National Institute of Medical Science University Rajasthan & Anr. vs State Of Rajasthan And Ors.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE TO APPEAL (CIVIL) NOS. 38040-38041 OF 2012

National Institute of Medical Science University Rajasthan & Anr. …Petitioners

versus

State of Rajasthan & Ors. …Respondents WITH

SLP (C) NOS. 38332-38333 of 2012

JUDGMENT

Madan B. Lokur, J.

1. These petitions are illustrative of how some interests can

frustrate the rule of law and get away with it. What the petitioners

are responsible for, apparently along with several others, is creating a

water shortage in Jaipur City and also ensuring that Ramgarh Lake

which was made famous in the Asian Games held in 1982 is now

completely dry and the catchment areas of Ramgarh Dam are

rendered completely useless. This is a tragedy of enormous Signature Not Verified Digitally signed by MEENAKSHI KOHLI proportions and rather unfortunately neither the State of Rajasthan Date: 2017.11.09 13:05:22 IST Reason:

nor the Jaipur Development Authority has thought it fit to take stern

SLP (C) Nos. 38040- 38041 of 2012 etc. Page 1 of 19 remedial action. They are thereby compounding the woes of the

residents of the city of Jaipur. It is often said that power comes with

responsibility – and so should it be with the State and the authorities

and the petitioner, particularly when it concerns the interests of the

people.

2. The origin of these petitions can be traced back to the decision

of the Rajasthan High Court in Abdul Rahman v. State of

Rajasthan. 1 In this decision, the High Court attempted, through a

series of directions, to ensure free flow of water in the catchment

areas of Ramgarh Dam (near Jaipur) and through Tala River and

Banganga River. The directions were the conclusion of a public

interest litigation in which a public spirited person approached the

Rajasthan High Court and highlighted the necessity of protecting

tanks and ponds in Rajasthan for a proper and healthy environment

to enable the people to enjoy quality life, the essence of the right of a

citizen guaranteed by Article 21 of the Constitution.

3. What is the significance of Ramgarh Dam? The dam was

constructed in 1903 having a catchment area of about 769.20 sq. km.

spread over four Tehsils, namely, Jamvaramgarh, Amer, Shahpura

and Viratnagar. The water harnessed by the dam was, till 1978, a

source of irrigation. Thereafter, it became a source of drinking water

1 DBCWP No.1536 of 2003 decided on 2nd August 2004

SLP (C) Nos. 38040- 38041 of 2012 etc. Page 2 of 19 for Jaipur City. During the Asian Games held in India in 1982

Ramgarh Lake was one of the highlights of the Games and events

relating to water sports were held in the Lake. Unfortunately, today

the Lake is dry and apparently heavily encroached upon due to the

omissions and commissions of various departments of the

Government of Rajasthan. What is worse is that with the Lake drying

up and the catchment areas without any water, Jaipur City is faced

with a scarcity of water.

4. With these ground realities in mind and while entertaining the

Public Interest Litigation (PIL) initiated by Abdul Rahman, the High

Court passed an order on 18th July 2003 requiring the State

Government to undertake a general survey to identify the catchment

areas of Ramgarh Dam that were misused for construction and

mining purposes. This was in the context of what appeared to the

High Court as indiscriminate mis-utilization of the catchment areas

for construction and mining purposes which prevented lakes,

reservoirs, rivers, ponds, etc., from receiving water even during the

monsoon season. The survey was also intended to study the effect of

utilization of the catchment areas for construction, mining and other

purposes. The State Government was also required to suggest

measures for restoring the catchment areas to their original shape and

use.

SLP (C) Nos. 38040- 38041 of 2012 etc. Page 3 of 19

5. Pursuant to the directions given by the High Court on 18 th July

2003, the State Government constituted an Expert Committee which

gave a report that makes for some very sad reading. However, the

Expert Committee also gave as many as 15 valuable suggestions for

restoring the catchment areas to their original shape and use. These

suggestions were accepted by the High Court and directions issued to

the State Government to consider the recommendations of the Expert

Committee and chalk out a plan to take effective steps to restore the

catchment areas. Three months time was granted to the State

Government to give concrete and positive shape to the suggestions.

6. Not surprisingly, no seriousness was attached to the decision

and directions of the High Court in Abdul Rahman and matters were

allowed to drift.

Suo motu proceedings

7. Under these circumstances, due to the lack of any positive and

visible action by the State Government in preserving and protecting

the catchment areas of Ramgarh Dam, a learned Single Judge of the

Rajasthan High Court was persuaded to initiate suo motu

proceedings titled as Suo Motu v. State of Rajasthan (registered as

SBCWP No.11153 of 2011).

8. On 23rd August 2011 the learned Single Judge noted that the

catchment areas of Ramgarh Dam were not being given the deserved

SLP (C) Nos. 38040- 38041 of 2012 etc. Page 4 of 19 importance due to a lack of coordination between various

departments of the Government of Rajasthan. The learned judge also

noted that no effective steps had been taken for implementing the

directions issued in Abdul Rahman particularly with reference to

Ramgarh Dam and that there was a lack of willingness on the part of

the State Government to take required measures. Accordingly, the

learned judge felt that some monitoring action was necessary for

saving the water resources in Rajasthan and initially with reference

to Ramgarh Dam. In view of this, the learned judge appointed a two

member Monitoring Committee for implementing the directions

relating to Ramgarh Dam in terms of the judgment in Abdul

Rahman. The learned Single Judge also gave certain directions on

23rd August 2011 some of which included the following:

“(i) All the Departments involved in the present matter like Revenue, Forest, Irrigation, PHED, Environment, Mining, Panchayati Raj are directed to cooperate with each other to stop encroachment and illegal construction in the drainages, channels, nalas, river etc. in the four tehsils named above.

(ii) State Government will ensure stoppage of encroachment and construction in the catchment area of Ramgarh Dam.

(iii) xxx xxx xxx

(iv) State Government will come out with the plan for removal of encroachments so as to restore the position as was existing on 15.08.1947.

xxx xxx xxx”

SLP (C) Nos. 38040- 38041 of 2012 etc. Page 5 of 19

9. A perusal of the proceedings in the suo motu petition indicates

that the Monitoring Committee put in considerable efforts and gave

valuable inputs through its reports. In its written submissions filed

before the learned Single Judge, it was noted that there is a problem

of scarcity of water and even Ramgarh Dam, which was considered

the only reservoir of water supply to Jaipur City had become dry due

to encroachments and obstructions. The dam was unable to get water

due to land grabbers, property dealers, constructions and farm

houses, club houses, resorts, etc.

10. In its written submissions, the Monitoring Committee noted

that the petitioners before us had made massive encroachments in the

catchment areas of Ramgarh Dam. The learned Single Judge took

note of the reports and submissions of the Monitoring Committee

and passed a final order on 29th May 2012 giving a series of

directions with the expectation and hope that the directions would

not remain only on paper but would be implemented in reality.

Remedial steps

11. The sequence of events over the last 15 years indicates that the

effort made by the Division Bench of the High Court in Abdul

Rahman as well as the effort made by the learned Single Judge in

the suo motu proceedings hardly yielded any positive results at least

SLP (C) Nos. 38040- 38041 of 2012 etc. Page 6 of 19 insofar as they relate to the petitioner - the National Institute of

Medical Sciences University or NIMS.

12. However, before detailing the steps concerning NIMS, it must

be stated that the Government of Rajasthan prepared an Initial

Action Plan in July 2012 followed by a report prepared by a

Technical Committee on 9th January 2013 on Less/no inflow in

Ramgarh Dam (District Jaipur) Despite Average and Above Average

Rainfall and Remedial Measures to Restore Inflow.

13. During the hearing of these petitions, we had enquired from

the learned counsel whether there is any water in Ramgarh Lake but

were told that it is still bone dry. It appears to us, therefore, that the

Initial Action Plan and the report of the Technical Committee as well

as expectations and hope of the learned Single Judge that the

directions, plans of action and remedial measures would not remain

only on paper but would be implemented in reality have been

completely belied. This is a pity.

Facts relating to NIMS

14. The petitioner is a University and presumably it is a University

of some repute and responsibility. It made an application for

allotment of land in village Jugalpur, Tehsil Amer in District Jaipur

to the District Collector of Jaipur on 10th May 2002. However, the

application for allotment did not include Khasra No.526 with which

SLP (C) Nos. 38040- 38041 of 2012 etc. Page 7 of 19 we are concerned. NIMS apparently did not receive any reply to the

application.

15. For reasons that are not quite clear, NIMS sent a letter to the

Chief Minister of Rajasthan on 28th February 2005 to the effect that

it had allegedly encroached upon Khasra No. 526. Having denied the

allegation, NIMS then sought allotment of that Khasra being No. 526

Rakba 14.44 hectare.

16. According to NIMS, it made several subsequent

representations for allotment of Khasra No. 526 but received no

reply from any of the authorities for as long as 10 years. During this

period, NIMS presumed that the silence of the State Government

meant that it had no objection to the allotment. Accordingly, it

claimed to have purchased several parcels of land including Khasra

No. 526 from various Khatedars and claimed that demarcation of the

land was also carried out by the Revenue authorities. On the

presumption that there was no objection to the allotment of the land,

NIMS made massive construction on Khasra No. 526.

17. Eventually and since no favourable action was taken on the

representations made, NIMS filed S.B. Civil Writ Petition No. 1814

of 2012 in the High Court praying that directions may be issued in its

favour for allotment of land including Khasra No. 526 for its

University. The writ petition came to be dismissed by a learned

SLP (C) Nos. 38040- 38041 of 2012 etc. Page 8 of 19 Single Judge of the High Court by a judgment and order dated 1st

November 2012.

18. Around that time, NIMS was issued a notice dated 13th

February 2012 under Section 72 of the Jaipur Development

Authority Act, 1982 in respect of the alleged encroachments on

Khasra No. 526.

19. Feeling aggrieved by the notice, NIMS preferred Appeal No.

37 of 2012 before the Appellate Tribunal, Jaipur Development

Authority. After hearing NIMS, the Appellate Tribunal dismissed

the appeal by its judgment and order dated 12th October 2012. This

led NIMS to prefer S.B. Civil Writ Petition No.16836 of 2012 in the

High Court. This writ petition was clubbed along with S.B. Civil

Writ Petition No. 1814 of 2012 and both were dismissed by a learned

Single Judge on 1st November 2012.

20. Feeling aggrieved by the dismissal of both the writ petitions,

NIMS preferred special appeals before the Division Bench of the

High Court and these were registered as D.B. Civil Special Appeal

(Writ) Nos. 1455-1456 of 2012. Both the appeals were heard by the

Division Bench and dismissed by the impugned judgment and order

dated 26th November 2012.

Decision of the learned Single Judge

21. A perusal of the judgment and order passed by the learned

SLP (C) Nos. 38040- 38041 of 2012 etc. Page 9 of 19 Single Judge indicates that in fact the land in dispute namely Khasra

No. 526 originally vested in the State Government. By a Notification

issued on 1st October 2007 it then vested in the Jaipur Development

Authority and was brought within the limit of the Jaipur

Development Authority. Therefore, from 1st October 2007 only the

Jaipur Development Authority had jurisdiction over the land bearing

Khasra No. 526.

22. The learned Single Judge also noted that the Appellate

Tribunal had required measurements to be carried out with reference

to Khasra No.526 and on 11th September 2012 it was found that

NIMS had encroached upon land measuring 8125 sq. mtrs. in Khasra

No. 526 and also in certain other areas. But as we have mentioned

above we are only concerned with Khasra No. 526. With regard to

the inaction on the representation made by NIMS for allotment of

land, the learned Single Judge noted that merely because the

concerned authorities had not taken any decision on the

representation, NIMS was not entitled to presume that there was no

objection to its taking possession of the land and constructing

thereon. Accordingly, the learned Single Judge found no error in the

view taken by the Appellate Tribunal holding that NIMS had

encroached on 8125 sq mtrs. of land in Khasra No. 526 and that

NIMS was not entitled to make any construction thereon. While

SLP (C) Nos. 38040- 38041 of 2012 etc. Page 10 of 19 dismissing the writ petitions by judgment and order dated 1st

November 2012 the learned Single Judge directed the Jaipur

Development Authority to demolish the construction. However, it

was further directed that demolition would not take place till 7th

November 2012.

Decision of the Division Bench

23. NIMS appealed against the decision of the learned Single

Judge. While deciding the appeals, the Division Bench accepted the

view expressed by the learned Single Judge and dismissed the

appeals.

24. Before the Division Bench, it was contended by NIMS that the

land in dispute was pasture land and that it could be allotted to NIMS

under the local laws including the Rajasthan Land Revenue

(Allotment of Unoccupied Government Agricultural Lands for the

Construction of Schools, Colleges, Dispensaries, Dharamshalas and

Other Buildings of Public Utility) Rules, 1963 as well as the

Rajasthan Tenancy Act, 1956 and the Rules framed thereunder.

Reference was also placed on the Rajasthan Improvement Trust

(Disposal of Urban Land) Rules, 1974. The Division Bench took

note of all these provisions and observed that in its initial application

dated 10th May 2002 made to the Collector, no request was made by

NIMS for allotment of Khasra No. 526. For the first time such a

SLP (C) Nos. 38040- 38041 of 2012 etc. Page 11 of 19 request was made by NIMS on 28th February 2005 to the Chief

Minister of Rajasthan and not to the concerned Collector who alone

was competent to make the allotment. The Division Bench also

made a reference to Section 16 of the Rajasthan Tenancy Act, 1955

and noted that Khatedari rights could not accrue in pasture land and

therefore it was not available for allotment.

25. The Division Bench held that even otherwise, after 1st October

2007 Khasra No. 526 vested in the Jaipur Development Authority

and therefore the allotment could be made only by that Authority in

terms of Section 54 of the Jaipur Development Authority Act and not

by the State Government.2 The High Court noted that no application

2

54. Land to vest in the Authority and its disposal. – (1) Notwithstanding anything contained in the Rajasthan Land Revenue Act, 1956 (Rajasthan Act No. 15 of 1956), the land as defined in section 103 of that Act, excluding land referred to in sub-clause (ii) of clause (a) of the said section and Nazul Land placed at the disposal of a local authority under section 102-A of that Act in Jaipur Region shall, immediately after establishment of the Authority under section 3 of this Act, be deemed to have been placed at the disposal of and vested in the Authority which shall take over such land for and on behalf of the State Government and may use the same for the purposes of this Act and may dispose of the same by way of allotment, regularization or auction subject to such conditions and restrictions as the State Government may, from time to time, lay down and in such manner, as it may, from time to time, prescribe:

Provided that the Authority may dispose of any such land—

(a) without undertaking or carrying out any development thereon; or

(b) after undertaking or carrying out such development as it thinks fit, to such person, in such manner and subject to such covenants and conditions, as it may consider expedient to impose for securing development according to plan.

(2) No development of any land shall be undertaken or carried out except by or under the control and supervision of the Authority.

(3) If any land vested in the Authority is required at any time by the Nagar Nigam, Jaipur for carrying out its functions, or by the State Government for any other purpose, the State Government may, by notification in the Official Gazette, place such land at the disposal of the Nagar Nigam, Jaipur or any Department of the State Government on such terms and conditions, as may be deemed fit.

(4) All land acquired by the Authority, or by the State Government and transferred to the Authority, shall be disposed of by the Authority in the same manner as may be prescribed for land in sub-section (1).

SLP (C) Nos. 38040- 38041 of 2012 etc. Page 12 of 19 was made by NIMS to the Jaipur Development Authority for

allotment of Khasra No. 526 or any other Khasra of village

Jugalpura.

26. Under these circumstances, the Division Bench took the view

that NIMS had encroached upon Khasra No. 526 and had raised

constructions thereon without any permission or sanction and that it

was not possible to ignore the illegalities committed by NIMS.

27. NIMS contended before the Division Bench that since massive

constructions had already been made, no useful purpose would be

served by demolishing the construction. It was submitted that

demolition would not serve any public purpose. This submission was

rejected by the Division Bench by relying upon a decision of this

Court in Jagpal Singh v. State of Punjab3 to the effect that if land is

not available for allotment and construction is made thereon, then

that construction must be demolished.

28. The High Court also took the view that if appropriate steps are

not taken to remove the encroachment, it would encourage others to

encroach upon land and to seek regularization of any illegal

construction made thereon.

29. As far as the decision rendered by the Appellate Tribunal is

concerned, the Division Bench noted that the report of 11th

3 (2011) 11 SCC 396

SLP (C) Nos. 38040- 38041 of 2012 etc. Page 13 of 19 September 2012 was unimpeachable and there was no doubt that

NIMS had encroached on 8125 sq. mtrs. of land in Khasra No. 526.

Proceeding in this Court

30. It was submitted by learned counsel for NIMS that no

encroachment was made by NIMS and that in any event there were a

large number of encroachers in the catchment areas. According to

learned counsel there was no reason why only NIMS should be

singled out for adverse or punitive treatment. We are not at all

impressed by the submissions made by learned counsel.

31. What is before us is really only a factual dispute. NIMS has

not been able to show any perversity, on facts, in the orders passed

by the Appellate Tribunal or by the learned Single Judge or by the

Division Bench.

32. One of the factual conclusions arrived at by the High Court is

that NIMS had made a request for allotment of Khasra No. 526 for

the first time only on 28th February 2005 and that too before the

Chief Minister who was not the competent authority to make the

allotment – the competent authority being the Collector of Jaipur

district. Why NIMS chose to directly approach the Chief Minister is

a mystery which can be solved only by NIMS.

33. Post 1st October 2007 there was no request made by NIMS to

the Jaipur Development Authority for the allotment of Khasra No.

SLP (C) Nos. 38040- 38041 of 2012 etc. Page 14 of 19

526.

34. Assuming there was no response from the Chief Minister to

that or any other representation made by NIMS to any authority

including the Jaipur Development Authority for allotment of Khasra

No. 526, NIMS had no right to assume that its request for allotment

had been accepted (or not rejected) by the Chief Minister or the

Jaipur Development Authority and on that assumption to make

constructions on the land without any permission or sanction.

35. It has also come on record as a matter of fact that NIMS had

encroached upon 8125 sq. mtrs. in Khasra No. 526. It has also come

on record that in fact NIMS had not filed any objections to the

Report dated 11th September 2012 before the Appellate Tribunal. It

has also come on record that as a matter of fact due to the illegal and

unlawful construction having been made in the area by several

parties including NIMS, Ramgarh Lake is now absolutely dry and

the residents of Jaipur city are suffering from water shortage because

of this - since water from the region was being supplied to Jaipur city

before the area dried up. These undisputed facts are enough to

dismiss the petitions filed by NIMS. There is no law that supports

the brazenness of NIMS in wantonly encroaching on Khasra No. 526

and then making huge constructions thereon.

36. Learned counsel for NIMS did not place before us any law or

SLP (C) Nos. 38040- 38041 of 2012 etc. Page 15 of 19 decision to support the encroachment by NIMS on Khasra No. 526.

But, learned counsel for the Jaipur Development Authority as well as

learned counsel for Dinesh Kumar Saini a reporter of Current Jwala

(Respondent No. 2) drew our attention to Section 16 of the Rajasthan

Tenancy Act, 1955 which prohibits accrual of Khatedari rights in

pasture land. 4 It was submitted that in view of this provision,

assuming the land in Khasra No. 526 to be pasture land, NIMS could

not have acquired Khatedari rights as claimed.

Conclusion

37. It is most unfortunate that despite orders passed by the

Rajasthan High Court in Abdul Rahman and in the suo motu petition

and views expressed by the Monitoring Committee appointed by the

High Court as well as the Expert Committee set up by the State

Government and plan of action having been prepared by the State

Government, nothing substantive appears to have been achieved on

the ground over the years.

38. Under the circumstances, we have no option but to dismiss the

petitions but with costs of Rs.10 lakhs per petition for the brazen

4

16. Lands in which Khatedari rights shall not accrue – Notwithstanding anything in this Act or in any other law or enactment for the time being in force in any part of the State Khatedari rights shall not accrue in –

(i) pasture land;

(ii) to (xiv) xxxx Provided that …..

SLP (C) Nos. 38040- 38041 of 2012 etc. Page 16 of 19 encroachment. The amount should be deposited by NIMS in the

Registry of this Court within six weeks.

39. In our opinion, merely dismissing the petitions would serve no

useful purpose since it appears to us that NIMS is a rather powerful

and influential entity. We say this because it has been able to

successfully frustrate its eviction and demolition of the construction

for at least one decade. Even before us an attempt was made to take

an adjournment so that it could possibly use its influence over

whoever it may be to get some favourable executive orders.

40. In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Ors5

this Court directed enforcement of the rule of law by demolition of

unauthorized constructions. It was held as follows:

“The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion the wherever it is required to be exercised has to be in accordance with law and set legal principles. As will 5 (1999) 6 SCC 464

SLP (C) Nos. 38040- 38041 of 2012 etc. Page 17 of 19 be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots.”

41. This view was followed and endorsed in Jagpal Singh in the

following words:

“In M.I. Builders (P) Ltd. v. Radhey Shyam Sahu the Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs. 100 crores.

In Friends Colony Development Committee v. State of Orissa 6 this Court held that even where the law permits compounding of unsanctioned constructions, such compounding should only be by way of an exception. In our opinion this decision will apply with even greater force in cases of encroachment of village common land. Ordinarily, compounding in such cases should only be allowed where the land has been leased to landless labourers or members of Scheduled Castes/Scheduled Tribes, or the land is actually being used for a public purpose of the village e.g. running a school for the villagers, or a dispensary for them.

In many States government orders have been issued by the State Government permitting allotment of Gram Sabha land to private persons and commercial enterprises on payment of some money. In our opinion all such Government orders are illegal, and should be ignored.”

42. Keeping in mind the view expressed by this Court in these and

other decisions, we also direct the demolition of the unauthorized

construction by or on behalf of NIMS on Khasra No. 526. The

demolition should be carried out by the Jaipur Development

Authority with the assistance of the State Government and the

6 (2004) 8 SCC 733

SLP (C) Nos. 38040- 38041 of 2012 etc. Page 18 of 19 Collector of Jaipur District on or before 30 th November, 2017. The

Director General of Police of Rajasthan is directed to render all

necessary assistance in the process of demolition. The cost of

demolition and removal of rubble etc. will be at the expense of

NIMS. Any pending application made by NIMS for compounding

the unauthorized construction or regularizing it stands superseded in

view of our decision.

43. We are giving these peremptory time bound directions in view

of the fact that the learned Single Judge felt it appropriate, while

dismissing the writ petitions filed by NIMS, to grant interim relief

limited to only 7 days. More importantly, we are of opinion that the

possibility of water being now made available to Jaipur City in due

course of time takes far greater precedence over the interests of

NIMS and those associated with it.

44. The petitions are dismissed with the above directions.

.......……………………J (Madan B. Lokur)

………………………...J New Delhi; (Deepak Gupta) November 9, 2017

SLP (C) Nos. 38040- 38041 of 2012 etc. Page 19 of 19