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Judgment
By way of this writ petition, the petitioners have sought the
reliefs in the following terms:
(i) that by an appropriate writ, order or direction in the nature of mandamus of certiorari non-petitioners may be directed to accept the application of the petitioners for
raising the construction and permission may also be granted/accorded. (ii) further by an appropriate writ, order or direction, non- petitioners may be restrained from interfering in the peaceful possession of the petitioners. (iii) further by an appropriate writ, order or direction, if any acquisition proceedings is initiated, so far as the petitioners'' land is concerned, same may be quashed and set aside and declared void. (iv) further by an appropriate writ, order or direction, if the petitioners are deprived of their right of land, they are entitled for compensation of present market value in which the non-petitioners have already entered into transaction i.e. Rs.4,000/- per Sq. Yds. (v) Pending the petition if any order is passed prejudicial to the interest of petitioners same may kindly be quashed and set aside. (vi) Costs of the writ petition may be awarded to the petitioners."
In the first instance, this writ petition alongwith other
connected petitions being No.5416/93 and 3132/93 preferred by
Magha Ram and Smt. Bhanwari Devi respectively, were allowed by
a coordinate Bench of this court vide judgment dated 21.1.03 in
the following terms:
"Thus, in view of the above, the petitions deserve to be allowed and the acquisition proceedings deserve to be declared as lapsed and it is to be declared that the possession over the land by the respondents is illegal and without any authority of law and the respondents should be directed to restore possession of the land to the present petitioners. However, considering the fact that the matters are very old and litigations had been going on for a long time and the situation has changed as the land has been allotted to certain other persons, the order requires to be modified only to the extent that the respondent No.2 must release 50% of the area of the land of the respective petitioners to them and must hand over its possession to them within the period of two months from today."
Aggrieved by the said judgment, the petitioner herein and
others preferred Special Appeals before the Division Bench of this
court. The Special Appeal preferred by the Urban Improvement
Trust, Jodhpur (''UIT'') against the judgment rendered in the
connected writ petition No.5416/03 "Maggha Ram''s L.Rs. and
others vs. State of Rajasthan ", was dismissed by a Bench of this
court vide judgment dated 20.3.03. However, the Special Appeals
(180/03, 185/03, 182/03 and 369/03) preferred by the petitioner
herein, the UIT and Life Insurance Corporation Limited were
disposed of vide order dated 15.9.08 by a Bench of this court with
the directions in the following terms:
" In that view of the matter, we think it appropriate to send back, and do hereby send back these matters to the learned Single Judge, by directing writ petitions no.3132 and 3590 of 1993 to be restored to the learned Single Judge, for deciding the matters afresh on their own merits, in accordance with law. The parties are directed to appear before the learned Single Judge on 22.9.2008. Fresh notice need not be issued. Interim order passed by this Court on 5.8.2008 shall continue upto 22.9.2008, and the learned Single Judge will consider the request of the party concerned on stay, and pass fresh appropriate orders on stay, in accordance with law, without in any manner being obsessed by the fact of interim order having been passed by the Division Bench. The applications filed before the Division Bench, for impleadment of parties, for interim stay, so also for vacating the stay order, be also transmitted to learned Single Judge, for disposal on merits in accordance with law."
Pursuant to the order passed by the Bench of this court as
aforesaid, this writ petition has come up for hearing afresh.
The facts relevant in nutshell are that Smt. Bhanwari Devi
and Santokh Singh purchased 13547 sq. yard land situated at
Manji Ka Hathha, Jodhpur, from Jodhana Real Estate Committee
Private Limited by way of registered sale deed. The petitioners
Smt. Renu Chaterji, SBI Employees Cooperative Housing Society
Limited and Ashok Dhariwal purchased the land measuring 5400
sq. ft., 2400 sq. ft. and 1800 sq. ft. from Smt. Bhanwari Devi vide
registered sale deeds dated 13.6.72, 21.6.72 and 3.1.73
respectively. The land in dispute alongwith large chunk of area
was notified for compulsory acquisition under Section 52 (1) & (2)
of Rajasthan Urban Improvement Act, 1959 (for short "the Act of
1959") vide notification published in Rajasthan Gazette on
10.10.74. The legality of said notification was questioned by
various land holders including Smt. Bhanwari Devi, the petitioners''
predecessor in title, before this court by way of Writ Petition
No.211/75. Later, the said writ petition was dismissed as
withdrawn as a compromise was reached between the parties.
According to the said compromise, the respondent UIT had agreed
that 50% of the land belonging to the individual shall be released
from acquisition in lieu of compensation for acquisition of
remaining land. The petitioners were not parties to the
compromise arrived at. In some cases, the compromise was given
effect to but the compromises entered into with Bhanwari Devi
and Shri Maggha Ram were not acted upon by the UIT. In these
circumstances, Shri Maggha Ram preferred a writ petition seeking
directions to the UIT to allot the land in terms of the compromise
whereas Smt. Bhanwari Devi claimed the allotment of land
measuring 600 sq. yard in addition to the area as mentioned in
the agreement and claimed that the agreement dated 8.8.1988
was entered into on account of certain pressures and therefore,
she is not bound by the said agreement and is entitled for the
reliefs as claimed in the writ petition.
It is to be noticed that the matter with regard to Shri
Maggha Ram has attained finality inasmuch as, vide judgment
dated 20.3.03 rendered by a Bench of this court, the judgment of
the learned Single Judge dated 21.1.03, directing release of 50%
of the area of the land in his favour and to hand over possession
thereof, has been upheld.
The writ petition No.3132/93 preferred by Smt. Bhanwari
Devi decided earlier by the learned Single Judge of this court vide
judgment dated 21.1.03 alongwith the present writ petition,
restored to its original number pursuant to the order dated
15.9.08 passed by a Bench of this court in D.B.Special Appeal Writ
No.185/03 and other connected Special Appeals, stands dismissed
by a coordinate Bench of this court vide judgment dated 4.8.15
and thus, the claim of Smt. Bhanwari Devi not to include the land
measuring 2400 sq. yard transferred in favour of the petitioners
and others in her account, the claim for allotment of additional
land and compensation for the land surrendered stands rejected.
The court observed :
"From what has been considered hereinabove, it is apparent that the petitioner has entered into the agreement dated 08.08.1988 (Annex.-4) with open eyes, wherein the land admeasuring 2400 Sq. Yds. of land already transferred by the petitioner was to remain on petitioner''s account and the petitioner was not entitled to any compensation, the present writ petition filed by the petitioner seeking to disown the agreement/terms of the agreement has no merit and the arguments raised in this behalf by the petitioner cannot be sustained."
Learned counsel appearing for the petitioners contended that
the petitioners'' land was never subject matter of acquisition and
therefore, the petitioners cannot be deprived of the beneficial use
of the land. Learned counsel submitted that even if for the
arguments sake, it is assumed that the land in question was under
acquisition then too since mandatory requirements referred to
under Section 52(1) and 52(2) of the Act of 1959 have not been
complied with and no notice was given to the petitioners either
personally or otherwise nor the same was published in the Gazette
nor it was affixed on the conspicuous place in the vicinity and
thus, the acquisition proceeding stands vitiated. Learned counsel
submitted that as a matter of fact, the respondents cannot claim
any right over the land in question on the strength of the
acquisition proceedings initiated inasmuch as, while entering into
agreement with Smt. Bhanwari Devi and determining 50% of the
land under acquisition to be allotted to Smt. Bhanwari Devi, the
land already sold by her inter alia in favour of the petitioners was
deducted and thus, the acquisition proceedings in respect of the
disputed land stands terminated while giving effect to the
agreement entered into by the UIT with Smt. Bhanwari Devi,
which stands approved by the State Government. Learned counsel
submitted that even the claim of Bhanwari Devi for allotment of
the additional land stands rejected by this court vide order dated
4.8.15 passed in Civil Writ Petition No.3132/93 and thus, the
respondent UIT cannot claim any right over the land in question in
respect whereof the acquisition proceedings even otherwise stand
lapsed.
On the other hand, the counsel appearing for the respondent
UIT contended that the land in question was sought to be acquired
vide notification dated 10.10.74 and thus, contention sought to be
raised on behalf of the petitioners that the same was not under
acquisition, is absolutely incorrect. Learned counsel submitted that
in terms of the notification dated 10.10.74 issued under Section
52(1) of the Act of 1959, the land in question stood vested in UIT
free from all encumbrances which was taken possession of and
therefore, on account of subsequent extension of the Land
Acquisition Act, 1894 to the State of Rajasthan and amendments
made to Rajasthan Urban Improvement Trust by Rajasthan Urban
Improvement (Amendment) Act, 1987 and Rajasthan Urban
Improvement (Amendment and Validation) Act, 1990, the State
cannot be divested of the ownership of the land which had already
been vested in it. In support of the contention, learned counsel
has relied upon a decision of the Hon''ble Supreme Court in the
matter of " Pratap & Anr. vs. State of Rajasthan & Ors .", (1996) 3
SCC 1. Learned counsel submitted that the petitioners names do
not find mention in the notification dated 10.10.74 and therefore,
they cannot be said to be persons interested and thus, cannot
claim any compensation in respect of the land in question.
However, it is not disputed that Smt. Bhanwari Devi and Shri
Santokh Singh entered into an agreement with the respondent
UIT, where under it was agreed upon that Smt. Bhanwari Devi and
Santokh Singh shall be given 50% of the land under acquisition
and while determining the 50% of the land to be given to Smt.
Bhanwari Devi and Santokh Singh, 2400 sq. yard land which
includes the land sold to the petitioners herein was deducted from
50% of the land i.e. 6773.50 sq. yard to be given to Bhanwari
Devi and Santokh Singh.
I have considered the rival submissions and perused the
material on record.
Indisputably, vide notification dated 10.10.74 issued by the
State Government under Section 52(1) of the Act of 1959 inter
alia the land measuring 13517 sq. yard shown to be the land
belonging to Shri Santokh Singh and Bhanwari Devi was sought to
be acquired. It is not disputed that before issue of the notification
dated 10.10.74, Smt. Bhanwari Devi had sold the land subject
matter of this writ petition in favour of the petitioners herein, the
details whereof have been set out in para no.6 of the writ petition
yet, in the notification issued, the names of the petitioners herein
were not shown as owner of the land. Be that as it may,
indisputably, during the pendency of the land acquisition
proceedings, the respondent UIT entered into an agreement with
Shri Santokh Singh and Smt. Bhanwari Devi wherein it was agreed
upon that out of 13547 sq. yard land, which includes the land sold
in favour of the petitioners by Smt. Bhanwari Devi, 50% of the
land shall be left for Smt. Bhanwari Devi and remaining land shall
be taken possession of. That apart, it was specifically laid down
that 2400 sq. yard land already sold by Smt. Bhanwari Devi shall
be deducted from 50% of the land to be left out in her favour i.e.
6773.50 sq. yard and thus, Smt. Bhanwari Devi and Santokh
Singh were held entitled only for the land measuring 4377.50 sq.
yard i.e. 2187 sq. yard each. In this regard, the approval granted
by the State Government and the agreement entered into
between the parties pursuant thereto, are self explanatory. The
approval granted by the State Government vide order dated
30.5.86 reads as under:
" I am directed to refer to your letter No.277 dated 10- 08-84 and Chairman''s letter No.20/750 dated 24-10-85 on the subject mentioned above and to convey the approval of the Government on the settlement of dispute about the above land as proposed by the UIT, Jodhpur with the parties on the following conditions:-
50% of the land under acquisition minus 2400 sq. yrds. already sold by Shri Santok Singh and Smt. Bhanwari Devi may be given back to the parties and rest 50% of the land may be taken by UIT. The land which is to be given to the parties is marked ''A, B and C'' on the enclosed map, as proposed vide your letter No.15 dated 6-5-86. 2. No compensation will be payable to the parties for the land which is being taken by the UIT. 3. The parties will have to pay conversion charges @ Rs.36/- per sq. yard in terms of your letter No.15 dated 6-5-86, for the commercial use of the land. 4. The land which is being given to the parties will be subject to the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 and the agreement with the parties should be executed on clearance from the Competent Authority Urban Agglomeration, Jodhpur. 5. Other conditions will be as per draft agreement sent by your letter dated 10-8-84."
The approval granted by the State Government, which forms
part of the agreement entered into between Smt. Bhanwari Devi
and UIT dated 28.6.88, the relevant portion whereof as
reproduced in the order dated 4.8.15 passed by the coordinate
Bench, dismissing the writ petition being No.3132/93, preferred by
Smt. Bhanwari Devi, available on record of the UIT, reads as
under:
"VERNACULAR MATTER OMITTED"
A bare perusal of the approval granted by the State
Government as aforesaid and the agreement entered into between
the parties manifestly show that 50% of the land under acquisition
minus 2400 sq. yard land sold by Santokh Singh and Smt.
Bhanwari Devi was given back to them and no compensation was
payable to them in respect of the land taken possession over by
the UIT. Suffice it to say that the land sold by Smt. Bhanwari Devi
in favour of the petitioners has already been taken into account
and stands excluded while determining the 50% of the land to be
given to Smt. Bhanwari Devi in terms of the agreement and thus,
the respondent UIT cannot claim any right over the land
purchased by the petitioners from Smt. Bhanwari Devi as
aforesaid. In this view of the matter, for all intent and purposes,
the land acquisition proceedings in respect of the land in
possession of the petitioners by virtue of sale deeds executed by
Smt. Bhanwari Devi also stands terminated while giving effect to
the agreement entered into by Smt. Bhanwari Devi with the
respondent UIT.
In view of the fact that the land acquisition proceeding
stands terminated by way of implementation of settlement arrived
at between Smt. Bhanwari Devi and the UIT, the contention
sought to be raised by the counsel for the UIT on the strength of
the decision of the Hon''ble Supreme Court in Pratap & Another''s
case (supra), is devoid of any merit. In view of the discussion
above, in the considered opinion of this court, the said decision
does not help the respondent UIT in any manner.
The applicant Shri Basant Parihar and others, the purchasers
pendente lite, who have preferred application for impleading them
as party respondents, claiming right through the petitioners
herein, cannot be said to be necessary party to the proceedings
and therefore, the application preferred by them for impleading as
party respondents in the matter, is rejected.
In view of the discussion above, the writ petition is allowed.
It is declared that the land acquisition proceedings initiated in
respect of the lands subject matter of this petition stands
terminated in terms of the settlement arrived at by Smt. Bhanwari
Devi with the respondent UIT already given effect to and thus, the
petitioners'' possession over the land in question, cannot be
interfered with and they cannot be deprived of the beneficial use
thereof. No order as to costs.