TMI Blog2015 (12) TMI 1866X X X X Extracts X X X X X X X X Extracts X X X X ..... mate relief in realistic terms. If fairness is an indispensable and innate constituent of natural justice, this imperative indubitably has to inform as well the judicial remedy comprehended. In the overwhelming factual scenario, as obtains in the instant case, refusal to grant the relief to which they are entitled, would amount to perpetuation of gross illegality, unjustness and unfairness meted out to them. The textual facts demand an appropriate response of the judicial process to effectuate the guarantee of justice, engrafted in the preamble of the Constitution reinforced by the canons of equity. The remedy indeed has to be commensurate to the cause and the prejudice suffered. The invocable judicial tools, predominantly in the form of a writ of mandamus, and the plentitude of the powers of 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 - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Appeal No - - - Dated:- 1-12-2015 - Civil Appeal No. 13943 of 2015 (Arising out of S.L.P. (C) No. 36175 of 2011) and Civil Appeal No. 13944 of 2015 (Arising out of S.L.P. (C) No. 36179 of 2011) V. Gopala Gowda and Amitava Roy, JJ. For the Appellant: Rajiv Dhawan, Dhruv Mehta, Sr. Advs., Shobha, Akanksha Kaushik, Bhoomik Choudhary, Kabir Ghosh, Bina Madhavan, S. Udaya Kumar Sagar, Akanksha Mehra, Advs. for Lawyer S. Knit Co., Pravir Choudhary and P.D. Sharma, Advs. For the Respondent: C. Aryama Sundaram, Sr. Adv., S.S. Shamshery, AAG, Rohini Musa, Zafar Inayat, Ajay Choudhary, Adarsh Upadhyay, Amit Sharma, Ishu Prayas, S.S. Reddy and Ruchi Kohli, Advs. JUDGMENT Amitava Roy, 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 promise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withstanding, was deposited in the court concerned @ ₹ 1500 per bigha on 11.10.2001. Thus, the amount of compensation deposited was not at the enhanced rate fixed by the Reference Court and affirmed by the High Court. 6. Meanwhile, by circular No. F.6(19)UDH/3/89, Jaipur dated 21.9.1999 issued by the Government of Rajasthan, Urban Development and Housing Department, it was notified by the State Government that it had taken a decision with reference to the earlier circulars, as mentioned therein, that developed land equivalent to 15% of the area required, may be given to the khatedars/land owners in lieu of the land being acquired/held under acquisition/surrendered, as the case may be, in land acquisition cases 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Admittedly, the Appellants exercised their options and submitted their applications within the time allowed for being allotted 15% developed land in lieu of the compensation payable to them. They did so in writing on 15.1.2002 whereby in the applications addressed to the concerned authority, they recorded their request for 15% developed land in Vidyadhar Nagar Scheme. 9. While the matter rested at that, the JDA on 17.5.2003 issued an auction notice for sale of Group Housing plots in Vidyadhar Nagar Scheme. This was challenged before the Appellate Tribunal, Jaipur Development Authority Jaipur (for short, hereinafter to be referred to as the Tribunal ) Under Section 83(8)(a) of the Jaipur Development Authority 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 men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veloped land in the Vidyadhar Nagar Scheme, it disclosed that at that point of time as well, land measuring 1,10,500 sq. meters was available in the Vidyadhar Nagar Scheme. 12. Situated thus and appalled by the inaction on the part of JDA, the Appellants approached the High Court with S.B. Civil Writ Petition 9908 of 2008, complaining of non-compliance of the operative directions contained in the judgment and order dated 18.10.2005 of the Tribunal. By order dated 23.10.2008, the learned Single Judge required the JDA to comply with the aforesaid directions within a period of two months. It was recorded that the JDA had not questioned the verdict dated 18.10.2005 of the Tribunal. Being aggrieved, the JDA filed D.B. 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 express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquisition officer, cheques for the amount of compensation had been issued and deposited in favour of khatedars, which however remained uncollected from this Reference Court in which it is deposited. 16. The Division Bench, in course of the adjudication noticed, that the Reference Court had enhanced the amount of compensation from ₹ 1500 per bigha accorded by the Land Acquisition Officer to ₹ 15000/- per bigha in the year 1994 and that the appeals preferred by the JDA against the same had been dismissed. It also recounted the fact, that the land of the Appellants situated in village Boytawala had been acquired for establishing a Field Firing Range for which the land at Vidyadhar Nagar earlier earmarked for the 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... released to the State for Group Housing Scheme of the JDA and that allotment of 15% developed land thereat to the Appellants would amount to dissipation of valuable property for unjust enrichment of a chosen few. The Appellants were left at liberty to receive the amount of compensation as awarded @ ₹ 15000 per bigha. 19. Before adverting to the rival contentions advanced, it would be expedient to complete the narration of facts pleaded before this Court and having a significant bearing on the course of adjudication. 20. By order dated 15.01.2013 this Court formulated the following queries requiring the Respondent State and the JDA to respond thereto by filing an additional affidavit. Query No. 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 sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circular was issued with the approval of Minister-in-Charge of the Department. (b) Policy Circular dated 21.09.1999: 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. (c) Circular dated 13.12.2001: This circular provided for time extension for exercising option 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 Mini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rked as 'reserved'. The word 'reserved' denotes no specific land use but it could be used for schools, hospital, parks, public amenities etc. 22. In substance, the State Government in its reply affidavit did admit that it had issued the 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 Unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se were not fully developed and that it would require another two years to develop the same. The willingness of the JDA to offer developed land in other areas in discharge of its obligation under the policy was recorded. This Court, as prayed for on behalf 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 Anupam Vihar 25.40 KM 3 Pitambara Rajbhawan 35.00 KM 4 Rohini Phase II 36.80 KM 5 Abhinav Vihar 31.70 KM 6. Harit Vihar 31.70 KM III. DISTANCE OF DEVELOPED SCHEMES OF JDA FROM CENTRAL POINT VILLAGE BOYTAWAWLA WITH AMPLE LAND AVAILABLE, WHICH CAN BE ALLOTED TO ALL THE KHATEDARS. Srl. No. Scheme/Village Distance from Central Point Jaipur 1 Vidhyadhar Nagar 5.0 KM 2 Gokul Nagar 10.5 KM 3 Truck Terminal 15.6 KM 4 Vaishali Nagar 12.8 KM 29. The Appellants also furnished in their aforementioned counter-affidavit particulars of the land referred by this Court in its order dated 17.05.2015, plots offered by the JDA in its additional af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty guaranteed Under Article 300A of the Constitution of India. 33. The Appellants having been beckoned to believe that they would stand adequately compensated by accepting developed land to the extent of 15% of the total area of their land in lieu of compensation, they cannot be left high and dry over three decades and further subject them to a spate of vexatious litigation, he urged. 34. Dr. Dhawan, insistently asserted with particular reference to the affidavit filed by the State responding to the queries of this Court, that the circular issued on 13.12.2001 was indeed a policy decision in conformity with the Rules and that any stand in divagation therefrom ought to be dismissed in limine. 35. While rejecting the endeavour on the part of the Respondents to plead that in view of the amendment in the Rules w.e.f. 05.03.1999, the approval of the Chief Minister on the issue of acquisition and release of land was mandatory and thus the circular dated 13.12.2001 being opposed thereto was non est, the learned senior Counsel also urged that the orders/circulars dated 08.07.1994 and 20.07.1998 amongst others clearly belied the same. 36. While underlining that the State and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied, in the attending facts, circumstances and conduct of the Respondents to direct them to allot 15% developed land at Vidyadhar Nagar to them. Dr. Dhawan argued that, on the one hand, the State did not deposit the amount of compensation at the enhanced rate as granted by the Court, and on the other, denied the Appellants their share of developed land at Vidyadhar Nagar as was due to them. He therefore urged, that it is a fit case in which direction ought to be issued to the Respondents to allot 15% developed land in the areas, as suggested by the Appellants i.e. Vidyadhar Nagar, Gokul Nagar, Truck Terminal and Vaishali Nagar. 39. Supplementing the above, Mr. Dhruv Mehta, learned senior Counsel has urged that in the face of clear and categorical stand of the State, that the circular dated 13.12.2001 did embody its policy on land in lieu of compensation and that the departmental minister was authorized and competent to decide thereon, the belated stand of the Respondents is contrary thereto and ought to be summarily rejected. The land having been compulsorily acquired in the year 1981 with no compensation therefor paid till date, the resistance offered by the Respondents it sust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules are mandatory, no deviation there from is allowable and, thus the circular dated 13.12.2001 does not vest any right with the Appellants to claim developed land in lieu of compensation in terms thereof, he maintained. This is notwithstanding the response of the State in its affidavit in reply to the Court's queries, he urged. He argued that the factum of the amendment by the Notification to that effect had been duly brought on record on time to amply authenticate this contention and there can be no estoppel against law. Profused reference was made to the provisions of the Rules including the Second Schedule to endorse this plea. While admitting the above notwithstanding that the Appellants are entitled to be allotted 65,000 sq.mtrs. of developed land, the learned senior Counsel has contended that the land at Vidyadhar Nagar is being utilized for housing colony is thus not available for them. 41. Referring to the circular dated 13.12.2001, Mr. Sunderam has emphasized that even assuming that this document espouses the cause of the Appellants, in any view of the matter, they are not competent to dictate their preference of any land and thus the Court in exercise of its pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught for, by invoking the doctrines of promissory estoppel and legitimate expectation to actualize the constitutional right to the property of the Appellants. The following decisions were relied upon in endorsement of the above: a) Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke and Chemicals Ltd. and Ors. (2007) 8 SCC 705; b) Steel Authority of India Limited v. Sutni Sangam and Ors. (2009) 16 SCC 1; c) Dev Sharan and Ors. v. State of Uttar Pradesh and Ors. (2014) 4 SCC 769; d) State of Haryana v. Mukesh Kumar and Ors. (2011) 10 SCC 404; e) Union of India v. Anglo Afghan Agencies (1968) 2 SCR 366; f) Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. (1979) 2 SCC 409; g) State of Punjab v. Nestle India Limited and Anr. (2004) 6 SCC 465; h) Monnet Ispat and Energy Limited v. Union of India and Ors. (2012) 11 SCC 1; i) S.V.A. Steel Re-Rolling Mills Limited and Ors. v. State of Kerala and Ors. (2014) 4 SCC 186; j) Food Corporation of India v. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71. 43. The contentious pleadings and the accompanying documents along with the competing arguments have received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd other similar activities, and 'to develop shall be construed accordingly. 45. In terms of Section 54 of the JDA Act, notwithstanding anything contained in the Rajasthan Land Revenue Act, 1956, the land as defined in Section 103 thereof, 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 JDA be deemed to have been placed at the disposal of and vested in it whereupon it would take over such land for and on behalf of the State Government and would use the same for the purposes of the JDA Act and dispose of the same by way of allotment, regularisation 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. Sub-Section 2 of Section 54 prohibits development of any land except by or under the control and supervision of the JDA. 46. The constitution of the Tribunal has been provided for Under Section 83 of the JDA Act and Sub-Section 8(a) thereof permits any person aggrieved by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsuant thereto was not one by the JDA. As the Authority unmistakably was the implementing instrumentality of the primary decision of the allotment conveyed by the letter dated 1.7.2005, their appeals/reference before the Tribunal contesting the allotment of land at Lalchandpura and Anantpura Villages, in the entire conspectus of facts, cannot be said to be either unsustainable or impermissible. Any contrary view, in our comprehension, would be unwarrantably pedantic and repugnant to the letter and spirit of the JDA Act, and in particular undermine the objective of providing a forum of appeal/reference thereunder. We, however, limit the determination to the singular facts and circumstances of the case. 49. Be that as it may, the simmering epicentre of the dissensus that engaged the serious attention of the contestants is located in the Rules. The parties, however, are not so much in issue, herein over the status and bearing of the enjoinment of Article 166(1) (2) of the Constitution of India as qua Article 166(3). To reiterate, the impugned judgment had razed the circular dated 13.12.2001 only on the ground that it was neither expressed in the name of Governor nor was it authen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd acquisition cases, compensation had not been paid to the land owners. It was eventually decided on the basis of the deliberations, that in cases where awards had been passed, but cash compensation could not be paid to the khatedars/land owners, one more opportunity to them to opt for the developed land, be offered. That the option was extended till 31.3.2002 and the allotment of the land was resolved to be made through Allotment Committee of the concerned organisation, was recorded. It was decided in specific terms, that the developed land in lieu of the acquired land would be generally allotted in the same area where the land was acquired and if it was not possible to develop the scheme within a period of five months or it was not possible to offer land in the same area, it was only then that land would be allotted in some other scheme area. It was underlined that as far as possible, however, the concerned committee would endeavour to allot such land near the scheme area. In terms of the decision, as a corollary, it was generally and primarily incumbent on the JDA to allot the developed land within the scheme area and any departure was contemplated only in the above two eventua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State for information and necessary action. 55. Before adverting to the Rules, it would be expedient to take note of the Order Nos. F(18)23 UDH/2/7 Jaipur dated 20.7.1998 and F.18(23)UDH/2/7, Jaipur dated 8.7.2004 of the Urban Development Department, Government of Rajasthan and the Notification dated 5.3.1999 amending the Rules. In the Order dated 20.7.1998 issued Under Rules 21 and 22 of the Rules, the following arrangement for transaction of the departmental business pertaining to matters relating to the land acquisition and deacquisition was mandated as follows: SN Post Work shall be examined by Work shall be disposed of by State Minister Shall presented before the Minister 1 2 3 4 5 6 1 to 105 - - - - - 106 Matters relating to Land acquisition de-acquisition Group Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and that in absence thereof, it is wholly ineffectual. 59. Apropos the Rules framed Under Article 166(2) (3) of the Constitution of India, the expression Minister-in-charge and Minister of State are defined in Rule 2 (f) as hereunder: 'Minister-in-charge' means the Minister or Minister of State, if appointed to hold independent charge as the case may be, appointed by the Governor to be in-charge of the department of the Government to which the relevant case belongs. Explanation: A case shall be deemed to belong to the department to which under the schedule to these rules, the subject matter thereof pertains or is mainly related. 'Minister of State' means a Minister of State appointed by the Governor to hold independent charge of a department or to assist a Minister in the discharge of his responsibilities or both. 60. Part I of the Rules deals with the allocation and disposal of business where under in terms of Rule 4, the business of the Government is to be transacted in the Secretariat Departments specified in the First Schedule and is to be classified and distributed between those departments as laid down therein. Rule 5 provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise provided by any other rule, disposal of business relating to items common to all departments shall be made in the manner specified in Appendix 'B' and for the disposal of business relating to other items, the Minister-in-Charge or the Minister of State-in-Charge, as the case may be, by means of standing orders, give such directions as he thinks fit. Under Rule 22, the standing orders referred to in Rule 21 shall be sent by the Minister-in-charge or the Minister of State-in-Charge, as the case may be, to the Governor and the Chief Minister. Rule 31 lists the cases to be submitted to the Chief Minister before issuance of any order. 64. Incidentally, the extracted clause of the notification dated 5.3.1999 appears at serial No. (iii) Under Rule 31. Significantly, Clause (xii) also mentions cases raising question of policy . As is evident from Clause (xix), it would be competent for the Chief Minister to call for the relevant papers/file(s), report and pass orders in any case involving a question of policy or a matter of urgent public importance, relating to any department when he considers it necessary or expedient so to do, or when the case is referred to him by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter-in-Charge and that subsequent to the notification dated 8.7.2004, the Rules of Business allocation had been amended whereafter, the matters relating to land under acquisition/release of land from acquisition, had been brought within the ambit of Second Schedule and thus by virtue of Rule 8 read with 31, the file had to be approved by the Chief Minister of the State. Further, it was stated as well that since the matter of land in lieu of compensation was considered as a matter relating to acquisition or for releasing the land under acquisition, it was within the ambit of Rule 21 and, therefore, the Minister-in-Charge was capable of taking the decision as required. 68. In the face of above overwhelming and unambiguous verified averments made on behalf of the State as well as the sequence of the orders/circulars on the issue involved, we are of the unhesitant opinion that at the relevant point of time i.e. 13.12.2001, the departmental minister was in exclusive charge and was competent to take a final decision on the issue of acquisition of land, release thereof from acquisition and allotment of land in lieu of compensation and thus the said circular indeed does represent an enf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such provisions to be directory only, the neglect thereof not affecting the validity of the acts done. Elaborating on this deduction, it was held, that strict compliance with the requirements of Article 166 would give an immunity to the order so much so, that it cannot be challenged on the ground that it is not an order made by the Governor and thus in case of non-compliance of the said provision, such an immunity cannot be claimed by the State. It was, however, observed that such a failure would not vitiate the order itself. In clear terms, it was expanded that though Article 166 of the Constitution of India directs all executive action to be expressed and authenticated in the manner laid down therein, an omission to comply therewith does not render the executive action a nullity. 71. Concurring with the majority view as above, Hon'ble Mukherjee, J. observed that Article 166(1) did not lay down how an executive action of the Government of a State is to be performed; it only prescribed the mode in which such an act is to be expressed. It was emphasised that the manner of expression is ordinarily a matter of form but whether a rigid compliance with a form is essential to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressing its view in majority in essence recounted the proposition enunciated in Dattatraya Moreshwar (supra) and also State of Bombay v. Purushottam Jog Naik (1952 SCR 674) and Ghaio Mall and Sons v. State of Delhi (1959 SCR 1424) to the effect that the essentials of Article 166(1) and (2) if not complied with, the order in question would be defective in form. It reiterated that the enjoinments are not mandatory but directory and if not adhered to would only deny the claim of immunity thereof from challenge as to whether the decision in fact had been of the State Government or the Governor and would not per se render the same a nullity. In such an eventuality, it would be necessary to be established as a question of fact that the decision or the order involved was in fact validly taken by the State Government or the Governor. That however in any case, there has to exist a decision or order of the Governor as per the Rules of Business framed Under Article 166(3) and that it would be the burden upon the Government to establish the same was emphasised upon by Hon'ble Mudholkar, J. in supplementation of the majority view. 73. The vires and constitutional validity of the Goa (Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment, finance was sought to be diverted to the private industrialists by virtue of the two notifications, as a result whereof, an amount of ₹ 16 crores had already been lost and further sum of ₹ 50 crores of public money was in the course of being siphoned off. 74. This Court in the above overwhelming factual backdrop, supported by the official records, did take note of the amply demonstrated grounds, justifying the legislation and did sustain the validity thereof. In essence, this Court did accept on the face of contemporaneous records that the notifications had already been rescinded by the Council of Ministers and though under the Rules of Business, the Finance Department was to be mandatorily consulted due to huge financial implication, the then Minister of Power on his own had issued the same resulting in heavy and unwarranted financial burden on the State Exchequer in absence of any budgetary sanction therefor. 75. In M.R.F. Limited (supra), this Court was in seisin of a challenge to the said two notifications dated 15.5.1996 and 1.8.1996 granting rebate of 25% in tariff in respect of power supply to certain categories of industrial consumers, inter alia, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides the destiny of the people should be decided not only on the basis of the affidavits filed by the officers of the Governments or on incomplete or inadequate information made available by them, but on the basis of constitutional provisions and the Business Rules framed there under was sustained. Adverting to the directory or mandatory character of the constituents of Article 166 of the Constitution of India, this Court, amongst other, quoted with approval the following excerpts from its earlier decision in Haridwar Singh v. Bagun Sumbrui and Ors. (1973) 3 SCC 889: 13. Several tests have been propounded in decided cases for determining the question whether a provision in a statute, or a rule is mandatory or directory. No universal rule can be laid down on this matter. In each case one must look to the subject-matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. Prohibitive or negative words can rarely be directory and are indicative of the intent that the provision is to be mandatory.... 14. Where a prescription relates to performance of a public duty and to invalidate acts d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies to legal proceedings (using the term in the widest sense) are often construed as mandatory. Where, however, a requirement, even if in mandatory terms, is purely procedural and is imposed for the benefit of one party alone, that party can waive the requirement. Provisions requiring a public authority to comply with formalities in order to render a private individual liable to a levy have generally been held to be mandatory. Requirements are construed as directory if they relate to the performance of a public duty, and the case is such that to hold void 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, without at the same time promoting the main object of the legislature. This is illustrated by many decisions relating to the performance of public functions out of time, and by many relating to the failure of public officers to comply with formal requirements. On the other hand, the view that provisions conferring private rights have been generally treated as mandatory is less easy to support; the decisions on provisions of this type appear, in fact, to show no really marked l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government. 81. In arriving at this conclusion, this Court did acknowledge the decision of the Constitution Bench in R. Chitralekha (supra) which propounded that the provisions, Article 166(1) (2) were directory in nature and not mandatory, but observed that the same could not be relied upon to uphold the contention that Business Rules made under Clause (3) were directory as well. 82. Dwelling on this aspect, this Court elucidated that Under Article 154 of the Constitution of India, the Governor was vested with the executive power of the State, to be exercised either directly or through the officers subordinate to him in accordance with the provisions of the Constitution. It was set down that the Governor was advised by the Council of Ministers with the Chief Minister as its head in exercise of his functions except those specifically stated to be in the discharge of his discretion as the Head of the State. It was reiterated that the Rules of Business framed Under Article 166(3) of the Constitution were for convenient transaction of the business of the Government and for allocation of the business among the Ministers who collectively in the Council were responsible to the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Initially, 65 khatedars filed claims for compensation, but this figure rose to more than 137 because those who purchased land from the khatedars after publication of the notification issued Under Section 4 and their nominees/sub-nominees, also filed claims for compensation. 86. The Land Acquisition Officer, Jaipur by his award dated 9.1.1964 not only determined the amount of compensation payable to the land owners and the beneficiaries of transfers which were illegal being made after the notification Under Section 4 of the Rajasthan Act, but also directed allotment of plots measuring varying areas to the owners/their transferees and nominees/sub-nominees out of the acquired land. Initially, neither the State Government nor the Urban Improvement Trust, Jaipur, the architect of the project, did challenge the direction contained in the award of the Land Acquisition Officer. However, as the execution applications by the beneficiaries mounted with time, they did so. While the litigation was pending, the functionaries of the State, in their bid to confer legitimacy on the illegal transactions involving purchases of the acquired land after the notification Under Section 4, caused a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the purchasers involved initially challenged the notice dated 19.12.1996 issued by the JDA for auction of their plots before the Tribunal and being unsuccessful in view of the pronouncement in Radhey Shyam Case (supra) and Daulat Mal Jain (supra), challenged the determination made by the Tribunal before the learned Single judge of the High Court which met the same fate. The Division Bench of the High Court however, though did uphold the finding of the learned Single Judge that the dispute relating to title of the property could not be decided Under Article 226 of the Constitution, sustained the plea of the purchasers that in terms of the policy decision taken by the State Government, expressed in the letter dated 6.12.2001 and the order dated 9.1.2002 passed by another Division Bench, they were entitled to regularisation of the plots in question. 89. In the contextual facts, this Court noticed that the vendors of the purchasers had no valid title, they having purchased the land involved from the khatedars, after the publication of the notification Under Section 4 and that thus the intervening transactions did not convey any title. It recorded that till the disposal of the wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prescriptions of Articles 166 and 77 of Constitution of India in Delhi International Airport Ltd. v. International Lease Finance Corporation and Ors. 2015 (8) SCC 446. While testing the validity of the minutes of the meeting of the Committee, comprised amongst others of the representatives of Ministry of Civil Aviation, Airport Authority of India (AAI), Delhi International Airport Pvt. Ltd. (DIAL) and Central Board of Excise and Customs (CBEC), regarding release of aircrafts of the Respondent Kingfisher Airlines (KAL) by Delhi International Airport Ltd., the issue that surfaced was whether the minutes of the meeting could override the Airport Authority of India (Management of Airports) Regulations, 2003 (for short, hereinafter referred to as Regulations ). Under Regulation 10 of Regulations, the competent authority, as defined in Regulation 3(8) only was empowered to detain or stop the departure of an aircraft unless otherwise provided by the Airport Authority of India Act, 1994 or by general or speaking order in writing of the Central Government. Responding to the plea of the Appellant that the minutes of the meeting dated 26.3.2013 permitting release of aircrafts, as mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a general or special order in writing by the Central Government, as contemplated by the Rules. 92. In Rajasthan Housing Board (supra), land was acquired for the purpose of housing scheme of the Board and a notification Under Section 4 of the Rajasthan Act was issued on 12.1.1982. The possession was handed over to the Board on 22.5.1982. The award was passed in four cases on 30.11.1982 and in remaining cases on 2.1.1989 by the Land Acquisition Officer in favour of the khatedars. The Respondent society applied for reference Under Section 18 of the Rajasthan Act and the Reference Court determined the compensation at ₹ 260 per square yard. The High Court, in appeal, reduced the compensation to ₹ 100 per square yard. The Division Bench of the High Court, however, in addition directed consideration for allotment of 25% of the developed land in view of the circular dated 27.10.2005. 93. According to the Respondent society, it had entered into an agreement of sale with the khatedars on various dates prior to the notification dated 12.1.1982 and that it also obtained a decree in a suit on the basis of compromise. That it had developed the land by making a huge investment, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification Under Section 4 and in violation of the mandate of Section 42 of the Rajasthan Tenancy Act. The direction of the High Court to allot land on the basis of the circular dated 27.10.2005 was, thus, interfered with. 97. The decision of this Court in Hari Ram (supra) pertains to the grievance of discrimination in the matter of release of acquired lands. Following the commencement of the initiative for acquisition of land under the Land Acquisition Act 1894, writ petitions were filed in the High Court of Punjab Haryana challenging the notifications Under Section 4 and 6 of the said Act on various grounds. The writ Petitioners also prayed for release of their respective lands. During the pendency of writ petitions, a Committee was constituted to inspect the site and make recommendations as to whether the land of the writ Petitioners could be released or not. The Committee submitted its report whereby, however, it did not recommend release of land of the Appellants before this Court. The High Court, acting on the report, though ordered release of land in favour of some of the writ Petitioners, dismissed the claim of others including the Appellants. During the pendency of app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the issue. 100. Article 154 of the Constitution of India vests the executive power of the State in the Governor to be exercised by him either directly or through officers subordinates to him in accordance with the Constitution. As per Article 163, there would be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions, except insofar as he is by or under the Constitution required to exercise his functions or any of them in his discretion. It is in this presiding premise that the conduct of Government business is designed Under Article 166 which for ready reference is extracted herein under: 166. Conduct of business of the Government of a State- (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onvenient transactions of the affairs of the Government. Clause (1) stipulates the mode of expression of an executive action taken in conformity therewith and Clause (2) ordains the manner of authentication of the consequential orders and instruments. Having regard to the role assigned to the Council of Ministers with the Chief Minister at the summit, the Rules of Business framed Under Article 166(3) meant for convenient transaction of the affairs of the Government, by allocation thereof among the Ministers, secures their collective participation in the administration of the governance of the State. This scheme of executive functioning, assuredly thus, is in assonance with the constitutional edict with regard thereto, modelling the steel frame of the State machinery. 104. It is no longer res integra that the enjoinment of Clauses (1) and (2) of Article 166, is not mandatory so much so, that any non compliance therewith, ipso facto would render the executive action/decision, if otherwise validly taken in terms of the Rules of Business framed Under Article 166(3), invalid. Any decision however, to be construed as an executive decision as contemplated Under Article 166, would essen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the framework thereof and the contents and purport of its provisions, and the status and tenability of an order/instrument, represented as an executive decision would have to be judged in the conspectus of the attendant facts and circumstances. No straight jacket formula can, thus be ordained, divorced from the Rules applicable and the factual setting accompanying the order/decision under scrutiny. 107. Viewed in this precedential backdrop, the annulment of the circular dated 13.12.2001 only on the ground of its non conformance with the mandate of Article 166(1) and (2) of the Constitution of India, without any reference to Rules of business Under Article 166(3), in our comprehension does not commend for acceptance. Admittedly and as the impugned judgment would unmistakably attest, no plea was either raised or examined, based on its repugnance with the Rules of Business framed Under Article 166(3). The facts as obtained in the decisions cited at the Bar are distinctly different from those in the case in hand. Having regard to the overwhelming judicial exposition of the purport and purpose of Article 166 of the Constitution, the status of the circular dated 13.12.2001 and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to the one envisaged by the Order dated 20.07.1998. We have not been led to any provision in the Rules incorporating any determinative mandate prohibiting in absolute terms, the continuance of the arrangement under the Standing Order as conveyed by Order dated 20.7.1998 permitting transaction of the matters relating to land acquisition and deacquisition solely by the departmental minister. This assumes importance as well in view of Rule 21 requiring disposal of business by means of Standing Orders as envisaged therein. 110. Rule 31 as well, though required submission of the enumerated cases before the Chief Minister prior to the issuance of the orders, there is nothing to suggest exclusion of the departmental minister from taking a decision on any issue if otherwise authorised by the Standing Order. Rule 14 of the Rules, on the other hand, prescribes that all cases referred to in the 2nd 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including the Appellants, at JDA Scheme Lalchandpura and Anantpura. It reveals that the process was initiated at the level of the Director of Land Records on the basis of the circular/policy dated 13.12.2001 and was routed through the Chief Minister for placing the approval of the proposal of developed land elsewhere due to non-availability of land at Vidyadhar Nagar, before the Ministerial Sub-Committee. On the approval of the Chief Minister, the matter was laid before the Ministerial Sub-Committee and eventually on 1.7.2005, the Sub-Committee resolved that 15% developed land be allotted at JDA scheme Lalchandpura and Anantpura. 113. The note accompanying the original file No. F6()/UDH/2004, however, discloses that the file regarding the policy dated 13.12.2001 and maintained by the Urban Development and Housing Department, Government of Rajasthan is not traceable. The revelation from the file thus produced, authenticates that the process for allotment of land at Lalchandpura and Ananatpura, as resolved by the Ministerial Sub-Committee was initiated on the basis of the circular/policy dated 13.12.2001 and was steered through the Chief Minister of the State. It is, thus, amply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. 116. Even otherwise, having regard to the consistency in approach of the State Government in the matter of allotment of developed land in lieu of compensation as is evident from the series of circulars commencing from 22.4.1992 to 27.10.2005 in continuum, motivated by the objective of early culmination of the process of acquisition of land on the spirit of mutual settlement, the same irrefutably present an inviolable scheme of proclaimed State action for compliance, thereby making it invocable against the Respondents, more particularly as the same had been acted upon over the years. The plea of the Respondents, at this belated stage, to take refuge of unenforceability of the circular dated 13.12.2001 in isolation, as not being a binding policy, cannot receive judicial imprimatur. 117. The process leading to the allotment of land at Lalchandpura and Anantpura villages, as the records produced discloses, did originate from the circular dated 13.12.2001, and received the approval of the Chief Minister at an appropriate stage. It would thus be conspicuously patent, that all concerned State functionaries were not only aware of the relevance and the obligatory bearing of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of compensation then payable for the land acquired. However, for the purpose of identification of developed land as on today, equivalence of the value thereof with that of the land acquired as on date after three decades would not be a correct measure. The Appellants were entitled to 15% developed land in the year 2001, the point of time when the value thereof was comparable to the compensation then payable for the acquisition of their land. Had the developed land, as conceived of, been allotted to them, then the value thereof over the years, as on date, would have been much higher than their land so acquired. Though the development of a plot of land depends upon various factors e.g. location, potential, facilities, use etc., it is a matter of common experience that the pace of enhancement of the value of an already developed land would be increasingly higher in comparison to the one not developed. The value of the acquired land of the Appellants, thus, as on today, cannot be taken to be an unmistakable index to identify the developed land to be allotted to them. 120. Be that as it may, the land offered to the Appellants at Lalchandpura and Anantpura as well as at Boytawala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el and legitimate expectation assumes significance at this juncture. 122. The right to property though no longer a fundamental right is otherwise a zealous possession of which one cannot be divested save by the authority of law as is enjoined by Article 300A of the Constitution of India. Any callous inaction or apathy of the State and its instrumentalities, in securing just compensation would amount to dereliction of a constitutional duty, justifying issuance of writ of mandamus for appropriate remedial directions. 123. This Court in Indore Vikas Pradhikaran (supra) had an occasion to refer to the Declaration of the Rights of Man and the Citizen (dated 26.8.1789) to expound that though earlier, human rights existed to the claim of individuals' right to health, livelihood, shelter and employment etc., these have started gaining a multifaceted approach, so much so that property rights have become integrated within the definition of human rights. 124. The right of the owner of a land to receive just compensation, in the context of his claim to access to justice as declared by the International Covenant on Economic, Social and Cultural Rights, had been underlined by this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a rule of equity which has entrenched itself with time in the domain of public life. A new class of estoppel recognised as promissory estoppel has assumed considerable significance in the recent years. So far as this Court is concerned, it invoked the doctrine in Anglo Afghan Agencies (supra) in which it was enounced that even if a case would not fall within the purview of Section 115 of the Indian Evidence Act, 1872, it would still be open to a party, who had acted on a representation made by the Government, to claim that it should be bound to carry out the promise made by it, even though the promise was not recorded in the form of a formal contract as required by Article 299 of the Constitution of India. This principle, evolved by equity, to avoid injustice is traceable as well in the leading case on the subject in Central London Property Trust Ltd. v. High Trees House Ltd. (1947) 1 KB 130. 129. In a later decision of this Court in Motilal Padampat Sugar Mills Company (supra), responding to the plea of the State Government, inter alia, that there could be no promissory estoppel against it, so as to inhibit it from formulating and implementing its policies in public interest, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are satisfied, the Government can be compelled to carry out the promise made by it. 182.2 the State Government otherwise inescapably bound by the doctrine, this Court in S.V.A. Steel Re-Rolling Mills (supra) ruled that before extending benefits to its subjects by laying down any policy, it must ponder over the pros and cons thereof and its capacity to accord the same, as it would be unfair and immoral on its part thereafter, not to act as per its promise. 133. A parallel doctrine founded on the doctrine of fairness and natural justice baptised as legitimate expectation has grown as well in the firmament of administrative law to ensure the predication of fairness in State action. The concept of legitimate expectation is elaborated in Halsbury's Laws of England, Fourth Edition, Volume 1(1) 151 as hereunder: 81. Legitimate expectations.--A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the principle of non-arbitrariness, a necessary concomitant of the rule of law. In reiteration to the above enunciation, this Court in Monnet Ispat (supra) did rule as well, that the doctrine of legitimate expectation is founded on the principle of reasonableness and fairness and arises out of the principles of natural justice and can be invoked as a substantive and enforceable right. 136. In course of the arguments, as adverted to hereinabove, host of pleadings have been exchanged portraying contrary view points on the developed status of the land sought to be allotted, the summary whereof has been extracted hereinabove. It appears there from that the sites at Boytawala, Lalchandpura, Anantpura and Mansarampura are located within a range of 14.70 K.M. to 39 K.M. from the central point Jaipur, the nearest being at Boytawala. All these lands have been recorded by this Court, as admitted by the JDA, to be not fully developed. The plots offered by the Respondents at Rohini Phase I, Anupam Vihar, Pitambara Scheme including Rajbhawan Yojana, Rohini Phase II, Abhinav Vihar Vistar and Harit Vihar are situated within a distance of 25.40 K.M. to 36.80 K.M. from the central point, Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght seem absolute and arbitrary. But arbitrary power and unfettered discretion are what the courts refuse to countenance. They have woven a network of restrictive principles which require statutory powers to be exercised reasonably and in good faith, for proper purposes only, and in accordance with the spirit as well as the letter of the empowering Act. Vis- -vis public duties it has been expressed at page 496 thus: As well as illegal action, by excess or abuse of power, there may be illegal inaction, by neglect of duty. Public authorities have a great many legal duties, under which they have an obligation to act, as opposed to their legal powers, which give them discretion whether to act or not. The remedies so far investigated deal with the control of powers. The remedies for the enforcement of duties are necessarily different. The most important of them is mandamus. 140. Dwelling upon the constitutional imperative of fairness in State action in Noida Entrepreneurs Association v. Noida and Ors. (2011) 6 SCC 508, this Court revisited the dynamics of the interplay between administrative power and discretion vis-a-vis public duty accompanying the same. Underlying the es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Francis Tellis, State of Punjab v. Gurdial Singh, Collector (District Magistrate) v. Raja Ram Jaiswal, Delhi Admn. v. Manohar Lal and N.D. Jayal v. Union of India.] 141. In the overall perspectives, in our discernment, the Respondents have utterly failed to abide by a public policy upon which, the Appellant had altered their position and had suffered immense prejudice. The persistent denial to the Appellants of their right to the developed land in lieu of compensation and that too without any legally acceptable justification, has ensued in manifest injustice to the Appellants over the years. Neither have they been paid just compensation for the land acquired nor have they been provided with the developed land in place thereof, as assured. They are thus predominantly entitled for the remedial intervention of this Court to ensure fair, just, efficacious, tangible and consummate relief in realistic terms. If fairness is an indispensable and innate constituent of natural justice, this imperative indubitably has to inform as well the judicial remedy comprehended. In the overwhelming factual scenario, as obtains in the instant case, refusal to grant the relief to which they are entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wide limits he should be free to deal with the individual case so as to meet the demands of justice between the parties and accord with the reason and moral sense of ordinary men. They insist that application of law is not a purely mechanical process. They contend that it involves not logic only but moral judgments as to particular situations and courses of conduct in view of the special circumstances which are never exactly alike. They insist that such judgments involve intuitions based upon experience and are not to be expressed in definitely formulated rules. They argue that the cause is not to be fitted to the rule but the rule to the cause ... Equity uses its powers of individualizing to the best advantage in connection with the conduct of those in whom trust and confidence has been reposed ... Philosophically the apportionment of the field between rule and discretion which is suggested by the use of rules and of standards respectively in modern law has its basis in the respective fields of intelligence and intuition. Bergson tells us that the former is more adapted to the inorganic, the latter more to life. The rule, mechanically applied, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice. The purport and purpose of this power being justice oriented and guided by equitable principles, it chiefly aims at the enforcement of a public duty, if not forthcoming on legitimate justification ensuing in oppressive injustice, militating against the constitutional ordainment of equality before law and equal protection of laws enshrined in Article 14 of the Constitution of India and entrenched as are, among others, in the invaluable right to life envisioned in Article 21 of the Constitution of India. 150. The Constitutional Courts are sentinels of justice and vested with the extra-ordinary power of judicial review to ensure that the rights of the citizens are duly protected. That the quest for justice is a compulsion of judicial conscience, found its expression in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193 in the following extract: A court of equity must so act, within the permissible limits so as to prevent injustice. Equity is not past the age of child-bearing and an effort to do justice between the parties is a compulsion of judicial conscience. Courts can and should strive to evolve an appropriate remedy, in the facts and circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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