Supreme Court of India
RAJASTHAN HOUSING BOARDversusNEW PINK CITY NIRMAN SAHKARI SAMITI LTD. & ANR.
- Citation
- 2015 INSC 375
- Decided
- 1 May 2015
- Disposal
- Disposed off
- Bench
- H L DATTU
Holding
The sale to the Society is void under section 42 of the Rajasthan Tenancy Act, so the Society has no right to compensation; the reference is not time‑barred, and the High Court’s direction to allot 25% of the developed land is set aside.
Summary
The Rajasthan Housing Board and the original Khatedars appealed against a Division Bench order that granted the New Pink City Nirman Sahkari Samiti Ltd. (the Society) a right to compensation and 25% of the developed land after the State acquired the land under the Rajasthan Land Acquisition Act, 1953. The Court held that the agreements of sale between the Scheduled‑Caste Khatedars and the Society were void ab initio under section 42 of the Rajasthan Tenancy Act, 1955, and therefore the Society could not claim any compensation. The reference filed by the Society under section 18 of the Land Acquisition Act was not time‑barred because the Society had constructive notice of the award. The High Court’s direction to allot 25% of the developed land under the 2005 circular was held ultra vires and set aside. The compensation of Rs 100 per square yard determined by the Single Bench of the High Court was affirmed. The appeals of the Rajasthan Housing Board and the Khatedars were allowed, the remaining appeals dismissed, and the compensation to be paid directly to the Khatedars.
Issues considered
- The reference under section 18 of the Rajasthan Land Acquisition Act filed by the Society – whether it is barred by limitation.
- Whether the sale of land by Scheduled‑Caste Khatedars to a juristic person (the Society) is void under section 42 of the Rajasthan Tenancy Act, 1955.
- Whether the Society is entitled to claim compensation for the acquired land.
- Whether the High Court’s direction to allot 25% of the developed land to the Society under the 2005 circular is legally valid.
- The appropriate quantum of compensation for the acquired land.
Legislation cited
- Constitution of Indias. 300A, s. 341, s. 342
- Rajasthan Land Acquisition Act, 1953s. 12(2), s. 18(2), s. 26(2), s. 31(3), s. 31(4), s. 4
- Rajasthan Tenancy Act, 1955s. 175, s. 42
- Transfer of Property Act, 1882s. 53A
Subjects
land acquisitionscheduled castevoid transactioncompensationlimitation periodconstructive noticecircularallotment of developed landRajasthan Tenancy ActRajasthan Land Acquisition Act
Judgment
(2015) 5 S.C.R. 365
RAJASTHAN HOUSING BOARD A
v.
NEW PINK CITY NIRMAN SAHKARI SAMITI LTD. &ANR.
Civil Appeal Nos.1527-1536 of 2013 B
MAY 1, 2015
[H.L. DATTU, CJI, A.K. SIKRI AND ARUN MISHRA, JJ.]
Rajasthan Land Acquisition Act, 1953 - s. 4 -
c
Acquisition of Land - Of the Khatedars who belonged to
Scheduled Caste - Objection to acquisition by Housing
Society claiming to have entered into agreement for sale with
the Khatedars in respect of the land in question - Objection D
rejected-Award in favour of the Khatedars- Thereafter the
Society filed suit against the Khatedars for specific
performance of the agreement of sale and obtained decree
in its favour- Reference u/s. 18 by a Khatedar as well as the
Housing Society - Civil Court answered the reference E
determining the compensation@ Rs. 260 per sq. yd. - Single
Judge of High Court reduced the compensation to Rs. 1001-
per sq. yd. - Order of Single Judge affirmed by Division
Bench of High Court- In addition, Division Bench relying on
Notification dated 27-10-2005 directed grant of 25% of the F
developed land to .the Housing Society - On appeal, held:
The sale in favour of the Society (a juristic person) by the
Khatedars, being not permissible uls. 42 of Rajasthan
Tenancy Act was void ab initio - Decree obtained on the basis G
of the agreement was violative of the mandate of s. 42 of the
Tenancy Act and thus was a nullity- Therefore, the Housing
Society was not entitled to compensation - The khatedars
alone were the rightful claimants - Failure on the part of the
H
365
366 SUPREME COURT REPORTS [2015] 5 S.C.R.
A Khatedars to take recourse to provisions of s. 175 of the
Tenancy Act is inconsequential in the facts of the present
case - The circular dated 27-10-2005 did not confer any right
eithe~r on the Society or the Khatedars to claim the developed
land as the same is not applicable in the present case - The
B determination of compensation @ Rs 1001- per sq. yd. is
justified - Rajasthan Tenancy Act, 1955 - ss. 42 and 175 -
Notification dated 27-10-2005- Constitution of India, 1950
-Art. 341and342.
C Limitation -Award under Land Acquisition Act passed
in the year 1982 - Reference uls. 18 of the Act made in the
year 1989- By the society claiming itself to be the purchaser
of the land - Whether such reference barred by limitation -
Held: In view of the conjoint reading of s. 12(2) and 18(2) of
0
the Act, the reference was not time barred- Rajasthan Land
Acquisition Act, 1953- ss. 12(2) and 18(2).
Words and Phrases- 'Constructive notice' - Meaning
of- Discussed.
E
Disposing of the appeal, the Court
HELD: 1.1 Section 12(2) of the Rajasthan Land
Acquisition Act, 1953, requires immediate notice to be
F given of the award to such of the persons in~erested as
are not present personally or by their representative/s
when the award is made. Section 18(2) of the Act of 1953
requires to file the objections within six weeks from the
date of the award if the person or the representative was
G present when the award was made. In other cases,
within six weeks of the receipt of notice from the Collector
under section 12(2) or within six months from the date
of the award whichever period shall first expire. In the
H instant case, notice under section 12(2) was issued to
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 367
NIRMAN SAHKARI SAMITI LTD.
the Society by the Special Officer on 31.12.1988, treating A
the Society as 'person interested' and informing that an
award had been passed on 30.11.1982. [Para 13 and 14]
[382-C-F]
1.2 In the instant case, it is apparent that the B
Housing Society had preferred objections and was
aware of the land acquisition process and determination
of compensation and has filed objections which stood
rejected on 4.9.1982. Thus, the constructive knowledge
of the award is fairly attributable to it when it was so C
passed. Constructive notice in legal fiction signifies that
the individual person should know as a reasonable
person would have. Even if they have no actual
knowledge of it. Constructive notice means a man ought D
to have known a fact. A person is said to have notice of a
fact when he actually knows a fact but for wilful
abstension from inquiry or search which he ought to
have made, or gross negligence he would have known
it. Constructive notice is a notice inferred by law, as E
distinguished from actual or formal notice; that which is
held by law to amount to notice. [Para 17][385-H; 386-A·
CJ
1.3 It is also apparent that the Society had actively F
participated in the other pending cases with respect to
determination of compensation in which award had been
passed on 2.1.1989. Thus the reference sought on the
strength of the notice under section 12(2) issued and
received on 31.12.1988 would not provide limitation to G
the Society for seeking reference with respect to the four
cases In which the award was passed on 30.11.1982 as
notice to it was wholly unnecessary in view of rejection
of its objection on the ground that it was not having right,
l1tle or Interest in the land. Thus It could not be said to be H
368 SUPREME COURT REPORTS (2015] 5 S.C.R.
A 'person interested' in view of the order dated 4.9.1982.
Thus, in view of the conjoint reading of sections 12(2)
and 18(2) of the Rajasthan Land Acquisition Act, it was
not open to the LAO to refer the case to the civil court on
the basis of the time barred application. [Para 18] [386-
B D-H]
Madan & Anr. v. State of Maharashtra (2014) 2 SCC
720: 2013 (12) SCR 761; Raja Harish Chandra Raj
Singh v. The Deputy Land Acquisition Officer & Anr.
c AIR 1961 SC 1500: 1962 SCR 676; Muthia Chettiar
v. Commissioner of Income Tax, Madras [AIR 1951
Mad. 204] - referred to.
2.1 The original Khatedars are 'Bairwa' by caste
D which is a Scheduled Caste and they are entitled to the
protection of the provisions contained in section 42 of
the Rajasthan Tenancy Act. The provisions of section
42 declare the transaction entered into by a Scheduled
Caste with any person other than a person of a
E Scheduled Caste or by a Scheduled Tribe with any other
tribe to be void. The so-called agreements dated
15.2.1974, 17.2.1974, 21.2.1974 and 21.2.1976 which were
purportedly entered into by the Society with the
F Khatedars were thus clearly void as per the mandate of
section 42. The notification in the instant case u/s. 4 was
issued on 12.1.1982. The plea of part-performance under
section 53A of Transfer of Property Act was also not
available to the Society as transaction is void. [Para 19,
G 20 and 21] [388-8-C, H; 389-A-B]
2.2 It is not correct that since the Society is a
juristic person, sale cannot be said to be in contravention
of section 42 of the Rajasthan Tenancy Act. 'Sale' is
H permitted by a person of Scheduled Caste to another
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 369
NIRMAN SAHKARI SAMIT! LTD.
person of Scheduled Caste. The Society cannot be said A
to be a person of 'Scheduled Caste'. The Society cannot
be said to be a person included in the notification issued
under Article 341 of the Constitution of India. Article 341
of the Constitution envisages notification to be issued
for inclusion of Scheduled Caste in relation to a State or B
Union Territory. The sale to the Society which is a juristic
person is ab initio void and not recognisable in the eye
of law. [Para 22] [389-C-D; 390-E]
State of Rajasthan & Ors. v. Aanjaney Organic Herbal C
Pvt. Ltd. (2012) 10 sec 283: 2012 (7) SCR 1148;
Manchegowda & Ors. v. State of Kamataka & Ors.
(1984) 3 SCC 301: 1984 (3) SCR 502 - relied on
2.3 In the instant case, the transaction is ab initio D
void that is right from its inception and is not voidable at
the volition by virtue of the specific language used in
section 42 of the Rajasthan Tenancy Act. There is
declaration that such transaction of sale of holding "shall
be void". As the provision is declaratory, no further E
declaration is required to declare prohibited transaction
a nullity. No right accrues to a person on the basis of
such a transaction. The person who enters into an
agreement to purchase the same, is aware of the F
consequences of the provision carved out in order to
protect weaker sections of Scheduled Castes and
Scheduled Tribes. The right to claim compensation
accrues from right, title or interest in the land. When such
right, title or interest in land is inalienable to non-SC/ST, G
obviously the agreements entered into by the Society
with the Khatedars are clearly void and decrees obtained
on the basis of the agreement are violative of the mandate
. of section 42 of the Rajasthan Tenancy Act and are a
nullity. Such a prohibited transaction opposed to public H
370 SUPREME COURT REPORTS [2015] 5 S.C.R.
A policy, cannot be enforced. Any other interpretation
would be defeasive of the very intent and protection
carved out under section 42 as per the mandate of Article
46 of the Constitution, in favour of the poor castes and
downtrodden persons, included in the Schedules to
B Articles 341 and 342 of the Constitution of India. [Para
25] [394-C-H]
State of Madhya Pradesh v. Babu Lal & Ors. 1977 (2)
SCC 435; Lineal Gamango & Ors. v. Dayanidhi Jena
C & Ors. AIR 2004 SC 3457: 2004 (2) Suppl. SCR 825;
Amrendra Pratap Singh v. Tej Bahadur Prajapati & Ors.
AIR 2004 SC 3782 - relied on.
3. The right to claim compensation cannot be
D enforced by the Society on the basis of such transaction
as that would defeat the very object of the Act and the
constitutional provisions including such castes and
tribes under the protective umbrella of the Schedules to
Articles 341 and 342, they cannot be deprived of right to
E obtain the compensation of the land legally held by them
and they cannot be made to fall prey to unscrupulous
devices of land grabbers. The right to claim
compensation is based on right, title or interest in the
F land, cannot be transferred by virtue of the mandate of
section 42 to a juristic person like the Society. It is the
duty of the State to ensure that the benefit reaches to
such persons directly and not usurped by intermeddlers
as what is intended by the protection of the right to hold
G property of SC/ST, cannot be taken away by disbursing
the compensation to Society. Persons of SC/ST, as the
case may be, are the only rightful claimants to disbursal
of compensation and such right cannot be tinkered with
by void transaction as the purpose of compensation Is
H
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 371
NIRMAN SAHKARI SAMITI LTD .
.the re-settlement of Scheduled Castes or tribes. [Para A
30] [399-A-E]
Himalayan Tiles and Marble (P) Ltd. v. Francis Victor
Coutinho (dead) by LRs. 1980 (3) SCC 223: 1980 (3)
SCR 235 - held inapplicable. B
U.P. Jal Nigam, Lucknow through its Chairman & Anr.
v. Kalra Properties (P) Ltd., Lucknow & Ors. 1996 (3)
SCC 124: 1996 (1) SCR 683; II. Chandrasekaran &
Anr. v. Administrative Officer& Ors. 2012 (12) SCC 133: C
2012 (10) SCR 603; Dossibai Nanabhoy Jeejeebhoy
v. P.M.Bharucha 1958 (60) Born.LR 1208 - referred
to
4. It cannot be said that having failed to take D
recourse to the provisions of section 175 of the
Rajasthan Tenancy Act, the Khatedars have lost their
remedy for ignoring the title acquired by the Society
which has been perfected by the compromise decrees
passed by the civil court. In the instant case, there is no E
question of initiating the process under section 175 of
the Rajasthan Tenancy Act as much before passing of
the decrees by the civil court in the year 1986, possession
had been taken by the State in May, 1982 much before
limitation lapsed. Thus, institution of proceedings for F
ejectment was not warranted. Apart from that, voidity of
the transaction can be looked into in the present
proceedings also when right to claim compensation is
asserted by the Society and from factual conspectus of G
the instant case it is apparent that Khatedars belong to
Scheduled Castes and they cannot be deprived of their
right to claim compensation, intendment of section 42
can be effectuated in these proceedings. [Para 34, 35
and 36] [402-B; 404-A-B, E] H
372 SUPREME COURT REPORTS [2015] 5 S.C.R.
A Ram Karan (dead) through LR & Ors. v. State of
Rajasthan & Ors. 2014 (8) SCC 282- distinguished
Nathu Ram (dead) by LRs. & Ors. v. State of Rajasthan
& Ors. 2004 (13) SCC 585 - held inapplicable
B
5. It is correct that the right to hold property cannot
be taken away except in accordance with the provisions
of the statute, but in the instant case, the right to hold
property albeit had not been acquired by the Society,
c transaction was ab initio void and a nullity. On the other
hand, the land has been acquired by the State
Government and even the right to claim compensation
was denied to the Society in the award passed on
30.11.1982 by rejecting their objections. The recourse to
D section 175 was not required. The question of
entitlement of the Society is involved in the cases in view
of award dated 30.11.1982 rejecting right of the Society
to claim compensation. Thus, it cannot be said that there
is violation of the principles laid down by this Court in
E aforesaid cases with respect to right to hold property
which cannot be taken away except as provided in the
provisions of the statute. [Para 41] [406-H; 407-A-C]
Lachhman Dass v. Jagat Ram & Ors. 2007 (10) SCC
F 448: 2007 (2) SCR 980; Tukaram Kana Joshi & Ors.
through Power-of-Attorney holder v. Maharashtra
Industrial Development Corpn. & Ors. 2013 (1) SCC
353: 2012 (13) SCR 29; Rajendra Nagar Adarsh Grah
Nirman Sahkari Samiti Ltd. v. State of Rajasthan & Ors.
G
2013 (11) SCC 1: 2013 (7) SCR 192-referred to
6.1 The Circular dated 27-10-2005 is applicable in
the matter of land acquisition when the Khatedars
H surrendered their lands. Further, the provisions shall
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 373
NIRMAN SAHKARI SAMITI LTD.
apply in case of future acquisitions and the provisions A
shall not apply where the Land Acquisition Officers have
already passed the award/s. In the instant case, even the
prevalent instructions which have been modified did not
confer any right on the Society or the Khatedars to claim
the developed land. It was not a case of surrender of B
land; thus there was no question of the provisions of
the circular being applied as the circular was in the form
of guidelines for future acquisitions where Khatedars
surrendered their lands and award has not been passed. C
Therefore, the aforesaid circular could not have been
pressed into service by the Society and that too at the
appellate stage before the Division Bench. The Division
Bench has gravely erred in law while issuing the
aforesaid directions which were wholly unwarranted and D
uncalled for. [Para 44, 45 and 46] [408-E-H; 409-A-B]
Jaipur Development Authority & Ors. v. Vijay Kumar
Data & Anr. 2011 (12) SCC 94: 2011 (7) SCR 242;
Jaipur Development Authority & Ors. v. Radhey Shyam E
1994 (4) SCC 370: 1994 (2) SCR 1; Jaipur
Development Authority v. Dau/at Mal Jain 1997 (1) SCC
35: 1996 (6) Suppl. SCR 584- relied on
6.2 Apart from inapplicability, it is also apparent F
that the very purpose of issuing such circulars is not to
benefit the purchaser who has acquired the right after
issuance of notification under section 4 of Rajasthan
Land Acquisition Act, and in violation of mandate of
section 42. C-onsequently, the High Court had no G
jurisdiction to direct allotment of land. Even Khatedars
were not entitled to such direction/benefit as the circulars
are not applicable in such cases. [Para 52][418-H; 419-
A]
H
374 SUPREME COURT REPORTS [2015] 5 S.C.R.
A · Harl Ram & Anr. v. State of Haryana & Ors. 2010 (3)
SCC 621: 2010 (2) SCR 756-distinguished
Usha Stud and Agricultural Farms Pvt. Ltd. & Ors. v.
State of Haryana & Ors. 2013 (4) SCC 210: 2013 (5)
B SCR 645 - held inapplicable
7. Oral evidence can also be taken into
consideration while determining compensation, but in
the facts of the present case, the best evidence is
c documentary evidence which has to prevail. In the face
of the documentary evidence evincing the price of the
land per sq.yd. the oral evidence which was based upon
ipse dixit and without any sound basis, could not have
been accepted by the Reference Court. Thus, the grave
D error which was committed had been rightly set at
naught by the single Bench of the High Court, which
determination of compensation has also not been
interfered by a Division Bench. [Para 57) [421-B-F]
E State of Gujarat & Ors. v. Rama Rana & Ors. 1997 (2)
sec 693: 1996 (10) Suppl. scR 102;
Satyanarayana & Ors. v. BhuArjanAdhikari & Ors. 2011
(15) SCC 1.33: 2013 (7) SCR 631; Raman/al
Deochand Shah v. State of Maharashtra & Anr. 2013
F (14) SCC 50; State of Gujarat & Ors. v. Rama Rana &
Ors. 1997 (2) sec 693: 1996 (10) Suppl. SCR 102;
Satyanarayana v. BhuArjanAdhikari & Ors. 2011 (15)
sec 133 - referred to
G 8. In order to protect the interest of the Scheduled
Caste persons, it is directed that the Society or other
intermeddler, or power of attorney holder shall not be
paid compensation on their behalf and the Collector/
H Land Acquisition Officer to ensure that the compensation
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 375
NIRMAN SAHKARI SAMITI LTD.
is disbursed directly to the Khatedars or their legal A
representatives, as the case may be, and that they are
not deprived of the same by any unscrupulous devices
of land grabbers etc. [Para 61] [423-C-D]
Case Law Reference B
2013 (12) SCR 761 referred to Para 15
1962 SCR 676 referred to Para 15
AIR 1951 Mad. 204 referred to Para 16
2012 (7) SCR 1148 relied on Para 22 c
1984 (3) SCR 502 relied on Para 23
1977 (2) sec 435 relied on Para 26
2004(2) Suppl.SCR 825 relied on Para 27
AIR 2004 SC 3782 relied on Para 27 D
1996 (1) SCR 683 referred to Para 29
2012 (10) SCR 603 referred to Para 31
1958 (60) Born.LR 1208 referred to Para 32
1980 (3) SCR 235 held inapplicable Para33 E
2004 (13) sec 585 held inapplicable Para 36
2014 (8) sec 282 distinguished Para 37
2007 (2) SCR 980 referred to Para 38
2012 (13) SCR 29 referred to Para 39 F
2013 (7) SCR 192 referred to Para 40
2014 (2) SCR 736 relied on Para 40
2011 (7) SCR 242 relied on Para 48
1994 (2) SCR 1 relied on Para 48 G
1996 (6)Suppl. SCR 584 relied on Para 49
2010 (2) SCR 756 distinguished Para 53
2013 (5) SCR 645 held inapplicable Para 54
H
376 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 1996 (10) Suppl.SCR 102 referred to Para 55
2013 (7) SCR 631 referred to Para 55
2013 (14) sec 50 referred to Para 55
1996 (10) Suppl.SCR 102 referred to Para 58
B 2011 (15) sec 133 referred to Para 59
CIVIL APPELLATE JURISDICTION : CIVILAPPEAL
Nos. 1527-1536of2013
From the Judgment and Order dated 29.10.2009 of the
C High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur
in D. B. Special Appeal (Civil) Nos. 13 of 2001, 55 of 1999,
101, 102, 103, 104, 105, 106, 107 of2000
WITH
D
C.A. Nos. 1537-1546, 1547-1556, 1557-1566, 1567--1576,
1577-1586, 1587-1596, 1597-1606, 1607-1608, 1609-1610,
1611-1612, 1613-1614, 1615-1616, 1617-1618, 1619-1620,
1621-1622, 1623-1624, 1625-1626, 1627-1628, 1629-1630,
E 1631-1632, 1633-1634 of2013 &4183-4192 of2015
Vijay Hansaria, Vikas Singh, R. P. Bhatt, Basava Prabhu
S. Patil, Surya Kant, P. C. Jain,Avnish Pandey, Yunus Malik,
Depaika Kalia, Aman Malik, Prashant Choudhary, Praveen
F Swarup, Shashank Singh, Lakshmi Raman Singh, Sanjeev
Anand, YakeshAnand, Nim it Mathur, Milind Kumar, Yunus Malik,
Kapish Seth, Praveen Swarup for the appearing parties.
The Judgment of the Court was delivered by
G
ARLIN MISHRA, J. 1. Leave granted in SLP [CJ
Nos.21344-21353/2015.
2. The appeals arise out of a common judgment and
H order dated 29.10.2009 passed by a Division Bench of the
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 377
NIRMAN SAHKARI SAMIT! LTD. [ARUN MISHRA, J.]
High Court of Rajasthan in Special Appeal No.13/2001 and A
other connected matters. The Rajasthan Housing Board,
original Khatedars and the New Pink City Housing Construction
Co-operative Society Ltd. (transferee) (hereinafter referred to
as the Society') have assailed the impugned judgment and
order on different grounds. The Rajasthan Housing Board has B
prayed for setting aside direction to consider 25% of developed
land and compensation, whereas the original khatedars have
prayed for payment of compensation to them. Similarly, the
Rajasthan Housing Board has also questioned the entitlement C
of the Society to claim compensation. The Society has also
claimed for more value of land.
3. The State Government issued a notification under
section 4 of the Rajasthan Land Acquisition Act, 1953 (for short D
'the Act of 1953') on 12.1.1982. The land had been acquired
for the purpose of housing scheme of Rajasthan Housing
Board. On 22.5.1982 the possession had been handed over
to Rajasthan Housing Board under section 9 of the Act of 1953.
The Society preferred objections before the Land Acquisition E
Officer (LAO). The objections preferred by the Society were
rejected vide order dated 4.9.1982. Thereafter, Award was
passed with respect to four cases by the LAO on 30.11.1982
in favour of Khatedars. With respect to the remaining cases
the award was passed on 2.1.1989 by the LAO. Notice under F
section 12(2) of the Act of 1953 was issued to the Society with
respect to the award of 30.11.1982 on 31.12.1988.
4. The Society applied for reference under section 18
oftheActof 1953. On 17.4.1989, the reference was made to G
the Civil Court. One of the Khatedars namely Prabhu also
sought reference registered as Case No.43/1989. The Civil
Court answered the reference on 23.1.1994 determining the
compensation at Rs.260 per sq.yd. The objection raised by
H
378 SUPREME COURT REPORTS [2015) 5 S.C.R.
A the Housing Board with respect to the entitlement of Society
under section 42 of the Rajasthan Tenancy Act, was brushed
aside. On appeal to the High Court, the single Bench vide
impugned judgment and order dated 22.3.1999 reduced the
compensation to Rs.100 per sq.yd. The Division Bench has
B not only affirmed the aforesaid award but has additionally
directed to consider allotment of 25% of developed land in
view of circular dated 27.10.2005 in terms of the order passed
by a Division Bench in Special Appeal No.697/1995.
C 5. The Khatedars have claimed that they are 'Bairwa'
by caste which is a Scheduled Caste notified under the
Constitution Scheduled Castes Order, 1950.
6. The Society has claimed that it had entered into an
D agreement to sell with Khatedars of the land on 15.2.1974,
17.2.1974, 21.2.1974 and 22.1.1976. The Society has also
claimed that it had applied to the Rajasthan Housing Finance
Society Ltd. for financial assistance for construction of houses
and an NOC dated 7.6.1982 was issued to it by the Urban
E Improvement Trust, Jaipur. The Society objected to the
acquisition but objections were rejected on 3.9.1982 in four
cases out of which Reference Case No.1989, 2089, 3089 and
4089 arose. The award was passed on 30.11.1982. Later on,
F the Society appears to have filed a civil suit for specific
performance of agreement to sell in the year 1986 against the
Khatedars and compromise decrees are said to have been
passed on 2.10.1986, 3.10.1986 and 24.1.1988 thereby
decreeing the suit in favour of the Society.
G
7. It was submitted on behalf of the State Government,
Rajasthan Housing Board and also by the Khatedars that the
transactions between the Society and Khatedars, if any, were
ab initio void in view of the provisions contained in section 42
H of the Rajasthan Tenancy Act. Thus, decree obtained on the
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 379
NIRMAN SAHKARI SAMIT! LTD. [ARUN MISHRA, J.]
basis of void transaction is a nullity and no right had accrued A
to the Society to claim compensation.
8. It was urged before us on behalf of the Society that
the compensation determined is inadequate. Oral evidence
has been ignored by the High Court while reducing the quantum B
of compensation determined by Reference Court. The Society
has a right to claim compensation on the basis of the agreement
which has been culminated into a decree passed by the civil
court. No action has been taken by Khatedars to take back
the possession under section 175 of the Rajasthan Tenancy C
Act within the period of limitation of 30 years which is
prescribed therein. The High Court has rightly ordered allotment
of 25% of the developed land to the Society. The Society is a
person interested to receive the compensation on the strength D
of the judgment and decree of civil court. It has developed the
land and has spent certain amount on development and the
right to hold the property cannot be taken away except in
accordance with the provisions of a statute. In order to claim
superior right to hold the property the procedure prescribed in E
a statute must be complied with as provided in Article 300Aof
the Constitution of India. The State is bound to treat various
incumbents similarly as others have been allotted the land. It
is bound to act upon its decision and allot the 25% of the
developed land to the Society. The plea based upon the bar F
created by section 42 of the Rajasthan Tenancy Act has not
been substantiated by adducing the evidence.
9. It was contended on behalf of the Khatedars that
though the civil court's decrees are fraudulent and bogus even G
otherwise the decrees are a nullity and opposed to public policy
on the strength of provisions contained in section 42 of the
Rajasthan Tenancy Act; Transaction being void, the Society
has no locus standi, right, title or interest to claim the enhanced
H
380 SUPREME COURT REPORTS [2015] 5 S.C.R.
A compensation; more so, in view of the rejection of its objection
vide order dated 4.9.1982. The award in 1982 was passed by
Land Acquisition Officer in favour of Khatedars. They are
entitled to enhanced compensation and not the Society. The
land was recorded in the names of Khatedars in the revenue
B records. The agreements of 1974 and 1976 have not been
produced and once the transaction is void, it can be questioned
in the instant proceedings. They are entitled to compensation
and also to obtain developed land, as and when allotted.
C 10. It was contended on behalf of the State Government
as well as the Rajasthan Housing Board that the Society is not
entitled to any compensation as such transactions are declared
void by section 42 of the Rajasthan Tenancy Act. The reference
sought in the year 1989 with respect to the lands covered by
0
the award dated 30.11.1982 was clearly barred by limitation.
The objection had been raised before the Reference Court
based upon section 42 of the Rajasthan Tenancy Act and it
has not been disputed at any stage that Khatedars belong to
E "Bairwa" caste which is a Scheduled Caste. Thus, the bar
enacted under section 42 on transfer of such land is clearly
. attracted. The judgments passed by the High Court and the
Reference Court deserve to be set aside. On merits, no case
for enhancement of compensation was made out The Society
F has no right, title or interest in the land. The Division Bench of
the High Court had gravely erred in law in directing allotment
of 25% of the developed land. The prayer made by the Society
for allotment of the developed land was rejected by the
Rajasthan Housing Board on 14.5.2009 and 16.9.2009. The
G said orders were not questioned. Even otherwise the Circulars
dated 13.11.2001 and that of 27.10.2005 are not applicable
and not enforceable as held by this Court. The direction to
allot the developed land deserves to be set aside.
H 11. First, we advert to the question whether reference,
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 381
NIRMAN SAHKARI SAMITI LTD. [ARUN MISHRA, J.]
with respect to the four cases in which award was passed on A
30.11.1982, was within period of limitation. Admittedly,
possession from the Society had been taken on 22.5.1982.
The Society submitted the objections before the LAO on
20.7.1982. While rejecting the objections on 4.9.1982, the
Special Officer, Urban Development Authority, LAO, had B
unilaterally observed that the acquisition cannot be said to be
in violation of the provisions contained in Article 300A of the
Constitution of India, the Society has no ownership of the land,
it has no interest in the land. Thus, it has no right to raise the C
objection. The said order had attained finality and the award
was passed on 30.11.1982. In the award so passed, it has
also been mentioned that an Advocate had appeared on behalf
of the Khatedars and wanted to file objections regarding
compensation. The said Advocate appeared on behalf of some D
of the Khatedars and stated that they had sold the land to the
Society. However, no claim petition was filed on their behalf.
There is also a reference in the award dated 30.11.1982 as to
the objection filed by the Society had been rejected on
4.9.1982. It is apparent from the award that it was passed after E
rejecting the objections raised by the Society in favour of
Khatedars.
12. The provisions of Rajasthan Land Acquisition Act
are in pari materia with the provisions of the Land Acquisition F
Act, 1894 and section 12 of the Act of 1953 is extracted
hereinbelow :
"12. Award of Collector when to be final.-(1) Such
award shall be filed in the Collector's officer and shall, G
except as hereinafter provided, be final and conclusive
evidence, as between the Collector and the persons
interested, whether they have respectively appeared
before the Collector or not, of the true area and value of
H
382 SUPREME COURT REPORTS [2015] 5 S.C.R.
A the land, and the apportionment of the compensation
among the persons interested.
(2) The Collector shall give immediate notice of his award
or the amendment thereof to such of the persons
B interested as are not present personally or by their
representatives when the award or the amendment
thereof is made."
13. Section 12(2) requires immediate notice to be given
c of the award to such of the persons interested as are not
present personally or by their representative/s when the award
is made. Section 18(2) of the Act of 1953 requires to file the
objections within six weeks from the date of the award if the
person or the representative was present when the award was
D made. In other cases, within six weeks of the receipt of notice
from the Collector under section 12(2) or within six months
from the date of the award whichever period shall first expire.
14. In the instant case, notice under section 12(2) was
E issued to the Society by the Special Officer on 31.12.1988,
treating the Society as 'person interested' and informing that
an award had been passed on 30.11.1982 in accordance with
section 11 of the Land Acquisition Act. On the strength of the
aforesaid notices it was urged on behalf of the Society that
F the limitation to seek the reference would commence from the
date of receipt of the notices issued and received on
31.12.1988. The reference sought was within the period of
limitation.
G 15. Reliance has been placed on the decision of this
Court in Madan &Anr. v. State of Maharashtra [(2014) 2 SCC
720] and in Raja Harish Chandra Raj Singh v. The Deputy
Land Acquisition Officer & Anr. [Al R 1961 SC 1500] in which
H it has been laid down that the party must have either actual or
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 383
NIRMAN SAHKARI SAMITI LTD. [ARUN MISHRA, J.]
constructive communication of the order which is an essential A
requirement of fair play and natural justice. The date of award
used in proviso (b) to section 18(2) of the Act must be the date
when the award is either communicated to the party or known
by him either actually or constructively. The award in the said
case was passed on 25.3.1951. Notice of the award was 8
however given to the appellant as required by section 12(2)
on 13.1.1953 by which he received information about making
of the said award. It was observed that it was necessary for
the Collector to give immediate notice of his award under C
section 12(2) of the Act. This Court has laid down in Raja
Harish Chandra (supra) with respect to the knowledge of the
award by a party thus :
"6 ..... The knowledge of the party affected by such a
D
decision, either actual or constructive, is an essential
element which must be satisfied before the decision can
be brought into force. Thus considered the making of the
award cannot consist merely in the physical act of writing
the award or signing it or even filing it in the office of the E
Collector, it must involve the communication of the said
. award to the party concerned either actually or
constructively. If the award is pronounced in the presence
of the party whose rights are affected by it it can be said
to be made when pronounced. If the date for the F
pronouncement of the award is communicated to the
party and it is accordingly pronounced on the date
previously announced the award is said to be
communicated to the said party even if the said party is
not actually present on the date of its pronouncement. G
Similarly if without notice of the date of its pronouncement
an award is pronounced and a party is not present the
award can be said to be made when it is communicated
to the party later. The knowledge of the party affected by
H
384 SUPREME COURT REPORTS [2015) 5 S.C.R.
A the award, either actual or constructive, being an
essential requirement of fair-play and natural justice the
expression "the date of the award" used in the proviso
must mean the date when the award is either
communicated to the party or is known by him either
B actually or constructively. In our opinion, therefore, it would
be unreasonable to construe the words "from the date of
the Collector's award" used in the proviso to s. ~ in a
literal or mechanical way."
c 16. The decision of the Madras High Court in Muthia
Chettiar v. Commissioner of Income Tax, Madras [AIR 1951
Mad. 204] had been considered and approved by this Court
in Harish Chandra (supra) thus:
D "10 It may, however, be pertinent to point out that the
Bombay High Court has taken a somewhat different view
in dealing with the effect of the provision as to limitation
prescribed bys. 33A(2) of the Indian Income-tax Act. This
provision prescribes limitation for an application by an
E assessee for the revision of the specified class of orders,
cmd it says that such an application should be made within
one year from the date of the order. It is significant that
while providing for a similar period of limitation
F s. ~ specifically lays down that the limitation of sixty
days therein prescribed is to be calculated from the date
on which the order in question is communicated to the
assessee. In other words, in prescribing limitation
s. 33(1)expressly provides forthe commencement of the
G period from the date of the communication of the order,
whereas s. 33A(2) does not refer to any such
communication; and naturally the argument was that
communication was irrelevant under s. 33A(2) and
limitation would commence as from the making of the
H
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 385
NIRMAN SAHKARI SAMITI LTD. [ARUN MISHRA, J.]
order without reference to its communication. This A
argument was rejected by the Bombay High Court and it
was held that it would be a reasonable interpretation to
hold that the making of the order implies notice of the
said order, either actual or constructive, to the party
affected by it. It would not be easy to reconcile this B
decision and particularly the reasons given in its support
with the decision of the same High Co1,1rt in the case of
Jehangir Bomanji AIR 1954 Born. 4 t9. The relevant
clause under s. 33A(2) of the Indian Income-tax Act has
also been similarly construed by the Madras High Court
c
in O.A.0.A.M. Muthia Chettiarv. The Commissioner of
Income-tax, Madras[l.L.R. 1951 Mad. 815.]. "If a person
is given a right to resort to a remedy to get rid of an
adverse order within a prescribed time'', observed D
Rajamannar, C.J., "limitation should not be computed
from a date earlier than that on which the party aggrieved
actually knew of the order or had an opportunity of knowing
the order and therefore must be presumed to have the
knowledge of the order". In other words the Madras High E
Court has taken thei view that the omission to use the
words "from the date of communication" in s. 33A(2) does
not mean that limitation can start to run against a party
even before the party either knew or should have known
about the said order. In our opinion this conclusion is F
obviously right"
It is thus clear that either party should have actual
knowledge or constructive notice i.e., should have known about
the said order. G
17. In the instant case it is apparent that the Housing
Society had preferred objections and was aware of the land
acquisition process and determination of compensation and
H
386 SUPREME COURT REPORTS [2015] 5 S.C.R.
A has filed objections which stood rejected on 4.9.1982. Thus,
the constructive knowledge of the award is fairly attributable
to it when it was so passed. Constructive notice in legal fiction
signifies that the individual person should know as a reasonable
person would have. Even if they have no actual knowledge of
B it. Constructive notice means a man ought to have known a
fact. A person is said to have notice of a fact when he actually
knows a fact but for wilful abstension from inquiry or search
which he ought to have made, or gross negligence he would
C have known_it. Constructive notice is a notice inferred by law,
as distinguished from actual or formal notice; that which is held
by law to amount to notice. The concept of constructive notice
has been upheld by this Court in Harish Chandra (supra).
18. It is also apparent that the Society had actively
0
participated in the other pending cases with respect to
determination of compensation in which award had been
passed on 2.1.1989. Thus the reference sought on the strength
of the notice under section 12(2) issued and received on
E 31.12.1988 would not provide limitation to the Society for
seeking reference with respect to the four cases in which the
award was passed on 30.11.1982 as notice tciit was wholly
unnecessary in view of rejection of its objection on the ground
that it was not having right, title or interest in the land. Thus it
F could not be said to be 'person interested' in view of the order
dated 4.9.1982. The notice was issued for reasons best known
to the Special Officer. It is surprising how and for what reasons
notice was issued after six years. We need not go into this
aspect any further as we are of the opinion that in the facts and
G circumstances, the Society had a constructive notice of the
award dated 30.11.1982. Thus, in view of the conjoint reading
of sections 12(2) and 18(2) of the Rajasthan Land Acquisition
Act, it was not open to the LAO to refer the case to the civil
H court on the basis of the time barred application.
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 387
NIRMAN SAHKARI SAMITI LTD. [ARUN MISHRA, J.]
19. Coming to the question whether in view of section A
42 of the Rajasthan Tenancy Act, the transaction entered into
by the Society with the original Khatedars are void and whether
on that basis, it had a right to maintain the reference and to
claim compensation? The Society is said to have entered into
agreements to sell on 17.2.1974, 21.2.1974 and 21.2.1976. B
These agreements have not been placed on record by the
Society. It was incumbent upon the Society to file these
agreements. Be that as it may. The Society has filed certain
affidavits of Khatedars along with counter affidavits filed by it. C
In the case of Ram Pyari and others, the affidavits of various
Khatedars have been filed by the Societey in which their caste
has been mentioned as 'Bairwa'. The caste of the original
Khatedars has never been disputed. 'Bairwa' caste is a
Scheduled Caste. Before this Court also in the case of Ram o
Pyari in the SLP preferred, averments have been made to the
effect that the original Khatedars belong to Scheduled Caste
and the sale in favour of a person not belonging to Scheduled
Caste is void as per the mandate of section 42 of the Rajasthan
Tenancy Act. In the counter affidavit filed on behalf of the E
Society, the factum that Khatedars are 'Bairwa' and belongs
to Scheduled Caste, has not been denied. Before the
Reference Court also, the stand of the State Government was
that as the Khatedars belong to Scheduled Caste, the
transaction was prohibited by section 42 of the Rajasthan F
Tenancy Act. On behalf of the Society, it was submitted in
counter affidavit that as it is a Society, the rigor of provisions
of section 42 is not attracted and it had relied upon the circular
dated 1.9.1984 issued by the Government of Rajasthan for G
regularisation of the land sold in violation of section 42 of the
Rajasthan Tenancy Act. The Society has failed to deny clear
and categorical averments, non-denial makes the aforesaid
facts undisputed one. There is not even an evasive denial that
Khatedars do not belong to Scheduled Caste. Even in the H
388 SUPREME COURT REPORTS (2015] 5 S.C.R.
A additional affidavit filed on behalf of the Society in the wake of
the rejoinder filed by the petitioner in reply to the counter affidavit
of respondent No.2, the caste of the original Khatedars has
not been disputed. Thus, we are of the considered opinion
that the original Khatedars are 'Bairwa' by caste which is a
B Scheduled Caste and they are entitled to the protection of the
provisions contained in section 42 of the Rajasthan Tenancy
Act.
20. The provisions of section 42 of the Rajasthan
C Tenancy Act declare the transaction entered into by a Scheduled
Caste with any person other than a person of a Scheduled
Caste or by a Scheduled Tribe with any other tribe to be void.
Section 42 of the Rajasthan Tenancy Act is extracted
hereunder:
D
"Section 42 - General restrictions on sale, gift & bequest
1[The sale, gift or bequest by a Khatedar tenants of his
interest in the whole or part of his holding shall be void, if
E
'1[***]
(b) such sale, gift or bequest is by a number of Scheduled
Caste in favour of a person who is not a member of the
Scheduled Caste, or by a member of a Scheduled Tribe
F
in favour of a person who in not a member of the
Scheduled Tribe.
G "[(bb) such sale, gift or bequest, notwithstanding anything
contained in clause (b), is by a member of Saharia
Scheduled Tribe in favour of a person who is not a
member of the said Saharia tribe."]1
~ 21. The so-called agreements dated 15.2.1974,
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 389
NIRMAN SAHKARI SAMITI LTD. [ARUN MISHRA, J.]
17.2.1974, 21.2.1974 and 21.2.1976 which were purportedly A
entered into by the Society with the Khatedars were thus clearly
void as per the mandate of section 42 of the Rajasthan Tenancy
Act. The notification in the instant case under section 4 was
issued on 12.1.1982. The plea of part-performance under
section 53A of Transfer of Property Act was also not available B
to the Society as transaction is void.
22. The equally futile is the submission that since the
Society is a juristic person, sale cannot be said to be in
contravention of section 42 of the Rajasthan Tenancy Act. 'Sale' C
is permitted by a person of Scheduled Caste to another person
of Scheduled Caste. The Society cannot be said to be a person
of 'Scheduled Caste'. The Society cannot be said to be a
person included in the notification issued under Article 341 of D
the Constitution of India. Article 341 of the Constitution
envisages notification to be issued for inclusion of Scheduled
Caste in relation to a State or Union Territory. The expression
'person' in section 42(b) of the Rajasthan Tenancy Act is to a
natural person and not a juristic person and the mere fact that E
some of the persons of the Society belong to Scheduled Caste
would not make the transaction with such a Housing Society
valid one. This Court in State of Rajasthan & Ors. v. Aanjaney
Organic Herbal Pvt. Ltd. ((2012) 10 SCC 283] has considered
the question of provisions of section 42 of the Rajasthan F
Tenancy Act and held that bar is attracted to a juristic person :
"12. The expressions "Scheduled Castes" and
"Scheduled Tribes", we find in Section 42(b) of the Act
have to be read along with the constitutional provisions G
and, if so read, the expression "who is not a member of
the Scheduled Caste or Scheduled Tribe" would mean a
person other than those who have been included in the
public notification as per Articles 341 and 342 of the
H
390 SUPREME COURT REPORTS [2015] 5 S.C.R.
A Constitution. The expression "person" used in Section
42(b) of the Act therefore can only be a natural person
and not a juristic person, otherwise, the entire purpose
of that section will be defeated. If the contention of the
Company is accepted, it can purchase land from
B Scheduled Caste/Scheduled Tribe and then sell it to a
non-Scheduled Caste and Scheduled Tribe, a situation
the legislature wanted to avoid. A thing which cannot be
done directly cannot be done indirectly overreaching the
statutory restriction.
c
13. We are, therefore, of the view that the reasoning of
the High Court that the respondent being a juristic person,
the sale effected by a member of Scheduled Caste to a
juristic person, which does not have a caste, is not hit by
D
Section 42 of the Act, is untenable and gives a wrong
interpretation to the abovementioned provision."
In view of the aforesaid dictum it is crystal clear that
tile sale to the Society which is a juristic person is ab
E initio void and not recognisable in the eye of law.
23. This Court in Manchegowda & Ors. v. State of
Karnataka & Ors. [(1984) 3 SCC 301] has considered the
validity of sections 3, 4 and 5 of the Karnataka Scheduled
F Castes and Scheduled Tribes (Prohibition of Transfer of
Certain Lands) Act, 1978 which prohibited transfer of granted
lands and provided for resumption thereof, it was held that even
· the prohibited transaction effected prior to commencement of
G the Act can be nullified and sections 4 and 5 are not violative
of Article 19(1 )(f) as it stood prior to its omission in 1978.
Neither the provision is violative of Articles 31 and 31 A of the
Constitution of India and a transferee shall have no property
right and recovery of such property would not attract Article 31
H or 31 A. This Court also held thatthe provisions have reasonable
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 391
NIRMAN SAHKARI SAMIT! LTD. [ARUN MISHRA, J.]
nexus with the object sought to be achieved. The Scheduled A
Castes and Scheduled Tribes form a distinctive class.
Exclusion of other communities from the provision is not
discriminatory. The right of the Legislature to declare such
transactions to be void has been upheld by this Court in
following manner: B
"12. In pursuance of this policy, the Legislature is
undoubtedly competent to pass an enactment providing
that transfers of such granted lands will be void and not
merely voidable for properly safeguarding and protecting c
the interests of the Scheduled Castes and Scheduled
Tribes for whose benefit only these lands had been
granted. Even in the absence of any such statutory
provisions, the transfer of granted lands in contravention
D
of the terms of the grant or in breach of any law, rule or
regulation covering such grant will clearly be voidable
and the resumption of such granted lands after avoiding
the voidable transfers in accordance with law will be
permitted. Avoidance of such voidable transfers and E
resumption of the granted lands through process of law
is hound to take time. Any negligence and delay on the
part of the authorities entitled to take action to avoid such
transfers through appropriate legal process for
resumption of such grant may be further impediments in F
the matter of avoiding such transfers and resumption of
possession of the granted lands. Prolonged legal
proceedings will undoubtedly be prejudicial to the
interests of the members of the Scheduled Caste and
Scheduled Tribe for whose benefit the granted lands are G
intended to be resumed. As transfers of granted lands in
contravention of the terms of the grant or any law,
regulation or rule governing such grants can be legally
avoided and possession of such lands can be recovered
H
392 SUPREME COURT REPORTS [2015] 5 S.C.R.
A through process of law, it must be held that the Legislature
for the purpose of avoiding delay and harassment of
protracted litigation and in furthering its object of speedy
restoration of these granted lands to the members of the
weaker communities is perfectly competent to make
B suitable provision for resumption of such granted lands
by stipulating in the enactment that transfers of such lands
in contravention of the terms of the grant or any regulation,
rule or law regulating such grant will be void and in
providing a suitable procedure consistent with the
c principles of natural justice for achieving this purpose
without recourse to prolonged litigation in Court in the
larger interests of benefiting the members of the
Scheduled Castes and Scheduled Tribes."
D
24. Without payment of compensation, land can be
resumed has also been held by this Court and even in a case
when grant was for a certain period, the land could be resumed.
The vires of the provisions contained in sections 4 and 5
E resuming the land without compensation has been upheld. In
Manchegowda (supra), this Court has laid down thus:
"19. We have earlier noticed that the title which is
acquired by a transferee in the granted lands, transferred
F
in contravention of the prohibition against the transfer of
the granted lands, is a voidable title which in law is liable
to be defeated through appropriate action and
possession of such granted lands transferred in breach
of the condition of prohibition could be recovered by the
G grantor. The right or property which a transferee acquires
in the granted lands, is a defeasible right and the
transferee renders himself liable to lose his right or
property at the instance of the grantor. We have further
observed that by the enactment of this Act and particularly
H
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 393
NIRMAN SAHKARI SAMITI LTD. [/..'RUN MISHRA, J.]
Section ! and Section §.thereof the Legislature is A
seeking to defeat the defeasible right of the transferee
in such lands without the process of a prolonged legal
action with a view to speedy resumption of such granted
lands for distribution thereof the original grantee or their
legal representatives and in their absence to other B
members of th.? Scheduled Castes and Scheduled
Tribes C6-mmunities. In our opinion, this kind of defeasible
right of the transferee in the granted lands cannot be
considered to be property as contemplated in
Article 31 a~1A. _!tie nature of the right of the
c
transferee in the grarifed land on transfer of such lands in
breach of the condition of prohibition relating to such
transfer, the object of such grant and the terms thereof,
also the law governing such grants and the object and D
the scheme of the present Act enacted for the benefit of
weaker sections of our community, clearly go to indicate
that there is in this case no deprivation of such right or
property as may attract the provisions of
Articles 31 and 31A of the Constitution. E
20. In the case of Amar Singh v. Custodian, Evacuee
Properly, Punjab (1957) S.C.R. 801, this Court while
considering the provisions of Administration of Evacuee
Property Act 1930 (XXXI of 1950) and the nature of right F
in the property allotted to a quasi-permanent allottee held
that the interests of a quasi-permanent allottee did not
constitute property within the meaning of
Articles 19( 1)(f), 31 (1) and 31 (2) of the Constitution. This
Court observed at p. 834: G
"Learned Counsel for the Petitioners has strenuously
urged that under th~ quasi-permanent allotment
scheme the allottee is entitled to a right to possession
394 SUPREME COURT REPORTS [2015] 5 S.C.R.
A within the limits of the relevant notification and that such
right to possession is itself 'property'. That may be so
in a sense. But it does not affect the question whether
it is property as to attract the protection of fundamental
rights under the Constitution. If the totality of the bundle
B of rights of the quasi-permanent allottee in the evacuee
land constituting an interest in such land, is not property
entitled to protection of fundamental rights, mere
possession of the land by virtue of such interest is not
on any higher footing."
c
25. In the instant case, the transaction is ab initio void
that is right from its inception and is not voidable at the volition
by virtue of the specific language used in section 42 of the
Rajasthan Tenancy Act. There is declaration that such
0
transaction of sale of holding "shall be void". As the provision
is declaratory, no further declaration is required to declare
prohibited transaction a nullity. No right accrues to a person
on the basis of such a transaction. The person who enters into
E an agreement to purchase the same, is aware of the
consequences of the provision carved out in order to protect
weaker sections of Scheduled Castes and Scheduled Tribes.
The right to claim compensation accrues from right, title or
interest in the land. When such right, title or interest in land is
F inalienable to non-SC/ST, obviously the agreements entered
into by the Society with the Khatedars are clearly void and
decrees obtained on the basis of the agreement are violative
of the mandate of section 42 of the Rajasthan Tenancy Act
and are a nullity. Such a prohibited transaction opposed to
G public policy, cannot be enforced.Any other interpretation would
be defeasive of the very intent and protection carved out under
section 42 as per the mandate of Article 46 of the Constitution,
in favour of the poor castes and downtrodden persons,
H included in the Schedules to Articles 341 and 342 of the
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 395
NIRMAN SAHKARI SAMIT! LTD. [ARUN MISHRA, J.]
Constitution of India. A
26. In State of Madhya Pradesh v. Babu Lal & Ors. [1977
(2) sec 435] the provisions contained in section 165(6) of
M.P. Land Revenue Code, 1959 came up for consideration
before this Court. The High Court directed the State to file a B
suit for declaring the decree null and void. The decision was
set aside. It was held that the case was a glaring instance of
violation of law as such the High Court erred in not issuing a
writ. The decision of the High Court was set aside. The transfer
which was in violation of proviso to section 165(6) transferring C
the right of Bhuswami belonging to a tribe, was set aside.
27. This Court in Lineal Gamango & Ors. v. Dayanidhi Jena
& Ors. [AIR 2004 SC 3457] while considering the provisions
of Orissa Scheduled Areas Transfer of Immovable Property D
(by Scheduled Tribes) Regulation, 1956 which prohibited
alienation of rural property by a tribal to a non-tribal, declared
such transaction to be null and void. This Court while relying
upon the decision in Amrendra Pratap Singh v. Tej Bahadur
Prajapati & Ors. [AIR 2004 SC 3782] has laid down that no E
right can be acquired by adverse possession on such
inalienable property. Adverse possession operates on an
alienable right. It was held that non-tribal would not acquire a
right or title on the basis of adverse possession. Relevant F
discussion is extracted hereunder:
"7. We find both these reasons given by the High Court
are not sustainable. Coming first to the second point, we
find that there is a decision of this Court direct on the
G
point. It is reported in AIR 2004 SC 3782, Amrendra
Pratap Singh v. Tej Bahadur Prajapati and Ors. The
matter related to transfer of land falling in tribal area
belonging to the Scheduled Tribes. The matter was
governed by Regulations 2, 3 and 7-D of the Orissa H
396 SUPREME COURT REPORTS [2015] 5 S.C.R.
A Scheduled Areas Transfer of Immovable Property (By
Scheduled Tribes) Regulations, 1956 viz. the same
Regulations which govern this case also. The question
involved was also regarding acquisition of right by
adverse possession. Considering the matter in detail, in
B the light of the provisions of the aforesaid Regulation,·
this Court found that one of the questions which falls for
consideration was "whether right by adverse possession
can be acquired by a non-aboriginal on the property
belonging to a member of aboriginal tribe"? (para 14 of
c the judgment). In context with the above question posed,
this Court observed in para 23 of the judgment as follows
"...... The right in the property ought to be one which is
D
alienable and is capable of being acquired by the
competitor. Adverse PO?Session operates on an
alienable right The right stands alienated by operation of
law, for it was capable of being alienated voluntarily and
E is sought to be recognized by doctrine of adverse
possession as having been alienated involuntarily, by
default and inaction on the part of the rightful claimant.. ... "
"This Court then noticed two decisions one that of the
F Privy Council reported in AIR 1923 P.C. 205 Madhavrao
Woman Saundalgekar and Ors. v. Raghunath
Venkatesh Deshpande and Ors., and Karimullakhan
slo. Mohd lshaqkhan and
Anr. v. Bhanupratapsingh, holding that title by adverse
G possession on inam lands, Watan lands and Debutter
was incapable of acquisition since alienation of such land
was prohibited in the interest of the State. We further find
that the decision in the case of Madhiya Nayak (supra)
relied upon by the High Court was referred to before this
H Court and it is observed that the question as to whether
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 397
NIRMAN SAHKARI SAMITI LTD. [ARUN MISHRA, J.]
a non-tribal could at all commence prescribing acquisition A
of title by adverse possession over the land belonging to
a tribal which is situated in a tribal area, was neither raised
nor that point had arisen in the case of Madhiya Na yak.
It is further observed that the provisions of Section 7-D
of the Regulations are to be read in the light of the fact B
that the acquisition of right and title by adverse
possession is c.laimed by a tribal over the immovable
property of another tribal but not where the question is in
regard to a non-tribal claiming title by adverse
c
possession over the land belonging fo a tribal situa\e in
a tribal area. It is, therefore, clear in view of the decision
in the case of Amrendra Pratap Singh (supra) that a non~
tribal would not acquire right and title on the b~¥> of
adverse possession. Therefore, the second ground for D
setting aside the order passed by the appellate court
falls through. Therefore, the other factual aspect about
the possession of the respondents over the disputed land
and entries in their favour may also not be of much
consequence, in any case, this aspect of the matter has E
to be seen and considered afresh in the light of other
facts and circumstances of the case."
28. This Court in Amrendra Pratap (supra) has laid
down that the expression 'transfer' would include any dealing F
with the property when the word 'deal with' has not been defined
in the statute. Dictionary meaning as the safe guide can be
extended to achieve the intended object of the Act. The
transaction or the dealing with alienable property to transfer
title of an aboriginal tribe and vesting the same in non-tribal G
was construed as transfer of immovable property. Extending
the meaning of the expression 'transfer of immovable property'
would include dealing with such property as would have the
effect of causing or resulting in transfer of interest in immovable H
398 SUPREME COURT REPORTS [2015) 5 S.C.R.
A property. When the object of the legislation is to prevent a
mischief and to confer protection on the weaker sections of
the society, the court would not hesitate in placing an extended
meaning, even a stretched one, on the word, if in doing so the
statute would succeed in attaining the object sought to be
B achieved. When the intendmentoftheAct is thatthe property
should remain so confined in its operation in relation to tribals
that the immovable property to one tribal may come but the
title in immovable property is not to come to vest in a non-
e tribal the intendment is to be taken care by the protective arm
of the law and be saved from falling prey to unscrupulous
devices, and this Court concluded any transaction or dealing
with immovable property which would have the effect of
extinguishing title, possession or right to possess such property
D in a tribal and vesting the same in a non-tribal, would be
included within the meaning of 'transfer of immovable property'.
29. It was further submitted on behalf of the Society that
though a purchaser after issuance of notification under section
E 4( 1) of the Land Acquisition Act cannot question the legality of
the notification, but, can lay a claim for payment of
compensation. Reliance has been placed on U.P.Ja/ Nigam,
Lucknow through its Chairman &Anr. v. Katra Properties (P)
Ltd., Lucknow & Ors. [1996 (3) SCC 124]. When we consider
F the aforesaid dictum, this Court has laid down that after
notification under section 4(1) was published, sale of land is
void against the State and Mis. Kalra Properties acquired no
right, title or interest in the land and it is a settled law that it
cannot challenge the validity of the notification or the regularity
G in taking possession of the land before publication of the
declaration under section 6. M/s. Kalra Properties, though
acquired no title to the land, at best would be entitled to step
into the shoes of the owner and claim compensation. However,
H in the instant case, it was a transaction which was not only
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 399
NIRMAN SAHKARI SAMITI LTD. [ARUN MISHRA, J.]
void against the State but also void inter se vendor and vendee. A
30. The right to claim compensation cannot be enforced
by the Society on the basis of such transaction as that would
defeat the very object of the Act and the constitutional
provisions including such castes and tribes under the protective B
umbrella of the Schedules to Articles 341 and 342, they cannot
be deprived of right to obtain the compensation of the land
legally held by them and they cannot be made to fall prey to
unscrupulous devices of land grabbers. The right to claim
compensation is based on right, title or interest in the land, C
cannot be transferred by virtue of the mandate of section 42 to
a juristic person like the Society. It is the duty of the State to
ensure that the benefit reaches to such persons directly and
not usurped by intermeddlers as what is intended by the
0
protection of the right to hold property of SC/ST, cannot be
taken away by disbursing the compensation to Society.
Persons of SC/ST, as the case may be, are the only rightful
claimants to disbursal of compensation and such right cannot
be tinkered with by void transaction as the purpose of E
· compensation is the re-settlement of Scheduled Castes or
tribes.
31. The other decision relied upon by the Society is
V. Chandrasekaran & Anr. v. Administrative Officer & Ors. F
[2012 (12) SCC 133) wherein this Court laid down thus:
"15. The issue of maintainability of the writ petitions by
the person who purchases the land subsequent to a
G
notification being issued under Section 4 of the Act has
been considered by this Court time and again.
In Pandit Leela Ram v. Union of India AIR 1975 SC
2112, this Court held that, any one who deals with the
H
400 SUPREME COURT REPORTS [2015) 5 S.C.R.
A land subsequent to a Section 4 notification being issued,
does so, at his own peril. In Sneh Prabha v. State of Uttar
Pradesh AIR 1996 SC 540, this Court held that a
Section 4 notification gives a notice to the public at large
that the land in respect to which it has been issued, is
B needed for a public purpose, and it further points out that
there will be "an impediment to any one to encumber the
land acquired thereunder." The alienation thereafter does
not bind the State or the beneficiary under the acquisition.
The purchaser is entitled only to receive compensation.
c While deciding the said case, reliance was placed on
an earlier judgment of this Court in Union of India v. Shri
Shiv Kumar Bhargava and Ors.: JT (1995) 6 SC 274.
16. Similarly, in U.P. Jal Nigam v. Katra Properties Pvt.
D Ltd. AIR 1996 SC 1170, this Court held that, purchase of
land after publication of a Section 4 notification in relation
to such land, is void against the State and at the most,
the purchaser may be a person-interested in
E compensation, since he steps into the shoes of the
erstwhile owner and may therefore, merely claim
compensation. (See also: Star Wire (India) Ltd. v. State
of Haryana and Ors.
F 17. In Ajay Kishan Singhal v. Union oflndia AIR 1996
SC 2677; Mahavir and Anr. v. Rural Institute, Amravati
and Anr. (1995) 5 SCC 335; Gian Chand v. Gopala and
Ors. (1995) 2 SCC 528; and Meera Sahni v. Lieutenant
Governor of De/hi and Ors. (2008) 9SCC177, this Court
G categorically held that, a person who purchases land after
the publication of a Section 4 notification with respect to
it, is not entitled to challenge the proceedings for the
reason, that his title is void and he can at best claim
compensation on the basis of vendor's title. In view of
H
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 401
NIRMAN SAHKARI SAMITI LTD. [ARUN MISHRA, J.]
this, the sale of land after issuance of a A
Section ~ notification is void and the purchaser cannot
challenge the acquisition proceedings. (See also: Tika
Ram v. State of U.P (2009) 10 SCC 689).
18. In view of the above, the law on the issue can be B
summarized to the effect that a person who purchases
land subsequent to the issuance of a
Section 4 notification with respect to it, is not competent
to challenge the validity of the acquisition proceedings
on any ground whatsoever, for the reason that the sale c
deed executed in his favour does not confer upon him,
any title and at the most he can claim compensation on
the basis of his vendor's title."
32. Reliance has been placed on Dossibai Nanabhoy D
Jeejeebhoy v. PM.Bharucha [1958 (60) Born.LR 1208] so
as to contend that the 'person interested' in the land under
section 9 of the Land Acquisition Act would include a person
who claims interest in compensation to be paid on account of E
acquisition of land and the interest contemplated under section
9 is not restricted to legal or proprietary estate or interest in
the land but such interest as will sustain a claim to
apportionment, is the owner of the land. In our opinion, the
decision is of no avail. The instant transaction being void as F
per section 42 of the Rajasthan Tenancy Act and the property
was inalienable to non-SC. Obviously, the logical corollary has
to be taken that no right in apportionment to compensation
can be claimed by the Society.
G
33. In Himalayan Tiles and Marble (P) Ltd. v. Francis
VictorCoLtinho (dead) by LRs. [1980 (3) SCC 223), it was
laid down that 'person interested' within the meaning of section
18 of the Land Acquisition Act would include a body, local
authority, or a company for whose benefit the land is acquired H
402 SUPREME COURT REPORTS [2015] 5 S.C.R.
A . The company for whose benefit the land had been acquired
was liable to pay compensation, was held to be a 'person
interested'. The decision is of no help to the cause espoused
by the Society and the reliance on same is misplaced.
B 34. It was vehemently urged on behalf of the Society
that having failed to take recourse to the provisions of section
175 of the Rajasthan Tenancy Act, the Khatedars have lost
their remedy for ignoring the title acquired by the Society which
has been perfected by the compromise decrees passed by
C the civil court. Section 175 of the Rajasthan Tenancy Act is
extracted below :
"Section 175 - Ejectment for illegal transfer or sub-letting
D 1[(1)] If a tenant transfers or sub-lets, or executes an
instrument purporting to transfer or sublet, the whole or
any part of his holding otherwise than in accordance with
the provisions of this Act and the transferee or sub-lessee
or the purported such part in pursuance of such transfer
E or sub lease, both the tenant and any person who may
have thus obtained or may thus be in possession of the
holding or any part of the holding, shall on the application
of the land holder, be liable to ejectment from the area so
transferred or sub-let or purported to be transferred or
F sub-let.
(2) To every application, under this Section the transferee
or the sub-tenant or the purported transferee or the sub-
tenant, as the case may be, shall be joined as a party.
G
(3) On an application being made under this section, the
court shall issue a notice to the opposite party to appear
within such time as may be specified therein and show
cause why he should not be ejected from the area so
H
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 403
NIRMAN SAHKARI SAMIT! LTD. [ARUN MISHRA, J.]
transferred or sublet or purported to be transferred or A
sub-let.]
(4) If appearance is made within the time specified in
the notice and the liability to ejectment is contested, the
court shall, on payment of the proper court fees, treat the B
application to be a suit and proceed with the case as a
suit:
Provided that in the event of the application having been
made by a tehsildar in respect of land held directly from c
the State Government no court-fee shall be payable.
1[4(a) Notwithstanding anything to the contrary contained
in sub-section (4), if the application is in respect of
contravention of the provision contained in section 42 or D
the proviso to sub-section (2) of section 43 or section
49A, the court shall, after giving a reasonable opportunity
to the parties of being heard, conclude the enquiry in a
summary manner and pass order, as far as may be
practicable within a period of three months from the date E
of the appearance of the non-applicants before it,
directing ejectrnent of the tenant and his transferee or
sub-lessee from the area transferred or sub-let in
contravention of the said provisions.]
F
(5) If no such appearance is made or if appearance is
made but the liability to ejectment is not contested the
court shall pass order on the application as it may deem
proper."
G
35. There is no doubt about it that section 175 provides
for ejectment for illegal transfer or subletting in contravention
of the provisions of the said Act. However, there is no question
of ejectment proceedings being filed in the instant case under
H
404 SUPREME COURT REPORTS [2015] 5 S.C.R.
A the aforesaid provision that would have been exercised in futility
as admittedly the possession has already been taken by the
State on 22.5.1982. Apart from that, voidity of the transaction
can be looked into in these proceedings also when right to
claim compensation is asserted by the Society and from factual
8 conspectus of the instant case it is apparent that Khatedars
belong to Scheduled Castes and they cannot be deprived of
their right to claim compensation, intendment of section 42
can be effectuated in these proceedings.
c 36. On behalf of the Society, reliance has been placed
on a decision of this Court In Nathu Ram (dead) by LRs. &
Ors. v. State of Rajasthan & Ors. [2004 (13) SCC 585] in
which this Court has considered the provisions of the Rajasthan
Tenancy Act as it stood prior to its amendment made in the
0
Act. The limitation prescribed was 12 years from the date of
transfer. After the amendment, it is thirty years. It was also laid
down that though the transfer was by itself void but the period
of limitation would be applicable. In the instant case, there is
E no question of initiating the process under section 175 of the
Rajasthan Tenancy Act as much before passing of the decrees
by the civil court in the year 1986, possession had been taken
by the State in May, 1982 much before limitation lapsed. Thus,
institution of proceedings for ejectment was not warranted.
F
37. In Ram Karan (dead) through LR & Ors. v. State of
Rajasthan & Ors. [2014 (8) SCC 282], this Court has laid down
that transfer of holding by a member of Scheduled Caste to a
member not belonging to Scheduled Caste by virtue of section
G 42 of the Rajasthan Tenancy Act is forbidden and
unenforceable. Such a transaction is unlawful even under
section 23 of the Contract Act and an agreement or such
transfer would be void under section 2(g) of the Contract Act.
This Court also considered limitation for filing ejectment under
H
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 405
NIRMAN SAHKARI SAMITI LTD. [ARUN MISHRA, J.]
section 175. The proceeding filed after 31 years was held to A
be barred by limitation. The decision is distinguishable for
aforesaid reasons.
38. It was next contended on behalf of the Society that
the Society has acquired a right and such right to hold property B
cannot be taken away except in accordance with the provisions
of a statute. If a superior right to hold the property is claimed,
the due procedure must be complied with. Reliance has been
placed on Lachhman Dass v. Jagat Ram & Ors. [2007 (10)
SCC 448], in which this Court has laid down thus: C
"16. Despite such notice, the appellant was not
impleaded as a party. His right, therefore, to own and
possess the suit land could not have been taken away
without giving him an opportunity of hearing in a matter D
of this nature. To hold property is a constitutional right in
terms of Article 300A of the Constitution of India. It is also
~human right. Right to hold property, therefore, cannot
be taken away except in accordance with the provisions
E
of a statute.Jf-a superior r'ight to hold a property is claimed,
the procedures therefore must be complied with. The
conditions precedent therefore must be satisfied. Even
otherwise, the right of pre-emption is a very weak right,
although it is a statutory right. The Court, while granting a F
relief in favour of a pre-emptor, must bear it in mind about
the character of the right, vis-a-vis, the constitutional and
human right of the owner thereof."
39. ~has also been placed in Tukaram Kana G
Joshi & Ors. through Power-of-Attorney holderv. Maharashtra
Industrial Development Corpn. & Ors. [2013 (1) SCC 353] in
which it has beenJaid down thus :
"8. The Appellants were deprived of their immovable
H
406 SUPREME COURT REPORTS [2015] 5 S.C.R.
A property in 1964, when Article 31 of the Constitution was
still intact and the right to property was a part of
fundamental rights under Article 19 of the Constitution. It
is pertinent to note that even after the Right to Property
seized to be a Fundamental Right, taking possession of
B or acquiring the property of a citizen most certainly
tantamounts to deprivation and such deprivation can take
place only in accordance with the "law", as the said word
has specifically been used in Article 300-A of the
Constitution. Such deprivation can be only by resorting
c
to a procedure prescribed by a statute. The same cannot
be done by way of executive fiat or order or
administration caprice. In Ji/ubhai Nanbhai Khachar, etc.
etc. v. StateofGujaratandAnr.AIR 1995SC 142, it has
D been held as follows: -
"In other words, Article 300-A only limits the power of
the State that no person shall be deprived of his property
save by authority of law. There is no deprivation without
E due sanction of law. Deprivation by any other mode is
not acquisition or taking possession under Article 300-
A. In other words, if there is no law, there is no
deprivation.""
F 40. In Rajendra Nagar Adarsh Grah Nirman Sahkari
Samiti Ltd. v. State of Rajasthan & Ors. [2013 (11) SCC 1]
and Mathew Varghese v. M.Amritha Kumar& Ors. [2014 (5)
sec 610], observations as to the similar effect had been
made.
G
41. When we consider the aforesaid submission, it is
apparent that the right to hold property cannot be taken away
except in accordance with the provisions of the statute but in
the instant case, we are of the considered view that the right to
H hold property albeit had not been acquired by the Society,
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 407
NIRMAN SAHKARI SAMITI LTD. [ARUN MISHRA, J.]
transction was ab initio void and a nullity. On the other hand, A
the land has been acquired by the State Government and even
the right to claim compensation was denied to the Society in
the award passed on 30.11.1982 by rejecting their objections.
The recourse to section 175 was not required as already held
by us. The question of entitlement of the Society is involved in B
the cases in view of award dated 30.11.1982 rejecting right of
the Society to claim compensation. Thus, it cannot be said
that there is violation of the principles laid down by this Court
in aforesaid cases with respect to right to hold property which C
cannot be taken away except as provided in the provisions of·
the statute.
42. Coming to the question of direction to consider
allotment of land and quantum of compensation determined in D
the instant case, the Reference Court had determined
compensation at Rs.260 per sq.yd. whereas the High Court
has deterrT)ined it at Rs.100 per sq.yd. and the Division Bench ·
has in ~dition ventured into.directing the State Goverrniient
to consider the prayer fcn;,a1totment of 25% of the developed E
land to the Society in the llght of Circular dated 27 .10.2005
issued by the State Government and its decision in Smt, Ratni
Devi V. $fa_te of Rajasthan & Ors. - DB Special Appe~ No.6p7!
1995-decided on 12.4.2007.
F
First, we take up the question as to the legality of the
direction issued by the High Court with respect to allotment of
25% of developed land in terms of the order passed in the
case of Smt. Ratni Devi (supra).
G
43. When we consider the Circular dated 27.10.2005,
the State Government considered the prevalent scheme in
which Khatedars could 'surrender' their land without
compensation and would obtain 25% of the developed
residential area in lieu thereof. Paras 1 and 4 of the Circular H
408 SUPREME COURT REPORTS [2015] 5 S.C.R.
· A are relevant and are quoted below:
"1. In the matters of land acquisition on making a
surrender of the land by the Khatedar, he will be
entitled for maximum 20% residential and 5%
B commercial land to the said person from whom the
land has been acquired. But for the Khatedar no
other person shall be allotted the land, even if
nominated by him."
c xxxxx
"4. These provisions shall only be applicable, in
case offuture acquisitions. These provisions shall
be specifically be applicable, wherein the Land
o Acquisition Officer have already declared the
award and the compensation amount has been
paid/deposited in the Court or 15% land have been
allowed to be allotted in the award."
E 44. It is apparent from para 1 that the Circular is
applicable in the matter of land acquisition when the Khatedars
surrendered their lands.
45. Para 4 of circular makes it clear that the provisions
F shall apply in case of future acquisitions and the provisions
shall not apply where the Land Acquisition Officers have
already passed the award/s.
46. In the instant case, even the prevalent instructions
G which have been modified did not confer any right on the
Society or the Khatedars to claim the developed land. It was
not a case of surrender of land; thus there was no question of
the provisions of the circular being applied as the circular was
in the form of guidelines for future acquisitions where
H Khatedars surrendered their lands and award has not been
•
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 409
NIRMAN SAHKARI SAMITI LTD. (ARUN MISHRA, J.]
passed. For the aforesaid reasons, the aforesaid circular could A
not have been pressed into service by the Society and that
too at the appellate stage before the Division Bench. The
Division Bench has gravely erred in law while issuing the
aforesaid directions which were wholly unwarranted and
uncalled for. B
47. When we consider the decision in Smt. Ratni Devi
(supra), it was based upon a concession made by the counsel
who appeared on behalf of the Jaipur Development Authority.
The applicability of the Circular was not considered by the C
Division Bench. The matter was decided on the basis of
concession and the agreement between the parties. It was
submitted before us on behalf of the Rajasthan Housing Board
that a review petition had been preferred for recalling the D
aforesaid concession made unauthorisedly before the court.
Be that as it may. In our opinion, the Circular itself is not
applicable and it was clearly a misadventure on the part of the
Division Bench in the instant case to rely upon the aforesaid
decision in Smt. Ratni Devi (supra). No negative equality could E
be claimed.
48. Earlier Circular dated 13.12.2001 had been issued
by the Deputy Secretary to the Government of Rajasthan with
respect to allotment of 15% of the developed land. It has not F
been issued in the name of the Governor. This Court has
considered the enforceability of such circulars in Jaipur
Development Authority & Ors. v. Vijay Kumar Data & Anr.
(2011 (12) SCC 94]. This Court has referred to the decision in
Jaipur Development Authority v. Radhey Shyam (1994 (4) G
SCC 370) in which the decision of the LAO to allot the plots in
addition to compensation was set aside and it was held that
even in execution it was open to raise the question of validity
or nullity of the decree. Following is the relevant discussion in
Vijay Kumar Data (supra) : H
•
410 SUPREME COURT REPORTS [2015) 5 S.C.R.
A "12. The question whether the Land Acquisition Officer
could issue direction fer allotment of land to the awardees,
sub-awardees and their nominees/sub-nominees was
considered by this Court in Radhey Shyam case [1994
(4) SCC 370]. After noticing the provisions of Sections
B 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 allotment of land to the claimants. This is clearly
c borne out from the following extracts of para 7 of the
judgment:
"7. A reading of sub-section (4) of Section 31, in our
considered· view, indicates that the Land Acquisition
D
Officer has no power or jurisdiction to give any land
under 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
E not empower him to give any land in lieu of
compensation. Sub-section (3) expressly gives power
'only to allot any other land in exchange'. In other words
the land under acquisition is not liable to be allotted in
lieu of compensation except under Section 31 (3), that
F too only to a person having limited interest. ... The
problem could be looked at from a different angle. Under
Section 4(1), the appropriate Government notifies a
particular land needed for public purpose. On publication
of the declaration under Section 6, the extent of the land
G with specified demarcation gets crystallised as the land
needed for a public purpose. If the enquiry under Section
5-A was dispensed with, exercising the power under
Section 17(1 ), the Collector on issuance of notice under
Sections 17, 9 and 10 is entitled to take possession of
H
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 411
NIRMAN SAHKARI SAMITI LTD. [ARUN MISHRA, J.]
the acquired land for use of public purpose. Even A
otherwise on making the award and offering to pay
compensation he is empowered under Section 16 to take
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 B
before possession is taken. Thus, in the scheme of the
Act, the Land Acquisition Officer has no power to create
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
c
Officer if is exercised would be self-defeating and
subversive to public purpose."
13. The Court in Radhey Shyam case (supra) also D
considered the question whether the appellant could challenge
the award in the execution proceedings and answered the
same in the affirmative. The reasons for this conclusion are
contained in para 8 of the judgment, the relevant portion of
which is extracted below : E
"8 . ... 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
respective persons in the acquired lands. Therefore, the F
decree cannot incorporate any matter other than the
matters determined under Section 11 or those referred
to and determined under Section 18 and no other. Since
we have already held that the Land Acquisition Officer
has no power or jurisdiction to allot far d in lieu of G
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
H
412 SUPREME COURT REPORTS [2015] 5 S.C.R.
A the invalidity, nullity of the decree in execution in that
behalf. Accordingly we hold that the execution
proceedings directing delivery ofpossession of the land
as contained in the award is, invalid, void and
inexecutab/e. (emphasis supplied)"
B
49. In Vijay Kumar Data (supra}, this Court referred to
the decision in Jaipur Development Authority v. Dau/at Mal
Jain [1997 (1) sec 35] in following terms:
c "14. The legality and correctness of the order dated 24-
9-1993 passed by the Division Bench of the Rajasthan
High Court in DBCSAW No. 680of1992 was considered
in Jaipur Development Authority v. Dau/at Mal Jain
(supra). This Court noted that the Lokayukta of Rajasthan
D had severely criticised the actions of the then Minister of
Urban Development and Housing Department,
Commissioner, Jaipur Development Authority and Zonal
Officer of the Lal Kothi Scheme, referred to the Rajasthan
Improvement Trust (Disposal of Urban Land) Rules, 1974
E and held:
"22. 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
F 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
having limited interest therein, qua the owners having
G
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
H actions, therefore, taken by the Minister-cum-Chairman
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 413
NIRMAN SAHKARI SAMITI LTD. [ARLIN MISHRA, J.]
of the appellate authority and bureaucrats for obvious A
reasons would not clothe the respondents with any
vestige of right to allotment. 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 B
public purpose. The record discloses that such allotment
in many a case was in violation of the Urban Land Ceiling
Act which prohibits holding the land in excess of the
prescribed ceiling limit of the urban land. In some
instances, a person whose land of 500 sq yd was
c
acquired, was compensated with allotment of 2000 sq
yd and above, which is against the public policy defeating
even the Urban Land Ceiling Act. Would any responsible
Minister or a bureaucrat, with a sense of public duty and D
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 any insignia of a publ\c purpose,
but appears to be a device to get illegal gratification or E
distribution of public property defeating the public
purpose by misuse of public office."
15. The Court further held in Dau/at Mal Jain case (supra)
that the decision taken by the Minister and the actions of F
the bureaucrats were meant to benefit only those who
had illegally secured transfer of land after the publication
of the notification issued under Section 4 and that the
so-called policy is a policy to feed corruption and to
deflect the public purpose. This is evinced from para 23 G
of the judgment, which is extracted below:
"23. There is no iota of evidence placed on record that
under the so-called policy, anyone from general public
H
414 SUPREME COURT REPORTS [2015] 5 S.C.R.
A could 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 allotment has benefited
only a specified class, namely, the awardees, sub-
awardees or nominees and none else. The decision by.
B the Minister or 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 LA 0. Directions were
given by the Minister and the bureaucrats acted to allot
c the land under the vel}' 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
D is a policy to feed corruption and to deflect the public
' purpose and to confer benefits on a specified category,
as {lescribed above."
50 . .The plea of discrimination was adversely
E commented upon by this Court in Vijay Kumar Data (supra)
re,ferring to the decision in Dau/at Mal Jain (supra) thus :
"16. The plea of discrimination which found favour with
the High Court was also negatived by this Court in Dau/at
F Mal Jain case (supra) by making the following
obseNations:
"24. The question then is whether the action of not
delivering possession ofthe land to the respondents on
a par with other persons who had possession is an ultra
G
vires act and violates Article 14 of the Constitution? We
had directed 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
H behalf,.by Shri PawanArora, Deputy Commissioner, that
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 415
NIRMAN SAHKARI SAMITI LTD. [ARUN MISHRA, J.]
allotments in respect of 47 persons were cancelled and A
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
that as and when any person had gone to the court to get
the orders of the LAO enforced, the appellant Authority B
resisted such actions 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
c
the Chairman and had made illegal allotments following
which possession was delivered, no action to unsettle
any such illegal allotment could have been taken then.
That apart, they were awaiting the outcome of pending D
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 bureaucrats through the
process of law so much so that illegal and ultra vires acts E
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 the
premise that a citizen has legal and valid right F
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
G
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 clutches of law, similar persons cannot plead,
nor the court can countenance that benefit had from H
416 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 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."
B 51. In Vijay Kumar (supra), this Court after quoting
circular of the State Government dated 6.12.2001 issued by
the Deputy Secretary of the Administration has observed
thus:
c "49. 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
D 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
the rules to be made by the President or the Governor,
as the case may be (Articles 77(2) and 166(2)).
E
xxxxx
52. Article 166 was interpreted in State of Biharv. Kripalu
Shankar (1987 (3) SCC 34] and it was observed:
F
"14. 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 at the head, to aid and advise the Governor
G 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 '166. Conduct of business of the Government of a
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 417
NIRMAN SAHKARI SAMITI LTD. [ARUN MISHRA, J.]
State.-( 1) All executive action of the Government of a A
State shall be expressed to be taken in the name of the
Governor.
(2) Orders and other instruments made and executed in
the name of the Governor shall be authenticated in such 8
manner as may be specified in rules to be made by the
Governor, and the validity of an order or instrument which
is so authenticated shall not be called in question on the
ground that it is not an order or instrument made or
executed by the Governor. c
(3) The Governor shall make rules for the more
convenient transaction of the business of the Government
of the State, and for the allocation among Ministers of
the said business insofar as it is not business with respect D
to which the Governor is by or under this Constitution
required to act in his discretion.'
15. Article 166(1) requires that all executive action of the
State Government shall be expressed to be taken in the E
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 an executive action has to be expressed. Noting
by an official in the departmental file will not, therefore, F
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 comply with Article 166(1). Article 166(2) states
G
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 authenticated and clause (3) relates to H
418 SUPREME COURT REPORTS (2015] 5 S.C.R.
A the making of the 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
B department and is expressed in the name of the
Governor, authenticated in the manner provided in Article
166(2)."
53. It is thus clear that unless an order is expressed in the
C name of the President or the Governor and is authenticated in
the manner prescribed by the rules, the same cannot be treated
as an order made on behalf of the Government. A reading of
the Letter dated 6-12-2001 shows that it was neither
expressed in the name of the Governor nor was it authenticated
D in the manner prescribed by the rules. 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
E meaning of Article 166 of the Constitution.
54. We are further of the view that even if the instructions
contained in the Letter dated 6-12-2001 could be treated as
policy decision of the Government, the High Court should have
F quashed the same because the said policy was clearly contrary
to the law declared by this Court in Radhey Shyam case
(supra) and Dau/at Mal Jain case (supra) and was a crude
attempt by the political functionaries concerned of the State to
legalise what had already been declared illegal by this Court."
G
52. Thus, it is apparent that the circular in question
cannot be pressed into service by the Society. Apart from
inapplicability, it is also apparent that the very purpose of
issuing such circulars is not to benefit the purchaser who has
H acquired the right after issuance of notification under section
RAJASTHAN HOUSING BOARD v. NEWPINKCITY 419
NIRMAN SAHKARI SAMITI LTD. [ARUN MISHRA, J.]
4 of Rajasthan Land Acquisition Act, and in violation of ll)andate A
of section 42. Consequently, the High Court had no jurisdiction
to direct allotment of land. Even Khatedars were not entitled to
such direction/benefit as the circulars are not applicable in such
cases.
B
53. We may refer to the decision in Hari Ram & Anr. v.
State of Haryana & Ors. [2010 (3) SCC 621] relied upon on
behalf of the Society in which this Court considered passing
of different orders, in respect of persons similarly situated,
relating to same acquisition proceedings. The action was held C
to be violative of Article 14 being discriminatory. There is no
doubt about it that different standards cannot be applied for
withdrawal from acquisition. The present is not such a case.
The circular is not applicable. We cannot direct the State to D
act upon the circulars which are not applicable. Under the Code
that all actions of the State are to be fair and legitimate, we
cannot create negative equality and confer a benefit that too
on the strength of a concessional statement which is not
provided by circular. Concession made by the counsel in Ratni E
Devi's case (supra) cannotwiden scope of circular.
54. We may also refer to other decisions relied upon in
Usha Stud and Agricultural Farms Pvt. Ltd. & Ors. v. State of
Haryana & Ors. [2013 (4) SCC 210] laying down that once a F
State Government has taken a conscious decision to release
the land, there would be no justification whatsoever for the State
for not according similar treatment to the appellants is also of
no avail to the Society.
G
55. Coming to the quantum of compensation to be
awarded in the instant case, it was submitted on behalf of the
Society and Khatedars in respective appeals that the
compensation determined by the High Court is on lower side.
Adequate compensation has not been determined. It was H
420 SUPREME COURT REPORTS [2015] 5 S.C.R.
A submitted that oral evidence which was ref ied upon by the
Reference Court ought to have been acted upon by the High
Court. ft was contended that the oral evidence cannot be
ignored. By virtue of decisions in State of Gujarat & Ors. v.
Rama Rana & Ors. [1997 (2) SCC 693], Satyanarayana &
B Ors. v. Bhu Arjan Adhikari & Ors. [2011 (15) SCC 133] and
Raman/al Deochand Shah v. State of Maharashtra & Anr.
[2013 (14) sec 50J.
56. The price of the land per sq. yd. was determined by
C the Reference Court. The documentary evidence which has
been referred to by the Reference Court comprises of Ex. 1
agreement dated 26.8.1982 at the rate of Rs.135 per sq.yd.,
Ex. 3 agreement dated 7 .1.1982 at the rate of Rs.165 per
D sq.yd., agreement dated 28.9.1981 at the rate of Rs.135 per
sq.yd. for 244 sq.yd. and agreement dated 5.5.1979 at the
rate of Rs.94 per sq.yd. Certain transactions of 1983 were
also referred which have to be ignored being subsequent to
the date of notification under section 4. However, referring to
E the oral statement of the witnesses in which value was stated
to be much more, the Reference Court has arrived at the
conclusion of Rs.260 per sq.yd. The Single Bench of the High
Court considered and referred to both the oral and
documentary evidence. Ex.1 agreement dated 26.8.1982
F about the safe of plot No.55 situated in Krishna Vihar
Gopalpura@Rs.115/-persq. yds., Ex.3 is agreement to safe
ofland of 200 sq. yds. Agreement dated 7 .1.1982 at the rate
of Rs.165/- per sq. yds. situated at Maharani Farm
Duragapura. Ex.4-A agreement to sale of 244 sq. yds. dated
G 29.8.1981 @ Rs.135/- per sq.yds. situated at Brijalpur from
Krishnapuri Housing Society, Ex.5 agreement dated 24.7.1982
of 18000 sq.yds. of land@ Rs.125/- per sq.yds. for a total
amount of Rs.22,55,000/- entered between Meena Kumari
H Housing Society and trustee Devi Shanker Tiwari, Ex. 7
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 421
NIRMAN SAHKARI SAMITI LTD. [ARUN MISHRA, J.]
Agreement dated 16.9.1983 about the sale of land measuring A
147 sq. yds. for Rs.22, 100/- approx.@ Rs.150/- per sq. yds.
and the land situated in gram panchayat Bhagyawas, Ex.8
agreement dated 5.5.1979 of 34,000 sq.yds.@ Rs.90-94 per
sq. yds.
8
57. It also considered oral evidence in detail and has
not relied upon the same and has arrived at the average price
to be Rs.135 per sq.yd. making certain deduction as large
area has been acquired. In case area in question had been
developed, certain area was bound to go in the development. C
Thus, deduction which has been made to arrive at the figure of
Rs.100 per sq.yd. is proper. We find in the facts and
circumstances of the case that the finding arrived at by the
single Bench to be appropriate. No doubt about it. Oral
evidence can also be taken into consideration but in the facts D
of this case, the best evidence is documentary evidence which
has to prevail. In the face of the documentary evidence evincing
the price of the land per sq.yd. the oral evidence which was
based upon ipse dixit and without any sound basis, could not E
have been accepted by the Reference Court. Thus, the grave
error which was committed had been rightly set at naught by
the single Bench of the High Court, which determination of
compensation has also not been interfered by a Division
Bench. F
58. Reliance has been placed upon State of Gujarat &
Ors. v. Rama Rana & Ors. [1997 (2) SCC 693] with respect
to acceptance of oral evidence in which case there was failure
on the part of the Agricultural Department to produce statistics G
as to the nature of the crops and the prices prevailing at that
time. In that context, it was observed that oral evidence cannot
be rejected due to such failure and the court has a duty to
subject the oral evidence to great scrutiny and to evaluate the
H
422 SUPREME COURT REPORTS [2015] 5 S.C.R.
A evidence objectively and dispassionately to reach a finding
on compensation.
59. Reliance has also been placed on Satyanarayana
v. Bhu Arjan Adhikari & Ors. [2011 (15) SCC 133] in which it
B has been laid down that an analysis of the evid~nce by the
Reference Court has to be satisfactory. Reliance has also been
placed on Raman/al Deochand Shah v. State of Maharashtra
&Anr. [2013 (14) SCC 50] laying down thatit is for the claimant
to prove that the amount awarded by the Collector needs an
C enhancement and for that purpose, oral and documentary
evidence can be adduced and when there is non-consideration
of material evidence, the case can be remanded to lead
evidence. In this case, there is proper scrutiny and evaluation
of oral and documentary evidence by the High Court. The
0
decision of the High Court with respect to determination of
compensation deserves to be upheld.
60. The High Court has rejected the application under
Order 1 Rule 10 filed by the Khatedars. In the facts of this
E case, particularly when the issue of violation of section 42 of
Rajasthan Tenancy Act was raised by the State Government
and reference was also as to the award passed in 1982 in
favour of Khatedars in which the Society was denied the right
F to receive compensation. Obviously, Khatedars were requireq
to be heard as the adjudication of their right was involved. in
the matter to decide to whom the compensation is payable,
and whether the Society was entitled to claim compensation
on the basis of void transaction. It was also submitted before
G us that the Khatedars have sought reference under section 30
against the Society, that question can be decided in those
proceedings. However, the factual matrix and its determination
of the question as to entitlement of Society is necessary in the
instant case, as such we have decided it. More so, the plight
H
RAJASTHAN HOUSING BOARD v. NEW PINK CITY 423
NIRMAN SAHKARI SAMITI LTD. [ARUN MISHRA, J.]
of downtrodden class of the Scheduled Castes Khatedars A
cannot be prolonged and considering the provisions which
have been enacted for their protection, and the constitutional
mandate, we are inclined to exercise our power to set at rest
the dispute between the parties and hold that only Khatedars,
in case some of them have died, their legal representatives B
would be entitled to receive the compensation which has been
determined in the instant case.
61. In order to protect the interest of the Scheduled
Caste persons, we further direct that the Society or other C
intermeddler, or power of attorney holder shall not be paid
compensation on their behalf and the Collector/Land
Acquisition Officer to ensure that the compensation is
disbursed directly to the Khatedars or their legal
0
representatives, as the case may be, and that they are not
deprived of the same by any unscrupulous devices of land
grabbers etc. Let the compensation be disbursed within a
period of three months from today along with other permissible
statutory benefits. E
62. The direction issued by the High Court to grant 25%
of the developed land is hereby set aside. The appeals
preferred by the Rajasthan Housing Board and the Khatedars
are allowed to the aforesaid extent and the remaining appeals F
are dismissed. Parties to beartheir own costs as incurred.
Kalpana K. Tripathy Appeals disposed of.
G
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