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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

ORDER

IN

S.B. Civil Review Petition No.21/2013

(With Stay Application No.680/2013)

In

S.B. Civil Writ Petition No.695/2004

Taruchaya Nagar Ramaram Vikas Samiti

Jaipur through its Secretary Dr. Kavita

Sharma and Another Vs. The State of

Rajasthan through the Secretary to the

Government, Urban Development and

Housing Department, Govt. Secretariat,

Jaipur and Others

Date of Order ::: 20.12.2013

Present

Hon'ble Mr. Justice Mohammad Rafiq

Shri Bajrang Lal Sharma, Senior Counsel with

Shri Babu Lal Sharma, counsel for petitioners

####

By the Court:-

This review petition has been preferred by

petitioners seeking review of order/judgment dated

10.12.2012 by which their Writ Petition No.695/2004 was

dismissed.

Writ petition was filed by petitioners Taruchaya

Nagar Ramaram Vikas Samiti Jaipur through its Secretary Dr.

Kavita Sharma, who too joined as petitioner no.2, with the

prayer that a mandamus be issued to respondents to grant a

benefit of Circular dated 18.02.1994 and to regularize their

possession of the members of the petitioner no.1 Samiti, in

terms of Circular dated 10.07.1999 issued by respondent

State. They were allotted such plots by Subhash Sindhi

Cooperative Housing Society Limited in a housing scheme of

300 plots.

Shri Bajrang Lal Sharma, learned Senior Counsel

appearing for petitioners, has cited a judgment of the

Supreme Court in A.R. Antulay Vs. R.S. Nayak and Another –

(1988) 2 SCC 602, and argued that the Supreme Court therein

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has held that “per incuriam” decisions are those decisions,

which are given in ignorance or forgetfulness of some

statutory provision or of some binding authority. This court

while deciding the writ petition, has considered only the

question of authority binding on the court concerned, but

has neither noticed nor decided the question of statutory

provision. In this connection, learned Senior Counsel drew

attention of the court towards Section 54 of the Jaipur

Development Authority Act, 1982, which specifically deals

with question of disposal of land by the Jaipur Development

Authority by way of allotment, regularization or auction,

subject to such conditions as the State Government may from

time to time prescribe. What has been prescribed in sub-

section (1) of Section 54 has been reiterated in sub-section

(4) thereof.

It was argued that Division Bench judgment of this

court dated 11.08.2011 in Special Appeal (Writ) No.342/2007

– Ratan Kumar Sharma Vs. State of Rajasthan and Others, on

which reliance was placed by the respondents, was a judgment

per incuriam as it was decided in ignorance of mandatory

provision of Section 54 of the JDA Act. When the legislature

by Statute has included 'regularization' as one of the modes

of disposal of the land, the Division Bench could not

describe the same as misadventure. The Division Bench in

that

case,

while

rejecting

prayer

of

writ-

petitioners/appellants that it may be left open to the

government to regularize certain plots in favour of the

appellants, observed that the government cannot enter into

such misadventure. This observation has been given by the

Division Bench without any reasoning and without application

of mind.

It was argued that courts cannot go contrary to the

mandate of law. If the legislature by Section 54 of the JDA

Act, empowered the Jaipur Development Authority to dispose

of the lands by way of allotment, regularization or auction,

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that would mean that one of the accepted modes of disposal

is regularization. The Division Bench was not justified in

holding that if the State were to regularize the land, it

would amount to misadventure on its part.

Shri Bajrang Lal Sharma, learned Senior Counsel,

argued that even if Special Leave to Petition has been

dismissed ag