Case: National Institute of Medical Science University Rajasthan &amp; Another Vs. State of Rajasthan &amp; Others

Facts relating to NIMS14. The petitioner is a University and presumably it is a University of some repute and responsibility. It made an application for allotment of land in village Jugalpur, Tehsil Amer in District Jaipur to the District Collector of Jaipur on 10th May 2002. However, the application for allotment did not include Khasra No.526 with which we are concerned. NIMS apparently did not receive any reply to the application15. For reasons that are not quite clear, NIMS sent a letter to the Chief Minister of Rajasthan on 28th February 2005 to the effect that it had allegedly encroached upon Khasra No. 526. Having denied the allegation, NIMS then sought allotment of that Khasra being No. 526 Rakba 14.44 hectareDuring this period, NIMS presumed that the silence of the State Government meant that it had no objection to the allotment. Accordingly, it claimed to have purchased several parcels of land including Khasra No. 526 from various Khatedars and claimed that demarcation of the land was also carried out by the Revenue authorities. On the presumption that there was no objection to the allotment of the land, NIMS made massive construction on Khasra No. 52617. Eventually and since no favourable action was taken on the representations made, NIMS filed S.B. Civil Writ Petition No. 1814 of 2012 in the High Court praying that directions may be issued in its favour for allotment of land including Khasra No. 526 for its University. The writ petition came to be dismissed by a learned Single Judge of the High Court by a judgment and order dated 1st November 201218. Around that time, NIMS was issued a notice dated 13th February 2012 under Section 72 of the Jaipur Development Authority Act, 1982 in respect of the alleged encroachments on Khasra No. 52619. Feeling aggrieved by the notice, NIMS preferred Appeal No. 37 of 2012 before the Appellate Tribunal, Jaipur Development Authority. After hearing NIMS, the Appellate Tribunal dismissed the appeal by its judgment and order dated 12th October 2012. This led NIMS to prefer S.B. Civil Writ Petition No.16836 of 2012 in the High Court. This writ petition was clubbed along with S.B. Civil Writ Petition No. 1814 of 2012 and both were dismissed by a learned Single Judge on 1st November 201220. Feeling aggrieved by the dismissal of both the writ petitions, NIMS preferred special appeals before the Division Bench of the High Court and these were registered as D.B. Civil Special Appeal (Writ) Nos. 1455-1456 of 2012. Both the appeals were heard by the Division Bench and dismissed by the impugned judgment and order dated 26th November 2012Decision of the learned Single Judge21. A perusal of the judgment and order passed by the learned Single Judge indicates that in fact the land in dispute namely Khasra No. 526 originally vested in the State Government. By a Notification issued on 1st October 2007 it then vested in the Jaipur Development Authority and was brought within the limit of the Jaipur Development Authority. Therefore, from 1st October 2007 only the Jaipur Development Authority had jurisdiction over the land bearing Khasra No. 52622. The learned Single Judge also noted that the Appellate Tribunal had required measurements to be carried out with reference to Khasra No.526 and on 11th September 2012 it was found that NIMS had encroached upon land measuring 8125 sq. mtrs. in Khasra No. 526 and also in certain other areas. But as we have mentioned above we are only concerned with Khasra No. 526. With regard to the inaction on the representation made by NIMS for allotment of land, the learned Single Judge noted that merely because the concerned authorities had not taken any decision on the representation, NIMS was not entitled to presume that there was no objection to its taking possession of the land and constructing thereon. Accordingly, the learned Single Judge found no error in the view taken by the Appellate Tribunal holding that NIMS had encroached on 8125 sq mtrs. of land in Khasra No. 526 and that NIMS was not entitled to make any construction thereon. While dismissing the writ petitions by judgment and order dated 1st November 2012 the learned Single Judge directed the Jaipur Development Authority to demolish the construction. However, it was further directed that demolition would not take place till 7th November 2012Decision of the Division Bench23. NIMS appealed against the decision of the learned Single Judge. While deciding the appeals, the Division Bench accepted the view expressed by the learned Single Judge and dismissed the appeals24. Before the Division Bench, it was contended by NIMS that the land in dispute was pasture land and that it could be allotted to NIMS under the local laws including the Rajasthan Land Revenue (Allotment of Unoccupied Government Agricultural Lands for the Construction of Schools, Colleges, Dispensaries, Dharamshalas and Other Buildings of Public Utility) Rules, 1963 as well as the Rajasthan Tenancy Act, 1956 and the Rules framed thereunder. Reference was also placed on the Rajasthan Improvement Trust (Disposal of Urban Land) Rules, 1974. The Division Bench took note of all these provisions and observed that in its initial application dated 10th May 2002 made to the Collector, no request was made by NIMS for allotment of Khasra No. 526. For the first time such a request was made by NIMS on 28th February 2005 to the Chief Minister of Rajasthan and not to the concerned Collector who alone was competent to make the allotment. The Division Bench also made a reference to Section 16 of the Rajasthan Tenancy Act, 1955 and noted that Khatedari rights could not accrue in pasture land and therefore it was not available for allotment25. The Division Bench held that even otherwise, after 1st October 2007 Khasra No. 526 vested in the Jaipur Development Authority and therefore the allotment could be made only by that Authority in terms of Section 54 of the Jaipur Development Authority Act and not by the State Government. (54. Land to vest in the Authority and its disposal. – (1) Notwithstanding anything contained in the Rajasthan Land Revenue Act, 1956 (Rajasthan Act No. 15 of 1956), the land as defined in section 103 of that Act, excluding land referred to in sub-clause (ii) of clause (a) of the said section and Nazul Land placed at the disposal of a local authority under section 102-A of that Act in Jaipur Region shall, immediately after establishment of the Authority under section 3 of this Act, be deemed to have been placed at the disposal of and vested in the Authority which shall take over such land for and on behalf of the State Government and may use the same for the purposes of this Act and may dispose of the same by way of allotment, regularization or auction subject to such conditions and restrictions as the State Government may, from time to time, lay down and in such manner, as it may, from time to time, prescribe:Provided that the Authority may dispose of any such land—(a) without undertaking or carrying out any development thereon; or(b) after undertaking or carrying out such development as it thinks fit, to such person, in such manner and subject to such covenants and conditions, as it may consider expedient to impose for securing development according to plan(2) No development of any land shall be undertaken or carried out except by or under the control and supervision of the Authority(3) If any land vested in the Authority is required at any time by the Nagar Nigam, Jaipur for carrying out its functions, or by the State Government for any other purpose, the State Government may, by notification in the Official Gazette, place such land at the disposal of the Nagar Nigam, Jaipur or any Department of the State Government on such terms and conditions, as may be deemed fit(4) All land acquired by the Authority, or by the State Government and transferred to the Authority, shall be disposed of by the Authority in the same manner as may be prescribed for land in sub-section (1).)The High Court noted that no application was made by NIMS to the Jaipur Development Authority for allotment of Khasra No. 526 or any other Khasra of village Jugalpura.. Under these circumstances, the Division Bench took the view that NIMS had encroached upon Khasra No. 526 and had raised constructions thereon without any permission or sanction and that it was not possible to ignore the illegalities committed by NIMS27. NIMS contended before the Division Bench that since massive constructions had already been made, no useful purpose would be served by demolishing the construction. It was submitted that demolition would not serve any public purpose. This submission was rejected by the Division Bench by relying upon a decision of this Court in Jagpal Singh v. State of Punjab (2011) 11 SCC 396  ) to the effect that if land is not available for allotment and construction is made thereon, then that construction must be demolished28. The High Court also took the view that if appropriate steps are not taken to remove the encroachment, it would encourage others to encroach upon land and to seek regularization of any illegal construction made thereon29. As far as the decision rendered by the Appellate Tribunal is concerned, the Division Bench noted that the report of 11th September 2012 was unimpeachable and there was no doubt that NIMS had encroached on 8125 sq. mtrs. of land in Khasra No. 526.

Reasoning:
30. It was submitted by learned counsel for NIMS that no encroachment was made by NIMS and that in any event there were a large number of encroachers in the catchment areas. According to learned counsel there was no reason why only NIMS should be singled out for adverse or punitive treatment. We are not at all impressed by the submissions made by learned counsel.31. What is before us is really only a factual dispute. NIMS has not been able to show any perversity, on facts, in the orders passed by the Appellate Tribunal or by the learned Single Judge or by the Division Bench32. One of the factual conclusions arrived at by the High Court is that NIMS had made a request for allotment of Khasra No. 526 for the first time only on 28th February 2005 and that too before the Chief Minister who was not the competent authority to make the allotment – the competent authority being the Collector of Jaipur district. Why NIMS chose to directly approach the Chief Minister is a mystery which can be solved only by NIMS33. Post 1st October 2007 there was no request made by NIMS to the Jaipur Development Authority for the allotment of Khasra No. 52634. Assuming there was no response from the Chief Minister to that or any other representation made by NIMS to any authority including the Jaipur Development Authority for allotment of Khasra No. 526, NIMS had no right to assume that its request for allotment had been accepted (or not rejected) by the Chief Minister or the Jaipur Development Authority and on that assumption to make constructions on the land without any permission or sanction35. It has also come on record as a matter of fact that NIMS had encroached upon 8125 sq. mtrs. in Khasra No. 526. It has also come on record that in fact NIMS had not filed any objections to the Report dated 11th September 2012 before the Appellate Tribunal. It has also come on record that as a matter of fact due to the illegal and unlawful construction having been made in the area by several parties including NIMS, Ramgarh Lake is now absolutely dry and the residents of Jaipur city are suffering from water shortage because of this - since water from the region was being supplied to Jaipur city before the area dried up. These undisputed facts are enough to dismiss the petitions filed by NIMS. There is no law that supports the brazenness of NIMS in wantonly encroaching on Khasra No. 526 and then making huge constructions thereon36. Learned counsel for NIMS did not place before us any law or decision to support the encroachment by NIMS on Khasra No. 526.37. It is most unfortunate that despite orders passed by the Rajasthan High Court in Abdul Rahman and in the suo motu petition and views expressed by the Monitoring Committee appointed by the High Court as well as the Expert Committee set up by the State Government and plan of action having been prepared by the State Government, nothing substantive appears to have been achieved on the ground over the years.39. In our opinion, merely dismissing the petitions would serve no useful purpose since it appears to us that NIMS is a rather powerful and influential entity. We say this because it has been able to successfully frustrate its eviction and demolition of the construction for at least one decade. Even before us an attempt was made to take an adjournment so that it could possibly use its influence over whoever it may be to get some favourable executive orders40. In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Ors (1999) 6 SCC 464  )this Court directed enforcement of the rule of law by demolition of unauthorized constructions. It was held as follows:The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion the wherever it is required to be exercised has to be in accordance with law and set legal principles. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots.. This view was followed and endorsed in Jagpal Singh in the following words:In M.I. Builders (P) Ltd. v. Radhey Shyam Sahu the Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs. 100 croresIn Friends Colony Development Committee v. State of Orissa (2004) 8 SCC 733  )this Court held that even where the law permits compounding of unsanctioned constructions, such compounding should only be by way of an exception. In our opinion this decision will apply with even greater force in cases of encroachment of village common land. Ordinarily, compounding in such cases should only be allowed where the land has been leased to landless labourers or members of Scheduled Castes/Scheduled Tribes, or the land is actually being used for a public purpose of the village e.g. running a school for the villagers, or a dispensary for themIn many States government orders have been issued by the State Government permitting allotment of Gram Sabha land to private persons and commercial enterprises on payment of some money. In our opinion all such Government orders are illegal, and should be ignored.