TaxTMI 
TaxTMI 
2015 (12) TMI 1866
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....oy, J. 1. Leave granted. 2. A procrastinated legal tussle spanning over three decades has spiralled up the judicial tiers to this Court seeking a quietus to the issue of adequate reparation of the Appellants, consequent upon the compulsory acquisition of their lands for the Indian Army for its "Field Firing Range" in the year 1981. 3. The debate centres around the grant of 15% developed residential land in lieu of compensation which, as perceived by the oustees, had been promised by the Urban Development Department of the State Government by its proclaimed policy dated 13.12.2001. The State of Rajasthan (for short, hereinafter to be referred to as "the State/State Government") and the Jaipur Development Authority (for short, hereinafter to be referred to as "JDA") have taken turf together to successfully laciniate the Appellants' identification of such land, thus impelling them to impeach the impugned judgment and order dated 12.8.2011 rendered by the High Court of Judicature for Rajasthan upholding the refutation. Since the verdict assailed is common in all the appeals, the instant adjudication would suffice for the analogous disposal thereof. 4. We have heard Dr. ....
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....ases for commercial purposes. A meeting, thereafter of a High Powered Body under the chairmanship of the Minister of the Department of Urban Development, Rajasthan was held on 18.10.2001 in which it was discussed that in several cases of land acquisition, though award had been passed, the compensation had not been paid to the land owners. It was decided that, in cases where compensation amount awarded had not been paid, though award had been passed, one more opportunity to the khatedars to opt for developed land ought to be afforded and on the basis of the merit of such claims, 15% developed land be allotted to them. The option was made valid till 31.3.2001 and it was resolved that the allotment of land would be made through the allotment committee of the concerned organization. As the minutes of the said meeting would reveal, it was resolved as well that the developed land in lieu of the acquired land would be usually allotted only in the scheme area and at the place where the land acquired was situated and if it was not possible to develop the scheme within the fixed period of five months or if it was not possible to give the land in the same area, only then the land would be all....
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....ty Act, 1982 (hereinafter, in short to be referred to as "JDA Act"), inter alia, alleging discrimination on the ground that persons similarly situated like the Appellants, had been allotted developed lands in Vidyadhar Nagar Scheme, while they were sought to be deprived by the assailed initiative to auction the land within the said scheme. The Tribunal, by its ruling dated 18.8.2003, annulled the auction notice and held that the JDA would not sell or auction the plots mentioned therein, till the Appellants were allotted 15% developed land in the Vidyadhar Nagar Scheme. The Writ Petition filed by the JDA before the High Court impugning the above decision of the Tribunal was dismissed on 4.1.2005. 10. Subsequent thereto, on 1.7.2005, the Deputy Secretary to the Government of Rajasthan, Nagariye Vibhag, addressed a letter to the Commissioner, JDA, Jaipur offering allotment of land in terms of the Circular dated 13.12.2001 to the concerned khatedars/beneficiaries, at Villages Lalchandpura and Anantpura to be allotted through lottery. Being aggrieved by the said decision and also the follow up process in connection therewith, the Appellants approached the Tribunal afresh. By the judg....
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..... Civil Special Appeal No. 1879 of 2008 which also came to be dismissed on 17.11.2008. The JDA, undaunted by the reverses, approached this Court with Special leave Petition (C) No. 2901 of 2009 which was disposed on 20.7.2009, as in the interregnum, the judgment and order dated 18.10.2005 of the Tribunal came to be assailed by the JDA in S.B. (Civil) W.P. No. 539 of 2009 before the High Court. By the order dated 20.7.2009, this Court, however, did observe, without expressing any opinion on the merits of the dispute, that the judgment and order dated 17.11.2008 of Division Bench of the High Court in challenge before it, would be subject to any order, that would be passed in the writ petition. 13. The Writ Petition No. 539 of 2009 was dismissed by the High Court on 11.1.2010 where after the JDA preferred D.B. Civil Special Appeal No. 276 of 2010 against the same. The decision impugned in the present batch of appeals arises from the said verdict. 14. As the judgment under scrutiny herein would demonstrate, whereas the Appellants asserted that in terms of circulars, which they perceived to be in the form of state policy, they were entitled to 15% developed land at Vidyadhar Nagar....
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....he said purpose had been released in favour of JDA for Group Housing Scheme. It recorded as well the fact, that after the enhancement of compensation made by the Reference Court, the State had issued the circular dated 13.12.2001, pursuant to a meeting of a sub-committee under the chairmanship of the Minister of Department of Urban Development on 18.10.2001, resolving to allot 15% developed land in cases where compensation had not been accepted by the claimants. That in response to the option called for from such willing land losers pursuant to the circular dated 13.12.2001, the same had been submitted in time, was noted as well. 17. The Division Bench, however, on a survey of the Sections 83 and 90 of the JDA Act held, in the prevailing conspectus of facts, that the decision impugned before the Tribunal was beyond the purview of its jurisdiction and that it was not open for it to direct the Respondents for allotment of land at Vidyadhar Nagar. This finding of fact rendered by the High Court was premised on a deduction that the circular dated 13.12.2001 had not been issued in the name of the Governor of the State as required Under Article 166(1) of the Constitution of India and ....
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..... 1. Did the State Government/Jaipur Development Authority ever formulate any policy providing for allotment of "land in lieu of land" acquired by the State Government/Jaipur Development Authority. If so, when was the policy formulated and by whom? Query No. 2. If the policy in question was formulated by and under the orders of the Minister In-charge of the Department concerned, Government of Rajasthan, was the matter relating to the formulation of the said policy submitted to the Chief Minister in terms of Rule 31, Sub-rule (2) of the Rajasthan Rules of Business? In case, the matter was submitted, what were the orders passed by the Chief Minister on the said matter of the proposed policy? Query No. 3. Was the land for land policy given effect to in relation to acquisitions made for Boytawala Field Firing Range. If so, how much land was allotted and in whose favour and under whose orders? Query No. 4. Was any application made for allotment by Madan Lal and others, Petitioners in Special Leave Petition No. 36175 of 2011, as legal representatives of the deceased Ananda-original Khatedar for allotment of any land, under....
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....tion to the land holders for 15% developed land in lieu of the acquired land. In this circular, the date of submitting options was fixed as 28.02.2002. (d) Policy Circular dated 27.10.2005: In this circular provision for 25% developed land, instead of 15% earlier was made. This policy was given effect for the land acquisition cases after this date. This circular was issued with the approval of Hon'ble Chief Minister. Response to Query No. 2 a. It is respectfully submitted that there are Rajasthan Rules of Business Under Article 166 of the Constitution of India. All the cases referred to in the second schedule shall be brought before Council of Ministers or a constituted sub-committee in accordance with Part III of the Rules. b. Rule 31(1)(ii) provides the cases which have to be referred to Chief Minister before issuance of orders and the cases raising question of policy and all the cases of administrative importance not already covered by second schedule. c. It is also respec....
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....policy circulars alluded to, for providing land in lieu of compensation including the one dated 13.12.2001, which provided for extension of time for the exercise of option by the land holders for 15% developed land in lieu of their acquired land. That prior thereto, provision for allotment of 12% developed land in lieu of compensation, subsequently enhanced to 15% developed land was made by the policy circulars dated 22.04.1992 and 21.09.1999, issued with the approval of the Minister-in-Charge of the department, was averred as well. The additional affidavit disclosed further that by a later policy circular dated 27.10.2005 issued with the approval of the Hon'ble Chief Minister, the extent of developed land was further enhanced to 25%. 23. Significantly, it was stated in unambiguous terms with reference to Rule 31(2) of the Rules of Business for Rajasthan (for short, hereinafter to be referred to as "the Rules"), framed Under Article 166 of the Constitution of India that in terms of the Standing Order framed Under Rule 21, the Minister-in-Charge of the Department as per the Business allocation under the Rules was the competent authority in matters relating to land acquisition....
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.... of the JDA, granted it four weeks' further time to enable it to identify and place on record the particulars of the land representing 15% of the area acquired from the Appellants in a developed colony. The JDA was required within the time granted, to file an affidavit indicating the proposed area for allotment to the Appellants. It was observed in no uncertain terms, that the area(s) offered ought to be in developed colonies unlike area(s) which had been earlier offered but were not fully developed. 27. The JDA in its additional affidavit dated 16.07.2015 in turn offered land(s) in the following schemes for allotment, as substantial investments had been made to carry out development works thereat. S.No. JDA Zone No. Name of Schemes Total available land for allotment 1 11 Rohini Nagar - I 50598.22 Sq. mtr. 2. 11 Anupam Vihar 50598.22 Sq.mtr. 3. 13 Pitambara Rajbhawan 50598.22 Sq. mtr. 4. 14 Abhinav Vihar Vistar 50598.22 Sq. mtr. 5. 14 Rohini Nagar - II 50598.22 Sq. mtr. 6. 14 Harit Vihar 50598.22 Sq. mtr. 28. The Appellants in their reply affidavit dated 17.08.2015 to the affidavit dated 1....
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....d at Boytawala was also offered to the Appellants and accused them of unreasonably rejecting the options of developed land being offered to them from time to time. Reference to land at Anand Vihar JDA Residential Developed Scheme situated near Ajmer Road at a distance of 3-4 kms from main National Highway No. 8 was also made to indicate that the same was available as well. According to the State, the amount of compensation payable to the Appellants for the land acquired as on date, computed on the basis of the enhanced rate of Rs. 15000/- per bigha, would be Rs. 95,59,044/- and insisted that the market value of the plots identified by them would be disproportionately higher than the quantum of compensation to which they are entitled. 31. In between, an additional affidavit was also filed being sworn by the Deputy Commissioner, Zone-Jaipur Development Authority on 16.07.2015, bringing on record, the Rules framed in exercise of powers framed by the Governor of the State under Clauses (2) & (3) of Article 166 of the Constitution of India, including amongst others, the notification No. F(27)(2)(a) dated 05.03.1999 amending the Rules. 32. In the above imposing mass of contentious ....
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....d to the Rules in details to evince that on the date of issuance of the circular dated 13.12.2001, the departmental minister was exclusively competent to take a decision on the issue of acquisition and release of land in lieu of compensation and, thus the Respondents were bound thereby. That in the memorandum of appeal before the High Court, they had accepted the circular dated 13.12.2001 as the policy decision of the State was urged by the learned senior Counsel. He asserted that the impugned judgment was founded only the premise that the circular dated 13.12.2001 did not conform to the prescriptions of Article 166(1) & (2) of the Constitution of India and neither any plea was raised qua the Rules or Article 166(3) nor there was any occasion to deal with it. Dr. Dhawan has thus urged that this belated plea is wholly untenable in law. 37. Adverting to Section 90 of the JDA Act in particular, the learned senior Counsel has argued that as in terms thereof, the JDA was under an obligation to implement the government policy, it is impermissible for it to turn around and contend that the appeal filed by the Appellants before the Tribunal was not maintainable. 38. According to the ....
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.... exercise of superior bargaining power of the State and ought to be firmly disapproved. According to him, the Appellants have been wrongly non-suited by the Division Bench of the High Court on the ground of non-compliance of Article 166(1) & (2) of the Constitution of India. Mr. Mehta insisted that in face of the rejection of the lands at Anantpura, Lalchandpura, Mansarampura and Boytawala by this Court, vide its order dated 07.05.2015, the endeavour on the part of the Respondents to impose the same on the Appellants betrays lack of bona fides as well. He urged that in any view of the matter, the Respondents have already acted on the policy circular dated 13.12.2001 in allotting, amongst others, plots at Vidyadhar Nagar to some of the persons who are similarly situated and thus they cannot be permitted to retrace their steps arbitrarily at the cost of the Appellants. The learned senior Counsel urged as well, that the policy circular in question was fully in accordance with the Rules and that the endeavour of the Respondents to weigh the amount of compensation payable to the Appellants for their lands with the value of the developed land, as on date, as a factor for allotment under ....
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....fer to allot 15% developed land, if available within the scheme area and if not, in an adjacent locality. Thereby the land oustees were not clothed with an inviolable right to demand any land of their choice by laying a counter offer, he maintained. Mr. Sunderam urged that neither the circular dated 13.12.2001 does envisage such an indulgence nor this Court ought to direct the State to abide thereby. That in the instant case, the JDA had only acted on the decisions of the State, as taken from time to time, and thus on this ground, the appeal filed by the Appellants before the Tribunal Under Section 83 of the JDA Act, was rightly held to be not maintainable, was underlined. Following authorities were cited at the Bar in Census Commissioner and Ors. v. R. Krishnamurthy (2015) 2 SCC 796, Goa Glass Fibre Ltd. v. State of Goa and Anr. (2010) 6 SCC 499, MRF Ltd. v. Manohar Parikar and Ors. (2010) 11 SCC 374, Rajasthan Housing Board v. New Pink City Nirman Sahkari Samiti Limited and Anr. (2015) 7 SCC 601. 42. In his rejoinder, Dr. Dhawan adverted to the Rules as well as the notifications/circulars on the issue of land in lieu of compensation prior, and subsequent to the one dated 13.12....
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....f land and land in lieu of compensation, to be awarded in respect of the acquired land, the Appellants herein seem to have been non-suited as well on the ground that the appeal/reference preferred/laid by them before the Tribunal Under Section 83 of the JDA Act, was not maintainable, being impermissible. Though this issue need not detain us, as the rival assertions have sprawled beyond such peripheral contours, a passing reference thereto and the finding thereon would clear the deck for the ensuing decisive adjudication. 44. The JDA Act which received the assent of the President on 12.10.1982, as the preamble thereof would evince, is a legislation for forming the Jaipur City and certain contiguous areas into Jaipur Region, to provide for the establishment of an Authority for the purpose of planning, coordinating and supervising the proper, orderly and rapid development of the Jaipur Region and for executing plans, projects and schemes for such development and to provide for matters connected therewith. The expressions "amenities" and "development" have been defined in Sections 2(2) and 2(5) of JDA Act respectively, as extracted herein under: 2(2) "ame....
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.... or notice to him. Under Sub-clause 8(b), any person aggrieved by any threatened act or injury from the JDA affecting his rights, may refer the dispute to the Tribunal within thirty days of the communication or knowledge of such threatened act or injury. The provision mandates that the decision of the Tribunal in such appeal or reference would be final. Section 90 of the JDA Act predicates, that the JDA would exercise its powers and perform its duties under the Act in accordance with the policy framed and guidelines laid down, from time to time by the State for development of the areas in the Jaipur Region. It obligates the JDA to be bound to comply with such directions which may be issued, from time to time, by the State for efficient administration of the JDA Act. 47. On a cumulative reading of the above provisions of the JDA Act, it is apparent that with the enactment thereof, the land, as referred to in Section 54 thereof, would stand vested in JDA, whereupon it is competent, amongst others, to dispose of the same by way of allotment, regularisation or auction subject to such conditions and restrictions as may be prescribed by the State. The definition of the expressions "am....
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....y analysis in the decision. Even the grounds formulated by the JDA in the writ petition as well as in the writ appeal before the High Court did not pose a challenge to the circular dated 13.12.2001 to be invalid and non-construable as policy, being in derogation of Rules. 50. The documents laid at the disposal of this Court being official circulars/communications issued by the Government of Rajasthan, Urban Development and Housing Department would attest that in order to address the issue of often protracted process of acquisition of land and possession thereof, in view inter alia of the intervening litigations, a pre-meditated decision had been taken by the State to hasten the exercise without any hassle and on mutual settlement and to that effect, circular No F.6(44)UDH/3/89 dated 1.1.1990 had been issued. As the circular No. F.6 (44) UDH/3/89, Jaipur dated 22.4.1992 of the same Department would reveal, the implementation of the decision had been kept in abeyance for want of guidelines. However, the State on a re-consideration of all aspects, did thereafter decide that persons/institutions surrendering their land free of cost to the Land Urban Improvement Trust/Jaipur Developm....
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....ceding it and is in reiteration of the otherwise unequivocal and unreserved decision of the State to offer 15% developed land to the khatedars/land owners in lieu of compensation for the land acquired. This is amply testified, amongst others, by the reference of the Circular dated 21.9.1999, referred to hereinabove. The following extract of the circular dated 13.12.2001, in our estimate, is determinatively revealing: Hence, the State Government after considering this matter in detail has taken this decision that in such old cases in which award has been passed but the compensation could not be made to the khatedars till date, in these matters one more opportunity shall be given to the khatedars. Hence, now this provision is being made that such khatedars/landowners can present their options till 28.2.2002 and they will be allotted 15% developed land by the allotment committee of the concerned organisation after approval from the State Government. If no allotment committee has been constituted in any organisation, then a Committee other than Jaipur Development Authority and Rajasthan Housing Board, shall be constituted of minimum three officers and a public rep....
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....not already covered by the Second Schedule. 57. Logically thus, by order dated 8.7.2004 issued as well Under Rules 21 and 22 of the Rules the working arrangement for the transaction of the departmental business on matters relating to deacquisition of land under acquisition and acquired land was redesigned as hereunder: SN Post Work shall be examined by Work shall be disposed of by Shall presented before the Minister 1 to 115 - - - - D. As per rule 31 of the Rules of Business and final disposal of the matters relating to the Department mentioned in II 116 to 117 - - - - 118 Matters relating to de-acquisition of land under acquisition and acquired land. Group Officer Dy. Secretary/Secretary/Pr. Secretary Minister/With approval of Chief Minister 119 to 121 - - - - 58. A plain comparison of the texts of these two Orders i.e. 20.7.1999 and 8.7.2004 would demonstrate that whereas by the former, the issue was required to be presented before the departmental minister, under the latter, the authority on the issue was departmental minister with the approval of the Chief Minister. It is, therefore,....
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....ategorical terms underlines that the Minister-in-charge or the Minister of State-in-charge of a department shall be primarily responsible for the disposal of the business pertaining to that department. While Rule 11 enjoins that all orders or instruments made or executed by or on behalf of the Government of Rajasthan shall be expressly made or executed in the name of the Governor, Rule 12 requires that every order or instrument of the Government shall be signed by a Secretary, a Special Secretary, an Additional Secretary, a Joint Secretary etc. as enumerated therein so much so that such signature shall be deemed to be a proper authentication of such order or instrument. 62. Part III of the Rules dwells upon the procedure of the Council of Ministers. In terms of Rule 14, all cases referred to in the Second Schedule shall be submitted to the Chief Minister, through the Secretary to the Council after consideration by the Minister-in-charge or the Minister of State-in-charge, as the case may be, with a view to obtain his orders for circulation of the case Under Rule 15 or for bringing it up for consideration at a meeting of the Council or Sub-Committee thereof. Such laying would not....
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.... the unmistakable inference is that these had been issued with the sentient awareness of the prescripts of the Rules. 65. To reiterate, the State in its additional affidavit dated 22.3.2013 in response to a categorical query of this Court as to whether the circular dated 31.12.2001 did convey a policy decision on the issue of allotment of land in lieu of land averred in Clause (b) in answer to query No. 1 as hereunder: Policy Circular dated 21.9.1999: This policy Circular provides for 15% developed land in lieu of cash compensation for the acquired land, provided that the award was not passed earlier and compensation had not been paid till then. This circular was issued with the approval of Minister In-charge of the Department. 66. Rule 31(1)(ii) of Rules, to reiterate, after the amendment on 05.03.1999 did provide that the cases raising question of policy and all the cases of administrative importance not already covered by Second Schedule would have to be laid before the Chief Minister before any order is issued. 67. With this preface, the State did, however, in unqualified terms aver in its affidavit dated 22.3.2013 that in terms of the Standing Or....
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....le 166(1) of the Constitution of India, was not in proper legal form. It was urged with reference to the said constitutional provision, that all executive actions of the Government of State have to be expressed and authenticated in the manner as provided therein. This Court, while observing that every executive action need not be formally expressed, more particularly so when one superior officer directs his subordinate to act or forbear from acting in a particular way, ruled that when an executive decision affects an outsider or is required to be officially notified or to be communicated, it should normally be expressed in the form mentioned in Article 166(1) of the Constitution of India i.e. in the name of Governor. The plea that an omission to make and authenticate an executive decision in the form mentioned in Article 166 does not per se make the decision itself illegal was, however sustained. It was underlined, that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. It was propounded that when the provisions of a statute relate to the performance of a public duty and the case is such that to ho....
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....und that it had not been made or executed by the Governor of the State, was reaffirmed. While concluding that even if Clause (1) of Article 166 is taken to be an independent provision unconnected with Clause (2), it was highlighted that the prescription of the former would only be directory and not imperative and was indeed a formality for doing a public act. Following extract from the Maxwell on Interpretation of Statutes, 11th Edition, page 369 was adverted to: Where the prescriptions of a statute relate to the performance of a public duty, and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, yet not promote the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. 72. A letter issued by the Under Secretary to the Government of Mysore, Education Department conveying the decision of the Government to award 25% marks in the interview for admission to Engineering Colleges an....
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....e Government to issue notifications mentioned above was not authorised by law inasmuch as the Council of Ministers had rescinded the same. But despite this, the Power Minister himself had issued a notification at his own level without making a reference to either the Chief Minister or the Council of Ministers or consulting the Finance Department as mandatorily required under the Rules of business. It was asserted as well that the decision of the then Minister of Power to issue the notifications was wholly unauthorised as he had no authority in law to issue them at his level and the subject matter was required to be placed before the Cabinet in view of the huge financial implication involved therein and further that the Cabinet had earlier rescinded the notifications offering rebate. It was underlined too, that for any modification or variation of such decision, it was required to be placed before the Council of Ministers in view of the business Rules framed Under Article 166(3) of the Constitution of India. The State maintained further that the two notifications had imposed a heavy burden on the state exchequer and that the concurrence of the Finance Department of the State Governm....
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....vernment in its counter-affidavit in the appeals in support of the judgment impugned, pleaded that the notifications did not embody the Government decision inasmuch as the matter was neither placed before the State Cabinet in terms of the business Rules nor was the mandatory concurrence of the Finance Department there under obtained. It was contended as well that in view of the notifications, the State had already paid an amount of Rs. 16 crores as rebate and that it could not afford to pay further on account of the financial crunch faced by it. It was urged further that the Notifications, if upheld, would result in loss of Rs. 50 crores to the State Exchequer. The pleadings of the State, as noticed by this Court, reflected that there was neither the financial sanction nor the budgetary provision, nor a cabinet approval as was mandatorily required under the Rules and that there was clear breach of the mandatory provisions thereof. 76. In the course of adjudication, the plea of estoppel against the State Government in repudiating the notifications was negated on the ground that the issue of validity thereof, being repugnant to the mandatory provisions of the Rules of business had....
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....t did refer as well to the following quote from the Halsbury's Laws of England, 4th Edn. Reissue, Vol. 44(1) at para 1238: Mandatory and directory enactments.--The distinction between mandatory and directory enactments concerns statutory requirements and may have to be drawn where the consequence of ailing to implement the requirement is not spelt out in the legislation. The requirement may arise in one of two ways. A duty to implement it may be imposed directly on a person; or legislation may govern the doing of an act or the carrying on of an activity, and compel the person doing the act or carrying on the activity to implement the requirement as part of a specified procedure. The requirement may be imposed merely by implication. To remedy the deficiency of the legislature in failing to specify the intended legal consequence of non-compliance with such a requirement, it has been necessary for the courts to devise rules. These lay down that it must be decided from the wording of the relevant enactment whether the requirement is intended to be mandatory or merely directory. The same requirement may be mandatory as to some aspects and ....
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.... which proclaimed that a noting by an official in the departmental file would not amount to an executive decision within the meaning of Article 166 of the Constitution of India. It noted the observation as well that while Clauses (1) and (2) of Article 166 did relate to the mode of expression of the order and the authentication thereof, Clause (3) pertained to the making of the rules by the Governor for more convenient transaction of the business of the Government. Referring to Rules 3, 6 and 7 of the Business Rules of the Government of Goa as involved and judging the same on the touchstone of the above judicially evolved formulations, this Court concluded that any proposal likely to be converted into a decision of the State Government involving expenditure or abandonment of revenue for which there was no provision made in the Appropriation Act or an issue which involved concession or otherwise having a financial implication on the State, was required to be processed only after the concurrence of the Finance Department and could not be finalised merely at the level of the Minster-in-charge. It was ruled that after the concurrence of the Finance Department, the proposal had to be pl....
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....essential to the acquisition of the right or authority.... 83. It was, thus, concluded that the Business Rules framed under the provisions of Article 166(3) are mandatory and must be strictly adhered to so much so that any decision of the Government in breach thereof would be a nullity in the eye of the law. 84. In the facts of the above reported case, this Court, on a consultation of the official records and being convinced that the notifications concerned had been issued in non-compliance of the Rules, sustained the verdict of the High Court proclaimed as above. 85. Allusion to Article 166 as a whole, figured in a different context before this Court in Jaipur Development Authority (supra), to assay the attributes of the letter dated 6.12.2001 issued by the Deputy Secretary (Administration), Urban Development and Housing Department to the Secretary, Jaipur Development Authority, Jaipur in the matter of allotment of plots in addition to the compensation paid to the awardees in connection with the acquisition of land involved. For the construction of new building of the Legislative Assembly, educational institutions, stadium complex, district shopping centre, MLA quarters e....
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....ad the effect of defeating the public purpose for which the land was acquired. The recorded facts revealed, that an inquiry was made into the episode by the Lokayukta of the State, who returned a finding, that the persons named therein including the then departmental minister had misused their official position to favour a few influential and highly placed individuals and had also thereby caused wrongful gain to them and wrongful loss to the JDA (successor of Jaipur Improvement Trust) and the public at large. 87. This Court recalled its adjudication in Jaipur Development Authority v. Radhey Shyam (1994) 4 SCC 370 to the effect that the Land Acquisition Officer did not have any jurisdiction, power or authority to direct allotment of land to the claimants under the Rajasthan Act in lieu of compensation. It was also noted that as held in Jaipur Development Authority v. Daulat Mal Jain (1997) 1 SCC 35 that there was no policy laid by the Government to this effect and that it could not have been so, being contrary to the Rajasthan Improvement Trust (Disposal of Urban Land) Rules, 1974 and that no such power was given to the individual minister by executive action to that effect....
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....new case without the essential pleadings, the reliance on the said policy decision which was in flagrant violation of the judgments of this Court in Radhey Shyam (supra) and Daulat Mal Jain (supra) was strongly disapproved. Holding that the letter dated 6.12.2001, by no means, could be construed to be a policy decision of the State Government, this Court ruled that the High Court had impermissibly sought to legitimise the illegal transactions in violation of the dictum of this Court in Radhey Shyam (supra) and Daulat Mal Jain (supra). 90. It is in this context that the prescriptions of Articles 77 & 166 of the Constitution of India were adverted to, with special reference to the decision of this Court in Kripalu Shankar (supra) to the effect that a noting by an official in the departmental file could not be construed to be an executive decision. It was thus concluded, that unless an order is expressed in the name of President or the Governor and is authenticated in the manner prescribed by the Rules of Business, the same cannot be treated as an order made on behalf of the Government. The letter dated 6.12.2001 in the opinion of this Court, having failed to meet this prescript, i....
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....d later communicated to all concerned, were not disposed of in pursuance of Rule 4 of the Rules i.e. neither the decision was sanctified by the Cabinet nor the concurrence of Finance Department was taken. This Court held the view that from a combined reading of Rules 3, 4 and 4(2), the minutes of the meeting were required to be proceeded only after the concurrence of the Finance Department and could not have been finalised at the level of officers/representatives of Civil Aviation, Central Board of Excise and Customs etc. Additionally, after the concurrence of the Finance Ministry, the minutes of the meeting ought to have been placed before the concerned Minister as per the Rules of Business. It was held that sanctification by the concerned ministry and the concurrence of the Finance Department was a mandatory requirement in order to construe the minutes of the meeting to be a general or special order in writing by the Central Government. That there was nothing on record to prove that the minutes of the meeting had the concurrence of the Finance Department or had either been confirmed or approved by the concerned Minister or such directions had been issued pursuant to any decision ....
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....aste in favour of a person who is not a member of the Scheduled Caste, or by a member of a Scheduled Tribe in favour of a person who is not a member of the Scheduled Tribe. It was recorded that the cast of the original khatedars was "Bairwa" which was a Scheduled Caste. 95. Reverting to the circular dated 27.10.2005, this Court marked that the applicability thereof depended on the land surrendered by the khatedars without compensation, thus entitling them to obtain 25% of the developed residential area in lieu thereof. It was held that as it was not a case of surrender of land, the said circular was inapplicable which, in fact, was in the form of guidelines for future acquisition, conditionally on the surrender of the land by the khatedars. The ratio of the decisions of this Court in Radhey Shyam (supra), Daulat Mal Jain (supra) and Vijay Kumar Data (supra) was reiterated. 96. In the context of the circular dated 27.10.2005, reference was again made to the decision of this Court in Kripalu Shankar (supra) involving the noting in a file, which as held, did not amount to an executive decision by itself. The mandate of Article 166 with regard to mode of expression of the decisio....
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....ired in the same acquisition proceedings. That the policy dated 26.10.2007 had not been applied to any of the land owners whose land had been acquired along with the Appellants' land was also noted. It was noticed that lands of more than 40 land owners out of the same acquisition proceedings had been released by the State Government which also included those, who had not even challenged the acquisition proceedings and whose cases had not been recommended by the Committee for withdrawal from acquisition. Concluding thus, that no firm policy had been applied for release of lands from the acquisition proceedings involved, this Court entered a finding that it was unfair on the part of State Government in not considering the representations of the Appellants by applying the same standards. A direction was made to the State to issue appropriate order(s) concerning the Appellants' land on the same terms and in the same manner as done qua the others similarly situated. In adopting this course, this Court observed in no uncertain terms that the land owners who were similarly situated have a right of similar treatment by the State Government as equality of citizens' right was one....
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.... if so done, the validity of an order or instrument, which is so authenticated, shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. Clause (3) makes it incumbent on the Governor to frame rules for the more convenient transaction of the business of the Government of the State and for the allocation among the Ministers of the said business, insofar as it is not one with respect to which, the Governor is by or under the Constitution required to act in his discretion. 102. A combined reading of these provisions, thus would evince that the executive power of the State is vested in the Governor and is to be exercised by him either directly or through the officers subordinate to him, however, in accordance with the Constitution and except insofar as he is required to exercise his functions or any of them in his discretion, there would be a Council of Ministers with the Chief Minister as the head to act and advise him in the discharge of his other functions. The Rules of Business as contemplated in Clause (3) of Article 166 unmistakably relate to the transactions to be undertaken by the Governor with the aid and advise of....
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....in connection therewith and issues not admitting of any laxity so as to upset, dislodge or mutilate the prescribed essentiality of collective participation, involvement and contribution of the Council of Ministers, headed by the Chief Minister in aid of the Governor in transacting the affairs of the State to effectuate the imperatives of federal democratic governance as contemplated by the Constitution. 105. As noticed hereinabove, it is affirmatively acknowledged as well that where provisions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of these have the potential of resulting in serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, such prescriptions are generally understood as mere instructions for the guidance of those on whom the duty is imposed and are regarded as directory. It has been the practice to hold such provisions to be directory only, neglect of those, though punishable, would not however affect the validity of the acts done. At the same time where however, a power or author....
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....e land, by curtailing the impeding litigations, is traceable as hereinbefore referred, to the circulars from 22.4.1992 and did continue with variation in the percentage of land to be allotted even after the circular dated 13.12.2001. 109. Noticeably, no plea has been raised emphasising on the obligatory requirement of concurrence of the Finance Department, as a condition precedent or disapproval of the decision of the departmental minister and the Committee constituted by him for the purpose either by the Chief Minister of the State or the other Ministers of the Council. To reiterate, the State Government in its affidavit in reply to the queries of this Court made with order dated 15.1.2013, in unmistakable terms did vouch the competence and authority of the departmental minister to exclusively take a decision on this issue. As the text of the said affidavit would clearly demonstrate, the State Government was then fully aware of the amendment to the Rules on 5.3.1999. Our attention has not been drawn to any circular/notification superseding the Order dated 20.7.1998 whereby the departmental minister in terms of the Standing Orders Under Rules 21 and 22 of the Rules was entrusted....
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....cessary or expedient so to do or when the case is referred to him by the Minister-in-Charge or the Chief Secretary. The suo moto intervention of the Chief Minister in these contingencies thus is also conceptualized. 111. Having regard to the progression of events pertaining to the decision of allotment of developed land and the conscious initiatives taken by the State Government in furtherance thereof, it is impossible as well as impermissible to conclude, that it had remained unaware thereof. The land of the Appellants had been compulsorily acquired, in the exercise of the State's power of eminent domain by invoking an expropriatory legislation. Admittedly as well, the compensation as guaranteed by the Reference Court for the land has not been paid to them. To reiterate, the facts demonstrate that the State Government had taken a pre-meditated decision to allot developed land to the land oustees in lieu of compensation. As per the successive circulars including the one dated 13.12.2001, it was incumbent on the State Government to allot developed land with all the essential attributes thereof. As is apparent from the order dated 7.5.2015 of this Court, the plots offered to t....
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....ief Minister Under Rule 31 of the Rules. The non-acceptability of the land at Lalchandpura and Anantpura by the Appellants, being undeveloped, does not detract from these conclusions. 114. In our comprehension, it is the burden of the State Government, in view of the belated attempt on its part to wriggle out of its commitment under the circular/policy dated 13.12.2001 to demonstrate on the basis of contemporaneous records that it was never intended to be acknowledged as its policy. As the file pertaining to the circular/policy dated 13.12.2001 is not traceable, in our unhesitant opinion, the State Government has failed to discharge its burden in this regard. The Appellants understandably have no access either to the official records of the Government or control over the manner of discharge of the role of the functionaries under the Rules. In this view of the matter, in the face of the predominant facts testifying the reflective and consistent decision of the State Government in the matter of allotment of developed land in lieu of compensation, spanning over a decade from the year 1992 to 2005, the endeavour on its part to disown the policy/circular dated 13.12.2001, in our esti....
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.... circular dated 13.12.2001, it had been resolved in clear terms that the developed land would normally be allotted in the scheme area and at the place where the land had been acquired and that, if it was not possible to develop the scheme within a fixed period of five months or it was not possible to give land in the same area, it was only then that land would be allotted in some other area. In that eventuality as well, a sincere endeavour was to be made to allot land near the scheme area. Developed status of the land to be allotted and its proximity to the site from where the land had been acquired for a scheme, were thus the two imperatives to identify the land to be allotted. It was only if the developed land within the scheme area was not available for allotment, that a plot near the scheme area was to be made available. In any case, the requirement of developed character of the land could not be undermined, disregarded or waived. 119. As by the time, the allotment was contemplated, the JDA Act had been brought into force, the concept of developed land was clearly traceable to one informed with the concept of "development" and "amenities" defined thereunder. Any land to be a....
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....he Appellants. Admittedly, two of the land oustees had been allotted developed land at Vidyadhar Nagar and as the letter dated 16.10.2007 referred to hereinabove would reveal, till then, land at the same site was available. As a matter of fact, allotment of land at Lalchandpura, Anantpura, Boytawala and Mansarampura, which admittedly had not been fully developed, was in breach of the promise engrafted in the policy dated 13.12.2001. The approach of the Respondents, when viewed in the backdrop of compulsory acquisition of land in the exercise of the State's power of eminent domain and its persistent failure to act on this policy, only demonstrates a highly insensitive and evasive orientation at the cost of its citizenry by a show of dominant bargaining power. The policy, though was to allot developed land in lieu of compensation to ensure quick and unhindered completion of the process of acquisition, the Respondents have remained apathetically inert, having obtained the land, without living up to their commitments. To gloss over this inexplicable default, would signify effacement of decades of indifference and mute inaction of the Respondents, more particularly the State, inspit....
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....so a human right. Human rights have already been considered in the realm of individual rights such as the right to health, right to livelihood, right to shelter and employment etc. But now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even the claim of adverse possession has to be read in that context. The changing attitude of the English courts is quite visible from the judgment of Beaulane Properties Ltd. v. Palmer (2005) 4 All ER 461. The Court here tried to read the human rights position in the context of adverse possession. But what is commendable is that the dimensions of human rights have widened so much that now property dispute issues are also being raised within the contours of human rights. With the expanding jurisprudence of the European Courts of Human Rights, the Court has taken an unkind view to the concept of adverse possession. 127. In summa, the right to property having been elevated to the status of human rights, it is inherent in every individual, and thus has to be venerably acknowledged and can, by no means, be belittled or trivialized by adopti....
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.... and that the former was equally bound as the latter and it was difficult to see on what principle, could a Government, committed to the rule of law, claim immunity from the doctrine of promissory estoppel. 131. This hallowed notion of equitable estoppel has stood the test of time with peripheral variations to reverberate in the following exposition in Monnet Ispat (supra) in the following terms: 182.1. Where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is, in fact, so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or not. 182.2. The doctrine of promissory estoppels may be applied against ....
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....ations, applications to renew and revocations; a party who has been granted a licence may have a legitimate expectation that it will be renewed unless there is some good reason not to do so, and may therefore be entitled to greater procedural protection than a mere applicant for a grant. 134. In espousing this equitable notion of exacting fairness in governmental dealings, this Court in Food Corporation of India (supra) proclaimed that there was no unfettered discretion in public law and that a sovereign authority possessed powers only to use them for public good. Observing that the investiture of such power imposes with it, the duty to act fairly and to adopt a procedure which is 'fair play in action', it was underlined that it also raises a reasonable or legitimate expectation in every citizen to be treated fairly in his dealings with the State and its instrumentalities. 135. The observance of this obligation as a part of good administration, is obligated by the requirement of non-arbitrariness in a state action, which as a corollary, makes it incumbent on the State to consider and give due weight to the reasonable or legitimate expectations of the persons, likely t....
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....land are developed has been unreservedly admitted by the Respondents, their plea being that, the Appellants are not entitled thereto, judged by the factor of equivalence of the value of the acquired land. 138. At this distant point of time, we are disinclined to sustain this demur of the Respondents. As the facts have unfolded, the Appellants cannot be held accountable for the delay in between, the Respondents having failed to offer developed land as contemplated in the policy. This stands fortified, amongst others, by the order dated 7.5.2015 vis-a-vis the land at Boytawala, Lal Chandpura, Anantpura and Mansarampura. The other plots offered by the Respondents, also having regard to the attributes of developed land as envisioned by the Rajasthan Act do not accord with the letter and spirit of the policy. 139. Administrative discretion, irrespective of its ostensible expanse, it is a trite proposition, can never be unregulated, omnipotent and fanciful. A public authority vested with power has to essentially exercise its discretion, if conferred, conditioned by the dictates of duty as envisaged, to effectuate the exercise of the prerogative to achieve the objective therefor. Th....
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....bits arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law. 40: The public trust doctrine is a part of the law of the land. The doctrine has grown from Article 21 of the Constitution. In essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fides, as it would only be a case of colourable exercise of power. The rule of law is the foundation of a democratic society. [Vide Erusian Equipment and Chemicals Ltd. v. State of W.B., Ramana Dayaram Shetty v. International Airport Authority of India, Haji T.M. Hassan Rawther v. Kerala Financial Corporation, Shrilekha Vidyarthi v. State of U.P. and M.I. Builders (P) Ltd. v. Radhey Shyam Sahu.] 41: Power vested by the State in a public authority should be viewed as a trust coupled....
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....constitutional courts, and more particularly, this Court Under Article 142 of the Constitution are assuredly the potential redressal aids in fact situations akin to the one in hand. 143. A writ of mandamus is an extraordinary remedy and is intended to supply deficiencies in law and is thus discretionary in nature. The issuance of writ of mandamus pre-supposes a clear right of the applicant and unjustifiable failure of a duty imposed on an authority otherwise obliged in law to imperatively discharge the same. 144. The dominant features of a writ of mandamus authoritatively figures in the following extract from the Halsbusy Laws of England, 4th Edition (page 111): Nature of mandamus. The order of mandamus is of a most extensive remedial nature, and is, in from, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a spe....
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....f machines, for they involve not repetition, where the general elements are significant, but unique events, in which the special circumstances are significant. ... Where the call is for individuality in the product of the legal mill we resort to standards. And the sacrifice of certainty in so doing is more apparent than actual. For the certainty attained by mechanical application of fixed rules to human conduct has always been illusory. 146. The above extracts authoritatively underscore the indispensable essentiality of individuality in results in a persuasive fact situation to obviate mechanical application of fixed rules, by invoking equity and discretion to secure realistic remedies tailor-made to the situational demands justifying the paramountcy of the rule of law. 147. Our national charter, being a living and organic document, no provision thereof can remain static or stale and must be accorded a vibrant import to guarantee the effectuation of the preambular pledge in its fullest content. The plenary powers of this Court enshrined in Article 142 of the Constitution of India for achieving complete justice is only an insignia of....