  

scheme) 19.30 KM

3 Boytawala 14.70 KM 4 Anantpura 39 KM

II DISTANCE  FROM  CENTRAL  POINT  JAIPUR  OF  SCHEMES/VILLAGES  NOW  PROPOSED  BY  JAIPUR  DEVELOPMENT  AUTHORITY  BY  AFFIDAVIT  DATED  16.07.2015 PURSUANT TO ORDER OF THIS HON’BLE  COURT DATED 07.05.2015. Srl. No. Scheme/Village Distance from  

Central Point  Jaipur

1 Rohini Phase I 36.80 KM 2 Anupam Vihar 25.40 KM

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3 Pitambara & Rajbhawan 35.00 KM 4 Rohini Phase II 36.80 KM 5 Abhinav Vihar 31.70 KM 6. Harit Vihar 31.70 KM

III.  DISTANCE OF DEVELOPED SCHEMES OF JDA FROM  CENTRAL  POINT  VILLAGE  BOYTAWAWLA  WITH  AMPLE LAND AVAILABLE, WHICH CAN BE ALLOTED  TO ALL THE KHATEDARS. Srl. No. Scheme/Village Distance from  

Central Point  Jaipur

1 Vidhyadhar Nagar 5.0 KM 2 Gokul Nagar 10.5 KM 3 Truck Terminal 15.6 KM 4 Vaishali Nagar 12.8 KM

30. The  State   followed  up  the  chain  of  pleadings  by  its  

additional affidavit dated 28.09.2015 to state that in addition to the  

Lalchandpura, land at Boytawala was also offered to the appellants  

and accused them of unreasonably rejecting the options of developed  

land being offered to them from time to time.  Reference to land at  

Anand Vihar JDA Residential Developed Scheme situated near Ajmer  

Road at a distance of 3-4 kms from main National Highway No.8 was  

also made to indicate that the same was available as well.  According  

to the State, the amount of compensation payable to the appellants  

for  the  land  acquired  as  on  date,  computed  on  the  basis  of  the  

enhanced rate of Rs.15000/- per bigha, would be Rs. 95,59,044/-  

and insisted that the market value of the plots identified by them  

would  be  disproportionately  higher  than   the  quantum  of

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compensation to which they are entitled.

31. In  between,  an  additional  affidavit  was  also  filed  being  

sworn  by  the  Deputy  Commissioner,  Zone  –  Jaipur  Development  

Authority on 16.07.2015, bringing on record, the Rules framed in  

exercise  of  powers  framed  by  the  Governor  of  the  State  under  

Clauses (2) & (3) of Article 166 of the Constitution of India, including  

amongst  others,  the  notification  No.  F(27)(2)(a)  dated  05.03.1999  

amending the Rules.

32. In the above imposing mass of contentious pleadings and  

records,  it  has  been  assiduously  urged  by  Dr.  Dhawan  that  the  

circular dated 13.12.2001 being a policy decision of the State, it was  

obligatory on its part to act in terms therewith and, therefore, the  

denial  to  the  appellants  of  15%  developed  land  in  lieu  of  the  

compensation  for  the  land  acquired  is  grossly  illegal,  arbitrarily,  

unconstitutional, unfair and unjust.  According to the learned senior  

counsel, the series of circulars on the issue of allotment of developed  

land  in  lieu  of  compensation,  commencing  from  the  one  dated  

22.04.1992 do assuredly attest a consistent decision of the State to  

pursue  the  same  as  its  solemn  policy  qua  the  land  oustees  

responding  thereto  and  thus  the  impugned  conduct  of  the  

respondents  in  reneging  therefrom  besides  being  whimsical,  

arbitrary  and highhanded also tentamounts to a patent infraction of

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their unassailable right to property guaranteed under Article 300A of  

the Constitution of India.

33. The appellants  having been beckoned to believe that they  

would stand adequately compensated by accepting developed land to  

the  extent  of  15%  of  the  total  area  of  their  land  in  lieu  of  

compensation, they cannot be left high and dry over three decades  

and further subject them to a spate of vexatious litigation, he urged.

34. Dr. Dhawan, insistently asserted with particular reference  

to the affidavit filed by the State  responding to the queries of this  

Court, that the circular issued on 13.12.2001 was indeed a policy  

decision  in  conformity  with  the  Rules  and  that  any  stand  in  

divagation therefrom ought to be dismissed in limine.

35. While  rejecting  the  endeavour  on  the  part  of  the  

respondents to plead that in view of the amendment in the Rules  

w.e.f. 05.03.1999, the approval of the Chief Minister on the issue of  

acquisition and release of land was mandatory and thus the circular  

dated 13.12.2001 being opposed thereto was non est, the learned  

senior  counsel  also  urged  that  the  orders/circulars  dated  

08.07.1994 and 20.07.1998 amongst others clearly belied the same.

36. While  underlining  that  the  State  and  the  JDA  are  

perceptionally  and  essentially  one  in  the  process,  Dr.  Dhawan  

endeavoured to demonstrate as well that in all the relevant circulars

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starting from the date 22.04.1992 on the issue, a copy thereof had  

been marked to the Secretariat of the Chief Minister of the State. The  

learned senior counsel referred to the Rules in details to evince that  

on  the  date  of  issuance  of  the  circular  dated  13.12.2001,  the  

departmental minister was exclusively competent to take a decision  

on  the  issue  of  acquisition  and  release  of  land  in  lieu  of  

compensation and, thus the respondents were bound thereby.  That  

in  the  memorandum  of  appeal  before  the  High  Court,  they  had  

accepted the circular dated 13.12.2001 as the policy decision of the  

State was urged by the learned senior counsel.  He asserted that the  

impugned judgment was founded only the premise that the circular  

dated  13.12.2001 did  not  conform to  the  prescriptions  of  Article  

166(1) & (2) of the Constitution of India and neither any plea was  

raised qua the Rules or Article 166(3) nor there was any occasion to  

deal with it.  Dr. Dhawan has thus urged that this belated plea is  

wholly untenable in law.

37. Adverting to Section 90 of the JDA Act in particular,  the  

learned senior counsel has argued that as in terms thereof, the JDA  

was under an obligation to implement the government policy, it is  

impermissible for it to turn around and contend that the appeal filed  

by the appellants before the Tribunal was not maintainable.

38. According to the learned senior counsel, in this premise,

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the finding recorded in the impugned judgment, that the appeal filed  

by the appellants before the Tribunal was unsustainable is patently  

erroneous.  Further  it  being  no  longer  res  integra  that  the  

prescriptions of Article 166 (1) & (2) of the Constitution of India are  

directory in nature, the policy circular dated 13.12.2001 could not  

have been rendered non-existent on the ground that the same had  

not been expressed and issued in the name of the Governor of the  

State  or  had  not  been  authenticated  as  required  under  the  said  

provision,  he  maintained.   Dr.  Dhawan  also  urged,  that  as  the  

interpretation of the policy circular dated 13.12.2001, having regard  

to the theme thereof, has to be purposively liberal and fructuous vis-

à-vis  the  rights  of  the  land  users  under  Article  300A  of  the  

Constitution  of  India,  the  Tribunal  was  perfectly  justified,  in  the  

attending facts, circumstances and conduct of  the respondents to  

direct them to allot 15% developed land at Vidyadhar Nagar to them.  

Dr. Dhawan argued that, on the one hand, the State did not deposit  

the amount of compensation at the enhanced rate as granted by the  

Court,  and  on  the  other,  denied  the  appellants  their  share  of  

developed  land  at  Vidyadhar  Nagar  as  was  due  to  them.   He  

therefore urged, that it is a fit case in which direction ought to be  

issued to the respondents to allot 15% developed land in the areas,  

as suggested by the appellants i.e. Vidyadhar Nagar, Gokul Nagar,

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Truck Terminal and Vaishali Nagar.

39. Supplementing  the  above,  Mr.  Dhruv  Mehta,  learned  

senior counsel has urged that in the face of clear and categorical  

stand of the State, that the circular dated 13.12.2001 did embody its  

policy on land in lieu of compensation and that the departmental  

minister  was  authorized  and  competent  to  decide  thereon,  the  

belated stand of the respondents is contrary thereto and ought to be  

summarily rejected.  The land having been compulsorily acquired in  

the  year  1981  with  no  compensation  therefor  paid  till  date,  the  

resistance offered by the respondents it sustained would result in  

their  undue enrichment which is  impermissible in law, he urged.  

Rejecting the land at Lalchandpura and other sites as offered by the  

respondents in their  counter affidavit  as  wholly  undeveloped,  Mr.  

Mehta has asserted that insistence for acceptance of these lands is  

apparently in the exercise of superior bargaining power of the State  

and  ought  to  be  firmly  disapproved.   According  to  him,  the  

appellants have been wrongly non-suited by the Division Bench of  

the High Court on the ground of non-compliance of Article 166 (1) &  

(2) of the Constitution of India.  Mr. Mehta insisted that in face of  

the  rejection  of  the  lands  at  Anantpura,  Lalchandpura,  

Mansarampura and Boytawala by this Court,  vide its order dated  

07.05.2015, the endeavour on the part of the respondents to impose

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the same on the appellants betrays lack of bona fides as well.  He  

urged that in any view of the matter, the respondents have already  

acted on the policy circular dated 13.12.2001 in allotting, amongst  

others, plots at Vidyadhar Nagar to some of the persons who are  

similarly situated and thus they cannot be permitted to retrace their  

steps arbitrarily  at  the cost  of  the appellants.  The learned senior  

counsel urged as well, that the policy circular in question was fully  

in  accordance  with  the  Rules  and  that  the  endeavour  of  the  

respondents to weigh the amount of  compensation payable to the  

appellants for their lands with the value of the developed land, as on  

date,  as  a  factor  for  allotment  under  the  policy  is  not  only  

indefensible but also irrational and illogical as well.  To reinforce his  

arguments,  Mr.  Mehta  cited  the  decisions  of  this  Court  in  

Dattatreya Moreshwar Pangarkar Vs. The State of Bombay &  

Ors., 1952 SCR 612, R. Chitralekha Vs. State of Mysore & Ors.,  

AIR 1964 SC 1823, Hari Ram and Anr. Vs. State of Haryana &  

Ors., (2010) 3 SCC 621.

40. Per  contra  Mr.  Sunderam  has  assertively  refuted  the  

status of the circular dated 13.12.2001 as one conveying a policy  

decision of the State  on the issue of land in lieu of compensation,  

enforceable in law.  He has urged that, as in view of the amendment  

to  the  Rules  occasioned  on  05.03.1999,  prior  to  the  date  of  the

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circular  in  question  i.e.  13.12.2001,  the  approval  of  the  Chief  

Minister was an indispensible pre-condition for the validity thereof,  

the same is of no avail to the appellants for all intents and purposes.  

As the Rules are mandatory, no deviation there from is allowable  

and, thus the circular dated 13.12.2001 does not vest any right with  

the appellants to claim developed land in lieu of compensation in  

terms thereof, he maintained.  This is notwithstanding the response  

of the State  in its affidavit in reply to the Court’s queries, he urged.  

He argued that the factum of the amendment by the Notification to  

that  effect  had  been  duly  brought  on  record  on  time  to  amply  

authenticate this contention and there can be no estoppel against  

law.  Profused reference was made to the provisions of  the Rules  

including the Second Schedule to endorse this plea. While admitting  

the  above  notwithstanding  that  the  appellants  are  entitled  to  be  

allotted  65,000  sq.mtrs.  of  developed   land,  the  learned  senior  

counsel has contended that the land at Vidyadhar Nagar is being  

utilized for housing colony is thus not available for them.

41. Referring to the circular dated 13.12.2001, Mr. Sunderam  

has emphasized that even assuming that this document espouses  

the cause of the appellants, in any view of the matter, they are not  

competent to dictate their preference of any land and thus the Court  

in  exercise  of  its  power  of  judicial  review  should  not  permit  the

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same.  Apart from contending that the circular dated 13.12.2001  

besides being non complaint with Article 166(2) of the Constitution  

of India, is even otherwise not enforceable in law, the learned senior  

counsel contended that the same at the best amounts to an offer to  

allot 15% developed land, if available within the scheme area and if  

not,  in  an  adjacent  locality.   Thereby  the  land  oustees  were  not  

clothed with an inviolable right to demand any land of their choice  

by laying a counter offer, he maintained.  Mr. Sunderam urged that  

neither  the  circular  dated  13.12.2001  does  envisage  such  an  

indulgence nor this Court ought to direct the State to abide thereby.  

That in the instant case, the JDA had only acted on the decisions of  

the State, as taken from time to time, and thus on this ground, the  

appeal filed by the appellants before the Tribunal under Section 83  

of  the  JDA  Act,  was  rightly  held  to  be  not  maintainable,  was  

underlined.  Following authorities were cited at the Bar in  Census  

Commissioner and others vs.  R. Krishnamurthy  (2015)  2 SCC  

796, Goa Glass Fibre Ltd. vs. State of Goa & Anr., (2010) 6 SCC  

499,  MRF Ltd. vs. Manohar Parikar & Ors., (2010) 11 SCC 374,  

Rajasthan Housing Board vs. New Pink City Nirman Sahkari  

Samiti Limited and Anr., (2015) 7 SCC 601.

42. In his rejoinder, Dr. Dhawan adverted to the Rules as well  

as  the  notifications/circulars  on  the  issue  of  land  in  lieu  of

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compensation prior, and subsequent to the one dated 13.12.2001, to  

assert that the same irrefutably  testified  an  abiding and conscious  

decision and the unreserved intention of the State to allot developed  

land to the land losers as a matter of implementable policy and not  

ex-contractu as is sought to be suggested.  Reiterating that at no  

earlier  point  of  time,  the aspect  of  Article  166(3)  had either been  

pleaded  or  urged,  the  learned  senior  counsel  insisted  that  even  

otherwise, a conjoint reading of the provisions of the Rules would  

amply attest that the circular dated 13.12.2001 indeed contained a  

coeval state policy of allotment of developed land in favour of land  

losers  in   lieu  of  compensation  and  that  it  is  unquestionably  

enforceable in law against  the respondents i.e.  the State and the  

JDA  acting  in  tandem.   Dr.  Dhawan  thus  urged  that,  in  the  

attendant  factual  and  legal  premise,  an  appropriate  writ  of  

mandamus  ought  to  be  issued  as  sought  for,  by  invoking  the  

doctrines  of  promissory  estoppel  and  legitimate  expectation  to  

actualize the constitutional right to the property of the appellants.  

The  following  decisions  were  relied  upon  in  endorsement  of  the  

above:  

a) Chairman, Indore Vikas Pradhikaran vs. Pure Industrial  Coke & Chemicals Ltd. and others (2007)8 SCC 705;

b) Steel Authority of India Limited vs. Sutni Sangam and  others (2009) 16 SCC 1;

c) Dev Sharan and Others vs. State of Uttar Pradesh and

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others (2014) 4 SCC 769; d) State of Haryana vs. Mukesh Kumar and others (2011) 10  

SCC 404; e) Union of India vs.  Anglo Afghan Agencies (1968) 2 SCR  

366; f) Motilal Padampat Sugar Mills Co. Ltd. vs. State of U.P.  

(1979) 2 SCC 409; g) State  of  Punjab  vs.  Nestle  India  Limited  and  another  

(2004) 6 SCC 465; h) Monnet Ispat and Energy Limited vs. Union of India and  

others (2012) 11 SCC 1; i) S.V.A. Steel Re-Rolling Mills Limited and Others vs. State  

of Kerala and others (2014) 4 SCC 186; j) Food Corporation of India vs. M/s. Kamdhenu Cattle Feed  

Industries (1993) 1 SCC 71.

43. The  contentious  pleadings  and  the  accompanying  

documents along with the competing arguments have received our in-

depth  consideration.   The  fulcrum  of  the  debate,  though  is  the  

circular  dated  13.12.2001,  construed  as  a  communiqué  of  state  

policy, on acquisition of land and land in lieu of compensation, to be  

awarded in respect of the acquired land, the appellants herein seem  

to  have  been  non-suited  as  well  on  the  ground  that  the  

appeal/reference preferred/laid by them before the Tribunal under  

Section  83  of  the  JDA  Act,  was  not  maintainable,  being  

impermissible.  Though this issue need not detain us, as the rival  

assertions have sprawled beyond such peripheral contours, a passing  

reference thereto and the finding thereon would clear the deck for the  

ensuing decisive adjudication.

44. The JDA Act which received the assent of the President on

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12.10.1982, as the preamble thereof would evince, is a legislation for  

forming  the  Jaipur  City  and  certain  contiguous  areas  into  Jaipur  

Region,  to  provide  for  the  establishment  of  an  Authority  for  the  

purpose  of  planning,  co-ordinating  and  supervising  the  proper,  

orderly and rapid development of the Jaipur Region and for executing  

plans, projects and schemes for such development and to provide for  

matters  connected  therewith.  The  expressions  “amenities”  and  

“development” have been defined in Sections 2(2) and 2(5) of JDA Act  

respectively, as extracted herein under:

2(2)  “amenities”  includes  roads,  bridges,  any  other  means  of  communication,  transport,  streets,  open  spaces,  parks,  recreational  grounds,  play  grounds,  water,  gas  and  electric  supply,  and  source  of  energy,  street lighting, sewerage, drainage, conservancy, public  works  and  such  other  utilities,  services  and  conveniences as the State Government in consultation  with the  Authority  may,  by  notification in  the  Official  Gazette, specify to be an amenity for the purpose of this  Act.

2(5)  “development”  with  its  grammatical  variations,  means the carrying out of building, engineering, mining  or  other  operations  in,  or  over,  or  under  any  land  (including land under river, lake or any other water) or  the making of any material  change in any building or  land or in the use of any building or land, and includes  re-development  and  lay-out,  and  sub-division  of  any  land  and  also the provision of amenities and projects  and  schemes  for  development  of  agriculture,  horticulture,  floriculture,  forestry,  dairy  development,  poultry farming,  piggery,  cattle  breeding,  fisheries and  other  similar  activities,  and  ‘to  develop”  shall  be  construed accordingly.

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45. In terms of Section 54 of the JDA Act, notwithstanding  

anything contained in the Rajasthan Land Revenue Act, 1956, the  

land as defined in Section 103 thereof, excluding land referred to in  

sub-clause (ii) of clause (a) of the said Section and Nazul land placed  

at the disposal of a local authority under Section 102-A of that Act  

in Jaipur Region, shall immediately after establishment of the JDA  

be deemed to have been placed at the disposal of and vested in it  

whereupon it would take over such land for and  on behalf of the  

State Government and would use the same for the purposes of the  

JDA Act and dispose of the same by way of allotment, regularisation  

or auction subject to such conditions and restrictions as the State  

Government  may,  from  time  to  time,  lay   down   and  in  such  

manner, as it may, from time to time, prescribe.  Sub-section 2 of  

Section 54 prohibits  development of any land except by or under  

the control and supervision of the JDA.

46.  The constitution of the Tribunal has been provided for  

under  Section  83  of  the  JDA  Act  and  sub-section  8(a)  thereof  

permits any person aggrieved by an order or notice of the JDA to file  

an appeal in the Tribunal within thirty days of the communication  

of such order or notice to him.   Under sub-clause 8(b), any person  

aggrieved by any threatened act or injury from the JDA affecting his  

rights, may refer the dispute to the Tribunal within thirty days of

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the communication or knowledge of such threatened act or injury.  

The provision mandates that the decision of the Tribunal in such  

appeal  or  reference  would be  final.   Section 90  of  the JDA Act  

predicates, that the JDA would exercise its powers and perform its  

duties  under  the  Act  in  accordance  with  the  policy  framed  and  

guidelines laid down, from time to time by the State for development  

of the areas in the Jaipur Region.  It obligates the JDA to be bound  

to comply with such directions which may be issued, from time to  

time, by the State  for efficient administration of the JDA Act.

47.  On a cumulative reading of  the above provisions of  the  

JDA Act, it is apparent that with the enactment thereof, the land, as  

referred  to  in  Section  54  thereof,  would  stand  vested  in  JDA,  

whereupon it is competent, amongst others, to dispose of the same  

by  way  of  allotment,  regularisation  or  auction  subject  to  such  

conditions and restrictions as may be prescribed by the State.  The  

definition of the expressions “amenities” and “development” also in  

categorical  terms outlines  the  imperative  features  of  a  developed  

land, as statutorily ordained.  The JDA, thus being a creature of the  

statute,  assuredly  cannot  deviate  from  such  legislative  edict  in  

identifying  a  developed land at  its  disposal  for  allotment  as  and  

when warranted.

48. The  immediate  cause  of  action  for  the  appellants  to

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approach the Tribunal, to recall, was the letter dated 1.7.2005 of  

Urban Development Department of the State to the JDA, conveying  

its sanction for allotment of land at Lalchandpura and Anantpura  

Villages to the land losers in terms of the circular dated 13.12.2001  

and the draw of lots conducted on 20.7.2005 pursuant thereto as  

well as the allotment of land on the basis thereof.  In view of the  

functional amalgam of the State and the JDA as contemplated by  

the  Act,  and  having  regard  to  the  composition  of  the  entity  

conducting the lots, we are of the view that the appellants ought not  

to be non-suited on the specious plea that the order impugned by  

them before  the  Tribunal  and  the  exercise  undertaken  pursuant  

thereto was not one by the JDA.  As the Authority unmistakably  

was the implementing instrumentality of the primary decision of the  

allotment  conveyed  by  the  letter  dated  1.7.2005,  their  

appeals/reference before  the  Tribunal  contesting the  allotment  of  

land  at  Lalchandpura  and  Anantpura  Villages,  in  the  entire  

conspectus of facts, cannot be said to be either unsustainable   or  

impermissible.   Any contrary view, in our comprehension, would be  

unwarrantably pedantic and repugnant to the letter and spirit of the  

JDA Act, and in particular undermine the objective of providing a  

forum  of  appeal/reference  thereunder.   We,  however,  limit  the  

determination to the singular facts and circumstances of the case.

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49. Be  that  as  it  may,  the  simmering   epicentre  of  the  

dissensus that engaged the serious attention of the contestants is  

located in  the Rules.   The parties,  however,  are  not  so  much in  

issue,  herein  over  the  status  and  bearing  of  the  enjoinment  of  

Article 166(1) & (2) of the Constitution of India as qua Article 166(3).  

To reiterate, the impugned judgment had razed the circular dated  

13.12.2001 only on the ground that it was neither expressed in the  

name of Governor nor was it authenticated as obligated by Article  

166(1) and (2) of the Constitution of India.  Article 166(3) did not  

surface  for  any  analysis  in  the  decision.   Even  the  grounds  

formulated by the JDA in the writ petition as well as in the writ  

appeal before the High Court did not pose a challenge to the circular  

dated 13.12.2001 to be invalid and non-construable as policy, being  

in derogation of Rules.

50. The documents laid  at the disposal of this Court being  

official  circulars/communications  issued  by  the  Government  of  

Rajasthan,  Urban  Development  and  Housing  Department  would  

attest that in order to address the issue of often protracted process  

of acquisition of land and possession thereof, in view inter alia of the  

intervening litigations, a pre-meditated decision had been taken by  

the State to hasten the exercise  without any hassle and on mutual  

settlement and to that effect, circular No F.6(44)UDH/3/89  dated

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1.1.1990 had been issued.  As the circular No. F.6 (44) UDH/3/89,  

Jaipur dated 22.4.1992 of the same Department would reveal, the  

implementation of the decision had been kept in abeyance for want  

of  guidelines.   However,  the  State  on  a  re-consideration  of  all  

aspects,  did  thereafter  decide  that  persons/institutions  

surrendering their land free of cost to the Land Urban Improvement  

Trust/Jaipur  Development  Authority/Rajasthan  Housing  Board/  

Municipal  Council/Municipality,  would be allotted developed land  

equivalent  to  maximum of  12% of  the  surrendered  land  on  the  

terms  and  conditions  as  enumerated  therein.   A  Settlement  

Committee was also constituted for receiving the land surrendered  

free of cost on mutual settlement.

51. This  was  followed  by  circular  No.  F.6(19)UDH/3/89,  

Jaipur  dated  21.09.1999  in  continuation  of  the  one  dated  

22.4.1992,  referred  to  hereinabove,  whereby  the  decision  of  the  

State  to provide developed land equivalent to 15% of the acquired  

land to the khatedar/land owner in lieu of land being acquired, was  

communicated.  It was clarified, that in case of allotment of 15%  

developed plots, no separate compensation would be payable.

52. A meeting under the chairmanship of  the departmental  

minister  was  thereafter  convened  on  18.10.2001  to  formulate  a  

composite policy on various aspects and procedures in relation to

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allotment of  15% developed land, in lieu of the land acquired, in  

land acquisition cases.  It was discussed, amongst others, that in  

many land acquisition cases, compensation had not been paid to  

the  land owners.   It  was eventually  decided on the  basis  of  the  

deliberations,  that  in  cases  where  awards  had  been passed,  but  

cash compensation could not be paid to the khatedars/land owners,  

one more  opportunity  to  them to  opt  for  the  developed land,  be  

offered.   That  the  option  was  extended  till  31.3.2002  and  the  

allotment of the land was resolved to be made through Allotment  

Committee  of  the  concerned  organisation,  was  recorded.   It  was  

decided  in specific  terms,  that  the  developed land in lieu  of  the  

acquired land would be generally allotted in the same area where  

the  land was acquired and if  it  was  not  possible  to  develop the  

scheme within a period of five months or it was not possible to offer  

land in the same area, it was only then that land would be allotted  

in  some  other  scheme  area.   It  was  underlined  that  as  far  as  

possible,  however,  the  concerned  committee  would  endeavour  to  

allot such land near the scheme area.  In terms of the decision, as a  

corollary, it was generally and primarily incumbent on the JDA to  

allot the developed land within the scheme area and any departure  

was contemplated only in the above two eventualities.

53. The  circular  dated  13.12.2001,  the  pivot  of  the  lis,  is

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really  in  continuation  of  the  circulars  preceding  it  and  is  in  

reiteration of the otherwise unequivocal and unreserved decision of  

the State  to offer 15% developed land to the khatedars/land owners  

in  lieu  of  compensation  for  the  land  acquired.   This  is  amply  

testified,  amongst  others,  by  the  reference  of  the  Circular  dated  

21.9.1999,  referred  to  hereinabove.   The  following  extract  of  the  

circular  dated  13.12.2001,  in  our  estimate,  is  determinatively  

revealing:

“  Hence,  the  State  Government  after  considering  this    matter in detail has taken this decision that in such old  cases  in  which  award  has  been  passed  but  the  compensation  could  not  be  made  to  the  khatedars till  date, in these matters one more opportunity shall be given  to  the  khatedars.   Hence,  now  this  provision  is  being  made that such khatedars/landowners can present their  options  till  28.2.2002  and  they  will  be  allotted  15%  developed  land  by  the  allotment  committee  of  the  concerned  organisation  after  approval  from  the  State  Government.   If  no  allotment  committee  has  been  constituted in any organisation, then a  Committee other  than  Jaipur  Development  Authority  and  Rajasthan  Housing Board, shall be constituted  of minimum three  officers  and a  public  representative  from the  Municipal  Corporations/boards or  corporations  which will  give  its  report to its organization.  The allotment shall be made  with prior approval of the State Government.”

54. A  prolonged  lull  followed,  where  after  the  letter  dated  

01.07.2005  was  issued,  offering  lands  at  Lalchandpura  and  

Anantpura  Villages to the appellants and other similarly situated,  

representing  the  same  to  be  the  15%  developed  land  in  lieu  of

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compensation as already resolved.  The circular dated 27.10.2005  

issued by  the  Government  of  Rajasthan,  Urban Development  and  

Housing  Department  thereafter  sought  to  enhance  the  extent  of  

developed  area  to  be  allotted  in  lieu  of  the  acquired  

lands/compensation  from  15%  to  25%  (20%  residential  and  5%  

commercial); Significantly, none of the circulars/letters dealing with  

the issue of allotment of developed land in lieu of compensation, was  

issued in the name of Governor but a copy thereof had been marked  

to  the  Secretary  of  the  JDA.   However  those  dated  13.12.2001,  

1.7.2005 and 27.10.2005 had been forwarded also to the Secretariat  

of  the  Chief  Minister  of  the  State  for  information  and  necessary  

action.

55. Before  adverting  to  the  Rules,  it  would  be  expedient  to  

take note of the Order Nos. F(18)23 UDH/2/7 Jaipur dated  20.7.1998  

and  F.18(23)UDH/2/7,  Jaipur  dated  8.7.2004 of  the  Urban  

Development  Department,  Government  of  Rajasthan  and  the  

Notification dated 5.3.1999 amending the Rules.  In the Order dated  

20.7.1998 issued under Rules 21 and 22 of the Rules, the following  

arrangement for transaction of the departmental business pertaining  

to  matters  relating to  the  land acquisition and deacquisition was  

mandated as follows:

SN Post Work Work State Shall

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shall be  examin ed by

shall  be  disposed  of by

Minist er

presente d  before  the  Minister

1 2 3 4 5 6 1  to  105

- - - - -

106 Matters  relating  to  Land  acquisition  &  de- acquisition

Group  Officer

Dy.  Secretary/ Secretary

- Minister

107  to  110

- - - - -

56. The notification No. F.27(2)Cab/99, Jaipur dated 5.3.1999  

issued  under  Article  166  (2)  and  (3)  of  the  Constitution  of  India  

occasioned  an  amendment,  amongst  others,  to  Rule  31(1)  of  the  

Rules including therein, inter alia, the following clause:

“(ii)  Cases  raising  questions  of  policy  and  all  cases  of  administrative  importance  not  already  covered  by  the  Second Schedule.”

57. Logically thus, by order dated 8.7.2004     issued as well  

under  Rules 21 and 22 of the Rules the working arrangement for the  

transaction  of  the  departmental  business   on  matters  relating  to  

deacquisition  of  land  under  acquisition  and  acquired  land  was  

redesigned as hereunder:

SN Post Work  shall  be  examined  by

Work  shall  be  disposed  of by

Shall  be  presented  before the  Minister  

1 to 115 - - - -

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D. As per rule 31 of the Rules of Business and final disposal  of  the  matters  relating  to  the  Department  mentioned  in  II  Schedule under Rule 8 116  to  117 118 Matters  

relating  to  de- acquisition  of  land  under  acquisition  and  acquired  land.

Group  Officer

Dy.  Secretary/  Secretary/  Pr. Secretary

Minister/  With  approval  of  Chief  Minister

119  to  121

- - - -

58. A plain comparison of the texts of these two Orders i.e.  

20.7.1999  and  8.7.2004  would  demonstrate  that  whereas  by  the  

former,  the  issue  was  required  to  be  presented  before  the  

departmental minister, under the latter, the authority on the issue  

was departmental minister with the approval of the Chief Minister. It  

is,  therefore,  the  plea  of  the  respondents  that  following  the  

amendment of the Rules on 5.3.1999, the circular dated 13.12.2001,  

to assume the status of an enforceable State policy ought to have  

been approved by the Chief Minister and that in absence thereof, it is  

wholly ineffectual.

59. Apropos the Rules framed under Section 166(2) & (3) of  

the Constitution of India, the expression “Minister-in-charge”  and  

“Minister of State” are defined in Rule 2 (f) as hereunder:

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“‘Minister-in-charge’  means the Minister or Minister  of State, if appointed to hold independent charge as the  case  may  be,  appointed  by  the  Governor  to  be  in- charge of the department of the Government to which  the relevant case belongs.”

Explanation: A case shall be deemed to belong to the  department  to  which  under  the  schedule  to  these  rules, the subject matter thereof pertains or is mainly  related.

“‘Minister  of  State’  means  a  Minister  of  State  appointed  by  the  Governor  to  hold  independent  charge of a department or to assist a Minister in the  discharge of his responsibilities or both.”

60. Part I of the Rules deals with the allocation and disposal of  

business  where  under  in  terms  of  Rule  4,  the  business  of  the  

Government  is  to  be  transacted  in  the  Secretariat  Departments  

specified in the First Schedule and is to be classified and distributed  

between those departments as laid down therein.  Rule 5 provides  

that  the Governor  shall,  on the advice of  the Chief  Minister,  allot  

among  the  Ministers  or  Ministers  of  State  the  business  of  

Government, by assigning one or more departments to the charge of  

a  Minister.   Rule  6  which  prescribes  the  constitution  of  the  

departments  of  the  Secretariat,  enjoins  that  it  would  ordinarily  

consist  of  a Secretary to the Government who shall  be the official  

head  of  that  department  and  of  such  other  officers  and  servants  

subordinate to him as the Government may determine.

61. As per Rule 8, subject to the orders of the Chief Minister

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under Rule 14, all cases referred to in the Second Schedule to the  

Rules  would  be  brought  before  the  Council  or  a  Sub-committee  

thereof in accordance with the provisions of the Rules contained in  

Part III.     The restriction in matters in which finance department is  

required to be consulted under Rule 10 is carved out in the proviso to  

Rule 8.  Rule 9 in categorical terms underlines that the Minister-in-

charge or the Minister of State-in-charge of  a department shall  be  

primarily responsible for the disposal of the business pertaining to  

that  department.   While  Rule  11  enjoins  that  all  orders  or  

instruments made or executed by or on behalf of the Government of  

Rajasthan shall be expressly made or executed in the name of the  

Governor,  Rule  12  requires  that  every  order  or  instrument  of  the  

Government shall be signed by a Secretary, a Special Secretary, an  

Additional Secretary, a Joint Secretary etc. as enumerated therein so  

much  so  that  such  signature  shall  be  deemed  to  be  a  proper  

authentication of such order or instrument.

62.  Part  III  of  the  Rules  dwells  upon the  procedure  of  the  

Council of Ministers.  In terms of Rule 14, all cases referred to in the  

Second Schedule shall be submitted to the Chief Minister, through  

the Secretary to the Council after consideration by the Minister-in-

charge or the Minister of State-in-charge, as the case may be, with a  

view to obtain his orders for circulation of the case under Rule 15 or

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for bringing it up for consideration at a meeting of the Council or  

Sub-Committee thereof.  Such laying would not be necessary if a case  

falls  within  the  purview  of  a  Sub-Committee  of  the  Cabinet  

constituted  under  Cabinet  Secretariat  Order  No.  F.3(3)/Cab/81,  

dated 30.9.1981.

63. The  manner  of  departmental  disposal  of  business  is  

elucidated under Part-IV.  Rule 21 predicates that except otherwise  

provided by any other  rule,  disposal  of  business relating to  items  

common to all departments shall be made in the manner specified in  

Appendix ‘B’  and for the disposal of business relating to other items,  

the Minister-in-Charge or the Minister of State-in-Charge, as the case  

may be, by means of standing orders, give such directions  as he  

thinks fit.  Under Rule 22, the standing orders referred to in Rule 21  

shall be sent by the Minister-in-charge or the Minister of State-in-

Charge, as the case may be, to the Governor and the Chief Minister.  

Rule 31 lists the cases to be submitted to the Chief Minister before  

issuance of any order.

64. Incidentally, the extracted clause of the notification dated  

5.3.1999 appears at serial No.  (iii)  under Rule 31.   Significantly,  

clause (xii)  also mentions “cases raising question of policy”.  As is  

evident  from  clause  (xix),  it  would  be   competent  for  the  Chief  

Minister to call for the relevant papers/file(s), report and pass orders

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in any case involving a question of policy or a matter of urgent public  

importance,  relating  to  any  department  when  he  considers  it  

necessary or expedient so to do, or when the case is referred to him  

by the Minister-in-Charge or the Chief Secretary.   Reverting to the  

Order dated 20.7.1998 which patently replicated the standing order  

contemplated under Rules 21 and 22 of the Rules  and was in force  

on the date on which the circular dated 13.12.2001 was issued, it  

authorised  the departmental minister exclusively to deal with and  

take  a  decision  on  matters  relating  to  land  acquisition  and  

deacquisition.  Our attention has not been drawn to any other order  

under the Rules after the amendment on 5.3.1999, superseding the  

same.   The  earliest  in  point  of  time  as  available  is  one  dated  

8.7.2004, whereby the departmental minister with the approval of the  

Chief  Minister  had  been  authorised  to  take  decision  on  matters  

relating to deacquisition of land under acquisition and acquired land.  

Apart from the fact that both these Orders are evidently under the  

hand  of  the  departmental  minister/state  minister  (independent  

charge),  the unmistakable inference is that these had been issued  

with the sentient awareness of the prescripts of the Rules.

65. To  reiterate,  the  State  in  its  additional  affidavit  dated  

22.3.2013  in  response  to  a  categorical  query  of  this  Court  as  to  

whether the circular dated 31.12.2001 did convey a policy decision

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on the issue of allotment of land in lieu of  land averred in clause (b)  

in answer to query No. 1 as hereunder:

“Policy Circular dated 21.9.1999:  This policy Circular  provides  for  15%  developed  land  in  lieu  of  cash  compensation for the acquired land, provided that the  award was not passed earlier and compensation had not  been paid till then.  This circular was issued with the  approval of Minister In-charge of the Department.”

66. Rule 31(1)(ii) of Rules, to reiterate, after the amendment  

on 05.03.1999 did  provide that the cases raising question of policy  

and all the cases of administrative importance not already covered  

by Second Schedule would have to be laid before the Chief Minister  

before any order is issued.

67. With this preface, the State did, however, in unqualified  

terms  aver  in  its  affidavit  dated  22.3.2013  that  in  terms  of  the  

Standing Orders under Rule 21 at item No. 106, the Minister-in-

Charge  was  the  competent  authority  in  matters  relating  to  land  

acquisition and also for releasing the land under acquisition. It was  

clarified,  that  the  competent  authority  in  relation  to  land  

acquisition/release of  land used to be the Minister-in-Charge and  

that  subsequent  to  the  notification  dated  8.7.2004,  the  Rules  of  

Business  allocation  had  been  amended  whereafter,  the  matters  

relating to land under acquisition/release of land from acquisition,  

had been brought within the ambit of Second Schedule and thus by

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virtue of Rule 8 read with 31, the file had to be approved by the  

Chief Minister of the State.  Further, it was stated as well that since  

the  matter  of  land  in  lieu  of  compensation  was  considered  as  a  

matter  relating  to  acquisition  or  for  releasing  the  land  under  

acquisition, it was within the ambit of Rule 21 and, therefore, the  

Minister-in-Charge was capable of taking the decision as required.

68. In  the  face  of  above  overwhelming   and  unambiguous  

verified  averments  made  on  behalf  of  the  State  as  well  as   the  

sequence of the orders/circulars on the issue involved, we are of the  

unhesitant opinion that at the relevant point of time i.e. 13.12.2001,  

the  departmental  minister  was  in  exclusive  charge  and  was  

competent to take a final  decision on the issue of  acquisition of  

land, release thereof from acquisition and allotment of land in lieu of  

compensation and thus the said circular indeed does represent an  

enforceable  State  policy.  In  any  view  of  the  matter,  the  State  

Government had acted on the circular in allotting developed land to  

others and,  thus under the shield of  repugnance of  the Rules,  it  

cannot be permitted to resile from its policy intended to be invoked.

69. The authorities cited at the Bar now need be traversed to  

test  the  conclusions  made.   The  propositions  contained  therein,  

being dominantly structured on the textual facts, reference thereof  

in bare minimum is unavoidable.

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70. In  Dattatreya Moreshwar (supra), before a Constitution  

Bench of this Court, in challenge was the order of confirmation of  

the detention of the petitioner under the Preventive Detention Act,  

1950, amongst other, on the ground that it was with a confidential  

letter  of  the  Secretary  to  the  Government  of  Bombay,  Home  

Department and the same not being expressed/made in the name of  

Governor, as required by Article 166(1) of the Constitution of India,  

was not in proper legal form.  It was urged with reference to the said  

constitutional provision, that all executive actions of the Government  

of State have to be expressed and authenticated in the manner as  

provided therein.  This Court, while observing that every executive  

action need not be formally expressed, more particularly so when  

one superior officer directs his subordinate to act or forbear from  

acting in a particular way, ruled that when an executive decision  

affects an outsider or  is  required to be officially  notified or to be  

communicated,  it  should  normally  be  expressed  in  the  form  

mentioned in Article 166(1) of the Constitution of India i.e. in the  

name  of  Governor.   The  plea  that  an  omission  to  make  and  

authenticate an executive decision in the form mentioned in Article  

166 does not per se make the decision itself  illegal was, however  

sustained.  It was underlined, that generally speaking the provisions  

of a statute creating public duties are directory and those conferring

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private  rights  are  imperative.   It  was  propounded that  when the  

provisions of a statute relate to the performance of a public duty and  

the case  is such that to hold null and void acts done in neglect of  

this duty would work serious general inconvenience or injustice to  

persons who have no control over those entrusted with the duty and  

at  the  same  time  would  not  promote  the  main  object  of  the  

legislature,  it  had been  the  practice  of  the  Courts  to  hold  such  

provisions to be directory only, the neglect  thereof not affecting the  

validity of the acts done.  Elaborating on this deduction, it was held,  

that strict compliance with the requirements of Article 166 would  

give  an  immunity  to  the  order  so  much  so,  that  it  cannot  be  

challenged  on  the  ground  that  it  is  not  an  order  made  by  the  

Governor and thus in case of non-compliance of the said provision,  

such an immunity cannot be claimed by the State.   It was, however,  

observed that such a failure would not vitiate the order itself.  In  

clear  terms,  it  was  expanded  that  though  Article  166  of  the  

Constitution of India directs all executive action to be expressed and  

authenticated  in  the  manner  laid  down  therein,  an  omission  to  

comply therewith does not render the executive action a nullity.

71. Concurring  with  the  majority  view  as  above,  Hon’ble  

Mukherjee, J. observed that Article 166(1) did not lay down how an  

executive action of the Government of a State is to be performed; it

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only prescribed the mode in which such an act is to be expressed.  It  

was emphasised that the manner of expression is ordinarily a matter  

of form but whether a rigid compliance with a form is essential to the  

validity  of  an  act  or  not,  depends  upon  the  intention  of  the  

legislature.  It was enunciated that Article 166 of the Constitution of  

India has to be read as a whole whereunder as per clause (3), the  

Governor is to make rules for the more convenient transaction of the  

business  of  the  Government  of  a  State  and for  allocation thereof  

among the ministers, insofar as that did not relate to matters with  

regard to which the Governor was required to act in his discretion.  

It was  reiterated that any executive action as contemplated therein,  

is to be taken by way of an order or instrument, to be expressed in  

the name of Governor, in whom the executive power of the State is  

vested and further to be authenticated in the manner specified in  

the Rules framed under Article 166(3).  That compliance of Article  

166(1) & (2) would render such an order or instrument immune from  

challenge in a court of law on the ground that it had not been made  

or executed by the Governor of  the State,  was reaffirmed.  While  

concluding that even if clause (1) of Article 166 is taken to be an  

independent  provision  unconnected  with  clause  (2),  it  was  

highlighted  that  the  prescription  of  the  former  would  only  be  

directory and not imperative and was indeed a formality for doing a

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public act.  Following extract from the Maxwell on Interpretation of  

Statutes, 11th Edition, page 369 was adverted to:

“Where  the  prescriptions  of  a  statute  relate  to  the  performance of a public duty, and  where the invalidation  of acts done in neglect of them would work serious general  inconvenience or injustice to persons who have no control  over those entrusted with the duty, yet not promote the  essential aims of the legislature, such prescriptions seem  to  be  generally  understood as  mere instructions for  the  guidance and government of those on whom the duty is  imposed, or, in other words, as directory only.”   

72. A letter issued by the Under Secretary to the Government  

of  Mysore,  Education  Department  conveying  the  decision  of  the  

Government to award 25% marks in the interview for admission to  

Engineering  Colleges  and  Technical  Institutions  suffered  the  

assailment of being non-compliant with the requirements of Article  

166 of the Constitution of India as it had neither been expressed in  

the name of Governor nor implemented in the manner as enjoined in  

R. Chitralekha (supra).  A Constitution Bench of this Court, while  

expressing its view in majority in essence recounted the proposition  

enunciated in  Dattatraya Moreshwar (supra)  and also  State of  

Bombay vs. Purvshottam Jog Naik (1952 SCR 674) and  Ghaio  

Mall and Sons vs. State of Delhi  (1959 SCR 1424) to the effect  

that the essentials of Article 166(1) and (2) if not complied with, the  

order in question would be defective in form.  It reiterated that  the  

enjoinments are not mandatory but directory and if not adhered to

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would only deny the claim of immunity thereof from challenge as to  

whether the decision in fact had been of the State Government or  

the Governor and would not per se render the same a nullity.  In  

such an eventuality, it would be necessary to be established as a  

question of fact that the decision or the order involved was in fact  

validly  taken  by  the  State  Government  or  the  Governor.   That  

however in any case, there has to exist a decision or order of the  

Governor as per the Rules of Business framed under Article 166(3)  

and that it would be the burden upon the Government to establish  

the  same  was  emphasised  upon  by  Hon’ble  Mudholkar,  J.  in  

supplementation of the majority view.

73. The  vires  and  constitutional  validity  of  the  Goa  

(Prohibition of  Further  Payment  and Recovery of  Rebate Benefits)  

Act, 2002 was impeached in Goa Glass Fibre Limited vs. State of   

Goa and another (2010) 6 SCC 499, amongst others, on the ground  

that  the  said  legislation was founded  on a decision of  the  High  

Court of Bombay, Panji Bench rendered on 19.4.2001/24.4.2001 to  

the effect that Notifications dated 15.5.1996 and 1.8.1996 had been  

issued without compliance with the requirements of Article 166(3),  

though the said verdict was subjudice in appeal before this Court.  

Resisting the challenge, the State of  Goa, not only endorsed  the  

validity  of  the  Statute   but  also  insisted  that  the  notifications

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involved were illegal, unauthorised and that the legislation had been  

made to prohibit any further payment there under in order to save  

the public exchequer  from getting denuded of  its  coffers.   It  was  

urged as well, that the decision of the State Government to issue  

notifications mentioned above was not authorised by law inasmuch  

as the Council of Ministers had rescinded the same.  But despite  

this, the Power Minister himself had issued a notification at his own  

level without making a reference to either the Chief Minister or the  

Council  of  Ministers  or  consulting  the  Finance  Department  as  

mandatorily required under the Rules of business.  It was asserted  

as well that the decision of the then Minister of Power to issue the  

notifications was wholly unauthorised as he had no authority in law  

to issue them at his level and the subject matter was required to be  

placed before the Cabinet in view of the huge financial implication  

involved therein and further that the Cabinet had earlier rescinded  

the notifications offering rebate.  It was underlined too, that for any  

modification  or  variation  of  such  decision,  it  was  required  to  be  

placed before the Council of Ministers in view of the business Rules  

framed under Article 166(3) of the Constitution of India.  The State  

maintained further that the two notifications had imposed a heavy  

burden  on  the  state  exchequer  and  that  the  concurrence  of  the  

Finance Department of the State Government was mandatory.  That

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not only such concurrence was absent, the note in the concerned file  

of the Power Minister  that he had consulted the Chief Minister was  

found to be false  as per the police investigation conducted.   The  

State  pleaded  too  that  despite  no  budgetary  allocation  or  any  

provision for making payment, finance was sought to be diverted to  

the  private  industrialists  by  virtue  of  the  two  notifications,  as  a  

result whereof, an amount of Rs. 16 crores had already been lost  

and further sum of Rs. 50 crores  of public money was in the course  

of being siphoned off.

74.  This Court in the above overwhelming factual backdrop,  

supported  by  the  official  records,  did  take  note  of  the  amply  

demonstrated grounds, justifying the legislation and did sustain the  

validity thereof.   In essence, this Court did accept on the face of  

contemporaneous records  that  the  notifications had already been  

rescinded by the  Council of Ministers and though under the Rules  

of  Business,  the  Finance  Department  was  to  be  mandatorily  

consulted due to  huge financial  implication,  the  then Minister  of  

Power  on  his  own  had  issued  the  same  resulting  in  heavy  and  

unwarranted financial burden on the State Exchequer in absence of  

any budgetary sanction therefor.

75.  In M.R.F. Limited (supra), this Court was in seisin of a  

challenge  to  the  said  two  notifications  dated   15.5.1996  and

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1.8.1996 granting rebate of 25% in tariff in respect of power supply  

to  certain  categories  of  industrial  consumers,  inter  alia,  on  the  

ground that those were null and void for want of compliance with  

the concerned Rules of Business of  the State Government framed  

under Article 166(3) of the Constitution of India.  Skipping over the  

otherwise chequered background of these notifications, suffice it to  

state that the challenge thereto was also laid on the ground of non-

compliance  of  the  mandate  of  Articles  154  and  166  of  the  

Constitution of India and instead being the yields of the Minister of  

Power.  It  was contended that the said notifications could not be  

termed as those issued by the State Government on account of non-

compliance with the Rules of Business and, therefore, were non est  

and void ab initio and resultantly the consequential actions based  

thereon were a nullity.  The same issue did arise principally for the  

scrutiny  of  this  Court  in  the  appeals  preferred  by  the  industrial  

consumers involved.  The State Government in its counter-affidavit  

in the appeals in support of the judgment impugned, pleaded that  

the notifications did not embody the Government decision inasmuch  

as the matter was neither placed before the State Cabinet in terms of  

the  business  Rules  nor  was  the  mandatory  concurrence  of  the  

Finance Department there under obtained.  It was contended as well  

that   in  view of  the  notifications,  the  State  had already  paid  an

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amount of Rs. 16 crores as rebate and that it could not afford to pay  

further on account of the financial crunch faced by it. It was urged  

further that the Notifications, if upheld, would result in loss of Rs.  

50 crores to the State Exchequer.  The pleadings of the State, as  

noticed by this Court, reflected that there was neither the financial  

sanction nor the budgetary provision, nor a cabinet approval as was  

mandatorily  required  under  the  Rules  and  that  there  was  clear  

breach of the mandatory provisions thereof.

76. In the course of adjudication, the plea of estoppel against  

the State Government in repudiating the notifications was negated  

on the ground that the issue of validity thereof, being repugnant to  

the mandatory provisions of the Rules of business had not arisen in  

the  earlier  round  of  litigation.   The  contention     that  it  was  

impermissible for the State Government to take contradictory stand  

in the pleadings was rejected.  The conclusion of the High Court that  

in  a  democratic  set-up,  the  validity  of  the  decisions  of  the  

Government,  that  decides  the  destiny  of  the  people  should  be  

decided not only on the basis of the affidavits filed by the officers of  

the Governments or on incomplete or inadequate information made  

available by them, but on the basis of constitutional provisions and  

the Business Rules framed there under was sustained.   Adverting to  

the directory or mandatory character of the constituents of Article

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166 of the Constitution of India, this Court, amongst other, quoted  

with  approval  the  following  excerpts  from  its  earlier  decision  in  

Haridwar Singh vs. Bagun Sumbrui  & others (1973) 3 SCC 889:

“13. Several tests have been propounded in decided cases for  determining the question whether a provision in a statute, or  a rule is mandatory or directory. No universal rule can be laid  down  on  this  matter.  In  each  case  one  must  look  to  the  subject-matter and consider the importance of the provision  disregarded and the relation of that provision to the general  object intended to be secured. Prohibitive or negative words  can rarely be directory and are indicative of the intent that the  provision is to be mandatory...

14.  Where a prescription relates to performance of a public  duty  and to  invalidate  acts  done in neglect  of  them would  work  serious  general  inconvenience  or  injustice  to  persons  who have no control over those entrusted with the duty, such  prescription is generally understood as mere instruction for  the guidance of those upon whom the duty is imposed.”

77. The cavil of estoppel against the State on the plea that it  

did not agitate against the legality or validity of the notifications in  

the earlier round of litigation, was dismissed in view of the illegality  

thereof, being repugnant to the mandatory provisions of the Rules. It  

was held that mere omission on the part of the State Government to  

assail  the  validity  of  the  notifications  on  the  ground  of  non-

compliance of the Rules, would neither debar or disentitle it  from  

raising such a plea.

78. Apart   from  noting  the  extract  from  the  erudite  work,

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Maxwell on Statutes, referred to hereinabove, this Court did refer as  

well to the following quote from the Halsbury”s Laws of England, 4th  

Edn. Reissue, Vol. 44(1) at para 1238:

 “Mandatory  and  directory  enactments.—The  distinction  between  mandatory  and  directory  enactments  concerns  statutory requirements and may have to be drawn where  the consequence of ailing to implement the requirement is  not spelt out in the legislation. The requirement may arise  in one of two ways. A duty to implement it may be imposed  directly on a person; or legislation may govern the doing of  an act  or the carrying on of  an activity,  and compel the  person  doing  the  act  or  carrying  on  the  activity  to  implement the requirement as part of a specified procedure.  The requirement may be imposed merely by implication.

To  remedy  the  deficiency  of  the  legislature  in  failing  to  specify the intended legal consequence of non-compliance  with  such  a  requirement,  it  has  been  necessary  for  the  courts  to  devise  rules.  These  lay  down  that  it  must  be  decided  from  the  wording  of  the  relevant  enactment  whether the requirement is  intended to be mandatory or  merely directory. The same requirement may be mandatory  as to some aspects and directory as to the rest. The court  will be more willing to hold that a statutory requirement is  merely  directory  if  any  breach  of  the  requirement  is  necessarily  followed  by  an  opportunity  to  exercise  some  judicial or official discretion in a way which can adequately  compensate for that breach. Provisions relating to the steps  to be taken by the parties to legal proceedings (using the  term  in  the  widest  sense)  are  often  construed  as  mandatory.  Where,  however,  a  requirement,  even  if  in  mandatory terms, is purely procedural and is imposed for  the  benefit  of  one  party  alone,  that  party  can waive  the  requirement.  Provisions  requiring  a  public  authority  to  comply  with  formalities  in  order  to  render  a  private  individual  liable to a levy have generally been held to be  mandatory.

Requirements are construed as directory if  they relate to  the performance of a public duty, and the case is such that  to  hold  void  acts  done  in  neglect  of  them  would  work  serious general inconvenience or injustice to persons who

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have no control over those entrusted with the duty, without  at  the  same  time  promoting  the  main  object  of  the  legislature. This is illustrated by many decisions relating to  the  performance  of  public  functions  out  of  time,  and by  many relating to the failure of public officers to comply with  formal  requirements.  On  the  other  hand,  the  view  that  provisions  conferring  private  rights  have  been  generally  treated as mandatory is less easy to support; the decisions  on provisions of this type appear, in fact, to show no really  marked leaning either way.”

79. The assertion on behalf of the respondents that there can  

be no universal rule with regard to violation of Rules of Business and  

that  each  case  must  be  decided  on  the  facts  and  further  that  

prohibitive  or  negative  words in  the  provision thereof,  in  matters  

concerning revenue or finance, exclusive competence of the Cabinet  

to  take a  decision on an issue,  prior  consultation of  the Finance  

Department and the like do indicate mandatory feature thereof, was  

taken  note  of.   It  was  held  that  the  Rules  of  Business  in  those  

contingencies,  if  not  complied  with,  the  decision/communication  

could  not  be  termed  as  a  Government  decision  and  that  an  

individual functionary cannot bypass the Rules of Business.

80. This Court took cognizance, amongst other, of the decision  

of this Court in  Kripalu Shankar (supra) which proclaimed that a  

noting by an official in the departmental file would not amount to an  

executive  decision  within  the  meaning  of  Article  166  of  the  

Constitution of India.  It noted the observation as well that while

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clauses (1) and (2) of Article 166 did relate to the mode of expression  

of the order and the authentication thereof, clause (3) pertained to  

the  making  of  the  rules  by  the  Governor  for  more  convenient  

transaction of the business of the Government.   Referring to  Rules  

3,  6 and 7 of  the Business Rules of  the  Government of  Goa as  

involved  and  judging  the  same  on  the  touchstone  of  the  above  

judicially  evolved  formulations,  this  Court  concluded  that  any  

proposal  likely  to  be  converted  into  a   decision  of   the  State  

Government  involving expenditure or abandonment of revenue  for  

which  there was  no provision made in the Appropriation Act  or an  

issue   which involved  concession  or  otherwise  having  a  financial  

implication on the State, was required to be processed only after  the  

concurrence of the Finance Department and could not be finalised  

merely at the level of the Minster-in-charge. It was ruled that after  

the concurrence of the Finance Department, the proposal had to be  

placed before the Council of Ministers and/or the Chief Minister and  

only after a decision was taken in that regard, the same would result  

in a decision of the State Government.  It was held that Rules 3, 6, 7  

and 9 were mandatory  in  nature so  much so that  any decision  

taken by any individual minister in violation thereof could not be  

termed as a decision of the State Government.

81. In arriving at this conclusion, this Court did acknowledge

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the decision of the Constitution Bench in  R. Chitralekha (supra)  

which propounded that  the  provisions,  Article  166 (1)  & (2)  were  

directory in nature and not mandatory, but observed that the same  

could  not  be relied upon to uphold the  contention that  Business  

Rules  made under Clause (3) were directory as well.

82. Dwelling on this aspect, this Court elucidated that under  

Article  154 of  the Constitution of  India,  the  Governor  was vested  

with the executive power of the State, to be exercised either directly  

or through the officers  subordinate  to  him  in   accordance  with  

the  provisions  of  the  Constitution.   It  was  set  down  that  the  

Governor  was advised by the Council  of  Ministers  with the Chief  

Minister  as  its  head  in  exercise  of  his  functions  except  those  

specifically stated to be in the discharge of his discretion as the Head  

of the State.  It was reiterated that the Rules of Business framed  

under  Article  166(3)  of  the  Constitution  were  for  convenient  

transaction of the business of the Government and for allocation of  

the business among the Ministers who collectively  in the Council  

were responsible to the Legislative Assembly of  the State.   It  was  

emphasised  that  any  decision  taken  by  the  State  Government,  

therefore,  reflected  the  collective  responsibility  of  the  Council  of  

Ministers and their participation in the decision making process and  

thus  the  Rules  of  Business  framed  under  Article  166(3)  of  the

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Constitution are framed in order to fulfil the constitutional mandate  

embodied  in  Chapter  II  of  Part  VI  of  the  Constitution  making  it  

obligatory for the decision of the State Government to be in accord  

therewith.   The  following  excerpt  from the  decision in  Haridwar  

Singh (supra) was also referred to:

15. Where however, a power of authority is conferred with a  direction  that  certain  regulation  or  formality  shall  be  complied  with,  it  seems  neither  unjust  nor  incorrect  to  exact  a  rigorous  observance  of  it  as  essential  to  the  acquisition of the right or authority.”...

83. It was, thus, concluded that the Business Rules framed  

under the provisions of Article 166(3) are mandatory and must be  

strictly adhered to so much so that any decision of the Government  

in breach thereof would be a nullity in the eye of the law.

84. In the facts of the above reported case, this Court, on a  

consultation  of  the  official  records  and  being  convinced  that  the  

notifications concerned had been issued in non-compliance of the  

Rules, sustained the verdict of the High Court proclaimed as above.

85. Allusion to Article 166 as a whole, figured in a different  

context  before  this  Court  in  Jaipur  Development  Authority  

(supra), to assay  the attributes of the letter dated 6.12.2001 issued  

by the Deputy Secretary (Administration), Urban Development and  

Housing  Department  to  the  Secretary,  Jaipur  Development  

Authority, Jaipur in the matter of allotment of plots in addition to

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the  compensation  paid  to  the  awardees  in  connection  with  the  

acquisition of land involved.  For the construction of new building of  

the Legislative Assembly, educational institutions, stadium complex,  

district shopping centre, MLA quarters etc., under the project “Lal  

Kothi Scheme”, notification under Section 4 and declaration under  

Section  6  of  the  Rajasthan  Act   were  issued  on  13.5.1960  and  

11.5.1961  respectively  whereafter,  notice  was  issued  to  the  land  

owners/khatedars under Sections 9 (1) and (3) of the Rajasthan Act.  

The  claimants  for  compensation,  included  persons  who  had  

purchased portions  of  the  acquired land.   Initially,  65 khatedars  

filed claims for compensation, but this figure rose to more than 137  

because  those  who  purchased  land  from  the  khatedars  after  

publication  of  the  notification  issued  under  Section  4  and  their  

nominees/sub-nominees, also filed claims for compensation.

86. The Land Acquisition Officer, Jaipur by his award dated  

9.1.1964 not only determined the amount of compensation payable  

to  the  land owners and the beneficiaries  of  transfers  which were  

illegal  being  made  after  the  notification  under  Section  4  of  the  

Rajasthan  Act,  but  also  directed  allotment  of  plots  measuring  

varying areas to the owners/their  transferees and nominees/sub-

nominees  out  of  the  acquired  land.    Initially,  neither  the  State  

Government nor the Urban Improvement Trust, Jaipur, the architect

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of the project, did challenge the direction contained in the award of  

the Land Acquisition Officer.  However, as the execution applications  

by  the  beneficiaries  mounted  with  time,  they  did  so.  While  the  

litigation was pending, the functionaries of the State, in their bid to  

confer legitimacy on the illegal transactions involving purchases of  

the acquired land after the notification under Section 4, caused a  

Committee to be constituted at the instance of the then Minister of  

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

Trust  for suggesting the methodology for  allotment of land in terms  

of  the  directions  given  by  the  Land  Acquisition  Officer.   The  

Committee, accordingly, recommended that the land be allotted to  

the beneficiaries of illegal transactions at the rate fixed by it and a  

circular representing to be a policy decision, was issued in 1978 to  

that effect.   The draw of  lots was held thereafter for allotment of  

plots to the awardees and the beneficiaries of illegal transfers of the  

acquired land.  Those unsuccessful in the process, approached the  

High  Court  which  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.  The recorded facts revealed, that an  

inquiry was made into the episode by the Lokayukta of the State,  

who returned a finding, that the persons named therein including

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the then departmental minister had misused their official position to  

favour a few influential and highly placed individuals and had also  

thereby caused wrongful gain to them and wrongful loss to the JDA  

(successor of Jaipur Improvement Trust) and the public at large.

87. This  Court  recalled  its  adjudication  in  Jaipur  

Development Authority vs. Radhey Shyam (1994) 4 SCC 370 to  

the  effect  that  the  Land  Acquisition  Officer  did  not  have  any  

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

claimants under the Rajasthan Act in lieu of compensation.  It was  

also  noted  that  as  held  in  Jaipur  Development  Authority  vs.   

Daulat Mal Jain (1997) 1 SCC 35 that there was no policy laid by  

the Government to this effect and that it could not have been so,  

being  contrary  to  the  Rajasthan  Improvement  Trust  (Disposal  of  

Urban Land) Rules, 1974 and that no such power was given to the  

individual minister by executive action to that effect.   This Court  

also recalled its observation 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  

was an artifice to feed corruption and to deflect the public purpose.

88. The facts divulged that the purchasers involved initially  

challenged the notice dated 19.12.1996   issued by the JDA  for

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auction of their plots before the  Tribunal and being unsuccessful in  

view of  the pronouncement in  Radhey Shyam Case (supra)  and  

Daulat Mal Jain (supra), challenged the determination made by the  

Tribunal before the learned Single judge of  the High Court which  

met the same fate.  The Division Bench of the High Court however,  

though did uphold the finding of the learned Single Judge that the  

dispute relating to title of the property could not be decided under  

Article 226 of the Constitution, sustained the plea of the purchasers  

that in terms of the policy decision taken by the State Government,  

expressed  in  the  letter  dated  6.12.2001  and  the  order  dated  

9.1.2002 passed by another Division Bench, they were entitled to  

regularisation of the plots in question.

89. In  the  contextual  facts,  this  Court  noticed  that  the  

vendors of the purchasers had no valid title, they having purchased  

the land involved from the khatedars, after the publication of the  

notification  under  Section  4  and  that  thus  the  intervening  

transactions  did  not  convey  any  title.   It  recorded  that  till  the  

disposal of the writ petition by the learned Single Judge, the letter  

dated 6.12.2001,  sought to be passed off as a policy decision, was  

not in existence and that a Committee of Ministers was formed vide  

order   30.10.2001   to  suggest  a  solution  of  the  problem in  the  

regularisation of illegal constructions/encroachments of land under

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the  Lal  Kothi  and  Prithviraj  Nagar  Schemes  in  relation to  which  

several cases were pending in different courts.  It was observed that  

the recommendations made by the Committee were given the colour  

of Government decision, though no material had been produced to  

establish that  the  same were accepted by  the  State  Government.  

That such a lacuna was discernible from the letter dated 6.12.2001  

was also observed.  Apart from holding that the Division Bench of  

the High Court had erred in entertaining a new case without the  

essential pleadings, the reliance on the said policy decision which  

was in flagrant violation of the judgments of this Court in Radhey  

Shyam (supra)   and  Daulat  Mal  Jain  (supra)  was  strongly  

disapproved.  Holding that the letter dated 6.12.2001, by no means,  

could be construed to be a policy decision of the State Government,  

this Court ruled that the High Court had impermissibly sought to  

legitimise the illegal transactions in violation of the dictum of this  

Court in Radhey Shyam (supra)   and Daulat Mal Jain (supra).

90. It is in this context that the prescriptions of Articles 77 &  

166  of  the  Constitution  of  India  were  adverted  to,  with  special  

reference to the decision of this Court in  Kripalu Shankar (supra)  

to the effect that a noting by an official in the departmental file could  

not  be  construed  to  be  an  executive  decision.   It  was  thus  

concluded,  that  unless  an  order  is  expressed  in  the  name  of

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President  or  the  Governor  and  is  authenticated  in  the  manner  

prescribed by the Rules of Business, the same cannot be treated as  

an  order  made  on  behalf  of  the  Government.   The  letter  dated  

6.12.2001 in the opinion of this Court, having failed to meet this  

prescript, it was discarded as a policy decision of the Government  

within the meaning of Article 166 of the Constitution.  It was held as  

well, that in any case, even if this letter dated 6.12.2001 could be  

treated  to  be  a  policy  decision,   it   being  contrary  to  the  

determinations made in Radhey Shyam (supra)   and Daulat Mal  

Jain (supra), it was non est.

91. This Court had an occasion to dilate on the prescriptions  

of  Articles  166  and  77  of  Constitution  of  India  in  Delhi  

International  Airport  Ltd.  vs.  International  Lease  Finance  

Corporation and others 2015 (8)  SCC 446.   While   testing  the  

validity of the minutes of the meeting of the Committee, comprised  

amongst others of the representatives of Ministry of Civil Aviation,  

Airport Authority of India (AAI), Delhi International Airport Pvt. Ltd.  

(DIAL) and Central Board of Excise and Customs (CBEC), regarding  

release of  aircrafts  of  the respondent Kingfisher  Airlines (KAL) by  

Delhi International Airport Ltd., the issue that surfaced was whether  

the minutes of the meeting could override    the Airport Authority of  

India  (Management  of  Airports)  Regulations,  2003  (for  short,

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hereinafter  referred to as “Regulations”).   Under  Regulation 10 of  

Regulations, the competent authority, as defined in Regulation 3(8)  

only was empowered to detain or stop the departure of an aircraft  

unless  otherwise  provided  by  the  Airport  Authority  of  India  Act,  

1994  or  by  general  or  speaking  order  in  writing  of  the  Central  

Government.   Responding  to  the  plea  of  the  appellant  that  the  

minutes  of  the  meeting  dated  26.3.2013  permitting  release  of  

aircrafts,  as  mentioned  therein,  being  not  a  general  or  speaking  

order passed by the Central Government,  it could not override the  

powers  of  the  AAI  under  Regulation  10,  this  court  referring  to  

Articles 77 and 166 of the Constitution of India held that in terms of  

Rule 3 of the concerned Rules of business, the decision taken in the  

meeting dated 26.3.2013 should have been sanctioned by/under the  

general or special directions of the Minister-in-Charge and further as  

stakes of different departments headed by different ministries were  

concerned, the decision should have been taken by the concerned  

Committee  of  the  Cabinet.   The  concurrence  of  the  Finance  

Department due to the financial bearing, was also necessary.  It was  

held that the minutes of the meeting purportedly stated to be an  

order in writing by Central Government and later communicated to  

all concerned, were not disposed of  in pursuance of Rule 4 of the  

Rules i.e.  neither the decision was sanctified by the Cabinet nor the

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concurrence of Finance Department was taken.  This Court held the  

view  that  from  a  combined  reading  of  Rules  3,4  and  4(2),  the  

minutes of the  meeting were required to be proceeded only  after the  

concurrence of  the Finance Department and could not have been  

finalised  at  the  level  of  officers/representatives  of  Civil  Aviation,  

Central Board of Excise and Customs etc.  Additionally, after the  

concurrence  of  the  Finance Ministry,  the  minutes  of  the  meeting  

ought to have been placed before the concerned Minister as per the  

Rules of Business.  It was held that sanctification by the concerned  

ministry  and  the  concurrence  of  the  Finance  Department  was  a  

mandatory  requirement  in  order  to  construe  the  minutes  of  the  

meeting to be a general or special order in writing by the Central  

Government.  That there was nothing on record to prove that the  

minutes  of  the  meeting  had  the  concurrence  of  the  Finance  

Department  or  had  either  been  confirmed  or  approved  by  the  

concerned Minister or such directions had been issued pursuant to  

any decision taken by a competent authority in terms of Rules of  

Business framed under Article 77 of the Constitution of India, was  

noted.   The  intervention of  this  Court  was,  thus  on a  clear  and  

demonstrable infraction of Rules of  Business framed under Article  

77 of the Constitution of India enjoining peremptory compliance of  

the requirements for fructification of the minutes of the meeting to

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be a general or special order in writing by the Central Government,  

as contemplated by the Rules.

92. In Rajasthan Housing Board  (supra), land was acquired  

for the purpose of housing scheme of the Board and a notification  

under Section 4 of the Rajasthan  Act  was issued on 12.1.1982. The  

possession was handed over to the Board on 22.5.1982.  The award  

was passed in four cases   on 30.11.1982 and in remaining cases on  

2.1.1989   by  the  Land  Acquisition  Officer   in   favour  of  the  

khatedars.     The respondent society  applied for reference under  

Section 18 of the Rajasthan Act and the Reference Court determined  

the compensation at Rs. 260 per square yard.  The High Court, in  

appeal, reduced the compensation to Rs. 100 per square yard.  The  

Division  Bench  of  the  High  Court,  however,  in  addition  directed  

consideration for allotment of 25% of the developed land in view of  

the circular dated 27.10.2005.

93. According to the respondent society, it had entered into  

an agreement of sale with the khatedars on various dates prior to  

the notification dated 12.1.1982 and that it also obtained a decree in  

a suit on the basis of compromise.  That it had developed the land  

by making a huge investment, was also asserted.  The claim of the  

respondent  society  for  compensation  was  resisted  by  the  State  

Government and the  Rajasthan Housing Board contending that  the

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transactions, on the basis of  which it  claimed the same, were ab  

intio void being in contravention of provisions of Section 42 of the  

Rajasthan Tenancy Act.  It was contended as well  that the circulars  

dated  13.11.2001 and 27.10.2005 relied upon by the Society, were  

not applicable to the facts of the case and were not enforceable as  

well.   The  direction  for  allotment  of  developed  land  was,  thus,  

seriously assailed.

94. Referring  to  Section  42  of  the  Rajasthan  Tenancy  Act,  

1955, this Court upheld the objection of  nullity of the transactions  

for sale as claimed by the respondent-society as it prohibited sale,  

gift or bequest by a member of  a Scheduled Caste in favour of a  

person who is not a member of the Scheduled Caste, or by a member  

of a Scheduled Tribe in favour of a person who is not a member of  

the Scheduled Tribe.  It was recorded that the cast of the original  

khatedars was “Bairwa” which was a Scheduled Caste.

95. Reverting  to  the  circular  dated  27.10.2005,  this  Court  

marked  that  the  applicability  thereof   depended  on  the   land  

surrendered by the khatedars without compensation, thus entitling  

them to obtain 25% of the developed residential  area in lieu thereof.  

It was held that as it was not a case of surrender of land, the said  

circular  was  inapplicable  which,  in  fact,  was  in  the  form  of  

guidelines for future acquisition, conditionally on the surrender of

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the land by the khatedars.  The ratio of the decisions of this Court in  

Radhey  Shyam(supra),  Daulat  Mal  Jain (supra)   and  Vijay  

Kumar Data (supra)    was reiterated.

96. In the context of the circular dated 27.10.2005, reference  

was again made to the decision of this Court in  Kripalu Shankar  

(supra) involving the noting in a file, which as held, did not amount  

to an executive decision by itself.   The mandate of Article 166 with  

regard to mode of expression of the decision of the Government, the  

manner of  authentication thereof  and making of the rules by the  

Governor  for  more  convenient  transaction  of  the  business  of  the  

Government was revisited. In the contextual facts, the circular dated  

27.10.2005 was held to be inapplicable besides being beneficial to  

the purchasers, who claimed to have acquired right in the land, after  

issuance of the notification under Section 4 and in violation of the  

mandate of Section 42 of the Rajasthan Tenancy Act.   The direction  

of the High Court to allot land on the basis of the circular dated  

27.10.2005 was, thus, interfered with.

97.  The  decision  of  this  Court  in   Hari  Ram    (supra)  

pertains to the grievance of discrimination in the matter of release of  

acquired lands.  Following the commencement of the initiative for  

acquisition  of  land  under  the  Land  Acquisition  Act  1894,  writ  

petitions  were  filed  in  the  High  Court  of  Punjab  &  Haryana

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challenging the notifications under Section 4 and 6 of the said Act  

on various grounds.  The writ petitioners also prayed for release of  

their  respective  lands.   During  the  pendency  of  writ  petitions,  a  

Committee  was  constituted  to  inspect  the  site  and  make  

recommendations  as  to  whether  the  land  of  the  writ  petitioners  

could  be  released  or  not.   The  Committee  submitted  its  report  

whereby,  however,  it  did  not  recommend  release  of  land  of  the  

appellants before this Court.   The High Court, acting on the report,  

though  ordered  release  of  land  in  favour  of  some  of  the  writ  

petitioners, dismissed the claim of others including the appellants.  

During  the  pendency  of  appeal  before  this  Court,  the  appellants  

were  granted  liberty  to  make  representations  before  the  State  

Government for release of their land.  The representations filed were,  

however, rejected on the basis of policy dated 26.10.2007.

98. In the facts of that case, this Court noticed that  prior to  

26.10.2007, the State of Haryana did not have any uniform policy  

governing the release of land from acquisition, though a letter dated  

26.6.1991  pertaining to review the progress of various schemes of  

Haryana Urban Development Authority  was sought to be pressed  

into  service  in  that  regard.   The same,  however,  was  not  of  any  

decisive significance.  This Court held, that neither the letter dated  

26.6.1991 nor any other policy had ever been followed by the State

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Government  while  releasing  the  land  of  various  land  owners  

acquired in the same acquisition proceedings. That the policy dated  

26.10.2007 had not been applied to any of the land owners whose  

land had been acquired along with the appellants’  land was also  

noted.  It was noticed that lands of more than 40 land owners out of  

the same acquisition proceedings had been released by the State  

Government  which  also  included  those,  who  had  not  even  

challenged  the  acquisition  proceedings  and  whose  cases  had not  

been  recommended  by  the  Committee  for  withdrawal  from  

acquisition.   Concluding thus, that no firm policy had been applied  

for release of lands from  the acquisition proceedings involved, this  

Court  entered  a  finding  that  it  was  unfair  on  the  part  of  State  

Government in not considering the representations of the appellants  

by applying the same standards.  A direction was made to the State  

to issue appropriate order(s) concerning the appellants’ land on the  

same  terms  and  in  the  same  manner  as  done  qua  the  others  

similarly situated.  In adopting this course, this Court observed in  

no uncertain terms that the land owners who were similarly situated  

have  a  right  of  similar  treatment  by  the  State  Government  as  

equality  of  citizens’  right  was  one  of  the  fundamental  pillars  on  

which the edifice of the rule of law rested.

99. The  postulations  judicially  adumbrated  vis-a-vis  Article

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166   of the Constitution of India, as can be gleaned from the above  

referred decisions, verily convey the quintessence of the content and  

expanse thereof.  Needless it is thus to burden this adjudication by  

referring to other pronouncements on the issue.

100. Article 154 of the Constitution of India vests the executive  

power of  the State in the Governor to be exercised by him either  

directly or through officers subordinates to him in accordance with  

the Constitution.  As per Article 163,  there would be a Council of  

Ministers  with the Chief Minister as the head to aid  and advise  the  

Governor in the exercise of his functions, except insofar as  he is by  

or under the Constitution required to exercise his functions or any  

of them in his discretion.  It is in this presiding premise that the  

conduct  of  Government  business  is  designed  under  Article  166  

which for ready reference is extracted herein under:

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  in so far as it  is not business with respect to which the

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Governor is by or under this Constitution required to act in  his discretion.

101. Whereas  under  Clause  (1),  all  executive  action  of  the  

Government of a State is enjoined to be expressed to be taken in the  

name of  Governor,  as  predicated  by  clause  (2),  orders  and  other  

instruments made and executed in the name of Governor have to be  

authenticated in such manner as may be specified in rules to be  

made by the Governor and if  so done,  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.  Clause (3) makes it incumbent on the Governor to  

frame rules for the more convenient transaction of the business of  

the  Government  of  the  State  and  for  the  allocation  among  the  

Ministers of the said business, insofar as it is not one with respect to  

which, the Governor is by or under the Constitution required to act  

in his discretion.  

102. A combined reading of these provisions, thus would evince  

that the executive power of the  State is vested in the Governor and  

is  to  be  exercised  by  him  either  directly  or  through  the  officers  

subordinate to him, however,  in accordance with the Constitution  

and except insofar as he is required  to exercise his functions or any  

of them in his discretion, there would be a Council of Ministers  with  

the  Chief  Minister  as  the  head   to  act  and  advise  him  in  the

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discharge  of  his  other  functions.   The  Rules  of  Business  as  

contemplated in clause (3) of Article 166 unmistakably relate to the  

transactions  to  be  undertaken by  the  Governor  with  the  aid  and  

advise  of  the  Council  of  Ministers  headed  by  the  Chief  Minister,  

subject however to the allocation of business in terms thereof.   

103. The essentials of  Article 166, as a corollary, are a valid  

executive decision in terms of the Rules of Business framed under  

clause (3), expressed in the name of Governor and authentication of  

the resultant orders and instruments in the manner specified in the  

rules to be made by the Governor.  Thus, Article 166(3) mandates the  

making of the Rules of Business for more convenient transactions of  

the  affairs  of  the  Government.  Clause  (1)  stipulates  the  mode  of  

expression of an executive action taken in conformity therewith and  

clause (2) ordains the manner of authentication of the consequential  

orders and instruments.  Having regard to the role assigned to the  

Council of Ministers with the Chief Minister at the summit, the Rules  

of  Business  framed  under  Article  166(3)  meant  for  convenient  

transaction of  the affairs of  the Government,  by allocation thereof  

among  the  Ministers,  secures  their  collective  participation  in  the  

administration  of  the  governance  of  the  State.   This  scheme  of  

executive  functioning,  assuredly  thus,  is  in  assonance  with  the  

constitutional edict with regard thereto, modelling the steel frame of

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the State machinery.

104. It is no longer res integra that the enjoinment of clauses  

(1) and (2) of Article 166, is not mandatory so much so, that any non  

compliance  therewith,  ipso  facto  would  render  the  executive  

action/decision, if otherwise validly taken in terms of the Rules of  

Business  framed  under  Article  166(3),  invalid.    Any  decision  

however, to be construed as an executive decision as contemplated  

under Article 166, would essentially has to be in accordance with the  

Rules of Business.  The Rules depending upon the scheme thereof,  

may or may not,   accord an inbuilt flexibility in its provisions in the  

matter of compliance.   It is possible that the provisions of the Rules  

en  bloc  may  not  be  relentlessly  rigid,  obligatory  or  peremptory  

proscribing even a minimal departure ensuing in incurable vitiations.  

Contingent on the varying imperatives, some provisions may warrant  

compulsory  exaction  of  compliance  therewith  e.g.  

negative/prohibitive  expression/clauses,  matters  involving  revenue  

or finance, prior approval/concurrence of the Finance Department,  

consultation/approval/  concurrence  of  the  Finance  and  Revenue  

departments in connection therewith and issues not admitting of any  

laxity so as to upset, dislodge or mutilate the prescribed essentiality  

of  collective  participation,  involvement  and  contribution  of  the  

Council  of  Ministers,  headed  by  the  Chief  Minister  in  aid  of  the

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Governor  in  transacting  the  affairs  of  the  State  to  effectuate  the  

imperatives of federal democratic governance as contemplated by the  

Constitution.

105. As noticed hereinabove, it is affirmatively acknowledged as  

well  that where provisions of a statute relate to the performance of a  

public  duty and where the invalidation of  acts  done in neglect  of  

these have the potential of resulting in serious general inconvenience  

or injustice to persons who have no control over those entrusted with  

the duty and at the same time would not promote the main object of  

the legislature,  such prescriptions are generally understood as mere  

instructions for the guidance of those on whom the duty is imposed  

and are regarded as directory.  It has been the practice to hold such  

provisions to be directory only, neglect of those, though punishable,  

would not however affect the validity of the acts done.  At the same  

time  where  however,  a  power  or  authority  is  conferred  with  a  

direction that certain regulation or formality shall be complied with,  

it  would  neither  be  unjust  nor  incorrect  to  exact  a  rigorous  

observance  of  it  as  essential  to  the  acquisition  of  the  right  of  

authority.

106. Obviously, thus the mandatory nature of any provision of  

any Rule of Business would be conditioned by the construction and  

the purpose thereof to be adjudged in the context of the scheme  as a

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whole. The interpretation of the Rules, necessarily, would be guided  

by  the  framework  thereof  and  the  contents  and  purport  of  its  

provisions,  and the  status  and tenability  of  an order/instrument,  

represented as an executive decision would have to be judged in the  

conspectus of the attendant facts and circumstances.  No straight  

jacket  formula  can,  thus  be  ordained,  divorced  from  the  Rules  

applicable and the factual setting accompanying the order/decision  

under scrutiny.

107. Viewed in this  precedential  backdrop,  the  annulment  of  

the  circular  dated  13.12.2001  only  on  the  ground  of  its  non  

conformance  with  the  mandate  of  Article  166  (1)  and  (2)  of  the  

Constitution of  India,  without  any  reference  to  Rules  of  business  

under Article 166(3), in our comprehension does not commend for  

acceptance.   Admittedly   and as  the  impugned  judgment   would  

unmistakably attest, no plea was either raised or examined, based on  

its  repugnance  with  the  Rules  of  Business  framed  under  Article  

166(3).  The facts as obtained in the decisions cited at the Bar are  

distinctly different from those in the case in hand.  Having regard  to  

the overwhelming judicial exposition of the purport and purpose of  

Article  166  of  the  Constitution,  the  status  of  the  circular  dated  

13.12.2001 and the bearing thereof would  have to be adjudged in  

the prevailing facts and circumstances attendant there on.  

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108. It has not been argued before us that non-compliance of  

Article  166  (1)  and  (2)  per  se  did  vitiate  the  circular  dated  

13.12.2001.  The gravamen of the impugnment thereof is founded on  

the  non-observance  of  the  Rule  31  of  the  Rules  following  its  

amendment on 5.3.1999, namely failure to lay the issue with regard  

to the allotment of developed land before the Chief Minister of the  

State.  The march of events qua the decision to allot the developed  

land in lieu of compensation, in order to speed up the completion of  

the acquisition process and to secure timely delivery of possession of  

the  land,  by  curtailing  the  impeding  litigations,  is  traceable  as  

hereinbefore  referred,  to  the  circulars  from  22.4.1992  and  did  

continue with variation in the percentage of land to be allotted even  

after the circular dated 13.12.2001.   

109 Noticeably, no plea has been raised emphasising  on the  

obligatory requirement of concurrence of the Finance Department, as  

a  condition  precedent  or  disapproval  of  the  decision  of  the  

departmental minister and the Committee constituted by him for the  

purpose  either  by  the  Chief  Minister  of  the  State  or  the  other  

Ministers of the Council.  To reiterate, the State Government in its  

affidavit in reply to the queries of this Court made with order dated  

15.1.2013,  in  unmistakable  terms did  vouch the  competence  and  

authority of the departmental minister to exclusively take a decision

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on  this  issue.   As  the  text  of  the  said  affidavit  would  clearly  

demonstrate,  the  State  Government  was  then  fully  aware  of  the  

amendment to the Rules on 5.3.1999.  Our attention has not been  

drawn  to  any  circular/notification  superseding  the  Order  dated  

20.7.1998  whereby  the  departmental  minister  in  terms  of  the  

Standing Orders under Rules 21 and 22 of the Rules was entrusted  

with the duty and jurisdiction of dealing with the matters relating to  

land acquisition and deacquisition.  It was only with the Order dated  

8.7.2004,   that  as  per  Rule  31  of  the  Rules,  matters  relating  to  

deacquistion of land under acquisition and acquired land were to be  

presented before the departmental minister with the approval of the  

Chief Minister.  Nothing has come forth in the interregnum as to the  

working arrangement for the transaction of business in this regard  

under the Rules contrary to the  one envisaged  by the Order dated  

20.07.1998.  We have not been led to any provision in the Rules  

incorporating  any  determinative  mandate  prohibiting  in  absolute  

terms, the continuance of the arrangement under the Standing Order  

as conveyed by  Order dated 20.7.1998 permitting transaction of the  

matters relating to land acquisition and deacquisiton solely by the  

departmental minister.  This assumes importance as well in view of  

Rule 21 requiring disposal of business by means of Standing Orders  

as envisaged therein.  

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110. Rule  31  as  well,  though  required  submission  of  the  

enumerated cases before the Chief Minister prior to the issuance of  

the orders, there is nothing to suggest exclusion of the departmental  

minister from taking a decision on any issue if otherwise authorised  

by the Standing Order.  Rule 14 of the Rules, on the other hand,  

prescribes  that  all  cases  referred  to  in  the  2nd Schedule  shall  be  

submitted to the Chief Minister through the Secretary to the Council  

after consideration by the Minister-in-charge or the Minister of State-

in-charge, as the case may be, with a view to obtain his orders for  

circulation  of  the  case  under  Rule  15  or  for  bringing  it  up  for  

consideration at a meeting of the Council or Sub-Committee thereof.  

Significantly, the Second Schedule  mentions, amongst others, any  

proposal  which would affect the finances of the State which does not  

have the consent of the Finance Minister, or a proposal involving any  

important change of policy or practice or cases  required by the Chief  

Minister to be brought before the Council. Equally significant is the  

residuary power of  the Chief  Minister,  reserved under Rule 31 (2)  

(xix)  whereby  he/she  would  be  competent  to  call  for  the  relevant  

papers/file(s), report and pass orders in any case involving a policy  

or a matter of urgent public importance relating to any department,  

when he considers it necessary or expedient so to do or when the  

case  is  referred  to  him  by  the  Minister-in-Charge  or  the  Chief

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Secretary. The suo moto intervention of the Chief Minister in these  

contingencies thus is also conceptualized.  

111. Having regard to the progression of events pertaining to  

the  decision  of  allotment  of  developed  land  and  the  conscious  

initiatives taken by the State Government in furtherance thereof, it is  

impossible  as  well  as  impermissible  to  conclude,   that  it  had  

remained  unaware  thereof.   The land of  the  appellants  had been  

compulsorily acquired, in the exercise of the State’s power of eminent  

domain by invoking an expropriatory legislation.  Admittedly as well,  

the compensation as guaranteed by the Reference Court for the land  

has not been paid to them.  To reiterate, the facts demonstrate that  

the State Government had taken a pre-meditated decision to allot  

developed land to the land oustees in lieu of compensation.  As per  

the successive circulars including the one dated 13.12.2001, it was  

incumbent on the State Government to allot developed land with all  

the essential attributes thereof.  As is apparent from the order dated  

7.5.2015 of this Court, the plots offered to the appellants till now are  

not developed.  The land had been acquired in the year 1981 and  

more than three decades have elapsed.  In our view, the delay cannot  

be attributed to the appellants for the obvious failure of the State  

Government  to  allot  developed  land  in  lieu  of  compensation  as  

represented.

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112. The  records  produced    pertain  to  the  decision  dated  

1.7.2005 taken at the level of Ministerial Sub-Committee to allot 15%  

developed land to the awardees of acquisition for Field Firing Range  

including  the  appellants,  at  JDA  Scheme  Lalchandpura  and  

Anantpura.  It reveals that the process was initiated at the level of  

the Director of Land Records on the basis of the circular/policy dated  

13.12.2001 and was routed through the Chief Minister for placing  

the approval of the proposal of developed land elsewhere due to non-

availability of land at Vidyadhar Nagar, before the Ministerial Sub-

Committee.  On the  approval of the Chief Minister, the matter was  

laid  before  the  Ministerial   Sub-Committee  and  eventually  on  

1.7.2005, the Sub-Committee resolved that 15% developed land be  

allotted  at JDA scheme Lalchandpura and Anantpura.   

113. The  note  accompanying  the  original  file  No.  

F6()/UDH/2004, however, discloses that the file regarding the policy  

dated 13.12.2001 and maintained by the Urban Development and  

Housing Department, Government of Rajasthan is not traceable.  The  

revelation from the file thus produced, authenticates that the process  

for allotment of land at Lalchandpura and Ananatpura, as resolved  

by the Ministerial Sub-Committee was initiated on the basis of the  

circular/policy dated 13.12.2001 and was steered through the Chief  

Minister  of  the  State.   It  is,  thus,  amply  clear  that  all  State

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functionaries  including the Chief Minister of the State were aware of  

the  process  undertaken  in  terms  of  the  circular/policy  dated  

13.12.2001 and had affirmatively associated themselves therewith.  

Significantly, even at that stage, the circular dated 13.12.2001 was  

neither discarded as non est being not the repository of a state policy  

nor a decision repugnant to the Rules.  It would thus be indefensible  

and too farfetched for the respondents to contend that the circular  

dated 13.12.2001 cannot be construed to be a policy reflecting the  

executive  decision  as  contemplated  under  Article  166  and  is  not  

enforceable, as the subject matter thereof had not been laid before  

the Chief Minister under Rule 31 of the Rules. The non-acceptability  

of the land at Lalchandpura and Anantpura by the appellants, being  

undeveloped, does not detract from these conclusions.  

114. In  our  comprehension,  it  is  the  burden  of  the  State  

Government, in view of the belated attempt on its part to wriggle out  

of  its  commitment  under  the  circular/policy  dated  13.12.2001  to  

demonstrate on the basis of  contemporaneous records that it  was  

never  intended  to  be  acknowledged  as  its  policy.  As  the  file  

pertaining to the circular/policy dated 13.12.2001 is not traceable,  

in  our  unhesitant  opinion,  the  State  Government  has  failed  to  

discharge its burden in this regard.  The appellants understandably  

have no access either to the official records of the Government or

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control over the manner of discharge of the role of the functionaries  

under  the  Rules.   In  this  view  of  the  matter,  in  the  face  of  the  

predominant facts testifying  the reflective and consistent decision of  

the State Government in the matter of allotment of developed land in  

lieu of compensation, spanning over a decade from the year 1992 to  

2005, the endeavour on its part to disown  the policy/circular dated  

13.12.2001, in our estimate, betrays its truant disposition, cavalier  

indifference  and  impervious  display  of  superior  bargaining  power  

which is constitutionally impermissible.  

115.  On a concatenation of the stream of  events, traced from  

the acquisition of the land involved, we are thus of the view that the  

circular dated 13.12.2001 is indeed a policy decision of  the State  

Government  regarding  the  allotment  of  developed  land  in  lieu  of  

compensation  to  the  persons  referred  to  therein  and  is  thus  

enforceable against it.

116. Even  otherwise,  having  regard  to  the  consistency  in  

approach  of  the  State  Government  in  the  matter  of  allotment  of  

developed land in lieu of compensation  as is evident from the series  

of  circulars  commencing  from  22.4.1992  to  27.10.2005  in  

continuum, motivated by the objective  of  early culmination of  the  

process of acquisition of land on the spirit of mutual settlement, the  

same irrefutably present an inviolable scheme of proclaimed State

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action  for  compliance,  thereby  making  it  invocable  against  the  

respondents,  more particularly  as the same had been acted upon  

over the years.  The plea of the respondents, at this belated stage, to  

take refuge of unenforceability of the circular dated 13.12.2001 in  

isolation,  as  not  being  a  binding  policy,  cannot  receive  judicial  

imprimatur.  

117. The  process  leading  to  the  allotment  of  land  at  

Lalchandpura  and  Anantpura  villages,  as  the  records  produced  

discloses,  did  originate  from  the  circular  dated  13.12.2001,  and  

received the approval   of the Chief Minister at an appropriate stage.  

It  would  thus  be  conspicuously  patent,  that  all  concerned  State  

functionaries were not only aware of the relevance and the obligatory  

bearing  of  the  said  circular,  but  also  had   participated  in  the  

exercise, contemplated by it for allotment of developed land in lieu of  

compensation.  The respondents, in the totality of the existent facts  

and circumstances are thus estopped from questioning the status  

and efficacy of the said circular in vesting a right in the appellants to  

claim their due in law there under.

118. To recall, not only in the meeting dated 18.10.2001 under  

the  chairmanship  of  the  departmental  minister,  which  indeed,  as  

the   minutes  thereof  would  disclose,  was  called  to  formulate  a  

composite policy on various aspects and procedures in relation to

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allotment of 15% developed land in lieu of compensation,  but also in  

the resultant circular dated 13.12.2001, it had been resolved in clear  

terms  that  the  developed  land  would  normally  be  allotted  in  the  

scheme area and at the place where the land had been acquired and  

that,  if  it  was  not  possible  to  develop  the  scheme within  a  fixed  

period of five months or it was not possible to give land in the same  

area, it was only then that land would be allotted in some other area.  

In that eventuality as well, a sincere endeavour was to be made to  

allot land near the scheme area.  Developed status of the land to be  

allotted and its proximity to the site from where the land had been  

acquired for a scheme, were thus the two imperatives to identify the  

land to  be allotted.   It  was only  if  the developed land within the  

scheme area was not available for  allotment, that a plot  near the  

scheme area was to be made available.  In any case, the requirement  

of  developed  character  of  the  land  could  not  be  undermined,  

disregarded or waived.

119. As by the time, the allotment was contemplated, the JDA  

Act had been brought into force, the concept of developed land was  

clearly traceable to one informed with the concept of “development”  

and “amenities” defined thereunder.  Any land to be allotted in lieu of  

compensation, thus, was required to mandatorily comply  with the  

requisites of  ‘development’  and ‘amenities’  as envisaged under the

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JDA  Act.  As only a certain percentage of land acquired was offered  

by way of allotment and understandably as the same was in lieu of  

compensation i.e.  the market value along with the incidentals, it was  

expectedly assessed to be proportionate thereto in value/worth. 15%  

developed land was, thus construed to be equivalent to the amount  

of compensation then payable for the land acquired.  However, for  

the  purpose  of  identification  of  developed  land  as  on  today,  

equivalence of the value thereof with that of the land acquired as on  

date  after  three  decades  would  not  be  a  correct  measure.   The  

appellants were entitled to 15% developed land in the year 2001, the  

point  of  time  when  the  value  thereof  was  comparable  to  the  

compensation then payable for the acquisition of their land.  Had the  

developed land, as conceived of, been allotted to them, then the value  

thereof over the years, as on date,  would have been much higher  

than their land so acquired.    Though the development of a plot of  

land depends upon various factors e.g. location, potential, facilities,  

use  etc.,  it  is  a  matter  of  common  experience  that  the  pace  of  

enhancement of  the value of  an already developed land would be  

increasingly higher in comparison  to the one not developed.  The  

value  of  the  acquired  land  of  the  appellants,  thus,  as  on  today,  

cannot  be  taken  to  be  an  unmistakable  index  to  identify  the  

developed land to be allotted to them.

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120. Be that as it  may,  the land offered to the appellants at  

Lalchandpura  and  Anantpura  as  well  as  at  Boytawala  and  

Mansarampura  have  been  held  by  this  Court,  as  recently  on  

7.5.2015, to be not fully developed and more importantly conceded to  

be so by the JDA as recorded in the said order.  According to the  

JDA, it would require further two years to develop the land thereat.  

The land of the appellants, as acquired, was situated at Boytawala  

which, thus has not yet been fully developed as on date.  Thus, in  

any view of the matter, the market value of the land at Boytawala  

cannot be an acceptable yardstick to identify the developed land to  

which they are entitled.  This is more so, as for the last thirty years  

and above, the respondents have failed to allot 15% developed land  

as envisaged by the policy to the appellants.  Admittedly, two of the  

land oustees had been allotted developed land at Vidyadhar Nagar  

and as the letter  dated 16.10.2007 referred to hereinabove would  

reveal, till then, land at the same site was available.  As a matter of  

fact, allotment of land at  Lalchandpura, Anantpura, Boytawala and  

Mansarampura, which admittedly had not been fully developed, was  

in breach of the promise engrafted in the policy dated 13.12.2001.  

The approach of the respondents, when viewed in the backdrop of  

compulsory acquisition of land in the exercise of the State’s  power of  

eminent domain  and its persistent failure to act on  this policy, only

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demonstrates  a highly insensitive and evasive  orientation at the  

cost of its citizenry  by a show of dominant bargaining power.   The  

policy, though was to allot developed land in lieu of compensation to  

ensure  quick  and  unhindered  completion  of  the  process  of  

acquisition,  the  respondents  have  remained  apathetically  inert,  

having obtained the land, without living up to their commitments.  

To gloss over this inexplicable default,  would signify effacement of  

decades of indifference and mute inaction of the respondents, more  

particularly  the  State,  inspite  of  a  binding  policy  decision,  to  the  

suffering  detriment  and  prejudice  to  the  appellants  without  their  

fault.   In  this  overwhelming conspectus  of  facts,  the  respondents  

cannot be permitted to dictate  terms to the appellants in the matter  

of allotment of land  inter alia  on the consideration of equivalence of  

the value of their land as acquired with the one offered to them as  

developed land as on date.

121.  The assertions founded on the right to property and the  

doctrines of promissory estoppel and legitimate expectation assumes  

significance at this juncture.

122. The right to property though no longer a fundamental right  

is otherwise a zealous possession of which one cannot be divested  

save by the authority of law as is enjoined by Article 300A of the  

Constitution of India.  Any callous inaction or apathy of the State

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and  its  instrumentalities,  in  securing  just  compensation  would  

amount to dereliction of a constitutional duty, justifying issuance of  

writ of mandamus for appropriate remedial directions.   

123. This Court in Indore Vikas Pradhikaran (supra) had an  

occasion to refer to the Declaration of the Rights of  Man and the  

Citizen (dated  26.8.1789)  to  expound that  though earlier,  human  

rights existed to the claim of individuals’ right to health, livelihood,  

shelter  and  employment  etc.,  these  have  started  gaining  a  

multifaceted approach, so much so that property rights have become  

integrated within the definition of human rights.

124. The  right  of  the  owner  of  a  land  to  receive  just  

compensation, in the context of his claim to access to justice   as  

declared  by  the  International  Covenant  on  Economic,  Social  and  

Cultural  Rights,  had  been  underlined  by  this  Court  in   Steel  

Authority of India Limited (supra).

125. While  recognising the power of  the  State  to acquire  the  

land of its citizens, it has been proclaimed in  Dev Sharan  (supra)  

that even though the right to property is no longer a fundamental  

right  and  was  never  a  natural  right,  it  has  to  be  accepted  that  

without the right to property, other rights become illusory.      

126. In a catena of decisions of this court, this prize privilege  

has also been equated to human right.  In  Mukesh Kumar (supra),

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this  Court  has  succinctly  propounded  this  proposition  in  the  

following terms:   

“The right to property is now considered to be not only a  constitutional or statutory right but also a human right.  Human rights have already been considered in the realm  of individual rights such as the right to health, right to  livelihood, right to shelter and employment etc. But now  human  rights  are  gaining  a  multifaceted  dimension.  Right to property is also considered very much a part of  the new dimension.   Therefore, even the claim of adverse  possession has to be read in that context.

The  changing  attitude  of  the  English  courts  is  quite  visible from the judgment of Beaulane Properties Ltd. vs.  Palmer (2005)4All ER 461.  The Court here tried to read  the  human  rights  position  in  the  context  of  adverse  possession.   But  what  is  commendable  is  that  the  dimensions of human rights have widened so much that  now property dispute issues are also being raised within  the  contours  of  human  rights.   With  the  expanding  jurisprudence of the European Courts of Human Rights,  the Court has taken an unkind view to the concept of  adverse possession.   

127. In summa, the right to property having been elevated to  

the status of human rights, it is inherent in every individual, and  

thus has to be venerably acknowledged and can, by no means, be  

belittled or trivialized by adopting an unconcerned and  nonchalant  

disposition  by  anyone,  far  less   the  State,  after  compulsorily  

acquiring  his  land  by  invoking  an  expropriatory    legislative  

mechanism.    The judicial  mandate of  human rights  dimension,  

thus, makes it incumbent on the State to solemnly respond to its  

constitutional  obligation  to  guarantee  that  a  land  looser   is

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adequately  compensated.   The proposition does  not  admit  of  any  

compromise or laxity.

128. Added to this, is the promissory estoppel perspective, the  

State  being  the  promisor.  Estoppel  is  a  rule  of  equity  which has  

entrenched  itself with time in the domain of public life.   A new class  

of  estoppel  recognised  as  “promissory  estoppel”  has  assumed  

considerable significance in the recent years.  So far as this Court is  

concerned,  it  invoked  the  doctrine  in    Anglo  Afghan Agencies  

(supra)  in which it was enounced  that even if a case would not fall  

within the purview of Section 115 of the Indian Evidence Act, 1872,  

it would still be open to a party, who had acted on a representation  

made by the Government, to claim that it  should be bound to carry  

out  the  promise  made  by  it,  even  though  the  promise  was  not  

recorded in the form of a formal contract  as required by Article 299  

of  the Constitution of  India.  This principle,  evolved by equity,  to  

avoid injustice is traceable as well in the leading case on the subject  

in Central London Property Trust Ltd. vs. High Trees House Ltd  

(1947) 1 KB 130.

129. In  a  later  decision of  this  Court  in  Motilal  Padampat  

Sugar  Mills  Co.  (supra), responding  to  the  plea  of  the  State  

Government, inter alia, that there could be no promissory estoppel  

against it, so as to inhibit it from formulating and implementing its

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policies in public interest,  this Court underlined, in reiteration, the  

well-known preconditions for the operation of the doctrine as under:  

(1)      A  clear  and  unequivocal  promise,  knowing  and  

intending that it would be acted upon  by the promisee;

(2)     On such acting upon the promise by the promise, it  

would be inequitable to allow the promisor to go back on the  

promise.

130. This  Court   in   Nestle  India  Limited  (supra),  while  

referring to the decision of  Motilal Padampat Sugar Mills  (supra)  

quoted para 24 of that judgment to the effect that  the Government  

stood  on  the  same  footing  as  a  private  individual  so  far  as  the  

obligation in  law was  concerned and that  the  former  was equally  

bound as the latter and it was difficult to see on what principle, could  

a Government, committed to the rule of law, claim immunity from the  

doctrine of promissory estoppel.

131. This hallowed notion of equitable estoppel has stood the test  

of  time  with  peripheral  variations  to  reverberate  in  the  following  

exposition in Monnet Ispat (supra) in the following terms:

182.1.   Where one party has by his words or conduct  made to the other a clear and unequivocal promise which  is  intended  to  create  legal  relations  or   affect  a  legal  relationship to arise in the future, knowing or intending  that it would be acted upon by the other party to whom  the promise is made and it is, in fact, so acted upon  by

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the  other  party,  the  promise  would  be  binding  on the  party making it  and he would not be entitled to go back  upon it, if it would be inequitable to allow  him to do so  having  regard  to  the  dealings  which  have  taken  place  between the parties, and this would be so irrespective of  whether there is any pre-existing relationship  between  the parties or not.

182.2  The  doctrine  of  promissory  estoppels  may  be  applied  against  the  Government  where  the  interest  of  justice,  morality  and  common  fairness  dictate  such  a  course.  The doctrine is applicable against the State even  in its governmental, public or sovereign capacity where it  is  necessary  to  present  fraud  or  manifest  injustice.  However, the Government or even a private party under  the doctrine of promissory estoppels cannot be asked to  do an act prohibited in law.  The nature and function  which the Government discharges is  not  very relevant.  The  Government  is  subject  to  the  rule  of  promissory  estoppels and if the essential ingredients of this doctrine  are satisfied, the Government can be compelled to carry  out the promise made by it.

132. Adding  a  caveat  to  the  State  Government  otherwise  

inescapably bound by the doctrine, this Court in  S.V.A.  Steel Re-

Rolling Mills  (supra)  ruled  that  before  extending benefits  to its  

subjects by laying down any policy, it must ponder over the pros and  

cons  thereof  and its  capacity  to  accord the  same,  as  it  would  be  

unfair  and  immoral  on  its  part  thereafter,  not  to  act  as  per  its  

promise.  

133. A parallel doctrine founded on the doctrine of fairness and  

natural justice baptised as “legitimate expectation” has grown as well  

in the firmament of administrative law to ensure the predication of

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fairness in State action.  The concept of “legitimate expectation” is  

elaborated  in  Halsbury”s  Laws  of  England,  Fourth  Edition,  

Volume 1(1) 151 as hereunder:   

“81.  Legitimate  expectations.—  A  person  may  have  a  legitimate expectation of being treated in a certain way by  an administrative authority even though he has no legal  right  in  private  law  to  receive  such  treatment.  The  expectation  may  arise  either  from  a  representation  or  promise  made  by  the  authority,  including  an  implied  representation, or from consistent past practice.

The  existence  of  a  legitimate  expectation  may  have  a   number of different consequences; it may give locus standi   to seek leave to apply for judicial review; it  may mean that   the authority ought not to act so as to defeat the expectation   without some overriding reason of public policy to justify its   doing so; or it may mean that, if the authority proposes to   defeat a person’s   legitimate expectation, it must afford him    an opportunity to make representations on the matter. The  courts  also  distinguish,  for  example  in  licensing  cases,  between  original  applications,  applications  to  renew  and  revocations; a party who has been granted a licence may  have a legitimate expectation that it will be renewed unless  there is some good reason not to do so, and may therefore  be entitled to  greater  procedural  protection than a mere  applicant for a grant.”

134. In espousing this equitable notion of exacting fairness in  

governmental  dealings,  this  Court  in Food Corporation of  India  

(supra) proclaimed that  there was no  unfettered discretion in public  

law and that a sovereign authority  possessed powers only to use  

them for public good.  Observing that the investiture of such power  

imposes with it, the duty to act fairly and to adopt a procedure which

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is  ‘fair  play  in  action’,  it  was  underlined  that   it  also  raises  a  

reasonable  or  legitimate expectation in every citizen to  be treated  

fairly in his dealings with the State and its instrumentalities.   

135.  The  observance  of  this  obligation  as  a  part  of    good  

administration, is obligated by the requirement of non-arbitrariness  

in a state action, which as a corollary, makes it incumbent on the  

State to consider and give due weight  to the reasonable or legitimate  

expectations  of the persons, likely to be affected by the decision, so  

much so that any failure to do so would proclaim unfairness in the  

exercise of power, thus vitiating the decision by its abuse or lack of  

bona fide.    The besieged decision would then be exposed to the  

challenge on the ground of arbitrariness.  It was propounded that  

mere reasonable or legitimate expectation of a citizen, may not by  

itself  be a distinct  enforceable right  in all  circumstances,  but the  

failure to consider and give due weight to it, may render the decision  

arbitrary.  It  was  thus,  set  down  that  the  requirement  of  due  

consideration of legitimate expectation formed a part of the principle  

of non-arbitrariness, a necessary concomitant of the rule of law. In  

reiteration to  the  above  enunciation,  this  Court  in  Monnet  Ispat  

(supra) did rule as well, that the doctrine of legitimate expectation is  

founded on the principle of reasonableness and fairness and arises  

out  of  the  principles  of  natural  justice  and  can  be  invoked  as  a

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substantive and enforceable right.

136.  In course of the arguments, as adverted to hereinabove,  

host  of  pleadings  have  been exchanged portraying   contrary  view  

points on the developed status of the land sought to be allotted, the  

summary whereof has been extracted hereinabove.  It appears there  

from that the sites at   Boytawala, Lalchandpura, Anantpura and  

Mansarampura are located within a range of 14.70 K.M. to 39 K.M.  

from the central point Jaipur, the nearest being at Boytawala.  All  

these lands have been recorded by this Court, as admitted by the  

JDA, to be not fully developed. The plots offered by the respondents  

at  Rohini  Phase  I,  Anupam  Vihar,  Pitambara  Scheme  including  

Rajbhawan Yojana , Rohini Phase II, Abhinav Vihar Vistar and Harit  

Vihar are situated within a distance of  25.40 K.M. to 36.80 K.M.  

from the central point, Jaipur.   

137. The appellants,  in  categorical  terms,  have  asserted that  

the plots at these places are not developed inasmuch as they are  

bereft  of  the  essential  facilities  like  water,  electricity,  

communication/connectivity,  sewerage,  drainage  etc.  and  have  

sought to substantiate their plea on the basis of recent photographs  

along with sworn pleadings.  On the other hand, they have suggested  

plots at Vidyadhar Nagar, Gokul Nagar, Truck Terminal and Vaishali  

Nagar,  located within a distance of  5 K.M. to 15.6 K.M. from the

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central  point  Jaipur  for  allotment.   That  these  plots  of  land  are  

developed has been unreservedly admitted by the respondents, their  

plea being that, the appellants are not entitled thereto, judged by the  

factor of equivalence of the value of the acquired land.  

138.  At this distant point of time, we are disinclined to sustain  

this demur of the respondents.  As the  facts  have  unfolded, the  

appellants cannot be held accountable for the delay in between, the  

respondents having failed to offer developed land as contemplated in  

the policy.  This stands fortified, amongst others, by the order dated  

7.5.2015 vis-a-vis the land at Boytawala, Lal Chandpura, Anantpura  

and Man sarampura.  The other plots offered by the respondents,  

also having regard to the attributes of developed land as envisioned  

by the Rajasthan Act do not accord with the letter and spirit of the  

policy.  

139. Administrative  discretion,  irrespective  of  its  ostensible  

expanse,  it  is  a  trite  proposition,  can  never  be  unregulated,  

omnipotent and fanciful.  A public authority vested with power has  

to essentially exercise its discretion, if   conferred, conditioned by the  

dictates  of  duty  as  envisaged,  to  effectuate  the  exercise  of  the  

prerogative  to  achieve  the  objective  therefor.   The  central  and  

cardinal canon of administrative governance, enjoins a framework of  

controlled use of discretion coupled with duty which is inscribed in

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felicitous terms in Administrative Law, 10th Edition by H.W.R. Wade  

and C.F. Forsyth at Page 286 as quoted:

“  The  first  requirement  is  the  recognition  that  all  power  has    legal  limits.  The next  requirement,  no  less  vital,  is  that  the  courts  should draw those limits  in  a  way which strikes the  most  suitable  balance between executive efficiency and legal  protection of  the citizen.  Parliament constantly confers upon  public  authorities  powers  which  on  their  face  might  seem  absolute  and  arbitrary.  But  arbitrary  power  and  unfettered  discretion  are  what  the  courts  refuse  to  countenance.  They  have woven a network of  restrictive principles which require  statutory powers to be exercised reasonably and in good faith,  for proper purposes only, and in accordance with the spirit as  well as the letter of the empowering Act.”

Vis-à-vis public duties it has been expressed at page 496 thus:

“  As well as illegal action, by excess or abuse of power, there    may be illegal inaction, by neglect of duty. Public authorities  have a great many legal duties, under which they have an  obligation to  act,  as  opposed to their  legal  powers,  which  give them discretion whether to act or not. The remedies so  far  investigated  deal  with  the  control  of  powers.  The  remedies  for  the  enforcement  of  duties  are  necessarily  different. The most important of them is mandamus.

140. Dwelling upon the constitutional imperative of fairness in  

State action in  Noida Entrepreneurs Association vs. Noida and  

others (2011)6 SCC 508, this Court revisited the dynamics of the  

interplay  between  administrative  power  and  discretion  vis-a-vis  

public duty accompanying the same.  Underlying the essentiality of  

non-arbitrariness and transparency in executive  functioning as a  

guarantee of certitude and probity, it was observed thus:

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“39:  State actions are required to be non-arbitrary and  justified  on  the  touchstone  of  Article  14  of  the  Constitution.  Action of  the  State  or  its  instrumentality  must be in conformity with some principle which meets  the  test  of  reason  and  relevance.  Functioning  of  a  “democratic form of Government demands equality and  absence of arbitrariness and discrimination”. The rule of  law  prohibits  arbitrary  action  and  commands  the  authority concerned to act in accordance with law. Every  action of the State or its instrumentalities should neither  be suggestive of discrimination, nor even apparently give  an  impression  of  bias,  favouritism  and  nepotism. If  a  decision is  taken without any principle or  without any  rule, it is unpredictable and such a decision is antithesis  to the decision taken in accordance with the rule of law.

40:  The public trust doctrine is a part of the law of the  land.  The  doctrine  has  grown  from  Article  21  of  the  Constitution. In essence, the action/order of the State or  State instrumentality would stand vitiated if it lacks bona  fides, as it would only be a case of colourable exercise of  power. The rule of law is the foundation of a democratic  society.  [Vide  Erusian  Equipment  &  Chemicals  Ltd. v.  State of  W.B.,  Ramana Dayaram Shetty v.  International  Airport  Authority of India,  Haji  T.M.  Hassan Rawther v.  Kerala Financial Corpn, Shrilekha Vidyarthi v. State of U.P  and M.I. Builders (P) Ltd. v. Radhey Shyam Sahu.]

41:  Power  vested  by  the  State  in  a  public  authority  should  be  viewed  as  a  trust  coupled  with  duty  to  be  exercised in larger public and social interest. Power is to  be exercised strictly adhering to the statutory provisions  and fact situation of a case. “Public authorities cannot  play fast and loose with the powers vested in them.” A  decision taken in  an  arbitrary  manner  contradicts  the  principle of legitimate expectation. An authority is under  a legal obligation to exercise the power reasonably and in  good  faith  to  effectuate  the  purpose  for  which  power  stood conferred.  In this context,  “in good faith”  means  “for legitimate reasons”. It must be exercised bona fide for  the purpose and for none other. [Vide Commr. of Police v.  Gordhandas  Bhanji,  Sirsi  Municipality v.  Cecelia  Kom  Francis Tellis,  State of Punjab v.  Gurdial Singh,  Collector

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(District Magistrate) v.  Raja Ram Jaiswal,  Delhi Admn. v.  Manohar Lal and N.D. Jayal v. Union of India.]

141. In  the  overall  perspectives,  in  our  discernment,  the  

respondents  have utterly  failed to  abide  by  a  public  policy  upon  

which,  the  appellant  had  altered their  position and had suffered  

immense prejudice. The persistent denial to the appellants of their  

right to the developed land in lieu of  compensation and that too  

without any legally acceptable justification, has ensued in manifest  

injustice to the appellants over the years. Neither have they been  

paid  just compensation for the land acquired nor have they been  

provided with the developed land in place thereof, as assured. They  

are thus predominantly entitled for the remedial intervention of this  

court  to  ensure  fair,  just,  efficacious,  tangible  and  consummate  

relief in realistic terms. If fairness is an indispensable and innate  

constituent  of  natural  justice,  this  imperative  indubitably  has  to  

inform  as  well  the  judicial  remedy  comprehended.   In  the  

overwhelming  factual  scenario,  as  obtains  in  the  instant  case,  

refusal to grant the relief to which they are entitled, would amount  

to perpetuation of gross illegality, unjustness and unfairness meted  

out to them. The textual facts demand an appropriate response of  

the judicial process to effectuate the guarantee of justice, engrafted  

in  the  preamble  of  the  Constitution  reinforced  by  the  canons  of

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equity.  

142. The remedy indeed has to be commensurate to the cause  

and  the  prejudice  suffered.  The  invocable  judicial  tools,  

predominantly  in  the  form  of  a  writ  of  mandamus,  and  the  

plentitude  of  the  powers  of  constitutional  courts,  and  more  

particularly,  this court under Article 142 of the Constitution are  

assuredly the potential redressal aids in fact situations akin to the  

one in hand.

143. A writ of mandamus is an extraordinary remedy and is  

intended to supply deficiencies in law and is thus discretionary in  

nature.  The issuance of  writ of  mandamus pre-supposes a clear  

right of the applicant and unjustifiable failure of a duty imposed on  

an authority otherwise obliged in law to imperatively discharge the  

same.

144. The dominant features of a writ of mandamus authoritatively  

figures in the following extract from the Halswbusy Laws of England, 4 th  

Edition (page 111):

“Nature of mandamus.  The order of  mandamus is of  a  most  extensive  remedial  nature,  and  is,  in  from,  a  command issuing from the High Court of Justice, directed  to any person, corporation, or inferior tribunal, requiring  him or them to do some particular thing therein specified  which appertains to his or their office and is in the nature  of a public duty. Its purpose is to remedy defects of justice;  and accordingly it will issue, to the end that justice may be  done, in all cases where there is a specific legal right and  no specific legal remedy for enforcing that right; and it may

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issue in cases where, although there is an alternative legal  remedy,  yet  that  mode  of  redress  is  less  convenient,  beneficial and effectual.  

145. An insight into the equitable theory in the application of  

law  was  explored  by  the  celebrated  jurist  Roscoe  Pound  in  his  

treatise “An Introduction to the Philosophy of Law” in the following  

excerpts:

“To the adherents of this theory the essential thing is  a  reasonable  and  just  solution  of  the  individual  controversy.   They  conceive  of  the  legal  precept,  whether  legislative  or  traditional,  as  a  guide  to  the  judge, leading him toward the just result.  But they  insist that within wide limits he should be free to deal  with the individual case so as to meet the demands of  justice  between  the  parties  and  accord  with  the  reason and moral sense of ordinary men.  They insist  that  application  of  law  is  not  a  purely  mechanical  process.   They contend that it involves not logic only  but moral judgments as to particular situations  and  courses  of  conduct in  view  of  the  special  circumstances  which  are  never  exactly  alike.    They  insist  that  such  judgments  involve intuitions based upon experience and are not  to be expressed in definitely formulated rules.  They  argue that the cause is not to be fitted to the rule but  the rule to the cause

…   …       …   …

Equity uses its powers of individualizing to the best  advantage in connection with the conduct of those in  whom trust and confidence has been reposed

… ….     ... ....

Philosophically the apportionment of the field between  rule and discretion which is suggested by the use of  rules and of standards respectively in modern law has

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its  basis  in  the  respective  fields  of  intelligence  and  intuition.  Bergson tells us that the former is more  adapted to the inorganic, the latter more to life.

The rule,  mechanically  applied,  works  by  repetition  and precludes  individuality  in  results,  which would  threaten the security of acquisitions and the security  of  transactions.   On the  other  hand,  in  the  hand- made  as  distinguished  from  the  machine-made  product, the specialized skill of the workman gives us  something  infinitely  more  subtle  than  can  be  expressed in rules.  In law some situations cal or the  product of  hands, not of  machines, for they involve  not  repetition,  where  the  general  elements  are  significant,  but unique events,  in which the special  circumstances are significant.

... ... ... ...

Where the call is for individuality in the product of the  legal mill we resort to standards.  And the sacrifice of  certainty in so doing is more apparent than actual.  For the certainty attained by mechanical application  of  fixed  rules  to  human  conduct  has  always  been  illusory.”      

146. The  above  extracts  authoritatively  underscore  the  

indispensable essentiality  of individuality in results in a persuasive  

fact situation to obviate mechanical  application of fixed rules,  by  

invoking  equity and discretion to secure realistic  remedies tailor-

made to the situational demands  justifying  the paramountcy  of  

the rule of law.

147. Our  national  charter,  being  a  living  and  organic  

document, no provision thereof can remain static or stale and must

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be accorded a vibrant import to guarantee the effectuation of the  

preambular pledge in its fullest content.  The plenary  powers of this  

Court  enshrined  in  Article  142  of  the  Constitution  of  India   for  

achieving complete justice is only an insignia of empowerment so  

that  the  constitutional   guarantees  are  not  reduced  to  mere  

ritualistic incantations.     

148. This  Court  extra-ordinarily    does  exercise  its  power  

under  Article 142 of the Constitution of India  as warranted in a  

given fact  situation,  for  making order  (s)  as  is  felt  necessary  for  

doing complete justice in a case a matter pending before it.

149. As the nature and extent of the power indicates, there can  

be no straight jacket formula, for its exercise nor there can be any  

fetter thereto, it being plenary in nature.   The invocation of this  

power is to reach injustice  and redress the same, if it is not feasible  

otherwise to achieve this avowed objective.  In doing so, this Court  

acts in its equity jurisdiction to balance the conflicting interests of  

the parties and advance the cause of administration of even handed  

justice.   The  purport  and  purpose  of  this  power  being  justice  

oriented and guided by equitable principles, it chiefly aims at the  

enforcement  of  a  public  duty,  if  not  forthcoming  on  legitimate  

justification ensuing  in oppressive injustice, militating against the  

constitutional  ordainment  of  equality  before  law  and  equal

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protection  of  laws  enshrined  in  Article  14  of  the  Constitution of  

India and entrenched as are, among others, in the invaluable  right  

to life envisioned  in Article 21 of the Constitution of India.

150. The  Constitutional  Courts  are  sentinels  of  justice  and  

vested  with the extra-ordinary power of judicial review to ensure  

that the rights of the citizens are duly protected.  That the quest for  

justice is a compulsion of judicial conscience, found its expression  

in C. Chenga Reddy and Others vs. State of A.P. (1996) 10 SCC  

193 in the following extract:

“A  court  of  equity  must  so  act,  within  the  permissible  limits so as to prevent injustice. “Equity is not past the age  of child-bearing” and an effort to do justice between the  parties is a compulsion of judicial conscience. Courts can  and should strive to evolve an appropriate remedy, in the  facts and circumstances of a given case, so as to further  the cause of justice, within the available range and forging  new tools for the said purpose, if necessary to chisel hard  edges of the law.”  

151. This  underlying  thought  found  erudite  elaboration  in  

Manohar Lal Sharma vs. Principal Secretary and Others  (2014)  

2 SCC 532.   

“The Supreme Court has been conferred very wide powers for  proper and effective administration of justice.  The Court has  inherent  power  and  jurisdiction  for  dealing  with  any  exceptional  situation in  larger  public  interest  which  builds  confidence in the rule of law and strengthens democracy. The  Supreme  Court  as  the  sentinel  on  the  qui  vive,  has  been  invested with the powers which are elastic and flexible and in  certain  areas  the  rigidity  in  exercise  of  such  powers  is

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considered inappropriate.”  

152. Thus  failure  to  discharge  an  obligatory  duty  defined  by  

public policy without any justification in disregard thereto viewed in  

the context of the sacrosanct content of human rights in Article 300A  

is  an  inexcusable  failure  of  the  state  to  discharge  its  solemn  

constitutional  obligation,  the  live  purpose  for  its  existence.  The  

predominant facts herein, justifiably demand a fitting relief modelled  

by law, equity and good conscience.  Thus, the elaborate preface.

153. In the overall view of the matter, we are of the confirmed  

opinion, that in the singular facts and circumstances of the case and  

for  the  sake of  complete  justice,  the  appellants  are  entitled  to  be  

allotted  their  quota  of  15%  developed  land  in  the  terms  of  

policy/circular dated 13.12.2001 in one or more available plots at  

Vidyadhar Nagar, Gokul Nagar, Truck Terminal and Vaishali Nagar  

as  enumerated  by  them  in  their  affidavit  dated  17.8.2015.   The  

respondents are hereby directed to accommodate them accordingly.  

154. In  the  wake  up  of  above,  the  appeals  are  allowed.  The  

impugned judgment and order is set-aside. The respondents would  

allot  the developed land as per policy  decision dated 13.12.2001 to  

the appellants at the places indicated hereinabove without fail and  

within  a  period  of  six  weeks  herefrom.   To  secure  a  permanent

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resolution to the lingering lis, the respondents would ensure that a  

transparent  and  fair  process  is  undertaken,  if  necessary,  to  be  

overseen  by  an  appropriate  authority  to  obviate  any  disparity  in  

treatment in the matter of allotment as ordered.

155. We  part  with  the  belief  and  expectation  that  the  

respondents would be alive to their duty cast by law and would not  

precipitate any further   cause of action necessitating the intervention  

of this Court with stringent initiatives. No costs.

......................................J.                      [V. GOPALA GOWDA]

......................................J.                      [AMITAVA ROY]

NEW DELHI; DECEMBER 1, 2015.