1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R D.B. Civil Writ Petition (PIL) No.1737/2003 Sanjay Tyagi Vs. State of Rajasthan & Ors. Date of Order : 27th October, 2010 HON. THE CHIEF JUSTICE MR.JAGDISH BHALLA HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Poonam Chand Bhandari, for the petitioner. Mr.S.N.Kumawat, Additional Advocate General for State. Mr.Alok Sharma, for respondent Nos. 6 and 7. Mr.P.S.Sharma, for respondents. Mr.R.N.Mathur, for the respondent-J.D.A. Mr.Vimal Choudhary, for the intervener. Mr.R.D.Rastogi, Amicus Curiae Mr.Mahendra Shandilya, for the Receiver. By the Court (Per Bhandari, J.): REPORTABLE This Public Interest Litigation relates to a land, which exists in the heart of Jaipur City, known as Rambagh Area. A decision was taken somewhere in the month of February, 1973 to acquire the land of Ram Bagh Area and, thereafter, a Gazette Notification was issued under the provisions of Rajasthan Urban Improvement Trust Act, 1959 (for short “ UIT Act of 1959”). Acquisition was challenged by 2 Brigadier Bhawani Singh (erstwhile Ruler), Gandhi Grah Nirman Co-operative Society and many other persons. Acquisition proceedings were upheld by the Division Bench of this Court and Hon'ble Apex Court, dismissed the Special Leave Petition. On dismissal of the S.L.P., an award was passed on 18.10.1993. Petitioner has come up with this petition alleging encroachment on the part of land so acquired. It is submitted that private respondents are having political and bureaucratic shelter to maintain illegal possession on acquired land worth crores of rupees. Looking to aforesaid, a direction has been sought on the State Government and on its authorities to remove encroachments from Rambagh Campus area to make it part of Central Park. Learned counsel for petitioner submits that the Secretary, Department of Town Planning, Government of Rajasthan informed Officer on Special Duty, Town Planning Department regarding Government's decision to acquire land around Rambagh Palace Hotel and residency palace situated in village Bhawani Shankerpura and Bhojpura vide letter dated 24.02.1973. Pursuant to the aforesaid, a Notification was issued 3 under Section 52(1) followed by a notice under Section 52(2) of the UIT Act of 1959. In the notice under Section 52(2), acquisition was sought for the land nearby Rambagh Palace Hotel, however, in the Notification, the word “vacant” was added before word “land”, which has become root cause for encroachment though “vacant land” denotes entire area of various khasra numbers shown therein, excluding only those areas, which were not intended to be acquired. Like in khasra No.72 of village Bhawani Shankherpura, 8 bighas of land of Ashok Club was excluded from acquisition apart from 3 bighas 1 biswa of land in khasra No.111 of village Bhojpura. The notice was having boundaries of the land indicating north side to be Prithviraj Road of C-Scheme, in south side Bhawani Singh Marg and S.M.S. Stadium, in east side Tonk Road and Kanota House and in the west, Bhagwan Das Road, Secretariat, Agricultural Department and Accountant General Office. With the aforesaid indications, entire land in those boundaries were sought to be acquired leaving few areas specifically mentioned therein. On 02nd April, 1974, an order was passed on the objections raised by various parties, which include Brigadier Bhawnai Singh, S.M.S. Investment Corporation (Private) Ltd., Rajasthan Polo Club, Golf Club, Jaipur Horse Breeding and 4 Riding Association, Flower International, Field Club and Gandhi Grah Nirman Co-operative Society. Therein, a recommendation was made for acquisition of land after hearing objections. Thereafter, a Notification was issued on 11.07.1974 indicating that as per provision of Section 54(4) of the Act of 1959, the land vests in the government from the date of Gazette Notification under Section 52(1) of UIT Act of 1959. While the proceedings for acquisition were going on, a challenge to acquisition of land was made on various grounds. The Division Bench of this Court dismissed the petition. The judgment of the Division Bench was challenged before the Hon'ble Apex Court. The Special Leave Petition so preferred by Gandhi Grah Nirman Co-operative Society was dismissed on 30.03.1993. On dismissal of the Special Leave Petition, Land Acquisition Officer passed an award on 18.10.1993 for the land measuring 322 bighas 8 biswas. Learned counsel for petitioner urged that entire land of khasra Nos. 72, 75 and 77 of village Bhawani Shankerpura was acquired (except for Ashok Club) and accordingly, the award was passed. In these khasra numbers, the land has been encroached upon mainly by the non- 5 petitioner Nos.6 to 11. This is due to political and bureaucratic shelter to these respondents. The compensation awarded was deposited with the Civil Court followed by a Reference Application for enhancement of compensation at the instance of Brigadier Bhawani Singh. The Government is mainly supporting private respondents due to their political approach and thereby certain letters were issued to favour the respondents despite acquisition of entire land and deposition of compensation thereupon. This is more so when few non- petitioners had earlier approached this High Court to challenge the acquisition with unfavourable result. In a petition filed by Shri Ram Saran Gupta, Smt. Mridula Gupta and M/s. Suramas Properties Pvt. Ltd., specific plea was taken that bungalow No.36, “Kanak Bhawan” situated in khasra No.77 of village Bhawani Shankerpura consisting an area of 3890 sq. mt. was never intended to be acquired, thus the Notifications under Sections 52(1) and 52(2) of the Act of 1959 have been wrongly issued. The Officer on Special Duty, Town Planning Department exceeded to its jurisdiction in issuing Notification for entire property/land of khasra No.77. The writ petition bearing No.3931/1993 was dismissed by this Court vide its judgment dated 08.09.1993 holding that pursuant to judgment 6 of the Division Bench so as the judgment of Apex Court, challenge to the acquisition cannot be accepted, it becomes second round of litigation to challenge the acquisition. It was held that challenge at the instance of petitioners (respondents in this case) is not maintainable rather the petitioners therein i.e. owners of “Kanak Bhawan” are having agreement to sale only and, that too, such agreement to sale was executed after publication of Notification for acquisition. Hence, even the agreement to sale was held to be void. The matter did not end here as in a civil suit filed by Smt. Mridula Gupta, Ram Saran Gupta and M/s. Surams Properties Pvt. Ltd., an order was passed on 06.08.2005 holding that in view of the judgment of High Court in this case, the land vests in the government, thus specific performance of the agreement cannot be enforced and agreement was held to be void. The aforesaid order was passed by the Additional District and Sessions Judge (Fast Track) after passing of the award, yet neither the order of the Additional District and Sessions Judge (Fast Track) nor the judgment of this High Court was challenged by the respondents and those orders/judgments became final against the respondents-owners of the bungalow No.36 i.e. “Kanak Bhawan”. The State Government yet not taken any action against the encroachers. 7 Even in regard to the property of other respondents falling in khasra Nos. 72,75 and 77 of old village Bhawani Shankerpura, entire land stood acquired. However, a confusion is tried to be created by the private respondents by giving misinterpretation to the word “vacant land” used in the notification to show that structures occupied by them does not fall within the meaning of “vacant land”. When original notice dated 24.03.1973 was issued, the word “vacant land” was not existing though in the Notification of the same date, the words “vacant land” exist. However, looking to the meaning of the word “vacant” as given in various dictionaries, “an unoccupied house” is also considered to be within the meaning of “vacant” but the private respondents are trying to demonstrate that it is only the land, which was acquired leaving the part where structure exists. The aforesaid plea is not sustainable not only in the light of the acquisition proceedings but even in view of award passed subsequently for entire land even where buildings exist. None of the respondents yet challenged the award if the same was contrary to Notification issued under Section 52(1) and 52(2) of the Act of 1959. In view of provisions of Section 52(4) of the Act of 1959, the land vests in the government on issuance of notification under Section 52(1)(2) of the Act of 1959. Thus, 8 in the light of aforesaid, inaction on the part of respondents against encroachers has been made subject matter of this Public Interest Litigation. It is stated by learned counsel for petitioner that land in question is worth nearly Rs.300 crores. All inactions are due to political and bureaucratic shelter, which is even coming out from the documents filed by the private respondents, which includes even a note written by the then Chief Minister of State of Rajasthan Shri Bhairon Singh Shekhawat (since deceased). On the other hand, learned counsel for respondents have raised common objections and pleas in response to the Public Interest Litigation. It is firstly stated that in view of availability of alternative remedy, this PIL may not be entertained. A reference of the judgment in the case of Bombay Dyeing & Mfg. Co. Ltd. Vs. Bombay Environmental Action Group & Ors. reported in 2006 (3) SCC 434 and Shiv Nandan Gaurishankar Vs. Laxmi Vilas Textile reported in 2008 (13) SCC 323 has been given. Other preliminary objection is of res judicata. A 9 writ petition earlier filed by Godu Ram bearing D.B. Civil Writ Petition No.6055/1996 was for seeking similar relief. It was disposed of by this Court vide judgment dated 24.10.1997 holding that if any unauthorized possession exists on the acquired land, the State Government is always free to take action. Therein it was not held to be a case of unauthorized possession of land by respondents, in spite of specific allegations. The job to identify those unauthorized possession was left to the State Government. Successive Public Interest Litigation on the same subject is not maintainable, more so, when the Government did not treat disputed property under acquisition. Accordingly, the present writ petition is hit by res judicata. A reference of the judgment in the case of State of Karnataka & Ors. Vs. All India Manufacturers Organization and Ors. reported in (2006) 4 SCC 683 has been given wherein it has been held that a judgment in the previous PIL would be judgment in rem and binding to the public at large. Same issue has been decided in the case of Green Halagh Vs. Mallard reported in 1947 (2) All.E.R. 255 at 257. Another objection taken by the respondents is regarding jurisdiction of this Court to adjudicate question of 10 title. It is stated that question of title cannot be adjudicated by the Court exercising writ jurisdiction. A reference of the judgment of the Hon'ble Apex Court in case of North Eastern Railway (HQ) through its General Manager, Gorakhpur & Anr. Vs. Chhedilal & Ors. reported in 1987 (Suppl.) SCC 609 has been given. Therein, it was held that dispute regarding title of the property requires examination of evidence, hence, cannot be decided in a petition under Article 226 of the Constitution of India. Same view was expressed in the case of State of Rajasthan Vs. Bhawani Singh & Ors. reported in 1993 Suppl. (1) SCC 306. A reference of the judgment in case of G. Srinivas Vs. Government of Andhra Pradesh & Ors. reported in (2005) 13 SCC 712 and Dwarka Prasad Agarwal (D) By LRs & Anr. Vs. B.D. Agarwal & Ors. reported in (2003) 6 SCC 230 has also been given. It is urged that the question of ownership of property cannot be determined by this Court while exercising its jurisdiction under Article 226 of the Constitution of India. This is moreso when the possession of disputed property was never taken by the official respondents which becomes clear from the “Fard Kabja” dated 02.11.1993. Even the Government 11 had taken categorical stand that structures in various khasra numbers were not subject matter of acquisition. In view of aforesaid, anything contrary becomes disputed question of fact. The other objection is that in the matter of acquisition, doctrine of ex-proprietary legislation must be strictly construed. In view of the judgment of Hon'ble Apex Court in the case of Devindra Singh & Ors. Vs. State of Punjab & Ors. reported in (2008) 1 SCC 728, any order for acquisition of land is taken as ex-proprietary legislation, thus to be strictly construed. A reference of the judgment in the case of Hindustan Petroleum Corpn. Ltd. Vs. Darius Shapur Chenai & Ors. (2005) 7 SC 627 and in case of the The State of Madhya Pradesh & Ors. Vs. Vishnu Prasad Sharma & Ors. reported in AIR 1966 SC 1593 has also been given to support the aforesaid argument. This is to say that when the word “vacant” has been used before the word “land”, the intention of official respondents is clearly coming out i.e. they were intended to acquire only vacant land leaving the structure parts. The property in dispute is having structures, thus was not subject matter of acquisition. The interpretation of the word is to be given strict meaning. Various judgments of the Supreme 12 Court have been referred to show that even the circulars issued by the Central Board of Direct Taxes were held to be binding on all officers. According to the private respondents, the structures/houses were excluded from acquisition as is coming out from the Notification itself. Other argument advanced by learned counsel for the private respondents is that physical possession of land is necessary in land acquisition matters. Referring to the judgment in case of Balwant Narayan Bhagde VS. M.D. Bhagwat reported in 1976(1) SCC 700 it is submitted that actual possession of the land is necessary to complete the acquisition, thus taking of possession cannot be symbolic. In this case, possession of the property in dispute was never taken. It is lastly urged that principle of estoppal applies against official respondents as they have changed their stand. In the counter to the writ petition, Jaipur Development Authority had taken a favourable stand towards private respondents, whereas, in the subsequent affidavits, they have gone with the petitioner. The aforesaid act of the respondents is not permissible in view of the judgment of the Hon'ble 13 Supreme Court in the case of Darshan Vs. State of Punjab reported in 2007 (14) SCC 262. Learned counsel for respondent No.6 has taken further objection in reference to covenant notified in Rajasthan Gazette dated 14.01.1950. The Article 363 of the Constitution of India bar interference by court in disputes arising out of treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before commencement of the Constitution of India, by any Ruler of an Indian State and to which the Government of the Dominion of India or any of its predecessor, was a party and which has been continued in operation after such commencement. According to the respondents, neither the Supreme Court nor any other Court is having jurisdiction to hear a dispute arising out of covenant. It is further urged that the State Government, under its legislative powers, enacted Rajasthan Land Reforms and Acquisition of Landowners' Estates Act, 1963 (hereinafter to be referred as “the Act of 1963”). The State Act applies to the Ex- Rulers of Rajasthan and authorizes resumption of land under 14 the Act subject to exception provided under the Act. Section 10 of the Act of 1963 provides protection to the properties of Ex- Rulars from acquisition under the Act. A reference of the judgment in case of State of Rajasthan Vs. Bhawani Singh Former His Highness Jaipur & Ors. reported in 1980 W.L.N. 295 has been given. Therein, it was held that to satisfy it to be the private property of the Ex-Ruler, two conditions are to be satisfied: (i)the land contains palace, fort, building, or building plot and; (ii)the said property is specified in the inventory signed with the Government of India in terms of covenant; Definition of “Estate” under the Act of 1963, means, a right, title or interest in the land held by the land owner. Definition of “land” is given under Section 2(f) of the Act of 1963 and the word “inventory” has been defined under Section 2(d) of the said Act. The issue aforesaid was considered by the Hon'ble Apex Court in case of Aadhunik Grah Nirman Sahkari Samiti Ltd. & Ors. Vs. State of Rajasthan & Anr. reported in 1989 Suppl. (1) SCC 656. According to respondent No.6, the property in occupation is the part of inventory at para (xii) of the covenant, thus, could not 15 have been made subject matter of acquisition or requisition. Hence, left from acquisition. On merits, private respondents have raised certain common issues. It is firstly stated that structures occupied by private respondent Nos. 6 to 11 were existing much prior to the Notification for acquisition. This is coming out from inventories in the covenant apart from many other documents. The part of structure now known as Laxmi Vilas Hotel was occupied sometime in the year 1976 and other building known as “Kanak Bhawan” was occupied subsequently in the year 1986. Both the buildings were existing prior to issuance of Notification for acquisition in the year 1973. In view of aforesaid, property in question does not fall within the definition of “vacant land” whereas, the Notification shows acquisition of “vacant land” only. For that reason, even on passing of award, possession of structures forming “Laxmi Vilas Hotel” and “Kanak Bhawan” were not taken by the official respondents. In a challenge to acquisition by Brigadier Bhawani Singh in Writ Petition No. 2962/1974, the State Government had taken candid stand that properties shown in inventory had nothing to do with acquisition proceedings. 16 Thus, only the motor garage and work shop were leased out by Brigadier Bhawani Singh w.e.f. 01.01.1976 and now above property is known as Laxmi Vilas Hotel. The State Government, vide its order dated 08.09.1989 granted exemption from ceiling to the land measuring 18000 sq.mt. under Section 20(1) of the Urban Land (Ceiling & Regulation) Act, 1976 (for short “the Ceiling Act of 1976”). The respondent No.6 had even made an application for addition and alteration in the premises, which was duly approved by the Jaipur Development Authority on 06.10.1993. A letter was issued by the Deputy Secretary, Government of Rajasthan, declaring that Laxmi Vilas Hotel is not the part of acquisition. Further letter was issued on the same date by the Department of Urban Development for unnecessarily stopping construction of Laxmi Vilas Hotel. ` The respondent No.6 even approached Settlement Committee constituted to resolve dispute pertaining to land matters. Therein, Settlement Committee passed a detailed order. It was found that Laxmi Vilas Hotel is not the part of acquired land, however, at Item No.3 of the conclusions, it was 17 further observed that even if Laxmi Vilas Hotel is part of acquisition (being acquisition of khara Nos.72,75 and 77), then the State Government should issue formal order of its exemption from acquisition. The matter was, however, referred to the State Level Committee being a matter involving more than Rs.50 lacs, not within the competence of the Settlement Committee. On reference of the matter, an interim order was passed by the State Level Committee allowing respondent No.6 to carry out construction as per approved plan. The respondent No.6 accordingly constructed the boundary wall to cover the open land. The direction issued by the State Level Committee is binding on J.D.A. as well as on State Government. The J.D.A. in its reply accepted that structures occupied by respondent Nos. 6 to 11 were not subject matter of acquisition proceedings, however, an additional affidavit filed now by the J.D.A. shows a reverse turn, which is not permissible. In the affidavit now filed, it is stated that property falling in khasra No.72 stood acquired pursuant to acquisition proceedings and award thereupon. This is in ignorance to the order passed by the Government of Rajasthan and the Settlement Committee. 18 The Chief Secretary, State of Rajasthan has recently filed an affidavit showing area possessed by the respondent Nos. 6 to 11 to be part of acquired land. The aforesaid affidavit is again contrary to the letters earlier issued by the Deputy Secretary. The aforesaid affidavit carries no meaning as same is based on an order passed by the Jaipur Development Authority Tribunal (for short “the J.D.A. Tribunal”) in an appeal filed by Gandhi Grah Nirman Co- operative Society. The aforesaid order of the Tribunal is pending consideration in a writ petition and an interim order exists therein. Respondent No.6 has also given reference of a news item published in Dainik Bhaskar to show that the J.D.A. is having land in excess to what was acquired. The respondent No. 7 has further emphasized that Kanak Bhawan was a motor garage bungalow shown in the covenant. The aforesaid bungalow falls in khasra No.77 showing it to be “Gair Mumkin Abadi”, thus could not have been acquired, as for that purpose, acquisition was sought for. This is apart from the fact that possession of the building was never taken, rather J.D.A., by issuing notice under Section 32 and 33 of the JDA Act, considered it to be a private property as 19 such notices are issued for unauthorized construction and not for removal of encroachment. The notice under Section 72 of the Act has now been issued by the J.D.A. while the matter was pending adjudication before this Court. The word “vacant land” is to be given meaning as per provisions of the Ceiling Act of 1976. The provisions of aforesaid Act is pari materia to provisions of the Act of 1959. The Hon'ble Apex Court in case of Ahemdabad Pvt. Teachers' Association Vs. Administrative Officer & Ors. reported in (2004) 1 SCC 755 held that doctrine of pari materia is permissible for taking reference of other statues dealing with the same subject. In case of Municipal Corporation of Delhi Vs. Shiv Shanker reported in 1971 (1) SCC 442 and in case of Tata Consultancy Services Vs. State of Andhra Pradesh reported in (2005) 1 SCC 308, the Hon'ble Apex Court held that it is to be presumed that legislature enact consistent and harmonious law, which is ordinarily in the interest of certainty and consistency. Learned counsel for respondent has given reference of Section 2(q) of the Act of 1976 to show the meaning of “vacant land”. 20 Learned counsel for respondent No.7 has further clarified the judgment in his case bearing writ petition No.3931/1993 wherein acquisition was challenged. The aforesaid writ was decided before passing of the award. The award has not included structure portion, thus it was to the satisfaction of the respondent, hence, there was no occasion to challenge the judgment. The decision in aforesaid writ petition does not address the issue raised herein. So far as the decision of the Hon'ble Apex Court in regard to acquisition proceeding is concerned, it does not affect rights of the respondents as their matter stands altogether on different footings. Even if the Hon'ble Supreme Court confirmed the acquisition for land measuring 322.8 bighas, the right of the respondents still remains ineffected as the issue as to whether structures were acquired or not was not a subject matter of decision by the Hon'ble Supreme Court. Before the Hon'ble Apex Court, only two issues were raised and decided i.e. as to whether the land is required for “public purpose” and whether acquisition is hit by Section 11-A of the Land Acquisition Act of 1894 (in short “the Act of 1894”) as the provisions of UIT Act of 1959 stood superseded. 21 Coming to the allegations against the State Government and J.D.A. to favour private respondents, it is submitted that such allegations are vague and do not indicate involvement of any officer of the J.D.A. or the State, thus needs to be ignored. It is lastly contended by respondents that when, during