Radhey Shyam v. State of Rajasthan — 1995 DIGILAW 1035 (RAJ)

Honble MADAN, J. – The above-named petitioners have filed this writ petition in the matter of interpretation of relevant provisions of the Rajasthan Urban Improvement Trust Act, 1959 (for short UIT Act) and Jaipur Development Authority Act, 1982 (for short JDA Act) and in the matter of Rajasthan Housing Board Act, 1960 (for short RHB Act). (2). The facts giving rise to the filing of these writ petitions, briefly stated, are that the petitioners are khatedar tenants having half share each in respect of agricultural land bearing khasra Nos. 181 and 227 measuring 2 bighas 9 biswas in village Jhalana Doongar District Jaipur. The petitioners have been in continuous cultivatory possession of the aforesaid land since the time of their ancestors and have also constructed their residential houses over the said land which are also used for agricultural activities and for keeping of the cattle and fodder etc. (3). It has been contended in the writ petitions that a resolution was passed by U.I.T. Jaipur on 1.1.1976 whereby the Government of Rajasthan sought to acquire the petitioners aforesaid lands for the planned development of Jaipur City. The resolution was followed by a notification published under Section 52(2) of the U.I.T. Act, 1959 for determining compensation by agreement. It has been contended on behalf of the petitioners that the compensation was determined subject to the following terms and conditions:– 1. the compensation for Barani land (unirrigated) @ Rs. 10,000/- per bigha, 2. that the compensation for `Chahi land (irrigated) will be paid @ Rs. 12000/- per bigha, 3. that the lands which were entered in the revenue record as Barani land but improvement thereon has been made by digging a well etc., compensation will be given of the said lands @ `Chahi land, 4. that compensation for a fixture, walls, wells etc. will be paid as per the estimates prepared by the Urban Improvement Trust, 5. that every farmer whose lands have been acquired will be allotted one plot each measuring 250 Sq. yards at the scheme rate, 6. that those farmers whose lands/houses will be adjusted in the scheme, will have to pay Nazrana at the scheme rate. (4). In pursuance of the aforesaid agreement possession of the land of the petitioners was taken by the respondents while leaving the residential houses of the petitioners which were in their use and occupation. yards at the scheme rate, 6. that those farmers whose lands/houses will be adjusted in the scheme, will have to pay Nazrana at the scheme rate. (4). In pursuance of the aforesaid agreement possession of the land of the petitioners was taken by the respondents while leaving the residential houses of the petitioners which were in their use and occupation. It was further agreed bet- ween the parties that the possession of the constructed houses of the petitioners would not be interfered with and it will be adjusted in the scheme. This was however, subject to the payment of Nazrana (compensation in lieu of acquision), vide agreement Annexure 1 on the record. In pursuance of the aforesaid agreement compensation was determined and paid to the petitioners at the rates as indicated aforesaid in respect of their shares of the land in question. The grievance of the petitioners is two-fold:– i- Notwithstanding condition No.5 of the agreement on the basis of which determination of their respective shares over the land was to be done and which stipulates that every farmer whose land has been acquired will be allotted one plot each measuring 250 Sq. yards at the scheme rate, no allotment of the plot has been done till date, ii- Instead of making allotment as agreed, the petitioners are being threatened with demolition and dispossession of their residential houses constructed over the land in question. This is also in violation of the agreement that their pacca houses will be adjusted in the scheme and Nazrana towards the cost of the land would be paid at the scheme rate. Since nothing has happened with regard to the compliance of the aforesaid agreement, the petitioners are in helpless situation and having been left with no other alternative and effi- cacious remedy have moved this court for enforcement of their fundamental rights under Arts. 14, 19 and 21 of the Constitution of India. (5). It has been contended on behalf of the petitioners that the respondents are estopped from taking a contrary stand to their detriment since a mandatory duty was cast upon them not only to determine the compensation but also to make allotment of the plots measuring 250 Sq. yards each which has not been done by the respondents deliberately with a view to deprive the petitioners of their possession from the residential houses constructed by them. yards each which has not been done by the respondents deliberately with a view to deprive the petitioners of their possession from the residential houses constructed by them. It has been further contended on behalf of the petitioners that their co-operation was sought in the acqui- sition of the land by the Town Planning Department of the Rajasthan Government on specific assurance that their houses will be adjusted in the scheme and now after the lapse of 10-12 years thereafter it is not open to the authority to take a contrary stand by dispossessing the petitioners from their houses and that the threatened action of demolition which is not only illegal, malafide and perverse but also not sustainable in law. In pursuance of their illegal action the respondents have already demolished the houses of some of the residents of the locality on 11.6.1988 and the threat is continuous. The petitioners have further contended that the JDA is demanding Nazrana from the petitioner in excess of the land in their occupation which is nore than the agreed limit of 250 Sq. yards at the rate of Rs. 195.00 per sq. yard and the said demand of the authority is against the mandate of Section 60(2) of the UIT Act, 1959 which stipulates that the power of the trust with respect to the disposal of the land under sub-section (1) of Section 60 shall be so exercised as to secure, so far as practicable that persons who are living and carrying on business or other activities on the land shall, if they desire to obtain accommodation on land belonging to the Trust and are willing to comply with any requirements of the Trust as to its improvement and use have an opportunity to obtain there on accommodation suitable to their reasonable requirements on terms settled with due regard to the price at which any such land has been acquired from them. It has been further contended by the petitioners that instead of following this procedure as provided in the Act, the respondents adopted a contrary procedure by threatening the petitioners with dispossession and demolition of their houses. (6). It has been further contended by the petitioners that instead of following this procedure as provided in the Act, the respondents adopted a contrary procedure by threatening the petitioners with dispossession and demolition of their houses. (6). In the prayer clause the petitioners have sought the relief from this court to the effect that the respondents shall not disturb the possession of the petitioners from their residential houses over their respective lands, referred to above, and to adjust the houses of the petitioners which stand constructed from the period prior to the acquisition of the land. They have further sought a direction from this court for directing the authorities to determine requirements of the petitioners in accordance with mandate of Section 60(2) of the UIT Act, 1959 and further to allot the petitioners the agreed area i.e., 250 sq. yards of land for their residential houses as per the agreement and further to direct the respondents to charge from the petitioners the cost of the land which may be determined keeping in view the price of the land at which it was acquired from the petitioners. (7). In reply to show cause notice filed on behalf of respondent No.2, JDA, the said authority while admitting that the petitioners are khatedar tenants of the land in question, has stated that the khatedari of the petitioners is joint. It has been further contended that the writ petition is admitted to the extent that compensation was duly paid to the petitioners by giving them separate cheques, but however, the amount of Nazrana (cost of land) as per the agreement was jointly deducted for the land measuring 250 sq. yards and not charged separately from each of the petitioners. The amount of compensation was calculated at Rs. 32,384.42/-out of which 12,500.00 being cost of 250 sq. yard of land at the rate of Rs. 50/- per sq. yard was contemplated as per the agreement Annex. R2/1 which was deducted from the total price and the remaining amount was paid to the petitioners by separate cheques in equal shares. (8). It has been next contended by the respondents that the petitioners had filed a joint claim before the Land Acquisition Officer in which only one pacca house was shown to exist, it was nowhere shown that the petitioners are living separately vide claim petition Annex. R2/2 on the record. (8). It has been next contended by the respondents that the petitioners had filed a joint claim before the Land Acquisition Officer in which only one pacca house was shown to exist, it was nowhere shown that the petitioners are living separately vide claim petition Annex. R2/2 on the record. It has been contended in this regard assuming that the petitioners were living separately and having separate cultivation there was no justification for their having not filed their respective claims saperately and also for deduction of the Nazrana from separate plots 250 sq. yard each. This obviously shows that they were living jointly and that their residential houses were also joint on the basis of the joint agreement and only one plot of 250 sq. yards was required to be given to them. It has been further contended in the reply that the petitioners house is being adjusted according to the scheme and only that portion of the houses shall be modified which touches the road or forms the part of the adjoining plots. (9). It has been next contended on behalf of the respondents that only a part of the area in question has been transferred to Rajasthan Housing Board for construction of the housing colony, respondents have made complete denial with regard to the demolition of the house of the petitioners and on the contrary have taken the stand that the pacca houses of the residents including that of the petitioners shall be retained as far as possible meaning thereby that they shall be protacted. With regard to the rate of compensation, it has been contended by the respondents that initial reserve price of the aforesaid scheme at the rate of Rs. 65/- per sq. yard has been fixed on settled formula which implies the cost of the land, development charges, administrative charges and enforcing expenses have also to be taken into consideration. This reserve price was sanctioned by the State Gover- nment vide its letter dated 30.8.1979 vide Annex. R2/3 on the record. Since the petitioners are having land in excess of 250 sq. yards, the area which is in excess of 250 sq. yards is to be charged at the market price as per the agreement. It has been further contended that in the agreement it has been contemplated that excess area shall be charged at the scheme rate prevalent at the time of allotment. yards, the area which is in excess of 250 sq. yards is to be charged at the market price as per the agreement. It has been further contended that in the agreement it has been contemplated that excess area shall be charged at the scheme rate prevalent at the time of allotment. It has been contended in this regard that at that particular time the scheme rate of the land in question was Rs. 195.00 per sq. yard. It has been further contended that the petitioners should be charged at the present rate which though is not according to the agreement but is also just and reasonable, i.e., Rs. 900- per sq. yard. (10). In support of his contentions advanced at the Bar, learned counsel for the petitioners has placed reliance upon the judgment of the Apex Court as follows:– Akhara Brahm Buta, Amritsar vs. State of Punjab & Anr. (1), Jagdish Prasad Shahstri vs. State of U.P. & Ors. (2), Babubhai Muljibhai Patel vs. Nandlal Khodidas Barot and Ors. ( AIR 1974 SC 2105 ), Hansrajh Jain vs. State of Maharashtra & Ors. (4), Hiralal Chawla & Anr. vs. State of U.P. & Ors. (5), Municipal Committee ,Bhatinda & Ors. (6), Banwasi Seva Ashram vs. State of U.P. & Ors. (7), I.L. Dhingra vs. State of U.P. & Ors. etc. (8) and State of U.P. vs. Smt. Pista Devi & Ors. (9). In my humble opinion the ratio of the aforesaid decisions do not held in advancing the case of the petitioners in any manner whatsoever. (11). I have heard learned counsel for the parties at length and also examined their rival claims and contentions as well as the proposition of law as laid down by the Apex Court in the above referred judgments. (12). (11). I have heard learned counsel for the parties at length and also examined their rival claims and contentions as well as the proposition of law as laid down by the Apex Court in the above referred judgments. (12). It is cardinal principle of law that when alternative remedy is available to a party resort to Art. 226 of the Constitution of India should not be adopted as a matter of routine and because Art. 226 is confined only to entertaining those writ petitions where there is violation of fundamental rights of the citizens and where no other alternative remedy is available to the citizens for enforement of their fundamental rights guaranteed under Part 3 of the Constitution of India except by filing a writ petition for enforcement of such rights which have been violated by the State Machinery or by instrumentality of the State in exercise of its arbitrary power and only in such situation of extreme urgency citizen has a right to move this court under Art. 226 for enforcement of his fundamental rights. Before entertaining writ petition the court has also to examine whether the petition involves disputed questions of facts or whether the questions raised in the writ petition are of such a nature which require appreciation of evidence and if the court finds on examination that there are disputed question of facts which require appreciation of evide- nce or where the petitioner has not availed the alternative remedy which was available to him at the time of filing the writ petition and which he has deliberately avoided to do so, then the exercise of jurisdiction under Art. 226 of the Constitution should not be done in favour of such petitioners. Since the law is well settled on the subject and keeping in view the cardinal principles of law as referred to above, I am of the considered opinion that above- noted writ petitions raise not only the disputed questions of fact but also the question which require appreciation of evidence pertaining to the excess land which is in unlawful possession of the petitioners and which they have not vacated to the respondents. (13). During the course of hearing it has transpired that if the petitioners are found in possession of excess land they are ready and willing to pay Nazrana at the rate prevalent at the time of allotment of the land to them. (13). During the course of hearing it has transpired that if the petitioners are found in possession of excess land they are ready and willing to pay Nazrana at the rate prevalent at the time of allotment of the land to them. It was contended by the learned counsel for the petitioners at the bar that the petitioners are khatedar tenants but no proff of Jamabandi or from khasra girdawari has been placed on the record. During the course of hearing learned counsel for the petitioners has placed reliance on an agreement dated 27.1.1977 Annex. R2/1 duly executed between the parties wherein certain terms and conditions have been incorporated regarding the price of land which was offered to the petitioners in lieu of the acquisition of their land in question and which, I am informed, they have already been paid and have accepted the same without raising any protest or demeur. Hence the only question which survives for consideration of this court is with regard to the violation of condition No.5 of the said agreement which stipulates that if there is any temporary or built in house constructed over the land in question and if the same has not been acquired by the UIT and in lieu thereof as per the term of settlement envisaged in the agreement between the parties, the occupants of the said houses are entitled either to the cost of the constructions and a plot measuring 250 sq. yards each for which either scheme rate or the reserve price will be charged. The learned counsel for the petitioner has vehemently contended that in view of the violation of the said conditions of the agreement, the petitioner has moved this court by way of present writ petition under Arts. 226 and 227 of the Constitution of India. In my considered opinion this does not by itself give any right to the petitioners to move this court by way of present writ petition particularly when alternative remedy for breach of the terms of the agreement by filing a civil suit for specific performance of the agree- ment was available to the petitioners which they have not chosen to avail and hence instead filed the present writ petitions which in my considered opinion, are not maintainable on this ground alone. It is a cardinal principle of law that if there is any breach of contractual obligations by either party to the agreement, then the resort to jurisdiction under Art. 226 of the Constitution is not intended as an alter- native remedy for which relief may be obtained by filing a civil suit for specific performance of agreement or by availing other modes prescribed by the statute. The law has been well settled by the Apex Court in the matter of State of M.P. vs. Bhailal (10), State of A.P. vs. Chitra (11) and Union of India vs. Parabhavalkar (12), wherein the Apex Court has held that where it is open to the aggrieved person to move another tribunal or court by availing alternative remedy for redressal of their grievances in the manner as envisaged in the statute, the High Court will not, by entertaining a writ petition under Art. 226 of the Constitution of India, permit the machinery created by the Statute to be by-passed. It has been further held by the Apex Court that the High Court does not generally enter upon the determination of the questions which demands an elaborate examination of evidence to establish their rights to enforce its claim in the writ petition Thansingh vs. Superintendent of Taxes (13) and Birdha vs. Raman (14). On the question of alternative remedy it has also been laid down by the Apex Court that if a suit is not an alternative to an additional remedy as against the relief prayed for under Art. 226, the said provision is not intended to face statutory procedures Assistant Collector of Central Excise, Chandan Nagar vs. Dunlop India Ltd. & Ors. (15). Hence where statutory remedies are available, a petition under Art. 226 of the Constitution should not be entertained unless the said remedies are ill-suited to meet the demands of extraordinary situations. (14). (15). Hence where statutory remedies are available, a petition under Art. 226 of the Constitution should not be entertained unless the said remedies are ill-suited to meet the demands of extraordinary situations. (14). In my considered opinion since in the present writ petition the controversy involved between the parties pertains to the violation of the terms of the agreement as referred to above, the petitioners were verymuch in knowledge that they could avail alternative remedy of filing a civil suit for enforcement of their contractual obligation which were allegedly violated by the respondents and for which a suit for specific performance was an appropriate remedy which should have been availed of by the petitioners before moving this court under Art. 226 and 227 of the Constitution of India. (15). Perusal of the order-sheets of the writ petitions reveals that the matters have been pending for hearing and final disposal at admission stage since the year 1988 and have not been admitted and instead the petitioners have been seeking repeated adjournments from different Benches of the Court on one pretext or the other. In my humble opinion no purpose will be served by admitting the said writ petitions particularly when the petitioners have failed to make out any case for interference by this Court under Art. 226 and 227 of the Constitution. I am further of the opinion that perusal of the writ petitions does not reveal any violation of fundamental rights of the petitioners nor anything has been pleaded by the petitioners in this regard and only thing the petitioners have alleged is interpretation of the relevant provisions of the Rajasthan U.I.T. Act and the disputed questions which have been raised pertain to the allotment of alternative sites of the plots of land measuring 250 sq. yards each and also regarding the excess land which is presently in their use and occupation. In my considered opinion these questions arise out of the contractual obligations for enforcement of the agreement executed between the parties for which proper course was to file a civil suit for specific performance of the agreement which stipulates allotment of alternative plots to the petitioners. (16). In the result, no cause of action has been made out for invoking the jurisdiction of this court under Arts. (16). In the result, no cause of action has been made out for invoking the jurisdiction of this court under Arts. 226 & 227 of the Constitution of India and the writ petitions being devoid of merit are dismissed with no order as to costs. It will however, be open to the petitioners to avail the alternative remedy of filing a civil suit if so advised in accordance with law. The petitioners will not be dispossessed from the land in question for a period of 8 weeks from today with a view to enable them to move before the appropriate forum in this regard. It is further directed that the question of laches, if any, will not come in the way of the petitioners for pursuing the alternative remedy.