N \ AM PETITIONERS N N RESPONDENTS \ WRIT PETITION No. 1177 of 1985 Smt. Vijay Laxmi Shanna & Others‘ VERSUS Raipur Municipal Corporation & Others. Post for order on .g. 01.2008 Sdl- Satish K. Agnihotri r, Ewge g. .012008 \ ._.. ~‘MM~,~ 4 *\ HIGH COURT OF CHHATTISGARH AT BILASPURk/ HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONERS Smt. Vijay Laxmi Sharma, aged about 55 Years, Widow of Late Govind Prasad Sharma, resident of Deepak House, Jalgrih Marg, Tikrapara, Raipur, M.P. Deepak Sharma, son of Late Shri Ram Gopal Sharma, Aged about 28 years, resident of Deepak House, Jalgrih Marge, Raipur M.P. Prakash Sharma, son of Late Shri Ram Gopal Sharma Aged about 27 years Resident of Deepak House Jalgrlh Marg, T1krapara Tahs1l & Distrlct Ralpur (M P ) Smt Ashalata Mlshra, w/o Shri Jagdamba Prasad Mishra, daughter of Late Shri Ram Gopal Sharma, aged about 45 years, resident of 13-B, Babaram Ghose Lane, Calcutta — 5, Tahsil & District Caucutta (West Bengal) Smt. Hemlata Sharma, widow Late Dr. Yognesh Sharma, daughter of Late Shri Ram Gopal Sharma, aged about 42 years, resident of Deepak House, Jalgrih Tikrapara Marg, Tahsil & District Raipur, M.P. Smt. Pushpalata Chaturvedi, wife of Shri Ramesh Chandra Chaturvedi, d/o Shri Ram Gopal Sharma, aged about 38 yrs, Deepak House, Jalgrih Marg, Tikrapara, Tahsil & District Raipur, M.P. Smt. Prernlata Vashishtha, wife of Shri Krishna Kant Vashishtha, d/o Late Shri Ram Gopal Sharma, aged about 36 years, resident of Deepak House, Jalgrih Marg, Tikrapara, Tahsil '& District Raipur, M.P. VERSUS Ralpur Mun1c1pal Corporatlon, R.D.A. Section, Ralpur The State of Madhya Pradesh, Through the Chief Secretary, Government of Madhya Pradesh, Vallabh Bhawan, Bhopal, M.P. Smt. Kunwar Bai Yadu, wife of not known, Plot No. C-3, C-4, Shailendra Nagar, Raipur, M.P. Smt. Godawari Bai, Wife of not known, Plot No C— 17, Shailendra Nagar, Raipur, M.P. 4.A Bharat Valecha son of Shri Hridram, aged about 32 years 4.B. Amit Valecha son of Shr1 Hridram aged about 29 years Both resident of purani Basti, Raipur. Balraj Singh Chouhan, son of not known, aged about 30, Resident of Pension Bada, Raipur, M.P. Shri Gurbachan Singh Rai, old Sales Tax Office Compound GE Road Raipur MP Smt Sudha Shukla C/o Vinod Kumar Shukla Prof Agriculture College Raipur M R RESPONDENTS 3. 4. WRIT PETITION No. 1177 of 1985 8. 9. 10. 11. Raipur, M.P. 12. Shailendra Nagar, Raipur, M.P. 13. M.P. 14. No. 10, Pandhari, Raipur, M.P. 15. Raipur, M.P. 16. Jairam Talkies, Raipur, M.P. 17. Marathapara, Dhamtari, Raipur, M.P. 18. Raipur, M.P. 19. General Stores, Banjari Chowk, M.P. 20. Shri Babulal Shrivastava, Plot No. C-2l, Shailendra Nagar, Raipur, M.P. Nand Kishore Tiwari, son of Shri S.P.Tiwari, 26 Vivekanand Colony, Raipur, M.P. , H.S.Paraskar, D—251, Shailendra Nagar, Raipur, M.P. S.S.Rajput, Resident of Jhatka Shop, Landy Talab, Kanhaiyalal son of not Known, Plot No. D-248, Smt. Daya Bai, D-249, Shailendra Nagar, Raipur, G.Abbas, C/o LIC of India, Divisional Office, P.B. Smt. Sheela Bai, w/o Shri Laxman Das, Katora Talab, Smt. Pushpa Devi, wife of Mohan Lal, aged about - years, resident of Bajrang Travelling House, Near Amrit Rao Magar, son of Mohan Rao Magar, years C/o Hardas Mal General Stores, Banjari Chowk, Narayan Das, son of Sanwaldas, C/o Hardas Ram Smt. Shanti Devi Pandey, Plot No. D-252, Shailendra Nagar, Raipur, M.P. WRIT PETITION UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA Single Bench : Hon’ble Shri Satish K. Agnihotri, J. Present: Shri B.P.Sharma, Advocate with Shri Ajit Singh, Advocate for the petitioners. Shri Manindra Shrivastava, Senior Advocate with Shri Afroz Khan, Advocate for the respondent No. l. Shri Sumesh Bajaj, Government Advocate for the respondent N0. 2. Shri N.K.Vyas, Advocate for the respondent No. 4. Shri Raj eev Shrivastava, Advocate for the respondent No. 9. Shri Sameer Sahu, Advocate for the respondent No. 16, 18 and l9. Advocate for the interveners. ORDER (Passed on2???..day of January, 2008) Shri Bhishma Kinger, The petitioners flled this petition in the High Court of Madhya Pradesh at Jabalpur on 24.04.1985 seeking following reliefs: Manoharlal son of Narayan Das, aged about (a) A writ of and/or in the nature of prohibition do issue, commanding and directing the Respondent No. 1 from handing over possession of 22 building sites/plots described in Annexure ~16 to the Respondent No. 3 to 20 or to any other person/persons whatsoever. (b)A writ of and/0r in the nature of mandamus do issue, commanding and directing the respondent No. 1 to reallot 22 building sites/plots better described in Annexure — 16 to the petitioners. (c) A writ of and/0r in the nature of mandamus do issue commanding and directing the respondent N0. 1 t0 handover vacant and peaceful possession of the said 22 building sites/plots in Sailendra Nagar Scheme No. 27 to the petitioners. (d) A writ of and/or in the nature of mandamus do issue calling upon the respondent No. 1 to produce before the Hon’ble court all the original files pertaining to acquisition of 45.68 acres of land belonging to the petitioners and covered by the Sailendra Nagar Scheme No. 27 and also all the files pertaining to the allotment of the said building sites/plots in favour of the Respondent No. 3 to 20 so that conscionable justice may be done, by setting aside and/or quashing the allotment of the said 22 building sites/plots in favour of the Respondent No. 3 to 20. (e) A writ of and/or in the nature of mandamus do issue commanding and directing the Respondent No. 1 to forthwith execute and register proper lndentures of lease in respect of the said 22 building sites/plots in favour of the petitioners. E.1 That Respondent No. 1 may kindly be directed to deliver the actual physical possession of the plots referred to, in the agreement dated 2 l . 10.1992. (f) A writ of and/or in the nature of mandamus do issue, commanding and directing the Respondent No. 1 to forthwith refund and/or pay the said sum of Rs. 2,94,676/— to the Petitoners alongwith accrued interest due thereon at the rate of 24% from the date of acquisition of the petitioners’ lands comprised in the said scheme till the date of actual refund, which amount has been illegally and wrongfully retained and withheld by the respondent No. 1 during all these years. (g) Alternatively, a writ of and/or in nature of mandamus do issue commanding and directing the respondent No. 1 to act in accordance with the said Act and the Rules framed thereunder for purpose of disbursement of compensation payable by the respondent No. 1 to the Petitioners for the acquisition of their 45.68 acres of land covered by the Sailendra Nagar Scheme No. 27. (h) Rules NISI in terms of prayers (a) to (g) above. (i) An Injunction do issue restraining the respondent No. 1 from giving and/or any further effect to the allotment orders passed by the Respondent No. 1 in favour of the Respondent No. 3 to 20 and/or from taking any steps in connection thereto and/or from handing over possession of the said 22 building sites/plots to the respondent No. 3 to 20. ‘ Nut \ (j) Ad—interim orders in terms of prayer (i) above. (k) Cost of and/or incidental to this petition be paid by the respondents to the petitioners and (1) Such further or other order/orders be made and/or direction/directions be given as to this Hon’ble Court seem flt and proper and for which act of kindness and benevolence on the part of the Hon’ble Court, the petitioners shall, as in duty bound, ever pray.” The indisputable facts, in brief, are that the petitioner No. l, being the legal heir of the original petitioner, who was the widow of Late Shri Ram Gopal Sharma was brought on record during the pendency of this petition. The petitioner No. 2 and 3 are the sons and the petitioner No. 4 to 7 are the daughter of Late Shri Ram Gopal Sharma, who died intestate at Raipur on 22.09.1984. The respondent No. 1 developed several housing development schemes. One of them was Shailendra Nagar Scheme No. 27 in the beginning of the year 1977. The respondent No. l selected a parcel of land admeasuring 102 acres in Tikrapara Ward, in the city of Raipur. 45.68 acres of land belonging to Late Shri Ram Gopal Sharma, his two sons i.e. petitioner No. 2 and 3 and daughters petitioner No. 4 to 7 situate in Khasara No. 293, P.C. No. 114, R.I.Circle Raipur, Block Dharsiwa, Tehsil and District Raipur. The respondent No. l in accordance with its policy offered building sites/plots under the said notified scheme to the owners of the land affected by the said scheme, besides the payment of compensation in accordance with Section 56 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (hereinader referred to as ‘the Act, 1973’). The then Chief Executive Officer in his notings dated 09.10.1978 in the tile observed that the land admeasuring 17.02 acres under the ownership of Shri Ram Gopal Sharma was to be acquired wherefor a sum of Rs. 20,000/- per acre was payable (under protest) as a part-payment and a sum of Rs. l,97,525/— was decided to be paid'as an advance. The lands in dispute belonging to the petitioner No. 2 and 3, the sons of Late Shri Ram Gopal Sharma and other petitioner were also acquired on the same terms under agreements of sale. It was agreed to hand over the possession of the land in dispute under their ownership Vide notings dated 7.7.1978 in the file (Annexure 1 to 7). The petitioners were thereafter required to pay development charges for the proposed allotted buildings sites/plots at the rate of Rs. 1.75 per sq.ft. to the respondent No. 1. The respondent No. 1 in its notings in the file contained from Annexure 1 to 7 1 K‘ decided to allot building sites/plots bearing No. D 293, 294, 295, 312, 297, 298 to late Shri Ram Gopal Sharma, No. D 247, 248, 249, 250 to the petitioner No. 2, D 251, 252, 253, 254 to petitioner No. 3, C3, C4 to petitioner No. 4, C 21, C 22 to the petitioner No. 5, C 19, C 20 to petitioner 6, and C 17 and C 18 to the petitioner No. 7, in the said scheme. Accordingly, agreement of sale of land was executed between the petitioners and the respondent No. 1. In one of the agreement of sale of land, it was provided as under: “4. Whereas the parties to the said agreement have agreed that the consideration payable for acquiring the aforesaid land will be the amount that may be settle by the state Govt. under the provisions of the Land Acquisition Act, 1894 (1 of 1894) 6. That in pursuance of the agreement the purchaser has paid Rs. 41742.50 (Rs. Forty One thousand seven hundred forty two and paise flfty only) after adjustment of development charges towards part payment at the offered of Rs. 20,000.00 per acre of the consideration that may be settled as agreed to above. 7. That an settlement of the consideration as may ultemately be settled as per award under the provisions of the land Acquisition Act, 1894, the seller will be entitled only to receive the balance of such amount after deducting the amount already received by the seller from the purchaser as stated above.” 3. Agreements of exchange (Annexure 9) was also executed between the parties. In one of the exchange agreements, it was, inter alia, provided as under: “6. WHEREAS the party of the first part give to party of the second part plot NO. D-247 to 250 and party of the Second party agrees to hand over possess of his land Kh. No. 293/ to Party of the First part and has paid the development cost as follows:— Rs. 12,000.00 Adjusted by way of compensation. 7. WHEREAS the parties hereto have agreed to exchange the said plots described in Schedule.” 4. Accordingly, 22 building sites/plots admeasuring 49,745 sq.ft. of land was decided to be allotted to the petitioners. The respondent No. l accordingly had taken over the possession of 36.08 out of 45.68 acres of land belonging to the petitioners through agreement of sale of land and agreement of exchange. The respondent No. l accordingly deducted a sum of‘ Rs. 92,950/— towards development charges of the allotted building sites/plots from the compensation payable to the petitioners. It appears that allotment of building sites/plots, as development charges have been deducted from the part compensation amount paid by the respondent No. 1, was fmal. Subsequently, the respondent No. l in his memo dated 15.10.1981 (Annexure 11) addressed to the Additional Collector, Raipur confirmed that the respondent No. l has acquired the land belonging the petitioners situated at Tikrapara, P.H. N0. 114, Khasra No. 293 area 16.19 acres. Compensation at the rate of Rs. 20,000/- per acre (under protest) as part payment was determined to the tune of Rs. 1,47,525/— was paid to the petitioners. The petitioners were allotted 20,500 sq.ft. of land for which development charges of Rs. 3,750/— was deducted from the compensation and possession has already been taken over by the respondent No. l. The petitioners sent a letter to the Chief Executive Officer, respondent No. l, for providing lay out of the plots allotted to them in Shailendra Nagar Scheme No. 27, indicating the plots position. The respondent No. 1 replied back on ll‘h May, 1982 (Annexure 30) and stated that Rs. l,47,525/— has been paid as part compensation for the land of Khasra No. 393/1 and the balance compensation was to be paid under the provisions of the Land Acquisition Act, 1894, in due course with regard to the plots, .it was stated that in the agreement, there was non—mention of any plots being reserved. The petitioners came to know in the last week of June, 1984 that the respondent No. l had illegally allotted the building sites/plots ear-marked for the petitioners under the scheme to different persons (respondent No. 3 to 20) Without knowledge of the petitioners. The petitioners thereafter lodged a complaint on 4th July, 1984 (Annexure 14) to the Chairman, respondent N0. 1. In the meantime, on 22m September, 1984, the head of the family Shri Ram Gopal Sharma died intestate. The respondent No. 1 had neither handed over possession of the plot/sites to the petitioners nor has paid the balance compensation amount payable to the petitioners for acquisition of their respective parcel of land. Being aggrieved, the petitioners have filed this petition seeking the above stated reliefs. Shri B.P.Sharma, learned counsel appearing for the petitioners would submit that the action of the respondent No. l by not allotting the proposed building plots/sites in lieu of exchange of land is arbitrary, unreasonable and illegal. The conduct of the respondent No. l as indicated in the notings in the flle, memo dated 15.10.1981 (Armexure—l 1) and part payment of compensation clearly indicates that the petitioners were entitled to building plots/sites in exchange of land acquired through agreement of exchange. The petitioners have further been denied their constitutional right of payment of full compensation under provisions of the Land Acquisition Act which was clearly mentioned by the \ respondent No. 1 in its correspondence also. The above stated action/non-action amounts to violation of provisions of Article 14 of the Constitution of India Learned counsel would further submit that the petitioners are entitled to compensation of the land in addition to the building sites/plots as proposed to be allotted. The respondent No. 1, after having paid admittedly part of the compensation amount has neither determined the compensation nor had taken any steps to pay the same as the possession of the land in dispute was taken over way back before 15.10. 1981. In fact, the total land acquired by the petitioner was 36.08 acres and the remaining land out of 45.68 acres was sold to other persons. The petitioners are entitled to compensation on market rate value as on date as the compensation for the petitioners’ land was never determined. In fact, no steps was taken by the respondent N0. 1 authorities to determine the compensation and pay the same to the petitioners in accordance with the provisions of Land Acquisition Act, as stated by the respondent No. lin agreement of sale as well as letter dated ll‘h May, 1982 (Annexure 3) Per contra, Shri Manindra Shrivastava, Senior Counsel appearing with Shri Afroz Khan, Advocate, on the basis of return dated 23.08.1988, on behalf of the respondent No. l would submit that the respondent No. l offered residential plots in the scheme to the owners of undisputed land (i.e. free from encumbrances) besides payment of compensation which is mentioned in Clause — 2 of the agreement. The petitioners land being surplus vested in the Govemment under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as ‘the Act, 1976’). The settlement was only for 36.08 acres of land not for 45.68 acres of land. The orders for allotment of plots were never issued. However, learned counsel would submit that the allotment of plots were under consideration. The actual position through exchange of land is quoted in para 3 of the return as under: S.No. Name ofFetitioners Proposed N0. of Plot by exchange of land Total area in sq. ft. l. Smt. Ashalata C-3 & C-4 4,800.00 2. ' Smt. Hemlata C-21 & C22 4,800.00 3. Smt. Pushp Lata . C-17 & C-l8 4,800.00 4. Smt. Prem Lata C-19 & C-20 4,800.00 5. Shri Deepak Sharma. D-247, 248, 249 & 250 ' 6,000.00 10. It was further stated in reply to the contents of para 9 that the process of allotment was in progress and all the formalities were initiated by the then Chief Executive Officer but the final order of allotment could not be made. The respondent No. l had taken possession of 36.08 acres of land in total by agreement of sale of land including 1.98 acres of land through exchange agreement. Learned counsel admits that Rs. 99,150/— was in fact deducted from the amount of compensation in lieu of development charges for the proposed plots/sites to be allotted. 11. On enquiry, the respondent No. 1 found that the ceiling cases were pending against the petitioners, therefore, no steps was taken to determine the compensation and make the payment as the land in dispute were not free from all encumbrances. It is admitted that after repeal of the Act, 1976, all the land in dispute pending were released to the petitioners. The respondent No. 1 had thereaher not taken any steps for determination of compensation as well as allotment of plots as agreed in various notings in the file as well as some correspondences. Since the petitioners suppressed the fact ofpendency of ceiling case, the petitioners are not entitled to building plots/sites as per notings in the file as well as agreement of exchange of land. Further, the petitioners are not entitled to any sympathy from this Court and this petition deserves t0 be dismissed 12. Learned counsel would further submit that it is true that the petitioners were not given any notice/information in regard to the payment of compensation as well as handing over the proposed plots/sites to the effect that the petitioners were not 6. Shri Prakash Sharma D-251, 252, 253, 254 6,000.00 7. Late Ramgopal Sharma. D-66, 67, 68, 69 20,500.00 Total 51,700 sq.0. 10 entitled to the same as the lands in dispute were pending consideration in ceiling proceedings before the competent authority. The agreements are not statutory and this Court should not entertain this petition for specific performance of the same. The petitioners have alternative remedy of approaching the Civil Court for appropriate relief. 13. Learned counsel appearing for the other respondents who have been allotted it ‘ proposed plots would submit that their possession should not be disturbed as they are the bonaflde allottees and the respondents were not aware of the dispute with regard to the plots before allotment of the plots. 14. I have heard learned counsel appearing for the parties, perused the’pleadings and documents appended thereto and some original records shown by the learned counsel for the respondent No. l in the course of argument. l 15. The first contention of the respondent No.1 is that the claims of the petitioners on the basis of agreements which are not statutory agreements, are not maintainable in this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. In view of the fact that the respondent No. 1 has agreed in its return the contents of the agreement, though the agreements were not signed by the authorities, and further that it was proposed to allot residential plots/sites to the petitioners in addition to compensation payable under provisions of the Land Acquisition Act, 1894. It is not necessary at this stage to dismiss the petition on the ground of non-maintainability and sending the petitioners back to square one, i.e. to the Civil Court, after having spent more than 22 years in this Court. Thus, the contention of the learned counsel for respondent No. l has no merit and is rejected. l6. The Supreme Court, in the matter of Verigamto Naveen v. Govt. of A.P. and others], observed as under: 11. “21. On the question that the felief as sought for and granted by the High Court arises purely in the contractual field and, therefore, the High Court ought not to have exercised its power under Article 226 of the Constitution placed very heavy reliance on the decision of the Andhra Pradesh High Court in Y.S.Raja Reddy v. A.P. Mining Carpn. Ltd. and the decisions of this Court in Har Shankar v. Dy. Excise & Taxation Commr., Radhakrishna Agrawal v. State ofBihar, Ram Lal & Sons v. State ofRajasthan, Shiv Shankar Dal Mlls v. State ofHaryana, Ramana Dayaram Shetly v. International Airport Authority oflndia and Basheshar Nath v. CIT. Though there is one set of cases rendered by this Court of the type arising in Radhakrishna Agrawal case much water has flown in the stream of judicial review in contractual field. In cases where the decision-making authority exceeded its statutory power or committed breach of rules or principles of natural justice, in exercise of such power or its decision is perverse or passed an irrationalorder, this Court has interceded even after the contract was entered into between the parties and the Government and its agencies. We may advert to three decisions of this Court in Dwarkadas Marfatia & Sons v. Board of Trustees 0fthe Port ofBomay, Mahabir Auto Stores v. Indian Oil Corpn. and Shrileklza Vidyarthi (Kumarz)' v. State of U.P. Where the breach of contract involves breach of statutory obligation when the order complained of was made in exercise of statutory power by a statutory authority, though cause of action arises out of or pertains to contract, brings it within the sphere of public law because the power exercised is apart from contract. The freedom of the Government to enter into business with anybody it likes is subject to the condition of reasonableness and fair play as well as public interest. After entering into a contract, in canceling the contract which is subject to terms of the statutory provisions, as in the present case, it cannot be said that the matter falls purely in a contractual field. Therefore, we do not think it would be appropriate to suggest that the case on hand is a matter arising purely out of a contract and, therefore, interference under Article 226 of the Constitution is not called for. This contention also stands rejected.” l7. The Supreme Court, in the matterof Ganga Retreat & Towers Ltd. & another v. State of Rajasthan & Others2, observed that dismissal of the petition on the ground of availability of alternative remedy at belated stage is likely to result in miscarriage ofjustice which may now result in the foreclosure of other remedies which could be availed of by the petitioners/appellants in the ordinary