Case: Rajasthan Housing Board Vs. New Pink City Nirman Sahka.Sam.Ld

an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order made on behalf of the Government. A reading of the Letter dated 6-12-2001 shows that it was neither expressed in the name of the Governor nor was it authenticated in the manner prescribed by the rules. That letter merely speaks of the discussion made by the Committee and the decision taken by it. By no stretch of imagination the same can be treated as a policy decision of the Government within the meaning of Article 166 of the Constitution.54. We are further of the view that even if the instructions contained in the Letter dated 6-12-2001 could be treated as policy decision of the Government, the High Court should have quashed the same because the said policy was clearly contrary to the law declared by this Court in Radhey Shyam case (supra) and Daulat Mal Jain case (supra) and was a crude attempt by the political functionaries concerned of the State to legalise what had already been declared illegal by this Court.” 52. Thus, it is apparent that the circular in question cannot be pressed into service by the Society. Apart from inapplicability, it is also apparent that the very purpose of issuing such circulars is not to benefit the purchaser who has acquired the right after issuance of notification under section 4 of Rajasthan Land Acquisition Act, and in violation of mandate of section 42. Consequently, the High Court had no jurisdiction to direct allotment of land. Even Khatedars were not entitled to such direction/benefit as the circulars are not applicable in such cases. 53. We may refer to the decision in Hari Ram & Anr. v. State of Haryana & Ors. [2010 (3) SCC 621 ] relied upon on behalf of the Society in which this Court considered passing of different orders, in respect of persons similarly situated, relating to same acquisition proceedings. The action was held to be violative of Article 14 being discriminatory. There is no doubt about it that different standards cannot be applied for withdrawal from acquisition. The present is not such a case. The circular is not applicable. We cannot direct the State to act upon the circulars which are not applicable. Under the Code that all actions of the State are to be fair and legitimate, we cannot create negative equality and confer a benefit that too on the strength of a concessional statement which is not provided by circular. Concession made by the counsel in Ratni Devi’s case (supra) cannot widen scope of circular. 54. We may also refer to other decisions relied upon in Usha Stud and Agricultural Farms Pvt. Ltd. & Ors. v. State of Haryana & Ors. [2013 (4) SCC 210 ] laying down that once a State Government has taken a conscious decision to release the land, there would be no justification whatsoever for the State for not according similar treatment to the appellants is also of no avail to the Society. 55. Coming to the quantum of compensation to be awarded in the instant case, it was submitted on behalf of the Society and Khatedars in respective appeals that the compensation determined by the High Court is on lower side. Adequate compensation has not been determined. It was submitted that oral evidence which was relied upon by the Reference Court ought to have been acted upon by the High Court. It was contended that the oral evidence cannot be ignored. By virtue of decisions in State of Gujarat & Ors. v. Rama Rana & Ors. [1997 (2) SCC 693 ], Satyanarayana & Ors. v. Bhu Arjan Adhikari & Ors. [2011 (15) SCC 133 ] and Ramanlal Deochand Shah v. State of Maharashtra & Anr. [2013 (14) SCC 50 ]. 56. The price of the land per sq. yd. was determined by the Reference Court. The documentary evidence which has been referred to by the Reference Court comprises of Ex. 1 agreement dated 26.8.1982 at the rate of Rs.135 per sq.yd., Ex. 3 agreement dated 7.1.1982 at the rate of Rs.165 per sq.yd., agreement dated 28.9.1981 at the rate of Rs.135 per sq.yd. for 244 sq.yd. and agreement dated 5.5.1979 at the rate of Rs.94 per sq.yd. Certain transactions of 1983 were also referred which have to be ignored being subsequent to the date of notification under section 4. However, referring to the oral statement of the witnesses in which value was stated to be much more, the Reference Court has arrived at the conclusion of Rs.260 per sq.yd. The Single Bench of the High Court considered and referred to both the oral and documentary evidence. Ex.1 agreement dated 26.8.1982 about the sale of plot No.55 situated in Krishna Vihar Gopalpura @ Rs.115/- per sq. yds., Ex.3 is agreement to sale of land of 200 sq. yds. Agreement dated 7.1.1982 at the rate of Rs.165/- per sq. yds. Situated at Maharani Farm Duragapura. Ex.4-A agreement to sale of 244 sq. yds. dated 29.8.1981 @ Rs.135/- per sq.yds. situated at Brijalpur from Krishnapuri Housing Society, Ex.5 agreement dated 24.7.1982 of 18000 sq.yds. of land @ Rs.125/- per sq.yds. for a total amount of Rs.22,55,000/- entered between Meena Kumari Housing Society and trustee Devi Shanker Tiwari, Ex. 7 Agreement dated 16.9.1983 about the sale of land measuring 147 sq. yds. for Rs.22,100/- approx. @ Rs.150/- per sq. yds. and the land situated in gram panchayat Bhagyawas, Ex.8 agreement dated 5.5.1979 of 34,000 sq.yds. @ Rs.90-94 per sq. yds. 57. It also considered oral evidence in detail and has not relied upon the same and has arrived at the average price to be Rs.135 per sq.yd. making certain deduction as large area has been acquired. In case area in question had been developed, certain area was bound to go in the development. Thus, deduction which has been made to arrive at the figure of Rs.100 per sq.yd. is proper.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Admittedly, possession from the Society had been taken on 22.5.1982. The Society submitted the objections before the LAO on 20.7.1982. While rejecting the objections on 4.9.1982, the Special Officer, Urban Development Authority, LAO, had unilaterally observed that the acquisition cannot be said to be in violation of the provisions contained in Article 300A of the Constitution of India, the Society has no ownership of the land, it has no interest in the land. Thus, it has no right to raise the objection. The said order had attained finality and the award was passed on 30.11.1982. In the award so passed, it has also been mentioned that an Advocate had appeared on behalf of the Khatedars and wanted to file objections regarding compensation.In the instant case, notice under section 12(2) was issued to the Society by the Special Officer on 31.12.1988, treating the Society as ‘personand informing that an award had been passed on 30.11.1982 in accordance with section 11 of the Land Acquisition Act. On the strength of the aforesaid notices it was urged on behalf of the Society that the limitation to seek the reference would commence from the date of receipt of the notices issued and received on 31.12.1988. The reference sought was within the period of limitation.In the instant case it is apparent that the Housing Society had preferred objections and was aware of the land acquisition process and determination of compensation and has filed objections which stood rejected on 4.9.1982. Thus, the constructive knowledge of the award is fairly attributable to it when it was so passed. Constructive notice in legal fiction signifies that the individual person should know as a reasonable person would have.It is also apparent that the Society had actively participated in the other pending cases with respect to determination of compensation in which award had been passed on 2.1.1989. Thus the reference sought on the strength of the notice under section 12(2) issued and received on 31.12.1988 would not provide limitation to the Society for seeking reference with respect to the four cases in which the award was passed on 30.11.1982 as notice to it was wholly unnecessary in view of rejection of its objection on the ground that it was not having right, title or interest in the land. Thus it could not be said to be ‘personin view of the order dated 4.9.1982. The notice was issued for reasons best known to the Special Officer. It is surprising how and for what reasons notice was issued after six years. We need not go into this aspect any further as we are of the opinion that in the facts and circumstances, the Society had a constructive notice of the award dated 30.11.1982. Thus, in view of the conjoint reading of sections 12(2) and 18(2) of the Rajasthan Land Acquisition Act, it was not open to the LAO to refer the case to the civil court on the basis of the time barredthe counter affidavit filed on behalf of the Society, the factum that Khatedars areand belongs to Scheduled Caste, has not been denied. Before the Reference Court also, the stand of the State Government was that as the Khatedars belong to Scheduled Caste, the transaction was prohibited by section 42 of the Rajasthan Tenancy Act. On behalf of the Society, it was submitted in counter affidavit that as it is a Society, the rigor of provisions of section 42 is not attracted and it had relied upon the circular dated 1.9.1984 issued by the Government of Rajasthan for regularisation of the land sold in violation of section 42 of the Rajasthan Tenancy Act. The Society has failed to deny clear and categorical averments,makes the aforesaid facts undisputed one. There is not even an evasive denial that Khatedars do not belong to Scheduled Caste. Even in the additional affidavit filed on behalf of the Society in the wake of the rejoinder filed by the petitioner in reply to the counter affidavit of respondent No.2, the caste of the original Khatedars has not been disputed. Thus, we are of the considered opinion that the original Khatedars areby caste which is a Scheduled Caste and they are entitled to the protection of the provisions contained in section 42 of the Rajasthan Tenancy Act.In the instant case, the transaction is ab initio void that is right from its inception and is not voidable at the volition by virtue of the specific language used in section 42 of the Rajasthan Tenancy Act. There is declaration that such transaction of sale of holdingAs the provision is declaratory, no further declaration is required to declare prohibited transaction a nullity. No right accrues to a person on the basis of such a transaction. The person who enters into an agreement to purchase the same, is aware of the consequences of the provision carved out in order to protect weaker sections of Scheduled Castes and Scheduled Tribes. The right to claim compensation accrues from right, title or interest in the land. When such right, title or interest in land is inalienable to non-SC/ST, obviously the agreements entered into by the Society with the Khatedars are clearly void and decrees obtained on the basis of the agreement are violative of the mandate of section 42 of the Rajasthan Tenancy Act and are a nullity. Such a prohibited transaction opposed to public policy, cannot be enforced. Any other interpretation would be defeasive of the very intent and protection carved out under section 42 as per the mandate of Article 46 of the Constitution, in favour of the poor castes and downtrodden persons, included in the Schedules to Articles 341 and 342 of the Constitution of India.The right to claim compensation cannot be enforced by the Society on the basis of such transaction as that would defeat the very object of the Act and the constitutional provisions including such castes and tribes under the protective umbrella of the Schedules to Articles 341 and 342, they cannot be deprived of right to obtain the compensation of the land legally held by them and they cannot be made to fall prey to unscrupulous devices of land grabbers. The right to claim compensation is based on right, title or interest in the land, cannot be transferred by virtue of the mandate of section 42 to a juristic person like the Society. It is the duty of the State to ensure that the benefit reaches to such persons directly and not usurped by intermeddlers as what is intended by the protection of the right to hold property of SC/ST, cannot be taken away by disbursing the compensation to Society. Persons of SC/ST, as the case may be, are the only rightful claimants to disbursal of compensation and such right cannot be tinkered with by void transaction as the purpose of compensation is theof Scheduled Castes orfrom that, voidity of the transaction can be looked into in these proceedings also when right to claim compensation is asserted by the Society and from factual conspectus of the instant case it is apparent that Khatedars belong to Scheduled Castes and they cannot be deprived of their right to claim compensation, intendment of section 42 can be effectuated in these proceedings.When we consider the aforesaid submission, it is apparent that the right to hold property cannot be taken away except in accordance with the provisions of the statute but in the instant case, we are of the considered view that the right to hold property albeit had not been acquired by the Society, transction was ab initio void and a nullity. On the other hand, the land has been acquired by the State Government and even the right to claim compensation was denied to the Society in the award passed on 30.11.1982 by rejecting their objections. The recourse to section 175 was not required as already held by us.It is apparent from para 1 that the Circular is applicable in the matter of land acquisition when the Khatedars surrendered their lands.In the instant case, even the prevalent instructions which have been modified did not confer any right on the Society or the Khatedars to claim the developed land. It was not a case of surrender of land; thus there was no question of the provisions of the circular being applied as the circular was in the form of guidelines for future acquisitions where Khatedars surrendered their lands and award has not been passed. For the aforesaid reasons, the aforesaid circular could not have been pressed into service by the Society and that too at the appellate stage before the Division Bench. The Division Bench has gravely erred in law while issuing the aforesaid directions which were wholly unwarranted and uncalled for.Thus, it is apparent that the circular in question cannot be pressed into service by the Society. Apart from inapplicability, it is also apparent that the very purpose of issuing such circulars is not to benefit the purchaser who has acquired the right after issuance of notification under section 4 of Rajasthan Land Acquisition Act, and in violation of mandate of section 42. Consequently, the High Court had no jurisdiction to direct allotment of land. Even Khatedars were not entitled to such direction/benefit as the circulars are not applicable in such cases.Coming to the quantum of compensation to be awarded in the instant case, it was submitted on behalf of the Society and Khatedars in respective appeals that the compensation determined by the High Court is on lower side. Adequate compensation has not been determined. It was submitted that oral evidence which was relied upon by the Reference Court ought to have been acted upon by the High Court. It was contended that the oral evidence cannot be ignored.The High Court has rejected the application under Order 1 Rule 10 filed by the Khatedars. In the facts of this case, particularly when the issue of violation of section 42 of Rajasthan Tenancy Act was raised by the State Government and reference was also as to the award passed in 1982 in favour of Khatedars in which the Society was denied the right to receive compensation. Obviously, Khatedars were required to be heard as the adjudication of their right was involved in the matter to decide to whom the compensation is payable, and whether the Society was entitled to claim compensation on the basis of void transaction. It was also submitted before us that the Khatedars have sought reference under section 30 against the Society, that question can be decided in those proceedings. However, the factual matrix and its determination of the question as to entitlement of Society is necessary in the instant case, as such we have decided it. More so, the plight of downtrodden class of the Scheduled Castes Khatedars cannot be prolonged and considering the provisions which have been enacted for their protection, and the constitutional mandate, we are inclined to exercise our power to set at rest the dispute between the parties and hold that only Khatedars, in case some of them have died, their legal representatives would be entitled to receive the compensation which has been determined in the instant case.