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TMI Blog2015 (12) TMI 1866X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 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 promised by the Urban Development Department of the State Government by its proclaimed policy dated 13.12.2001. The State of Rajasthan (for short, hereinafter to be referred to as "the State/State Government") and the Jaipur Development Authority (for short, hereinafter to be referred to as "JDA") have taken turf together to successfully laciniate the Appellants' identification of such land, thus impelling them to impeach the impugned judgment and order dated 12.8.2011 rendered by the High Court of Judicature for Rajasthan upholding the refutation. Since the verdict assailed is common in all the appeals, the instant adjudication would suffice for the analogous disposal thereof. 4. We have heard Dr. Rajeev Dhawan and Mr. Dhruv Mehta, learned senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to the khatedars to opt for developed land ought to be afforded and on the basis of the merit of such claims, 15% developed land be allotted to them. The option was made valid till 31.3.2001 and it was resolved that the allotment of land would be made through the allotment committee of the concerned organization. As the minutes of the said meeting would reveal, it was resolved as well that the developed land in lieu of the acquired land would be usually allotted only in the scheme area and at the place where the land acquired was situated and if it was not possible to develop the scheme within the fixed period of five months or if it was not possible to give the land in the same area, only then the land would be allotted in some other area. It was however underlined, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A 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 mentioned therein, till the Appellants were allotted 15% developed land in the Vidyadhar Nagar Scheme. The Writ Petition filed by the JDA before the High Court impugning the above decision of the Tribunal was dismissed on 4.1.2005. 10. Subsequent thereto, on 1.7.2005, the Deputy Secretary to the Government of Rajasthan, Nagariye Vibhag, addressed a letter to the Commissioner, JDA, Jaipur offering allotment of land in terms of the Circular dated 13.12.2001 to the concerned khatedars/beneficiaries, at Villages Lalchandpura and Anantpura to be allotted through lottery. Being aggrieved by the said decision and also the follow up process in connection therewith, the Appellants approached the Tribunal afresh. By the judgment and order dated 18.10.2005, the Tribunal returned a findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issed 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 expressing any opinion on the merits of the dispute, that the judgment and order dated 17.11.2008 of Division Bench of the High Court in challenge before it, would be subject to any order, that would be passed in the writ petition. 13. The Writ Petition No. 539 of 2009 was dismissed by the High Court on 11.1.2010 where after the JDA preferred D.B. Civil Special Appeal No. 276 of 2010 against the same. The decision impugned in the present batch of appeals arises from the said verdict. 14. As the judgment under scrutiny herein would demonstrate, whereas the Appellants asserted that in terms of circulars, which they perceived to be in the form of state policy, they were entitled to 15% developed land at Vidyadhar Nagar, as the land therein was given by the Army in exchange of the one at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 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. That in response to the option called for from such willing land losers pursuant to the circular dated 13.12.2001, the same had been submitted in time, was noted as well. 17. The Division Bench, however, on a survey of the Sections 83 and 90 of the JDA Act held, in the prevailing conspectus of facts, that the decision impugned before the Tribunal was beyond the purview of its jurisdiction and that it was not open for it to direct the Respondents for allotment of land at Vidyadhar Nagar. This finding of fact rendered by the High Court was premised on a deduction that the circular dated 13.12.2001 had not been issued in the name of the Governor of the State as required Under Article 166(1) of the Constitution of India and was not authenticated by the Governor as well as mandated Under Article 166( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 submitted to the Chief Minister in terms of Rule 31, Sub-rule (2) of the Rajasthan Rules of Business? In case, the matter was submitted, what were the orders passed by the Chief Minister on the said matter of the proposed policy? Query No. 3. Was the land for land policy given effect to in relation to acquisitions made for Boytawala Field Firing Range. If so, how much land was allotted and in whose favour and under whose orders? Query No. 4. Was any application made for allotment by Madan Lal and others, Petitioners in Special Leave Petition No. 36175 of 2011, as legal representatives of the deceased Ananda-original Khatedar for allotment of any land, under the policy mentioned above? If so, was the application ever considered and/or any orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 Ministers or a constituted sub-committee in accordance with Part III of the Rules. b. Rule 31(1)(ii) provides the cases which have to be referred to Chief Minister before issuance of orders and the cases raising question of policy and all the cases of administrative importance not already covered by second schedule. c. It is also respectfully submitted that each Department is headed by Minister in Charge and all the respective functions are enumerate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Under Article 166 of the Constitution of India that in terms of the Standing Order framed Under Rule 21, the Minister-in-Charge of the Department as per the Business allocation under the Rules was the competent authority in matters relating to land acquisition and release of land therefrom. It was, however, averred that by notification dated 08.07.2004, the Rules of Business allocation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 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 50598.22 Sq. mtr. 2. 11 Anupam Vihar 50598.22 Sq.mtr. 3. 13 Pitambara Rajbhawan 50598.22 Sq. mtr. 4. 14 Abhinav Vihar Vistar 50598.22 Sq. mtr. 5. 14 Rohini Nagar - II 50598.22 Sq. mtr. 6. 14 Harit Vihar 50598.22 Sq. mtr. 28. The Appellants in their reply affidavit dated 17.08.2015 to the affidavit dated 16.7.2015, rejected the lands so offered emphatically contending that those were not developed land and did not offer even minimum essential facilities of water, electricity, road etc. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 8 was also made to indicate that the same was available as well. According to the State, the amount of compensation payable to the Appellants for the land acquired as on date, computed on the basis of the enhanced rate of Rs. 15000/- per bigha, would be Rs. 95,59,044/- and insisted that the market value of the plots identified by them would be disproportionately higher than the quantum of compensation to which they are entitled. 31. In between, an additional affidavit was also filed being sworn by the Deputy Commissioner, Zone-Jaipur Development Authority on 16.07.2015, bringing on record, the Rules framed in exercise of powers framed by the Governor of the State under Clauses (2) & (3) of Article 166 of the Constitution of India, including amongst others, the notification No. F(27)(2)(a) dated 05.03.1999 amending the Rules. 32. In the above imposing mass of contentious pleadings and records, it has been assiduously urged by Dr. Dhawan that the circular dated 13.12.2001 being a policy decision of the State, it was obligatory on its part to act in terms therewith and, therefore, the denial to the Appellants of 15% developed land in lieu of the compensation for the land acquired ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the High Court, they had accepted the circular dated 13.12.2001 as the policy decision of the State was urged by the learned senior Counsel. He asserted that the impugned judgment was founded only the premise that the circular dated 13.12.2001 did not conform to the prescriptions of Article 166(1) & (2) of the Constitution of India and neither any plea was raised qua the Rules or Article 166(3) nor there was any occasion to deal with it. Dr. Dhawan has thus urged that this belated plea is wholly untenable in law. 37. Adverting to Section 90 of the JDA Act in particular, the learned senior Counsel has argued that as in terms thereof, the JDA was under an obligation to implement the government policy, it is impermissible for it to turn around and contend that the appeal filed by the Appellants before the Tribunal was not maintainable. 38. According to the learned senior Counsel, in this premise, the finding recorded in the impugned judgment, that the appeal filed by the Appellants before the Tribunal was unsustainable is patently erroneous. Further it being no longer res integra that the prescriptions of Article 166 (1) & (2) of the Constitution of India are directory in na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the lands at Anantpura, Lalchandpura, Mansarampura and Boytawala by this Court, vide its order dated 07.05.2015, the endeavour on the part of the Respondents to impose the same on the Appellants betrays lack of bona fides as well. He urged that in any view of the matter, the Respondents have already acted on the policy circular dated 13.12.2001 in allotting, amongst others, plots at Vidyadhar Nagar to some of the persons who are similarly situated and thus they cannot be permitted to retrace their steps arbitrarily at the cost of the Appellants. The learned senior Counsel urged as well, that the policy circular in question was fully in accordance with the Rules and that the endeavour of the Respondents to weigh the amount of compensation payable to the Appellants for their lands with the value of the developed land, as on date, as a factor for allotment under the policy is not only indefensible but also irrational and illogical as well. To reinforce his arguments, Mr. Mehta cited the decisions of this Court in Dattatreya Moreshwar Pangarkar v. The State of Bombay and Ors. 1952 SCR 612, R. Chitralekha v. State of Mysore and Ors. AIR 1964 SC 1823, Hari Ram and Anr. v. State of Hary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an indulgence nor this Court ought to direct the State to abide thereby. That in the instant case, the JDA had only acted on the decisions of the State, as taken from time to time, and thus on this ground, the appeal filed by the Appellants before the Tribunal Under Section 83 of the JDA Act, was rightly held to be not maintainable, was underlined. Following authorities were cited at the Bar in Census Commissioner and Ors. v. R. Krishnamurthy (2015) 2 SCC 796, Goa Glass Fibre Ltd. v. State of Goa and Anr. (2010) 6 SCC 499, MRF Ltd. v. Manohar Parikar and Ors. (2010) 11 SCC 374, Rajasthan Housing Board v. New Pink City Nirman Sahkari Samiti Limited and Anr. (2015) 7 SCC 601. 42. In his rejoinder, Dr. Dhawan adverted to the Rules as well as the notifications/circulars on the issue of land in lieu of compensation prior, and subsequent to the one dated 13.12.2001, to assert that the same irrefutably testified an abiding and conscious decision and the unreserved intention of the State to allot developed land to the land losers as a matter of implementable policy and not ex-contractu as is sought to be suggested. Reiterating that at no earlier point of time, the aspect of Article 166(3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al assertions have sprawled beyond such peripheral contours, a passing reference thereto and the finding thereon would clear the deck for the ensuing decisive adjudication. 44. The JDA Act which received the assent of the President on 12.10.1982, as the preamble thereof would evince, is a legislation for forming the Jaipur City and certain contiguous areas into Jaipur Region, to provide for the establishment of an Authority for the purpose of planning, coordinating and supervising the proper, orderly and rapid development of the Jaipur Region and for executing plans, projects and schemes for such development and to provide for matters connected therewith. The expressions "amenities" and "development" have been defined in Sections 2(2) and 2(5) of JDA Act respectively, as extracted herein under: 2(2) "amenities" includes roads, bridges, any other means of communication, transport, streets, open spaces, parks, recreational grounds, play grounds, water, gas and electric supply, and source of energy, street lighting, sewerage, drainage, conservancy, public works and such other utilities, services and conveniences as the State Government in consultation with the Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JDA Act predicates, that the JDA would exercise its powers and perform its duties under the Act in accordance with the policy framed and guidelines laid down, from time to time by the State for development of the areas in the Jaipur Region. It obligates the JDA to be bound to comply with such directions which may be issued, from time to time, by the State for efficient administration of the JDA Act. 47. On a cumulative reading of the above provisions of the JDA Act, it is apparent that with the enactment thereof, the land, as referred to in Section 54 thereof, would stand vested in JDA, whereupon it is competent, amongst others, to dispose of the same by way of allotment, regularisation or auction subject to such conditions and restrictions as may be prescribed by the State. The definition of the expressions "amenities" and "development" also in categorical terms outlines the imperative features of a developed land, as statutorily ordained. The JDA, thus being a creature of the statute, assuredly cannot deviate from such legislative edict in identifying a developed land at its disposal for allotment as and when warranted. 48. The immediate cause of action for the Appellants to ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government of Rajasthan, Urban Development and Housing Department would attest that in order to address the issue of often protracted process of acquisition of land and possession thereof, in view inter alia of the intervening litigations, a pre-meditated decision had been taken by the State to hasten the exercise without any hassle and on mutual settlement and to that effect, circular No F.6(44)UDH/3/89 dated 1.1.1990 had been issued. As the circular No. F.6 (44) UDH/3/89, Jaipur dated 22.4.1992 of the same Department would reveal, the implementation of the decision had been kept in abeyance for want of guidelines. However, the State on a re-consideration of all aspects, did thereafter decide that persons/institutions surrendering their land free of cost to the Land Urban Improvement Trust/Jaipur Development Authority/Rajasthan Housing Board/Municipal Council/Municipality, would be allotted developed land equivalent to maximum of 12% of the surrendered land on the terms and conditions as enumerated therein. A Settlement Committee was also constituted for receiving the land surrendered free of cost on mutual settlement. 51. This was followed by circular No. F.6(19)UDH/3/89, Jaipu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, is determinatively revealing: Hence, the State Government after considering this matter in detail has taken this decision that in such old cases in which award has been passed but the compensation could not be made to the khatedars till date, in these matters one more opportunity shall be given to the khatedars. Hence, now this provision is being made that such khatedars/landowners can present their options till 28.2.2002 and they will be allotted 15% developed land by the allotment committee of the concerned organisation after approval from the State Government. If no allotment committee has been constituted in any organisation, then a Committee other than Jaipur Development Authority and Rajasthan Housing Board, shall be constituted of minimum three officers and a public representative from the Municipal Corporations/boards or corporations which will give its report to its organization. The allotment shall be made with prior approval of the State Government. 54. A prolonged lull followed, where after the letter dated 01.07.2005 was issued, offering lands at Lalchandpura and Anantpura Villages to the Appellants and other similarly situated, representing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - - D. As per rule 31 of the Rules of Business and final disposal of the matters relating to the Department mentioned in II 116 to 117 - - - - 118 Matters relating to de-acquisition of land under acquisition and acquired land. Group Officer Dy. Secretary/Secretary/Pr. Secretary Minister/With approval of Chief Minister 119 to 121 - - - - 58. A plain comparison of the texts of these two Orders i.e. 20.7.1999 and 8.7.2004 would demonstrate that whereas by the former, the issue was required to be presented before the departmental minister, under the latter, the authority on the issue was departmental minister with the approval of the Chief Minister. It is, therefore, the plea of the Respondents that following the amendment of the Rules on 5.3.1999, the circular dated 13.12.2001, to assume the status of an enforceable State policy ought to have been approved by the Chief Minister 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: 'Ministe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cretary, a Joint Secretary etc. as enumerated therein so much so that such signature shall be deemed to be a proper authentication of such order or instrument. 62. Part III of the Rules dwells upon the procedure of the Council of Ministers. In terms of Rule 14, all cases referred to in the Second 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 consideration at a meeting of the Council or Sub-Committee thereof. Such laying would not be necessary if a case falls within the purview of a Sub-Committee of the Cabinet constituted under Cabinet Secretariat Order No. F.3(3)/Cab/81, dated 30.9.1981. 63. The manner of departmental disposal of business is elucidated under Part-IV. Rule 21 predicates that except 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 66. Rule 31(1)(ii) of Rules, to reiterate, after the amendment on 05.03.1999 did provide that the cases raising question of policy and all the cases of administrative importance not already covered by Second Schedule would have to be laid before the Chief Minister before any order is issued. 67. With this preface, the State did, however, in unqualified terms aver in its affidavit dated 22.3.2013 that in terms of the Standing Orders Under Rule 21 at item No. 106, the Minister-in-Charge was the competent authority in matters relating to land acquisition and also for releasing the land under acquisition. It was clarified, that the competent authority in relation to land acquisition/release of land used to be the Minister-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to be officially notified or to be communicated, it should normally be expressed in the form mentioned in Article 166(1) of the Constitution of India i.e. in the name of Governor. The plea that an omission to make and authenticate an executive decision in the form mentioned in Article 166 does not per se make the decision itself illegal was, however sustained. It was underlined, that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. It was propounded that when the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it had been the practice of the Courts to hold 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rformance of a public duty, and where the invalidation of 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, yet not promote the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. 72. A letter issued by the Under Secretary to the Government of Mysore, Education Department conveying the decision of the Government to award 25% marks in the interview for admission to Engineering Colleges and Technical Institutions suffered the assailment of being non-compliant with the requirements of Article 166 of the Constitution of India as it had neither been expressed in the name of Governor nor implemented in the manner as enjoined in R. Chitralekha (supra). A Constitution Bench of this Court, while expressing 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in law to issue them at his level and the subject matter was required to be placed before the Cabinet in view of the huge financial implication involved therein and further that the Cabinet had earlier rescinded the notifications offering rebate. It was underlined too, that for any modification or variation of such decision, it was required to be placed before the Council of Ministers in view of the business Rules framed Under Article 166(3) of the Constitution of India. The State maintained further that the two notifications had imposed a heavy burden on the state exchequer and that the concurrence of the Finance Department of the State Government was mandatory. That not only such concurrence was absent, the note in the concerned file of the Power Minister that he had consulted the Chief Minister was found to be false as per the police investigation conducted. The State pleaded too that despite no budgetary allocation or any provision for making payment, finance was sought to be diverted to the private industrialists by virtue of the two notifications, as a result whereof, an amount of Rs. 16 crores had already been lost and further sum of Rs. 50 crores of public money was in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was urged further that the Notifications, if upheld, would result in loss of Rs. 50 crores to the State Exchequer. The pleadings of the State, as noticed by this Court, reflected that there was neither the financial sanction nor the budgetary provision, nor a cabinet approval as was mandatorily required under the Rules and that there was clear breach of the mandatory provisions thereof. 76. In the course of adjudication, the plea of estoppel against the State Government in repudiating the notifications was negated on the ground that the issue of validity thereof, being repugnant to the mandatory provisions of the Rules of business had not arisen in the earlier round of litigation. The contention that it was impermissible for the State Government to take contradictory stand in the pleadings was rejected. The conclusion of the High Court that in a democratic set-up, the validity of the decisions of the Government, that decides 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying on of an activity, and compel the person doing the act or carrying on the activity to implement the requirement as part of a specified procedure. The requirement may be imposed merely by implication. To remedy the deficiency of the legislature in failing to specify the intended legal consequence of non-compliance with such a requirement, it has been necessary for the courts to devise rules. These lay down that it must be decided from the wording of the relevant enactment whether the requirement is intended to be mandatory or merely directory. The same requirement may be mandatory as to some aspects and directory as to the rest. The court will be more willing to hold that a statutory requirement is merely directory if any breach of the requirement is necessarily followed by an opportunity to exercise some judicial or official discretion in a way which can adequately compensate for that breach. Provisions relating to the steps to be taken by the parties 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same on the touchstone of the above judicially evolved formulations, this Court concluded that any proposal likely to be converted into a decision of the State Government involving expenditure or abandonment of revenue for which there was no provision made in the Appropriation Act or an issue which involved concession or otherwise having a financial implication on the State, was required to be processed only after the concurrence of the Finance Department and could not be finalised merely at the level of the Minster-in-charge. It was ruled that after the concurrence of the Finance Department, the proposal had to be placed before the Council of Ministers and/or the Chief Minister and only after a decision was taken in that regard, the same would result in a decision of the State Government. It was held that Rules 3, 6, 7 and 9 were mandatory in nature so much so that any decision taken by any individual minister in violation thereof could not be termed as a decision of the State 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) wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Allusion to Article 166 as a whole, figured in a different context before this Court in Jaipur Development Authority (supra), to assay the attributes of the letter dated 6.12.2001 issued by the Deputy Secretary (Administration), Urban Development and Housing Department to the Secretary, Jaipur Development Authority, Jaipur in the matter of allotment of plots in addition to the compensation paid to the awardees in connection with the acquisition of land involved. For the construction of new building of the Legislative Assembly, educational institutions, stadium complex, district shopping centre, MLA quarters etc., under the project "Lal Kothi Scheme", notification Under Section 4 and declaration Under Section 6 of the Rajasthan Act were issued on 13.5.1960 and 11.5.1961 respectively whereafter, notice was issued to the land owners/khatedars Under Sections 9 (1) and (3) of the Rajasthan Act. The claimants for compensation, included persons who had purchased portions of the acquired land. 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 Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity v. Radhey Shyam (1994) 4 SCC 370 to the effect that the Land Acquisition Officer did not have any jurisdiction, power or authority to direct allotment of land to the claimants under the Rajasthan Act in lieu of compensation. It was also noted that as held in Jaipur Development Authority v. Daulat Mal Jain (1997) 1 SCC 35 that there was no policy laid by the Government to this effect and that it could not have been so, being contrary to the Rajasthan Improvement Trust (Disposal of Urban Land) Rules, 1974 and that no such power was given to the individual minister by executive action to that effect. This Court also recalled its observation that the decision taken by the Minister and the actions of the bureaucrats were meant to benefit only those who had illegally secured transfer of land after the publication of the notification issued Under Section 4 and that the so-called policy was an artifice to feed corruption and to deflect the public purpose. 88. The facts divulged that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Articles 77 & 166 of the Constitution of India were adverted to, with special reference to the decision of this Court in Kripalu Shankar (supra) to the effect that a noting by an official in the departmental file could not be construed to be an executive decision. It was thus concluded, that unless an order is expressed in the name of President or the Governor and is authenticated in the manner prescribed by the Rules of Business, the same cannot be treated as an order made on behalf of the Government. The letter dated 6.12.2001 in the opinion of this Court, having failed to meet this prescript, it was discarded as a policy decision of the Government within the meaning of Article 166 of the Constitution. It was held as well, that in any case, even if this letter dated 6.12.2001 could be treated to be a policy decision, it being contrary to the determinations made in Radhey Shyam (supra) and Daulat Mal Jain (supra), it was non est. 91. This Court had an occasion to dilate on 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nutes of the meeting ought to have been placed before the concerned Minister as per the Rules of Business. It was held that sanctification by the concerned ministry and the concurrence of the Finance Department was a mandatory requirement in order to construe the minutes of the meeting to be a general or special order in writing by the Central Government. That there was nothing on record to prove that the minutes of the meeting had the concurrence of the Finance Department or had either been confirmed or approved by the concerned Minister or such directions had been issued pursuant to any decision taken by a competent authority in terms of Rules of Business framed Under Article 77 of the Constitution of India, was noted. The intervention of this Court was, thus on a clear and demonstrable infraction of Rules of Business framed Under Article 77 of the Constitution of India enjoining peremptory compliance of the requirements for fructification of the minutes of the meeting to be 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar was inapplicable which, in fact, was in the form of guidelines for future acquisition, conditionally on the surrender of the land by the khatedars. The ratio of the decisions of this Court in Radhey Shyam (supra), Daulat Mal Jain (supra) and Vijay Kumar Data (supra) was reiterated. 96. In the context of the circular dated 27.10.2005, reference was again made to the decision of this Court in Kripalu Shankar (supra) involving the noting in a file, which as held, did not amount to an executive decision by itself. The mandate of Article 166 with regard to mode of expression of the decision of the Government, the manner of authentication thereof and making of the rules by the Governor for more convenient transaction of the business of the Government was revisited. In the contextual facts, the circular dated 27.10.2005 was held to be inapplicable besides being beneficial to the purchasers, who claimed to have acquired right in the land, after issuance of the notification 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings involved, this Court entered a finding that it was unfair on the part of State Government in not considering the representations of the Appellants by applying the same standards. A direction was made to the State to issue appropriate order(s) concerning the Appellants' land on the same terms and in the same manner as done qua the others similarly situated. In adopting this course, this Court observed in no uncertain terms that the land owners who were similarly situated have a right of similar treatment by the State Government as equality of citizens' right was one of the fundamental pillars on which the edifice of the rule of law rested. 99. The postulations judicially adumbrated vis-a-vis Article 166 of the Constitution of India, as can be gleaned from the above referred decisions, verily convey the quintessence of the content and expanse thereof. Needless it is thus to burden this adjudication by referring to other pronouncements 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the State is vested in the Governor and is to be exercised by him either directly or through the officers subordinate to him, however, in accordance with the Constitution and except insofar as he is required to exercise his functions or any of them in his discretion, there would be a Council of Ministers with the Chief Minister as the head to act and advise him in the discharge of his other functions. The Rules of Business as contemplated in Clause (3) of Article 166 unmistakably relate to the transactions to be undertaken by the Governor with the aid and advise of the Council of Ministers headed by the Chief Minister, subject however to the allocation of business in terms thereof. 103. The essentials of Article 166, as a corollary, are a valid executive decision in terms of the Rules of Business framed under Clause (3), expressed in the name of Governor and authentication of the resultant orders and instruments in the manner specified in the rules to be made by the Governor. Thus, Article 166(3) mandates the making of the Rules of Business for more convenient transactions of the affairs of the Government. Clause (1) stipulates the mode of expression of an executive action tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial of resulting in serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, such prescriptions are generally understood as mere instructions for the guidance of those on whom the duty is imposed and are regarded as directory. It has been the practice to hold such provisions to be directory only, neglect of those, though punishable, would not however affect the validity of the acts done. At the same time where however, a power or authority is conferred with a direction that certain Regulation or formality shall be complied with, it would neither be unjust nor incorrect to exact a rigorous observance of it as essential to the acquisition of the right of authority. 106. Obviously, thus the mandatory nature of any provision of any Rule of Business would be conditioned by the construction and the purpose thereof to be adjudged in the context of the scheme as a whole. The interpretation of the Rules, necessarily, would be guided by the framework thereof and the contents and purport of its provisions, and the status and tenability of an order/instrument, repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly to the queries of this Court made with order dated 15.1.2013, in unmistakable terms did vouch the competence and authority of the departmental minister to exclusively take a decision on this issue. As the text of the said affidavit would clearly demonstrate, the State Government was then fully aware of the amendment to the Rules on 5.3.1999. Our attention has not been drawn to any circular/notification superseding the Order dated 20.7.1998 whereby the departmental minister in terms of the Standing Orders Under Rules 21 and 22 of the Rules was entrusted with the duty and jurisdiction of dealing with the matters relating to land acquisition and deacquisition. It was only with the Order dated 8.7.2004, that as per Rule 31 of the Rules, matters relating to deacquisition of land under acquisition and acquired land were to be presented before the departmental minister with the approval of the Chief Minister. Nothing has come forth in the interregnum as to the working arrangement for the transaction of business in this regard under the Rules contrary 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory legislation. Admittedly as well, the compensation as guaranteed by the Reference Court for the land has not been paid to them. To reiterate, the facts demonstrate that the State Government had taken a pre-meditated decision to allot developed land to the land oustees in lieu of compensation. As per the successive circulars including the one dated 13.12.2001, it was incumbent on the State Government to allot developed land with all the essential attributes thereof. As is apparent from the order dated 7.5.2015 of this Court, the plots offered to the Appellants till now are not developed. The land had been acquired in the year 1981 and more than three decades have elapsed. In our view, the delay cannot be attributed to the Appellants for the obvious failure of the State Government to allot developed land in lieu of compensation as represented. 112. The records produced pertain to the decision dated 1.7.2005 taken at the level of Ministerial Sub-Committee to allot 15% developed land to the awardees of acquisition for Field Firing Range including the Appellants, at JDA Scheme Lalchandpura and Anantpura. It reveals that the process was initiated at the level of the Director of Lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urden in this regard. The Appellants understandably have no access either to the official records of the Government or control over the manner of discharge of the role of the functionaries under the Rules. In this view of the matter, in the face of the predominant facts testifying the reflective and consistent decision of the State Government in the matter of allotment of developed land in lieu of compensation, spanning over a decade from the year 1992 to 2005, the endeavour on its part to disown the policy/circular dated 13.12.2001, in our estimate, betrays its truant disposition, cavalier indifference and impervious display of superior bargaining power which is constitutionally impermissible. 115. On a concatenation of the stream of events, traced from the acquisition of the land involved, we are thus of the view that the circular dated 13.12.2001 is indeed a policy decision of the State Government regarding the allotment of developed land in lieu of compensation to the persons referred to therein and is thus enforceable against 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntify the land to be allotted. It was only if the developed land within the scheme area was not available for allotment, that a plot near the scheme area was to be made available. In any case, the requirement of developed character of the land could not be undermined, disregarded or waived. 119. As by the time, the allotment was contemplated, the JDA Act had been brought into force, the concept of developed land was clearly traceable to one informed with the concept of "development" and "amenities" defined thereunder. Any land to be allotted in lieu of compensation, thus, was required to mandatorily comply with the requisites of 'development' and 'amenities' as envisaged under the JDA Act. As only a certain percentage of land acquired was offered by way of allotment and understandably as the same was in lieu of compensation i.e. the market value along with the incidentals, it was expectedly assessed to be proportionate thereto in value/worth. 15% developed land was, thus construed to be equivalent to the amount of compensation then payable for the land acquired. However, for the purpose of identification of developed land as on today, equivalence of the value there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... highly insensitive and evasive orientation at the cost of its citizenry by a show of dominant bargaining power. The policy, though was to allot developed land in lieu of compensation to ensure quick and unhindered completion of the process of acquisition, the Respondents have remained apathetically inert, having obtained the land, without living up to their commitments. To gloss over this inexplicable default, would signify effacement of decades of indifference and mute inaction of the Respondents, more particularly the State, inspite of a binding policy decision, to the suffering detriment and prejudice to the Appellants without their fault. In this overwhelming conspectus of facts, the Respondents cannot be permitted to dictate terms to the Appellants in the matter of allotment of land inter alia on the consideration of equivalence of the value of their land as acquired with the one offered to them as developed land as on date. 121. The assertions founded on the right to property and the doctrines of promissory estoppel and legitimate expectation assumes significance at this juncture. 122. The right to property though no longer a fundamental right is otherwise a zealous possess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the dimensions of human rights have widened so much that now property dispute issues are also being raised within the contours of human rights. With the expanding jurisprudence of the European Courts of Human Rights, the Court has taken an unkind view to the concept of adverse possession. 127. In summa, the right to property having been elevated to the status of human rights, it is inherent in every individual, and thus has to be venerably acknowledged and can, by no means, be belittled or trivialized by adopting an unconcerned and nonchalant disposition by anyone, far less the State, after compulsorily acquiring his land by invoking an expropriatory legislative mechanism. The judicial mandate of human rights dimension, thus, makes it incumbent on the State to solemnly respond to its constitutional obligation to guarantee that a land looser is adequately compensated. The proposition does not admit of any compromise or laxity. 128. Added to this, is the promissory estoppel perspective, the State being the promisor. Estoppel is 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 ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whom the promise is made and it is, in fact, so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or not. 182.2. The doctrine of promissory estoppels may be applied against the Government where the interest of justice, morality and common fairness dictate such a course. The doctrine is applicable against the State even in its governmental, public or sovereign capacity where it is necessary to present fraud or manifest injustice. However, the Government or even a private party under the doctrine of promissory estoppels cannot be asked to do an act prohibited in law. The nature and function which the Government discharges is not very relevant. The Government is subject to the rule of promissory estoppels and if the essential ingredients of this doctrine are satisfied, the Government can be compelled to carry out the promise made by it. 182.2 the State Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay in action', it was underlined that it also raises a reasonable or legitimate expectation in every citizen to be treated fairly in his dealings with the State and its instrumentalities. 135. The observance of this obligation as a part of good administration, is obligated by the requirement of non-arbitrariness in a state action, which as a corollary, makes it incumbent on the State to consider and give due weight to the reasonable or legitimate expectations of the persons, likely to be affected by the decision, so much so that any failure to do so would proclaim unfairness in the exercise of power, thus vitiating the decision by its abuse or lack of bona fide. The besieged decision would then be exposed to the challenge on the ground of arbitrariness. It was propounded that mere reasonable or legitimate expectation of a citizen, may not by itself be a distinct enforceable right in all circumstances, but the failure to consider and give due weight to it, may render the decision arbitrary. It was thus, set down that the requirement of due consideration of legitimate expectation formed a part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... developed land as envisioned by the Rajasthan Act do not accord with the letter and spirit of the policy. 139. Administrative discretion, irrespective of its ostensible expanse, it is a trite proposition, can never be unregulated, omnipotent and fanciful. A public authority vested with power has to essentially exercise its discretion, if conferred, conditioned by the dictates of duty as envisaged, to effectuate the exercise of the prerogative to achieve the objective therefor. The central and cardinal canon of administrative governance, enjoins a framework of controlled use of discretion coupled with duty which is inscribed in felicitous terms in Administrative Law, 10th Edition by H.W.R. Wade and C.F. Forsyth at Page 286 as quoted: The first requirement is the recognition that all power has legal limits. The next requirement, no less vital, is that the courts should draw those limits in a way which strikes the most suitable balance between executive efficiency and legal protection of the citizen. Parliament constantly confers upon public authorities powers which on their face might seem absolute and arbitrary. But arbitrary power and unfettered discretion are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f colourable exercise of power. The rule of law is the foundation of a democratic society. [Vide Erusian Equipment and Chemicals Ltd. v. State of W.B., Ramana Dayaram Shetty v. International Airport Authority of India, Haji T.M. Hassan Rawther v. Kerala Financial Corporation, Shrilekha Vidyarthi v. State of U.P. and M.I. Builders (P) Ltd. v. Radhey Shyam Sahu.] 41: Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. "Public authorities cannot play fast and loose with the powers vested in them." A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In this context, "in good faith" means "for legitimate reasons". It must be exercised bona fide for the purpose and for none other. [Vide Commr. of Police v. Gordhandas Bhanji, Sirsi Municipality v. Cecelia Kom Francis Tellis, State of Pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is of a most extensive remedial nature, and is, in from, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual. 145. An insight into the equitable theory in the application of law was explored by the celebrated jurist Roscoe Pound in his treatise "An Introduction to the Philosophy of Law" in the following excerpts: To the adherents of this theory the essential thing is a reasonable and just solution of the individual controversy. They conceive of the legal precept, whether legislative or traditional, as a guide to the judge, leading him toward the just result. But they insist that within wide limits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e situational demands justifying the paramountcy of the rule of law. 147. Our national charter, being a living and organic document, no provision thereof can remain static or stale and must be accorded a vibrant import to guarantee the effectuation of the preambular pledge in its fullest content. The plenary powers of this Court enshrined in Article 142 of the Constitution of India for achieving complete justice is only an insignia of empowerment so that the constitutional guarantees are not reduced to mere ritualistic incantations. 148. This Court extra-ordinarily does exercise its power Under Article 142 of the Constitution of India as warranted in a given fact situation, for making order (s) as is felt necessary for doing complete justice in a case a matter pending before it. 149. As the nature and extent of the power indicates, there can be no straight jacket formula, for its exercise nor there can be any fetter thereto, it being plenary in nature. The invocation of this power is to reach injustice and redress the same, if it is not feasible otherwise to achieve this avowed objective. In doing so, this Court acts in its equity jurisdiction to balance the conflicting interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose for its existence. The predominant facts herein, justifiably demand a fitting relief modelled by law, equity and good conscience. Thus, the elaborate preface. 153. In the overall view of the matter, we are of the confirmed opinion, that in the singular facts and circumstances of the case and for the sake of complete justice, the Appellants are entitled to be allotted their quota of 15% developed land in the terms of policy/circular dated 13.12.2001 in one or more available plots at Vidyadhar Nagar, Gokul Nagar, Truck Terminal and Vaishali Nagar as enumerated by them in their affidavit dated 17.8.2015. The Respondents are hereby directed to accommodate them accordingly. 154. In the wake up of above, the appeals are allowed. The impugned judgment and order is set-aside. The Respondents would allot the developed land as per policy decision dated 13.12.2001 to the Appellants at the places indicated hereinabove without fail and within a period of six weeks herefrom. To secure a permanent resolution to the lingering lis, the Respondents would ensure that a transparent and fair process is undertaken, if necessary, to be overseen by an appropriate authority to obviate any dispar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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