Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7254 OF 2003

The Rajasthan State Industrial Development                 …Appellant  and Investment Corporation  

Versus

Subhash Sindhi Cooperative Housing Society       …Respondents  Jaipur & Ors.  

WITH

CIVIL APPEAL NO. 853 OF 2013

J U D G M E N T   

Dr. B. S. CHAUHAN, J.

1. These  appeals  have  been  preferred  against  the  impugned  

judgment  and  order  dated  30.7.2002  passed  by  the  High  Court  of  

Rajasthan (Jaipur Bench) in Civil Writ Petition No. 454 of 1993, by  

which the  High Court  has  issued directions  to  the  Rajasthan  State  

Industrial  Development  and  Investment  Corporation  (in  short  

`RIICO’), the appellant herein, to release the land in dispute from land

Page 2

acquisition in favour of respondent No.1 - housing society (hereinafter  

referred to as `the society’).

2. As both the appeals have been preferred against the common  

impugned judgment, for convenience, Civil Appeal No. 7254 of 2003  

is taken to be the leading case. The facts and circumstances giving rise  

to this appeal are :

A. That, a huge area of land admeasuring 607 Bighas and 5 Biswas  

situate  in  the  revenue  estate  of  villages  Durgapura,  Jhalan  Chod,  

Sanganer and Dhol-ka-Bad in District Jaipur, including the suit land  

measuring about 17 Bighas and 9 Biswas in village Durgapura stood  

notified under Section 4(1) of the Rajasthan Land Acquisition Act,  

1953 (hereinafter referred to as the `Act’) on 18.7.1979, for a public  

purpose i.e. industrial development, to be executed by the RIICO.  

B. The  respondent  society  claims  to  have  entered  into  an  

agreement to sell with the Khatedars of the suit land on 21.7.1981.   

C. Declaration under Section 6 of the Act was made on 22.6.1982  

for the land admeasuring 591 Bighas and 17 Biswas. After meeting all  

requisite statutory requirements contained in the Act,  possession of  

2

Page 3

the land, including the land in dispute was taken by the Government  

and  was  subsequently  handed  over  to  RIICO,  on  18.10.1982  and  

17.11.1983.   The  Land  Acquisition  Collector  assessed  the  market  

value of the land of the Khatedars, and made an award on 14.5.1984.  

Vide allotment letter dated 10.3.1988, RIICO, made allotment of land  

admeasuring  105  acres  of  the  land,  out  of  the  total  acquired  land  

measuring 591 Bighas, to Diamond & Gem Development Corporation  

Ltd.,  a  Private  Ltd.  Company   (hereinafter  referred  to  as  the  

‘Company’), respondent no. 37, to facilitate the  establishment of a  

Gem  Industrial  Estate  for  the  manufacturing  of  Gem  stones.  This  

piece of land included within it, the land which was subject matter of  

an agreement to sell between the respondent society and the original  

khatedars.  

D. Acquisition  proceedings  emanating  from  the  Section  4  

Notification  dated  18.7.1979,  were  challenged  by  the  respondent  

society, as well as by the khatedars jointly in 1989, by filing of  Writ  

Petitions before the High Court of Rajasthan at Jodhpur. A lease deed  

was  executed  by  appellant-RIICO  in  favour  of  the  company-

respondent  No.37  in  relation  to  105  acres  of  land  on  22.5.1989,  

including the land in question, which is comprised of Khasra Nos. 226  

3

Page 4

to 230 is village Durgapura. The aforementioned writ petitions filed  

by the respondent society and the original khatedars, challenging the  

land acquisition proceedings stood dismissed on the ground of delay  

and latches, vide judgment and order dated 21.8.1990 passed by the  

High Court.   

E. Aggrieved, the respondent society and one khatedar filed SLPs  

before this Court challenging the judgment and order dated 21.8.1990.  

This  Court  vide  order  dated  9.9.1992  dismissed  the  said  SLPs,  

however,  while  doing  so,  the  Court  made  an  observation  that  the  

dismissal of the said SLPs, would not operate as  res-judicata if the  

society approaches the court for release of their land on the ground  

that lands owned by similar set of individuals or institutions, if any,  

has been released from acquisition.  Such a direction was issued in  

view of the submissions made by the respondent society, stating  that  

allotment of the said land in favour of the Company had been made  

fraudulently.   

F. In view thereof,  the society filed a Writ  Petition No. 454 of  

1993 praying for release of the land admeasuring 17 Bighas and 9  

Biswas  in  Khasra  Nos.  226  to  230,  in  revenue  estate  of  village  

Durgapura  or  in  the  alternative,  for  the  allotment  of  equivalent  

4

Page 5

suitable land,  and also for the cancellation of the allotment of 105  

acres  of  land  in  favour  of  the  Company.  The  writ  petition  was  

contested by the appellants on the grounds that the respondent society  

had no  locus standi to challenge the acquisition proceedings which  

had  attained  finality  upto  this  Court;  the  transfer  of  land  by  the  

khatedars to the respondent society was void; the respondent society  

could not claim parity with other persons/societies, whose land   stood  

released for bonafide reasons on good grounds.  The High Court heard  

the said writ  petition alongwith another writ  petition that  had been  

filed by the Company, which will be dealt with separately.  During the  

pendency of the writ petition, certain other developments took place,  

that is,  the allotment of land made in favour of the Company, was  

cancelled by the appellant vide order dated 1.10.1996, and possession  

of the same was taken over from it  on 3.10.1996.   

G. The Division Bench of the High Court allowed the said writ  

petition vide judgment and order dated 30.7.2002, thereby releasing  

land admeasuring 17 Bighas and 9 Biswas in favour of the respondent  

society.  

Hence, this appeal.  

5

Page 6

3. Shri  Dhruv Mehta, learned senior counsel appearing on behalf  

of the appellant-RIICO, and Shri Manish Singhvi, learned Additional  

Advocate  General  for  the  State  of  Rajasthan,  have  submitted  that  

challenge to the acquisition proceedings emanating from the Section 4  

Notification  dated  18.7.1979  had  attained  finality  upto  this  Court.  

However,  this  Court  vide  order  dated  9.9.1999  had  granted   very  

limited  relief  to  the  respondent-society,  to  the  extent  that  it  could  

approach  the  court  for  release  of  its  land  only  on  the  ground  of  

discrimination qua other  tenure holders,  whose  land stood released  

and that the dismissal of the SLP would not operate as  res-judicata.  

The society had not made any representation before the filing of the  

first or the second writ petition, before any appropriate authority for  

release of the said land, nor had it raised issue with respect to any  

form of discrimination suffered by it.  The High Court also did not  

consider  the  case  on  the  basis  of  any  ground  of  discrimination  

whatsoever, rather made a bald observation, stating that as the land of  

the  other  tenure  holders  had  been  released,  the  society  too,  was  

entitled for similar relief.  Such an order is not justified for the reason  

that court did not compare the facts of two sets of the parties.  

6

Page 7

Article  14  is  not  meant  to  perpetuate  an  illegality  or  fraud.  

Moreover,  it  is  to  be  established  that  discrimination  was  made  

cautiously.  The agreement to sell dated 21.7.1981 in favour of the  

respondent-society did not create any title in favour of the society.  

Furthermore,  any  sale  subsequent  to  a  Section  4  Notification  with  

respect to the said land, is void.  An agreement to sell, or to execute  

any  transfer  of  such  land  is  barred  by  the  Rajasthan  Lands  

(Restrictions on Transfer) Act,  1976 (hereinafter referred to as,  the  

`Act  1976’).   At  the  most,  the  High  Court  could  have  directed  

consideration of the representation of the society, if there was any, but  

it most certainly could not have issued direction to release the said  

land  itself.   The  Society  had  approached  the  High Court,  Jodhpur  

(main  seat)  though,  petition  could  be  filed  only  before  the  Jaipur  

Bench  as  the  suit  land  situate  at  Jaipur  and  all  relevant  

orders/notifications were issued at Jaipur.  Thus, the present appeals  

deserve to be allowed.   

4.  Per  contra,  Shri  Rakesh  Dwivedi,  learned  senior  counsel  

appearing on behalf of the respondent – society and its members, has  

submitted that a representation was in fact made by the society, but  

7

Page 8

the same was not considered by the State Government, and that the  

award made in respect of the land itself, clearly revealed that some  

land was released by the government, in favour of various persons and  

institutions.  The respondent society had therefore, been discriminated  

against, by the State authorities.  The respondent-society is entitled for  

the relief on the basis of the Government Orders, (hereinafter referred  

to  as  G.Os.)  provided  for  release  of  the  land  of  Group  Housing  

Societies,  if  under  acquisition.   Technical  issue  must  not  be  

entertained by this Court, as the second writ petition has been filed  

under the liberty granted by this Court. Thus, the present appeals lack  

merit and are liable to be dismissed.  

5. Mr. P.S. Patwalia, learned senior counsel appearing on behalf  

of the Company, respondent no. 37, has submitted that the High Court  

has directed to release the land in favour of the respondent – society,  

from the land which was allotted to the Company, and that Company  

has no objection to the order passed by the High Court, releasing a  

particular piece of land in favour of the society.  Thus, the appeals are  

liable to be dismissed.  

8

Page 9

6. We have considered the rival submissions made by the learned  

counsel for the parties and perused the records.  

It  is  a  settled  legal  proposition  that  acquisition  proceedings  

cannot be challenged at a belated stage.  In the instant case, the earlier  

writ  petition  filed  by  the  society  and  the  khatedars  jointly,  was  

dismissed by the High Court only on the ground of delay. This Court  

upheld the said judgment and order, while granting the said parties  

liberty  to  challenge  the  acquisition  afresh,  on  the  ground  of  

discrimination alone.  

7. There  can  be  no  quarrel  with  respect  to  the  settled  legal  

proposition that a purchaser, subsequent to the issuance of a Section 4  

Notification in  respect of the land, cannot challenge the acquisition  

proceedings, and can only claim compensation as the sale transaction  

in  such  a  situation  is  Void  qua  the  Government.   Any  such  

encumbrance  created  by the  owner,  or  any  transfer  of  the  land in  

question, that is made after the issuance of such a notification, would  

be deemed to be void and would not be binding on the Government.  

(Vide:  Gian Chand v. Gopala & Ors., (1995) 2 SCC 528;  Yadu  

Nandan Garg v.  State of  Rajasthan & Ors.,  AIR 1996 SC 520;  

9

Page 10

Jaipur Development Authority v. Mahavir Housing Coop. Society,  

Jaipur & Ors. (1996) 11 SCC 229; Secretary, Jaipur Development  

Authority, Jaipur v. Daulat Mal Jain & Ors.,  (1997) 1 SCC 35;  

Meera Sahni v. Lieutenant Governor of Delhi & Ors.,  (2008) 9  

SCC 177;  Har Narain  (Dead) by Lrs.  v.  Mam Chand  (Dead) by  

LRs. & Ors., (2010) 13 SCC 128; and V. Chandrasekaran & Anr.  

v. The Administrative Officer & Ors.,  JT 2012 (9) SC 260).  

8. Thus,  in  the  instant  case,  the  respondent-society,  and  its  

members, have to satisfy the court as regards their  locus standi with  

respect to maintenance of the writ petition on any ground whatsoever,  

as none of  the original khatedars has joined the society in subsequent  

petition.  

9. In Smt. Kalawati v. Bisheshwar, AIR 1968 SC 261, this Court  

held:  

"Void  means  non-existent  from  its  very   inception."

10

Page 11

10. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri  

Manikoth,  Naduvil  (dead)  & Ors., AIR 1996 SC 906,  this  Court  

held:

"The word "void" has a relative rather than   an  absolute  meaning.  It  only  conveys  the   idea that  the order is invalid or illegal.  It   can  be  avoided.  There  are  degrees  of   invalidity, depending upon the gravity or the   infirmity, as to whether it is, fundamental or   otherwise.”  

11.  The word, “void” has been defined as: ineffectual; nugatory;  

having no legal  force or  legal  effect;  unable  in  law to support  the  

purpose for which it was intended. (Vide: Black's Law Dictionary). It  

also means merely a nullity, invalid; null; worthless; sipher; useless  

and ineffectual and may be ignored even in collateral proceeding as if  

it never were.  

The  word  “void”  is  used  in  the  sense  of  incapable  of  

ratification.  A thing which is found non-est and not required to be set  

aside though, it is sometimes convenient to do so. There would be no  

need for an order to quash it.  It would be automatically null and void  

without  more  ado.  The continuation  orders  would  be  nullities  too,  

because  no  one  can  continue  a  nullity.  (Vide:  Behram Khurshid  

11

Page 12

Pesikaka v. State of Bombay, AIR 1955 SC 123; Pankaj Mehra &  

Anr.  v.  State  of  Maharashtra  &  Ors., AIR  2000  SC  1953;  

Dhurandhar Prasad Singh v. Jai Prakash University & Ors., AIR  

2001  SC 2552;  and  Government  of  Orissa  v.  Ashok  Transport  

Agency & Ors., (2002) 9 SCC 28).  

12.  Even if the lands of other similarly situated persons has been  

released, the society must satisfy the court that it is similarly situated  

in all respects, and has an independent right to get the land released.  

Article 14 of the Constitution does not envisage negative equality, and  

it  cannot  be  used  to  perpetuate  any  illegality.  The  doctrine  of  

discrimination based upon the existence of an enforceable right, and  

Article 14 would hence apply, only when invidious discrimination is  

meted  out  to  equals,  similarly  circumstanced  without  any  rational  

basis,  or  to  relationship  that  would  warrant  such  discrimination.  

(Vide:  Smt. Sneh Prabha & Ors. v.  State of U.P. & Anr.,  AIR  

1996 SC 540; Yogesh Kumar & Ors. v. Government of NCT Delhi  

&  Ors.,  AIR  2003  SC  1241;  State  of  West  Bengal  &  Ors.  v.  

Debasish Mukherjee & Ors., AIR 2011 SC 3667; and Priya Gupta  

v. State of Chhattisgarh & Ors., (2012) 7 SCC 433).  

12

Page 13

13. The  respondent  society  has  placed  reliance  upon  various  

policies of  the Government, which allowed the exemption of land  

upon which construction existed on the date of issuance of Section 4  

Notification.  In the instant case, the respondent society entered into  

an  agreement  to  sell,  subsequent  to  the  issuance  of  the  Section  4  

Notification,  and  therefore,  the  question  of  the  existence  of  any  

construction on the said land by any of its members on the date of  

Section 4 Notification does not arise.  The aforesaid policy decision  

therefore, must be implemented, while strictly adhering to the terms  

incorporated  therein,  as  has  been  held  by  this  Court  in  Bondu  

Ramaswamy & Ors. v. Bangalore Development Authority & Ors.,  

(2010) 7 SCC 129.  In the said case, this Court examined the issue of  

discrimination with respect to releasing land belonging to one set of  

interested persons,  while  rejecting the release of  land belonging to  

other  similarly  situated  persons,  whose  land  was  situated  in  close  

vicinity to the land released.  The Court held:    

“We are conscious of the fact that when a   person subjected to blatant discrimination,   approaches a court seeking equal treatment,   he expects relief similar to what others have   been  granted.  All  that  he  is  interested  is   getting relief  for himself,  as  others.  He is  not interested in getting the relief illegally   

13

Page 14

granted  to  others,  quashed.  Nor  is  he  interested in knowing whether others were   granted  relief  legally  or  about  the   distinction  between  positive  equality  and   negative  equality.  In  fact  he  will  be   reluctant to approach courts for quashing   the relief granted to others on the ground   that  it  is  illegal,  as  he  does  not  want  to   incur the wrath of those who have benefited   from the wrong action. As a result, in most   cases  those  who  benefit  by  the  illegal   grants/actions by authorities, get away with   the  benefit,  while  others  who  are  not   fortunate to have “connections” or “money   power” suffer. But these are not the grounds   for courts to enforce negative equality and   perpetuate the illegality”

(Emphasis added)

14. The  Respondent  society  claims  to  have  applied  before  the  

Jaipur Development Authority (hereinafter referred to as the ‘JDA’)  

and  deposited  requisite  charges  etc.  for  regularisation  of  their  

proposed scheme as per G.Os. issued by the State Government, also  

for providing relief to the societies that had no construction on the  

land which  belonged to them, on the date of initiation of acquisition  

proceedings.  However,  there is  nothing on record to show that  the  

society  had  ever  applied  for  release  of  the  said  land  before  the  

Competent Authority i.e. Secretary to the Department of Industries,  

Rajasthan,  who had initiated  the acquisition  proceedings  under  the  

14

Page 15

Act.  Furthermore,  the society is not  in a position to show that  the  

societies whose lands stood released, were similarly situated to itself  

in all respects, i.e., such Societies had no title over the land, and had  

in fact, entered into an agreement to sell subsequent to the issuance of  

the Notification under Section 4 of the Act.  

15. This Court explained the phrase “discrimination” in  Narmada  

Bachao Andolan v. State of Madhya Pradesh & Anr., AIR 2011  

SC 1989 observing :  

“66.  Unequals  cannot  claim  equality.  In   Madhu Kishwar and Ors. v. State of Bihar   and Ors.,  AIR 1996 SC 1864,  it  has been  held  by  this  Court  that  every  instance  of   discrimination  does  not  necessarily  fall   within  the  ambit  of  Article  14  of  the   Constitution.

67.  Discrimination  means  an  unjust,  an   unfair action in favour of one and against   another.  It  involves  an  element  of   intentional  and  purposeful  differentiation   and  further  an  element  of  unfavourable   bias; an  unfair  classification.   Discrimination  under  Article  14  of  the   Constitution  must  be  conscious  and  not   accidental  discrimination  that  arises  from  oversight which the State is ready to rectify.   (Vide:  Kathi  Raning  Rawat  v.  State  of   Saurashtra, AIR  1952  SC  123;  and  M/s  Video  Electronics  Pvt.  Ltd.  and  Anr.  v.   

15

Page 16

State  of  Punjab  and  Anr.,  AIR  1990  SC  820).

68. However, in Vishundas Hundumal and  Ors. v. State of Madhya Pradesh and Ors.,  AIR  1981  SC  1636;  and  Eskayef  Ltd.  v.   Collector of Central Excise, (1990) 4 SCC  680,  this  Court  held  that  when   discrimination is  glaring,  the State  cannot   take recourse to inadvertence in its  action  resulting in discrimination. In a case where   denial of equal protection is complained of   and the denial flows from such action and  has  a  direct  impact  on  the  fundamental   rights  of  the  complainant,  a  constructive   approach  to  remove  the  discrimination  by   putting the complainant in the same position   as others enjoying favourable treatment by   inadvertence  of  the  State  authorities,  is   required.”                         (Emphasis added)

16. Thus,  a  party  seeking relief  on  the  ground of  discrimination  

must take appropriate pleadings, lay down the factual foundation and  

must provide details of the comparable cases, so that the court may  

reach  a  conclusion,  whether  the  authorities  have  actually  

discriminated  against  that  party;  and  whether  there  is  in  fact  any  

justification  for  discrimination,  assessing  the  facts  of  both  sets  of  

cases together.  

16

Page 17

17. The  primary  purpose  of  the  writ  is  to  protect  and  establish  

rights, and to impose a corresponding imperative duty existing in law.  

It is designed to promote justice, (ex debito justiceiae) and its grant or  

refusal is at the discretion of the court. The writ cannot be granted  

unless  it  is  established  that  there  is  an  existing  legal  right  of  the  

applicant, or an existing duty of the respondent. Thus, the writ does  

not lie to create or establish a legal right but, to enforce one that stood  

already established. While dealing with a writ petition, the court must  

exercise  discretion,  taking  into  consideration  a  wide  variety  of  

circumstances,  inter-alia, the  facts  of  the  case,  the  exigency  that  

warrants  such  exercise  of  discretion,  the  consequences  of  grant  or  

refusal of the writ, and the nature and extent of injury that is likely to  

ensue by such grant or refusal.

Hence, discretion must be exercised by the court on grounds of  

public policy, public interest and public good. The writ is equitable in  

nature  and  thus,  its  issuance  is  governed  by  equitable  principles.  

Refusal of relief must be for reasons which would lead to injustice.  

The prime consideration for issuance of the writ is, whether or not  

substantial justice will be promoted. Furthermore, while granting such  

a writ, the court must make every effort to ensure from the averments  

17

Page 18

of the writ petition, whether proper pleadings are being made. Further  

in  order  to  maintain  the  writ  of  mandamus,  the  first  and foremost  

requirement is that, the petition must not be frivolous and it is filed in  

good faith. Additionally, the applicant must make a demand which is  

clear, plain and unambiguous. It must be made to an officer having the  

requisite  authority  to  perform the  act  demanded.  Furthermore,  the  

authority against whom mandamus is issued, should have rejected the  

demand earlier. Therefore, a demand and its subsequent refusal, either  

by words,  or by conduct are necessary to satisfy the court that the  

opposite party is determined to ignore the demand of the applicant  

with respect to the enforcement of his legal right. However, a demand  

may not be necessary when the same is manifest from the facts of the  

case, that is, when it is an empty formality, or when it is obvious that  

the  opposite  party  would  not  consider  the  demand.  (Vide:  

Commissioner of Police,  Bombay v. Govardhandas Bhanji,  AIR  

1952  SC 16;  Praga  Tools  Corporation  v.  Shri  C.V Imanual  &  

Ors.,  AIR 1969 SC 1306; Punjab Financial Corporation v. Garg  

Steel,  (2010) 15 SCC 546;  Union of  India & Ors.  v.  Arulmozhi  

Iniarasu & Ors., AIR 2011 SC 2731; and Khela Banerjee & Anr. v.  

City Montessori School & Ors., (2012) 7 SCC 261).   

18

Page 19

18. This Court in General Officer Commanding v. CBI & Anr.,  

AIR 2012 SC 1890, explained the phrase “good faith” :

“…Good  faith  has  been  defined  in  Section   3(22)  of  the  General  Clauses  Act,  1897,  to   mean a thing which is, in fact, done honestly,   whether it is done negligently or not. Anything   done with due care and attention, which is not   malafide,  is  presumed  to  have  been  done  in   good faith.  There  should  not  be  personal  ill- will  or  malice,  no  intention  to  malign  and  scandalize.  Good  faith  and  public  good  are   though  the  question  of  fact,  it  required  to   be…..In  Brijendra  Singh  v.  State  of  U.P.  &  Ors.,  AIR  1981  SC  636,  this  Court  while   dealing with the issue held:

“In  the  popular  sense,  the  phrase  'in   good  faith'  simply  means  ;honestly,   without  fraud,  collusion,  or  deceit;   really,  actually,  without  pretence  and   without  intent  to  assist  or  act  in   furtherance of a fraudulent or otherwise   unlawful  scheme…..  It  is  a  cardinal   canon of construction that an expression   which  has  no  uniform,  precisely  fixed   meaning,  takes  its  colour,  light  and   content from the context.”

Thus, it is evident that a writ is not issued merely as is legal to  

do so.  The court must exercise its discretion after examining pros and  

cons of the case.  

19

Page 20

19.     Executive instructions which have no statutory force, cannot  

override  the  law.   Therefore,  any  notice,  circular,  guidelines  etc.  

which run contrary to statutory  laws cannot be enforced.  (Vide: B.N.  

Nagarajan & Ors., etc. v. State of Mysore and Ors. etc., AIR 1966  

SC 1942;  Sant Ram Sharma v. State of Rajasthan & Ors.,  AIR  

1967 SC 1910;  Secretary, State of Karnataka & Ors. v. Umadevi  

& Ors., AIR 2006 SC 1806; and Mahadeo Bhau Khilare (Mane) &  

Ors. v. State of Maharashtra & Ors., (2007) 5 SCC 524).

20. During the hearing of the case if it is pointed out to the court  

that the party has raised the grievance before the statutory/appropriate  

authority  and the  authority  has  not  decided  the  same,  it  is  always  

warranted that the court may direct the said authority to decide the  

representation within a stipulated time by a reasoned order.  However,  

it  is  not  desirable  that  the  court  take  upon  itself  the  task  of  the  

statutory authority and pass an order. (Vide: G.  Veerappa Pillai v.  

Raman and Raman Ltd. & Ors., AIR 1952 SC 192; Life Insurance  

Corporation  of  India  v.  Mrs.  Asha  Ramchandra  Ambedkar  &  

Anr.,  AIR  1994  SC  2148;  H.P.  Public  Service  Commission  v.  

20

Page 21

Mukesh Thakur & Anr.,  AIR 2010 SC 2620; and Manohar Lal (D)  

by Lrs. v. Ugrasen (D) by Lrs. & Ors., JT 2011 (12) SC 41).  

21. The  instant  case,  requires  to  be  examined  in  the  light  of  

aforesaid settled legal propositions.  

The  material  on  record  revealed,  that  after  entering  into  an  

agreement to sell just after the Section 4 Notification in respect of the  

suit  land  was  issued,  the  respondent  society  submitted  a  plan  for  

approval before the JDA, and also applied for conversion of the user  

of the land before the Revenue Authority.  In relation to this, it also  

deposited  requisite  conversion  charges  on  13.8.1986.  However,  as  

certain  developments  took  place  in  the  interim  period,  and  the  

Government  of  Rajasthan  made  a  public  advertisement  dated  

27.2.1982, asking people to get  their agricultural  land converted to  

land to be used for non-agricultural purposes.  Circular dated 1.3.1982  

issued by the Government  of  Rajasthan enabled  the  persons/tenure  

holders  seeking  conversion  and  regularization.  The  Circular  also  

provided that land covered by buildings or by any constructed area as  

on  the  cut-off  date,  i.e.  20.8.1981  would  also  be  exempted  from  

acquisition proceedings, if any. Similar benefits  were conferred upon  

21

Page 22

those who were purchasers of land subsequent to the issuance of a  

Section 4 Notification, though such transfer was void. The benefit was  

also  extended  to  cooperative  housing  societies,  which  had  made  

certain developments and constructions prior to the said cut-off date  

i.e.  20.8.1981,  and even to  those  areas  where no construction  was  

made or even where no sale deed had been executed, but there existed  

an agreement to sell prior to 20.8.1981.  

22. More so, the relevant part of the Circular dated 1.3.1982 issued  

by  the  Revenue  Department,  Government  of  Rajasthan,  reads  as  

under:

“….Land  acquisition  notifications  are  statutorily  issued  by  the  Administrative  Department  of  the  State  Government  and  therefore the lands which are proposed to  be de-acquired will have to be notified by  the Government itself.”  

(Emphasis  added)

Thus,  it  is  evident  from  the  Circular  that  even  if,  the  

Government wanted to exempt the land, it would require a notification  

by the Government. Law provides a notification under Section 48 of  

the Land Acquisition Act, 1894, (hereinafter called as `Act 1894’) or  

22

Page 23

abandonment of the land acquisition proceedings by the State but it is  

permissible only prior to taking possession of the land. Once the land  

is vested in the State free from all encumbrances it cannot be divested.  

Therefore, we do not find any force in the submission advanced on  

behalf of the respondent-society that they were entitled for release of  

the land.

The object and purpose of issuing such circulars could be to  

regularise the construction of residential houses where the land was  

sought to be acquired for residential purposes.  Various states have  

issued circulars to meet such a situation. However, such a construction  

should be in consonance with the development scheme, or may be  

compatible  with  certain  modification.  Even  in  absence  of  such  

schemes, this Court has dealt with the issue and held that where the  

land is acquired for establishing residential, commercial, or industrial  

area and the application for release of the land reveal that the land has  

been used for the same purpose, the Government may release the land,  

if its existence does not by any means hinder development as per the  

notification for acquisition.  (Vide :  Union of India & Anr. v. Bal  

Ram Singh & Anr., 1992 Suppl (2) SCC 136; Sube Singh & Ors. v.  

State of  Haryana & Ors.,  (2001) 7 SCC 545; Jagdish Chand &  

23

Page 24

Anr. v. State of Haryana & Anr., (2005) 10 SCC 162;  and Dharam  

Pal v. State of Haryana & Ors., (2009) 2 SCC 397).

In  the  instant  case  land  has  been  acquired  for  industrial  

development.   The  respondent-society  wants  the  said  land  for  

developing the residential houses.  Therefore, such a demand is not  

worth acceptance.

23. Be that as it may, there can be no estoppel against the law or  

public policy.  The State and statutory authorities are not  bound by  

their  previous  erroneous  understanding  or  interpretation  of  law.  

Statutory  authorities  or  legislature  cannot  be  asked  to  act  in  

contravention of law. “The statutory body cannot be estopped from  

denying that it has entered into a contract which was ultra vires  for it  

to  make.  No  corporate  body  can  be  bound  by  estoppel  to  do  

something beyond its powers, or to refrain from doing what it is its  

duty to do.”  Even an offer or concession made by the public authority  

can always be withdrawn in public interest. (Vide:  State of Madras  

& Anr. v. K.M. Rajagopalan, AIR 1955 SC 817; Badri Prasad &  

Ors. v. Nagarmal & Ors., AIR 1959 SC 559; and  Dr. H.S. Rikhy  

24

Page 25

etc. v. The New Delhi Municipal Committee, AIR 1962 SC 554).   

In Surajmull Nagoremull v. Triton Insurance Co. Ltd., AIR  

1925 PC 83, it was held as under:

 “..No  court  can  enforce  as  valid,  that   which competent enactments have declared   shall not be valid, nor is obedience to such   an  enactment  a  thing  from which  a  court   can  be  dispensed  by  the  consent  of  the   parties or by a failure to  plead or to argue   the point at the outset...”

A similar view was re-iterated by the Privy Council in  Shiba  

Prasad Singh v. Srish Chandra Nandi, AIR 1949 PC 297.  

Thus, in view of the above, we are of the considered opinion  

that  the respondent-society is not  entitled to take any advantage of  

those illegal circulars.

24. There was correspondence between the JDA and the appellant  

RIICO, and also other departments. There were also meetings held  

with  higher  officials  of  the  State  Government,  including the  Chief  

Minister but despite this, the land of the appellant was not released.  

25

Page 26

It was in fact, after the order of this Court dated 9.9.1992, that  

the respondent society sent a telegram dated 17.10.1992, to the Chief  

Secretary demanding justice, and there was no request made to the  

Competent  Authority  to  release  the  said  land  in  its  favour.  

Immediately  thereafter,  the  second  writ  petition  was  filed.   It  is  

pertinent to mention here, that the said telegram cannot be termed a  

comprehensive representation. It does not furnish any detail, or give  

any reason, with respect to how not releasing the land of the society  

could amount to violative of any provision of the Constitution of India  

including Article 14. It also did not disclose any comparable cases,  

where  land  belonging  to  persons/institutions  who  were  similarly  

situated to itself, stood released.  The said telegram reads as under:  

“Only  our  land  Khasra  Nos.  226  to  230  at  village  Durgapura without notice to us or Khatedar was ex-parte  acquired  under  award  dated  14.5.84  leaving  all  others  land  of  Durgapura  notified  earlier.  Perpetrating  discrimination  despite  contrary  directions  by  J.D.A.  under  Chairmanship  of  Chief  Minister  –  105  acre  including  our  land  was  fraudulently  and  in  abuse  of  power  were  allotted  by  RIICO  to  Diamond  and  Gem  Development  Corporation  (DGDC)  in  a  biggest  land  scandal  with  collusive  acts  of  officials  of  RIICO.  The  said DGDC is in big way encroaching on our land despite  the knowledge and notice of order dated 9.9.92 in SLP  No. 165, 67-69/90 -  Banwarilal  and Or. v.   State of  Rajasthan & Ors.  Kindly quash allotment of 105 acre  land to DGDC and return land Khasra Nos. 226 to 230 or  

26

Page 27

equivalent land to us within seven days and meanwhile  stop all  encroachment on our land failing which filing  writ  petitions  in  Hon’ble  High  Court  pursuant  to  Supreme  Court  order  dated  9.9.92  at  your  cost  and  consequences.

    Subhash Sindhi Housing Co-operative Society Ltd.  and its Members through K.K. Khanna Advocate.”      

25. When  the  writ  petition  was  filed,  the  High  Court  asked  the  

respondent  therein,  to  furnish  an  explanation  of  the  alleged  

discrimination  claimed  by  it.   The  authorities  thereafter,  filed  

affidavits, stating that the fact could be ascertained from the award  

dated 14.5.1984 itself. The relevant portion thereof reads as under:   

“The  Deputy  Secretary  Industries  (Group  I)  Department  Rajasthan  Jaipur  released  from  acquisition the land in Durgapura, Khasra No. 137,  measuring  6  Bigha  2  Biswas  in  village  Jaland  chod,  Khasra  No.  124  measuring  2  Bighas  4  Biswas, Khasra No. 2389 measuring 1 Bigha – 2  Biswas, Khasra No. 250, measuring 0.05 Biswas,  261 measuring 0.08 Biswas in village Dolka Abad  Khasra  No.  44  measuring  1  Bigha  11  Biswas,  Khasra  No.  45  measuring  2  Bigha  11  Biswas,  Khasra No. 45 measuring 2 Bigha, 13 Biswas, vide  his order Nos. P-(4)/IND/75 dated 19.10.1981 No.  P(4)Ind/1/79 dated 1.1.1982 and No. P5(4) Ind/75  dated 22.6.82.  Besides the Industries Department  also  released  from  acquisition  the  total  land  measuring 126 Bighas 13 Biswas vide notification  P5 (4)/Ind/1/75  dated 31.7.1982 in village Jalana  Chod of Khasra No. 177, 181, 182, 184, 185, 186  and 180 min,. and 187,  the land which is acquired  

27

Page 28

by the Rajasthan Housing Board.  All these lands  was  de-acquired  under  Section  48  of  the  Act  whose  possession  was  not  taken  by  concerned  Department.  Assistant Manager (adarboot) RIICO  Jaipur  vide  his  letter  No.   IPI/3/6-76  dated  31.10.1983  to  Deputy  Secretary  Industries  Department Rajasthan Government recommended  release  for  acquisition  of  Khasra  No.  126  Min.  measuring 2 Bighas as there being no passage and  there godown being situated there.  Therefore, it is  not  possible  to  consider  this  till  final  orders  are  received.   Only  after  the  receipt  of  the  final  decision  of  the  concerned  department  further  action can be possible.”  

26. It is thus evident from the award itself, that land admeasuring  

126 Bighas 13 Biswas was de-notified on 31.7.1982, in the village  

Jalana Chod, for the reason that the said land had also been notified  

under the Act for some other public purpose, i.e., the same had been  

acquired for the Rajasthan Housing Board, and therefore, such land  

was  de-notified under  Section 48 of  the Act  1894.  In other  cases,  

small pieces of land measuring 6 bighas 2 biswas, and 2 bighas and 4  

biswas were also released, for the reason that construction existed on  

some of this land and the other piece of land was found to be entirely  

land-locked, with no passage to access it.   

28

Page 29

27. A large number of issues were agitated before the High Court,  

however, the High Court did not deal with any of those.  The Court  

allowed the petition merely observing:

“The  petitioner  Subhash  Sindhi  Cooperative  Housing  Society  is  contesting  only  for  a  limited  piece  of  land  measuring 17 Bighas 9 Biswas which had been acquired  and  given  to  DGDC  by  the  RIICO.  The  case  of  the  society is that in view of the observations made by the  Supreme Court in its order, it has pleaded its case in this  petition on the basis that the other land which had been  acquired had been released or it stood  de facto released  and the government was itself a party to it in releasing  the acquired land and large number of lands of this nature  de  facto stood  released  from  acquisition  inasmuch  as  houses have been constructed thereon; the Government  itself has acquiesced with such construction and has also  taken steps for regularisation of such construction and the  decision  which  was  taken  by  the  JDA in  the  meeting  headed by the Chief Minister was implemented qua all  others  except  the  land  of  petitioner  Society,  merely  because the petitioner society’s land had been given to  DGDC/RIICO. This small piece of land which is claimed  by the society in the facts and circumstances of the case,  can  very  well  be  restored  to  the  Society  and  to  that  extent, land allotted to DGDC can be curtailed without  having any adverse impact on the prospects of business  of DGDC. Facts have come on record through documents  that to start with, DGDC had demanded only 35 acres of  land.  This  demand  was  raised  from  time  to  time  and  ultimately, it reached upto 105 acres. It is also on record  that the RIICO had given only 80 acres of land to DGDC  as against the allotment of 105 acres. In such a situation,  if a small piece of land measuring 17 Bighas 9 Biswas  out of the land allotted to DGDC is restored back to the  petitioner Society it cannot have any adverse impact on  the  business  prospects  of  DGDC  nor  the  RIICO  may  

29

Page 30

have any just objection and the State Government which  has already acquiesced with the release of such acquired  lands  in  large  number  of  cases,  cannot  have  any  legitimate  case  to  contest  the  grant  of  relief  to  the  petitioner society and the petitioner Society is found to be  entitled for the same on the principles of parity as well as  equity.”  

28. The  High  Court  had  asked  the  authorities  of  the  appellant-

RIICO to  provide  an  explanation  regarding  the  release  of  land  in  

village Durgapura,  and in  its  reply to the said order,  an additional  

affidavit was filed. The High Court, after taking  note of the same held  

as under:

“As per the acquisition proceedings which commenced in  

July, 1979, the land which was sought to be acquired in  

Village Durgapura, was 119 Bighas 4 Biswas.  

- The land (of which possession was not taken) measured  

12  Bighas  &  Biswas  (comprised  in  Khasra  Nos.  126,  

128, 129, 137, 153 and 156).

- Land  of  which  possession  was  taken  106  Bighas  18  

Biswas.

- Land for which acquisition proceedings were quashed as  

per  the  judgment  rendered  on  12.7.79  in  CWP  No.  

324/89 i.e. S.D. Agarwal v. State of Rajasthan) 20 Bighas

- And  thus,  the   balance  land  remained  86  Bighas  18  

Biswas.

30

Page 31

- Land  belonging  to  the  petitioner  Subhash  Sindhi  

Cooperative Housing Society Ltd. – 17 Bighas 9 Biswas.

- After deducting this land measuring 17 Bighas 9 Biswas  

from  the  balance  land  of  86  Bighas  18  Biswas,  the  

remaining land measures 69 Bighas 9 Biswas and this is  

the land of which although possession was taken during  

the acquisition proceedings somewhere in 1982-83 yet on  

submission of the scheme plans by various Cooperative  

Housing  Societies  much after  taking of  the  possession  

plans  were  approved  in  compliance  of  various  orders  

issued by the Government of Rajasthan after 1986.

- Compensation to the recorded khatedars of the land was  

also paid in terms of the award dated 14.5.1984 and the  

amount  was  duly  received  by  the  khatedars/persons  

having interest in the land.    

29. The  High  Court  herein  above,  has  observed  that  land  

admeasuring 69 Bighas 9 Biswas of which possession had been taken  

in acquisition proceedings, stood released in favour of various group  

housing  societies  in  view  of  the  G.Os.  issued  after  1986,  on  

extraneous  considerations.   Such  observation  is  not  based  on  any  

material whatsoever. Learned counsel appearing for the society  could  

not point out any document on record, on the basis of which such an  

31

Page 32

observation  could  be  made.  Same remained  the  position  when  the  

High Court held, that it was evident  from the documents on record  

that the tenure holders whose land had been acquired, could not be  

paid compensation for the reason “that there was shortage of funds  

with  the  government”.  While  recording  the  aforesaid  findings,  

reliance  was  placed  on  the  affidavit  filed  by  the  officers  of  the  

appellant. However, there is no such averment in the said affidavit.  

There  are  claims  and  counter  claims  regarding  the  payment  of  

compensation, as there are some documents on record to show that  

compensation had been deposited by the appellant-RIICO, in favour  

of the predecessor-in-interest of the society in the court.  

30. Be that as it may, the High Court has not recorded any finding  

to  the  effect  that  the  land  referred  to  hereinabove  (in  village  

Durgapura), which stood  released from acquisition proceedings, was  

also acquired by group housing societies subsequent to the issuance of  

the Section 4 Notification, or the society had acquired  interest in the  

same on the basis of an agreement to sell,  or on any other ground  

similar  to  those  raised  by the  respondent  society.  The situation  of  

societies whose land stood released, was not compared with the case  

32

Page 33

of  the  respondent  society.  Moreover,  in  case  the  government  had  

assured such release by issuing several circulars or floating schemes,  

and  the  application  of  the  respondent  society  was  in  fact  pending  

before the authority concerned, the court ought to have directed the  

authority to consider the same. But the court, in such facts could not  

decide the case itself.

31. In the instant case, at the initial stage, the writ petition was filed  

before the High Court at Jodhpur. Admittedly, the land is situated in  

the  heart  of  the  Jaipur  city,  and  all  relevant  orders  including  

notifications for acquisition were issued at Jaipur.  The writ petition  

ought to have been filed before the Jaipur Bench as per the statutory  

requirements therein.  Learned counsel appearing for the parties could  

not furnish any explanation, as under what circumstances the first writ  

petition  had  been  filed  by  the  society  alongwith  tenure-holders  at  

Jodhpur.  Therefore, we are not only doubtful regarding the sanctity of  

the order passed by the High Court rather, it creates doubt about the  

bonafides of the parties and further, as to whether such a move could  

have been made in good faith.   

33

Page 34

This  Court  has  on  various  occasions  dealt  with  the  similar  

situation  and explained  as  where  the  writ  petition  is  maintainable.  

(See:  Sri Nasiruddin v. State Transport Appellate Tribunal, AIR  

1976  SC  331;   U.P.  Rashtriya  Chini  Mill  Adhikari  Parishad,  

Lucknow, v. State of U.P. & Ors., AIR 1995 SC 2148;  Rajasthan  

High Court Advocates Association v. Union of India & Ors., AIR  

2001 SC 416; and Dr. Manju Verma v. State of U.P. & Ors., (2005)  

1 SCC 73).

32. In the instant case, the government itself labeled the sale deeds,  

executed after issuance of Section 4 Notification as  Void, we fail to  

understand as for  what  reasons  the State  authorities  could think to  

regularise  such  orders.   The  right  to  administer,  cannot  obviously  

include the right to maladminister.  Thus, we find no words to express  

anguish as what kind of governance it had been. (Vide: In Re:  The  

Kerala  Education  Bill, 1957, AIR  1958  SC  956;  All  Bihar  

Christian Schools Association & Anr. v. State of Bihar & Ors.,  

AIR 1988 SC 305; Sindhi Education Society & Anr. v. The Chief  

Secretary, Govt. of NCT of Delhi & Ors., (2010) 8 SCC 49; and  

34

Page 35

State  of  Gujarat  &  Anr.  v.  Hon’ble  Mr.  Justice  R.A.  Mehra  

(Retd.) & Ors., JT 2013 (1) SC 276).

33. In  view  of  the  above  discussion,  we  reach  the  following  

inescapable conclusions:

(i) The  society  members  had  entered  into  an  agreement  to  sell  

even  though,  a  Notification  under  Section  4  to  carry  out  

acquisition  had  been  issued  by  the  Govt., fully knowing the  

legal consequences that may arise.   

(ii) The agreement  to  sell,  made by the society  (an  unregistered  

document), did not create any title in favour of the society.  

(iii) The acquisition proceedings were challenged after a decade of  

the issuance of Notification under Section 4, and 5 years after  

the date of award, by the society alongwith original khatedars.  

The  petitions  in  which  the  aforesaid  acquisition  proceedings  

were  challenged  were  dismissed  by  the  High  Court  on  the  

ground of delay and latches.

(iv) When the land in dispute is situated in Jaipur city, the society,  

for reasons best known, had filed the writ petition challenging  

35

Page 36

the acquisition proceedings at Jodhpur and not at Jaipur bench  

of the High Court. No explanation could be furnished by the  

learned  counsel  for  the  respondent  society,  as  regards  the  

circumstances under which the petition was filed at  Jodhpur,  

and whether the same was maintainable.  

(v) The first writ petition cannot be held to have been filed in good  

faith and the bonafides of the parties, becomes doubtful.  

(vi) Challenge to the acquisition proceedings attained finality so far  

as the khatedars are concerned, upto this court.  

(vii) The respondent society never made any application for release  

of the land on any ground whatsoever, before the Competent  

Authority  i.e.  Secretary  to  the  Department  of  Industries,  

instead, it applied for regularization before the JDA and before  

the revenue authorities for conversion of user of the land.  

(viii) After the order of this court dated 9.9.1992, a telegram was sent  

by the society to the Chief Secretary stating that great injustice  

had been done to them, as their land was not released,  raising  

the issue of discrimination qua other societies,  but no factual  

36

Page 37

foundation  was  laid  therein,  pointing  out  the  discrimination  

meted out.  

(ix) The  High  Court  entertained  the  writ  petition,  without  

comparing the actual facts of the respondent society qua other  

societies.  

(x) The High Court did not consider a single objection raised by the  

appellant RIICO before it. The finding of fact recorded to the  

effect that compensation could not be paid to the khatedars for  

want  of  money,  is  based  on  no  evidence  even  though  a  

reference  was  made  to  an  affidavit  filed  by  the  State  

Authorities. Such findings are absolutely perverse.

(xi)  There is no denial in specific terms as to whether the tenure  

holders had received compensation for the land in dispute, even  

though in the earlier proceedings, some khatedars  were parties.  

(xii) The schemes floated by the State Government (knowing well  

that acquiring land after the issuance of Section 4 Notification  

would be  void), indicates a sorry state of affairs. Such orders  

have been passed without realizing that administration does not  

include mal-administration.  

37

Page 38

(xiii) The  circulars  issued  by  the  State  Government,  being  

inconsistent with the policy and the law regarding acquisition,  

cannot be taken note of. Issuance of such circulars amounts to  

committing  fraud  upon  statutes,  and  further,  tantamounts  to  

colourable exercise of power.  The State in exercise of eminent  

domain  acquires  the  land.   Thus,  before  completing  the  

acquisition proceedings, it should not release the land in favour  

of some other person who could not have acquired title over it  

at any point of time.

(xiv) The  land  had  been  acquired  for  industrial  development  and  

thus, cannot be permitted to be used for residential purposes.  

Therefore, the demand of the respondent-society cannot be held  

to be justified.  

34. In  view  of  the  above,  both  the  appeals  are  allowed.  The  

impugned judgment and order of the High Court dated 30.7.2002 in  

Civil Writ Petition No. 454 of 1993 is hereby set aside.  No costs.  

..………………………….J.  (Dr. B.S. CHAUHAN)

38

Page 39

 .…………………………..J. (V.  GOPALA  

GOWDA)

New Delhi;                                                                                  February 12, 2013

39