Supreme Court of India
JAIPUR DEVELOPMENT AUTHORITY AND OTHERSversusVIJAY KUMAR DATA AND ANOTHER
- Citation
- 2011 INSC 485
- Decided
- 12 July 2011
- Bench
- G S SINGHVI
Holding
The Supreme Court held that the 6 December 2001 letter is not a valid policy order under Article 166, that post‑notification land transfers are void, and that the High Court’s regularisation order was illegal, leading to the appeals being allowed.
Summary
The Supreme Court examined the Jaipur Development Authority’s attempt to regularise illegal land allotments in the Lal Kothi Scheme, which were based on a letter dated 6 December 2001 purporting to be a government policy. The Court held that the letter was not a valid policy order under Article 166 because it was not issued in the name of the Governor and was not authenticated as required. It reaffirmed that any transfer of land acquired under the Rajasthan Land Acquisition Act after a Section 4 notification is void, and that the Land Acquisition Officer lacked jurisdiction to allot land in lieu of compensation. Consequently, the respondents could not rely on the alleged policy to claim rights over the plots, and the High Court’s regularisation order was set aside. The appeals were allowed, the impugned judgments were reversed, and the respondents were ordered to pay costs for pursuing unwarranted litigation.
Issues considered
- Whether the Division Bench of the Rajasthan High Court could entertain a new case and grant relief based on the policy letter dated 6 December 2001 when the respondents had not sought amendment of pleadings.
- Whether the letter dated 6 December 2001 constitutes a valid government policy or order under Article 166 of the Constitution.
- Whether transactions involving purchase of land after the issuance of a notification under Section 4 of the Rajasthan Land Acquisition Act, 1953 are void.
- Whether the Land Acquisition Officer had jurisdiction to direct allotment of land to awardees, sub‑awardees and their nominees.
- Whether the respondents have locus standi to challenge the auction of plots C‑113 and C‑114 in view of the nullity of prior transfers.
- Whether the High Court erred in ignoring the findings of the Appellate Tribunal and the trial court.
Legislation cited
- Code of Civil Procedure, 1908s. 144
- Constitution of Indias. Article 14, s. Article 166, s. Article 166(1), s. Article 166(2), s. Article 166(3), s. Article 22, s. Article 226, s. Article 77, s. Article 77(3)
- Jaipur Development Authority Act, 1982s. 83
- Rajasthan Improvement Trust (Disposal of Urban Land) Rules, 1974
- Rajasthan Land Acquisition Act, 1953s. 31(3), s. 31(4), s. 4, s. 6
Subjects
land acquisitionpolicy decisionnullity of transferregularisationjudicial disciplineArticle 166Supreme Court precedentcost of litigationwrit petitionexecution proceedings
Judgment
[2011) 7 S.C.R. 242
A JAIPUR DEVELOPMENT AUTHORITY AND OTHERS
v.
VIJAY KUMAR DATA AND ANOTHER
(Civil Appeal No. 7374 of 2003)
JULY 12, 2011
8
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Rajasthan Land Acquisition Act, 1953:
c ss. 4 and 6 - Acquisition of land - For planned
development of Jaipur city - Scheme popularly known as 'Lal
Kothi Scheme' - Transfers of portions of the acquired land
effected after publication of notification u/s 4 and declaration
u/s 6 - Land Acquisition Officer awarding compensation to
0 landowners and beneficiaries of illegal transfers and also
ordering allotment of plots of 1000-2000 sq. yd. to landowners,
their transferees and nominees/sub-nominees out of the
acquired land - In the instant case, transferee of the Khatear
obtaining 1500 sq. yd. land through execution proceedings,
E pursuant to the allotment order of LAO and further transfeffing
the same to respondents and others - Respondents filing
applications u/s 83 of Jaipur Development Authority Act
questioning auction of plot nos. C-113 and C-114 by the
Development Authority - Applications rejected by Appellate
Tribunal - The writ petitions filed by respondents dismissed
F by single Judge of High Court - However, Division Bench of
the High Court directing regularization of plots in their favour
- HELD: Division Bench of the High Court committed serious
error by entertaining an altogether new case set up on behalf
of the respondents (writ petitioners), who had not even prayed
G for amendment of the pleadings, and granting relief to them
by declaring that they are entitled to get benefit of the policy
of regularization contained in the letter dated 6.12.2001 - The
Division Bench could not rely upon the so-called policy
decision stated to have been taken by the Government in
H 242
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 243
VIJAY KUMAR DATA AND ANR.
flagrant violation of the judgments of the Supreme Court A
wherein it was categorically held that the transactions involving
transfer of land after the issue of notification u/s 4 were nullity
and the Land Acquisition Officer did not have the jurisdiction
to direct allotment of land to the awardeeslsub awardees, their
nominees/sub-nominees - The basics of judicial discipline B
required that the Division Bench of the High Court should
have followed the law laid down by Supreme Court in Radhey
Shyam's case and Dau/at Mal Jain's case and refused relief
to the respondents - Further, the Division Bench of the High
Court ignored the unchallenged findings recorded by the c
Tribunal and the trial court that the khatedar's transferee, from
whom the respondents (writ petitioners) had purchased the
plots, did not have valid title over the land and he had no right
to secure allotment of 1500 sq. yd. land in the 'Lal Kothi
Scheme' - The order of High .Court set aside with cost of Rs. D
5 lac to be paid by the respondents for pursuing unwarranted
litigation for the last 15 years - Cost to be deposited with
Rajasthan State Legal Services Authority - Jaipur
Development Authority Act, 1982 - s. 83 - Rajasthan
Improvement Trust (Disposal of Urban Land) Rules, 1974 -
Judicial discipline - Precedent - Constitution of India, 1950 E
- Article 226 - Writ petition - New Plea - Costs -·
Administration of Justice - Party pursuing unwarranted
litigation - Imposition of cost.
Constitution of India, 1950: F
Articles 77 and 166 - Policy decision - Connotation of
- Acquisition of land - Land Acquisition Officer awarding
compensation to land owners and beneficiaries of illegal
transfers and ordering allotment of 1000-2000 sq. yd. plots G
to landowners their transferees and nominees/sub-nominess,
out of the acquired land - Courts holding that Land Acquisition
Officer did not have jurisdiction to direct such allotment -
Recommendations made by Committee set up by Minister
of Urban Development and Housing, suggesting the H
244 SUPREME COURT REPORTS [2011] 7 S.C.R.
A methodology for allotment of land in terms of directions given
by Land Acquisition Officer -Letter dated 6.12.2001 issued
purporting to contain the policy - HELD: Unless an order is
expressed in the name of the President or the Governor, as
the case may be, and is authenticated in the manner
s prescribed by the rules, the same cannot be treated as an
order made on behalf of the Government - In the instant case,
a reading of letter dated 6.12.2001 shows that it was neither
expressed in the name of the Governor nor was it
authenticated in the manner prescribed by the Rules - That
c letter merely speaks of the discussion made by the Committee
and the decision taken by it - By no stretch of imagination
the same can be treated as a policy decision of the
Government within the meaning of Article 166 - Since the so
called policy decision contained in letter dated 6.12.2001 is
contrary to the law declared by Supreme Court, the State
0
Government and the appellant are restrained from taking any
action in future on the basis of the said letter - Administrative
Law - Policy decision.
The State Government, pursuant to the notification
E dated 13.5.1960 issued u/s 4 of the Rajasthan Land
Acquisition Act, 1953 (the 1953 Act), acquired 552 bighas
8 biswas land for planned development of Jaipur city. The
land was to be utilised by Urban Improvement Trust,
Jaipur, for construction of new building of the Legislative
F Assembly, educational institutions, stadium complex,
district shopping Centres, M.L.A. quarters etc. The
scheme came to be popularly known as 'Lal Kothi
Scheme'. Subsequent to the notification u/s 4 and
declaration u/s 6, several persons purchased the portions
G of "the acquired land from the khatedars. The Land
Acquisition Officer passed ail award dated 9.1.1964
whereby he not only determined the amount of
compensation payable to the landowners and the
beneficiaries of illegal transfers, but also directed
H
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 245
VIJAY KUMAR DATA AND ANR.
allotment of plots measuring 1000-2000 square yards to A
the owners; their transferees and nominees/sub-
nominees out of the acquired land. After the award was
passed, one 'GN', who purchased the acquired land
much after publication of notification u/s 4 and
declaration u/s 6, filed an execution application and B
succeeded in getting an order for delivery of possession
of 1500 square yards of land in the 'Lal Kothi Scheme'.
Subsequently, when large number of execution
applications were filed by the beneficiaries, the State and
the Urban Improvement Trust, Jaipur (predecessor"in- c
interest of Jaipur Development Authority) questioned the
authority of the Land Acquisition Officer to give direction
for allotment of land. The executing court partly upheld
the objection but the revisions filed by the beneficiaries
were allowed by the Division Bench of the High Court, D
holding that the legality of the award could not be
challenged in the execution proceedings.
During the pendency of litigation before different
courts, the then Minister of Urban Development and
Housing, who was also Chairman of the Trust, E
constituted a Committee for suggesting the methodology
for allotment of land in terms of the directions given by
the land Acquisition Officer. The members of the
Committee recommended that land be allotted to the
beneficiaries of illegal transactions. A circular disguised F
as policy decision was issued to this effect.
'GN' had filed a suit (Civil Suit No.270/1985) for
injunction, with the prayer that the defendant-Authority
(the appellant) be restrained from interfering with his G
possession over plot Nos.C-112 to C-115 in the Lal Kothi
Scheme. During the pendency of the suit, he transferred
the plots to the respondents and two others by registered
sale deeds, who were impleaded as plaintiff Nos. 2 to 5
to the suit. The trial court held that plaintiff No.1 ('GN') was
H
246 SUPREME COURT REPORTS [2011] 7 S.C.R.
A .not entitled to relief of injunction because. he could not
prove his ownership over the suit land. The respondents
filed applications u/s 83 of the Jaipur Development
Authority Act, 1982 questioning the notice dated
19.12.1996 issued by the appellant for auction of plot Nos.
B C-113 and C-114. The Appellate Tribunal relied upon the
judgments in Radhey Shyam's1 case and Dau/at Mal Jain's2
case and held that the respondents did not have the
locus to challenge the proposed auction because
transactions involving purchase of land by 'GN' from the
c original Khatedar and subsequent purchase of plots by
the respondents were nullity. The respondents
challenged the orders passed by the Tribunal in writ
petitions which were dismissed by the single Judge of
the High Court. However, the Division Bench of the High
D Court entertained and accepted an altogether new. case
put forward by the writ petitioners that in terms of the
policy decision taken by the State Government, which
was circulated by letter dated 6.12.2001 and order dated
9.1.2002 passed by another Division Bench in D.B. Civil
Writ Petition No.5776/2001 (suo motu) - Rajasthan High
E Court v. State of Rajasthan and others, the writ petitioners
(respondents in the instant appeals) were entitled to
regularization of the plots in question. Aggrieved, the
Jaipur Development Authority and others filed the
appeals.
F
The question for consideration before the Court
was: whether the Division Bench of the High Court could
have granted relief to the respondents by entertaining an
altogether new case set up with reference to the so called
G policy framed by the State Government for regularization
of the illegal allotments/ encroachments of the acquired
1. Jaipur Development Authority v. Radhey 1994 (2) SCR 1 = (1994) 4 SCC
370.
2. Secretaty, Jaipur Development Authority v. Dau/at Mal Jain and Others 1996
H (6) Suppl. SCR 584 = (1997) 1 sec 35.
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 247
VIJAY KUMAR DATA AND ANR.
land in the Lal Kothi and Prithviraj Nagar Schemes? A
. Allowing the appeals, the Court
HELD: 1.1. It is not in dispute that the only issue
raised. in the writ petitions filed by the respondents was
whether the Tribunal was right in dismissing the B
applications filed by them against the auction of plot Nos.
C-113 and C-114, Lal Kothi Scheme. The Tribunal had
negated the respondents' challenge on the ground that
'GN', from whom they had purchased the plots under sale
deeds dated 18.4.1993, did not have valid title. The C
Tribunal noted that 'GN' had purchased the land from its
Khatedar after publication of the notification issued u/s
4 and held that such transactions did not create any title
in his favour. The Tribunal also relied upon the judgments
of this Court in Radhey Shyam's case and Daulat Mal D
Jain's case and held that once the Supreme Court had
declared the transactions involving' purchase of the
acquired land and the direction given by the Land
Acquisition Officer for allotment of land to the awardees,
sub-awardees and their nominees/sub-nominees to be E
nullity, the transferees of such purchasers cannot claim
any right over the plots which were auctioned by the
appellant. In the opinion of the Tribunal, when the
purchase of land by 'GN' was null and void, he could not
have transferred a valid title in favour of the respondents F
so as to enable them to challenge the advertisement
issued by the appellant for auction of the two plots. The
single Judge of the High Court dismissed both the writ
petitions. [para 27] [274-8-G]
1.2. The Division Bench of the High Court committed G
serious error by entertaining an altogether new case set
up on behalf of the respondents, who had not even
prayed for amendment of the pleadings, and granted
relief to them by declaring that they are entitled to get
H
248 SUPREME COURT REPORTS [2011) 7 S.C.R.
A benefit of the policy of regularization contained in the
letter dated 6.12.2001. The recommendations made by the
Committee were given the colour of the Government's
decision (though, no material has been placed on record
to show that the recommendations made by the
B Committee were accepted by the. State Government) as
would appear from letter dated 6.12.2001 written by
Deputy Secretary (Administration), Urban Development
Department to the Secretary, Jaipur. The Division Bench
could not have rely upon the so called policy decision
c taken by the Government in flagrant violation of the two
judgments of this Court wherein it was categorically held
that the transactions involving transfer of land after the
issue of notification u/s 4 were nullity and the Land
Acquisition Officer did not have the jurisdiction to direct
allotment of land to the awardees/sub awardees, their
D nominees/sub-nominees. The basics of judicial discipline
required that the Division Bench of the High Court should
have followed the law laid down by this Court in Radhey
Shyam's case and Daulat Mal Jain's case and refused
relief to the respondents. [para 28-29) [275-A-D; 279-C-E]
E
Jaipur Development Authority v. Radhey Shyam 1994
(2) SCR 1 = (1994) 4 SCC 370; Secretary, Jaipur
Development Authority, Jaipur v. Dau/at Mal Jain and others
=
1996 (6) Suppl. SCR 584 (1997) 1 sec 35 - relied on.
F
Narpat Singh vs. Jaipur Development Authority 2002 (3)
SCR 365 = (2002) 4 SCC 666 - referred to.
1.3. Another grave error committed by the Division
Bench of the High Court is that it ignored the
G unchallenged findings recorded by the Tribunal and the
trial court that 'GN' did not have valid title over the land
and he had no right to secure allotment of 1500 sq. yds.
land ·in the Lal Kothi Scheme and that the order passed
by the executing court for delivery of possession was
H liable to be ignored in view of the law laid down in Radhey
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 249
VIJAY KUMAR DATA AND ANR.
Shyam's case and Dau/at Mal Jain's case. [para 30) [279- A
F-G]
1.4. As regards the order dated 9.1.2002 passed by
the other Division Bench of the Rajasthan High Court in
D.B. Civil Writ Petition No.5776/2001 (suo motu) titled 8
Rajasthan High Court v. State of Rajasthan, the single Judge
of the High Court suo motu took cognizance of three
different news items dated 8.12.2001, 10.12.2001 and
11.12.2001 published in the daily newspaper, a·nd the
matter was subsequently placed before the Division C
Bench which had the roster to hear such matters. In the
considered view of this Court, the single Judge was not
at all justified in suo motu taking cognizance of the
newspaper reports and the order made by him could
appropriately be termed as coram non judis. On behalf of
the State Government and the appellant, affidavits were D
filed to justify the so called policy contained in letter dated
6.12.2001. The Division Bench did take cognizance of the
fact that people having connection in the power corridors
and those who were economically affluent had illegally
taken possession of the acquired land and raised E
construction, but approved the so-called policy decision
taken by the State Government to regularize the illegal
transfers. [para 31) [279-H; 280-A-F]
1.5. The High Court had undertaken a Wholly F
unwarranted and unjustified exercise for putting the seal
of approval on the so called policy contained in letter
dated 6.12.2001 and, that too, by ignoring the law laid
down by this Court in Radhey Shyam's case and Oaulat
Mal Jain's case. What the High Court has dohe is to G
legitimize the transactions, which were declared illegal by
this Court and this was clearly impermissible. The High
Court's understanding of the so called policy framed by
the Government was clearly erroneous. The letter written
by Deputy Secretary (Administration), l!rban H
250 SUPREME COURT REPORTS [2011] 7 S.C.R.
A Development Department to the Secretary, Jaipur
Development Authority, Jaipur cannot, by any stretch of
imagination, be treated as a policy decision taken by the
State Government. No document was produced before
the High Court and none has been produced before this
B Court to show that the recommendations made by the
Committee of Ministers had been approved by the State
Government culminating in issuance of a policy circular.
[para 32) [282-F-H; 283-A-B]
C 2.1. It is trite to say that all executive actions of the
Government of India and the Government of a State are
required to be taken in the name of the President or the
Governor of the State concerned, as the case may be
[Articles 77(1) and 166(1)). Orders and other instruments
made and executed in the name of the President or the
D Governor of a State are required to be authenticated in
such manner as may be specified in rules to be made by
the President or the Governor. [Articles 77(2) and 166(2)).
Unless an order is expressed in the name of the President
or. the Governor and is authenticated in the manner
E prescribed by the rules, the same cannot be treated as
an order made on behalf of the Government. In the instant
case, a reading of letter dated 6.12.2001 shows that it was
neither expressed in the name of the Governor nor was
it authenticated in the manner prescribed by the Rules.
F That letter merely speaks of the discussion made by the
Committee and the decision taken by it. By no stretch of
imagination the same can be treated as a policy decision
of the Government within the meaning of Article 166 of
the Constitution. [para 32-33) [283-A-C; 285-C-D]
G
State of Bihar v. Kripalu Shanker 1987 ( 3 ) SCR 1 =
(1987) 3 sec 34 - relied on.
2.2. Even otherwise, the High Court should have
quashed the said policy because it was clearly contrary
H
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 251
VIJAY KUMAR DATA AND ANR.
:> the law declared by this Court in Radhey Shyam's case A
•nd Daulat Mal Jain's case and· was a crude attempt by
lhe political functionaries concerned of the State to
megalise what had already been declared illegal by this
!!tourt. [para 34] [285-E-F]
B
2.3. Since the so called policy decision contained in
metter dated 6.12.2001 is contrary to the law declared by
lhis Court, the State Government and the app'ellant are
•estrained from taking any action in future on the basis
.,f the said letter. [para 37] [286-C]
. . c
3.1. Although, prima facie the Court is satisfied that
iexecution of lease deeds by the appellant in favour of
.;ome persons in 2002 and 2003 is a clear indication of
lteep rooted malaise in the functioning of the appellant
mnd is also indicative of sheer favouritism and nepotism, D
lhis Court refrains from pronouncing upon the legality of
•hose transactions because the beneficiaries are not
10arties to these appeals. [para 35] [285-G]
3.2. The impugned judgment is set aside. The writ E
-->etitions filed by the respondents are dismissed and they
are directed to pay cost of Rs.5 lac for pursuing
-Jnwarranted litigation for last over 15 years. The amount
-:>f cost shall be deposited with the Rajasthan State Legal
:Services Authority. _The respondents shall be entitled to F
·ecover the price paid to the 'GN' along with the amount
:>f cost by availing appropriate legal remedy. [para 36]
:286-A-B]
Case Law Reference:
G
1994 (2) SCR1 relied on para 3
1996 (6) Suppl. SCR 584 relied on para 10
2002 (3) SCR 365 referred to para 11
1987 (3) SCR 1 relied on para 32 H
252 SUPREME COURT REPORTS (2011] 7 S.C.R.
A CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7374 of 2003.
From the Judgment & Order dated 29. 7.2002 of the High-
Court of Judicature for Rajasthan at Jaipur in D.B. Civil Special•
B Appeal No. 767 of 2000 in S.B. Civil Writ Petition No. 1047 of
1997.
WITH
C.A. No. 7375 of 2003.
c S.K. Bhattacharya, Niraj Bobby Paonam, Prashant Kumar,
Anurag Sharma (for Ap & J Chambers) for the Appellants.
M.L. Lahoty, Paban K. Sharma, Gargi B. Bhavali, Sukumar
Agarwal, Himanshu Shekhar, Annam D.N. Rao for the
D Respondent.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1, These appea 's filed by the Jaipur
Development Authority against judgment dated 29. 7.2002 of
E the Division Bench of the Rajasthan High Court, Jaipur Bench
are illustrative of how unscrupulous elements within the State
apparatus connived with the private individuals and succeeded
in partly frustrating one of the most ambitious schemes framed
by Urban Improvement Trust, Jaipur (for short, "the Trust")
F (predecessor of the appellant), which cqme to be popularly
known as Lal Kothi Scheme, for construction of new building
of the Legislative Assembly, educational institutions, stadium
complex, district shopping centre, MLA quarters etc.
G 2. By notification dated 13.5.1960 issued under Section
4 of the Rajasthan Land Acquisition Act, 1953 (for short, "the
1953 Act"), which was published in the official gazette dated
29.6.1960, the State Government proposed the acquisition of
552 bighas 8 biswas land of village Bhojpura and Chak
H Sudershanpura for planned development of Jaipur city. The
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 253
VIJAY KUMAR DATA AND ANR. [G.S. SINGHVI, J.]
land was to be utilised for the purpos.e mentioned in th.e A
preceding paragraph. Declaration under Section 6 was issued
on 3.5.1961 and was published in the official gazette dated
11.5.1961. Thereafter, notice dated 18. 7.1961 was issued to
the land owners (Khatedars) under Section 9(1) and (3). Initially,
65 Khatedars filed claims for compensation but this figure B
swelled to more than 137 because those who purchased land
from the Khatedars after publication of the notification issued
under Section 4 and their nominees/sub-nominees also filed
claims for compensation. The second category of persons
included Shri Ganesh Narayan Gupta, Advocate and Dr. c
Bhagwan Das Khera, both of whom managed to purchase
portions of the acquired land from one of the Khatedars, namely,
Shri Vijay Lal son of Ram Sukhji. The Land Acquisition Officer,
Jaipur passed an unusual award dated 9.1.1964 whereby he
not only determined the amount of compensation payable to the D
landowners and the beneficiaries of illegal transfers, but also
directed allotment of plots measuring 1000 to 2000 square
yards to the owners, their transferees and nominees/sub-
nominees out of the acquired land.
3. After passing of the award; Shri Ganesh Narayan Gupta E
filed execution application and succeeded in getting an order
for delivery of possession of 1500 square yards land in the Lal
Kothi Scheme. The revision filed against the order of Executing
Court was dismissed by the High Court and in that sense, the
order passed by the Executing Court became final. However, F
as will be seen hereinafter, in view of the judgment of this Court
in Jaipur Development Authority v. Radhey Shyam (1994) 4
sec 370, all such orders and judgments will be deemed to have
become nullity.
4. In the meanwhile, 12 of the awardees filed applications G
for enhancement of the compensation. District Judge, Jaipur
City, Jaipur accepted their claim. Simultaneously, he rejected
the objection raised by the State Government that the Land
Acquisition Officer did not have the jurisdiction to allot land in
lieu of or in addition to the monetary compensation. The H
254 SUPREME COURT REPORTS [2011] 7 S.C.R.
A appeals filed against the judgment of the learned District Judge
were disposed of by the High Court on the basis of compromise
arrived at between the awardees and the Trust.
5. With a view to favour those who manipulated to create
documents showing purchase of land after publication of the
8
notification issued under Section 4 and who had access to the
power corridors, the State and the Trust deliberately omitted
to challenge the direction contained in the award of the Land
Acquisition Officer for allotment of land to the land owners
(awardees), transferees (sub-awardees) and their nominees/
C sub-nominees. However when large number of execution
applications were filed by the beneficiaries, the functionaries
of the State and the Trust appear to have become alive to the
grave consequences which would have ensued by
implementing the direction given by the Land Acquisition
D Officer. Therefore, they questioned the authority of the Land
Acquisition Officer to give direction for allotment of land. The
Executing Court partly upheld the objection but the revisions
filed by the beneficiaries were allowed by the Division Bench
of the High Court, which held that the legality of the award
E cannot be challenged in the execution proceedings.
6. During the pendency of litigation before different courts,
another attempt was made by the functionaries of the State to
confer legitimacy on the illegal transactions involving purchase
F of the acquired land. The then Minister of Urban Development
of Housing, who was also Chairman of the Trust, constituted a
Committee for suggesting the methodology for allotment of land
in terms of the directions given by the Land Acquisition Officer.
The members of the Committee obliged their master i.e. the
Minister and recommended that land be allotted to the
G beneficiaries of illegal transactions at the rate of Rs.8/- per
square yard. Thereafter, a circular disguised as policy decision
was issued in 1978 for allotment of land to sub-awardees and
their nominees/sub-nominees at the rate of Rs.8/- per square
yard.
H
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 255
VIJAY KUMAR DATA AND ANR. [G.S. SINGHVI, J.]
7. In furtherance of the so called policy decision, draw of A
lots was held on 23.12.1980 for allotment of plots to the
awardees and the beneficiaries of illegal transfers of the
acquired land and those who were successful were allotted
plots. This exercise did not satisfy all and those who could not
get plots filed writ petitions questioning the draw of lots. The B
Division Bench of the High Court held that the directions given
by the Land Acquisition Officer and the Minister for allotment
of plots were ex-facie illegal and had the effect of defeating the
public purpose for which the land was acquired. Notwithstanding
this, the High Court granted relief to the writ petitioners on the c
ground of violation of the equality clause enshrined in Article
14 of the Constitution and directed that they should also be
allotted plots as per their entitlement.
8. In the meanwhile, the Lokayukta of Rajasthan made
inquiry under Section 10 of the Rajasthan Lokayukta and Up-· D
Lokayuktas Act, 1973 in the matter of illegal allotments of plots
in the Lal Kothi Scheme and submitted report dated
12.11.1992, the operative portion of which reads thus:
"In view of what has been stated above, it is prima facie E
established that Smt Kamala, the then Hon'ble Minister,
Urban Development and Housing Department,
Government of Rajasthan-cum-Chairman, JOA Jaipur, Shri
M.D. Kaurani, IAS, the then Commissioner, Jaipur
Development Authority and Shri Subhebhan Mitra, the then F J
Zonal Officer, Lal Kothi Scheme, JOA, Jaipur, have
blatantly misused their official position to favour 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. G
But Smt Kamala, the then Hon'ble Minister, Urban
Development and Housing Department-cum-Chairman,
JOA is not now a public servant as defined in Section 2(1)
of the Rajasthan Lokayukta and Up-Lokayuktas Act, 1973 ··
(for short 'the Act') because she has ceased to be a
H
.. -· .·,,
256 SUPREME COURT REPORTS [2011] 7 S.C.R.
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 Subhebhan Mitra
under Section 1 of the Act, and I order accordingly."
However, as has happened with hundreds of similar
B
reports submitted by the Lokayukta and other statutory
authorities entrusted with the task of making investigation
into the acts of favouritism, nepotism and corruption
committed by the bureaucrats and public representatives,
no tan_gible action appears to have been taken on the
c recommendations contained in report dated 12.11.1992.
9. The question whether the Land Acquisition Officer could
issue direction for allotment of land to the awardees, sub-
awardees and their nominees/sub-nominees was considered
D by this Court in Radhey Shyam's case. After noticing the
provisions of Section 31(3) and (4) of the 1953 Act on which
reliance was placed by the senior counsel appearing for the
respondents, this Court held that the Land Acquisition Officer
did not have the jurisdiction, power or authority to direct
E allotment of land to the claimants. This is clearly borne out from
the following extracts of paragraph 7 of the judgment:
"A reading of sub-section (4) of Section 31, in our
considered view, indicates that the Land Acquisition
Officer has no power or jurisdiction to give any land under
F acquisition or any other land in lieu of compensation. Sub-
section (4) though gives power to him in the matter of
payment of compensation, it does not empower him to
give any land in lieu of compensation. Sub-section (3)
expressly gives power "only to allot any other land in
G exchange". In other words the land under acquisition is not
liable to be allotted in lieu of compensation except under
Section 31(3), that too only to a person having limited
interest.
H ........... The problem could be looked at from a different
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 257
VIJAY KUMAR DATA AND ANR. [G.S. SINGHVI, J.]
angle. Under Section 4(1), the appropriate Government A
notifies a particular land needed for public purpose. On
publication of the declaration under Section 6, the extent
of the land with specified demarcation gets crystallised as
the land needed for a public purp_ose. If the enquiry under
Section 5-A was dispensed with, exercising the power B
under Section 17(1 ), the Collector on issuance of notice
under Sections 17, 9 and 10 is entitled to take possession
of the acquired land for use of public purpose. Even
otherwise on making the award and offering to pay
compensation he is empowered under Section 16 to take c
possession of the land. Such land vests in the Government
free from all encumbrances. The only power for the
Government under Section 48 is to denotify the lands
before possession is taken. Thus, in the scheme of the
Act, the Land Acquisition Officer has no power to create D
an encumbrance or right in the erstwhile owner to claim
possession of a part of the acquired land in lieu of
compensation. Such power of the Land Acquisition Officer
if is exercised would be self-defeating and subversive to
public purpose."
E
(emphasis supplied)
The Court also considered the question whether the
111ppellant could challenge the award in the execution
->roceedings and answered the same in affirmative. The F
easons for this conclusion are contained in para 8 of the
•udgment, the relevant portion of which is extracted below:
• ..... We have already said that what is executable is only
an award under Section 26(2), namely, the amount
awarded or the claims of the interests determined of the G
respective persons in the acquired lands. Therefore, the
decree cannot incorporate any matter other than the
matters determined under Section 11 or those referred to
arid determined under Section 18 and no other. Since we
have already held that the Land Acquisition Officer has H
258 SUPREME COURT REPORTS [2011) 7 S.C.R.
A no power or jurisdiction to allot land in lie·u of
compensation, the decree even, if any, under Section 18
to the extent of any recognition of the directions in the
award for the allotment of the land given under Section
11 is a nullity. It is open to the appellant to raise the
B ·invalidity, nullity of the decree in execution in that behalf.
Accordingly we hold that the execution proceedings
directing delivery of possession of the land as contained
in the award is, invalid, void and inexecutable ...... "
(emphasis supplied)
c
10. The legality and correctness of order dated 24.9.1993
passed by the Division Bench of the Rajasthan High Court in
D.B.C.S.A.W. No.680 of 1992 was considered in Secretary,
Jaipur Development Authority, Jaipur v. Dau/at Mal Jain and
D others (1997) 1 SCC 35. This Court noted that the Lokayukta
of Rajasthan had severely criticized the actions of the then
Minister of Urban Development and Housing Department,
Commissioner, Jaipur Development Authority and Zonal Officer
of Lal Kothi Scheme, referred to the Rajasthan Improvement
E Trust (Disposal of Urban Land) Rules, 1974 and held:
"Therefore, there was no policy laid by the Government
and it cannot be laid contrary to the aforestated rules and
no such power was given to individual Minister by
executive action, as the land was already notified
F conclusively under Se.ction 6(1) for public purpose,
namely, earmarked scheme. Since the persons whose
land was acquired were not owners having limited interest
therein, qua the owners having lost right, title and interest
therein, the sub-awardees or nominees, after the
G acquisition under Section 4(1 ), would acquire no title to
the land nor such ultra vires acts of the Minister would
bind the Government. The actions, therefore, taken by the
Minister-cum-Chairman of the appellate authority and
bureaucrats for obvious reasons would not clothe the
H respondents with any vestige of right to allotment.
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 259
VIJAY KUMAR DATA AND ANR. [G.S. SINGHVI, J.]
Acceptance of the contentions of the respondents would A
be fraught with dangerous consequences. It would also
bear poisonous seeds to sabotage the schemes
defeating the declared public purpose. The record
discloses that such allotment in many a case was in
violation of the Urban Land Ceiling Act which prohibits B
holding the land in excess of the prescribed ceiling limit
of the urban land. In some instances, a person 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 c
Ceiling Act. Would any responsible Minister or a·
bureaucrat, with a sense of public duty and responsibility,
transfer such land to sabotage the planned development
of the scheme? Answer has obviously to be in the negative.
The necessary inference is that the policy does not bear D
any insignia of a public purpose, but appears to be a
device to get illegal gratification or distribution of public
property defeating the public purpose by misuse of public
office." ·
(emphasis supplied} E
The Court further held that the decision taken by the
Minister and the actions of the bureaucrats were meant to
benefit only those who had illegally secured transfer of land after
the publication of the notification issued under Section 4 and F
that the so called policy is a policy to feed corruption and to
deflect the public purpose. This is evinced from para 23 of the
judgment, which is extracted below:_ .
"There is no iota of evidence placed on record that under
the so-called policy, anyone from general public could G
equally apply for allotment of the plots or was eligible to
apply for such allotment nor any such general policy was
brought to our notice. The ~llotment has benefited only a
specified class, namely, the awardees, sub-awardees or
nominees and none else. The decision by the Minister or H
260 SUPREME COURT REPORTS [2011] 7 S.C.R.
A the actions of the bureaucrats was limited to the above
class which included the respondents. Legitimacy was
given to the void acts of Chottey Lal, the erstwhile owner
as well as the LAO. Directions were given by the Minister
and the bureaucrats acted to allot the land under the very
B void acts. They are ultra vires the power. These acts are
in utter disregard of the statute and the rules. Therefore,
by no stretch of imagination it can be said to have the
stamp of public policy; rather it is a policy to feed
corruption and to deflect the public purpose and to confer
c benefits on a specified category, as described above."
(emphasis supplied)
The plea of discrimination which found favour with the High
Court was also negatived by this Court by making the following
D observations:
"The question then is whether the action of not delivering
possession of the land to the respondents on a par with
other persons who had possession is an ultra vires act and
violates Article 14 of the Constitution? We had directed
E
the appellants to file an affidavit explaining the actions
taken regarding the allotment which came to be made to
others. An affidavit has been filed in that behalf by Shri
Pawan Arora, Deputy Commissioner, that allotments in
respect of 47 persons were cancelled and possession was
F not given. He listed various cases pending in this Court
and the High Court and executing court in respect of other
cases. It is clear from the record that as and when any
person had gone to the court to get the orders of the LAO
enforced, the appellant-Authority resisted such actions
G taking consistent stand and usually adverse orders have
been subjected to decision in various proceedings.
Therefore, no blame of inaction or favouritism to others can
be.laid at the door of the present set-up of the appellant-
Authority. When the Minister was the Chairman and had
H made illegal allotments following which possession ·was
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 261
VIJAY KUMAR DATA AND ANR. [G.S. SINGHVI, J.]
delivered, no action to unsettle any such illegal allotment A
could have been taken then. That apart, they were awaiting
the outcome of pending cases. It would thus be clear that
the present set-up of the bureaucrats has set new
standards to suspend the claims and is trying to legalise
the ultra vires actions of Minister and predecessor B
bureaucrats through· the process of law so much so that
illegal and ultra vires acts are not allowed to be legitimised
nor are to be perpetuated by aid of Article 14. That apart,
Article 14 has no application or justification to legitimise
an illegal and illegitimate action. Article 14 proceeds on c
the premise that a citizen has legal and valid right
enforceable at law and persons having similar right and
persons similarly circumstanced, cannot be denied of the
benefit thereof. Such person cannot be discriminated to
deny the same benefit. The rational relationship and legal D
back-up are the foundations to invoke the doctrine of
equality in case of persons similarly situated. If some
. persons derived benefit by illegality and had escaped from
the clutches of law, similar persons cannot plead, nor the
court can countenance that benefit had from infraction of
law and must be allowed to be retained. Can one illegality E
be compounded by permitting similar illegal or illegitimate
or ultra vires acts? Answer is obviously no."
While repelling the argument made on behalf of the
respondents that the judgment in Radhey Shyam's case was F
per incuriam, this Court observed:
"The basic postulate of the contention is the omission to
refer to Rules 31 and 36 of the Rajasthan Land Acquisition
Rules, 1956. Rule 31 was made to guide the exercise of
power of the Collector (LAO) under Section 31(3) of the G
Act. As seen, the Government 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
H
262 SUPREME COURT REPORTS [2011] 7 S.C.R.
A 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
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
B 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 same or nearly the same position as
before acquisition, sub-section (3) enables the Collector
c to arrange to award land (subject to the same limitation of
interest) in lieu of cash. In Radhey Shyam 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
D
awarding land in lieu of cash consideration and the
circumstances in which it wculd 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
E absence of reference to them does not make any dent into
the principle of law laid in Radhey Shyam case."
11. In Narpat Singh v. Jaipur Development Authority
(2002) 4 SCC 666, this Court again considered whether the
F Land Acquisition Officer could direct allotment of plots
measuring 1000 to 2000 sq. yds. to the landowners and their
transferees etc. The appellants in that case were the owners
of some parcels of land acquired by the State Government.
They were also beneficiaries of the direction given by the Land
G Acquisition Officer. After disposal of the appeals filed by the
Trust against the award passed by District Judge, Jaipur City,
Narpat Singh and others filed execution application seeking
implementation of the award made by the High Court. The
appellant, who had succeeded the Trust, did not contest the
H application. Therefore, the Executing Court passed ex parte
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 263
VIJAY KUMAR DATA AND ANR. [G.S. SINGHVI, J.]
order and issued warrant of possession. The revisions filed A
against the order of the Executing Court were dismissed by the
High Court, but in the special leave petitions, this Court gave
liberty to the State Government and the appellant to raise
objections before the Executing Court with a direction to the
latter to decide the same after hearing the parties. Thereafter, B
the Executing Court reconsidered the matter and passed order
dated 1.6.1990 whereby it rejected the objections filed against
the prayer made by Narpat Singh and others for delivery of
possession of the plots. This time, the High Court allowed the
revision filed against the order of the Executing Court and C
declared that the earlier judgment, which was based on
compromise, suffered from inherent lack of jurisdiction and, as
such, the same could not be executed. In taking this view, the
High Court relied upon the judgments of this Court in Radhey
Shyam's case and Dau/at Mal Jain's case. Before this Court, D
it was argued that the law laid down in the two cases was not
applicable to the appellants' case because· the decree was
passed in their favour in terms of the compromise, but this
argument was not accepted by the Court and the appeals were
dismissed by making the following observations:
E
"Without entering into the question whether it is permissible
for the Land Acquisition Officer or the Reference Court or
the High Court hearing an appeal against an award made
by the Reference Court to record a compromise
whereunder the beneficiary of land acquisition agrees to · F
offer land in lieu of monetary compensation and whether
such a compromise would be legal and not opposed to
public policy, we are of the opinion that the facts and
circumstances of this case are enough to decline exercise
of jurisdiction by this Court under Article 136 of the G·
Constitution to the appellants. The exercise of jurisdiction
conferred by Article 136 of the Constitution on this Court
is discretionary. It does not confer a right to appeal on a
party to litigation; it only confers a discretionary power of
widest amplitude on this Court to be exercised for H
264 SUPREME COURT REPORTS (2011) 7 S.C.R.
A satisfying the demands of justice. On one hand, it is an
exceptional power to be exercised sparingly, with caution
and care and to remedy extraordinary situations or
situations occasioning gross failure of justice; on the other
hand, it is an overriding power whereunder the Court may
B generously step in to impart justice and remedy injustice.
The facts and circumstances of this case as have already
been set out do not inspire the conscience of this Court
to act in the aid of the appellants. It would, in our opinion,
meet the ends of justice, and the appellants too ought to
feel satisfied, if monetary compensation based on the
c principles for assessment thereof in land acquisition cases
is awarded and in addition they are given each a plot of
reasonable size to rehabilitate themselves so as to meet
the demands of reasonability and consistency."
D 12. We may now advert to the facts of these cases. Shri
Ganesh Narayan Gupta, who had purchased the acquired land
in 1963 i.e. much after publication of the notification issued
under Section 4 and declaration issued under Section 6, filed
suit for injunction, which came to be registered as Civil Suit
E No.629/1983 and was renumbered as Civil Suit No.270/1985
with the prayer that the defendant (appellant herein) may be
restrained from interfering with his possession over plot Nos.C-
112 to C-115, Lal Kothi Scheme. During the pendency of the
suit, Ganesh Narayan Gupta transferred the plots to
F he respondents and two others by registered sale deed
who were impleaded as plaintiff Nos. 2 to 5 vide or
er dated 19.1.2001. Shri Ganesh Narayan Gupta claimed
title over the plots on
he basis of the sale deed executed in his favour by K
G atedar - Shri Vijay Lal and subsequent allotment of plots
in his favour by the Trust. The respondents laid their
claim on the basis of registered sale deeds dated 18.4.1993
executed in their favour by Shri Ganesh Narayan Gupta.
H 13. In the written statement filed on behalf of the appellant,
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 265
VIJAY KUMAR DAtA AND ANR. [G.S. SINGHVI, J.]
it was pleaded that in view of the judgments of this Court in A
Radhey Shyam's case andDaulat Mal Jain's case, the orders
passed in favour of Shri Ganesh Narayan Gupta as also the
allotment of plots by the Trust were nullity and, as such, he did
not acquire any right over the suit land and he could not have ·
transferred the plots to the respondents. B
14. On the pleadings of the parties, the trial Court framed
the following issues:
"1. Whether the plaintiff is owner in possession over the
plot since 24.12.82. C
2. Whether the defendant out of prejudice and anger is
neither accepting the application and site plan from the
plaintiff nor is approving them.
3: Whether the defendant wants to demolish the D
construction existing on the disputed plot in an illegal
· manner without giving notice?
·4. Whether against handing over possession in execution
proceedings, appeal has been preferred and what is its E
effect on the suit.
5. Whether possession of the plaintiff is not legal
possession and he is encroacher.
6. Relief. F
Additional Issue No. 7
7. Whether the plaintiff No.1 has cased to have any interest
with the property in dispute. In place of plaintiff No.1, the G
plaintiffs Nos. 2 to 5 have got right over the disputed
property in consequence of sale of property."
15. The trial Court considered the evidence produced by
the parties, referred to the judgments of this Court in Radhey
Shyam's case and Daulat Mal Jain's case and held that plaintiff H
266 SUPREME COURT REPORT.S (2011] 7 S.C.R.
A No.1 - Shri Ganesh Narayan Gupta is not entitled to relief of
injunction because he could· not prove his ownership over the
suit land. The process of reasoning by which the trial Court
reached this conclusion is evinced from the discussion made
under issue No.1, the relevant portions of which are extracted
B below:
'The burden of proof regarding this issue lay on the
plaintiffs part. The plaintiff side was required to prove that
since 24.12.82. he has been owner in possession over the
plot in dispute. The case of the plaintiff as per plaint is that
c on 6.1.64 the Land Acquisition Officer passed a joint award
under which the land of the plaintiff No.1 was also acquired
and the plaintiff No.1 was recommended a residential plot
of 1500 square yards and compensation amount in lieu
thereof as mentioned in the award. When the defendant
D as per the award did not give plot of lal')d and
compensation to the plaintiff No.1, then he filed execution
application and over so many dates when compliance of
the award was not made, then warrant of possession was
issued from the court and the court through sale Ameen
E handed over physical possession on site by beating the
drum on 24.12.82. The plaintiff since then as per para 5
of the plaint has been in possession over the disputed plot
situated in Lal Kothi Bhojpura and Chak Sudarshanpura
Scheme. The defendant in the written statement has
F denied these facts alleging to be wrong and has stated that
under the judgment of Hon'ble Supreme Court, the Award
in respect of the disputed land has been set aside. Filing
of execution application by the plaintiff is admitted and rest
of the averment is denied.
G
The plaintiffs have not led any oral and documentary
evidence in support of their case inspite of affording
opportunity nor filed process fee for summoning the record
of Execution Case nor obtained dasti from the court. The
plaintiffs for continuously five years have not taken any
H
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 267
VIJAY KUMAR DATA AND ANR. [G.S. SINGHVI, J.]
steps for summoning the record of Execution Case inspite A
of court direction nor adduced any evidence while on the
other hand the defendant produced in evidence officer
incharge Shri Maghraj Ratnu D.W.1, who has stated in his
statement that the Land Acquisition Officer passed award
dated 9.1.64 for the land in connection with planned 8
development under the Lalkothi Scheme under which
besides cash compensation simultaneous
recommendation to allot plots of different size was made.
Many awardees were allotted plots. In this connection
various litigations were initiated in the Court. Similar award C
was passed in the year 1974. In the case of Civil Appeal
J.D.A. versus Radheyshyam and others and Secretary
J.D.A. versus Daulatmal Jain and others the Hon'ble
Supreme Court has affirmed payment of compensation to
be right and recommendation regarding allotmentof plots
is held to be illegal and void. The Land Acquisition Officer D
while passing the award for compensation was not
competent to recommend for allotment of plot of land in
lieu thereof. In this way the plaintiffs have got neither any
proprietary right nor any possession over the disputed plot
of land. The plaintiffs have concealed the facts. The plaintiff E
Ganesh Narayan has not been allotted plot of land by the
J.D.A.
The plaintiff has not cross examined the said witness
D.W.1 produced by the defendant in evidence. I have F
sought guidance from judgments in both the cited cases
namely Civil Appeal No.12370/96 Secretary J.D.A. versus
Daulatmal Jain and Civil Apepal No.4209 and 4210/09.
\ In both the judgments the Hon'ble Supreme Court has held
award in respect of allotment of plot of land by way of G
compensation under the Lalkothi Scheme to be illegal anfj_ _ _
initially null & void. The plaintiffs have not rebutted the
evidence adduced from the defendant's side nor produced
a·ny evidence. In the light of citations produced the
ownership of the plaintiff No.1 over the disputed plot since H
268 SUPREME COURT REPORTS [2011] 7 S.C.R.
A 24.12.82 is not found. For want of evidence the possession
of the plaintiff is also not proved. Consequently this issue
is decided against the plaintiff."
16. After purchasing the plots from Shri Ganesh Narayan
Gupta, the respondents filed applications under Section 83 of
8 the Jaipur Development Authority Act, 1982 (for short, "the
1982 Act") questioning notice dated 19.12.1996 issued by the
appellant for auction of the two plots. The Appellate Tribunal
constituted under the 1982 Act (hereinafter referred to as, 'the
Tribunal'), relied upon the judgments in Radhey Shyam's case
C and Dau/at Mal Jain's case and held that the respondents do
not have the locus to challenge the proposed auction because
transactions involving purchase of land by Shri Ganesh
Narayan Gupta from the original Khatedar and subsequent
purchase of plots by the respondents were nullity. Paragraphs
D 7, 9 arid 11 of order dated 22.1.1997 passed in Vijay Kumar
Data's case (identical order was passed in Daya Kish::in
Data's case), which contain the detailed reasons recorded by
the Tribunal are extracted below:
E "7. The Land Acquisition Act provides some powers and
jurisdiction in favour of the Land Acquisition Officer, but
simultaneously regarding awarding of land out of the land
acquired to the khatedar or erstwhile owner some powers
are vested about which the Hon'ble High Court in 1994(4)
S.C.C. 370 and earlier cited judgment in the case of J.D.A.
F
versus Daulatmal Jain, it is cleariy laid down that the Land
Acquisition Officer out of the acquired "land at the time of
passing the Award cannot award land by way of
consideration and if he has done so, the act of the Land
Acquisition Officer is ab initio void, illegal and ineffectual
G and on that basis no proprietary rights can accrue in
respect of that land in favour of any body and the Award
which in the shape of a decree has reached the final stage
that too cannot bestow any right upon the appellant.
because this decree is ab initio void, illegal and
H
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 269
VIJAY KUMAR DATA AND ANR. [G.S. SINGHVI, J.]
proceedings done in compliance of it and possession A
given is also illegal and irregular. The Hon'ble Supreme
Court in this judgment under citation has held the allotment
of the plot to be illegal. In view of these two cited judgments
it is clearly ensured that the Land Acquisition Officer had
no right to award land by way of consideration out of the B
acquired land and on the basis of ab initio void and illegal
act Ganesh Narayan Gupta could never acquire proprietary
right because neither Ganesh Narayan Gupta could be
owner of this acquired land nor the Land Acquisition
Officer award any basis for right of ownership to Ganesh c
Narayan Gupta. Thus on the given land no right of
ownership is accrued in favour of Ganesh Narayan Gupta
and entire subsequent proceedings done in respect of
this land is void in itself. Under the circumstances in view
of the cited judgment of Hon'b/e Supreme Court when D
Ganesh Narayan had no proprietary right, then after him
question does not arise that the subsequent owners would
have any right. Therefore the appellant also cannot have
any basis or right in respect of this land.
9. When the notification under section 4 regarding E
acquisition of this land was published on 19.6.60 and
declaration under section 6 was published in 1961, then
Ganesh Narayan had no right to purchase this land in 1963 and
after publication of this notification out of the land to be acquired
if Ganesh Narayan at all purchased any land, even then F
no right of ownership can accrue to Ganesh Narayan Gupta in
respect of this land. Thus the act of Ganesh Narayan toI
purchase this land is in contravention of rules and is void. ·
11. The act of the Land Acquisition Officer of giving plot G
of land to Ganesh Narayan out of the land acquired is ab initio
void, publication of notifications under sections 4 and 6 in 1960
and 61 and after publication of this notification purchasing of
land by Ganesh Narayan and subsequently by the appellant
from Ganesh Narayan is void, and no right is available under H
270 SUPREME COURT REPORTS [2011] 7 S.C.R.
A the circumstances to the appellant and on the basis of law laid
down in the cited judgments in 1994(4) S.C.C. 370 and in
J.D.A. versus Daulatmal Jain, the appellant has failed to
establish any of his right or basis. Therefore, this appeal of the
appellant against the respondent is not maintainable."
B
(emphasis supplied)
17. The respondents challenged the orders passed by the
Tribunal in S.B. Civil Writ Petition Nos.1047of1997 and 1046
of 1997. They pleaded that by virtue of the sale deeds executed
C by Shri Ganesh Narayan Gupta, they have become owners of
the plots and the appellant has no right to auction the same.
They relied upon Section 144 of the Code of Civil Procedure
and claimed that the appellant is duty bound to restore the land
to them because the action· taken for depriving them of the
D possession was wholly illegal.
18. In the written statement filed on behalf of the appellant,
it was pleaded that plot Nos. C-113 to C-117, Lal Kothi Scheme
were allotted to Bhagwan Das Khera i1, 1979 but, later on, the
E said allotment was cancelled. It was further pleaded that in view
of the law laid down by this Court in Radhey Shyam's case and
Dau/at Mal Jain's case, the allotment made in favour of Shri
Ganesh Narayan Gupta in compliance of the order passed by
the Executing Court has to be treated as nullity and he had no
F right to transfer the plots to the writ petitioners.
19. The learned Single Judge dismissed the writ petitions
by observing that the dispute regarding title of plot Nos.C-113
to C-114 cannot be decided under Article 226 of the
Constitution. The learned Single Judge noted that no material
G was placed before the Court to show that the two plots were
allotted either to the original Khatedar or to the writ petitioners
whereas the respondents had produced documents to prove
that the plots were allotted to one Bhagwan Das Khera and the
allotment made in his favour was also cancelled.
H
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 271
VIJAY KUMAR DATA AND ANR. [G.S. SINGHVI, J.]
20. The Division Bench of the Hig.h Court did not find any A
error in the view taken by the learned Single Judge that dispute
relating to title of the property cannot be decided under Article
226 of the Constitution of India, but entertained and accepted
an altogether new case put forward by the counsel for the writ
petitioners (the respondents herein) that in terms of the policy B
decision taken by the State Government, which was circulated
vide letter dated 6.12.2001 and order dated 9.1.2002 passed
by another Division ~ench in D.B. Civil Writ Petition No.5776/
2001 (suo motu) - Rajasthan High Court v. State of Rajasthan
and others, his clients were entitled to regularization of the plots c
in question.
21. Shri S.K. Bhattacharya, learned counsel for the
appellant assailed the impugned judgment mainly on the ground
that it runs contrary to the law laid down in Radhey Shyam's
case and Dau/at Mal Jain's case. Learned counsel submittea D
that in view of the declaration of law made in Radhey Shyam's
case that the Land Acquisition Officer did not have the
jurisdiction to allot land to the awardees, sub-awardees and
their nomine'es/sub-nominees, the so-called policy framed by
the State Government for r.egularisation of illegal allotments is E
liable to be treated as nullity and the Division Bench of the High
Court committed serious error by extending the benefit of that
policy to the respondents ignoring that Shri Ganesh Narayan
Gupta from whom they had purchased the plots did not have
title over the land and also that no such case was set up in the F
writ petition filed by them. Shri Bhattacharya then argued that
the concurrent finding recorded by the Tribunal and the trial
Court that the transaction involving purchase of land by Shri
Ganesh Narayan Gupta after publication of the notification under
Section 4 was nullity is binding on the respondents and they G
did not have the locus to take benefit of the so called policy of
regularization contained in letter dated 6.12.2001.
22. Shri M.L. Lahoty, learned counsel for respondent -
Vijay Kumar Data argued that the order passed by the
H
272 SUPREME COURT REPORTS (2011] 7 S.C.R.
A Executing Court for delivery of possession of 1500 square
yards land to Shri Ganesh Narayan Gupta will be deemed to
have become final and is binding on the appellant because
revision filed against that order was dismissed by the High
Court and it is not open for the appellant to indirectly question
B the allotment of plot Nos. C-113 to C-117 to Shri Ganesh
Narayan Gupta. Shri Lahoty submitted that in compliance of the
direction given by the Executing Court, the concerned authority
had delivered possession .of the plots to Shri Ganesh Narayan
Gupta and being bonafide purchasers, the respondents are
C entitled to seek protection of their possession. He then argued
that the policy contained in circular dated 6.12.2001 is based
on the decision taken by the Cabinet Sub-Committee and the
Division Bench of the High Court did not commit any error by
directing regularisation of the allotment of plot Nos.C-113 to C-
114 in favour of the respondents by relying upon order dated
D 9.1.2002 passed by the coordinate Bench in D.B. Civil Writ
Petition No.5776 of 2001 (Suo Motu). Shri Lahoty pointed out
that in furtherance of the policy decision taken by the State
Government, the appellant has executed lease deeds in favour
of large number of persons who had been benefited by the
E direction contained in the award passed by the Land
Acquisition Officer and argued that the appellant cannot adopt
different yardsticks while dealing with similarly situated persons.
23. In furtherance of the liberty given by the Court on
F 31.3.2011, Shri M.L. Lahoty filed written arguments on 7.4.2011
enclosing therewith documents marked as Annexures 'A' to 'E'.
Of these, Annexure 'A' is xerox copy of order dated 20.11.1987
passed by Civil Judge, Jaipur City, Jaipur whereby he
dismissed an application filed by Dr. Bhagwan Das Khera
under Section 47 read with Order XXI Rules 97 and 99 of the
G Code of Civil Procedure, 1908. Annexure 'B' is the copy of sale
deed dated 18.4.1993 executed by Shri Ganesh Narayan
Gupta in favour of respondent-Vijay Kumar Data. Annexure 'C'
is the copy of order dated 30.10.2001 by which a Committee
consisting of Minister of Urban Development, Home Minister,
H Finance Minister, Industries Minister, State Minister for Mines--
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 273
VIJAY KUMAR DATA AND ANR. [G.S. SINGHVI, J.]
was constituted for solving the problems pertaining to A
regularisation of illegal construction and encroachment of land
in the Lal Kothiand Prithviraj Nagar Schemes. Annexure 'D' is
xerox copy of order dated 9.1.2002 passed by the Division
Bench of the High Court in D.B. Civil Writ Petition No.5776 of
2001 {Suo Motu). Annexure 'E' is a bunch of lease deeds dated B
1.1.2003, 24.8.2002 and 16.8.2002 executed by the appellant
in favour of different persons in respect of different plots of land
situated in the Lal Kothi Scheme.
24. Shri A.D.N. ·Rao, learned counsel for Smt. Sunita
Agarwal, whose application for impleadment was allowed on C
31.3.2011, argued that the direction given by the Division
Bench of the High Court should be set aside because plot
No.C-114, Lal Kothi Scheme was purchased by his client in the
auction held by the appellant on 26.12.1996. Shri Rao pointed
out that possession letter was issued in favour of his client on .D
17.6.2000 and registered sale deed was executed on
21.6.2000. Similar prayer has been made on behalf of Shri
D.S. Bhandari and two others, who also filed impleadment
application being I.A. No.3/2008. In that application, it has been
averred that the applicants were successful in the auction held E
by the appellant on 19.6.2000 in respect of plot No.C-113, Lal
Kothi Scheme and after deposit of the entire money, the
appellant executed sale deed dated 7.4.2005 and delivered
possession on 13.5.2005. It has been further averred that after
getting necessary approval from the appellant on 23.1.2007, F
the applicants have constructed house on the plot and occupied
a portion thereof and leased out another portion to one Mr. Vijay
Sharma.
25. We have considered the respective arguments and
submissions and carefully scanned the records. We have also G
gone through the written arguments furnished by learned
counsel for respondent - Vijay Kumar Data.
26. The first question which needs consideration is whether
the Division Bench of the High Court could have granted relief H
274 SUPREME COURT REPORTS [2011) 7 S.C.R.
A to the respondents by entertaining an altogether new case set
up by their counsel with reference to the so called policy framed
by the State Government for regularization of the illegal
allotments I encroachments of the acquired land in the Lal Kothi
and Prithviraj Nagar Schemes.
8 27. It is not in dispute that the only issue raised in the writ
· petitions filed by the respondents was whether the Tribunal was
right in dismissing the applications filed by them against the
auction of plot Nos. C-113 and C-114, Lal Kothi Scheme. The
Tribunal had negated the respondents' challenge on the ground
C that Shri Ganesh Narayan Gupta from whom they had
purchased the plots vide sale deeds dated 18.4.1993 did not
have valid title. The Tribunal noted that Shri Ganesh Narayan
Gupta had purchased land from its Khatedar Shri Vijay Lal son
of Shri Ram Sukhji after publication of the notification issued
D under Section 4 and held that such transactions did not create
any title in his favour. The Tribunal also relied upon the
judgments of this Court in Radhey Shyam's case and Daulat
Mal Jain's case and held that once the Supreme Court had
declared the transactions involving purchase of the acquired
E land and the direction given by the Land Acquisition Officer for
allotment of land to the awardees, sub-awardees and their
nominees/sub-nominees to be nullity, the transferees of such
purchasers cannot claim any right over the plots which were
auctioned by the appellant. In the opinion ofthe Tribunal, when
F the purchase of land by Shri Ganesh Narayan Gupta was null
and void, he could not have transferred a valid title in favour of
the respondents so as to enable them to challenge the
advertisement issued by the appellant for auction of the two
plots. The learned Single Judge dismissed both the writ
G petitions pri"'1arily on the ground that the disputes questions of
fact relating to title of the plots cannot be determined under
Article 226 of the Constitution and the writ petitioners are free
to avail any other alternative remedy for detemiination of their
rights.
H 28. What is most significant is that till the disposal of the
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 275
VIJAY KUMAR DATA AND ANR. [G.S. SINGHVI, J.]
writ petitions by the learned Single Judge, the seeds of the so A
called policy decision, which was allegedly circulated vide letter
dated 6.12.2001 had not even been sown. A reading of
Annexure 'C', which forms part of the written arguments filed
by Shri M.L. Lahoty, learned counsel for respondent - Vijay
Kumar Data, shows that the Committee of Ministers was 8
formed vide order dated 30.10.2001 to suggest solution of the.
problems in the regularization of illegal constructions/
encroachments of land under the Lal Kothi and Prithviraj Nagar
Schemes in relation to which several cases were pending in
different Courts. The recommendations made by the C
Committee were. given the colour of the Government's decision
(though, no material has been placed on record to show that
the recommendations made by the Committee were accepted
by the State Government) as would appear from letter dated
6.12.2001 written by Deputy Secretary (Administration), Urban D
Development Department to the Secretary, Jaipur
Development Authority, Jaipur. That letter reads as under:
"GOVERNMEN OF RAJASTHAN
URBAN DEVELOPMENT DEPARTMENT
E
No.F.3(32)UDD/3/2001 Jaipur Dated: Dec. ,2001
6 DEC 200~
The Secretary,
Jaipur Development Authority,
Jaipur. F
Subject: Regarding regularization of illegal construction
/encroachment under Lal Kothi Scheme.
Sir,
In the above context it is stated that under the Ministerial G
Secretariat Order No.F. 4(1)M.M./99 dated 30th October,
2001 for the solution of problems arising from
comp1 ications of regularization of illegal construction/
encroachments under Lal Kothi and Prithviraj Nagar
H
276 SUPREME COURT REPORTS [2011) 7 S.C.R.
A Schemes, a sub committee was constituted. This Sub
Committee comprised of Minister, Urban Development as
convenor and Home Minister, Finance Minister, Minister
for Industries and State Minister for minerals were
nominated its members and Secretary Administration,
B Urban Development Department was nominated as
member secretary of this sub committee.
The Committee discussed in detail over various aspects
of Lal Kothi Scheme and after taking into consideration the
entire facts unanimously took the following decision:
c
1. As per the awards pronounced so far under the Lal Kothi
Scheme, whatever amount is due for payment to the
awardees, that may be paid to the concerned cultivators.
2. The awardees who besides compensation amount
D
could not be allotted plot of land or after allotment were
cancelled, may now be ailotted per awardee a plot
measuring 250 square yards in other schemes of J.D.A.
Such plot be awarded at rate of 25 percent of the prevalent
residential reserved rate under the scheme.
E
3. The developed and vacant plots be regularized in the
similar manner. These may be regularized at the following
rates:
A) up to 200 sq.yards 25 percent of the reserved
F
residential rate.
B) More than 200 sq. yards 35 percent of the reserved
residential rate
G 4. In the remaining cases of worth regularizing plots of
Everest and Salt colonies (which are about 80 plots) which
could not be regularized inspite of decision of 1976, the
rate of regularization is fixed at 25 percent of the reserved
residential rate.
H
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 277
VIJAY KUMAR DATA AND ANR. [G.S. SINGHVI, J.]
5. In connection with regularization of the plots the amount A
on the basis of self-assessment be asked to be deposited
by 28.2.2002.
6. Those who fail to get regularisation within stipulated
time limit, it is decided to afford them opportunity of B
depositing the amount by 31.3.2002 with 5 per cent,
additional amount to obtain regularization. After expiry of
the said date, it is decided that no regularization be done
. and after notice to such occupants over the plots their
construction shall be demolished and such plot's shall then C
vest in the Authority and for the purpose of rehaoi1 itation
they shall be allotted as residential plots under other
schemes of Jaipur Development Authority.
7. The plots which are not regularized under this order, they
be finally refused and their list be published in the news D
paper, and possession on the site if any, be removed.
8. The awardees/sub awardees whose allotments have not
yet been cancelled, but they have construction on site of
their plots, it is decided that their earlier allotment be E
cancelled and treating the plot as acquired, on the basis
of possession, be regularized under this order. It is
decided to adjust the amount deposited earlier. On interest
shall be chargeable on this amount.
9. In the cases wherein litigation is pending in courts, in F
connection with them it is decided to follow action as
under:
(a) Such of the vacant plots where there is stay order
from the court or any adverse order etc. in force and G
which. have been taken over in possession by the
Jaipur Development Authority as per rules, it is
decided to sell them through auction. It is decided
to draw a list or such plots.
H
278 SUPREME COURT REPORTS (2011] 7 S.C.R.
A (b) In cases of acquired or under acquisition and I
plot of land/constructed building which is under
effect of any order or stay order from the court, in
connection with them it is decided to follow action
as under:
B
Where in connection with acquired or under
acquisition land/plot of land/constructed building stay order/
order for status quo is issued in favour of cultivator, it is
decided to follow regularization proceeding in favour of
such cultivator treating the land/ plot of land/ constructed
c building in his favour. If the order/ stay order/ order for
status quo is in favour of J.D.A. then treating the concerned
ploVland to be of J.D.A. it is decided to follow further taken
and such ploVland is decided not to be regularized. On the
contrary if such orders are in favour of other person and
D he is in possession, and he withdraws the case from the
court, then regu1arization of that ploVland be done in his
favour. In cases of plots where J.D.A. has gone in appeal
and no decision is taken by the court in favour of the
Authority then honouring the judgment of the court below,
E case shall be withdrawn by the J.D.A. the ploV land/
constructed building is decided to be regularised in favour
of concerned person. In such cases the basis of
regularization will be physical possession. In connection
with regularization on above basis, the Samjhota Samiti
F will review each and every case and give its decision which
shall he binding on J.D.A.
10. In connection with land under acquisition, land of 9
bigha 6 biswa of Pratap Nursary, 5 bigha of Anand
G Nursary, 2 bigha 12 biswa of Kailashwati, Maharchand &
Sons is decided not to acquire. Simultaneously it is
decided to regularize on payment of 25 percent of
reserved residential rate of these land.
No decision was taken in connection with land of Amrudon
H
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 279
VIJAY KUMAR DATA AND ANR. [G.S. SINGHVI, J.]
Ka Bagh. It is thought proper to take any action after A
decision from Delhi High Court.
Yours faithfully,
Sd/- 6.12.01
(H.S. Bhardwaj)
Dy. Secretary Administration" B
29. In our view, the Division Bench of the High Court
committed serious error by entertaining an altogether new case
set up on behalf of the respondents, who had not even prayed
for amendment of the pleadings and granted relief to them by
declaring that they are entitled to get bene.fit of the policy of C
regularization contained in letter dated 6.12.2001. It is difficult,
if not impossible, to comprehend as to how the Division Bench
could rely upon the so called policy decision taken by the
Government in flagrant violation of the two judgments of this
Court wherein it was categorically held that the transactions D
involving transfer of land after the issue of notification under
Section 4 were nullity and the Land Acquisition Officer did not
have the jurisdiction to direct allotment of land to the awardees/
sub awardees, their nominees/sub-nominees. The basics of
judicial discipline required that the Division Bench of the High E
Court should have followed the law laid down by this Court in
Radhey Shyam's case and Dau/at Mal Jain's case and
refused relief to the respondents.
30. Another grave error committed by the Division Bench F
of the High Court is that it ignored the unchallenged findings
recorded by the Tribunal and the trial Court that the transferor
of the respondents, namely, Shri Ganesh Narayan Gupta did
not have valid title over the land and he had no right to secure
allotment of 1500 sq. yds. land in the Lal Kothi Scheme and G
that the order passed by the Executing Court for delivery of
possession was liable to be ignored in view of the law laid down
in Radhey Shyam's case and Dau/at Mal Jain's case.
31. At this juncture, we may notice order dated 9.1.2002
passed by the Division Bench of the Rajasthan High Court in H
280 SUPREME COURT REPORTS [2011] 7 S.C.R.
A D.B. Civil Writ Petition No.5776/2001 (Suo Motu) titled.
Rajasthan High Court v. State of Rajasthan and others. The
preface of that order shows that a learned Single Judge of the
High Court had suo motu taken cognizance of three different
news items dated 8.12.2001, 10.12.2001 and 11.12.2001
B published in the daily newspaper - Rajasthan Patrika, Jaipur
edition. The first news item highlighted the grievance of one lali
Devi against the cons~ruction of road through her land. The
second news item related to regularization of the Lal Kothi
Scheme and the third news item related to the alleged
c irregularities committed in the construction of high rise
buildings. When the matter was listed before the Bench, which
had the roster to hear such matters, it was felt that the issue
raised in the order passed by the learned Sini:ile Judge who,
in our considered opinion, was not at all justified in suo motu
taking cognizance of the newspaper reports and the order
0
made by him could appropriately be termed as coram non
judis, directed that the matter be placed before the Division
Bench. On behalf of the State Government and the appellant,
affidavits were filed to justify the so called policy contained in
letter dated 6.12.2001. 15 villagers of village Herver and some
E residents of Everest Colony, Lal Kothi also appeared before
the Division Bench through their advocates. While dealing with
the second news item, the Division Bench did take cognizance
of the fact that people having connection in the power corridors
and those who were economically affluent had illegally taken
F possession of the acquired land and raised construction, but
approved the so called policy decision taken by the State
Government to regularize the illegal transfers. The reasons
recorded by the Division Bench of the High Court for adopting
this course are extracted below:
G
"The second item with regard to the regularisation of Lal
Kothi Scheme is concerned, declaration has been taken
as a part of the policy by the Government and there is
ample authority of law to support the contention that such
policy decisions cannot be made the subject matter of the
H
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 281
VIJAY KUMAR DATA AND ANR. [G.S. SINGHVI, J.]
judicial review. No doubt in the cases where any policy A
decision is taken for any reasons which are against the
public interest, the judicial review is possibl~. but in case
of this nature, 'it cannot be said in the facts and
circumstances of this case which have been established
before us with support of documents Including B
documentary evidence of contemporaneous nature that
public interest has not suffered in any manner by the
decision of regu1 arisation. To bring an end to a 40 years
prolonged agony of litigation without any avail to the State,
realising the ground realities that demolition of hundreds c
of constructed houses of the members of public belonging
to middle/lower middle class is a tough task coupled with
other considerations which are germane, if the popular
(elected) Government has taken a policy decision in tune
with the pulse of masses, it is difficult for this Court to say D
that it is contrary to public interest. Public interest litigation
is of-course meant to protect the rights and to take care
of the problems of those who cannot take care of
thehiselves in want of awareness of their own rights or to
espouse a common cause and in such cases, the
E
cognizance can certainly be taken by the Court even by
way of suo-motu action in a given case on the basis of the
news item or otherwise, but the public interest is neither
an unbridled nor an unruly horse, which can enter any arena
in an aimless race. In view of the reply public interest is
transparent in the State action and we are satisfied and . F
convinced that had there been a correct and complete
disclosure of full facts perhaps the cognizance may not
have been taken by the Court suo-motu. Be that as it may,
now that the full facts have come on record and we have
neard all the parties which are present, we have no G
hesitation in holding that in the instant case, there is no
scope of any judicial review and to sit over the wisdom of
the state functionaries and therefore, no interference is
warranted by this Court with the decision which has been
taken by the Government, as a part of public policy. In H
282 SUPREME COURT REPORTS [2011] 7 S.C.R.
A larger public interest even if the Government has to pay a
little price, it is a small price in deed, which has to be paid,
if at all we want the object of a welfare State to prevail.
It may also be observed in all fairness to the State that
B after the suo-motu action had been taken by this Court and
the notices had been issued, the Government has shown
due regard for Court's cognizance by, staying its own order
as it is stated before us that the State Government
honoured the pendency of the matter in Court by directing
the J.D.A. vide order dated 31st December, 2001 not to
c act upon the decision dated 6th December, 2001 and not
to proceed further with the process of regu1arisation and
has directed the J.D.A. to produce all the relevant records
before the Court. It is, therefore, clear that the decision as
had been taken on 6th December, 2001 had been stayed
D by the Government itself, showing due regard for the action
initiated by the Court. Having heard all the parties, we find
that the policy decision hardly warrants any interference by
this Court. The Government and all concerned are free to
proceed on the basis of the order dated 6th December,
E 2001 as had been passed by the Government."
32. In our opinion, the High Court had undertaken a wholly
unwarranted and unjustified exercise for putting the seal of
approval on the so called policy contained in letter dated
F 6.12.2001 and, that too, by ignoring the law laid down by this
Court in Radhey Shyam's case and Dau/at Mal Jain's case.
What the High Court has done is to legitimised the transactions,
which were declared illegal by this Court and this was clearly
impermissible. The High Court's understanding of the so called
G policy framed by the Government was clearly erroneous. The
letter written by Deputy Secretary (Administration), Urban
Development Department to the Secretary, Jaipur
Development Authority, Jaipur cannot, by any stretch of
imagination, be treated as a policy decision taken by the State
H Government. No document was produced before the High
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 283
VIJAY KUMAR DATA AND ANR. [G.S. SINGHVI, J.]
Court and none has been produced before us to show that the A
recommendations made.by the Committee of Ministers had
been approved by the State Government culminating in
issuance of a policy circular. It is trite to say that all executive
.actions of the Government of India and the Government of a
State are required to be taken in the name of the President or B
the Governor of the State concerned, as the case may be
[Articles 77(1) and 166(1)]. Orders and other instruments made
and executed in the name of the President or the Governor of
a State, as the case may be, are required to be authenticated
in such manner as may be specified in rules to be made by c
the President or the Governor, as the case may be [Articles
77(2) and 166(2)]. Article 77(3) lays down that:
"The President shall make rules for the more convenient
transaction of the business of the Government of India, and
for the allocation arnong Ministers of the said business." D
Likewise, Article 166(3) lays down that:
"The Governor shall make rules for the more convenient
transaction of the business of the Government of the State,
E
and for the allocation among Ministers of the said business
insofar as it is not business with respect to which the
Governor is by or under this Constitution required to act
in his discretion."
Article 166 was interpreted in State of Bihar v. Kripa/u F
Shankar (1987) 3 sec 34 and it was observed:
"Now, the functioning of Government in a State is governed
by Article 166 of the Constitution, which lays down that
there shall be a Council of Ministers with the Chief Minister G
at the head, to aid and advise the Governor in the exercise
of his functions except where he is required to exercise
his functions under the Constitution, in his discretion. Article
166 provides for the conduct of government business. It
is useful to quote this article:
H
284 SUPREME COURT REPORTS [2011] 7 S.C.R.
A '166. Conduct of business of the Government of a
State.-(1) All executive action of the Government
of a State shall be expressed to be taken in the
name of the Governor.
(2) Orders and other instruments made and
B
executed in the name· of the Governor shall be
authenticated in such manner as may be specified
in rules to be made by the Governor, and the validity
of an order or instrument which is so authenticated
shall not be called in question on the ground that it
c is not an order or instrument made or executed by
the Governor.
(3) The Governor shall make rules for the more
convenient transaction of the business of the
D Government of the State, and for the allocation
among Ministers of the said business insofar as it
is not business with respect to which the Governor
is by or under this Constitution reluired to act in his
discretion.'
E
Article 166(1) requires that all executive action of the State
Government shall be expressed to be taken in the name
of the Governor. This clause relates to cases where the
executive action has to be expressed in the shape of a
formal order or notification. It prescribes the mode in which
F an executive action has to be expressed. Noting by an
official in the departmental file will not, therefore, come
within this article nor even noting by a Minister. Every
executive decision need not be as laid down under Article
166(1) but when it takes the form of an order it has to
G comply with Article 166(1). Article 166(2) states that orders
and other instruments made and executed under Article
166(1), shall be authenticated in the manner prescribed.
While clause (1) relates to the mode of expression, clause
(2) lays down the manner in which the order is to be
H
JAIPUR DEVELOPMENT AUTHORITY AND ORS. v. 285
VIJAY KUMAR DATA AND ANR. [G.S. SINGHVI, J.)
authenticated and clause (3) relates to the making of the A
rules by the Governor for the more convenient transaction
of the business of the Government. A study of this article,
therefore, makes it clear that the notings in a file get
culminated into an order affecting right of parties only when
it reaches the head of the department and is expressed B
in the name of the Governor, authenticated in the manner
provided in Article 166(2)."
33. It is thus clear that unless an order is expressed in the
name of the President or the Governor and is authenticated in
the manner prescribed by the rules, the same cannot be treated C
as an order made on behalf of the Government. A reading of
letter dated 6.12.2001 shows that it was neither expressed in
the name of the Gover.nor nor it was authenticated manner
prescribed by the Rules. That letter merely speaks of the
discussion made by the Committee and the decision taken by D
it. By no stretch of imagination the same can be treated as a
policy decision of the Government within the meaning of Article
166 of the Constitution.
34. We are further of the view that even if the instructions E
contained in letter dated 6.12.2001 could be treated as policy
decision of the Government, the High Court should have
quashed the same because the said policy was clearly contrary
to the law declared by this Court in Radhey Shyam's case and
Dau/at Mal Jain's case and was a crude attempt by the .F
concerned political functionaries of the State to legalise what
had already-been declared illegal by this Court.
35. Although, Wf3 are prima facie satisfied that execution
of lease deeds by the appellant in favour of some persons in
2002 and 2003 is a clear indication of deep rooted malaise in G
the functioning of the appellant and is also indicative of sheer
favouritism and nepotism, we refrain from pronouncing upon the
legality of those transactions because the beneficiaries are not
parties to these appeals.
H
286 SUPREME COURT REPORTS [2011] 7 S.C.R.
A 36. In the result, the appeals are allowed. The impugned
judgment is set aside. The writ petitions filed by Vijay Kumar
Data and Daya Kishan Data are dismissed and they are
directed t<;> pay cost of Rs.5 lacs for pursuing unwarranted
litigation for last over 15 years. The amount of cost shall be
B deposited with the Rajasthan State Legal Services Authority
within a period of two months. The respondents shall be entitled
to recover the price paid to Shri Ganesh Narayan Gupta along
with the amount of cost by availing appropriate legal remedy.
37. Since we have found that the so called policy decision
C contained in letter dated 6.12.2001 is contrary to the law
declared by this. Court, the State Government and the appellant
are restrained from taking any action In future on the basis of
the said letter.
D R.P. Appeals allowed.
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