Supreme Court of India
THE SECRETARY, JAIPUR DEVELOPMENT AUTHORITY, JAIPURversusDAULAT MAL JAIN
- Citation
- 1996 INSC 1085
- Decided
- 20 September 1996
- Disposal
- Disposed off
- Bench
- K RAMASWAMY
Holding
Allotments of the acquired land to the respondents were void as they stemmed from ultra vires acts, and the High Court’s direction to grant possession was erroneous, though the Court modified the relief to provide a uniform plot in another scheme.
Summary
The Supreme Court examined the validity of land allotted to "sub‑awardees" after the land had been acquired under the Rajasthan Land Acquisition Act. It held that once a notification under S.4 and possession under S.16 were effected, the original owner's title ceased and vested in the State, rendering any subsequent sale by the erstwhile owner void under S.23 of the Contract Act. Consequently, the allotments made to the respondents were ultra vires and could not be sustained, and Article 14 could not be invoked to compel the same. While the Court affirmed that the High Court’s direction to allot the land was erroneous, it modified the order by granting each respondent a uniform 250‑sq‑yd plot in another scheme at the original rate, without setting a precedent. The appeal was disposed of.
Issues considered
- Whether the Land Acquisition Officer had authority to allot part of the acquired land to owners, sub‑awardees or nominees.
- Whether the sale of such land by the erstwhile owner after acquisition is void under the Land Acquisition Act and Contract Act.
- Whether Article 14 of the Constitution can be used to enforce the allotment of land to the respondents.
- Whether the High Court's direction to allot the land to the respondents was legally valid.
- Whether the Supreme Court can exercise its power under Article 136 to set aside the High Court order.
Legislation cited
- Constitution of Indias. Article 14, s. Article 166(3)
- Indian Contract Act, 1872s. 23
- Land Acquisition Act, 1894s. 16, s. 23, s. 4, s. 6
- Rajasthan Land Acquisition Act, 1953s. 16, s. 31(3), s. 4, s. 6
- Urban Land Ceiling Act
Subjects
land acquisitionvoid salepublic policyministerial responsibilityarticle 14 equalityultra virescompensationallotmentcorruptionministerial accountability
Judgment
A THE SECRETARY, JAIPUR DEVELOPMENT
AUTHORITY, JAIPUR
v.
DAULAT MAL JAIN
SEPTEMBER 20, 1996
B
'
[K. RAMASWAMY AND B.L. HANSARIA, JJ.]
Land Laws:
Rajasthan Land Acquisition Act, 1953: Sections 4, 6, 16 and 31(3).
c
Land Acquisition-Pwt of acquired land allotted to erstwhile owner-
Subsequently owner sold such land to 'sub-awardees' or 'nominees'-Validity
of-Held : Once notification of acquisition of land issued u11der S. 4, decla-
ration made u11der S. 6 and possession of land taken under S.16, pre-existing
D right, title and interest of la11downer stood ceased a11d same vested in State
free from all encumbrances-Hence, allotment of pa1t of la11d to erstwhile
owner was void-It was not saved by S. 31(3) of Act or R1: 31 and 36 of
Rules-Subsequent sale of pan of la11d to 'sub- awardees' or 'nominees' was
opposed to public policy a11d he11ce void under S. 23 of Contract Act-Con-
sequently, purchasers acquired no 1ight, title or interest therein-Rajasthan
E Land Acquisition Rules, 1956, Rr. 31 and 36--Rajasthan Improvement Tntst
(Disposal of Urban Land) Rules, 1956-Land Acquisition Act, 1894, Ss. 4,
6, 31(3) & (4)-contract Act, 1872, S. 23.
Constitution of India, 1950: A1ticles 14 and 166(3).
F Public Accountability-Misuse of power-By public servant viz., Mini-
ste1~Held : Minister answerable and accountable to people for acts or
conduct in pe1fonnance of duties not only by him personally but also by
bureaucrats working under him.
A1ticle 14-Discrimination-If some persons derived benefit by il-
G
legality, others similarly situated could not claim same benefit on ground of
equality-Judicial pro.cess could not be abused to perpetuate illegalities.
A notification under· Section 4 of the Rajasthan Land Acquisition
Act, 1953 was published in the Oflicial Gazette for acquiring land for a
H housing scheme. After following the procedure, an award was passed and
584
SECY. JAIPUR DEV. AUTHORITY v. D.M. JAIN 585
possession of the land was taken. Therein, apart from awarding compen- A
sation to the owners the land Acquisition Otlicer (LAO) granted plots to
owners, sub-awardees or nominee in the scheme itself. It was the case of
the respondents that pursuant to a public policy, the Government had
decided to allot the lands to the sub-awardees/nominees. Further, the
Minister, accepting the same, had directed delivery of possession of land. B
The respondents purchased the lands from the erstwhile owner, pursuant
to the sale deeds executed by him. These allotments were questioned by
way of writ petitions in the High Court. The High Court held that the LAO
and the Minister had committed illegality for such allotments being ob-
noxious, deflected the scheme and defeated the public purpose by abusing
public office. However, the High Court directed allotment of the lands to C
the respondents since allotment made to others had become final and
denial thereof to the respondents would amount to violation of equality
clause enshrined in Article 14 of the Constitution. Being aggrieved the
appellant preferred the present appeal.
D
On behalf of the respondents it was contended that the LAO was
empowered under the Rajasthan Land Acquisition Rules, 1956 to allot the
lands in lieu of compensation; that Section 31 of the Land Acquisition Act,
1894 which is in pali materia with Section 31 of the Act empowered the LAO
to allot land in lieu of compensation; that the public policy further
reiterated it; that the Government decided to allot land to the awardees, E
sub-awardees or nominees of the erstwhile owners of the land; that in
furtherance thereof, all<!_tment came to be made, directions were given for
deposit of the value of the sites pursuant to which the amount came to be
deposited; that the Government had evolved the policy to mete out the
problem of the rehabilitation of the awardees, sub-awardees and nominees; F
that the Government, therefore, in implementation of the scheme had
allotted the plots, amounts were deposited in furtherance of the policy,
irrespective of the fact whether or not the LAO had power to allot the land
to the awardees or sub-awardees or nominees; that the policy of the
Government to allot plots legitimated the allotment made to the respon-
dents and, therefore, the allotment was valid in law; that since some people G
were given possession and some among them had built houses thereon, the
respondents could not be denied of their right to possession; that having
. deposited the amount 20 years ago due to the impugned allotment they
were denied the right to apply for allotment elsewhere; that conse9uential·
ly, the respondents now would be rendered without any remedy for allot- H
586 SUPREMECOURTREPORTS [1996] SUP.P. 6 S.C.R.
A ment; and that interference, at this distance of time, would cause undue
hardship to the respondents.
Disposing of the app~I, this Court
HELD : 1.1. The Government runs the Executive Government of a
B State with the aid and advice of the Chief Minister and the Council of
Ministers which' exercise the powers and performs its duties by the in·
dividual Ministers as public officers with the assistance of the bureaucracy
working in various Departments and Corporate sectors etc. Though they
are expressed in the name of the Governor, each Minister is personally and
C collectively responsible for the actions, acts and policies. They are account-
able and answerable to the people. Their powers and duties are regulated
by the Law and the rules. The legal and moral responsibility or liability for
the acts done or omissions, duties performed and policy laid down rest
solely on the Minister of the Department. Therefore, they are indictable for
their conduct or omission, or misconduct or misappropriation. The Coun-
D cil of Ministers are jointly and severally responsible to the Legislature.
He/they is/are also publicly accountable for the acts or conduct in the
performance of duties. [596~F, G, H & 597-A]
1.2. The Minister holds public office though he gets constitutional
E status and performs functions under constitution, law or executive policy.
The acts done and duties performed are public acts or duties as holder of
the public office. Therefore, he owes certain accountability for the acts done
or duties performed. In a democratic society government by rule of law,
power is conferred on the holder of the public office or the concerned
authority by the Constitution by virtue of appointment. The holder of the
F office, t~erefore, gets opportunity to abuse or misuse the office. (597 -B-C]
2.1. The Government acts through its bureaucrats, who shapes its
· social, economic and administrative policies to further the social stability
and progress socially, economically and politically. Actions of the Govern-
G ment, should be accounted for social morality. Therefore, the actions of the
individuals would reflect on the actions of the Government. The actions are
intended to further the goal.s set down ·in the Constitution, the laws or
administrative policy. The action would, therefore, bear necessary integral
connection between the 'purpose' and the end object of public welfare and
not personal gain. The action cannot be divorced from that of the individual
H actor. The end is something aimed at and only individuals can have and
SECY.JAIPURDEV.AU1HORrfYv. D.M.JAIN 587
shape the aims to further the social, economic and political goals. The A
ministerial responsibility threat comes into consideration. The Minister is
responsible not only for bis actions but also for the job of the bureaucrats
who work or have worked under him. He owes the responsibility to the
electors for all bis actions taken in the name of the Governor in relation to
the Department of which he is the head. He bears not only moral respon- B
sibility but also in relation to all the actions of the bureaucrats who work
under him bearing actual responsibility in the working of the Department
under his ministerial responsibility. [597-E-H, 598-A-C]
2.2. All purposes or actions for which moral responsibility can be
attached are actions performed by individual persons composing the c
Department. All Government actions, therefore, means actions performed
by individual persons to further the objectives set down in the Constitution,
the laws and the administrative policies to develop democratic traditions.
Social and economic democracy are set down in the Preamble, Part III and
Part IV of the Constitution. The intention behind the Government actions D
and purposes is to further the public welfare and the national interest.
Public good is synonymous to protection of the interests of the citizens as
a territorial unit or nation as a whole. It also aims to further the public
. policies. The limitation of the policies are kept along with the public inter-
est to prevent the exploitation or misuse or abuse of the office or the
executive actions for personal gain or for illegal gratification. [598-D-E-F] E
3,1. The so-called public policy cannot be a camouflage for abuse of
the power and trust entrusted with a public authority or public servant for
the performance of public duties. Misuse implies doing or something im-
proper. The essence of impropriety is replacement of a public motive for a F
private one. When satisfaction sought in the performance of duties is for
mutual personal gain, the misuse is usually termed as corruption. The
holder of a public office is said to have misused his position when in pursuit
of a private satisfaction, as distinguished from public interest, he has done
something which he ought not to have done. The most elementary qualifica- G
ti on demanded of a Minister is honesty and incorruptibility. He should not
only possess these qualifications but should also appear to possess the
same. The rules of Code of Conduct for political executives, public servants
and private entrepreneurs, emphasising merit and regulated system of
appointment in state bureaucracy and stimulating pride in public service,
would generate remedies for political corruption. [598-G, H, 599-A, 599-H] H
588 SUPREME COURT REPORTS [1996] SUPP. 6 S.C.R.
A Director of Public Prosecutions v. Holly, (1977) 1 All ER 316; R. v.
Andrews Weatheifoil Ltd. & Ors., (1972) 1 All ER 65; Rother Valley Railway
Co. Ltd. v. Minist1y of Transport, (1972) 2 W.L.R. 1041; Ch. D, Regi.na v.
Smith, (1960) 2 W.L.R.164 (Court of Criminal Appeal) andR v.Braithwaite,
(1983) 2 All ER 87 (Cr.D), referred to.
B Seymour Mertin Lipset: "Encyclopedia of Democracy", Vol. I, p-310,
referred to.
3.2. The court, therefore, would be required to consider whether the
policy sought ,to be relied on and directed by the Minister was to further
C public good or was a means to fritter away the public property for personal
gain or to misuse public power. The public policy under the Act is that the
acquired land should be used only for public purpose declared under
Section 6(1) of the Rajasthan Land Acquisition Act, 1953 or any other
public purpose and under no circumstances, for any private purpose. The
limited relaxation of public power entrusted with the LAO is to allot any
D other land, if available to the owner with limited interest or remission of
land revenue when limited interest is acquired for public purpose.
(600-H, 601·A~B]
4.1. The respondents purchased the lands from the erstwhile owner,
pursuant to the sale deeds executed by him or an agreement of sale etc.
E Their source of title, therefore, is the erstwhile owner. The sales obviously
are void since the erstwhile owner had no right, title and interest in the land
acquired pursuant to notification under Section 4(1) of the Act issued and
possession taken under Section 16 of the Land Acquisition Act, 1894 and
equivalent Sect!on 16 of the State Act. The pre-existing right, title and
interest held by the erstwhile owner stood ceased and the same were vested
F in the appellant free from all encumbrances. All encumbrances stand ex-
tinguished by operation of Section 16 of the Act. Therefore, the purchaser
gets no title to the acquired land. The sale (being opposed to the public
policy) was void under Section 23 of Contract Act, 1872. Consequentially,
the respondents acquired no right, title or interest either under the sale
G deeds or agreement entered into by them with the erstwhile owner. The
nomenclature of sub-awardees or nominees does not get elevated ~hove the
source and they had no right, title or interest under void sale except, if at
all, only to claim compensation under Section 23(1) of the Act.
(595-E-H, 596-A-C]
H Gian Chand v. Gopala & Ors., (1995] 2 SCC 528 and Yadu Nandan
SECY. JAIPUR DEV. AUTIIORITY v. D.M. JAIN 589
Garg v. State of Rajasthan & Ors., JT (1995) 8 SC 179, relied on. A
4.2. Rule 31 of the Rajasthan Land Acquisition Rules, 1956 was made
to guide the exercise of power of the collector (Land Acquisition Oflicer)
. under Section 31(3) of the Act. The Government has empowered the Col-
lector to allot "any other land" in lieu of money compensation only when the
land acquired belongs to a person having "limited interest in the land", like B
widow's estate of minor's estate, Mutawali etc. In that behalf, Rule 31
amplifies the exercise of the power by the authorised LAO. Rule 31 is only
to elongate the discretion which the LAO is expected to exercise in awarding
land in lieu of cash consideration and the circumstances in which it would
be done. Equally, Rule 36 deals with disposal of the excess land acquired c
by the Collector for a company and imposition of the conditions for sanc-
tion of transfer of excess land. Therefore, the absence of reference of them
does not make any dent into the principle of law laid in Radhey Shyam 's
case. That apart, these two rules merely emphasise the limited power given
to the Government and to the LAO to impose the conditions and restric-
tions to attain the public purpose for which the land is acquir~d and is not D
intended to fritter away public property for private purposes or gain or
illegal gratification. The allotment to the respondents was not under the
Rajasthan Improvement (Disposal of Urban Land) Rules, 1974. [601-C-H]
Jaipur Development Authority v. Radhey Shyam & Ors., [1994) 4 SCC
370, relied on.
E
4.3. There was no policy laid down by the Government and it cannot
be laid contrary to the aforestated rules and no such power was given to
individual Minister by executive action, as the land was already notified
conclusively under Section 6(1) for public purpose, namely, earmarked F
scheme. Since the persons whose land was acquired were not owners having
limited interest therein, qua the owners having lost right, title and interest
therein, the sub-awardees or nominees, after the acquisition under Section
4(1), would acquire no title to the land nor such ultra vires acts of the
Minister would bind the Government. The actions, therefore, taken by the G
Minister-cum-Chairman of the appellate authority and bureaucrats for
obvious reasons would not clothe the respondents with any vestige of right
to allotment. The policy does not bear any insignia of a public purpose, but
appears to be a devise to get illegal gratification or distribution of public
property defeating the public purpose by misuse of public office.
[602-E-F, 603-A] H
590 SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.
A 5.1. There was no evidence that under the so-called policy, anyone
from general public could equally apply for allotment of the plots or was
eligible to apply for sq.ch allotment nor any such general policy was
brought to the notice of this Court. The allotment was benefitted only a
specified class, namely, th~ awardees, sub-awardees or nominees and none
else. The decision by the Minister or the actions of the bureaucrats was
B limited to the abov~ class which included the respondent. Legitimacy was
given to the void acts of the erstwhile owr.er as well as the LAO. Directions
were given by the Minister and the bureaucrats acted to allot the land
under the very void acts. They are ultra vires the power. These acts are in
utter disregard of the statute and the rules. Therefore, it cannot be said
C to have the stamp of public policy; rath~r it is a policy to feed corruption
and to deflect the public purpose and to confer benefits on a specified
category, as described above. [603-B-D]
5.2. The illegal allotment founded upon ultra vires and illegal policy
D' of allotment made to some other persons wrongly, would not form a legal
premise to ensure it to the respondent or to repeat or perpetuate such
illegal order, nor could it be legalised. Judicial process cannot be abused
to perpetuate the illegalities. Article 14 proceeds on the premise that a
citizen has legal and valid right enforceable at law and person having
similar right and persons similarly circumstanced, cannot be denied of the
E benefit thereof. Such person cannot be discriminated to deny the same
benefit. The rational relationship and legal back up are the foundations to
invoke the doctrine of equality in case of persons similarly situated. If
'some persons derived benefit by illegality and had escaped from the
ctiltches of law, similar persons cannot plead, nor court can countenance
that benefit had from infraction of law and must be allowed to be retained.
F One illegality cannot be compounded by permitting similar illegal or
illegitimate or ultra vires acts. The High Court was clearly in error in
directing the appellants to allot the land to the respondents.
[604-A-C, 605-E-F]
G Yadu Nandan Garg v. State of Rajasthan & Ors., JT (1995) 8 SC 179;
Coromandel Fertilizers Ltd. v. Union of In(i,ia & Ors., [1994] Supp. SCC 457
and Chandigarh Administration & Anr. v. Jagjit Singh & Anr., [1995) 1 SCC
745, relied on.
6.1. There is, however, force in the contention that if allotments
H would be cancelled by this Court, it would be virtually impossible for the
SECY. JAIPUR DEV. AUTHORITYv. D.M. JAIN [K. RAMASWAMY, J.) 591
respondents to acquire residential plots any where now in the city in view A
of the great increase in prices of land in.the-meantime. It is not possible
to overlook or ignore this facet of the case; more so, because it may be that
the respondents had not obtained the allotments by taking recourse to any
illegal means. Therefore, this Court would not invoke its power under
Article 136 to undo the impugned order of the High Court even ifthe same B
be illegal. [606-B, CJ
6.2. It is, however, necessary to modify the direction of the High
Court, as a very special case, in two respects. First, the respondents would
be given allotment in some other scheme. Secondly, the area of the land to
be allotted would be uniform. In similar cases, this Court has favoured C
uniformity as regards the area. As the plot would be needed for residential
purpose, an area of 250 sq. yds. would be enough and proper. Therefore,
it is ordered that an allotment of plot measuring about 250 sq. yds. be
made to each of the two respondents in some other scheme of JDA. This
would, however, be at the rate which was prevailing when the allotments D
were first made to them. [606-C-E]
CIVIL APPELLATE JURISDICTiON: Civil Appeal No. 12370 of
1996 Etc. Etc.
From the Judgment and Order dated 24.9.93 of the Rajasthan High E
Court in D.B.C.S.A.W. No. 680 of 1992.
Dr. Sh~nkar Ghosh and S.K. Bhttacharya for the Appellant.
G.L. Sanghi, S.M. Jain, S.K. Jain, A.P. Dhamija, S. Ganesh, Mrs.
Pratibha Jain for the Respondents. F
The Judgment of the Court was delivered by
K. RAMASWAMY, J. The facts of these cases expose the blatant
misuse of public office by Minister of Urban Development, Government of G
Rajasthan as Chairman of the appellant authority; they, in particular
demonstrate the danger involved in entrusting unbridled dual powers in a
single individual leading to abuse of office on account of lack of counter
ch6ck. It would be appropriate to extract from the enquiry report dated
November U, 1992 of the Lokayukta of Rajasthan under Section 10 of the
Rajasthan Lokayukta and Uplokayukta Act, 1973 as under : H
592 SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.
A "lri view of what has been stated above, it is p1ima f acie established
that Smt. Kamala, the then Hon'ble Minister, Urban Development
and Housing Department, Government of Rajasthan-cum-Chair-
man J.D.A. Jaipur, Shri N.D. Kaurani, IAS the then Commissioner,
Jaipur Development Authority and Shri Subhebhan Mitra, the then
Zonal Officer, Lal Kathi Scheme, J.D.A. Jaipur have blatantly
B misused their official position to favuur a few influential and highly
placed individuals and have also thereby caused wrongful gain to
them and wrongful loss to the Jaipur Development Authority and
the public at large. But Smt. Kamala, the then Hon'ble Minister,
Urban Development and Housing Department-cum-Chairman,
c J.D.A. is not now a public servant as defined in Section 2(1) of
the Rajasthan Lokayukta and Up-Lokayukta Act, 1973 (for short,
the 'Act') because she has ceased to be a Minister, so investigation
is not being commenced against her but the investigation deserves
to be commenced against S/Shri M.D. Kaurani, IAS and Subheb-
han Mitra under Section I of the Act and I order accordingly."
D
Edmund Burke as early as in 1780 had lamented the corroding
influence of corruption thus : "Corrupt influence, which is itself the peren-
nial spring of all prodigality, and of all disorder, which loads us, more than
millions of debt; which takes away from our arms wisdom from our
E councils, and every shadow of authority and credit from the most venerable
parts of our constitution."
The facts in nutshell in these cases are as under :
F Notification under Section 4 of the Rajasthan Land Acquisition Act,
1953 (for short, the 'Act') was published in the State Gazette on June 29,
1960 acquiring land in Bhojpura and Chuck Sudershanpura, Tehsil Jaipur'
popularly known as Lal Kathi Scheme, which is adjacent to the Jaipur City
for urban development, viz., for multipurpose project Qf constructing Legis-
G lative Assembly M.L.A. quarters etc. After following the procedure, an
award was passed on January 9, 1964 and possession taken later on.
Therein, .apart from awarding compensation to the owners, the Land
Acquisition Officer granted plots ranging between 2000 sq. yds. to 1000 sq.
yds. to owners, sub-awardees or nominees in the scheme itself. This Court
in Jaipur Development Authority v. Radliey Shyam & Ors., (1994] 4 SCC 370,
H known as Radliey Shyam's case, had held that the Land Acquisition Officer
SECY. JAIPUR DEV. AUTHORITY v. D.M. JAIN [K RAMASWAMY, J.] 593
(LAO) was devoid of the power and jurisdiction under Section 11 to allot A
part df the acquired land or any land to the land owners etc. in determining
compensation under Section 23(1). It was, therefore, held that the award
alloting land was void ab initio and it confered no right on ·an erstwhile
khatedar/owner to cla!m·possession of the land in execution of the award.
The award, confirmed in the decree under Section 26, though had bec:ome
. final, being a nullity, it could be questioned at any stage, when it is sought
B
to be executed/enforced. ~t was, therefore, held that the ~xecution of such
a decree and delivery of the possession iq furtherance of the award was
invalid, void and inexecutable. These cases spring from the same foul
source and being part of the same scheme and same award, are governed
by the above judgment. The Khatedar (owner) in these cases is one c
Chhote Lal whose 14 bighas of land had come to be acquired. The LAO
awarded 2000 sq. yards to him. He entered into agreements with respon-
dents Daulat Mal and Raj Kumafi to Sell 1000, 500, 250 sq. yds. etc. The
sale deeds came to be registered on December·14, 1970. The purchasers
were described as sub-awardees or nqminees, which terms are unknown ~o D
the law of property acquired for public purpose.
0. ... . •
•
Then came into picture the Minister-cum-Chairman . and the so-
called Committees. It is now. the case of the respondents that pursuant to
a public policy, the Government had decided in 1978 to a~lot th~. lands to
the sub-awardees/nominees @ Rs. 8 per sq. yd. Further, the Minister, E
accepting the same, had directed delivery of the possession and. sub-
sequently the amount was received @ Rs. 8 per sq'. ·yd. or at revised rates ·
of Rs. 50. per sq. y~.; details thereof being not material for the purpose of
this case, are omitted. It.would appear-that, subsequently, the lands were
. ~further sub-djvided to escalate the net by reducing the area of allotment in F
the proceedings dated September 16, 1980. Lots were drawn for allotment
of the plots on December 23, 1980. They came to be;questioned by way of
writ petitions in the High Court. The High Court came heavily against the
illegality committed by the LAO and the Minister for such allotments being
obnoxious, deflecting the scheme and defeating the public purpose by
abusing public office. When it was inquired into by the Lokayukta, in the G
aforestated report, he castigated the persons for the blatant abuse of the
power and action was accordingly initiated. It shocks the judicial i;on-
science in that it did not touch even the fringe of "actors". The counsel for
respondents, rightly and in the light of the settled legal position, admitted
that the respondents did not acquire any title to the lands sold to them H
594 SUPREME COURT REPORTS. (1996) SUPP. 6 S.C.R.
A und~r defective and void title. However, they strongly pressed into service
the orders of allotment issued by the Minister, the accyptance of payment
and the so-called public policy to support their claim for poss~ssion.
. In this background, the question arises; whet~er the High Court was
B right in directing allotment of the lands to the respondents ·Since allotment
made to others had bec;ome final and denial thereof.to th~ respondents
would amouqt to violation of equality clause enshrined iI?. Article 14 of the
Constitution, which is now the subject matter of these appeals? In fairness,
the l{'.arned Judges have held that the allot~ent of the plots was in violation
of the scheme and the award of the LAO and did not confer any right to
C the purchasers, sub-awardees or n~minees. Yet the rel_ief has been founded
on the preQJ.ise of violation of equality on par with others who got posses-
sion under the void·awaql. etc. It directed the appellants to deliver posses-
sion of the plots allotted to them on the basis of the sales and letters of
allotment thereof. Thus, these appeals arise from the .judgment and order
of the Division Bench of the Rajasthan High Court made on September 2,
.D 1993 in Writ Petition No. 680 of 92 etc.
Dr. Shankl'!r Ghosh,· tea,rned senior counsel appearing in one case
and Shri. S.K. Bhattacharya appearing in another, contended that in view .
of the law laid down in Radhey Shyam 's case, the direction issued by the
E High Court is illegal. There is no discrimin<1;tion for perpetration of wrong-
ful acts in furtherance of void orders. Extension of the equality in Ai:ticle
14 for breach of ·law would aid impetus to perpetrate further illegalities.
Article 14 is unavailable in this baclcdrop.
F Mis. G.L.·Sanghi, learned senior counsel and M.S. Ganesh, learned
counsel for the respondents and S.M. Jain for the petitioner in the third
case, contended that the judgment in Radhey Shyam's case is per incuriam
since the relevant provisions 'under the Act and the Rajasthan Land
Acquisition Rules had not been brought to the notice of this Court. The
LAO was empowered under the Rules to allot the lands in lieu of com-
G pensation; Section 31 of the Central Act which in pari materia :vith Section
31 of the Act empowers the LAO to allot land in lieu of compensation.
The policy of 1978 further reiterated it. The Government decided to allot
land to the awardees, sub-awardees or nominees of the erstwhile owners
/ of the land. In furtherance thereof, allotment came to be made, directions
H were given for deposit of the value of the sitr;s pursuant to which the
. ~ECY.JAIPURDEV.AUTHORITYv. D.M.JAIN [KRAMASWAMY,J.) 595
amount came to be deposited. The extent of the land purchased by the A
respondents in 500 sq. yds. and it was further reduced to 400 sq. yd. and
250 sq. yd. etc. The Government had evolved the policy to mete out the
problem of the rehabilitation of the awardees, sub-awardees and nominees.
The Government, therefore, in implementation of the Scheme had allotted
' the plots, amounts were deposited in furtherance of the policy, irrespective
of the fact whether or not the LAO had power to allot the land to the
B
awardees or sub-awardees or nominees. The policy of the Government to
allot plots legitimatises the allotmen! made to the respondents. Therefore,
the allotment is valid in law. Since some people were 'given possession and
some among them had built houses thereon, the respondents cannot be
denied of their right to possess'ion. It is further contended that the respon- c
dents having deposited the amount 20 years ago due to the impugned
allotment they were denied the right to apply for allotment elsewhere.
Consequentially, the respondents now would be rendered without any
remedy for allotment. Interference, at this distance of time, would cause
undue hardship to the respondents. Though for different reasons, the High D
Court, therefore, was. right in holding that the r·~spondents were dis-
criminated against due to non-delivery of possession of plots to them for
construction of their houses:
Th9 diverse contentions give rise to the first question : whether the E
respondents have a right to allotment of the lands? It is an admitted
position that they purchased the lands from Chhote Lal, the erstwhile
owner, pursuant to the sale deeds executed by him in 1970 or an agreement
of sale etc. Their source of title, therefore, is Chhote Lal, the erstwhile
owner. The sales obviously are void since Chhote Lal had no right, title
and interest in the land acquired pursuant to notification under Section F
4(1) issued on dated June 29, 1960 and possession taken under Section 16
of the Centrai Act and equivalent to Section 16 of the State Act. The
pre-existing right, title and interest had by Chhote Lal stood ceased and
the same were vested in· the appellant free from all encumbrances. The
nomenclature of sub- awardees or nominees does not get elevated above
the source and they had no right, title or interest under void sale except, G
if at ail, only to claim compensation under Section 23(1) of the Act. In
Gain Chand v. Gopala & Ors., (1995] 2 SCC 528 this Court had held that
after the notification under Section 4(1) is published, any encumbrances
created by the owner of the land does not bind the Government. The
agreement of sale, if any, was frustrated by the publication of the notifica- H
596 SUPREME COURT REPORTS. [1996] SUPP. 6 S.C.R.
A tion under Sectio~ 4(1) and the declaration under Section 6. In Yadu
Nandan Garg v. State of Rajasthan & Ors., JT (199,5) 8 SC 179 and eaten~
of other decisions, this Court has held that the purchase after notification
under Section 4(1) published in the Gazette was not lawful which did not
clothe the sale with any colour of title as against the State. All encumbran-
B ces stand extinguis,hed by operation of Section 16 of the Act. Therefore,
the purchaser gets no title to the acquired land. The sale (being opposed
to the pubJic policy) ~as void under Section 23 of Contract Act. Conse-
quentially, the respondents acquired no right, title or int~rest either under
the sale deeds or agreement entered.into by !hem with Chhote Lal, the
erstwhile owner.
c
The next question is : whether there is any public policy allotment of
th!:'. land to the respondents independent of the colour ~of their title? It is
, seen from the record. that the premise on which the Minister and the
Committee headed. by the Minister had proceeded to allot the lands to the
respondents and other, was the void awatct made by the LAO giving land
D to the erstwhile owners, sub-awardees or nominees, apart from compema-
tion given un'der Section 23(1): That preniise was knocked of i~ bottom in
the Radhey Shyam's case. It would be a mockery to call it a policy of the
Government, much less a.public policy.
E The Governor calls upon the leader of a political party/groups that
command majority in the Assembly to form the Government and appoints
him as Chief Minister. On tater's advice he appoints other Ministers.
Business of the Government gets allocated and is run as per business rules
framed under Article 166(3). The executive power of the State Government
p . extends over which the legislature has power to make law. The Government
runs the Executive Government of a State with the aid and advice of the
Chief Minister and the Council of Ministers which exercise the powers and
performs ·its duties by the hi.dividual Ministers as publiC officers with the
assistance of the bureaucracy working in various Departments and Cor-
porate sectors etc. Though they are expressed in the name of the Governor,
G each Minister is personally and collectively responsible for the actions, acts
and policies. They are accountable and answerable to the people. Their
powers and duties are regulated by the law and the rules. The legal and
moral responsibility or liability for the acts done or omissions, duties
performed and policy laid down rest solely on the Minister of the Depart-
H ment. Therefore, they are indictable for their conduct or omission, or
SECY.JAIPURDEV.AU1HORITYv.D.M.JAIN[KRAMASWAMY,J.] 597
misconduct or misappropriation. The Council of Ministers are jointly and A
severally responsibly to the Legislature. He/they is/are also publicly ac-
countable for the acts or conducts in the performance of duties.
The Minister- holds public office though he gets constitutional status
and performs functions under constitution, law or executive policy. The B
acts done and duties performed are public acts or duties as holder of the
public office. Therefore, he owes certain accountability for the acts done
or duties performed. In a democratic society governed by rule of law,
power is conferred on the holder of the public office or the concerned
·authority by the Constitution by virtue of appointment. The holder of the
office, therefore, gets opportunity to abuse or misuse the office. The C
politician who hblds public office must perform public duties with the sense
of purpose, and a sense of direction, under rules or sense-of priorities. The
purpose must be genuine in a free democratic society governed by the rule
of law to further socio-economic democracy. The executive Government
should frame i~s policies to maintain the social order, stability; progress D
and morality. All actions of the Government are perfor~ed through/by
indiVidual persons in collective or joint or individuii.l capacity. Therefore,
they should morally be respoflsible for their actions.
When a Government in office misuses its powers figuratively, we E
refer to lhe individual Minister/Council of Ministers who are constituents
of the Government. The Government acts through its bureaucrats,· who
shapes its social economic and 'administrative policies to further the social·
stability ~nd progress socially, economically and politically. A~tions of the
Government, should be accounted for social morality. Therefore, the ac-· F
tions of the individuals would reflect on the actions of the Government.
The actions are inten~ed to further the goals set down in the Constitution,
the laws or administrative policy. The action would, therefore, bear neces-
sary integral connection between the 'purpose' and the end obji;ct of public
welfare and not personal gain. The action cannot be divorced from that of
the individual actor. The end is something aimed at and only individuals · G
~an have and shape the aims to further the socia~ economic and political
goals. The ministerial responsibility threat comes into consider~tion. The
Minister is responsible not only for his actions but also fqr the job of the
bureaucrats who work or have work'ed under him. He owes the respon-
sibility to the electors for all his actions taken in the name of the Governor H
598 SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.
A in relation to the Department of which he is the head. If the Minister, in
fact, is responsible for all the detailed workings of his Department, then
clearly ministerial responsibility must cover a wider spectrum than mere
moral responsibility : for no minister can possibly get acquainted with all
the detailed decisions involved in the working of his Department. The
B Ministerial respon~ibility, therefore, would be that the Minister must be
prepared to answer questions in the House about the actions of his
department and the resultant enforcement of the policies. H.e owes them
moral responsibility. But for actions performed without his concurrence
also, he will be required to provide explanations and also bear respon-
C sibility for the actions of the bureaucrats who work under him. Therefore,
he bears not only moral responsibility but also in relation to all the actions
of the bureaucrats who work under him bearing actual responsibility in the
working of the Department under his ministerial responsibility.
All purposes or actions for which moral responsibility can be at-
D tached are actions performed by individual persons composing the Depart-
ment. All Government actions, ·therefore, means actions performed by
individual person to further the objectives set down in the Constitution, the
,-
·~-
laws and the administrative policies to develop democratic traditions.
Social and economic democracy are set down in the Preamble, Part III and
E Part IV of the Constitution. The intention behind the Government actions
and purposes is to further the public welfare and the national interest.
Public good is synonymous to protection of the interests of the citizens as
a territorial unit or nation as a whole. It also aims to further the public
policies. The limitations of the policies are kept along with the public
interest to prevent the exploitation or misuse or abuse of the office or the
F
executive actions for personal gain or for illegal gratification.
The so-called public policy cannot be a camouflage for abuse of the
power and trust entrusted with a public authority or public servant for the
performance of public duties. Misuse implies doing of something improper.
G The essence of impropriety is replacement of a public motive for a private
one. When satisfaction sought in the performance of duties is for mutual
personal gain, the misuse is usually termed as corruption. The' holder of a
public office is said to have misused his position when in pursuit of a
private satisfaction, as distinguished from public interest, he has done
H something which he ought not to have done. The most elementary
SECY. JAIPUR DEV. AUTHORITYv. D.M. JAIN [K RAMASWAMY, l} 599
qualification demanded of a Minister is honesty and incorruptiqility. He A·
should not only possess these qualifications but should also appear to
possess the same.
In the Encyclopedia of Democracy by Seymour Martin Lipset,' Vol.
1, page. 310, in the Chapter "Corruption", it is stated that corruption is an B
abuse of public resources for private gain. The occasions for political
corruption increases when control on the activity of public administrators
are fragile·and the division of power between political actors and the public
bureaucrats, as well as between the Government and the middle· man, is
unclear. It is difficult to. discover and punish cases of corruption. Research . C
has shown that political corruption tends to be·. more widespread in
authoritarian or totalitarian regimes and when p.ublic opinion and the press
are unable to denounce corruption. Corruption developes because of con-
fusion about the bor~ers between State and society and between traditional
· and modern values. It can be expected to grow during phases.of transition.
Corr.uption should disappear in modern st~ble democratic societies·. In- 'D
stead, it _is growing. Since State intervention in economic and social life has
increased the occasions for political corruption, new technologies have
increased the cost of electoral campaigns and the professionalisation of
political careers has increased the number of those who have to make a
living from politics rather than living for. politics. Corrup!ion has not
disappeared. Corruption has dangerous consequences for politics. Al- E
though political corruption is more widespread in non-democratic regimes,
it is particularly dangerous for democracy because it undennines two of
the major principles on which democracies are based; the equality of
citizens' rights and the transparency of the' political sfecision-making
process. Bribes open the way for access to the State for those whq are F
willing to pay and can afford the price. The situation may leave rion-corrupt •
citizens with the belief that one "counts" only if one has the right personal
contacts with those who ·hold power. Because of its ·illegal nature, corrup-
tion increases the range of public aecision that are made in secrecy: It was
suggested that internal controls on public bureaucracies through ad-
ministrative controls and accounting procedure~ as well as. ombudsman G
systems for public complaints, are remedies to control political corruption. ·
. The rules of Code of Cqnduct for political exec;utives, public servants and
private enterpreneurs, emphasising merit and regulated system of appoint-
ment in state bureaucracy and stimulating pride in public service, would
generate remedies for political corruption. H
600 SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.
A In Director of Public Prosecutions v. Holly Director of Public Prosecu-
tions v. Manners, (1977) 1 All ER 316 (House of Lords), the expression
'public body' came up for consideration. The applicability of Prevention of
Corruption Act was not restricted to. local authorities but referred to any
public body having public or statutory duties to perform and which carried
on acti.vities of public interest. In that behalf,· House of Lords, had held
B
that the Prevention of Corruption Act was not restricted to local
authorities; it was applicable to any body which has public and statutory
.duties to perform and bodies which perform those duties and carry out
their transactions for the benefit of the public and not for privat<? profit.
Accordingly, it was held that the persons who perform public functions are
C liable to prosecution for corruption. Similar views were expressed in R v.
Andrews Weatllelfoil Ltd. & Ors., (1972) 1 All ER ·65; Rother Valley Railway
Co. Ltd. v. Minist1y of Transport, ( 1972) 2 W:L.R. 1041 (Chancery Division);
Regina v. Smith, (1960) 2 W.L.R. 164 (Court of Criminal Appeal); and R
v. Br~ithwaite R v. Girdham, (1983) 2 A.II ER 87 (Criminal Division).
D
The court, therefore, would be required to consider whether the
policy sought to be relied on and directed by the Minister was to further
public good or was a means to fritter away the public property for personal
gain or to misuse public powet. The object of publication of the notification
under under Section 4(1) in the Official Gazette is to give notice to the
E owner that the land is needed for public purpose and he is prevented to ·
create any sort of encumbrance on the land with effect from that date· etc.
The land, if ultimately acquired, vests in the State under Section 16 or 17(2)
of the Act free from all encumbrances. The public policy of the Govern-
ment should only be to further the public purpose and issue of declaration
F is the conclusive proof of public purpose under Section 6(1) or any other
similar public purpose. Limited public purpose given under Section 31(3),
by operation of which, the LAO/Collector is empowered, after the sanction
is accorded by the appropriate Government, with the liberation of non
obstante clause, is to allot any oth~r land, in lieu of money compensation
only, to such persons having a limited interest in such land, either by the
G grant of some other lands in exchange or remission of land revenue on
other lands held under the same title, or in such other way as may be
equitable "having regard to the interest" of the persons having limited
interest in the land.
H In other words, the public policy under the Act is that the acquired
SECY. JAIPUR DEV. AUTIIORITYv. D.M. JAIN (K RAMASWAMY, J.] 601
land should be used only for public purpose declared under Section 6(1) A
of the Act or any other public purpose and, under no circirumstances, for
any private purpose. The limited relaxation of public power entrusted with
the LAO is to allot any other land if available to the owner with limited
interest or remission of land revenue when limited interest is acquired for
purpose. B
We may at this juncture dispose of the contention that the ratio in
Radhey Shyam's case is per incuriam. The basic postulate of the contention
is the omission to refer to Rules 31and36 of the Rajasthan Land Acquisi-
tion Rules, 1956. Rule 31 was made to guide the exercise of power of the
Collector (LAO) under Section 31(3) of the Act. As seen the Government C
has empowered the Collector to allot "any other land" in lieu of money
compensation only when the land acquired belongs to a person having
"limited interest in the land", like widow's estate or minor's estate, Mutawali
etc. In that behalf, Rule 31 amplifies the exercise of the power by the
authorised LAO. It says that "the Collector cannot force a party to take D
land in lieu of cash. Where, however, the interest of the party is so limited
as in the case of a trustee of a wakf property or a Hindu widow, as to make
it extremely difficult, if not impossible, to arrive at an adequate cash
estimate of its value or where, from the circumstances of a case, it is
impossible to place the parties concerned by cash compensation in the E
same or nearly the same position as before acquisition, sub-section (3)
enables the Collector to arrange to a~ard land (subject to the same
limitation of interest) in lieu of cash. In Radhey Shyam's case the scope of
sub-section (3) of Section 31 has been considered and explained in extenso.
Rule 31 is only to elongate the discretion which the LAO is expected to
exercise in awarding land in lieu of cash consideration and the circumstan- F
ces in which it would be done. Equally, Rule 36 deals with disposal of the
excess land acquired by the Collector for a company and imposition of the
conditions for sanction of transfer of excess land. Therefore, the absence
of reference of them does not make any dent into the principle of law laid
in Radhey Shyam's case. G
That apart, these two rules merely emphasise the limited power given
to the Government and to the LAO to impose the conditions and restric-
tions to attain the public purpose for which the land is acquired and is not
intended to fritter away public property for private purposes or gain or H
602 SUPREM!! COURT REPORTS (1996) SUPP. 6 S.C.R.
A illegal gratification.
The Rajasthan Improvement Trust (Disposal of Urban Land) Rules,
1974, were mad.e in exercise of power under Rajasthan Urban Improve-
ment Act, 1959. Therein elaborate procedure has been provided to grant
lease, restrictions thereunder, assessment of the ground rent, preparation
B of the scheme, sale or disposal of the land, reservation of the land for
residential plot or allotment of non-residential plots at concessional rates
to the specified categories, reserv~tion of non-residential lands, fixation of
the premium, reserved prices or fixed prices, assigning allotment and sale
of non-residential land, allotment of residential plots at concessional rates,
c priorities, categories, procedure, size, the procedure for recovery of cost
of the land, resale of the plot to recover for non~compliance of conditions,
allotment of land to public or charitable institutions, to institutions other
than charitable and public institutions, grant of sale deeds, etc. Allotment
to the respondents obviously was not under these Rules nor is it their case.
D
Therefore, there was no policy laid by the Government and it cannot
be laid contrary to the aforestated rules and to such power was given to
individual minister by executive action, as the land was .already notified
conclusively under Section 6(1) for public purpose, namely, earmarked
scheme. Since the persons whose land was acquired were not owners
E having limited interest therein, qua the owners having lost right title and
interest therein, the sub-awardees or nominees, after the acquisition under
Section 4(1), would acquire no title to the land nor such ultra vires acts of
the Minister would bind the Government. The actions, therefore, tilken by
the Minister-cum-Chairman bf the appellate authority and bureaucrats for
F obvious reasons would not clothe tf:i.e respondents with any vestige of right
to allotments. Acceptance of the contentions of the respondents would be ·
fraught with dangerous consequences. It would also bear poisonous seeds
to sabotage the schemes defeating the declared public purpose. The
record discloses that such ailo.tment in many a cases was in violation of the
Urban Land Ceiling Act which prohibits holding the land in excess of the
G prescribed ceiling limit of the urban lancL In some instances, person a
whose . land of 500 square yards was acquired, was compensated with
allotment of 2000 square yards and above, which is against the public policy
defeating even the Urban Land Ceiling Act. Would any responsible Mini-
ster or a bureaucrat, with a sense of public duty and responsibility, transfer
H such land to sabotage the planned development of the scheme? Answer
SECY.JAIPURDEV.AUTIIORITYv. D.M.JAIN [KRAMASWAMY,J.] 603
has obviously to be in the negative. The necessary inference is that the A
policy does not bear any insignia of a public purpose, but appears to be a
devise to get illegal gratification or distribution of public property defeating
the public purpose by misuse of public office.
There is no iota of evidence placed on record that under the so-
called policy, anyone from general public could equally apply for allotment B
of the plots or was eligible to apply for such allotment nor any such general
policy was brought to our notice. The allotment has benefitted only a
specified class, namely, the awardees, sub-awardees or nominees and none
else. The decision by the Minister or the actions of the beaurocrats was
limited to the above class which included the respondents. Legitimacy was C
given to the void acts of Chottey Lal, the erstwhile owner as well as the
LAO. Directions were given by the Minister and the bureaucrats acted to
allot the land under the very void acts. They are ultra vires the power.
These acts are in utter disregard of the statute and the rules. Therefore,
by no stretch of imagination it can be said to have the stamp of public
policy; rather it is a policy to feed corruption and to deflect the public D
purpose and to confer benefits on a specified category, as described above.
The question then is : whether the action of not delivering possession
of the land to the respondents is on par with other persons who had
possession is ultra vires act and violates Article 14 of the Constitution? We
had directed the appellants to file an affidavit explaining the actions taken E
regarding the allotment which came to be made to others. An affidavit has
been filed in that behalf by Shri Pawan Arora, Deputy Commissioner, that
allotments in respect of 47 persons were cancelled and possession was not
given. He listed various cases pending in this Court and the High Court
and executing court in respect of other cases. It is clear from the record p
that as and when any person had gone to the court to get the orders of the
LAO enforced, the appellant-authority resisted such actions taking consis-
tent stand and usually adverse orders have been subjected to decision in
various proceedings. Therefore, no blame of inaction or favouratism to
others can be laid at the door of the present set up of the appellant-
authority. When the Minister was the Chairman and had made illegal G
allotments following which possession wad delivered, no action to unsettle
any such illegal allotment could have been taken then. That apart, they
were awaiting the outcome of pending cases. It would thus be clear that
the present set up of the bureaucrats has set new standards to suspend the
claims and is trying to legalise the ultra vires actions of Minister and H
604 SUPREME COURT REPORTS [1996] SUPP. 6 S.C.R.
A predecessor bureaucrats through the process of law sd such so that illegal
and ultra vires acts are not allowed to be legitimised nor are to be per-
petuated by aid of Article 14. The apart, Article 14 has no application or
justification to legitimise an illegal and illegitimate ·action. Article 14
proceeds on the. premise that a citizen has legal and valid right enforceable ·
at law and persons having similar right and persons similarly cir-
B cumstanced, cannot be denied of the benefit thereof. Such person cannot
be discriminated to. deny the same benefit. The rational relationship and
legal back up are the foundations to invoke the doctrine of equality in case
of persons similarly situated. If some person derived benefit by illegality.
and had escaped from the clutches of law, similar persons cannot plead
C nor court can countenance ,that benefit had from infraction of law and must .
be allowed to be retained. Can one· illegality be compounded by permitting .
similar illegal or illegitimate or ultra vires acts? Answer is obviously no.
In Yadu Nandan Garg's case (supra), it was contended that one of
D the person whose land was acquired, had the benefit of exemption from
the acquisition; writ petition was filed seeking similar benefit.. When it was
contended that it was violative of Article 14, this court in paragraph 5 had
held that "a wrong exemption under wrong action taken by the authorities
will not clothe others to get the same benefit nor can Article 14 be pressed
~nto service on the ground of invidious discrimination."
E
In Coromandel Fertilizers Ltd. v. Union ofbulia and Ors., [1984] Supp
sec 457, it was held in paragraph 13, that wrong decision in favour of any
party does not entitle any other party to claim the benefit on the basis of
the wrong decision. In that case, one of the items was excluded· from the
F schedule, by wrong decision, from its purview. It was contended that
authorities could not deny benefit to the appellant, since he stood on the
same footing with excluded company. Article 14, therefore, wa:s pressed
into service. This Court had held that ·even if the grievance of the appellant
was well founded, it did not entitle the appellant to claim the benefit of
the notification. A wrong decision in favour of any particular party does
G not entitle another party to claim the benefit on the basis of the wrong
decision. Therefore, the claim for exemption on the anvil of Article 14 was
rejected.
In Chandigarh Administration & Another v. Jagjit Singh & Another,
H l1995l 1 sec 745, allotment of the sites was subject matter under several
. SECY.JAIPURDEV.AUTIIORffYv. D.M.JAIN[KRAMASWAMY,J.) 605
·proceedings in the High Court; ultimately some persons had the benefit of A
allotment while others were denied of the same. When Article 14 was
pressed into service, this Court in paragraph 8 at page 750 had held, that
the basis of the principle, if it can be called one, on which the writ petition
had been allowed to be taken, was unsustainable in law and indefensible
in principle. The mere fact that the respondent-authority had passed a B
particular order: in the case of another person similarly situated, can never
be the ground for issuing a writ in favour ·of petitioner on the plea of
discrimination. The order in favour of the other person might be legal and
valid or it might not be. That has to be investigated first before it can be
directed to be followed in the case of petitioner. If the order in favour of
the other person is found to be contrary to law or· not warranted in the C
facts and circumstances of his case, it is obvious that such illegal or
unwarranted order could not be made the basis of issuing a writ compelling
the respondent-authority to repeat the illegality to cause another unwar-
ranted order. The extraordinary and 4
discretionary power of the High Court
under Article 226 cannot be exercised for such a purpose. D
A host of other decisions in that context have laid the same principle.
It is not necessary to burden the judgment any further. Suffice to hold that
. the illegal allotment founded upon ultra 11ires and Wegal policy of a_llotment
made to· some other persons wrongly, would not form a legal premise to
ensure it to the respondent or to repeat or. perpetuate such illegal order, E
nor could it be legalised. In other words, judicial process cannot be abused
to perpetuate the illegalities. Thus considered, we hold that the High Court
was clearly in error in directing the appellants to allot the land to the
respondents.
F
It is then c<;mtended that the respondents have been deprived of right
to apply for allotment of a plot of land in this or any other scheme right
from 1970, in view of the long lapse of time and the escalation of the prices,
it would be impossible for the respondents to purchase any site. To permit \
the authorities to cancel the allotment made in favour .of the respondents
would cause great injustice. Therefore, it is not a fit case for this Court to G
interfere under Article 136.
We have given our considered thought to the fervent and persuasive
plea of Shri Sanghi. There are two aspects of the matter. The first is that
this Court has the duty to correct all obvious ultra vires or illegal exercise H
606 SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.
A of power or misuse of the same. Failure to do so send wrong signals that
the court legitimise wrong actions. There is, however, force in the conten-
tion of Shri Sanghi that if allotments would be cancelled by this Court, it
would be virtually impossible for the respondents to acquire residential
plots any where now in a city like Jaipur in view of the great increase in
prices of land in the meantime. We have r.ot been able to overlook or
B ignore this facet of the case; more so, because it may be that the respon-
dents herein had not obtained the allotments by taking recourse to any
illegal means. So, we have felt persuaded to agree with Shri Sanghi that we
may not invoke our power under Article 136 to undo the impugned order
of the High Court, even if the same be illegal, according to us.
c So, we have decided not to disturb the direction of the High Court,
as a very special case. We would, however, modify the same in two respects.
First, the respondents would be given allotment in some other scheme.
Secondly, the area of the land to be allotted would be uniform. In similar
cases, this Court has favoured uniformity as regards the area. As the plot
D would be needed for residential purpose we think an area of 250 sq. yds.
would be enough and proper. We therefore order for an allotment of plot
measuring about 250 sq. yds. to each of the two respondents in some other
scheme of the JDA. This would, however, be at the rate which was
prevailing when the allotments were first made to them. Since we laid down
E the law for the first time, we have not· interfered with the direct.ion of the
High Court but have suitably modified it. This direction, therefore, will not
be used as a precedent. .
Appeals arising out of SLP(C) Nos. 20857/93, 20936/93 an CC No.
25107/94 are disposed of accordingly. Appeals arising out of SLP(C) No.
F 2492/90, which is by Shanti Swaroop against the judgment of the High
Court in A.K. Garg and connected cases js, however, dismissed. There
would be no order at to costs.
/ v.s.s. Appeal disposed of.
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