Jaipur Development Authority & Ors vs Vijay Kumar Data & Anr

Jaipur Development Authority and others ......Appellant

Versus

Vijay Kumar Data and another ......Respondent

WITH

CIVIL APPEAL NO.7375 of 2003

Jaipur Development Authority ......Appellant

Versus

Daya Kishan Data ......Respondent

J U D G M E N T

G.S. Singhvi, J.

1. These appeals filed by the Jaipur Development Authority against

judgment dated 29.7.2002 of the Division Bench of the Rajasthan High

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Court, Jaipur Bench are illustrative of how unscrupulous elements within the

State apparatus connived with the private individuals and succeeded in

partly frustrating one of the most ambitious schemes framed by Urban

Improvement Trust, Jaipur (for short, "the Trust") (predecessor of the

appellant), which came to be popularly known as Lal Kothi Scheme, for

construction of new building of the Legislative Assembly, educational

institutions, stadium complex, district shopping centre, MLA quarters etc.

2. By notification dated 13.5.1960 issued under Section 4 of the

Rajasthan Land Acquisition Act, 1953 (for short, "the 1953 Act"), which

was published in the official gazette dated 29.6.1960, the State Government

proposed the acquisition of 552 bighas 8 biswas land of village Bhojpura

and Chak Sudershanpura for planned development of Jaipur city. The land

was to be utilised for the purpose mentioned in the preceding paragraph.

Declaration under Section 6 was issued on 3.5.1961 and was published in

the official gazette dated 11.5.1961. Thereafter, notice dated 18.7.1961 was

issued to the land owners (Khatedars) under Section 9(1) and (3). Initially,

65 Khatedars filed claims for compensation but this figure swelled to more

than 137 because those who purchased land from the Khatedars after

publication of the notification issued under Section 4 and their

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nominees/sub-nominees also filed claims for compensation. The second

category of persons included Shri Ganesh Narayan Gupta, Advocate and Dr.

Bhagwan Das Khera, both of whom managed to purchase portions of the

acquired land from one of the Khatedars, namely, Shri Vijay Lal son of Ram

Sukhji. The Land Acquisition Officer, Jaipur passed an unusual award

dated 9.1.1964 whereby he not only determined the amount of compensation

payable to the landowners and the beneficiaries of illegal transfers, but also

directed allotment of plots measuring 1000 to 2000 square yards to the

owners, their transferees and nominees/sub-nominees out of the acquired

land.

3. After passing of the award, Shri Ganesh Narayan Gupta filed

execution application and succeeded in getting an order for delivery of

possession of 1500 square yards land in the Lal Kothi Scheme. The revision

filed against the order of Executing Court was dismissed by the High Court

and in that sense, the order passed by the Executing Court became final.

However, as will be seen hereinafter, in view of the judgment of this Court

in Jaipur Development Authority v. Radhey Shyam (1994) 4 SCC 370,

all such orders and judgments will be deemed to have become nullity.

4 4. In the meanwhile, 12 of the awardees filed applications for

enhancement of the compensation. District Judge, Jaipur City, Jaipur

accepted their claim. Simultaneously, he rejected the objection raised by the

State Government that the Land Acquisition Officer did not have the

jurisdiction to allot land in lieu of or in addition to the monetary

compensation. The appeals filed against the judgment of the learned District

Judge were disposed of by the High Court on the basis of compromise

arrived at between the awardees and the Trust.

5. With a view to favour those who manipulated to create documents

showing purchase of land after publication of the notification issued under

Section 4 and who had access to the power corridors, the State and the Trust

deliberately omitted to challenge the direction contained in the award of the

Land Acquisition Officer for allotment of land to the land owners

(awardees), transferees (sub-awardees) and their nominees/sub-nominees.

However when large number of execution applications were filed by the

beneficiaries, the functionaries of the State and the Trust appear to have

become alive to the grave consequences which would have ensued by

implementing the direction given by the Land Acquisition Officer.

Therefore, they questioned the authority of the Land Acquisition Officer to

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give direction for allotment of land. The Executing Court partly upheld the

objection but the revisions filed by the beneficiaries were allowed by the

Division Bench of the High Court, which held that the legality of the award

cannot be challenged in the execution proceedings.

6. During the pendency of litigation before different courts, another

attempt was made by the functionaries of the State to confer legitimacy on

the illegal transactions involving purchase of the acquired land. The then

Minister of Urban Development of Housing, who was also Chairman of the

Trust, constituted a Committee for suggesting the methodology for allotment

of land in terms of the directions given by the Land Acquisition Officer.

The members of the Committee obliged their master i.e. the Minister and

recommended that land be allotted to the beneficiaries of illegal transactions

at the rate of Rs.8/- per square yard. Thereafter, a circular disguised as

policy decision was issued in 1978 for allotment of land to sub-awardees and

their nominees/sub-nominees at the rate of Rs.8/- per square yard.

7. In furtherance of the so called policy decision, draw of lots was held

on 23.12.1980 for allotment of plots to the awardees and the beneficiaries of

illegal transfers of the acquired land and those who were successful were

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allotted plots. This exercise did not satisfy all and those who could not get

plots filed writ petitions questioning the draw of lots. The Division Bench

of the High Court held that the directions given by the Land Acquisition

Officer and the Minister for allotment of plots were ex-facie illegal and had

the effect of defeating the public purpose for which the land was acquired.

Notwithstanding this, the High Court granted relief to the writ petitioners on

the ground of violation of the equality clause enshrined in Article 14 of the

Constitution and directed that they should also be allotted plots as per their

entitlement.

8. In the meanwhile, the Lokayukta of Rajasthan made inquiry under

Section 10 of the Rajasthan Lokayukta and Up-Lokayuktas Act, 1973 in the

matter of illegal allotments of plots in the Lal Kothi Scheme and submitted

report dated 12.11.1992, the operative portion of which reads thus:

"In view of what has been stated above, it is prima facie

established that Smt Kamala, the then Hon'ble Minister, Urban

Development and Housing Department, Government of

Rajasthan-cum-Chairman, JDA Jaipur, Shri M.D. Kaurani, IAS,

the then Commissioner, Jaipur Development Authority and Shri

Subhebhan Mitra, the then Zonal Officer, Lal Kothi Scheme,

JDA, Jaipur, have blatantly misused their official position to

favour a few influential and highly placed individuals and have

also thereby caused wrongful gain to them and wrongful loss to

the Jaipur Development Authority and the public at large. But

Smt Kamala, the then Hon'ble Minister, Urban Development

and Housing Department-cum-Chairman, JDA is not now a

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public servant as defined in Section 2(1) of the Rajasthan

Lokayukta and Up-Lokayuktas Act, 1973 (for short `the Act')

because she has ceased to be a Minister. So investigation is not

being commenced against her but the investigation deserves to

be commenced against S/Shri M.D. Kaurani, IAS and

Subhebhan Mitra under Section 1 of the Act, and I order

accordingly."

However, as has happened with hundreds of similar reports submitted

by the Lokayukta and other statutory authorities entrusted with the task of

making investigation into the acts of favouritism, nepotism and corruption

committed by the bureaucrats and public representatives, no tangible action

appears to have been taken on the recommendations contained in report

dated 12.11.1992.

9. The question whether the Land Acquisition Officer could issue

direction for allotment of land to the awardees, sub-awardees and their

nominees/sub-nominees was considered by this Court in Radhey Shyam's

case. After noticing the provisions of Section 31(3) and (4) of the 1953 Act

on which reliance was placed by the senior counsel appearing for the

respondents, this Court held that the Land Acquisition Officer did not have

the jurisdiction, power or authority to direct allotment of land to the

claimants. This is clearly borne out from the following extracts of paragraph

7 of the judgment:

8 "A reading of sub-section (4) of Section 31, in our considered

view, indicates that the Land Acquisition Officer has no power

or jurisdiction to give any land under acquisition or any other

land in lieu of compensation. Sub-section (4) though gives

power to him in the matter of payment of compensation, it does

not empower him to give any land in lieu of compensation.

Sub-section (3) expressly gives power "only to allot any other

land in exchange". In other words the land under acquisition is

not liable to be allotted in lieu of compensation except under

Section 31(3), that too only to a person having limited interest.

...........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 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 the acquired land for use of public purpose.

Even otherwise on making the award and offering to pay

compensation he is empowered under Section 16 to take

possession of the land. Such land vests in the Government free

from all encumbrances. The only power for the Government

under Section 48 is to denotify the lands before possession is

taken. Thus, in the scheme of the Act, the Land Acquisition

Officer has no power to create an encumbrance or right in the

erstwhile owner to claim possession of a part of the acquired

land in lieu of compensation. Such power of the Land

Acquisition Officer if is exercised would be self-defeating and

subversive to public purpose."

(emphasis supplied)

The Court also considered the question whether the appellant could

challenge the award in the execution proceedings and answered the same in

affirmative. The reasons for this conclusion are contained in para 8 of the

judgment, the relevant portion of which is extracted below:

9 ".....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 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 land in lieu of compensation, the

decree even, if any, under Section 18 to the extent of any

recognition of the directions in the award for the allotment of the

land given under Section 11 is a nullity. It is open to the appellant

to raise the invalidity, nullity of the decree in execution in that

behalf. Accordingly we hold that the execution proceedings

directing delivery of possession of the land as contained in the

award is, invalid, void and inexecutable......"

(emphasis supplied)

10. The legality and correctness of order dated 24.9.1993 passed by the

Division Bench of the Rajasthan High Court in D.B.C.S.A.W. No.680 of

1992 was considered in Secretary, Jaipur Development Authority, Jaipur

v. Daulat Mal Jain and others (1997) 1 SCC 35. This Court noted that the

Lokayukta of Rajasthan had severely criticized the actions of the then

Minister of Urban Development and Housing Department, Commissioner,

Jaipur Development Authority and Zonal Officer of Lal Kothi Scheme,

referred to the Rajasthan Improvement Trust (Disposal of Urban Land)

Rules, 1974 and held:

"Therefore, there was no policy laid by the Government and it

cannot be laid contrary to the aforestated rules and no such

power was given to individual Minister by executive action,

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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 lost right, title

and interest therein, the sub-awardees or nominees, after the

acquisition under Section 4(1), would acquire no title to the

land nor such ultra vires acts of the Minister would bind the

Government. The actions, therefore, taken by the Minister-

cum-Chairman of the appellate authority and bureaucrats for

obvious 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 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 square yards

was acquired, was compensated with allotment of 2000 square

yards and above, which is against the public policy defeating

even the Urban Land Ceiling Act. Would any responsible

Minister or a bureaucrat, with a sense of public duty and

responsibility, transfer such land to sabotage the planned

development of the scheme? Answer has obviously to be in

the negative. The necessary inference is that the policy does

not bear any insignia of a public purpose, but appears to be a

device to get illegal gratification or distribution of public

property defeating the public purpose by misuse of public

office."

(emphasis supplied)

The Court further held that the decision taken by the Minister and the

actions of the bureaucrats were meant to benefit only those who had illegally

secured transfer of land after the publication of the notification issued under

Section 4 and that the so called policy is a policy to feed corruption and to

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deflect the public purpose. This is evinced from para 23 of the judgment,

which is extracted below:

"There is no iota of evidence placed on record that under the so-

called policy, anyone from general public could 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 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 LAO. Directions were given by

the Minister and the bureaucrats acted to allot the land under

the very void acts. They are ultra vires the power. These acts

are in utter disregard of the statute and the rules. Therefore, by

no stretch of imagination it can be said to have the stamp of

public policy; rather it is a policy to feed corruption and to

deflect the public purpose and to confer benefits on a specified

category, as described above."

(emphasis supplied)

The plea of discrimination which found favour with the High Court

was also negatived by this Court by making the following observations:

"The question then is whether the action of not delivering

possession of the land to the respondents on a par with other

persons who had possession is an ultra vires act and violates

Article 14 of the Constitution? We had directed the appellants

to file an affidavit explaining the actions taken regarding the

allotment which came to be made to others. An affidavit has

been filed in that behalf by Shri Pawan Arora, Deputy

Commissioner, that allotments in respect of 47 persons were

cancelled and possession was 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

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when any person had gone to the court to get the orders of the

LAO enforced, the appellant-Authority 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 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 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 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 enforceable at law and persons

having similar right and persons similarly circumstanced,

cannot be denied of the benefit thereof. Such person cannot be

discriminated to deny the same benefit. The rational

relationship and legal back-up are the foundations to invoke the

doctrine of equality in case of persons similarly situated. If

some persons derived benefit by illegality and had escaped

from the clutches of law, similar persons cannot plead, nor the

court can countenance that benefit had from infraction of law

and must be allowed to be retained. Can one illegality be

compounded by permitting similar illegal or illegitimate or ultra

vires acts? Answer is obviously no."

While repelling the argument made on behalf of the respondents that

the judgment in Radhey Shyam's case was per incuriam, this Court

observed:

"The basic postulate of the contention is the omission to refer to

Rules 31 and 36 of the Rajasthan Land Acquisition Rules,

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1956. Rule 31 was made to guide the exercise of power of the

Collector (LAO) under Section 31(3) of the Act. As seen, the

Government has empowered the Collector to allot "any other

land' in lieu of money compensation only when the land

acquired belongs to a person having "limited interest in the

land", like widow's estate or minor's estate, Mutawali etc. In

that behalf, Rule 31 amplifies the exercise of the power by the

authorised LAO. It says that the Collector cannot force a party

to take land in lieu of cash. Where, however, the interest of the

party is so limited, as in the case of a trustee of a wakf property

or a Hindu widow, as to make it extremely difficult, if not

impossible, to arrive at an adequate cash estimate of its value or

where, from the circumstances of a case, it is impossible to

place the parties concerned by cash compensation in the same

or nearly the same position as before acquisition, sub-section

(3) enables the Collector to arrange to award land (subject to

the same limitation of interest) in lieu of cash. In Radhey

Shyam case the scope of sub-section (3) of Section 31 has been

considered and explained in extenso. Rule 31 is only to

elongate the discretion which the LAO is expected to exercise

in awarding land in lieu of cash consideration and the

circumstances in which it would be done. Equally, Rule 36

deals with disposal of the excess land acquired by the Collector

for a company and imposition of the conditions for sanction of

transfer of excess land. Therefore, the absence of reference to

them does not make any dent into the principle of law laid in

Radhey Shyam case."

11. In Narpat Singh v. Jaipur Development Authority (2002) 4 SCC

666, this Court again considered whether the Land Acquisition Officer could

direct allotment of plots measuring 1000 to 2000 sq. yds. to the landowners

and their transferees etc. The appellants in that case were the owners of

some parcels of land acquired by the State Government. They were also

beneficiaries of the direction given by the Land Acquisition Officer. After

14

disposal of the appeals filed by the Trust against the award passed by

District Judge, Jaipur City, Narpat Singh and others filed execution

application seeking implementation of the award made by the High Court.

The appellant, who had succeeded the Trust, did not contest the application.

Therefore, the Executing Court passed ex parte order and issued warrant of

possession. The revisions filed against the order of the Executing Court

were dismissed by the High Court, but in the special leave petitions, this

Court gave liberty to the State Government and the appellant to raise

objections before the Executing Court with a direction to the latter to decide

the same after hearing the parties. Thereafter, the Executing Court

reconsidered the matter and passed order dated 1.6.1990 whereby it rejected

the objections filed against the prayer made by Narpat Singh and others for

delivery of possession of the plots. This time, the High Court allowed the

revision filed against the order of the Executing Court and declared that the

earlier judgment, which was based on compromise, suffered from inherent

lack of jurisdiction and, as such, the same could not be executed. In taking

this view, the High Court relied upon the judgments of this Court in Radhey

Shyam's case and Daulat Mal Jain's case. Before this Court, it was

argued that the law laid down in the two cases was not applicable to the

appellants' case because the decree was passed in their favour in terms of the

15

compromise, but this argument was not accepted by the Court and the

appeals were dismissed by making the following observations:

"Without entering into the question whether it is permissible for

the Land Acquisition Officer or the Reference Court or the

High Court hearing an appeal against an award made by the

Reference Court to record a compromise whereunder the

beneficiary of land acquisition agrees to offer land in lieu of

monetary compensation and whether such a compromise would

be legal and not opposed to public policy, we are of the opinion

that the facts and circumstances of this case are enough to

decline exercise of jurisdiction by this Court under Article 136

of the Constitution to the appellants. The exercise of

jurisdiction conferred by Article 136 of the Constitution on this

Court is discretionary. It does not confer a right to appeal on a

party to litigation; it only confers a discretionary power of

widest amplitude on this Court to be exercised for satisfying the

demands of justice. On one hand, it is an exceptional power to

be exercised sparingly, with caution and care and to remedy

extraordinary situations or situations occasioning gross failure

of justice; on the other hand, it is an overriding power

whereunder the Court may generously step in to impart justice

and remedy injustice. The facts and circumstances of this case

as have already been set out do not inspire the conscience of

this Court to act in the aid of the appellants. It would, in our

opinion, meet the ends of justice, and the appellants too ought

to feel satisfied, if monetary compensation based on the

principles for assessment thereof in land acquisition cases is

awarded and in addition they are given each a plot of

reasonable size to rehabilitate themselves so as to meet the

demands of reasonability and consistency."

12. We may now advert to the facts of these cases. Shri Ganesh

Narayan Gupta, who had purchased the acquired land in 1963 i.e. much after

publication of the notification issued under Section 4 and declaration issued

under Section 6, filed suit for injunction, which came to be registered as

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Civil Suit No.629/1983 and was renumbered as Civil Suit No.270/1985 with

the prayer that the defendant (appellant herein) may be restrained from

interfering with his possession over plot Nos.C-112 to C-115, Lal Kothi

Scheme. During the pendency of the suit, Ganesh Narayan Gupta

transferred the plots to the respondents and two others by registered sale

deeds, who were impleaded as plaintiff Nos. 2 to 5 vide order dated

19.1.2001. Shri Ganesh Narayan Gupta claimed title over the plots on the

basis of the sale deed executed in his favour by Khatedar - Shri Vijay Lal

and subsequent allotment of plots in his favour by the Trust. The

respondents laid their claim on the basis of registered sale deeds dated

18.4.1993 executed in their favour by Shri Ganesh Narayan Gupta.

13. In the written statement filed on behalf of the appellant, it was

pleaded that in view of the judgments of this Court in Radhey Shyam's case

and Daulat Mal Jain's case, the orders passed in favour of Shri Ganesh

Narayan Gupta as also the allotment of plots by the Trust were nullity and,

as such, he did not acquire any right over the suit land and he could not have

transferred the plots to the respondents.

17 14. On the pleadings of the parties, the trial Court framed the following

issues:

"1. Whether the plaintiff is owner in possession over the plot

since 24.12.82.

2. Whether the defendant out of prejudice and anger is

neither accepting the application and site plan from the plaintiff

nor is approving them.

3. Whether the defendant wants to demolish the

construction existing on the disputed plot in an illegal manner

without giving notice?

4. Whether against handing over possession in execution

proceedings, appeal has been preferred and what is its effect on

the suit.

5. Whether possession of the plaintiff is not legal

possession and he is encroacher.

6. Relief.

Additional Issue No.7

7. Whether the plaintiff No.1 has cased to have any interest

with the property in dispute. In place of plaintiff No.1, the

plaintiffs Nos. 2 to 5 have got right over the disputed property

in consequence of sale of property."

15. The trial Court considered the evidence produced by the parties,

referred to the judgments of this Court in Radhey Shyam's case and Daulat

Mal Jain's case and held that plaintiff No.1 - Shri Ganesh Narayan Gupta is

not entitled to relief of injunction because he could not prove his ownership

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over the suit land. The process of reasoning by which the trial Court reached

this conclusion is evinced from the discussion made under issue No.1, the

relevant portions of which are extracted below:

"The burden of proof regarding this issue lay on the

plaintiffs part. The plaintiff side was required to prove that

since 24.12.82 he has been owner in possession over the plot

in dispute. The case of the plaintiff as per plaint is that on

6.1.64 the Land Acquisition Officer passed a joint award

under which the land of the plaintiff No.1 was also acquired

and the plaintiff No.1 was recommended a residential plot of

1500 square yards and compensation amount in lieu thereof

as mentioned in the award. When the defendant as per the

award did not give plot of land and compensation to the

plaintiff No.1, then he filed execution application and over

so many dates when compliance of the award was not made,

then warrant of possession was issued from the court and the

court through sale Ameen handed over physical possession

on site by beating the drum on 24.12.82. The plaintiff since

then as per para 5 of the plaint has been in possession over

the disputed plot situated in Lal Kothi Bhojpura and Chak

Sudarshanpura Scheme. The defendant in the written

statement has denied these facts alleging to be wrong and

has stated that under the judgment of Hon'ble Supreme

Court, the Award in respect of the disputed land has been set

aside. Filing of execution application by the plaintiff is

admitted and rest of the averment is denied.

The plaintiffs have not led any oral and documentary

evidence in support of their case inspite of affording

opportunity nor filed process fee for summoning the record

of Execution Case nor obtained dasti from the court. The

plaintiffs for continuously five years have not taken any

steps for summoning the record of Execution Case inspite of

court direction nor adduced any evidence while on the other

hand the defendant produced in evidence officer incharge

Shri Maghraj Ratnu D.W.1, who has stated in his statement

that the Land Acquisition Officer passed award dated 9.1.64

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for the land in connection with planned development under

the Lalkothi Scheme under which besides cash

compensation simultaneous recommendation to allot plots of

different size was made. Many awardees were allotted plots.

In this connection various litigations were initiated in the

Court. Similar award was passed in the year 1974. In the

case of Civil Appeal J.D.A. versus Radheyshyam and others

and Secretary J.D.A. versus Daulatmal Jain and others the

Hon'ble Supreme Court has affirmed payment of

compensation to be right and recommendation regarding

allotment of plots is held to be illegal and void. The Land

Acquisition Officer while passing the award for

compensation was not competent to recommend for

allotment of plot of land in lieu thereof. In this way the

plaintiffs have got neither any proprietary right nor any

possession over the disputed plot of land. The plaintiffs

have concealed the facts. The plaintiff Ganesh Narayan has

not been allotted plot of land by the J.D.A.

The plaintiff has not cross examined the said witness D.W.1

produced by the defendant in evidence. I have sought

guidance from judgments in both the cited cases namely

Civil Appeal No.12370/96 Secretary J.D.A. versus

Daulatmal Jain and Civil Apepal No.4209 and 4210/09. In

both the judgments the Hon'ble Supreme Court has held

award in respect of allotment of plot of land by way of

compensation under the Lalkothi Scheme to be illegal and

initially null & void. The plaintiffs have not rebutted the

evidence adduced from the defendant's side nor produced

any evidence. In the light of citations produced the

ownership of the plaintiff No.1 over the disputed plot since

24.12.82 is not found. For want of evidence the possession

of the plaintiff is also not proved. Consequently this issue is

decided against the plaintiff."

16. After purchasing the plots from Shri Ganesh Narayan Gupta, the

respondents filed applications under Section 83 of the Jaipur Development

20

Authority Act, 1982 (for short, "the 1982 Act") questioning notice dated

19.12.1996 issued by the appellant for auction of the two plots. The

Appellate Tribunal constituted under the 1982 Act (hereinafter referred to as,

`the Tribunal'), relied upon the judgments in Radhey Shyam's case and

Daulat Mal Jain's case and held that the respondents do not have the locus

to challenge the proposed auction because transactions involving purchase of

land by Shri Ganesh Narayan Gupta from the original Khatedar and

subsequent purchase of plots by the respondents were nullity. Paragraphs 7,

9 and 11 of order dated 22.1.1997 passed in Vijay Kumar Data's case

(identical order was passed in Daya Kishan Data's case), which contain the

detailed reasons recorded by the Tribunal are extracted below:

"7. The Land Acquisition Act provides some

powers and jurisdiction in favour of the Land Acquisition

Officer, but simultaneously regarding awarding of land out of

the land acquired to the khatedar or erstwhile owner some

powers are vested about which the Hon'ble High Court in

1994(4) S.C.C. 370 and earlier cited judgment in the case of

J.D.A. versus Daulatmal Jain, it is clearly laid down that the

Land Acquisition Officer out of the acquired land at the time of

passing the Award cannot award land by way of consideration

and if he has done so, the act of the Land Acquisition Officer is

ab initio void, illegal and ineffectual and on that basis no

proprietary rights can accrue in respect of that land in favour of

any body and the Award which in the shape of a decree has

reached the final stage that too cannot bestow any right upon

the appellant, because this decree is ab initio void, illegal and

proceedings done in compliance of it and possession given is

also illegal and irregular. The Hon'ble Supreme Court in this

judgment under citation has held the allotment of the plot to be

21

illegal. In view of these two cited judgments it is clearly

ensured that the Land Acquisition Officer had no right to award

land by way of consideration out of the acquired land and on

the basis of ab initio void and illegal act Ganesh Narayan Gupta

could never acquire proprietary right because neither Ganesh

Narayan Gupta could be owner of this acquired land nor the

Land Acquisition Officer award any basis for right of

ownership to Ganesh Narayan Gupta. Thus on the given land no

right of ownership is accrued in favour of Ganesh Narayan

Gupta and entire subsequent proceedings done in respect of this

land is void in itself. Under the circumstances in view of the

cited judgment of Hon'ble Supreme Court when Ganesh

Narayan had no proprietary right, then after him question does

not arise that the subsequent owners would have any right.

Therefore the appellant also cannot have any basis or right in

respect of this land.

9. When the notification under section 4

regarding acquisition of this land was published on 19.6.60 and

declaration under section 6 was published in 1961, then Ganesh

Narayan had no right to purchase this land in 1963 and after

publication of this notification out of the land to be acquired if

Ganesh Narayan at all purchased any land, even then

no right of ownership can accrue to Ganesh Narayan Gupta in

respect of this land. Thus the act of Ganesh Narayan to

purchase this land is in contravention of rules and is void.

11. The act of the Land Acquisition Officer of

giving plot of land to Ganesh Narayan out of the land acquired

is ab initio void, publication of notifications under sections 4

and 6 in 1960 and 61 and after publication of this notification

purchasing of land by Ganesh Narayan and subsequently by the

appellant from Ganesh Narayan is void, and no right is

available under the circumstances to the appellant and on the

basis of law laid down in the cited judgments in 1994(4) S.C.C.

370 and in J.D.A. versus Daulatmal Jain, the appellant has

failed to establish any of his right or basis. Therefore, this

appeal of the appellant against the respondent is not

maintainable."

22

(emphasis supplied)

17. The respondents challenged the orders passed by the Tribunal in S.B.

Civil Writ Petition Nos.1047 of 1997 and 1046 of 1997. They pleaded that

by virtue of the sale deeds executed by Shri Ganesh Narayan Gupta, they

have become owners of the plots and the appellant has no right to auction

the same. They relied upon Section 144 of the Code of Civil Procedure and

claimed that the appellant is duty bound to restore the land to them because

the action taken for depriving them of the possession was wholly illegal.

18. In the written statement filed on behalf of the appellant, it was pleaded

that plot Nos.C-113 to C-117, Lal Kothi Scheme were allotted to Bhagwan

Das Khera in 1979 but, later on, the said allotment was cancelled. It was

further pleaded that in view of the law laid down by this Court in Radhey

Shyam's case and Daulat Mal Jain's case, the allotment made in favour of

Shri Ganesh Narayan Gupta in compliance of the order passed by the

Executing Court has to be treated as nullity and he had no right to transfer

the plots to the writ petitioners.

19. The learned Single Judge dismissed the writ petitions by observing

that the dispute regarding title of plot Nos.C-113 to C-114 cannot be decided

23

under Article 226 of the Constitution. The learned Single Judge noted that

no material was placed before the Court to show that the two plots were

allotted either to the original Khatedar or to the writ petitioners whereas the

respondents had produced documents to prove that the plots were allotted to

one Bhagwan Das Khera and the allotment made in his favour was also

cancelled.

20. The Division Bench of the High Court did not find any error in the

view taken by the learned Single Judge that dispute relating to title of the

property cannot be decided under Article 226 of the Constitution of India,

but entertained and accepted an altogether new case put forward by the

counsel for the writ petitioners (the respondents herein) that in terms of the

policy decision taken by the State Government, which was circulated vide

letter dated 6.12.2001 and order dated 9.1.2002 passed by another Division

Bench in D.B. Civil Writ Petition No.5776/2001 (suo motu) - Rajasthan

High Court v. State of Rajasthan and others, his clients were entitled to

regularization of the plots in question.

21. Shri S.K. Bhattacharya, learned counsel for the appellant assailed the

impugned judgment mainly on the ground that it runs contrary to the law

24 laid down in Radhey Shyam's case and Daulat Mal Jain's case. Learned

counsel submitted that in view of the declaration of law made in Radhey

Shyam's case that the Land Acquisition Officer did not have the jurisdiction

to allot land to the awardees, sub-awardees and their nominees/sub-

nominees, the so-called policy framed by the State Government for

regularisation of illegal allotments is liable to be treated as nullity and the

Division Bench of the High Court committed serious error by extending the

benefit of that policy to the respondents ignoring that Shri Ganesh Narayan

Gupta from whom they had purchased the plots did not have title over the

land and also that no such case was set up in the writ petition filed by them.

Shri Bhattacharya then argued that the concurrent finding recorded by the

Tribunal and the trial Court that the transaction involving purchase of land

by Shri Ganesh Narayan Gupta after publication of the notification under

Section 4 was nullity is binding on the respondents and they did not have the

locus to take benefit of the so called policy of regularization contained in

letter dated 6.12.2001.

22. Shri M.L. Lahoty, learned counsel for respondent - Vijay Kumar Data

argued that the order passed by the Executing Court for delivery of

possession of 1500 square yards land to Shri Ganesh Narayan Gupta will be

25

deemed to have become final and is binding on the appellant because

revision filed against that order was dismissed by the High Court and it is

not open for the appellant to indirectly question the allotment of plot Nos. C-

113 to C-117 to Shri Ganesh Narayan Gupta. Shri Lahoty submitted that in

compliance of the direction given by the Executing Court, the concerned

authority had delivered possession of the plots to Shri Ganesh Narayan

Gupta and being bonafide purchasers, the respondents are entitled to seek

protection of their possession. He then argued that the policy contained in

circular dated 6.12.2001 is based on the decision taken by the Cabinet Sub-

Committee and the Division Bench of the High Court did not commit any

error by directing regularisation of the allotment of plot Nos.C-113 to C-114

in favour of the respondents by relying upon order dated 9.1.2002 passed by

the coordinate Bench in D.B. Civil Writ Petition No.5776 of 2001 (Suo

Motu). Shri Lahoty pointed out that in furtherance of the policy decision

taken by the State Government, the appellant has executed lease deeds in

favour of large number of persons who had been benefited by the direction

contained in the award passed by the Land Acquisition Officer and argued

that the appellant cannot adopt different yardsticks while dealing with

similarly situated persons.

26 23. In furtherance of the liberty given by the Court on 31.3.2011, Shri

M.L. Lahoty filed written arguments on 7.4.2011 enclosing therewith

documents marked as Annexures `A' to `E'. Of these, Annexure `A' is

xerox copy of order dated 20.11.1987 passed by Civil Judge, Jaipur City,

Jaipur whereby he dismissed an application filed by Dr. Bhagwan Das Khera

under Section 47 read with Order XXI Rules 97 and 99 of the Code of Civil

Procedure, 1908. Annexure `B' is the copy of sale deed dated 18.4.1993

executed by Shri Ganesh Narayan Gupta in favour of respondent-Vijay

Kumar Data. Annexure `C' is the copy of order dated 30.10.2001 by which

a Committee consisting of Minister of Urban Development, Home Minister,

Finance Minister, Industries Minister, State Minister for Mines was

constituted for solving the problems pertaining to regularisation of illegal

construction and encroachment of land in the Lal Kothi and Prithviraj Nagar

Schemes. Annexure `D' is xerox copy of order dated 9.1.2002 passed by the

Division Bench of the High Court in D.B. Civil Writ Petition No.5776 of

2001 (Suo Motu). Annexure `E' is a bunch of lease deeds dated 1.1.2003,

24.8.2002 and 16.8.2002 executed by the appellant in favour of different

persons in respect of different plots of land situated in the Lal Kothi Scheme.

27 24. Shri A.D.N. Rao, learned counsel for Smt. Sunita Agarwal, whose

application for impleadment was allowed on 31.3.2011, argued that the

direction given by the Division Bench of the High Court should be set aside

because plot No.C-114, Lal Kothi Scheme was purchased by his client in the

auction held by the appellant on 26.12.1996. Shri Rao pointed out that

possession letter was issued in favour of his client on 17.6.2000 and

registered sale deed was executed on 21.6.2000. Similar prayer has been

made on behalf of Shri D.S. Bhandari and two others, who also filed

impleadment application being I.A. No.3/2008. In that application, it has

been averred that the applicants were successful in the auction held by the

appellant on 19.6.2000 in respect of plot No.C-113, Lal Kothi Scheme and

after deposit of the entire money, the appellant executed sale deed dated

7.4.2005 and delivered possession on 13.5.2005. It has been further averred

that after getting necessary approval from the appellant on 23.1.2007, the

applicants have constructed house on the plot and occupied a portion thereof

and leased out another portion to one Mr. Vijay Sharma.

25. We have considered the respective arguments and submissions and

carefully scanned the records. We have also gone through the written

arguments furnished by learned counsel for respondent - Vijay Kumar Data.

28 26. The first question which needs consideration is whether the Division

Bench of the High Court could have granted relief to the respondents by

entertaining an altogether new case set up by their counsel with reference to

the so called policy framed by the State Government for regularization of the

illegal allotments / encroachments of the acquired land in the Lal Kothi and

Prithviraj Nagar Schemes.

27. It is not in dispute that the only issue raised in the writ petitions filed

by the respondents was whether the Tribunal was right in dismissing the

applications filed by them against the auction of plot Nos. C-113 and C-114,

Lal Kothi Scheme. The Tribunal had negated the respondents' challenge on

the ground that Shri Ganesh Narayan Gupta from whom they had purchased

the plots vide sale deeds dated 18.4.1993 did not have valid title. The

Tribunal noted that Shri Ganesh Narayan Gupta had purchased land from its

Khatedar Shri Vijay Lal son of Shri Ram Sukhji after publication of the

notification issued under Section 4 and held that such transactions did not

create any title in his favour. The Tribunal also relied upon the judgments of

this Court in Radhey Shyam's case and Daulat Mal Jain's case and held

that once the Supreme Court had declared the transactions involving

purchase of the acquired land and the direction given by the Land

29

Acquisition Officer for allotment of land to the awardees, sub-awardees and

their nominees/sub-nominees to be nullity, the transferees of such purchasers

cannot claim any right over the plots which were auctioned by the appellant.

In the opinion of the Tribunal, when the purchase of land by Shri Ganesh

Narayan Gupta was null and void, he could not have transferred a valid title

in favour of the respondents so as to enable them to challenge the

advertisement issued by the appellant for auction of the two plots. The

learned Single Judge dismissed both the writ petitions primarily on the

ground that the disputes questions of fact relating to title of the plots cannot

be determined under Article 226 of the Constitution and the writ petitioners

are free to avail any other alternative remedy for determination of their

rights.

28. What is most significant is that till the disposal of the writ petitions by

the learned Single Judge, the seeds of the so called policy decision, which

was allegedly circulated vide letter dated 6.12.2001 had not even been sown.

A reading of Annexure `C', which forms part of the written arguments filed

by Shri M.L. Lahoty, learned counsel for respondent - Vijay Kumar Data,

shows that the Committee of Ministers was formed vide order dated

30.10.2001 to suggest solution of the problems in the regularization of

30

illegal constructions/encroachments of land under the Lal Kothi and

Prithviraj Nagar Schemes in relation to which several cases were pending in

different Courts. The recommendations made by the Committee were given

the colour of the Government's decision (though, no material has been

placed on record to show that the recommendations made by the Committee

were accepted by the State Government) as would appear from letter dated

6.12.2001 written by Deputy Secretary (Administration), Urban

Development Department to the Secretary, Jaipur Development Authority,

Jaipur. That letter reads as under:

"GOVERNMEN OF RAJASTHAN

URBAN DEVELOPMENT DEPARTMENT

No.F.3(32)UDD/3/2001 Jaipur Dated: Dec. ,2001

6 DEC 2001

The Secretary,

Jaipur Development Authority,

Jaipur.

Subject: Regarding regularization of illegal construction / encroachment under Lai Kothi Scheme.

Sir,

In the above context it is stated that under the Ministerial Secretariat

Order No.F. 4(1)M.M./99 dated 30th October, 2001 for the solution of

problems arising from comp1ications of regularization of illegal

construction/encroachments under Lal Kothi and Prithviraj Nagar

Schemes, a sub committee was constituted. This Sub Committee

comprised of Minister, Urban Development as convenor and Home

Minister, Finance Minister, Minister for Industries and State Minister

for minerals were nominated its members and Secretary

Administration, Urban Development Department was nominated as

member secretary of this sub committee.

31

The Committee discussed in detail over various aspects of Lal Kothi

Scheme and after taking into consideration the entire facts

unanimously took the following decision:

1. As per the awards pronounced so far under the Lal

Kothi Scheme, whatever amount is due for payment to the

awardees, that may be paid to the concerned cultivators.

2. The awardees who besides compensation amount could not be

allotted plot of land or after allotment were cancelled, may now be

allotted per awardee a plot measuring 250 square yards in other

schemes of J.D.A. Such plot be awarded at rate of 25 percent of the

prevalent residential reserved rate under the scheme.

3. The developed and vacant plots be regularized in the similar

manner. These may be regularized at the following rates:

up to 200 sq.yards 25 percent of the reserved

A) residential rate.

B) More than 200 sq. yards 35 percent of the reserved

residential rate

4. In the remaining cases of worth regularizing plots of

Everest and Salt colonies (which are about 80 plots) which

could not be regularized inspite of decision of 1976, the rate of

regularization is fixed at 25 percent of the reserved residential

rate.

5. In connection with regularization of the plots the

amount on the basis of self-assessment be asked to be deposited

by 28.2.2002.

6. Those who fail to get regularisation within stipulated

time limit, it is decided to afford them opportunity of

depositing the amount by 31.3.2002 with 5 per cent, additional

amount to obtain regularization. After expiry of the said date, it

is decided that no regularization be done and after notice to

such occupants over the plots their construction shall be

demolished and such plot's shall then vest in the Authority and

32

for the purpose of rehaoi1itation they shall be allotted as

residential plots under other schemes of Jaipur Development

Authority.

7. The plots which are not regularized under this order, they

be finally refused and their list be published in the news paper,

and possession on the site if any, be removed.

8. The awardees/sub awardees whose allotments have not

yet been cancelled, but they have construction on site of their

plots, it is decided that their earlier allotment be cancelled and

treating the plot as acquired, on the basis of possession, be

regularized under this order. I t is decided to adjust the amount

deposited earlier. On interest shall be chargeable on this

amount.

9. In the cases wherein litigation is pending in courts, in

connection with them it is decided to follow action as under:

(a) Such of the vacant plots where there is stay order

from the court or any adverse order etc. in force and

which have been taken over in possession by the Jaipur

Development Authority as per rules, i t is decided to sell

them through auction. It is decided to draw a list or such

plots.

b) In cases of acquired or under

acquisition and / plot of land/constructed building

which is under effect of any order or stay order

from the court, in connection with them it is

decided to follow action as under:

Where in connection with acquired or under

acquisition land/plot of land/constructed building stay

order/order for status quo is issued in favour of cultivator,

it is decided to follow regularization proceeding in favour

of such cultivator treating the land/ plot of land/

constructed building in his favour. I f the order/ stay

order/ order for status quo is in favour of J.D.A. then

treating the concerned plot/land to be of J.D.A. i t is

33

decided to follow further taken and such plot/land is

decided not to be regularized. On the contrary i f such

orders are in favour o f other person and he is i n

possession, and he withdraws the case from the court,

then regu1arization o f that p l o t / land be done i n hi s

favour. In cases of plots where J.D.A. has gone in appeal

and no decision i s taken by the court in favour of the

Authority then honouring the judgment of the court below, case

shall be withdrawn by the J.D.A. the plot/ land/ constructed

building is decided to be regularised in favour of concerned

person. In such cases the basis of regularization will be physical

possession. In connection with regularization on above basis,

the Samjhota Samiti will review each and every case and give

its decision which shall he binding on J.D.A.

10. In connection with land under acquisition, land of

9 bigha 6 biswa of Pratap Nursary, 5 bigha of Anand

Nursary, 2 bigha 12 biswa of Kailashwati, Maharchand & Sons

is decided not to acquire. Simultaneously i t is decided to

regularize on payment of 25 percent of reserved residential rate

of these land.

No decision was taken in connection with land of

Amrudon Ka Bagh. It is thought proper to take any action after

decision from Delhi High Court.

Yours faithfully,

Sd/- 6.12.01

(H.S. Bhardwaj)

Dy. Secretary Administration"

29. In our view, the Division Bench of the High Court committed serious

error by entertaining an altogether new case set up on behalf of the

respondents, who had not even prayed for amendment of the pleadings and

granted relief to them by declaring that they are entitled to get benefit of the

34

policy of regularization contained in letter dated 6.12.2001. It is difficult, if

not impossible, to comprehend as to how the Division Bench could rely

upon the so called policy decision taken by the Government in flagrant

violation of the two judgments of this Court wherein it was categorically

held that the transactions involving transfer of land after the issue of

notification under Section 4 were nullity and the Land Acquisition Officer

did not have the jurisdiction to direct allotment of land to the awardees/sub

awardees, their nominees/sub-nominees. The basics of judicial discipline

required that the Division Bench of the High Court should have followed the

law laid down by this Court in Radhey Shyam's case and Daulat Mal

Jain's case and refused relief to the respondents.

30. Another grave error committed by the Division Bench of the High

Court is that it ignored the unchallenged findings recorded by the Tribunal

and the trial Court that the transferor of the respondents, namely, Shri

Ganesh Narayan Gupta did not have valid title over the land and he had no

right to secure allotment of 1500 sq. yds. land in the Lal Kothi Scheme and

that the order passed by the Executing Court for delivery of possession was

liable to be ignored in view of the law laid down in Radhey Shyam's case

and Daulat Mal Jain's case.

35

31. At this juncture, we may notice order dated 9.1.2002 passed by the

Division Bench of the Rajasthan High Court in D.B. Civil Writ Petition

No.5776/2001 (Suo Motu) titled Rajasthan High Court v. State of Rajasthan

and others. The preface of that order shows that a learned Single Judge of

the High Court had suo motu taken cognizance of three different news items

dated 8.12.2001, 10.12.2001 and 11.12.2001 published in the daily

newspaper - Rajasthan Patrika, Jaipur edition. The first news item

highlighted the grievance of one Lali Devi against the construction of road

through her land. The second news item related to regularization of the Lal

Kothi Scheme and the third news item related to the alleged irregularities

committed in the construction of high rise buildings. When the matter was

listed before the Bench, which had the roster to hear such matters, it was felt

that the issue raised in the order passed by the learned Single Judge who, in

our considered opinion, was not at all justified in suo motu taking

cognizance of the newspaper reports and the order made by him could

appropriately be termed as coram non judis, directed that the matter be

placed before the Division Bench. On behalf of the State Government and

the appellant, affidavits were filed to justify the so called policy contained in

letter dated 6.12.2001. 15 villagers of village Herver and some residents of

36

Everest Colony, Lal Kothi also appeared before the Division Bench through

their advocates. While dealing with the second news item, the Division

Bench did take cognizance of the fact that people having connection in the

power corridors and those who were economically affluent had illegally

taken possession of the acquired land and raised construction, but approved

the so called policy decision taken by the State Government to regularize the

illegal transfers. The reasons recorded by the Division Bench of the High

Court for adopting this course are extracted below:

"The second item with regard to the regularisation of Lal Kothi

Scheme is concerned, declaration has been taken as a

part of the policy by the Government and there is ample

authority o f law to support the contention that such policy

decisions cannot be made the subject matter of the judicial

review. No doubt in the cases where any policy decision is

taken for any reasons which are against the public interest,

the judicial review is possible, but in case of this nature,

'it cannot be said in the facts and circumstances of this

case which have been established before us with

support of documents Including documentary evidence of

contemporaneous nature that public interest has not suffered in

any manner by the decision of regu1arisation. To bring an end

to a 40 years prolonged agony of litigation without any avail

to the State, realising the ground realities that

demolition of hundreds of constructed houses of the

members of public belonging to middle/lower middle

class is a tough task coupled with other considerations

which are germane, if the popular (elected) Government

has taken a policy decision in tune with the pulse of masses,

it is difficult for this Court to say that it is contrary to public

interest. Public interest litigation is of-course meant to protect

the rights and to take care of the problems of those who

cannot take care of themselves in want of awareness of their

37

own rights or to espouse a common cause and in such

cases, the cognizance can certainly be taken by the Court even

by way of suo-motu action in a given case on the basis of

the news item or otherwise, but the public interest is neither

an unbridled nor an unruly horse, which can enter any arena

in an aimless race. In view of the reply public

interest is transparent in the State action and we are satisfied

and convinced that had there been a correct and complete

disclosure of full facts perhaps the cognizance may not

have been taken by the Court suo-motu. Be that as it may,

now that the full facts have come on record and we have

heard all the parties which are present, we have no hesitation

in holding that in the instant case, there is no scope of any

judicial review and to sit over the wisdom of the state

functionaries and therefore, no interference is warranted by

this Court with the decision which has been taken by the

Government, as a part of public policy. In larger public

interest even if the Government has to pay a

little price, it is a small price in deed, which has to be paid,

if at all we want the object of a welfare State to prevail.

It may also be observed in all fairness to the State that

after the suo-motu action had been taken by this Court and the

notices had been issued, the Government has shown due regard

for Court's cognizance by, staying its own order as it is stated

before us that the State Government honoured the pendency of

the matter in Court by directing the J.D.A. vide order dated

31st December, 2001 not to act upon the decision dated 6th

December, 2001 and not to proceed further with the process of

regu1arisation and has directed the J.D.A. to produce all the

relevant records before the Court. It is, therefore, clear that the

decision as had been taken on 6th December, 2001 had been

stayed by the Government itself, showing due regard for the

action initiated by the Court. Having heard all the parties, we

find that the policy decision hardly warrants any interference by

this Court. The Government and all concerned are free to

proceed on the basis of the order dated 6th December, 2001 as

had been passed by the Government."

38

32. In our opinion, the High Court had undertaken a wholly unwarranted

and unjustified exercise for putting the seal of approval on the so called

policy contained in letter dated 6.12.2001 and, that too, by ignoring the law

laid down by this Court in Radhey Shyam's case and Daulat Mal Jain's

case. What the High Court has done is to legitimised the transactions, which

were declared illegal by this Court and this was clearly impermissible. The

High Court's understanding of the so called policy framed by the

Government was clearly erroneous. The letter written by Deputy Secretary

(Administration), Urban Development Department to the Secretary, Jaipur

Development Authority, Jaipur cannot, by any stretch of imagination, be

treated as a policy decision taken by the State Government. No document

was produced before the High Court and none has been produced before us

to show that the recommendations made by the Committee of Ministers had

been approved by the State Government culminating in issuance of a policy

circular. It is trite to say that all executive actions of the Government of

India and the Government of a State are required to be taken in the name of

the President or the Governor of the State concerned, as the case may be

[Articles 77(1) and 166(1)]. Orders and other instruments made and

executed in the name of the President or the Governor of a State, as the case

may be, are required to be authenticated in such manner as may be specified

39

in rules to be made by the President or the Governor, as the case may be

[Articles 77(2) and 166(2)]. Article 77(3) lays down that:

"The President shall make rules for the more convenient

transaction of the business of the Government of India, and for

the allocation among Ministers of the said business."

Likewise, Article 166(3) lays down that:

"The Governor shall make rules for the more convenient

transaction of the business of the Government of the State, and

for the allocation among Ministers of the said business insofar

as it is not business with respect to which the Governor is by or

under this Constitution required to act in his discretion."

Article 166 was interpreted in State of Bihar v. Kripalu Shankar

(1987) 3 SCC 34 and it was observed:

"Now, the functioning of Government in a State is governed by

Article 166 of the Constitution, which lays down that there shall

be a Council of Ministers with the Chief Minister at the head, to

aid and advise the Governor in the exercise of his functions

except where he is required to exercise his functions under the

Constitution, in his discretion. Article 166 provides for the

conduct of government business. It is useful to quote this

article:

`166. Conduct of business of the Government of a State.

--(1) All executive action of the Government of a State

shall be expressed to be taken in the name of the

Governor.

(2) Orders and other instruments made and executed in

the name of the Governor shall be authenticated in such

manner as may be specified in rules to be made by the

Governor, and the validity of an order or instrument

which is so authenticated shall not be called in question

40

on the ground that it is not an order or instrument made

or executed by the Governor.

(3) The Governor shall make rules for the more

convenient transaction of the business of the Government

of the State, and for the allocation among Ministers of the

said business insofar as it is not business with respect to

which the Governor is by or under this Constitution

required to act in his discretion.'

Article 166(1) requires that all executive action of the State

Government shall be expressed to be taken in the name of the

Governor. This clause relates to cases where the executive

action has to be expressed in the shape of a formal order or

notification. It prescribes the mode in which an executive action

has to be expressed. Noting by an official in the departmental

file will not, therefore, come within this article nor even noting

by a Minister. Every executive decision need not be as laid

down under Article 166(1) but when it takes the form of an

order it has to comply with Article 166(1). Article 166(2) states

that orders and other instruments made and executed under

Article 166(1), shall be authenticated in the manner prescribed.

While clause (1) relates to the mode of expression, clause (2)

lays down the manner in which the order is to be authenticated

and clause (3) relates to 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

department and is expressed in the name of the Governor,

authenticated in the manner provided in Article 166(2)."

33. It is thus clear that unless an order is expressed in the name of the

President or the Governor and is authenticated in the manner prescribed by

the rules, the same cannot be treated as an order made on behalf of the

Government. A reading of letter dated 6.12.2001 shows that it was neither

41

expressed in the name of the Governor nor it was authenticated manner

prescribed by the Rules. That letter merely speaks of the discussion made

by the Committee and the decision taken by it. By no stretch of imagination

the same can be treated as a policy decision of the Government within the

meaning of Article 166 of the Constitution.

34. We are further of the view that even if the instructions contained in

letter dated 6.12.2001 could be treated as policy decision of the Government,

the High Court should have quashed the same because the said policy was

clearly contrary to the law declared by this Court in Radhey Shyam's case

and Daulat Mal Jain's case and was a crude attempt by the concerned

political functionaries of the State to legalise what had already been declared

illegal by this Court.

35. Although, we are prima facie satisfied that execution of lease deeds by

the appellant in favour of some persons in 2002 and 2003 is a clear

indication of deep rooted malaise in the functioning of the appellant and is

also indicative of sheer favouritism and nepotism, we refrain from

pronouncing upon the legality of those transactions because the beneficiaries

are not parties to these appeals.

42 36. In the result, the appeals are allowed. The impugned judgment is set

aside. The writ petitions filed by Vijay Kumar Data and Daya Kishan

Data are dismissed and they are directed to pay cost of Rs.5 lacs for pursuing

unwarranted litigation for last over 15 years. The amount of cost shall be

deposited with the Rajasthan State Legal Services Authority within a period

of two months. The respondents shall be entitled to recover the price paid to

Shri Ganesh Narayan Gupta along with the amount of cost by availing

appropriate legal remedy.

37. Since we have found that the so called policy decision contained in

letter dated 6.12.2001 is contrary to the law declared by this Court, the State

Government and the appellant are restrained from taking any action in future

on the basis of the said letter.

..........................................J.

[G.S. Singhvi]

...........................................J.

[Asok Kumar Ganguly]

New Delhi

July 12, 2011.