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Rajasthan High Court · body

2007 DIGILAW 1862 (RAJ)

Suresh Gupta v. State of Raj.

2007-09-27

MOHAMMAD RAFIQ

body2007
Honble RAFIQ, J.–Although this matter came up for consideration of the application under Article 226(3) of the Constitution of India filed by the respondent Nos. 4 to 9 seeking vacation of ad-interim stay order dated 6.1.2000, but since the arguments that were raised for deciding that application, would be sufficient for deciding the main case itself finally, therefore, the matter was taken up for final disposal with the consent of the parties. (2). Bone of contention between the parties is a piece of land admeasuring 881.68 sq. yards which lies in front of plot Nos. 66, 67 and 68, Kanota Bagh, JLN Marg, Jaipur. While on the one hand, the petitioners claim that the said piece of land, described as strip of land, was offered to be sold to the petitioners by the then Urban Improvement Trust, Jaipur vide letter dated 29.8.1970, they are entitled to allotment of the same. On the other hand, the private respondents No. 4 to 8 claim that they having purchased the aforesaid plots Nos. 66, 67 and 68 vide registered sale deed dated 28.1.1998, the petitioners are now not entitled to allotment of the strip of land and it is they who are entitled to the allotment of the aforementioned strips of land which is actually adjacent to the aforesaid plots. The petitioners however relied upon various letters/communications addressed to them by UIT, especially the letter dated 29.8.1970, 19.10.1972, 10.11.1972, 30.3.1977 and 13.4.1977 in support of their contention. Lastly they relied on the letter of the Deputy Legal Remembrancer dated 28.12.98 which according to the petitioners was recommendation for regularization of their possession by charging double the reserve price in terms of Rule 23 of the Rajasthan Improvement Trust (Disposal of Urban Land) Rules, 1974 (for short-the Rules of 1974) and the letter dated 13.8.1998 addressed by Chief Executive Officer, Nagam Nigam, Jaipur to the Secretary, UDH, Rajasthan, Jaipur. It is in this background that issuance of a mandamus has been prayed for by the petitioners for (i) declaring that their possession stands regularized over the aforesaid strip of land, (ii) directing the respondents to allot the said strip of land to them and regularize their possession on receipt of the cost of land as per the decision taken by the UIT on 27.4.1977, (iii) declaring that the petitioners are allottees of the land and direction be given to JDA/Municipal Corporation/State to issue demand notice for payment of the premium and (iv) restraining the respondents from dispossessing the petitioners from the aforesaid strips of land. (3). I have heard Shri Paras Kuhad, the learned counsel for the petitioners and Shri Bharat Vyas, learned Additional Advocate General with Shri Sandeep Pathak for respondent Nos. 1 to 3 and Shri A.K. Sharma, the learned counsel for respondents No. 4 to 9. (4). Shri Paras Kuhad, the learned counsel for the petitioners argued that the allotment of the aforesaid strips of land was made in favour of the petitioners way back in the year 1972 when the Secretary, UIT, Jaipur by his letter dated 19.10.1972 informed them that the said lands were proposed to be allotted to the petitioners as per the conditions enumerated in the letter of the Chief Town Planner dated 7.9.1972 and asked for the consent of the petitioners. It was argued that the petitioners immediately forwarded their consent by letter dated 10.11.1972 and the possession of the land being already with the petitioners, the only issue that now remained to be sorted out is regarding payment of the premium amount. The UIT in its meeting dated 19.2.1975 fixed the premium at the rate of 125 sq. yards and accordingly issued demand notice to the petitioners on 30.3.1977. The petitioners being aggrieved by the rate of premium of Rs. 125/- sq. yard, requested the respondents for reduction in the rate of premium by making representation dated 15.6.1977 followed by representations dated 2.11.1977, 6.12.1997, 17.1.1998. Shri Paras Kuhad argued that though the notice of demand dated 30.3.1977 was served on the petitioners for deposit of the amount of premium, but no further action was taken by the authorities to dispossess the petitioners and thus they continued in possession of the disputed land. (5). Shri Paras Kuhad argued that though the notice of demand dated 30.3.1977 was served on the petitioners for deposit of the amount of premium, but no further action was taken by the authorities to dispossess the petitioners and thus they continued in possession of the disputed land. (5). While referring to the sale deed dated 28.1.1998, Shri Paras Kuhad argued that though the petitioners have sold the title and rights in the aforementioned plots No. 66, 67 and 68 to the private respondents No. 4 to 9, but a bare reading of the sale deed would indicate that the total land area which was sold to them was approximately 1882.61 sq. meters (2251.55 sq. yards) which is the area of the plots alone and not the strips of land. Therefore, not only by virtue of possession, but also on account of the allotment of the said strips of land having been made in favour of the petitioners by UIT, they are entitled to allotment of the strip of land and not the private respondents. It was argued that petitioners have merely transferred their title in the aforesaid plots No. 66, 67 & 68 but they have not transferred their possession, and title over strips of land which is distinct than the title of the plots themselves. The trial Court has completely misread the evidence of sale deed according to which it cannot be said that the petitioners have not sold/transferred their possession/title to the private respondents. Even if the respondent No. 4 has been impleaded as party respondent to the writ petition, on consideration of their argument, the scope of the writ petition cannot be allowed to be enlarged. (6). Shri Paras Kuhad further argued that the JDA has now suddenly come out with the plea that it had in its meeting dated 28.3.1992 decided to cancel the allotment. Neither the petitioners were provided opportunity of hearing prior to passing of the said order, nor was any communication ever sent to them about the aforesaid decision, therefore, such an order cannot be allowed to defeat a legitimate claim of the petitioners. Neither the petitioners were provided opportunity of hearing prior to passing of the said order, nor was any communication ever sent to them about the aforesaid decision, therefore, such an order cannot be allowed to defeat a legitimate claim of the petitioners. It was argued that the Rules of 1974 were notified on 7.3.1975 and allotment of the strip of land having already been made in favour of the petitioners vide order dated 19.10.1972, those rules cannot be retrospectively applied in the case of the petitioners so as to say that size of the land being more than 100 sq. yards, which is permitted by the said rules, cannot be considered as strips of land for the purpose of regularization of possession. (7). Shri Paras Kuhad in support of his arguments, relied on the judgments of Constitutional Bench of Supreme Court in Bishan Das & Ors. vs. State of Punjab & Ors. ( AIR 1961 SC 1570 and other judgments in Express Newspapers Pvt. Ltd. & Ors. vs. Union of India & Ors. (1986) 1 SCC 133 , State of U.P. & Ors. vs. Maharaja Dharmander Prasad Singh & Ors., (1989) 2 SCC 505 and the judgment of this Court in M/s. Chandra and Co. vs. State of Raj. & Ors., AIR 1981 Raj. 217 and on their strength, argued that a person who is in peaceful possession of the property, cannot be deprived of possession of the same except with due process of law and therefore prayed that a writ should be issued for restraining the respondents from dispossessing the petitioners from the aforesaid strip of land, apart from other reliefs as mentioned above. (8). Shri Bharat Vyas, the learned Additional Advocate General for respondents No. 1 to 3 opposed the writ petition and argued that the so called strips of land, of which allotment has been claimed, cannot at all be considered as strips of land. Though adjacent to the aforesaid three plots and its size is 881.68 sq. yards which is more than 8 times than the permissible limit of the size under Rule 23, supra, such land cannot be described as a strip of land. Even on facts, dispute that has been raised cannot be examined in the scope of extraordinary remedy of writ jurisdiction. yards which is more than 8 times than the permissible limit of the size under Rule 23, supra, such land cannot be described as a strip of land. Even on facts, dispute that has been raised cannot be examined in the scope of extraordinary remedy of writ jurisdiction. The petitioner is essentially in the nature of declaration and injunction suit and for which the only remedy available to the petitioners is to approach the Civil Court. It has been denied that the petitioners are in possession of the aforesaid land and argued that an attempt has been made by them to mislead the Court on the question of their possession. In fact the plots in the vicinity of which the so called strips of land are situated, have been sold out by the petitioners under registered sale deed dated 28.1.1998 to respondents No. 4 to 9. Even on that account, therefore, the petitioners cannot claim allotment of the alleged strips of land because such allotment can be claimed only by the owner of the adjacent plot. It was however contended that though on facts, the respondents are disputing that the aforesaid plots are a strip of land. It was denied that the allotment in favour of the petitioners have become final and the only issue that remained was with regard to payment of the premium amount. In fact the allotment was offered to be made to the petitioners way back in the year 1972 and as per the conditions of such allotment, the petitioners were required to pay premium for the aforesaid plots at the rate of 125 per sq. yard. When the demand notice was sent to the petitioner on 30.3.1977, it was categorically informed to the petitioners that if within seven days they failed to make payment of the demanded amount, their possession being encroachers shall be liable to be removed without any further notice. Similar notice was given on 31.5.1977 also. The petitioners however failed to deposit the required amount and the condition of allotment having not been fulfilled, the offer therefore elapsed. Even then, the JDA in its meeting of BPC at agenda item No. 2 reconsidered the entire matter on 23.8.1992 and finally rejected the claim of the petitioners with direction to remove the encroachments from the land. This decision was conveyed to the petitioner vide letter dated 16.5.1992. Even then, the JDA in its meeting of BPC at agenda item No. 2 reconsidered the entire matter on 23.8.1992 and finally rejected the claim of the petitioners with direction to remove the encroachments from the land. This decision was conveyed to the petitioner vide letter dated 16.5.1992. In the face of it, the petitioners cannot be allowed to say that the intimation about the same was not sent to them. None of the decisions were challenged by the petitioners at that time and now they are being challenged in the present proceedings. It was argued that as per Section 54 of the JDA Act the allotment of lands falling within the Jaipur region can be made only as per prescribed rules. It was argued that the petitioners having not fulfilled the condition of the offer made to them in 1972, the allotment never crystallized in their favour and therefore when the Rules of 1974 came into force, thereafter allotment of any land where the said Rules apply can be made only as per the mode of disposal prescribed therein. It is therefore prayed that the writ petition be dismissed. (9). Shri A.K. Sharma, the learned counsel for the respondents No. 4 to 9 opposed the very maintainability of the writ petition and argued that the matter ought not to be examined on merits just because the petitioners have filed the writ petition. It was argued that the petitioners can in noway claim allotment of the strip of land because the private respondents have purchased the plots to which that strip of land was adjacent. It was argued that according to Rule 23 it is now respondents No. 4 to 9 who are entitled to allotment of the said land which is presently in their possession. That land lies between the plots No. 66, 67 and 68 at JLN Marg and the plots of the petitioners are having opening on such lands. The said strips of land are not capable of being put to any independent use either by the petitioners or even by J.D.A. It was argued that the right to allotment by way of regularization of possession over the strip of land vests in the owner of the plot to which it is adjacent. The said strips of land are not capable of being put to any independent use either by the petitioners or even by J.D.A. It was argued that the right to allotment by way of regularization of possession over the strip of land vests in the owner of the plot to which it is adjacent. The title of the plots having now been transferred in favour of the respondents No. 4 to 9, the petitioners can no longer claim allotment of that land. Shri A.K. Sharma, learned counsel for the respondents No. 4 to 9 have filed an injunction suit in the Court of Civil Judge (Jr. Division), No. 2, Jaipur City, Jaipur to which the petitioners are also party. The petitioners did not at all disclose the fact there about the pendency of the present writ petition and the interim order passed by this Court in that suit. In that case, when the injunction application of the respondents No. 4 to 9 was examined by the said Court, a categorical finding has been recorded that possession of the said strips of land is with the private respondents. In fact, the lands of all three plots i.e. plots No. 66 to 68 is joined by a common wall which also include the aforesaid strip of land. The petitioners had sent written letter to the Chief Town Planner, Municipal Corporation, Jaipur that they have sold the plots No. 66 to 68 to the private respondents and put them in possession, therefore, now the private respondents would be entitled to allotment regularization of the strips of land. It was submitted that when confronting with those letters, the counsel of the petitioners before the civil court did not dispute the correctness of signatures of the petitioners. It was therefore submitted that in view of the finding of fact on the question of possession of the private respondents, this Court should dismiss the writ petition on this ground alone. In fact, the petitioners themselves filed application for temporary injunction in the aforesaid suit which was rejected by the trial Court. It was argued that even though the petitioners were party to the suit, they did not challenge the order of the trial Court dated 28.2.2001 and therefore the finding recorded therein has attained finality. (10). In fact, the petitioners themselves filed application for temporary injunction in the aforesaid suit which was rejected by the trial Court. It was argued that even though the petitioners were party to the suit, they did not challenge the order of the trial Court dated 28.2.2001 and therefore the finding recorded therein has attained finality. (10). I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties and perused the material on record. (11). The relief that has been prayed for in the writ petition is basically aimed at securing a declaration about the possession of the petitioners having been regularised and restraining the respondents from dispossessing them from such possession over the strips of land. The petition thus proceeds on the assumption that the petitioners are in possession of the land. That position is contested by both the respondent- JDA as well as the private respondents. A proceeding parallel to the present one is pending before the Court of Civil Judge (Junior Division) No. 2, Jaipur involving the same dispute in which the private respondents are plaintiffs and the petitioners herein are the defendants. In that suit, while deciding the injunction application a categorical finding has been recorded by the Civil Court based on appreciation of the material on record including the report of the Commissioner who inspected the site, that not only the possession over the land covered under plots No. 66 to 68 is with the private respondents but also of the government land adjacent to the plots which are alleged to be strips of land. In fact, the finding has been recorded that all such lands are covered by common boundary wall with a common gate having a single lock. Even though the petitioners also filed injunction application in those suits for restraining the private respondents not to create any hindrance in their using the lands in dispute, but that application was rejected by the self same order dated 28.2.2001. And the petitioners herein, who were defendants to the said suit, having not challenged the validity of that order, that finding has attained finality. The petitioners cannot be therefore now allowed to say that they are in possession of the government land which is said to be strip of land. And the petitioners herein, who were defendants to the said suit, having not challenged the validity of that order, that finding has attained finality. The petitioners cannot be therefore now allowed to say that they are in possession of the government land which is said to be strip of land. It is not that this Court does not have the jurisdiction to entertain and decide the dispute of this nature where regularization of possession over the strip of land as per law has to be considered. When however the very possession is under dispute and finding adverse to the party approaching this Court, has been recorded by a civil Court, entertaining a petitioner for consideration of such a prayer would not be a sound exercise of jurisdiction. Even otherwise, I have my great doubts about the correctness of proposition canvassed both by the learned counsel for the petitioners and private respondents that in spite of size of the government land being 818.68 sq. yards, it could still be called a strip of land. This contention is based on the premise that since conditional offer for allotment was made to the petitioners way back on 19th October, 1972 on payment of premium and the petitioner having not accepted that condition, the allotment never crystalised in favour of the petitioners. Question with regard to allotment of the said strips of land at a subsequent point of time when the Rules of 1974 were in force would obviously be governed by the mode of disposal prescribed therein. I am therefore not persuaded to uphold the argument that this would amount to retrospectively applying the Rules of 1974 and therefore the restriction as to the size of the strip of land being 100 sq. yards indicated in Rule 23 would not be applicable in this case. This argument, in my considered view, is wholly misconceived and is only noticed to be rejected because the offer of allotment was subject to the condition of petitioners depositing the demanded amount of premium at the rate of Rs. 125/- per sq. mtr. As evidenced from the minutes of the meeting of the trust dated 19.2.1975 placed on record, such land was proposed to be allotted only when the petitioners made payment of the amount of premium at the rate of 125 sq. mtr. 125/- per sq. mtr. As evidenced from the minutes of the meeting of the trust dated 19.2.1975 placed on record, such land was proposed to be allotted only when the petitioners made payment of the amount of premium at the rate of 125 sq. mtr. Accordingly, the demand notice was issued on 30.3.1977 requiring each of the petitioners to make payment of amount of premium within ten days and submit their consent to do so within seven days failing which the encroachment of the petitioners would be removed. Such similar notices were served to the petitioners on 31.5.1977. When the petitioners still failed to deposit the premium amount and represented for reduction in the amount of premium, the matter was again taken to the Trust who in its meeting dated 27.4.1977 at agenda item No. 26 rejected the representation and directed that in case the petitioners fail to deposit the demanded amount within one month, action should be taken to remove their possession treating them as trespassers. This cannot be therefore accepted that the allotment made in favour of the petitioners became final and the only issue that remained pending was with regard to the payment of the premium. It cannot be said that any right came to accrue in favour of the petitioners which acquired the status of vested right and for the same reason therefore it cannot be held that on the date when the Rules of 1974 came in to force, any vested right had accrued in favour of the petitioners on the basis of above referred to offer of allotment. In this view of the matter, the Rules of 1974 are the only Rules which would govern the allotment of land which contains the various modes of disposal of the land including in regard to the allotment of strip of land. Rule 23 describes the size of strip of land as a land which is adjacent to a plot and which cannot be put to an independent use and which in no case exceeds 100 sq. yards. Allotment of such land and also regularization of possession over such land, either of the petitioners and for that matter, of the respondents No. 4 to 9 cannot be made by treating the same as a strip of land. yards. Allotment of such land and also regularization of possession over such land, either of the petitioners and for that matter, of the respondents No. 4 to 9 cannot be made by treating the same as a strip of land. Even otherwise, when the petitioners have sold the land of the plots No. 66, 67 and 68 to the respondents No. 4 to 9, now they do have any independent or distinct right to claim regularization of possession over the government land referred to above on the analogy of it being a strip of land. Even if the strength of the argument of the learned counsel for the petitioners is tested by assuming the aforesaid government land as the strip of land, which fact though is contested, then also the argument would seem wholly misconceived because the right to claim allotment of a strip of land, in the scheme of Rule 23 is reserved to only owner of the adjacent plot and in the event of transfer of the title of the adjoining land, right to claim allotment of such strip of land, if at all it can be considered as a right, also stands transferred. This right cannot independently survive on the analogy that possession/title of the strip of land is distinct from the title of the adjacent plot as has been sought to be argued on behalf of the petitioners. But that is besides the point, as per the finding recorded by the Civil Court, possession of the petitioners has not been proved on such land. No legally enforceable right inhers in the petitioners. (12). I have respectfully studied the case laws cited by Shri Paras Kuhad, the learned counsel for the petitioners. All those cases would hardly have any application to the facts of the present case because the controversy in all of them arose out of the dispossession of lessee by the Government in their capacity as lesser whereas in the present case, transfer of possession has taken placed pursuant to agreement to sale between the parties owning to voluntary act on the part of the petitioners themselves and not by intervention of the Government or the JDA. (13). In view of what has been discussed above, I do not find any merit in this writ petition. The writ petition is therefore dismissed with no order as to costs.