Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 13940-13944 of 2015, Judgment Date: Dec 01, 2015

  


                                 REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL  NO.  13940   OF 2015
               [ARISING OUT OF S.L.P. (C) NO. 28415 OF 2011]


LALARAM & OTHERS                                               …..APPELLANTS

                                 VERSUS

JAIPUR DEVELOPMENT AUTHORITY & ANR                           . ..RESPONDENTS

                                  WITH

                      CIVIL APPEAL NO.  13941   OF 2015
                [ARISING OUT OF S.L.P. (C) NO. 29515 OF 2011]


CHOTU RAM                                                       …..APPELLANT

                                 VERSUS

JAIPUR DEVELOPMENT AUTHORITY & ANR                           . ..RESPONDENTS

                                   WITH

                       CIVIL APPEAL NO. 13942  OF 2015
                [ARISING OUT OF S.L.P. (C) NO. 36111 OF 2011]

KANA RAM & OTHERS                                               …..APPELLANTS

                                     VERSUS

JAIPUR DEVELOPMENT AUTHORITY & ANR                            . ..RESPONDENTS

                                      WITH

                      CIVIL APPEAL NO.  13943  OF 2015
                [ARISING OUT OF S.L.P. (C) NO. 36175 OF 2011]

MADAN LAL & OTHERS                                             …..APPELLANTS

                                   VERSUS
JAIPUR DEVELOPMENT AUTHORITY                                    ..RESPONDENT

                                     WITH

                      CIVIL APPEAL NO.  13944  OF 2015
                [ARISING OUT OF S.L.P. (C) NO. 36179 OF 2011]


RUKMANI DEVI & OTHERS                                          …..APPELLANTS

                                    VERSUS

JAIPUR DEVELOPMENT AUTHORITY & ANR                           . ..RESPONDENTS


                               J U D G M E N T

AMITAVA ROY,J.

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 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 counsel for the appellants in Civil Appeals arising out of  S.L.P.(C)
Nos. 28415 of 2011 and 29515 of 2011, Ms. Bina.  Madhavan,  learned  counsel
for the appellants in Civil Appeals arising out of  S.L.P.  (C)  Nos.  36111
and 36179 of 2011, Mr. Sakal Bhushan, learned counsel for the appellants  in
Civil Appeal arising out  of  S.L.P.  (C)  No.  36175  of  2012,   Mr.  C.A.
Sundaram, learned senior counsel for the  respondent  No.  1  and  Mr.  S.S.
Shamshery, learned counsel for the respondent No. 2.
5.          Filtering out the unnecessary details, the  indispensable  facts
are that  the  lands  of  the  appellants  situated  at  Village  Boytawala,
District  Jaipur  was  acquired  by  the  State  under  the  Rajasthan  Land
Acquisition  Act,  1953  (for  short,  hereinafter  to  be  referred  to  as
“Rajasthan Act”) and the  Notification  under  Section  4  thereof  to  this
effect was issued on 8.5.1981.  To reiterate, 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 by  its  decision
dated 11.4.1994.  The determination of market value of  the  lands  made  by
the Reference Court was unsuccessfully challenged by the Authority  and  its
appeals were dismissed by the High Court  on  30.8.2000.   The  compensation
awarded at Rs. 15000/- per bigha,  thus  attained  finality.   Compensation,
the above notwithstanding, was deposited in the court concerned @  Rs.  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 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, that the concerned committee would as far as  possible  make  an
endeavour to allot such land to the land losers near the scheme area.
7.           The  circular  No.  F6(19)/UDD/89,  Jaipur   dated   13.12.2001
occupying the centre stage of the debate was thereafter issued by the  Under
Secretary to the Department of  Urban  Development  with  reference  to  the
circular/notification  No.  F.6(9)/UDH/89  dated  21.9.1999,   adverted   to
hereinabove.   The  said  circular  took  note  of  the  pendency  of   land
acquisition matters in which, though award had been passed but  compensation
could not be paid to the land owners. It  noted  as  well,  that  said  land
owners  in  the  past  could  not  submit  their  options  within  the  time
prescribed due to lack of information about the provision  of  allotment  of
developed land in lieu of cash compensation.    The  circular  recorded  the
decision of the State, to the effect that in old cases in  which  award  had
been passed but compensation could not be made to the  khatedars,  one  more
opportunity ought to be granted to  them.    As  a  corollary,  thereby  the
khatedars/land owners were left at liberty to  exercise  their  option  till
28.2.2002 to be allotted 15% developed  land  in  the  scheme  area  by  the
allotment committee of the concerned organization, after the  approval  from
the State.  The  composition  of  the  Committee  in  the  eventualities  as
mentioned  therein  was  also  delineated.   The  conditions  for  allotment
required, inter alia, that the land to  be  allotted  was  to  be  developed
residential land located “normally in the same scheme area and at  the  very
place from where the land had been acquired” and not a commercial land.
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 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   finding   that
appellants were entitled to be allotted  15%  developed  land  in  Vidyadhar
Nagar Scheme, as plots  were  available  thereat.   Thereby  the  respondent
J.D.A was directed  that  the  appellants  be  allotted  developed  land  at
Vidyadhar Nagar in lieu of their acquired land and also restrained  it  from
allotting or selling such land to others.  In arriving at  this  conclusion,
as the narration in the decision would reveal, the Tribunal took  cognizance
of the fact that the land of the appellants situated  in  Village  Boytawala
was acquired for Field Firing Range, in exchange whereof,  the  Ministry  of
Defence had handed over to the  JDA,  land  at  Vidyadhar  Nagar.   It  also
recorded the fact that the JDA had admitted in its reply that the  price  of
the offered land in Lalchandpura and Anantpura Villages  was  negligible  in
comparison to that of Vidyadhar Nagar.  It, thus held  the  view,  that  the
proposal for allotment of land at Lalchandpura  and  Anantpura  Villages  to
the appellants, by distinguishing them from others  to  whom  15%  developed
land in lieu of compensation had  been  allotted  in  Vidyadhar  Nagar,  was
inappropriate.
11.         Time rolled by without making any endeavour on the part  of  the
JDA, to comply with the determination of the  Tribunal.   It  was,  at  this
juncture, that the JDA, after two years addressed a letter dated  16.10.2007
to the Deputy Secretary (P), Chief  Minister  Office,  Rajasthan  Government
reciting summarily the  above  facts.   While  admitting  that  out  of  the
khatedars, alike the appellants, whose land at Boytawala  village  had  been
acquired, two namely; S/Sh. Sedu and Nathu had been allotted  15%  developed
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 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 Boytawala,  acquired  for  the  Field  Firing
Range, the JDA emphatically countered the  said  claim   pleading  that  not
only land at Vidyadhar Nagar was unavailable for allotment,  being  reserved
for various purposes under the Group Housing  Scheme,  the  Tribunal  lacked
jurisdiction  to entertain such a prayer and  in  particular  in  issuing  a
direction to allot such land at  Vidyadhar  Nagar  to  the  appellants.   In
response to the appellants’ contention that in lieu of the compensation  not
paid to them, they were entitled to 15% developed land  at  Vidyadhar  Nagar
as  an  adequate   substitute   thereof   in   terms   of   the   Government
circular/policy dated 13.12.2001 and that the denial of the benefit  of  the
policy was apparently discriminatory, the JDA,  amongst  others,  sought  to
substantiate that the  land  at  Vidyadhar  Nagar  was  much  more  valuable
compared to the acquired land at Boytawala and the  price  of  the  land  at
Lalchandpura and Anantpura  Villages  was  adequately  commensurate  to  the
land acquired.   While alleging that the awarded amount had  been  deposited
in the  concerned  Court but not  withdrawn  by  the  appellants,  the  JDA,
however, admitted that the area of the 15% developed  land  to  be  allotted
was 6539 sq. meters but maintained that  a  plot  of  this  extent  was  not
available at Vidyadhar Nagar.
15.         The State in turn pleaded, that the  policy  decision  had  been
taken under  the  chairmanship  of  the  Minister  of  Department  of  Urban
Development on 18.10.2001, whereafter consequential notifications  had  been
issued from time to time.  It however urged as well, that in  compliance  of
the award passed by the Land Acquisition 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  Rs.  1500
per bigha accorded by the Land Acquisition Officer to Rs. 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.  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(2).   It  also
mentioned that the circular dated 13.12.2001 was bereft of any reference  to
the JDA Act, and thus the decision contained therein could not be  construed
to be one under the said statute.  Though it did notice  that  the  decision
was taken at the level of departmental minister and did relate to  the  land
acquired under the Rajasthan Act, it was of the view that it  could  not  be
said to have been taken under any provision of the JDA Act.   Therefore,  it
has held that the circular dated  13.12.2001  did  not  have  any  statutory
force.
18.         Referring to the decision of this Court in particular in  Jaipur
Development Authority and Others vs. Vijay Kumar Data &  Another  (2011)  12
SCC 94 and in State of Bihar  Vs. Kripalu  Shankar  (1987)  3  SCC  34,  the
Division Bench entered a finding on  the  above  aspect  that  the  decision
contained in the circular dated 13.12.2001 being not in conformity with  the
precept of Article 166 of the Constitution of India, it  was  therefore  not
enforceable in law.   It held the view that, even if, it could be  construed
to be a policy decision  enforceable  in  law,  it  was  not  open  for  the
Tribunal to direct allotment of land at Vidyadhar Nagar  as  the  value   of
the  land  was  highly  disproportionate  to  the  one  acquired  from   the
appellants.  It recorded the finding that apart from the fact that  land  at
Vidyadhar Nagar was not available, the plea of discrimination urged  by  the
appellants  on  the  ground     that   two   of   the   similarly   situated
khatedars/beneficiaries  had  been  offered  land  at  Vidyadhar  Nagar  was
untenable.  It recorded that the land at Vidyadhar Nagar had  been  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 @  Rs.
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
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 Boyatwala 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  &  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 on the same passed?  Copies of  the  order
dealing with the request for allotment of land be also placed on record.

Query No.5. Do the appellants before this Court  qualify  for  allotment  of
land in lieu of acquired land in terms of the policy? If so,  is  the  State
Government/Jaipur Development Authority ready and willing to  make  suitable
allotment of land in accordance with the policy in their favour?

Query No.6. Is the land offered to petitioners  in  Special  Leave  Petition
No.28415 of 2011 in Anantpura/Lalchandpura on the outskirts of  City  Jaipur
still available for allotment in their favour?

Query No7. Whether land referred to in Circular dated 16.10.2007,  found  at
page 157 of Special Leave Petition No.28415 of 2011, issued  by  the  Jaipur
Development Authority is available with the  Jaipur  Development  Authority?
In case, it is available, has  the  area  been  reserved  for  any  specific
purpose?”


21.         To be exact in the portrayal, it would  be  apt  to  extract  ad
verbatim the averments in the affidavit filed on  22.01.2013  on  behalf  of
the Urban Development Department of Rajasthan Government.   Precise  answers
to the queries No.1, 2 and 7  have been quoted hereinbelow:
“Response to Query No.1. – It is respectfully submitted that  the  State  of
Rajasthan has issued some  Policy  circulars  of  giving  land  in  lieu  of
compensation.  The details of such circulars dated  21.09.1999,  31.12.2001,
22.04.1992 and 27.10.2005 are as follows:

Policy Circular dated 22.04.1992: Allotment of 12% developed  land  in  lieu
of cash compensation  for  the  acquired  land  was  provided  for  in  this
circular.  This circular was issued with the approval of  Minister-in-Charge
of the Department.
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.
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.
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

 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.

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.

It is  also  respectfully  submitted  that  each  Department  is  headed  by
Minister in Charge and  all  the  respective  functions  are  enumerated  in
allocation of concerned department.   For  example,  the  Urban  Development
Department work is enumerated at item no. XI-D (Urban Development &  Housing
Department) and which includes acquisition of land for  JDA/UIT  Scheme  and
Housing Board.

There are also standing orders under Rule 21 which are issued  for  purposes
of governing the concerned Department with the Minister-in-Charge  as  Head.
It would be relevant to mention that the standing orders issued  under  Rule
21, at Item 106 it was clearly mentioned  that  the  Minister-in-Charge  was
competent authority in matters relating to land  acquisition  and  also  for
releasing the land under acquisition.  The competent authority  in  relation
to land acquisition/release of land under acquisition shall be the  Minister
in  Charge.   However,  by  notification  dated  08.07.2004,  the  rules  of
Business  Allocation  have   been   amended   and   now   the   land   under
acquisition/release of land from acquisition has  been  brought  within  the
ambit of second schedule, and by virtue of Rule 8 read in  conjunction  with
Rule 31, the file has to be approved by Hon’ble Chief Minister.

Since the matter of land in lieu of compensation  is  considered  as  matter
relating to acquisition or for releasing the land under acquisition,  it  is
within the ambit  of  Rule  21  and  therefore  the  Minister-in-Charge  was
capable of said decision.  It is relevant to mention  that  as  far  as  the
circular dated 27.10.2005 is concerned, it has been  duly  approved  by  the
Hon’ble Chief Minister and therefore the Circular  of  27.10.2005  does  not
suffer from legal infirmity that the Rules of Business were not followed.

Response to Query No.7

The land mentioned in the letter dated 16.10.2007 is still vacant and  there
are plots of different categories like individual residential  plots,  group
housing, commercial, institutional and reserved for  other  uses.   Some  of
the land is simply marked 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 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   had   been   amended   and   the   subject   of   land    under
acquisition/release of land from acquisition had  been  brought  within  the
ambit of Second Schedule consequent whereupon, by  virtue  of  Rule  8  read
with Rule 31 of Rules, any decision with regard thereto was to  be  approved
by the Chief Minister of the State. The affidavit  elaborated  that  as  the
issue of land in lieu  of  compensation  was  one  relating  to  acquisition
and/or release of land under acquisition, it was within the  ambit  of  Rule
21 of Rules and, therefore, the Minister-in-Charge was capable of  taking  a
decision in connection therewith.  The pleaded stand of  the  State  on  the
competence of the Minister-in-Charge of the  Urban  Development  Department,
at the relevant point of time to take a final decision with  regard  to  the
issue of land in lieu of compensation in the context of the policy  circular
dated 13.12.2001 thus did not admit of any ambiguity.
24.         The affidavit further stated that there was  no  developed  land
in Boytawala and Niwaru range and that out of the 54 land  owners  affected,
45   including    the    appellants    had    been    allotted    land    at
Lalchandpura/Anantpura.  That two out of the affected land owners  had  been
allotted land under such policy circular at Vidyadhar Nagar was admitted.
25.         It was disclosed as well that Vidyadhar was located  5  km  away
from Boytawala range whereas Lalchandpura/Anantpura  were  situated  35  kms
and 14 kms respectively from such range.  As  would  be  apparent  from  the
reply to query No.7, the State admitted that the land referred to in  letter
dated 16.10.2007 issued by the JDA,  and  located  at  Vidyadhar  Nagar  was
still vacant. It  was,  however  maintained  that  the  plots  therein  were
identified for residential,  group  housing,  commercial  and  institutional
purposes.
26.         In course of the hearing of these appeals,  this  Court  in  its
order dated 07.05.2015 recorded the submission advanced  on  behalf  of  the
JDA   that  although  sufficient  land  was   available   at   Lalchandpura,
Boytawala, Anantpura and Mansarampura, those 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  |Name of Schemes       |Total available land |
|       |No.       |                      |for allotment        |
|1      |11        |Rohini Nagar – I      |50598.22 Sq. mtr.    |
|2.     |11        |Anupam Vihar          |50598.22 Sq.mtr.     |
|3.     |13        |Pitambara             |50598.22 Sq. mtr.    |
|       |          |Rajbhawan             |                     |
|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  to
the appellants, these lands were situated in the  rural  belt  and  were  in
fact grazing plots, totally  undeveloped  and  shorn  of  any  attribute  of
development as contemplated by the policy  circular  dated  13.12.2001.   In
addition to the photographs of the plots offered by the JDA, the  appellants
in a tabular form also depicted the relevant features thereof,  excerpts  of
particulars of which are extracted herein below:
|Sr.No. |Name of     |Nature of land     |Year   |Amenities    |
|       |scheme      |                   |       |Available    |
|1      |Rohini Phase|Pasture            |2005   |No Road,     |
|       |I           |(Charagah/grazing) |       |water,       |
|       |            |Totally undeveloped|       |electricity, |
|       |            |and in rural belt  |       |drainage,    |
|       |            |                   |       |sewerage,    |
|       |            |                   |       |etc.         |
|       |            |                   |       |Not a single |
|       |            |                   |       |house/flat is|
|       |            |                   |       |constructed  |
|       |            |                   |       |in the whole |
|       |            |                   |       |scheme       |
|       |            |                   |       |36.80 Km from|
|       |            |                   |       |Central      |
|       |            |                   |       |Jaipur       |
|2      |Anupam Vihar|Both villages      |2008   |No Road,     |
|       |            |Pasture            |       |water,       |
|       |            |(Charagah/grazing) |       |electricity, |
|       |            |Totally undeveloped|       |drainage,    |
|       |            |and in rural belt  |       |sewerage,    |
|       |            |                   |       |etc.         |
|       |            |                   |       |Not a single |
|       |            |                   |       |house/flat is|
|       |            |                   |       |constructed  |
|       |            |                   |       |in the whole |
|       |            |                   |       |scheme       |
|       |            |                   |       |25.4 Km from |
|       |            |                   |       |Central      |
|       |            |                   |       |Jaipur       |
|3.     |Pitambara   |Khasra No.2 (Area  |2006   |No Road,     |
|       |Scheme      |139-01 hectares);  |       |water,       |
|       |            |Khasra No.3 (Barren|       |electricity, |
|       |            |land; Area 93-06   |       |drainage,    |
|       |            |hectares) Khasra   |       |sewerage,    |
|       |            |No.5 (barren land; |       |etc.         |
|       |            |Area 2-01          |       |Not a single |
|       |            |hectares); Khasra  |       |house/flat is|
|       |            |No.39-Area 3-16    |       |constructed  |
|       |            |hectares           |       |in the whole |
|       |            |                   |       |scheme       |
|       |            |                   |       |             |
|       |            |                   |       |35.00 Km from|
|       |            |                   |       |Central      |
|       |            |                   |       |Jaipur       |
|       |Rajbhawan   |Pasture            |2006   |No Road,     |
|       |Yojana      |(Charagah/grazing) |       |water,       |
|       |            |Totally undeveloped|       |electricity, |
|       |            |and in rural belt  |       |drainage,    |
|       |            |                   |       |sewerage,    |
|       |            |                   |       |etc.         |
|       |            |                   |       |Not a single |
|       |            |                   |       |house/flat is|
|       |            |                   |       |constructed  |
|       |            |                   |       |in the whole |
|       |            |                   |       |scheme       |
|       |            |                   |       |             |
|       |            |                   |       |35.00 Km from|
|       |            |                   |       |Central      |
|       |            |                   |       |Jaipur       |
|4.     |Rohini      | Pasture           |2006   |Same as above|
|       |Phase II    |(Charagah/grazing) |       |–            |
|       |            |Totally undeveloped|       |36.80 Km from|
|       |            |and in rural belt  |       |Central      |
|       |            |                   |       |Jaipur       |
|5.     |Abhinav     |Pasture            |2014   |No Road,     |
|       |Vihar Vistar|(Charagah/grazing) |       |water,       |
|       |            |Totally undeveloped|       |electricity, |
|       |            |and in rural belt  |       |drainage,    |
|       |            |                   |       |sewerage,    |
|       |            |                   |       |etc.         |
|       |            |                   |       |Not a single |
|       |            |                   |       |house/flat is|
|       |            |                   |       |constructed  |
|       |            |                   |       |in the whole |
|       |            |                   |       |scheme       |
|       |            |                   |       |31.70 Km from|
|       |            |                   |       |Central      |
|       |            |                   |       |Jaipur       |
|6.     |Harit Vihar | Pasture           |2010   |No Road,     |
|       |            |(Charagah/grazing) |       |water,       |
|       |            |Totally undeveloped|       |electricity, |
|       |            |and in rural belt  |       |drainage,    |
|       |            |                   |       |sewerage,    |
|       |            |                   |       |etc.         |
|       |            |                   |       |Not a single |
|       |            |                   |       |house/flat is|
|       |            |                   |       |constructed  |
|       |            |                   |       |in the whole |
|       |            |                   |       |scheme       |
|       |            |                   |       |             |
|       |            |                   |       |31.70 Km from|
|       |            |                   |       |Central      |
|       |            |                   |       |Jaipur       |

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  affidavit  dated
16.07.2015 and the lands suggested by them to be allotted in  terms  of  the
policy circular dated 13.12.2001 as depicted in the tables hereunder:
I
|DISTANCE FROM CENTRAL POINT JAIPUR OF SCHEMES/VILLAGES EARLIER |
|PROPOSED BY JAIPUR DEVELOPMENT AUTHORITY BY AFFIDAVITS DATED   |
|17.09.2014 AND 26.04.2015 AND WHICH HAV EBEEN REJECTED BY THIS |
|HON’BLE COURT VIDE ORDER DATED 07.05.2015                      |
|Srl. No. |Scheme/Village                 |Distance from       |
|         |                               |Central Point Jaipur|
|1        |Lal Chandpura                  |17 KM               |
|2        |Mansarampura (Not a JDA scheme)|19.30 KM            |
|3        |Boytawala                      |14.70 KM            |
|4        |Anantpura                      |39 KM               |

II
|DISTANCE FROM CENTRAL POINT JAIPUR OF SCHEMES/VILLAGES NOW     |
|PROPOSED BY JAIPUR DEVELOPMENT AUTHORITY BY AFFIDAVIT DATED    |
|16.07.2015 PURSUANT TO ORDER OF THIS HON’BLE COURT DATED       |
|07.05.2015.                                                    |
|Srl. No. |Scheme/Village                 |Distance from       |
|         |                               |Central Point Jaipur|
|1        |Rohini Phase I                 |36.80 KM            |
|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             |

30.         The State  followed up the chain of pleadings by its  additional
affidavit dated 28.09.2015 to state that in addition  to  the  Lalchandpura,
land at Boytawala was also offered to the appellants  and  accused  them  of
unreasonably rejecting the options of developed land being offered  to  them
from time to time.   Reference  to  land  at  Anand  Vihar  JDA  Residential
Developed Scheme situated near Ajmer Road at a  distance  of  3-4  kms  from
main National Highway No.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 is  grossly  illegal,  arbitrarily,  unconstitutional,  unfair  and
unjust.  According to the learned senior counsel, the  series  of  circulars
on the issue of  allotment  of  developed  land  in  lieu  of  compensation,
commencing from the one dated 22.04.1992 do assuredly  attest  a  consistent
decision of the State to pursue the same as its solemn policy qua  the  land
oustees responding thereto and thus the impugned conduct of the  respondents
in reneging therefrom besides being  whimsical,  arbitrary   and  highhanded
also tentamounts to a patent  infraction  of  their  unassailable  right  to
property 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 the JDA are  perceptionally
and essentially one in the process, Dr. Dhawan  endeavoured  to  demonstrate
as  well  that  in  all  the  relevant  circulars  starting  from  the  date
22.04.1992 on the issue, a copy thereof had been marked to  the  Secretariat
of the Chief Minister of the State. The learned senior counsel  referred  to
the Rules in details to evince that on the date of issuance of the  circular
dated 13.12.2001, the departmental minister  was  exclusively  competent  to
take a decision on the issue of acquisition and release of land in  lieu  of
compensation and, thus the respondents were  bound  thereby.   That  in  the
memorandum of appeal 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  nature,  the
policy circular dated 13.12.2001 could not have been  rendered  non-existent
on the ground that the same had not been expressed and issued  in  the  name
of the Governor of the State or  had  not  been  authenticated  as  required
under the said provision, he maintained.  Dr. Dhawan  also  urged,  that  as
the interpretation of the policy circular dated  13.12.2001,  having  regard
to the theme thereof, has to be purposively liberal and fructuous  vis-à-vis
the rights of the land users under  Article  300A  of  the  Constitution  of
India, the  Tribunal  was  perfectly  justified,  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  sustained  would
result in their undue enrichment which is impermissible in  law,  he  urged.
Rejecting the land at  Lalchandpura  and  other  sites  as  offered  by  the
respondents in their counter affidavit as wholly undeveloped, Mr. Mehta  has
asserted that insistence for acceptance of these lands is apparently in  the
exercise of superior bargaining power of the State and ought  to  be  firmly
disapproved.  According to him, the appellants have been wrongly  non-suited
by the Division Bench of the High Court on the ground of  non-compliance  of
Article 166 (1) & (2) of the Constitution  of  India.   Mr.  Mehta  insisted
that in face of the rejection  of  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
Vs. The State of Bombay & Ors., 1952 SCR 612, R. Chitralekha  Vs.  State  of
Mysore & Ors., AIR 1964 SC 1823, Hari Ram and Anr. Vs. State  of  Haryana  &
Ors., (2010) 3 SCC 621.
40.         Per contra Mr. Sunderam has assertively refuted  the  status  of
the circular dated 13.12.2001 as one conveying  a  policy  decision  of  the
State  on the issue of land in lieu of  compensation,  enforceable  in  law.
He has urged that, as in view of the amendment to the  Rules  occasioned  on
05.03.1999, prior to the date of the circular in question  i.e.  13.12.2001,
the approval of the Chief Minister was an  indispensible  pre-condition  for
the validity thereof, the same is of no avail  to  the  appellants  for  all
intents and purposes.  As the 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 power  of
judicial review should not permit the same.  Apart from contending that  the
circular dated 13.12.2001 besides being non complaint  with  Article  166(2)
of the Constitution of India, is even otherwise not enforceable in law,  the
learned senior counsel contended that the same at the  best  amounts  to  an
offer to allot 15% developed land, if available within the scheme  area  and
if not, in an adjacent locality.  Thereby the land oustees were not  clothed
with an inviolable right to demand any land of  their  choice  by  laying  a
counter offer, he maintained.  Mr. Sunderam urged that neither the  circular
dated 13.12.2001 does envisage such 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 others vs. R. Krishnamurthy (2015) 2  SCC  796,  Goa  Glass
Fibre Ltd. vs. State of Goa & Anr., (2010) 6 SCC 499, MRF Ltd.  vs.  Manohar
Parikar & Ors., (2010) 11 SCC 374, Rajasthan  Housing  Board  vs.  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) had either  been  pleaded  or  urged,  the  learned
senior counsel insisted that even  otherwise,  a  conjoint  reading  of  the
provisions  of  the  Rules  would  amply  attest  that  the  circular  dated
13.12.2001 indeed contained a coeval state policy of allotment of  developed
land in favour of land losers in   lieu  of  compensation  and  that  it  is
unquestionably enforceable in law against the  respondents  i.e.  the  State
and the JDA acting in tandem.  Dr. Dhawan thus urged that, in the  attendant
factual and legal premise, an appropriate  writ  of  mandamus  ought  to  be
issued as sought 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:
Chairman, Indore Vikas Pradhikaran vs.  Pure  Industrial  Coke  &  Chemicals
Ltd. and others (2007)8 SCC 705;
Steel Authority of India Limited vs. Sutni Sangam and others (2009)  16  SCC
1;
Dev Sharan and Others vs. State of Uttar Pradesh and  others  (2014)  4  SCC
769;
State of Haryana vs. Mukesh Kumar and others (2011) 10 SCC 404;
Union of India vs. Anglo Afghan Agencies (1968) 2 SCR 366;
Motilal Padampat Sugar Mills Co. Ltd. vs. State of U.P. (1979) 2 SCC 409;
State of Punjab vs. Nestle India Limited and another  (2004) 6 SCC 465;
Monnet Ispat and Energy Limited vs. Union of India and others (2012) 11  SCC
1;
S.V.A. Steel Re-Rolling Mills Limited and Others vs.  State  of  Kerala  and
others (2014) 4 SCC 186;
Food Corporation of India vs. M/s. Kamdhenu Cattle Feed Industries (1993)  1
SCC 71.

43.         The contentious pleadings and the accompanying  documents  along
with the competing arguments have received our in-depth consideration.   The
fulcrum of the debate, though is the circular  dated  13.12.2001,  construed
as a communiqué of state policy, on acquisition of land and land in lieu  of
compensation, to be awarded in respect of the acquired land, the  appellants
herein seem to  have  been  non-suited  as  well  on  the  ground  that  the
appeal/reference preferred/laid by them before the  Tribunal  under  Section
83 of the JDA Act, was not maintainable, being impermissible.   Though  this
issue need not detain us, as the rival 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,
co-ordinating 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
Authority may, by notification in the Official Gazette,  specify  to  be  an
amenity for the purpose of this Act.

2(5) “development” with its grammatical variations, means the  carrying  out
of building, engineering, mining or other operations in, or over,  or  under
any land (including land under river,  lake  or  any  other  water)  or  the
making of any material change in any building or land or in the use  of  any
building or land, and includes re-development and lay-out, and  sub-division
of any land  and also the provision of amenities and  projects  and  schemes
for development of agriculture, horticulture, floriculture, forestry,  dairy
development, poultry farming, piggery, cattle breeding, fisheries and  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 order or notice  of  the  JDA  to  file  an  appeal  in  the
Tribunal within thirty days of the communication of such order or notice  to
him.   Under sub-clause 8(b), any person aggrieved by any threatened act  or
injury from the JDA affecting his rights,  may  refer  the  dispute  to  the
Tribunal within thirty days  of  the  communication  or  knowledge  of  such
threatened act or injury.  The provision mandates that the decision  of  the
Tribunal in such appeal or reference would be final.   Section  90   of  the
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  approach
the Tribunal, to recall, was the letter dated 1.7.2005 of Urban  Development
Department of the State to the JDA, conveying its sanction for allotment  of
land at Lalchandpura and Anantpura Villages to the land losers in  terms  of
the circular dated 13.12.2001 and the draw of lots  conducted  on  20.7.2005
pursuant thereto as well as the allotment of land on the basis thereof.   In
view of the functional amalgam of the State and the JDA as  contemplated  by
the Act, and having regard to the composition of the entity  conducting  the
lots, we are of the view that the appellants ought not to be  non-suited  on
the specious plea that the order impugned by them before  the  Tribunal  and
the exercise undertaken pursuant 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  authenticated  as
obligated by Article 166(1) and (2) of the Constitution of  India.   Article
166(3) did not surface for any analysis in the decision.  Even  the  grounds
formulated by the JDA in the writ petition as well as  in  the  writ  appeal
before the High Court did  not  pose  a  challenge  to  the  circular  dated
13.12.2001 to be invalid and non-construable as policy, being in  derogation
of Rules.
50.         The  documents  laid   at  the  disposal  of  this  Court  being
official circulars/communications issued by  the  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, Jaipur  dated
21.09.1999  in  continuation  of  the  one  dated  22.4.1992,  referred   to
hereinabove, whereby the decision of the State  to  provide  developed  land
equivalent to 15% of the acquired land to the khatedar/land  owner  in  lieu
of land being acquired, was communicated.  It was clarified,  that  in  case
of allotment of 15% developed  plots,  no  separate  compensation  would  be
payable.
52.         A meeting under the chairmanship of  the  departmental  minister
was thereafter convened on 18.10.2001 to formulate  a  composite  policy  on
various aspects and procedures in relation to  allotment  of  15%  developed
land, in lieu of the land acquired,  in  land  acquisition  cases.   It  was
discussed,  amongst  others,  that   in   many   land   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 eventualities.
53.         The circular dated 13.12.2001, the pivot of the lis,  is  really
in continuation of the circulars preceding it and is in reiteration  of  the
otherwise unequivocal and unreserved decision of the  State   to  offer  15%
developed land to the khatedars/land owners in lieu of compensation for  the
land acquired.  This is amply testified, amongst others,  by  the  reference
of the Circular dated 21.9.1999, referred  to  hereinabove.   The  following
extract  of  the  circular   dated   13.12.2001,   in   our   estimate,   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
same to be the 15%  developed  land  in  lieu  of  compensation  as  already
resolved.  The  circular  dated  27.10.2005  issued  by  the  Government  of
Rajasthan, Urban Development and Housing  Department  thereafter  sought  to
enhance the extent of developed area to be allotted in lieu of the  acquired
lands/compensation from 15% to 25%  (20%  residential  and  5%  commercial);
Significantly, none of the  circulars/letters  dealing  with  the  issue  of
allotment of developed land in lieu of compensation, was issued in the  name
of Governor but a copy thereof had been marked to the Secretary of the  JDA.
 However those dated 13.12.2001, 1.7.2005 and 27.10.2005 had been  forwarded
also to the Secretariat of the Chief Minister of the 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|Work shall  |State    |Shall      |
|     |            |be        |be disposed |Minister |presented  |
|     |            |examined  |of by       |         |before the |
|     |            |by        |            |         |Minister   |
|1    |2           |3         |4           |5        |6          |
|1 to |-           |-         |-           |-        |-          |
|105  |            |          |            |         |           |
|106  |Matters     |Group     |Dy.         |-        |Minister   |
|     |relating to |Officer   |Secretary/Se|         |           |
|     |Land        |          |cretary     |         |           |
|     |acquisition |          |            |         |           |
|     |&           |          |            |         |           |
|     |de-acquisiti|          |            |         |           |
|     |on          |          |            |         |           |
|107  |-           |-         |-           |-        |-          |
|to   |            |          |            |         |           |
|110  |            |          |            |         |           |

56.          The  notification  No.  F.27(2)Cab/99,  Jaipur  dated  5.3.1999
issued  under  Article  166  (2)  and  (3)  of  the  Constitution  of  India
occasioned an  amendment,  amongst  others,  to  Rule  31(1)  of  the  Rules
including therein, inter alia, the following clause:
“(ii) Cases raising questions of policy  and  all  cases  of  administrative
importance not already covered by the Second Schedule.”

57.         Logically thus, by  order  dated  8.7.2004      issued  as  well
under  Rules 21 and  22  of  the  Rules  the  working  arrangement  for  the
transaction  of  the  departmental  business    on   matters   relating   to
deacquisition of land under acquisition and acquired land was redesigned  as
hereunder:
|SN         |Post        |Work shall |Work shall be |Shall be    |
|           |            |be examined|disposed of by|presented   |
|           |            |by         |              |before the  |
|           |            |           |              |Minister    |
|1 to 115   |-           |-          |-             |-           |
|D. As per rule 31 of the Rules of Business and final disposal  |
|of the matters relating to the Department mentioned in II      |
|Schedule under Rule 8                                          |
|116 to 117 |            |           |              |            |
|118        |Matters     |Group      |Dy. Secretary/|Minister/   |
|           |relating to |Officer    |Secretary/ Pr.|With        |
|           |de-acquisiti|           |Secretary     |approval of |
|           |on of land  |           |              |Chief       |
|           |under       |           |              |Minister    |
|           |acquisition |           |              |            |
|           |and acquired|           |              |            |
|           |land.       |           |              |            |
|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  Section  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 provides  that  the  Governor  shall,  on  the
advice of the Chief Minister, allot among  the  Ministers  or  Ministers  of
State the business of Government, by assigning one or  more  departments  to
the charge of a Minister.  Rule 6 which prescribes the constitution  of  the
departments of the Secretariat, enjoins that it would ordinarily consist  of
a Secretary to the Government  who  shall  be  the  official  head  of  that
department and of such other officers and servants  subordinate  to  him  as
the Government may determine.
61.         As per Rule 8, subject to  the  orders  of  the  Chief  Minister
under Rule 14, all cases referred to in the Second  Schedule  to  the  Rules
would  be  brought  before  the  Council  or  a  Sub-committee  thereof   in
accordance with the provisions of the Rules contained in Part  III.      The
restriction in matters  in  which  finance  department  is  required  to  be
consulted under Rule 10 is carved out in the proviso to Rule 8.  Rule  9  in
categorical terms underlines that the Minister-in-charge or the Minister  of
State-in-charge of a department  shall  be  primarily  responsible  for  the
disposal of the business pertaining  to  that  department.   While  Rule  11
enjoins that all orders or instruments made or executed by or on  behalf  of
the Government of Rajasthan shall be expressly made or executed in the  name
of the Governor, Rule 12 requires that every  order  or  instrument  of  the
Government  shall  be  signed  by  a  Secretary,  a  Special  Secretary,  an
Additional Secretary, 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  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 the Minister-in-Charge or  the
Chief Secretary.   Reverting to the Order  dated  20.7.1998  which  patently
replicated the standing order contemplated under Rules  21  and  22  of  the
Rules  and was in force on the date on which the circular  dated  13.12.2001
was issued, it authorised  the departmental  minister  exclusively  to  deal
with and take a  decision  on  matters  relating  to  land  acquisition  and
deacquisition.  Our attention has not been drawn to any  other  order  under
the Rules after the  amendment  on  5.3.1999,  superseding  the  same.   The
earliest in point of time as available is one dated  8.7.2004,  whereby  the
departmental minister with the approval  of  the  Chief  Minister  had  been
authorised to take decision on matters relating  to  deacquisition  of  land
under acquisition and acquired land.  Apart from the fact  that  both  these
Orders are evidently under  the  hand  of  the  departmental  minister/state
minister (independent charge), the unmistakable inference is that these  had
been issued with the sentient awareness of the prescripts of the Rules.
65.         To reiterate,  the  State  in  its  additional  affidavit  dated
22.3.2013 in response to a categorical query of this  Court  as  to  whether
the circular dated 31.12.2001 did convey a policy decision on the  issue  of
allotment of land in lieu of  land averred in clause (b) in answer to  query
No. 1 as hereunder:
 “Policy Circular dated 21.9.1999: 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.”

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 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 enforceable State policy. In any view of the  matter,  the
State Government had acted on the circular in allotting  developed  land  to
others and, thus under the shield of repugnance of the Rules, it  cannot  be
permitted to resile from its policy intended to be invoked.
69.         The authorities cited at the Bar now need be traversed  to  test
the conclusions made.  The propositions contained therein, being  dominantly
structured on the textual  facts,  reference  thereof  in  bare  minimum  is
unavoidable.
70.         In Dattatreya Moreshwar (supra), before a Constitution Bench  of
this Court, in challenge was the order of confirmation of the  detention  of
the petitioner under the Preventive Detention Act, 1950, amongst  other,  on
the ground that it was with a confidential letter of the  Secretary  to  the
Government of Bombay, Home Department and the same not being  expressed/made
in the name of Governor, as required by Article 166(1) of  the  Constitution
of India, was not in proper legal form.  It was urged with reference to  the
said constitutional provision, that all executive actions of the  Government
of State have to be expressed and authenticated in the  manner  as  provided
therein.  This Court, while observing that every executive action  need  not
be formally expressed,  more  particularly  so  when  one  superior  officer
directs his subordinate to act or forbear from acting in a  particular  way,
ruled that when an executive decision affects an outsider or is required  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 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 validity of an act or not, depends upon  the
intention of the legislature.  It was enunciated that  Article  166  of  the
Constitution of India has to be read as a whole  whereunder  as  per  clause
(3), the Governor is to make rules for the more  convenient  transaction  of
the business of the Government of a State and for allocation  thereof  among
the ministers, insofar as that did not relate  to  matters  with  regard  to
which  the  Governor  was  required  to  act  in  his  discretion.   It  was
reiterated that any executive action  as  contemplated  therein,  is  to  be
taken by way of an order or instrument, to  be  expressed  in  the  name  of
Governor, in whom the executive power of the State is vested and further  to
be authenticated in the manner specified in the Rules framed  under  Article
166(3).  That compliance of Article  166(1)  &  (2)  would  render  such  an
order or instrument immune from challenge in a court of law  on  the  ground
that it had not been made or executed by the  Governor  of  the  State,  was
reaffirmed.  While concluding that even if clause  (1)  of  Article  166  is
taken to be an independent provision unconnected with  clause  (2),  it  was
highlighted that the prescription of the former would only be directory  and
not  imperative  and  was  indeed  a  formality  for  doing  a  public  act.
Following extract from the  Maxwell  on  Interpretation  of  Statutes,  11th
Edition, page 369 was adverted to:
“Where the prescriptions of a statute relate to the performance 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 vs. Purvshottam Jog Naik (1952 SCR 674) and Ghaio Mall and  Sons  vs.
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  (Prohibition
of Further Payment and Recovery of Rebate Benefits) Act, 2002 was  impeached
in Goa Glass Fibre Limited vs. State of Goa and another (2010)  6  SCC  499,
amongst others, on the ground that the said legislation was  founded   on  a
decision  of  the  High  Court  of   Bombay,   Panji   Bench   rendered   on
19.4.2001/24.4.2001 to the effect that  Notifications  dated  15.5.1996  and
1.8.1996 had  been  issued  without  compliance  with  the  requirements  of
Article 166(3), though the said verdict was subjudice in appeal before  this
Court. Resisting the challenge, the State of Goa,  not  only  endorsed   the
validity of the Statute  but also insisted that the  notifications  involved
were illegal, unauthorised  and  that  the  legislation  had  been  made  to
prohibit any further payment  there  under  in  order  to  save  the  public
exchequer from getting denuded of its coffers.  It was urged as  well,  that
the decision of the State Government to issue notifications mentioned  above
was not  authorised  by  law  inasmuch  as  the  Council  of  Ministers  had
rescinded the same.  But  despite  this,  the  Power  Minister  himself  had
issued a notification at his own level without making a reference to  either
the Chief Minister or the Council of Ministers  or  consulting  the  Finance
Department as mandatorily required under the  Rules  of  business.   It  was
asserted as well that the decision of the then Minister of  Power  to  issue
the notifications was wholly unauthorised as he had no authority 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 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, on  the  ground  that  those
were null and void for want  of  compliance  with  the  concerned  Rules  of
Business of  the  State  Government  framed  under  Article  166(3)  of  the
Constitution of India.  Skipping over the otherwise chequered background  of
these notifications, suffice it to state  that  the  challenge  thereto  was
also laid on the ground of non-compliance of the  mandate  of  Articles  154
and 166 of the Constitution of India and instead being  the  yields  of  the
Minister of Power.  It was contended that the said notifications  could  not
be termed as those issued  by  the  State  Government  on  account  of  non-
compliance with the Rules of Business and, therefore, were non est and  void
ab initio and resultantly the consequential actions  based  thereon  were  a
nullity.  The same issue did arise principally  for  the  scrutiny  of  this
Court in the appeals preferred by the industrial  consumers  involved.   The
State Government in its counter-affidavit in the appeals in support  of  the
judgment impugned,  pleaded  that  the  notifications  did  not  embody  the
Government decision inasmuch as the matter was  neither  placed  before  the
State Cabinet  in  terms  of  the  business  Rules  nor  was  the  mandatory
concurrence  of  the  Finance  Department  there  under  obtained.   It  was
contended as well that  in view of the notifications, the State had  already
paid an amount of Rs. 16 crores as rebate and that it could  not  afford  to
pay further on account of the financial crunch faced by  it.  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  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  vs.  Bagun
Sumbrui  & others (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  done  in  neglect  of  them  would  work  serious  general
inconvenience or injustice  to  persons  who  have  no  control  over  those
entrusted with the duty, such prescription is generally understood  as  mere
instruction for the guidance of those upon whom the duty is imposed.”


77.         The cavil of estoppel against the State on the plea that it  did
not agitate against the legality or validity of  the  notifications  in  the
earlier round of  litigation,  was  dismissed  in  view  of  the  illegality
thereof, being repugnant to the mandatory provisions of the  Rules.  It  was
held that mere omission on the part of the State Government  to  assail  the
validity of the notifications on the ground of non-compliance of the  Rules,
would neither debar or disentitle it from raising such a plea.
78.         Apart  from noting the extract from the  erudite  work,  Maxwell
on Statutes, referred to hereinabove, this Court did refer as  well  to  the
following quote from the Halsbury”s Laws of England, 4th Edn. Reissue,  Vol.
44(1) at para 1238:

“Mandatory and directory enactments.—The distinction between  mandatory  and
directory enactments concerns statutory requirements  and  may  have  to  be
drawn where the consequence of ailing to implement the  requirement  is  not
spelt out in the legislation. The requirement may arise in one of two  ways.
A duty to implement it may be imposed directly on a person;  or  legislation
may govern the doing of an act or  the  carrying  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  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 leaning either way.”


79.         The assertion on behalf of the respondents that there can be  no
universal rule with regard to violation of Rules of Business and  that  each
case must be decided on the facts and further that prohibitive  or  negative
words in the provision thereof, in matters concerning  revenue  or  finance,
exclusive competence of the Cabinet to take a decision on  an  issue,  prior
consultation of the Finance Department and the like  do  indicate  mandatory
feature thereof, was taken note of.  It was held that the Rules of  Business
in those contingencies, if not  complied  with,  the  decision/communication
could not be  termed  as  a  Government  decision  and  that  an  individual
functionary cannot bypass the Rules of Business.
80.         This Court took cognizance, amongst other, of  the  decision  of
this Court in  Kripalu Shankar (supra) which proclaimed that a noting by  an
official in the departmental file would not amount to an executive  decision
within the meaning of Article 166 of the Constitution of  India.   It  noted
the observation as well that while clauses (1) and (2) of  Article  166  did
relate to the mode  of  expression  of  the  order  and  the  authentication
thereof, clause (3) pertained to the making of the  rules  by  the  Governor
for  more  convenient  transaction  of  the  business  of  the   Government.
Referring to  Rules  3, 6 and 7 of the Business Rules of the  Government  of
Goa as involved and  judging  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)  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 Legislative Assembly of the  State.   It  was  emphasised
that any decision taken by the State Government,  therefore,  reflected  the
collective  responsibility  of  the   Council   of   Ministers   and   their
participation in the decision making process and thus the Rules of  Business
framed under Article 166(3) of the  Constitution  are  framed  in  order  to
fulfil the constitutional mandate embodied in Chapter II of Part VI  of  the
Constitution making it obligatory for the decision of the  State  Government
to be in accord therewith.  The  following  excerpt  from  the  decision  in
Haridwar Singh (supra) was also referred to:
15. Where however, a power of authority is conferred with a  direction  that
certain regulation or formality shall be complied  with,  it  seems  neither
unjust nor incorrect to exact a rigorous observance of it  as  essential  to
the acquisition of the right or authority.”...

83.         It was, thus, concluded that the  Business  Rules  framed  under
the provisions of Article 166(3) are mandatory and must be strictly  adhered
to so much so that any decision of the Government in  breach  thereof  would
be a nullity in the eye of the law.
84.         In the facts of the  above  reported  case,  this  Court,  on  a
consultation  of  the  official  records  and  being  convinced   that   the
notifications concerned had been issued  in  non-compliance  of  the  Rules,
sustained the verdict of the High Court proclaimed as above.
85.         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 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 Committee  to
be constituted at the instance of the then Minister  of   Urban  Development
and Housing, who was also the Chairman of  the  Trust   for  suggesting  the
methodology for  allotment of land in terms of the directions given  by  the
Land Acquisition Officer.  The Committee, accordingly, recommended that  the
land be allotted to the beneficiaries of illegal transactions  at  the  rate
fixed by it and a circular representing to be a policy decision, was  issued
in 1978 to that effect.  The draw of lots was held thereafter for  allotment
of plots to the awardees and the beneficiaries of illegal transfers  of  the
acquired land.  Those unsuccessful  in  the  process,  approached  the  High
Court which held that the directions given by the Land  Acquisition  Officer
and the Minister for allotment of plots were ex facie illegal  and  had  the
effect of defeating the public purpose for  which  the  land  was  acquired.
The recorded facts revealed, that an inquiry was made into  the  episode  by
the Lokayukta of the State,  who returned a finding, that the persons  named
therein including the then departmental minister had misused their  official
position to favour a few influential and highly placed individuals  and  had
also thereby caused wrongful gain to them  and  wrongful  loss  to  the  JDA
(successor of Jaipur Improvement Trust) and the public at large.
87.         This Court  recalled  its  adjudication  in  Jaipur  Development
Authority vs. 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 vs. 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 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 writ petition by the  learned  Single
Judge, the letter dated 6.12.2001,  sought to be  passed  off  as  a  policy
decision, was not in existence and that a Committee of Ministers was  formed
vide order  30.10.2001   to  suggest  a  solution  of  the  problem  in  the
regularisation of illegal constructions/encroachments of land under the  Lal
Kothi and Prithviraj Nagar Schemes in relation to which several  cases  were
pending in different courts.  It was observed that the recommendations  made
by the Committee were given the colour of  Government  decision,  though  no
material had been produced to establish that the same were accepted  by  the
State Government.  That such a lacuna was discernible from the letter  dated
6.12.2001 was also observed.  Apart from holding that the Division Bench  of
the High Court had erred in entertaining a new case  without  the  essential
pleadings, the reliance on the said policy decision which  was  in  flagrant
violation of the judgments of  this  Court  in  Radhey  Shyam  (supra)   and
Daulat Mal Jain (supra) was strongly disapproved.  Holding that  the  letter
dated 6.12.2001, by no means, could be construed to be a policy decision  of
the  State  Government,   this  Court  ruled  that  the   High   Court   had
impermissibly sought to legitimise the illegal transactions in violation  of
the dictum of this Court in Radhey  Shyam  (supra)    and  Daulat  Mal  Jain
(supra).
90.         It is in this context that the prescriptions 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. vs. International Lease Finance Corporation and  others  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
mentioned therein, being not a general  or  speaking  order  passed  by  the
Central Government,  it could not override  the  powers  of  the  AAI  under
Regulation  10,  this  court  referring  to  Articles  77  and  166  of  the
Constitution of India held that in terms of Rule 3 of  the  concerned  Rules
of business, the decision taken in the meeting dated 26.3.2013  should  have
been sanctioned by/under the general or special directions of the  Minister-
in-Charge  and  further  as  stakes  of  different  departments  headed   by
different ministries were concerned, the decision should have been taken  by
the concerned Committee of the Cabinet.   The  concurrence  of  the  Finance
Department due to the financial bearing, was also necessary.   It  was  held
that the minutes of the  meeting  purportedly  stated  to  be  an  order  in
writing by Central Government and later communicated to all concerned,  were
not disposed of  in pursuance of Rule 4  of  the  Rules  i.e.   neither  the
decision was sanctified by  the  Cabinet  nor  the  concurrence  of  Finance
Department was taken.  This  Court  held  the  view  that  from  a  combined
reading of Rules 3,4 and 4(2), the minutes of the  meeting were required  to
be proceeded only  after the  concurrence  of  the  Finance  Department  and
could not have been finalised at the level  of  officers/representatives  of
Civil Aviation, Central Board of  Excise  and  Customs  etc.   Additionally,
after the concurrence of the Finance Ministry, the minutes  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 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 Rs. 260 per square yard.  The High Court,  in
appeal, reduced the compensation to Rs. 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, was also asserted.  The claim  of  the  respondent  society
for compensation was resisted by the State  Government  and  the   Rajasthan
Housing Board contending that  the transactions, on the basis  of  which  it
claimed the same, were ab intio void being in  contravention  of  provisions
of Section 42 of the Rajasthan Tenancy Act.  It was contended as well   that
the circulars dated  13.11.2001 and 27.10.2005 relied upon by  the  Society,
were not applicable to the facts of the case and  were  not  enforceable  as
well.  The direction for allotment of developed land  was,  thus,  seriously
assailed.
94.         Referring to Section 42 of  the  Rajasthan  Tenancy  Act,  1955,
this Court upheld the objection of  nullity of the transactions for sale  as
claimed by the respondent-society as it prohibited sale, gift or bequest  by
a member of a Scheduled Caste in favour of a person who is not a  member  of
the Scheduled Caste, or by a member of a Scheduled  Tribe  in  favour  of  a
person who is not a member of the Scheduled Tribe.   It  was  recorded  that
the cast of the original  khatedars  was  “Bairwa”  which  was  a  Scheduled
Caste.
95.         Reverting to the circular dated 27.10.2005,  this  Court  marked
that the applicability thereof  depended on the   land  surrendered  by  the
khatedars without compensation, thus entitling them to  obtain  25%  of  the
developed residential  area in lieu thereof. It was held that as it was  not
a case of surrender of land, the said circular 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.          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  appeal  before  this   Court,   the
appellants were granted liberty to make  representations  before  the  State
Government for release of  their  land.   The  representations  filed  were,
however, rejected on the basis of policy dated 26.10.2007.
98.         In the facts of that case, this Court  noticed  that   prior  to
26.10.2007, the State of Haryana did not have any uniform  policy  governing
the release of land  from  acquisition,  though  a  letter  dated  26.6.1991
pertaining to review the  progress  of  various  schemes  of  Haryana  Urban
Development Authority was sought to be pressed into service in that  regard.
 The same, however, was not of any decisive significance.  This Court  held,
that neither the letter dated 26.6.1991 nor any other policy had  ever  been
followed by the State Government while releasing the land  of  various  land
owners acquired in the same acquisition proceedings. That the  policy  dated
26.10.2007 had not been applied to any of the land  owners  whose  land  had
been acquired along with the  appellants’  land  was  also  noted.   It  was
noticed that lands of more than 40 land owners out of the  same  acquisition
proceedings had been released by the State Government  which  also  included
those, who had not even challenged the  acquisition  proceedings  and  whose
cases had  not  been  recommended  by  the  Committee  for  withdrawal  from
acquisition.   Concluding thus, that no firm policy  had  been  applied  for
release of lands from  the  acquisition  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.  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 or executed by the Governor.

(3) The Governor shall make rules for the  more  convenient  transaction  of
the business of the Government of the State, and for  the  allocation  among
Ministers of the said business in so far as it is not business with  respect
to which the Governor is by or under this Constitution required  to  act  in
his discretion.

101.         Whereas  under  Clause  (1),  all  executive  action   of   the
Government of a State is enjoined to be expressed to be taken  in  the  name
of Governor, as predicated by clause (2), orders and other instruments  made
and executed in the name of  Governor  have  to  be  authenticated  in  such
manner as may be specified in rules to be made by the  Governor  and  if  so
done, 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 or executed by the Governor.  Clause (3) makes it  incumbent
on the Governor to frame rules for the more convenient  transaction  of  the
business of the Government of the State and for  the  allocation  among  the
Ministers of the said business, insofar as it is not  one  with  respect  to
which, the Governor is by or under the Constitution required to act  in  his
discretion.
102.        A combined reading of these provisions, thus would  evince  that
the executive power 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  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 essentially has to be in accordance with the Rules of  Business.   The
Rules depending upon the  scheme  thereof,  may  or  may  not,    accord  an
inbuilt flexibility in its provisions in the matter of compliance.    It  is
possible that the provisions of the Rules en bloc may  not  be  relentlessly
rigid,  obligatory  or  peremptory  proscribing  even  a  minimal  departure
ensuing in incurable vitiations.  Contingent  on  the  varying  imperatives,
some provisions may warrant  compulsory  exaction  of  compliance  therewith
e.g. negative/prohibitive expression/clauses, matters involving  revenue  or
finance,   prior   approval/concurrence   of   the    Finance    Department,
consultation/approval/ concurrence of the Finance  and  Revenue  departments
in connection therewith and issues not admitting of  any  laxity  so  as  to
upset, dislodge  or  mutilate  the  prescribed  essentiality  of  collective
participation, involvement and contribution of  the  Council  of  Ministers,
headed by the Chief Minister in aid  of  the  Governor  in  transacting  the
affairs of the State to effectuate the  imperatives  of  federal  democratic
governance as contemplated by the Constitution.
105.        As noticed hereinabove,  it  is  affirmatively  acknowledged  as
well  that where provisions of a statute relate  to  the  performance  of  a
public duty and where the invalidation of acts  done  in  neglect  of  these
have  the  potential  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,  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
the bearing thereof would  have to be adjudged in the prevailing  facts  and
circumstances attendant there on.
108.        It has not been argued before us that non-compliance of  Article
166 (1) and (2) per se did  vitiate  the  circular  dated  13.12.2001.   The
gravamen of the impugnment thereof is founded on the non-observance  of  the
Rule 31 of the Rules following its amendment on 5.3.1999, namely failure  to
lay the issue with regard to the allotment  of  developed  land  before  the
Chief Minister of the State.  The march of events qua the decision to  allot
the developed land in lieu  of  compensation,  in  order  to  speed  up  the
completion of the acquisition process  and  to  secure  timely  delivery  of
possession  of  the  land,  by  curtailing  the  impeding  litigations,   is
traceable as hereinbefore referred, to the circulars from 22.4.1992 and  did
continue with variation in the percentage of land to be allotted even  after
the circular dated 13.12.2001.
109          Noticeably,  no  plea  has  been  raised  emphasising   on  the
obligatory requirement of  concurrence  of  the  Finance  Department,  as  a
condition precedent or disapproval  of  the  decision  of  the  departmental
minister and the Committee constituted by him for the purpose either by  the
Chief Minister of the State or the  other  Ministers  of  the  Council.   To
reiterate, the State Government in its affidavit in reply 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 deacquistion 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 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
deacquisiton 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 consideration at a meeting of  the  Council  or  Sub-Committee  thereof.
Significantly, the Second Schedule  mentions, amongst others,  any  proposal
which would affect the finances  of  the  State  which  does  not  have  the
consent of the Finance Minister,  or  a  proposal  involving  any  important
change of policy or practice or cases  required by the Chief Minister to  be
brought before the Council. Equally significant is the  residuary  power  of
the Chief Minister, reserved under Rule 31 (2) (xix)  whereby  he/she  would
be competent to call  for  the  relevant  papers/file(s),  report  and  pass
orders in any  case  involving  a  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  the  Minister-in-
Charge or the Chief Secretary.  The  suo  moto  intervention  of  the  Chief
Minister in these contingencies thus is also conceptualized.
111.        Having regard to the progression of  events  pertaining  to  the
decision of allotment of developed land and the conscious initiatives  taken
by the State Government in furtherance thereof, it is impossible as well  as
impermissible to conclude,  that it had remained unaware thereof.  The  land
of the appellants had been compulsorily acquired, in  the  exercise  of  the
State’s power of eminent domain by invoking  an  expropriatory  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 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 clear  that  all  State
functionaries  including the Chief Minister of the State were aware  of  the
process undertaken in terms of the circular/policy dated 13.12.2001 and  had
affirmatively associated themselves therewith. Significantly, even  at  that
stage, the circular dated 13.12.2001 was neither discarded as non est  being
not the repository of a state policy nor a decision repugnant to the  Rules.
 It would thus be indefensible  and too farfetched for  the  respondents  to
contend that the circular dated 13.12.2001  cannot  be  construed  to  be  a
policy reflecting the executive decision as contemplated under  Article  166
and is not enforceable, as the subject matter  thereof  had  not  been  laid
before the Chief Minister under Rule 31 of the Rules. The  non-acceptability
of  the  land  at  Lalchandpura  and  Anantpura  by  the  appellants,  being
undeveloped, does not detract from these conclusions.
114.        In our comprehension, it is the burden of the State  Government,
in view of the belated attempt on its part to wriggle out of its  commitment
under the circular/policy dated 13.12.2001 to demonstrate on  the  basis  of
contemporaneous records that it was never intended  to  be  acknowledged  as
its policy. As the file pertaining to the circular/policy  dated  13.12.2001
is not traceable, in  our  unhesitant  opinion,  the  State  Government  has
failed  to  discharge  its  burden   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 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  said  circular,  but  also  had
participated in the exercise, contemplated by it for allotment of  developed
land in lieu of compensation.  The  respondents,  in  the  totality  of  the
existent facts and circumstances are  thus  estopped  from  questioning  the
status and efficacy  of  the  said  circular  in  vesting  a  right  in  the
appellants to claim their due in law there under.
118.        To recall, not only in the meeting dated  18.10.2001  under  the
chairmanship of the departmental minister, which indeed,  as   the   minutes
thereof would disclose, was  called  to  formulate  a  composite  policy  on
various aspects and procedures in relation to  allotment  of  15%  developed
land in lieu of compensation,  but also  in  the  resultant  circular  dated
13.12.2001, it had been resolved in clear  terms  that  the  developed  land
would normally be allotted in the scheme area and at  the  place  where  the
land had been acquired and that, if it  was  not  possible  to  develop  the
scheme within a fixed period of five months or it was not possible  to  give
land in the same area, it was only then that land would be allotted in  some
other area.  In that eventuality as well, a  sincere  endeavour  was  to  be
made to allot land near the scheme area.  Developed status of  the  land  to
be allotted and its proximity to the site  from  where  the  land  had  been
acquired for a scheme, were thus the two imperatives to  identify  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 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  and  Mansarampura  have
been held by this Court, as recently on 7.5.2015, to be not fully  developed
and more importantly conceded to be so by the JDA as recorded  in  the  said
order.  According to the JDA, it would require further two years to  develop
the land thereat.  The land of the appellants, as acquired, was situated  at
Boytawala which, thus has not yet been fully developed as  on  date.   Thus,
in any view of the matter, the market value of the land at Boytawala  cannot
be an acceptable yardstick to identify the developed land to which they  are
entitled.  This is more so, as for the last thirty  years   and  above,  the
respondents have failed to allot 15% developed  land  as  envisaged  by  the
policy to the appellants.  Admittedly, two of  the  land  oustees  had  been
allotted  developed  land  at  Vidyadhar  Nagar  and  as  the  letter  dated
16.10.2007 referred to hereinabove would reveal,  till  then,  land  at  the
same site was available.   As  a  matter  of  fact,  allotment  of  land  at
Lalchandpura, Anantpura, Boytawala and Mansarampura,  which  admittedly  had
not been fully developed, was in breach of  the  promise  engrafted  in  the
policy dated 13.12.2001.  The approach of the respondents,  when  viewed  in
the backdrop of compulsory acquisition  of  land  in  the  exercise  of  the
State’s  power of eminent domain  and  its  persistent  failure  to  act  on
this  policy,  only  demonstrates   a   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 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 Court in  Steel Authority of India Limited (supra).
125.        While recognising the power of the State to acquire the land  of
its citizens, it has been proclaimed in Dev Sharan (supra) that even  though
the right to property is no longer a  fundamental  right  and  was  never  a
natural right, it has to be accepted that without  the  right  to  property,
other rights become illusory.
126.        In a catena of decisions of this  court,  this  prize  privilege
has also been equated to human right.  In  Mukesh Kumar (supra), this  Court
has succinctly propounded this proposition in the following terms:
“The right to property is now considered to be not only a constitutional  or
statutory right but also a human right.   Human  rights  have  already  been
considered in the realm of individual rights such as the  right  to  health,
right to livelihood, right to shelter and  employment  etc.  But  now  human
rights are gaining a multifaceted dimension.   Right  to  property  is  also
considered very much a part of the  new  dimension.    Therefore,  even  the
claim of adverse possession has to be read in that context.

The changing attitude of the  English  courts  is  quite  visible  from  the
judgment of Beaulane Properties Ltd. vs.  Palmer  (2005)4All  ER  461.   The
Court here tried to read  the  human  rights  position  in  the  context  of
adverse possession.  But what is  commendable  is  that  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  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. vs. High Trees  House  Ltd  (1947)  1  KB
130.
129.        In a later decision of this  Court  in  Motilal  Padampat  Sugar
Mills Co. (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,   this  Court   underlined,   in   reiteration,   the   well-known
preconditions for the operation of the doctrine as under:
     A clear and unequivocal promise, knowing and intending  that  it  would
be acted upon  by the promisee;

    On such acting upon the promise by the promise, it would be  inequitable
to allow the promisor to go back on the promise.
130.        This Court  in  Nestle India Limited  (supra),  while  referring
to the decision of Motilal Padampat Sugar Mills (supra) quoted  para  24  of
that judgment to the effect that  the Government stood on the  same  footing
as a private individual so far as the obligation in law  was  concerned  and
that the former was equally bound as the latter and it was difficult to  see
on what principle, could a Government, committed to the rule of  law,  claim
immunity from the doctrine of promissory estoppel.
131.        This hallowed notion of equitable estoppel has  stood  the  test
of  time  with  peripheral  variations  to  reverberate  in  the   following
exposition in Monnet Ispat (supra) in the following terms:
182.1.   Where one party has by his words or conduct made  to  the  other  a
clear and unequivocal promise which is intended to  create  legal  relations
or  affect  a  legal  relationship  to  arise  in  the  future,  knowing  or
intending that it would be acted  upon  by  the  other  party  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.

132.        Adding a caveat to 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  past
practice.

The existence of a legitimate expectation may have  a  number  of  different
consequences; it may give locus standi to seek leave to apply  for  judicial
review; it may mean that the authority ought not to act so as to defeat  the
expectation without some overriding reason of public policy to  justify  its
doing so; or it may mean  that,  if  the  authority  proposes  to  defeat  a
person’s legitimate expectation, it must afford him an opportunity  to  make
representations on the matter. The courts also distinguish, for  example  in
licensing cases, between original applications, applications  to  renew  and
revocations; a party who has been granted a licence may  have  a  legitimate
expectation that it will be renewed unless there is some good reason not  to
do so, and may therefore be entitled to greater procedural  protection  than
a mere applicant for a grant.”


134.        In espousing this  equitable  notion  of  exacting  fairness  in
governmental dealings, this Court  in  Food  Corporation  of  India  (supra)
proclaimed that  there was no  unfettered discretion in public law and  that
a sovereign authority  possessed powers only to use them  for  public  good.
Observing that the investiture of such power imposes with it,  the  duty  to
act fairly and to adopt a procedure which is ‘fair play 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 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, Jaipur.
137.        The appellants, in categorical terms,  have  asserted  that  the
plots at these places are not developed inasmuch as they are bereft  of  the
essential facilities like  water,  electricity,  communication/connectivity,
sewerage, drainage etc. and have sought to substantiate their  plea  on  the
basis of recent photographs along with sworn pleadings.  On the other  hand,
they have suggested plots at Vidyadhar Nagar, Gokul  Nagar,  Truck  Terminal
and Vaishali Nagar, located within a distance of 5 K.M. to  15.6  K.M.  from
the central point Jaipur for  allotment.   That  these  plots  of  land  are
developed has been unreservedly admitted  by  the  respondents,  their  plea
being that, the appellants are not entitled thereto, judged  by  the  factor
of equivalence of the value of the acquired land.
138.         At this distant point of time, we are  disinclined  to  sustain
this  demur  of  the  respondents.   As  the   facts   have   unfolded,  the
appellants cannot  be  held  accountable  for  the  delay  in  between,  the
respondents having failed to offer developed land  as  contemplated  in  the
policy.  This stands fortified, amongst others, by the order dated  7.5.2015
vis-a-vis  the  land  at  Boytawala,  Lal  Chandpura,  Anantpura   and   Man
sarampura.  The other plots offered by the respondents, also  having  regard
to the attributes of 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
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-à-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  vs.  Noida  and  others
(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 essentiality of non-arbitrariness and transparency  in
executive functioning as a  guarantee  of  certitude  and  probity,  it  was
observed thus:

“39: State actions are required to be non-arbitrary  and  justified  on  the
touchstone of Article 14 of the Constitution. Action of  the  State  or  its
instrumentality must be in conformity with some principle  which  meets  the
test  of  reason  and  relevance.  Functioning  of  a  “democratic  form  of
Government   demands   equality   and   absence   of    arbitrariness    and
discrimination”. The rule of law prohibits  arbitrary  action  and  commands
the authority concerned to act in accordance with law. Every action  of  the
State  or  its   instrumentalities   should   neither   be   suggestive   of
discrimination, nor even apparently give an impression of bias,  favouritism
and nepotism. If a decision is taken without any principle  or  without  any
rule, it is unpredictable and such a decision is antithesis to the  decision
taken in accordance with the rule of law.

40: The public trust doctrine is  a  part  of  the  law  of  the  land.  The
doctrine has grown from Article 21 of  the  Constitution.  In  essence,  the
action/order of the State or State instrumentality would stand  vitiated  if
it lacks bona fides, as it would only be a case of  colourable  exercise  of
power. The rule of law is the foundation  of  a  democratic  society.  [Vide
Erusian Equipment & Chemicals Ltd. v. State of W.B., Ramana  Dayaram  Shetty
v. International Airport Authority of India, Haji  T.M.  Hassan  Rawther  v.
Kerala Financial Corpn,  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 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 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.
142.        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.
143.        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 unjustifiable failure of  a  duty  imposed  on  an  authority  otherwise
obliged in law to imperatively discharge the same.
144.        The dominant features of  a  writ  of  mandamus  authoritatively
figures in the following extract from the Halswbusy  Laws  of  England,  4th
Edition (page 111):
“Nature of mandamus. The order of mandamus 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 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,  works  by   repetition   and   precludes
individuality in results, which would threaten the security of  acquisitions
and the security of transactions.  On the other hand, in  the  hand-made  as
distinguished from the machine-made product, the specialized  skill  of  the
workman gives us something infinitely more subtle than can be  expressed  in
rules.  In law  some  situations  cal  or  the  product  of  hands,  not  of
machines, for they involve not repetition, where the  general  elements  are
significant, but unique events,  in  which  the  special  circumstances  are
significant.

...         ...        ...        ...


Where the call is for individuality in the product  of  the  legal  mill  we
resort to standards.  And the sacrifice of certainty in  so  doing  is  more
apparent than actual.  For the certainty attained by mechanical  application
of fixed rules to human conduct has always been illusory.”

146.        The above extracts authoritatively underscore the  indispensable
essentiality  of individuality in results in a persuasive fact situation  to
obviate mechanical application of  fixed  rules,  by  invoking   equity  and
discretion to secure realistic   remedies  tailor-made  to  the  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  interests  of  the  parties  and
advance the cause of administration of even  handed  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 Others vs. 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 of a given case, so as to further  the  cause
of justice, within the available range and forging new tools  for  the  said
purpose, if necessary to chisel hard edges of the law.”

151.        This underlying thought found  erudite  elaboration  in  Manohar
Lal Sharma vs. Principal Secretary and Others  (2014) 2 SCC 532.

“The Supreme Court has been  conferred  very  wide  powers  for  proper  and
effective administration of  justice.  The  Court  has  inherent  power  and
jurisdiction for dealing with any exceptional  situation  in  larger  public
interest which  builds  confidence  in  the  rule  of  law  and  strengthens
democracy. The Supreme Court as the sentinel  on  the  qui  vive,  has  been
invested with the powers which are  elastic  and  flexible  and  in  certain
areas the rigidity in exercise of such powers is considered  inappropriate.”


152.        Thus failure to discharge an obligatory duty defined  by  public
policy without any justification in disregard thereto viewed in the  context
of the sacrosanct content of human rights in Article 300A is an  inexcusable
failure of the state to discharge its solemn constitutional obligation,  the
live 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
disparity in treatment in the matter of allotment as ordered.
155.        We part with the belief and  expectation  that  the  respondents
would be alive to their duty cast by  law  and  would  not  precipitate  any
further   cause of action necessitating the intervention of this Court  with
stringent initiatives. No costs.

                                    ......................................J.
                                                           [V. GOPALA GOWDA]

 

                                    ......................................J.
                                                               [AMITAVA ROY]
NEW DELHI;
DECEMBER 1, 2015.

 

  

For the Latest Updates Join Now