Supreme Court of India
THE RAJASTHAN STATE INDUSTRIAL DEVELOPMENT AND INVESTMENT CORPORATIONversusSUBHASH SINDHI COOPERATIVE HOUSING SOCIETY JAIPUR & ORS,
- Citation
- 2013 INSC 94
- Decided
- 12 February 2013
- Disposal
- Appeal(s) allowed
- Bench
- B S CHAUHAN
Holding
A sale agreement executed after a Section 4 notification is void, does not confer title, and the land cannot be released; the High Court’s order directing release was erroneous and is set aside.
Summary
The Rajasthan State Industrial Development and Investment Corporation (RILLCO) acquired a large tract of land after a Section 4 notification under the Rajasthan Land Acquisition Act, 1953. The Subhash Sindhi Cooperative Housing Society entered into an agreement to purchase a portion of that land after the notification and later sought release of the land from acquisition, claiming parity with other societies whose lands had been released. The High Court directed the release of the land, but the Supreme Court held that any sale agreement executed after a Section 4 notification is void and cannot create title, and that the High Court had failed to compare the society’s case with similarly situated parties or to satisfy the requirements of Article 14. The Court also ruled that executive circulars cannot override statutory provisions and that estoppel cannot be invoked against the State. Consequently, the Supreme Court set aside the High Court order and dismissed the society’s claim for release of the land.
Issues considered
- A sale agreement entered into after a Section 4 notification creates any enforceable title?
- Whether the High Court could direct release of land on the ground of parity/discrimination without proper factual comparison?
- Can executive circulars or guidelines override the statutory provisions of the Land Acquisition Act?
- Whether estoppel can be raised against the State for its earlier circulars or policies?
- Whether Article 14 (equality) can be invoked to compel release of the land?
- Whether acquisition proceedings can be challenged after the finality of the award and after delay?
- Whether a writ of mandamus is appropriate to compel release of land acquired for industrial development.
Legislation cited
Subjects
land acquisitionSection 4 notificationvoid sale agreementestoppelArticle 14discriminationparityexecutive circularspublic policywrit of mandamusindustrial development
Judgment
[2013] 4 S.C.R. 978
A THE RAJASTHAN STATE INDUSTRIAL DEVELOPMENT
AND INVESTMENT CORPORATION
v.
SUBHASH SINDHI COOPERATIVE HOUSING SOCIETY
JAIPUR & ORS.
B (Civil Appeal No. 7254 of 2003 etc.)
FEBRUARY 12, 2013
[DR. B.S. CHAUHAN AND V. GOPALA GOWDA, JJ.)
C Land Acquisition - Release of Land from acquisition -
Agreement for sale of land, after it was notified uls.4 of Land
Acquisition Act - Challenge to the acquisition proceedings by
the vendor and vendee dismissed with liberty to ask for
release of the land on the ground of parity - Writ petition by
D vendee for release of the land allowed - Held: High Court
wrongly directed release of the land - The agreement to sell,
entered into subsequent to the Notification under Land
Acquisition Act, did not create any title in favour of the vendee
- Rajasthan Land Acquisition Act, 1953 - s.4.
E Estoppel - There can be no estoppel against the law or
public policy - A statutory body cannot be estopped from
denying that it had entered into a contract which was ultra
vires.
F Circulars/Notice/Guidelines - Executive instructions
which have no statutory force, cannot override law - Therefore,
any notice, circular, guidelines, etc. which run contrary to
statutory laws, cannot be enforced - In the instant case,
circulars issued be State Government, being inconsistent with
G the policy and law regarding acquisition, cannot be taken note
of - Issuance of such circulars amounts to committing f1aud
upon statutes and also tantamounts to colourable exercise of
power.
H 978
RAJASTHAN STATE INDST. DEV & INV CORPN. v. SUBHASH 979
SINDHI COOP. HSG SOC., JAIPUR
Constitution of India, 1950 - Article 14 - Doctrine of A
discrimination - Held: Article 14 does not envisage negative
equality - Doctrine of discrimination is applicable only when
invidious discrimination is meted out to equals, similarly
circumstanced without any rational basis or to relationship that
would warrant such discrimination. B
Writs: Purpose, nature and grant of - Held: Primary
purpose of writ is to protect and establish rights and to impose
corresponding imperative duty existing in law - It cannot be
granted unless an existing legal right of the applicant and
existent duty of the respondent is established - Writ does not C
create or establish a legal right, but enforces one which stood
already established - The writ is equitable in nature and thus
its issuance is governed by equitable principles - Grant of writ
is at the discretion of the Court - The Courts to exercise such
discretion on the ground of public policy, public interest and D
public good.
Writ of Mandamus - Grant of - Criteria discussed.
Words and Phrases:
E
'Void' - Meaning of.
'Discrimination' - Meaning of.
A large area of land, including the land in question,
F
was notified u/s. 4(1) of Rajasthan Land Acquisition Act,
1953 for the purpose of industrial development, to be
executed by the appellant-Corporation. Immediately
thereafter, the respondent-Society entered into an
agreement to sell, with the khatedars of the land in
question. Subsequently, on declaration u/s. 6 of the Act, G
possession of the notified land, including the land in
question, was taken by the Government, which was
handed-over to the appellant-Corporation. The land in
question, alongwith other piece of land was further
allotted by the appellant-Corporation to respondent No.37 H
980 SUPREME COURT REPORTS (2013] 4 S.C.R.
A (a Company).
The acquisition proceedings were challenged by the
khatedars of the land in question and the respondent-
Society jointly in writ petition before High Court of
Rajasthan at Jodhpur which was dismissed on the
8
ground of delay and laches. SLP against the same was
also dismissed, but with the observation that the
dismissal would not operate as res-judicata if the society
approached the Court for release of the land on the
C ground that iand of similarly situated persons were
released from acquisition.
The respondent-Society filed writ petition, praying for
release of the land in question. The petition was allowed
with direction to release the land in question in favour of
D the respondent-Society. Hence the present appeals.
Allowing the appeals, the Court
HELD: 1. Acquisition proceedings cannot be
challenged at a belated stage. In the instant case, the
E 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
F discrimination alone. [Para 6) [998-C-D]
2.1. A purchaser, subsequent to the issuance of a
Section 4 Notification under Land Acquisition Act, in
respect of the land, cannot challenge the acquisition
G 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
H deemed to be void and would not be binding on the
RAJASTHAN STATE INDST DEV & INV CORPN. v. SUBHASH 981
SINDHI COOP. HSG SOC., JAIPUR
Government. In the instant case, the society members A
had entered into an agreement to sell, even though a
Notification under Section 4 to carry out acquisition had
been issued by the Government fully knowing the legal
consequences that may arise. The agreement to sell did
not create any title in favour of the society. (Paras 7 and B
33) [998-D-F; 1015-D-E]
Gian Chand v. Gopala and Ors. (1995) 2 SCC 528: 1995
(1) SCR 412; Yadu Nandan Garg v. State of Rajasthan and
Ors. AIR 1996 SC 520: 1995 (4) Suppl. SCR 710; Jaipur C
Development Authority v. Mahavir Housing Coop. Society,
Jaipur and Ors. (1996) 11 SCC 229: 1996 (6) Suppl. SCR
491; Secretary, Jaipur Development Authority, Jaipur v.
Dau/at Mal Jain and Ors. (1997) 1 SCC 35: 1996 (6) Suppl.
SCR 584; Meera Sahni v. Lieutenant Governor of Delhi and
Ors. (2008) 9 SCC 177: 2008 (10) SCR 1012; Har Narain D
(Dead) by Lrs. v. Mam Chand (Dead) by LRs. and Ors.
(2010) 13 SCC 128: 2010 (12) SCR 974; V. Chandrasekaran
and Anr. v. The Administrative Officer and Ors. JT 2012 (9)
SC 260: 2012 (12) SCC 133 - relied on.
E
2.2. 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. It also means merely a nullity, invalid; null;
worthless; sipher; useless and ineffectual and may be F
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 G
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. [Para
11] [999-E-G]
Smt. Kalawati v. Bisheshwar AIR 1968 SC 261: 1968 H
982 SUPREME COURT REPORTS [2013] 4 S.C.R.
A SCR 223; State of Kerala v. M.K. Kunhikannan Nambiar Manjeri
Manikoth, Naduvil (dead) and Ors. AIR 1996 SC 906: 1995
(6) Suppl. SCR 139; Behram Khurshid Pesikaka v. State of
Bombay AIR 1955 SC 123: 1955 SCR 613; Pankaj Mehra
and Anr. v. State of Maharashtra and Ors. AIR 2000 SC 1953:
B 2000 (1) SCR 825; Dhurandhar Prasad Singh v. Jai Prakash
University and Ors. AIR 2001 SC 2552: 2001 (3) SCR 1129;
Government of Orissa v. Ashok Transport Agency and Ors.
(2002) 9 SCC 28: 2002 (3) SCR 632 • relied on.
Black's Law Dictionary • referred to.
c
2.3. The policies of the Government, which allowed
the exemption of land upon which construction existed
on the date of issuance of Section 4 Notification, is not
applicable in the instant case. In the instant case, the
D 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
E aforesaid policy decision therefore, must be
implemented, while strictly adhering to the terms
incorporated therein. [Para 13] [1000-D·F]
Bondu Ramaswamy and Ors. v. Bangalore Development
F Authority and Ors. (2010) 7 SCC 129: 2010 (6) SCR 29 •
relied on.
3.1. 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, anci has
G 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,
H only when invidious discrimination is meted out to
RAJASTHAN STATE INDST. DEV & IN'I. CORPN. v. SUBHASH 983
SINDHI COOP. HSG SOC., JAIPUR
equals, similarly circumstanced without any rational A
basis, or to relationship that would warrant such
discrimination. [Para 12] [1000-A-C]
Smt. Sneh Prabha and Ors. v. State of U.P. and Anr. AIR
1996 SC 540: 1995 (5) Suppl. SCR 264; Yogesh Kumar B
and Ors. v. Government of NCT Delhi and Ors. AIR 2003 SC
1241: 2003 (2) SCR 662; State of West Bengal and Ors. v.
Debasish Mukherjee and Ors. AIR 2011 SC 3667: 2011 (13)
SCR 1077; Priya Gupta v. State of Chhattisgarh and Ors.
(2012) 7 SCC 433: 2012 (5) SCR 768 - relied on.
c
3.2. 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 D
discriminated against that party; and whether there is in
fact any justification for discrimination, assessing the
facts of both sets of cases together. [Para 16] [1002-G-
H; 1003-A]
E
3.3. There is nothing on record to show that the
society had ever applied for release of the said land
before the Competent Authority who had initiated the
acquisition proceedings under the Act. Furthermore, the
society is not in a position to show that the societies
F
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. [Para 14] [1001-F-G]
G
Narmada Bachao Ando/an v. State of Madhya Pradesh
and Anr. AIR 2011 SC 1989: 2011 (6) SCR 443 - relied on.
3.4. The primary purpose of the writ is to protect and
establish rights, and to impose a corresponding
H
984 SUPREME COURT REPORTS (2013) 4 S.C.R.
A 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.
B Thus, the writ doe& not lie to create or establish a legal
right but, to enforce one that stood already established.
[Para 17] (1003-B-C]
3.5. While dealing with a writ petition, the court must
C 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
D 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,
E 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 of the
writ petition, whether proper pleadings are being made.
Further in order to maintain the writ of mandamus, the
F 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.
G 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
H demand of the applicant with respect to the enforcement
RAJASTHAN STATE INDST DEY. & INV CORPN. v. SUBHASH 985
SINDHI COOP HSG SOC., JAIPUR
of his legal right. However, a demand may not be A
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. Thus, it is evident that a writ is not issued
merely as is legal to do so. The court must exercise its B
discretion after examining pros and cons of the case.
[Paras 17 and 18] [1003-C-H; 1004-A-B, H; 1005-A]
Commissioner of Police, Bombay v. Govardhandas
Bhanji AIR 1952 SC 16: 1952 SCR 135; Praga Tools
Corporation v. Shri C. V /manual and Ors. AIR 1969 SC 1306: C
1969 (3) SCR 773; Punjab Financial Corporation v. Garg
Steel (2010) 15 SCC 546: Union of India and Ors. v.
Arulmozhi lniarasu and Ors. AIR 2011 SC 2731: 2011 (9)
SCR 1; Khela Banerjee and Anr. v. City Montessori School
and Ors. (2012) 7 sec 261 - relied on. D
General Officer Commanding v. CBI and Anr. AIR 2012
SC 1890: 2012 (2) SCR 640 - referred to.
3.6. During the hearing of the case, if it is pointed out
to the court that the party has raised the grievance E
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 F
itself the task of the statutory authority and pass an
order. [Para 20] [1005-D-E]
G. Veerappa Pillai v. Raman and Raman Ltd. and Ors.
AIR 1952 SC 192: 1952 SCR 583; Life Insurance Corporation G
of India v. Mrs. Asha Ramchandra Ambedkar and Anr. AIR
1994 SC 2148: 1994 (2) SCR 163; H.P. Public Service
Commission v. Mukesh Thakur and Anr. AIR 2010 SC 2620:
2010 (7) SCR 189; Manohar Lal (D) by Lrs. v. Ugrasen (D)
by Lrs. and Ors. JT 2011 (12) SC 41 : 2011 SCR 634 - relied
on. H
986 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 3.7. There was correspondence between the JOA
and the appellant RllCO, 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.
B 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
c thereafter, the second writ petition was filed. 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
0
disclose any comparable cases, where land belonging to
persons/institutions who were similarly situated to itself,
stood released. [Para 24) [1008-E-H; 1009-A]
3.8. The High Court entertained the writ petition,
E without comparing the actual facts of the respondent
society qua other societies. The High Court has not
recorded any finding to the effect that the land which
stood released from acquisition proceedings, was also
acquired by group housing societies subsequent to the
F 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
G with the case of the respondent society. [Paras 30 and
33) [1013-H; 1014-A-C; 1016-F-G]
4.1. Executive instructions which have no statutory
force, cannot override the law. Therefore, any notice,
circular, guidelines etc. which run contrary to statutory
H laws cannot be enforced. [Para 19) [1005-B]
RAJASTHAN STATE INDST DEV & INV CORPN. v. SUBHASH 987
SINDHI COOP. HSG SOC., JAIPUR
B.N. Nagarajan and Ors. etc. v. State of Mysore and Ors. A
etc. AIR 1966 SC 1942; Sant Ram Sharma v. State of
Rajasthan and Ors. AIR 1967 SC 1910: 1968 SCR 111;
Secretary, State of Kamataka and Ors. v. Umadevi and Ors.
AIR 2006 SC 1806: 2006 (3) SCR 953; Mahadeo Bhau
Khilare (Mane) and Ors. v. State of Maharashtra and Ors. B
(2007) 5 sec 524: 2007 (6) SCR 244 - relied on.
4.2. 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 C
respondent society submitted a plan for approval before
the JOA, 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 State Government made a D
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 State Government enabled the persons/
tenure holders seeking conversion and regularization. E
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
those who were purchasers of land subsequent to the F
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 G
was made or even where no sale deed had been
executed, but there existed an agreement to sell prior to
20.8.1981. It is also evident from the Circular that even if
the Government wanted to exempt the land, it would
require a notification by the Government. Law provides H
988 SUPREME COURT REPORTS [2013] 4 S.C.R.
A a notification under Section 48 of the Land Acquisition
Act, 1894, or 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
B divested. Therefore, it cannot be said that the respondent-
society was entitled for release of the land. [Paras 21, 22]
[1005-G-H; 1006-A-D, F-H; 1007-A]
4.3. The object and purpose of issuing such circulars
could be to regularise the construction of residential
C 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
D 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
E Government may release the land, if its existence does
not by any means hinder development as per the
notification for acquisition. In the instant case land has
been acquired for industrial development. The
respondent-society wants the said land for developing the
F residential houses. The land cannot be permitted to be
used for residential purposes. Therefore, demand of
respondent-society cannot be accepted. [Paras 22 and
33] [1007-8-D; 1017-F]
4.4. The circulars issued by the State Government,
G 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
H land. Thus, before completing the acquisition
RAJASTHAN STATE INDST DEV & INv. CORPN. v. SUBHASH 989
SINDHI C00°. HSG SOC., JAIPUR
proceedings, it should not release the land in favour of A
some other person who could not have acquired title
over it at any point of time. [Para 33] [1017-D-E]
Union of India and Anr. v. Bal Ram Singh and Anr. 1992
Suppl (2) SCC 136; Sube Singh and Ors. v. State of Haryana B
and Ors. (2001) 7 SCC 545; Jagdish Chand and Anr. v. State
of Haryana and Anr. (2005) 10 SCC 162; Dharam Pal v. State
of Haryana and Ors. (2009) 2 SCC 397: 2008 (17) SCR 564
- relied on.
4.5. There can be no estoppel against the law or C
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 D
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 0,r concession
made by the public authority can always be withdrawn E
in public interest. Thus, the respondent-society is not
entitled to take any advantage of those illegal circulars.
[Para 23] [1007-F-H; 1008-A, D-E]
State of Madras and Anr. v. K.M. Rajagopa/an AIR 1955
SC 817: 1955 SCR 541; Badri Prasad and Ors. v. Nagannal F
and Ors. AIR 1959 SC 559: 1959 Suppl. SCR 709; Dr. H.S.
Rikhy etc. v. The New Delhi Municipal Committee AIR 1962
SC 554: 1962 Suppl. SCR 604; Surajmul/ Nagoremull v.
Triton Insurance Co. Ltd. AIR 1925 PC 83; Shiba Prasad
Singh v. Srish Chandra Nandi AIR 1949 PC 297 - relied G
on.
5. -In the instant case, the Government itself labeled
the safe-deeds, executed after issuance of s.4 Notification
as void. Therefore, the State authorities could not have
regularised such orders. The schemes floated by the H
990 SUPREME COURT REPORTS (2013] 4 S.C.R.
A 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. [Paras 32 and 33] (1014-H;
B 1015-A, 1017-B-C]
The Kera/a Education Bi/11957 AIR 1958 SC 956: 1959
SCR 995 - followed.
All Bihar Christian Schools Association and Anr. vs. State
C of Bihar and Ors. AIR 1988 SC 305: 1988 (2) SCR 49;
Sindhi Education Society and Anr. vs. The Chief Secretary,
Govt. of NCT of Delhi and Ors. (2010) 8 SCC 49: 2010 (8)
SCR 81; State of Gujarat and Anr. vs. Hon'ble Mr. Justice
R.A. Mehra (Retd.) and Ors. JT 2013 (1) SC 276: 2013 (3)
o SCC 1 - relied on.
6. In the instant case, at the initial stage, the writ
petition was filed before the High Court at Jodhpur, while,
the land is situated in the heart of the Jaipur city, and all
relevant orders including notifications for acquisition
E were issued at Jaipur. The writ petition ought to have
been filed before the Jaipur Bench as per the statutory
requirements therein. No explanation was furnished, as
under what circumstances the first writ petition had been
filed by the society alongwith tenure-holders at Jodhpur.
F Therefore, the sanctity of the order passed by the High
Court is rather doubtful and it creates doubt about the
bonafides of the parties and further, as to whether such
a move could have been made in good faith. [Para 31]
[1014-D-F]
G Sri Nasiruddin vs. State Transport Appellate Tribunal AIR
1976 SC 331: 1976 (1) SCR 505; U.P. Rashtriya Chini Mill
Adhikari Parishad, Lucknow vs. State of U.P. and Ors. AIR
1995 SC 2148: 1995 (1) Suppl. SCR 733; Rajasthan High
Court Advocates Association vs. Union of India and Ors. AIR
H 2001 SC 416: 2000 (5) Suppl. SCR 743; Dr. Manju Verma
RAJASTHAN STATE INDST. DEV & INV CORPN. v. SUBHASH 991
SINDHI COOP. HSG SOC., JAIPUR
vs. State of UP. and Ors. (2005) 1 SCC 73: 2004 (6) Suppl. A
SCR 22 - relied on.
Case Law Reference:
1995 (1) SCR 412 relied on Para 7
B
1995 (4) Suppl. SCR 710 relied on Para 7
1996 (6) Suppl. SCR 491 relied on Para 7
1996 (6) Suppl. SCR 584 relied on Para 7
2008 (10) SCR 1012 relied on Para 7 c
2010 (12) SCR 974 relied on Para 7
2012 (12) sec 133 relied on Para 7
1968 SCR 223 relied on Para 9 D
1995 (6) Suppl. SCR 139 relied on Para 9
1955 SCR 613 relied on Para 11
2000 (1) SCR 825 relied on Para 11
E
2002 (3) SCR 632 relied on Para 11
1995 (5) Suppl. SCR 264 relied on Para 12
2003 (2) SCR 662 relied on Para 12
F
2011 (13) SCR 1077 relied on Para 12
2012 (5) SCR 768 relied on Para 12
2010 (6) SCR 29 relied on Para 13
2011 (6) SCR 443 relied on Para 15 G
1952 SCR 135 relied on Para 17
1969 (3) SCR 773 relied on Para 17
(2010) 15 sec 546 relied on Para 17 H
992 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 2011 (9) SCR 1 relied on Para 17
(2012) 1 sec 261 relied on Para 17
2012 (2) SCR 640 referred to Para 17
B AIR 1966 SC 1942 relied on Para 19
1968 SCR 111 relied on Para 19
2006 (3) SCR 953 relied on Para 19
2007 (6) SCR 244 relied on Para 19
c
1952 SCR 583 relied on Para 20
1994 (2) SCR 163 relied on Para 20
2010 (7) SCR 189 relied on Para 20
D 2011 SCR 634 relied on Para 20
1992 Suppl (2) sec 136 relied on Para 22
(2001) 1 sec 545 relied on Para 22
E (2005) 1o sec 162 relied on Para 22
2008 (17) SCR 564 relied on Para 22
1955 SCR 541 relied on Para 23
1959 Suppl. SCR 709 relied on Para 23
F
1962 Suppl. SCR 604 relied on Para 23
AIR 1925 PC 83 relied on Para 23
AIR 1949 PC 297 relied on Para 23
G
1976 (1) SCR 505 relied on Para 31
1995 (1) Suppl. SCR 733 relied on Para 31
2000 (5) Suppl. SCR 743 relied on Para 31
H
RAJASTHAN STATE INDST. DEV & INV. CORPN. v. SUBHASH 993
SINDHI COOP. HSG SOC., JAIPUR
2004 (6) Suppl. SCR 22 relied on Para 31 A
1959 SCR 995 followed Para 32
1988 (2) SCR 49 relied on Para 32
2010 (8) SCR 81 relied on Para 32
B
2013 (3) sec 1 relied on Para 32
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7254 of 2003.
From the Judgment & Order dated 30.07.2002 of the High C
Court of Judicature at Jaipur Bench, Jaipur in D.B. Civil Writ
Petition No. No. 454 of 1993.
WITH
C.A. No. 853 of 2013. D
Dhruv Mehta, Dr,. Manish Singhvi, AAG, Milind Kumar,
Amit Lubhaya, Pragati Neekhra for the Appellant.
P.S. Patwalia, Rakesh Dwivedi, M.N. Krishnamani, Ajay
Singh, Ashok K. Mahajan, Shibashish Misra, Sanskriti Pathak, E
P.V. Yogeswaran, R. Gopalankrishnan, Sanjay Parikh, Mamta
Saxena, Bushra Parveen, A.N. Singh, Aruneshwar Gupta for the
Respondents.
The Judgment of the Court was delivered by F
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 G
Court has issued directiol)s to the Rajasthan State Industrial
Development and Investment Corporation (in short "RllCO'), the
appellant herein, to release the land in dispute from land
acquisition in favour of respondent No.1 - housing society
(hereinafter referred to as 'the society').
H
994 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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:
8 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
C 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 RllCO.
B. The respondent society claims to have entered into an
agreement to sell with the Khatedars of the suit land on
D 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
E contained in the Act, possession of the land, including the land
in dispute was taken by the Government and was subsequently
handed over to RllCO, 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
F allotment letter dated 10.3.1988, RllCO, 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
G 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
H Notification dated 18. 7.1979, were challenged by the
RAJASTHAN STATE INDST. DEV & INV CORPN. v. SUBHASH 995
SINDHI COOP HSG SOC., JAIPUR [DR. B.S. CHAUHAN, J.]
respondent society, as well as by the khatedars jointly in 1989, A
by filing of Writ Petitions before the High Court of Rajasthan at
Jodhpur. A lease deed was executed by appellant-RllCO 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 to 230 is village Durgapura. B
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. c
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 D
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 E
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 F
and 9 Biswas in Khasra Nos. 226 to 230, in revenue estate of
village Durgapura or in the alternative, for the allotment of
equivalent 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 G
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
H
996 SUPREME COURT REPORTS (2013] 4 S.C.R.
A 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
B 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
C 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.
D 3. Shri Dhruv Mehta, learned senior counsel appearing on
behalf of the appellant-RllCO, 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
E 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
F society had not made any representation before th~ 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
G 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.
H
RAJASTHAN STATE INDST DEY. & INV CORPN. v. SUBHASH 997
SINDHI COOP HSG SOC., JAIPUR [DR. B.S. CHAUHAN, J.]
Article 14 is not meant to perpetuate an illegality or fraud. A
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 B
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 c
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 0
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 the same was not considered by the E
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 F
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 G
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 H
respondent - society, from the land which was allotted to the
998 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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.
B 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
C jointly, wc.s 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.
o 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
E 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; Jaipur
F Development Authority v. Mahavir Housing Coop. Society,
Jaipur & Ors. (1996) 11 SCC 229; Secretary, Jaipur
Development Authority, Jaipur v. Dau/at Mal Jain & Ors.,
(1997) 1 SCC 35; Meera Sahni v. Lieutenant Governor of
Delhi & Ors., (2008) 9 SCC 177; Har Narain (Dead) by Lrs.
G 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
H its members, have to satisfy the court as regards their locus
RAJASTHAN STATE INDST DEV & INV CORPN. v. SUBHASH 999
SINDHI COOP HSG SOC., JAIPUR [DR. B.S. CHAUHAN, J.]
standi with respect to maintenance of the writ petition on any A
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: B
'Void means non-existent from its very inception."
10. In State of Kera/a v. M.K. Kunhikannan Nambiar
Manjeri Manikoth, Naduvil (dead) & Ors., AIR 1996 SC 906,
this Court held: c
'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."
0
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; E
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
F
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 Pesikaka v. State of Bombay, G
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 sec 28).
H
1000 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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
B 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.
C 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).
D 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,
E 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
F terms incorporated therein, as has been held by this Court in
Bondu Ramaswamy & Ors. v. Bangalore Development
Authority & Ors., (2010) 7 sec 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
G 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
H
RAJASTHAN STATE INDST. DEV. & INV CORPN. v. SUBHASH 1001
SINDHI COOP. HSG SOC., JAIPUR [DR B.S. CHAUHAN, J.]
seeking equal treatment, he expects relief similar to what A
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 granted to others,
quashed. Nor is he interested in knowing whether others
were granted relief legally or about the distinction B
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 c
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" D
(Emphasis added)
14. The Respondent society claims to have applied before
the Jaipur Development Authority (hereinafter referred to as the
'JOA') and deposited requisite charges etc. for regularisation E
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 F
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 Act.
Furthermore, the society is not in a position to show that the
societies whose lands stood released, were similarly situated G
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 H
1002 SUPREME COURT REPORTS [2013] 4 S.C.R.
A Narmada Bachao Ando/an 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
B
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
c 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:
D (Vide: Kathi Raning Rawat v. State of Saurashtra, AIR
1952 SC 123; and Mis Video Electronics Pvt. Ltd. and
Anr. v. 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
E
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
F
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
G 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
H cases, so that the court may reach a conclusion, whether the
RAJASTHAN STATE INDST DEV & INV CORPN. v. SUBHASH 1 003
SINDHI COOP. HSG SOC., JAIPUR [DR. B.S. CHAUHAN, J.]
authorities have actually discriminated against that party; and A
whether there is in fact any justification for discrimination,
assessing the facts of both sets of cases together.
17. The primary purpose of the writ is to protect and
establish rights, and to impose a corresponding imperative duty
B
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 C
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 D
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 E
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 of the writ F
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 G
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
H
1004 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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
B not consider the demand. (Vide: Commissioner of Police,
Bombay v. Govardhandas Bhanji, AIR 1952 SC 16; Praga
Tools Corporation v. Shri C. V /manual & Ors., AIR 1969 SC
1306; Punjab Financial Corporation v. Garg Steel, (2010) 15
SCC 546; Union of India & Ors. v. Arulmozhi lniarasu & Ors.,
C AIR 2011 SC 2731; and Khela Banerjee & Anr. v. City
Montessori School & Ors., (2012) 7 SCC 261).
18. This Court in General Officer Commanding v. CBI &
Anr., AIR 2012 SC 1890, explained the phrase "good faith" :
D " ... 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.
E 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 ..... ln Brijendra Singh v. State of U.P. & Ors., AIR 1981
SC 636, this Court while dealing with the issue held:
F "Jn 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
G cardinal canon of construction that an expression
which has no uniform, precisely fixed meaning,
takes its colour, light and content from the
context."
H Thus, it is evident that a writ is not issued merely as is legal
RAJASTHAN STATE INDST. DEV. & INV CORPN. v. SUBHASH 1005
SINDHI COOP. HSG SOC., JAIPUR [DR. B.S. CHAUHAN, J.]
to do so. The court must exercise its discretion after examining A
pros and cons of the case.
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
8
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 Kamataka & Ors. v. Umadevi & Ors., AIR 2006 SC
1806; and Mahadeo Bhau Khilare (Mane) & Ors. v. State of C
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 D
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 E
v. Mrs. Asha Ramchandra Ambedkar & Anr., AIR 1994 SC
2148; H.P. Public Service Commission v. 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 F
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 is~ued, the respondent society submitted G
a plan for approval before the JOA, 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 H
1006 SUPREME COURT REPORTS [2013) 4 S.C.R.
A 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
B 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 those who were purchasers of land
subsequent to the issuance of a Section 4 Notification, though
c 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,
D 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:
E " .... 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."
F (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
G under Section 48 of the Land Acquisition Act, 1894, (hereinafter
called as "Act 1894') or 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.
H
RAJASTHAN STATE INDST. DEV. & INV CORPN. v. SUBHASH 1007
SINDHI COOP. HSG SOC., JAIPUR [DR. B.S. CHAUHAN, J.]
Therefore, we do not find any force in the submission advanced A
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 8
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 C
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 : D
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 & Anr. v. State of Haryana
& Anr., (2005) 10 SCC 162; and Dharam Pal v. State of
Haryana & Ors., (2009) 2 SCC 397). E
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. F
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 G
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 H
1008 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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 etc.
v. The New Delhi Municipal Committee, AIR 1962 SC 554).
In Surajmull Nagoremull v. Triton Insurance Co. Ltd., AIR
8
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
C 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
0 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.
E 24. There was correspondence between the JOA and the
appellant RllCO, 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.
F
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 petiiion
G 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
H
RAJASTHAN STATE INDST DEV & IN\/. CORPN. v. SUBHASH 1009
SINDHI COOP HSG SOC., JAIPUR [DR. B.S. CHAUHAN, J.]
also did not disclose any comparable cases, where land A
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 8
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 RllCO C
to Diamond and Gem Development Corporation (DGDC)
in a biggest land scandal with collusive acts of officials of
RllCO. 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 - Banwarila/ and Ors. v.
State of Rajasthan & Ors. Kindly quash allotment of 105 D
acre land to DGDC and return land Khasra Nos. 226 to
230 or 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 E
consequences.
Subhash Sindhi Housing Co-operative Society Ltd. and its
Members through K.K. Khanna Advocate."
F
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: G
"The Deputy Secretary Industries (Group I) Department
Rajasthan Jaipur released from acquisition the land ih
Durgapura, Khasra No. 137, measuring 6 Bigha 2 Biswas
in village Jaland chod, Khasra No. 124 measuring 2 H
1010 SUPREME COURT REPORTS (2013] 4 S.C.R.
A 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
B 2 Bigha, 13 Biswas, vide his order Nos. P-(4)/IND/75
dated 19.10.1981 No. P(4)1nd/1/79 dated 1.1.1982 and
No. P5(4) lnd/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)/
c lnd/1n5 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 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) RllCO Jaipur
D
vide his letter No. IPl/3/6-76 dated 31.10.1983 to Deputy
Secretary Industries Department Ra1asthan 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
E possible to consider this till final orders are received. Only
after the receipt of the final decision of the concerned
department furthf'lr action can be possible."
26. It is thus evident from the award itself, that land
F 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-
G 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
e>1isted on some of this land and the other piece of land was
found to be entirely land-locked, with no passage to access it.
H
RAJASTHAN STATE INDST DEV. & IN\/. CORPN. v. SUBHASH 1011
SINDHI COOP. HSG SOC., JAIPUR [DR. B.S. CHAUHAN, J.]
27. A large number of issues were agitated before the High A
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
8
measuring 17 Bighas 9 Biswas which had been acquired
and given to DGDC by the RllCO. 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 C
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 lahds 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 D
regularisation of such construction and the decision which
was taken by the JOA 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/RllCO. This small E
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 F
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 RllCO had given only 80 acres
of land to DGDC as against the allotment of 105 acres. In G
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 RllCO may have any just objection and the State H
1012 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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
B as well as equity."
28. The High Court had asked the authorities of the
appellant-RllCO 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
C note of the same held as under:
"As per the ac.quisition proceedings which
commenced in July, 1979, the land which was
sought to be acquired in Village Durgapura, was
D 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).
E 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
F 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.
G Land belonging to the petitioner Subhash Sindhi
Cooperative Housing Society Ltd. - 17 Bighas 9
Biswas.
After deducting this land measuring 17 Bighas 9
H Biswas from the balance land of 86 Bighas 18
RAJASTHAN STATE INDST. DE\f. & IN\f. CORPN. v. SUBHASH 1013
SINDHI COOP. HSG SOC., JAIPUR [DR. B.S. CHAUHAN, J.]
Biswas, the remaining land measures 69 Bighas 9 A
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 B
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 C
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 D
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 E ··
record, on the basis of which such an 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 F
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 G
record to show that compensation had been deposited by the
appellant-RllCO, 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 H
1014 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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
B by the respondent society. The situation of societies whose land
stood released, was not compared with the case 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
c 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
D 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
E 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
F could have been made in good faith.
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
G 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 sec 73).
H 32. In the i11stant case, the government itself labeled the -
RAJASTHAN STATE INDST DEV & INV CORPN. v. SUBHASH 1015
SINDHI COOP HSG SOC., JAIPUR [DR. B.S. CHAUHAN, J.]
sale deeds, executed after issuance of Section 4 Notification A
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 Kera/a Education B
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 State of Gujarat
& Anr. v. Hon'ble Mr. Justice R.A. Mehra (Retd.) & Ors., JT c
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 D
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 E
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 F
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. G
{iv) When the land in dispute is situated in Jaipur city,
the society, for reasons best known, had filed the
writ petition challenging the acquisition proceedings
at Jodhpur and not at Jaipur bench of the High
Court. No explanation could be furnished by the H
1016 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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
B
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
c 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
D Department of Industries, instead, it applied for
regularization before the JOA and before the
revenue authorities for conversion of user of the
land.
(viii) After the order of this court dated 9.9.1992, a
E 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 foundation was laid therein, pointing out the
F discrimination meted out.
(ix) The High Court entertained the writ petition, without
comparing the actual facts of the respondent society
qua other societies.
G (x) The High Court did not consider a single objection
raised by the appellant RllCO 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
H reference was made to an affidavit filed by the State
RAJASTHAN STATE INDST DE\/. & INV CORPN. v. SUBHASH 1017
SINDHI COOP HSG SOC., JAIPUR [DR. 8.S. CHAUHAN, J.]
Authorities. Such findings are absolutely perverse. A
(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. B
(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 c
not include mal-administration.
(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 D
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
E
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 F
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 G
30.7.2002 in Civil Writ Petition No. 454 of 1993 is hereby set
aside. No costs.
K.K.T. Appeals allowed.
H
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