2015 Supreme(SC) 1094

SUPREME COURT OF INDIA
V. GOPALA GOWDA, AMITAVA ROY, JJ.
LALARAM & OTHERS – APPELLANTS
VERSUS
JAIPUR DEVELOPMENT AUTHORITY & ANR. – RESPONDENTS
CIVIL APPEAL NO. 13940 OF 2015 [ARISING OUT OF S.L.P. (C) NO. 28415 OF 2011]
WITH
CHOTU RAM – APPELLANT
VERSUS
JAIPUR DEVELOPMENT AUTHORITY & ANR. – RESPONDENTS
CIVIL APPEAL NO. 13941 OF 2015 [ARISING OUT OF S.L.P. (C) NO. 29515 OF 2011]
WITH
KANA RAM & OTHERS – APPELLANTS
VERSUS
JAIPUR DEVELOPMENT AUTHORITY & ANR. – RESPONDENTS
CIVIL APPEAL NO. 13942 OF 2015 [ARISING OUT OF S.L.P. (C) NO. 36111 OF 2011]
WITH
MADAN LAL & OTHERS – APPELLANTS
VERSUS
JAIPUR DEVELOPMENT AUTHORITY – RESPONDENT
CIVIL APPEAL NO. 13943 OF 2015 [ARISING OUT OF S.L.P. (C) NO. 36175 OF 2011]
WITH
RUKMANI DEVI & OTHERS – APPELLANTS
VERSUS
JAIPUR DEVELOPMENT AUTHORITY & ANR. – RESPONDENTS
CIVIL APPEAL NO. 13944 OF 2015 [ARISING OUT OF S.L.P. (C) NO. 36179 OF 2011]
Decided on : 1-12-2015

IMPORTANT POINTS
Policy circulars Issued by competent authority in terms of Rules of Business and in consonance with Article 166 have statutory force.
Challenge to government order issued by implementing instrumentality before its Tribunal is maintainable.
When the state acts on a circular issued in accordance with Rules of Business and Article 166, it cannot resile therefrom on the ground that it was not issued in the name of Governor.
Where the State did not agitate against legality or validity of a notification in earlier litigation, it is not stopped from raising the same in subsequent litigation.
Provisions of Article 166(1) and (2) are directory but Rules of Business framed under Article 166(3) are not directory.
Mandatory and directory provisions discussed.
Right to property, though no longer a fundamental right, cannot be taken away save by the authority of law.

Headnote:(a) Constitution of India – Article 166; Rule 31, Rajasthan Rules of Business and circulars dated 21.09.1999, 31.12.2001, 22.04.1992 and 27.10.2005 – Policy circulars – Issued by competent authority in terms of Rule 31 and in consonance with Article 166 – Have statutory force. (Para 22, 23)

       (2011) 12 SCC 94; (1987) 3 SCC 34 – Referred

       (b) Jaipur Development Authority Act, 1982 – Section 83 – Circular dated 13.12.2001 and letter dated 1.7.2005 of Urban Development Department – Functional amalgam of the State and the JDA – Policy decision to allot developed land to oustees to the extent of 15% – JDA was the implementing instrumentality – Appellants challenging allotment of land at Lalchandpura and Anantpura Villages before the JDA Tribunal u/s 83 and Tribunal’s orders – Cannot be held not maintainable. (Para 48)

       (c) Rajasthan Rules of Business – Rule 21 and 22 – Circular dated 13.12.2001 – Policy decision taken by Minister in charge – Minister, as per rules prevailing at relevant time, competent to approve the circular – The circular represents an enforceable State policy – Not invalid merely because not issued in the name of Governor – Constitution of India – Article 166(1) – Further, State already acted on the circular – It cannot resile from its conduct taking a stand of repugnancy of the Rules. (Para 68, 70, 114)

       1952 SCR 612; 1952 SCR 674; 1959 SCR 1424; (1994) 4 SCC 370; (1997) 1 SCC 35 – Relied upon

       (2010) 6 SCC 499; – Referred

       (d) Estoppel – State not agitating against legality or validity of notification in earlier litigation – Not stopped from raising the same in subsequent litigation. (Para 77)

       (1973) 3 SCC 889 – Relied upon

       (e) Constitution of India – Article 166(1) and (2) – Provisions are directory – However, Rules of Business framed under Article 166(3) are not directory. (Para 81, 83)

       AIR 1964 SC 1823 – Relied upon

       (f) Constitution of India – Article 77 and166 and Rules of Business – Executive decision – Noting by an official in departmental file – Order not expressed in the name of the President or the Governor – Not authenticated in the manner prescribed by Rules of Business – Not a Government order. (Para 90, 103, 104)

       (1987) 3 SCC 34; (1994) 4 SCC 370; (1997) 1 SCC 35; (2015) 7 SCC 601; (2015) 8 SCC 446 – Referred

       (g) Interpretation of Rules – Mandatory or directory – Provisions relating to performance of public duty – Where invalidation of acts done in neglect of such duties may result in serious general inconvenience or injustice to persons – Provisions would be directory – Neglect of such provisions, though punishable, would not affect validity of the acts done – Where power or authority is conferred subject to compliance with certain regulation or formality, such provisions are mandatory. (Para 105)

       (h) Constitution of India – Article 166(1) and (2); Rules of Business – Circular dated 13.12.2001 – High Court annulling the circular only on ground of its non conformance with Article 166 (1) and (2) without any reference to Rules of business – Not sustainable. (Para 107)

       (2010) 3 SCC 621; (2015) 2 SCC 796; (2010) 6 SCC 499; (2010) 11 SCC 374 – Referred

       (i) Rules of Business – Rule 31 – Circular dated 13.12.2001 – Challenged on the ground that it was not laid before the Chief Minister – No plea raised on ground of mandatory requirement of concurrence of Finance department – Rule 31 however not excluding Minister in charge as decision maker – Circular dated 13.12.2001 valid. (Para 109, 110)

       (j) Rules of Business – Rule 31 – Circular dated 13.12.2001 – State bound to allot developed land to land losers – Land allotted not yet developed although acquired in 1981 – Delay in development not attributable to appellants – State trying to disown Circular dated 13.12.2001 as its policy decision – Not permissible – Held enforceable against it. (Para 114, 115, 138)

       (k) Rules of Business – Rule 31 – Circular dated 13.12.2001– Allotment of 15% developed land in lieu of acquired land – Land acquired in 1981 – Land not yet allotted – Had equitable developed land been allotted three decades ago, it value would have greatly appreciated – State trying to equate developed land with value of acquisition three decades ago – Allotting land not yet fully developed – Not permissible. (Para 119)

       (l) Constitution of India – Article 300A – Human rights – Right to property – Though no longer a fundamental right, cannot be taken away save by the authority of law. (Para 122)

       (2007)8 SCC 705; (2009) 16 SCC 1; (2014) 4 SCC 769; (2011) 10 SCC 404 – Relied upon

       (m) Promissory Estoppel – Indian Evidence Act, 1872 – Section 115 – Even if a case does not fall within purview of section 115 if a person acts on the promise made by Government, can claim that the Government carry out the promise – Article 299, Constitution of India notwithstanding – Legitimate expectation – There is no unfettered discretion in public law – A sovereign authority possesses powers only to use them for public good – Equity – Natural Justice – a (Para 128, 134, 135,

       (1968) 2 SCR 366; (1979) 2 SCC 409; (2004) 6 SCC 465; (2012) 11 SCC 1; (2014) 4 SCC 186; (1993) 1 SCC 71 – Relied upon

       (1947) 1 KB 130 – Referred

       (n) Constitution of India – Article 14 – Fairness in Government actions – Administrative power, discretion and public duty – Are interrelated – Essentiality of non-arbitrariness and transparency in executive functioning underlined. (Para 140)

       (2011)6 SCC 508 – Relied upon

       (o) Constitution of India – Articles 32 and 226 – Writ of mandamus – Extraordinary remedy intended to supply deficiencies in law – Thus discretionary in nature – Pre-supposes a clear right of the applicant and unjustifiable failure of a duty imposed on an authority. (Para 143)

       (p) Constitution of India – Article 142 – Extraordinary, plenary power – To do complete justice – Article 14 and 21 – Equality before law and right to life – Article 300A. (Para 149, 150)

       (1996) 10 SCC 193; (2014) 2 SCC 532 – Relied upon

       Facts of the case:

       The lands of the appellants situated at Village Boytawala, District Jaipur was acquired by the State under the Rajasthan Land Acquisition Act, 1953 and the Notification under Section 4 thereof to this effect was issued on 8.5.1981. The land was acquired for the purpose of the Army for its “Field Filing Range”.

       The award under the Rajasthan Act was passed by the Land Acquisition Officer on 26.3.1983 and the possession of the land was taken over on 26.3.1983. Though the compensation was awarded by the Land Acquisition Officer @ Rs. 1500 per bigha, on reference being made under the aforementioned statute, the Reference Court enhanced the same to Rs. 15000/-per bigha which attained finality. Compensation was deposited in the court concerned @ Rs. 1500 per bigha and not at the enhanced rate fixed by the Reference Court and affirmed by the High Court.

       Meanwhile, by circular No. F.6(19)UDH/3/89 dated 21.9.1999 it was notified by the State Government that it had taken a decision that developed land equivalent to 15% of the area acquired, 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.

       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. It was also resolved 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.

       The circular No. F6(19)/UDD/89 dated 13.12.2001 was thereafter issued with reference to the circular/notification No. F.6(9)/UDH/89 dated 21.9.1999. As per the circular in old cases in which award had been passed but compensation could not be made to the khatedars, one more opportunity was to be granted to them.

       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.

       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.

       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, Supreme Court, however, observed, 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.

       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.

       Finding of the Court:

       Impugned judgment is not sustainable.

       Result: Appeals allowed.