Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7254 OF 2003

The Rajasthan State Industrial Development …Appellant

and Investment Corporation

Versus

Subhash Sindhi Cooperative Housing Society …Respondents

Jaipur & Ors.

WITH

CIVIL APPEAL NO. 853 OF 2013

J U D G M E N T

Dr. B. S. CHAUHAN, J.

1.These appeals have been preferred against the impugned

judgment and order dated 30.7.2002 passed by the High Court of

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

which the High Court has issued directions to the Rajasthan State

Industrial Development and Investment Corporation (in short

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

Page 2 acquisition in favour of respondent No.1 - housing society (hereinafter

referred to as `the society’).

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

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

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

to this appeal are :

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

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

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

measuring about 17 Bighas and 9 Biswas in village Durgapura stood

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

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

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

B.The respondent society claims to have entered into an

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

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

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

requisite statutory requirements contained in the Act, possession of

2

Page 3 the land, including the land in dispute was taken by the Government

and was subsequently handed over to RIICO, on 18.10.1982 and

17.11.1983. The Land Acquisition Collector assessed the market

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

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

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

measuring 591 Bighas, to Diamond & Gem Development Corporation

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

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

Gem Industrial Estate for the manufacturing of Gem stones. This

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

an agreement to sell between the respondent society and the original

khatedars.

D.Acquisition proceedings emanating from the Section 4

Notification dated 18.7.1979, were challenged by the respondent

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

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

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

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

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

3

Page 4 to 230 is village Durgapura. The aforementioned writ petitions filed

by the respondent society and the original khatedars, challenging the

land acquisition proceedings stood dismissed on the ground of delay

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

High Court.

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

before this Court challenging the judgment and order dated 21.8.1990.

This Court vide order dated 9.9.1992 dismissed the said SLPs,

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

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

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

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

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

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

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

fraudulently.

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

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

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

Durgapura or in the alternative, for the allotment of equivalent

4

Page 5 suitable land, and also for the cancellation of the allotment of 105

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

contested by the appellants on the grounds that the respondent society

had no locus standi to challenge the acquisition proceedings which

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

khatedars to the respondent society was void; the respondent society

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

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

the said writ petition alongwith another writ petition that had been

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

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

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

cancelled by the appellant vide order dated 1.10.1996, and possession

of the same was taken over from it on 3.10.1996.

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

petition vide judgment and order dated 30.7.2002, thereby releasing

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

society.

Hence, this appeal.

5

Page 6 3.Shri Dhruv Mehta, learned senior counsel appearing on behalf

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

Advocate General for the State of Rajasthan, have submitted that

challenge to the acquisition proceedings emanating from the Section 4

Notification dated 18.7.1979 had attained finality upto this Court.

However, this Court vide order dated 9.9.1999 had granted very

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

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

discrimination qua other tenure holders, whose land stood released

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

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

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

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

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

consider the case on the basis of any ground of discrimination

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

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

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

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

6

Page 7 Article 14 is not meant to perpetuate an illegality or fraud.

Moreover, it is to be established that discrimination was made

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

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

Furthermore, any sale subsequent to a Section 4 Notification with

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

any transfer of such land is barred by the Rajasthan Lands

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

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

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

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

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

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

Bench as the suit land situate at Jaipur and all relevant

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

deserve to be allowed.

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

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

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

7

Page 8 the same was not considered by the State Government, and that the

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

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

institutions. The respondent society had therefore, been discriminated

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

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

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

Societies, if under acquisition. Technical issue must not be

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

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

merit and are liable to be dismissed.

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

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

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

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

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

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

liable to be dismissed.

8

Page 9 6.We have considered the rival submissions made by the learned

counsel for the parties and perused the records.

It is a settled legal proposition that acquisition proceedings

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

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

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

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

liberty to challenge the acquisition afresh, on the ground of

discrimination alone.

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

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

Notification in respect of the land, cannot challenge the acquisition

proceedings, and can only claim compensation as the sale transaction

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

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

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

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

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

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

9

Page 10 Jaipur Development Authority v. Mahavir Housing Coop. Society,

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

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

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

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

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

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

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

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

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

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

petition.

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

held:

"Void means non-existent from its very

inception."

10

Page 11 10.In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri

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

held:

"The word "void" has a relative rather than

an absolute meaning. It only conveys the

idea that the order is invalid or illegal. It

can be avoided. There are degrees of

invalidity, depending upon the gravity or the

infirmity, as to whether it is, fundamental or

otherwise.”

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

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

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

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

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

it never were.

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

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

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

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

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

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

11

Page 12 Pesikaka v. State of Bombay, AIR 1955 SC 123; Pankaj Mehra &

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

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

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

Agency & Ors., (2002) 9 SCC 28).

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

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

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

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

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

discrimination based upon the existence of an enforceable right, and

Article 14 would hence apply, only when invidious discrimination is

meted out to equals, similarly circumstanced without any rational

basis, or to relationship that would warrant such discrimination.

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

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

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

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

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

12

Page 13 13.The respondent society has placed reliance upon various

policies of the Government, which allowed the exemption of land

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

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

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

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

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

Section 4 Notification does not arise. The aforesaid policy decision

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

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

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

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

discrimination with respect to releasing land belonging to one set of

interested persons, while rejecting the release of land belonging to

other similarly situated persons, whose land was situated in close

vicinity to the land released. The Court held:

“We are conscious of the fact that when a

person subjected to blatant discrimination,

approaches a court seeking equal treatment,

he expects relief similar to what others have

been granted. All that he is interested is

getting relief for himself, as others. He is

not interested in getting the relief illegally

13

Page 14 granted to others, quashed. Nor is he

interested in knowing whether others were

granted relief legally or about the

distinction between positive equality and

negative equality. In fact he will be

reluctant to approach courts for quashing

the relief granted to others on the ground

that it is illegal, as he does not want to

incur the wrath of those who have benefited

from the wrong action. As a result, in most

cases those who benefit by the illegal

grants/actions by authorities, get away with

the benefit, while others who are not

fortunate to have “connections” or “money

power” suffer. But these are not the grounds

for courts to enforce negative equality and

perpetuate the illegality”

(Emphasis added)

14.The Respondent society claims to have applied before the

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

and deposited requisite charges etc. for regularisation of their

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

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

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

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

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

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

Rajasthan, who had initiated the acquisition proceedings under the

14

Page 15 Act. Furthermore, the society is not in a position to show that the

societies whose lands stood released, were similarly situated to itself

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

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

the Notification under Section 4 of the Act.

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

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

SC 1989 observing :

“66. Unequals cannot claim equality. In

Madhu Kishwar and Ors. v. State of Bihar

and Ors., AIR 1996 SC 1864, it has been

held by this Court that every instance of

discrimination does not necessarily fall

within the ambit of Article 14 of the

Constitution.

67. Discrimination means an unjust, an

unfair action in favour of one and against

another. It involves an element of

intentional and purposeful differentiation

and further an element of unfavourable

bias; an unfair classification.

Discrimination under Article 14 of the

Constitution must be conscious and not

accidental discrimination that arises from

oversight which the State is ready to rectify.

(Vide: Kathi Raning Rawat v. State of

Saurashtra, AIR 1952 SC 123; and M/s

Video Electronics Pvt. Ltd. and Anr. v.

15

Page 16 State of Punjab and Anr., AIR 1990 SC

820).

68. However, in Vishundas Hundumal and

Ors. v. State of Madhya Pradesh and Ors.,

AIR 1981 SC 1636; and Eskayef Ltd. v.

Collector of Central Excise, (1990) 4 SCC

680, this Court held that when

discrimination is glaring, the State cannot

take recourse to inadvertence in its action

resulting in discrimination. In a case where

denial of equal protection is complained of

and the denial flows from such action and

has a direct impact on the fundamental

rights of the complainant, a constructive

approach to remove the discrimination by

putting the complainant in the same position

as others enjoying favourable treatment by

inadvertence of the State authorities, is

required.” (Emphasis added)

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

must take appropriate pleadings, lay down the factual foundation and

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

reach a conclusion, whether the authorities have actually

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

justification for discrimination, assessing the facts of both sets of

cases together.

16

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

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

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

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

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

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

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

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

exercise discretion, taking into consideration a wide variety of

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

warrants such exercise of discretion, the consequences of grant or

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

ensue by such grant or refusal.

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

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

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

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

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

substantial justice will be promoted. Furthermore, while granting such

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

17

Page 18 of the writ petition, whether proper pleadings are being made. Further

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

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

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

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

requisite authority to perform the act demanded. Furthermore, the

authority against whom mandamus is issued, should have rejected the

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

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

opposite party is determined to ignore the demand of the applicant

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

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

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

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

Commissioner of Police, Bombay v. Govardhandas Bhanji, AIR

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

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

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

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

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

18

Page 19 18.This Court in General Officer Commanding v. CBI & Anr.,

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

“…Good faith has been defined in Section

3(22) of the General Clauses Act, 1897, to

mean a thing which is, in fact, done honestly,

whether it is done negligently or not. Anything

done with due care and attention, which is not

malafide, is presumed to have been done in

good faith. There should not be personal ill-

will or malice, no intention to malign and

scandalize. Good faith and public good are

though the question of fact, it required to

be…..In Brijendra Singh v. State of U.P. &

Ors., AIR 1981 SC 636, this Court while

dealing with the issue held:

“In the popular sense, the phrase 'in

good faith' simply means ;honestly,

without fraud, collusion, or deceit;

really, actually, without pretence and

without intent to assist or act in

furtherance of a fraudulent or otherwise

unlawful scheme….. It is a cardinal

canon of construction that an expression

which has no uniform, precisely fixed

meaning, takes its colour, light and

content from the context.”

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

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

cons of the case.

19

Page 20 19. Executive instructions which have no statutory force, cannot

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Corporation of India v. Mrs. Asha Ramchandra Ambedkar &

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

20

Page 21 Mukesh Thakur & Anr., AIR 2010 SC 2620; and Manohar Lal (D)

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

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

aforesaid settled legal propositions.

The material on record revealed, that after entering into an

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

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

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

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

deposited requisite conversion charges on 13.8.1986. However, as

certain developments took place in the interim period, and the

Government of Rajasthan made a public advertisement dated

27.2.1982, asking people to get their agricultural land converted to

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

issued by the Government of Rajasthan enabled the persons/tenure

holders seeking conversion and regularization. The Circular also

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

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

acquisition proceedings, if any. Similar benefits were conferred upon

21

Page 22 those who were purchasers of land subsequent to the issuance of a

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

also extended to cooperative housing societies, which had made

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

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

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

an agreement to sell prior to 20.8.1981.

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

by the Revenue Department, Government of Rajasthan, reads as

under:

“….Land acquisition notifications are

statutorily issued by the Administrative

Department of the State Government and

therefore the lands which are proposed to

be de-acquired will have to be notified by

the Government itself.”

(Emphasis

added)

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

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

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

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

22

Page 23 abandonment of the land acquisition proceedings by the State but it is

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

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

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

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

the land.

The object and purpose of issuing such circulars could be to

regularise the construction of residential houses where the land was

sought to be acquired for residential purposes. Various states have

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

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

compatible with certain modification. Even in absence of such

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

land is acquired for establishing residential, commercial, or industrial

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

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

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

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

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

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

23

Page 24 Anr. v. State of Haryana & Anr., (2005) 10 SCC 162; and Dharam

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

In the instant case land has been acquired for industrial

development. The respondent-society wants the said land for

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

worth acceptance.

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

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

their previous erroneous understanding or interpretation of law.

Statutory authorities or legislature cannot be asked to act in

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

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

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

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

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

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

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

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

24

Page 25 etc. v. The New Delhi Municipal Committee, AIR 1962 SC 554).

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

1925 PC 83, it was held as under:

“..No court can enforce as valid, that

which competent enactments have declared

shall not be valid, nor is obedience to such

an enactment a thing from which a court

can be dispensed by the consent of the

parties or by a failure to plead or to argue

the point at the outset...”

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

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

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

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

those illegal circulars.

24.There was correspondence between the JDA and the appellant

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

with higher officials of the State Government, including the Chief

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

25

Page 26 It was in fact, after the order of this Court dated 9.9.1992, that

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

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

Competent Authority to release the said land in its favour.

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

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

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

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

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

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

where land belonging to persons/institutions who were similarly

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

“Only our land Khasra Nos. 226 to 230 at village

Durgapura without notice to us or Khatedar was ex-parte

acquired under award dated 14.5.84 leaving all others

land of Durgapura notified earlier. Perpetrating

discrimination despite contrary directions by J.D.A.

under Chairmanship of Chief Minister – 105 acre

including our land was fraudulently and in abuse of

power were allotted by RIICO to Diamond and Gem

Development Corporation (DGDC) in a biggest land

scandal with collusive acts of officials of RIICO. The

said DGDC is in big way encroaching on our land despite

the knowledge and notice of order dated 9.9.92 in SLP

No. 165, 67-69/90 - Banwarilal and Or. v. State of

Rajasthan & Ors. Kindly quash allotment of 105 acre

land to DGDC and return land Khasra Nos. 226 to 230 or

26

Page 27 equivalent land to us within seven days and meanwhile

stop all encroachment on our land failing which filing

writ petitions in Hon’ble High Court pursuant to

Supreme Court order dated 9.9.92 at your cost and

consequences.

Subhash Sindhi Housing Co-operative Society Ltd.

and its Members through K.K. Khanna Advocate.”

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

respondent therein, to furnish an explanation of the alleged

discrimination claimed by it. The authorities thereafter, filed

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

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

“The Deputy Secretary Industries (Group I)

Department Rajasthan Jaipur released from

acquisition the land in Durgapura, Khasra No. 137,

measuring 6 Bigha 2 Biswas in village Jaland

chod, Khasra No. 124 measuring 2 Bighas 4

Biswas, Khasra No. 2389 measuring 1 Bigha – 2

Biswas, Khasra No. 250, measuring 0.05 Biswas,

261 measuring 0.08 Biswas in village Dolka Abad

Khasra No. 44 measuring 1 Bigha 11 Biswas,

Khasra No. 45 measuring 2 Bigha 11 Biswas,

Khasra No. 45 measuring 2 Bigha, 13 Biswas, vide

his order Nos. P-(4)/IND/75 dated 19.10.1981 No.

P(4)Ind/1/79 dated 1.1.1982 and No. P5(4) Ind/75

dated 22.6.82. Besides the Industries Department

also released from acquisition the total land

measuring 126 Bighas 13 Biswas vide notification

P5 (4)/Ind/1/75 dated 31.7.1982 in village Jalana

Chod of Khasra No. 177, 181, 182, 184, 185, 186

and 180 min,. and 187, the land which is acquired

27

Page 28 by the Rajasthan Housing Board. All these lands

was de-acquired under Section 48 of the Act

whose possession was not taken by concerned

Department. Assistant Manager (adarboot) RIICO

Jaipur vide his letter No. IPI/3/6-76 dated

31.10.1983 to Deputy Secretary Industries

Department Rajasthan Government recommended

release for acquisition of Khasra No. 126 Min.

measuring 2 Bighas as there being no passage and

there godown being situated there. Therefore, it is

not possible to consider this till final orders are

received. Only after the receipt of the final

decision of the concerned department further

action can be possible.”

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

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

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

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

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

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

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

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

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

land-locked, with no passage to access it.

28

Page 29 27.A large number of issues were agitated before the High Court,

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

allowed the petition merely observing:

“The petitioner Subhash Sindhi Cooperative Housing

Society is contesting only for a limited piece of land

measuring 17 Bighas 9 Biswas which had been acquired

and given to DGDC by the RIICO. The case of the

society is that in view of the observations made by the

Supreme Court in its order, it has pleaded its case in this

petition on the basis that the other land which had been

acquired had been released or it stood de facto released

and the government was itself a party to it in releasing

the acquired land and large number of lands of this nature

de facto stood released from acquisition inasmuch as

houses have been constructed thereon; the Government

itself has acquiesced with such construction and has also

taken steps for regularisation of such construction and the

decision which was taken by the JDA in the meeting

headed by the Chief Minister was implemented qua all

others except the land of petitioner Society, merely

because the petitioner society’s land had been given to

DGDC/RIICO. This small piece of land which is claimed

by the society in the facts and circumstances of the case,

can very well be restored to the Society and to that

extent, land allotted to DGDC can be curtailed without

having any adverse impact on the prospects of business

of DGDC. Facts have come on record through documents

that to start with, DGDC had demanded only 35 acres of

land. This demand was raised from time to time and

ultimately, it reached upto 105 acres. It is also on record

that the RIICO had given only 80 acres of land to DGDC

as against the allotment of 105 acres. In such a situation,

if a small piece of land measuring 17 Bighas 9 Biswas

out of the land allotted to DGDC is restored back to the

petitioner Society it cannot have any adverse impact on

the business prospects of DGDC nor the RIICO may

29

Page 30 have any just objection and the State Government which

has already acquiesced with the release of such acquired

lands in large number of cases, cannot have any

legitimate case to contest the grant of relief to the

petitioner society and the petitioner Society is found to be

entitled for the same on the principles of parity as well as

equity.”

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

RIICO to provide an explanation regarding the release of land in

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

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

as under:

“As per the acquisition proceedings which commenced in

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

Village Durgapura, was 119 Bighas 4 Biswas.

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

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

128, 129, 137, 153 and 156).

- Land of which possession was taken 106 Bighas 18

Biswas.

- Land for which acquisition proceedings were quashed as

per the judgment rendered on 12.7.79 in CWP No.

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

- And thus, the balance land remained 86 Bighas 18

Biswas.

30

Page 31 - Land belonging to the petitioner Subhash Sindhi

Cooperative Housing Society Ltd. – 17 Bighas 9 Biswas.

- After deducting this land measuring 17 Bighas 9 Biswas

from the balance land of 86 Bighas 18 Biswas, the

remaining land measures 69 Bighas 9 Biswas and this is

the land of which although possession was taken during

the acquisition proceedings somewhere in 1982-83 yet on

submission of the scheme plans by various Cooperative

Housing Societies much after taking of the possession

plans were approved in compliance of various orders

issued by the Government of Rajasthan after 1986.

- Compensation to the recorded khatedars of the land was

also paid in terms of the award dated 14.5.1984 and the

amount was duly received by the khatedars/persons

having interest in the land.

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

admeasuring 69 Bighas 9 Biswas of which possession had been taken

in acquisition proceedings, stood released in favour of various group

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

extraneous considerations. Such observation is not based on any

material whatsoever. Learned counsel appearing for the society could

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

31

Page 32 observation could be made. Same remained the position when the

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

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

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

with the government”. While recording the aforesaid findings,

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

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

There are claims and counter claims regarding the payment of

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

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

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

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

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

Durgapura), which stood released from acquisition proceedings, was

also acquired by group housing societies subsequent to the issuance of

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

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

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

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

32

Page 33 of the respondent society. Moreover, in case the government had

assured such release by issuing several circulars or floating schemes,

and the application of the respondent society was in fact pending

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

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

decide the case itself.

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

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

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

notifications for acquisition were issued at Jaipur. The writ petition

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

requirements therein. Learned counsel appearing for the parties could

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

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

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

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

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

have been made in good faith.

33

Page 34 This Court has on various occasions dealt with the similar

situation and explained as where the writ petition is maintainable.

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

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

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

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

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

1 SCC 73).

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

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

understand as for what reasons the State authorities could think to

regularise such orders. The right to administer, cannot obviously

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

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

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

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

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

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

34

Page 35 State of Gujarat & Anr. v. Hon’ble Mr. Justice R.A. Mehra

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

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

inescapable conclusions:

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

even though, a Notification under Section 4 to carry out

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

legal consequences that may arise.

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

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

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

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

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

The petitions in which the aforesaid acquisition proceedings

were challenged were dismissed by the High Court on the

ground of delay and latches.

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

for reasons best known, had filed the writ petition challenging

35

Page 36 the acquisition proceedings at Jodhpur and not at Jaipur bench

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

learned counsel for the respondent society, as regards the

circumstances under which the petition was filed at Jodhpur,

and whether the same was maintainable.

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

faith and the bonafides of the parties, becomes doubtful.

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

as the khatedars are concerned, upto this court.

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

of the land on any ground whatsoever, before the Competent

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

instead, it applied for regularization before the JDA and before

the revenue authorities for conversion of user of the land.

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

by the society to the Chief Secretary stating that great injustice

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

the issue of discrimination qua other societies, but no factual

36

Page 37 foundation was laid therein, pointing out the discrimination

meted out.

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

comparing the actual facts of the respondent society qua other

societies.

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

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

effect that compensation could not be paid to the khatedars for

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

reference was made to an affidavit filed by the State

Authorities. Such findings are absolutely perverse.

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

holders had received compensation for the land in dispute, even

though in the earlier proceedings, some khatedars were parties.

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

that acquiring land after the issuance of Section 4 Notification

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

have been passed without realizing that administration does not

include mal-administration.

37

Page 38 (xiii)The circulars issued by the State Government, being

inconsistent with the policy and the law regarding acquisition,

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

committing fraud upon statutes, and further, tantamounts to

colourable exercise of power. The State in exercise of eminent

domain acquires the land. Thus, before completing the

acquisition proceedings, it should not release the land in favour

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

at any point of time.

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

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

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

to be justified.

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

impugned judgment and order of the High Court dated 30.7.2002 in

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

..………………………….J.

(Dr. B.S. CHAUHAN)

38

Page 39 .…………………………..J.

(V. GOPALA

GOWDA)

New Delhi;

February 12, 2013

39