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2007 DIGILAW 936 (RAJ)

Bhanwarlal v. State of Raj.

2007-05-03

S.N.JHA

body2007
Honble JHA, CJ.—The dispute in these writ petitions relates to the additional price of land allotted under the Rajasthan Colonisation (Allotment and Sale of Government Land in the Indira Gandhi Canal Colony Area) Rules, 1975 (hereinafter referred to as the Rules). 2. Rule 13-A of the said Rules provides for sale of land by special allotment. Clause (vii) of sub-rule (5) thereof - around which the dispute revolves, lays down that if at any time after coming into force of Rule 13-A, any Government land allotted as uncommand land becomes command land, the allottee or his transferee including subsequent transferee, in possession of the land, as the case may be, shall pay to the State Government the price fixed for the nearest command land in the same chak notified under Rule 13-A(1) at the time of the initial allotment of the uncommand land, and in case the price of command land in the same chak has not been fixed under this rule at the time of initial allotment of uncommand land then the price of command land in the nearest chak, increased @ 15% per annum from the date of initial allotment upto the land becoming command land less the price which he has already paid for the allotment of the uncommand land. 3. The point for consideration is whether the land having been once allotted and price thereof paid, additional price can be charged in the event of the land which was uncommand land at the time of allotment becoming command land. The terms Command Land and Uncommand Land have been defined in Rule 2 of the Rules to mean respectively "land shown as such by the Irrigation Department of the State Government in its latest authenticated command and uncommand land statement with reference to any area of the Indira Gandhi Canal Colony". The petitioners who were allotted lands – approximately 25 bighas each – were served with notices calling upon them to pay additional sums between Rs. 74,613/- and Rs. 1,28,829/- besides interest – purportedly in pursuance of the aforesaid provision. Apart from challenging the notices enclosed as annexures 7 to 12 to to the writ petition, they have also challenged the vires of clause (vii) of rule 13-A(5) and that is how the matter has come up before the Division Bench. 4. 74,613/- and Rs. 1,28,829/- besides interest – purportedly in pursuance of the aforesaid provision. Apart from challenging the notices enclosed as annexures 7 to 12 to to the writ petition, they have also challenged the vires of clause (vii) of rule 13-A(5) and that is how the matter has come up before the Division Bench. 4. The case of the petitioners is that by different orders they were allotted uncommand land, that is, unirrigated land in 1991. They paid full price as demanded from them and they were put in possession of the land and they are cultivating the same ever since. According to them, the sale being complete in all respects, the terms thereof cannot be altered and the allottees cannot be asked to pay higher price by virtue of the amended provision giving it retrospective effect. 5. The Rajasthan Colonisation Act, 1954 under which the said rules have been framed was enacted to make better provision for colonization and administration of lands in the State of Rajasthan. In terms of Section 3, the Act is applicable to all lands in a colony which has been defined to mean any area to which the Act is applied by order of the State Government or in respect of minor irrigation projects, by order of the Collector authorized by the State Government in that behalf. Under Section 7(1), the State Government may grant land in a colony to any person on such conditions as may be prescribed. Section 13 provides that no tenant shall without the previous consent of the State Government or an officer of the State Government authorized in that behalf, transfer his rights or interest by virtue of sale, mortgage, exchange or gift or shall create a charge thereon or sub-let the same for more than five years except by way of exchange. Sections 14, 15 and 16 contain provisions to regulate and control the transfer etc. Section 28 confers power on the State Government to make rules for carrying into effect the provisions and purposes of the Act, and in particular, for all matters which are required by the Act to be prescribed or may be prescribed thereunder. The Rajasthan Colonisation (Allotment and Sale of Government Land in India Gandhi Canal Colony Area) Rules have been framed in exercise of powers conferred by Sections 7 and 28 of the Act. 6. The Rajasthan Colonisation (Allotment and Sale of Government Land in India Gandhi Canal Colony Area) Rules have been framed in exercise of powers conferred by Sections 7 and 28 of the Act. 6. The State Government had earlier framed the Rajasthan Colonisation (Sale and Allotment of Government Land to Post-1955 Temporary Cultivation Lease Holders and other landless persons in the Indira Gandhi Canal Project Area) Rules, 1971 which was struck down by the Supreme Court. In the light of the decision of the Supreme Court, the old rules were repealed and in their place the present rules were framed in 1975 which came into force from 8.8.1975. Rules 7 of the Rules deals with eligibility and priorities for allotment of Government land. Under Rule 8, the allotting authority may from time to time, fix time and date for inviting applications for allotment of Government land for any specific purpose keeping in view the priorities laid down in rule 7(1), and also prepare village-wise/chak-wise lists of all Government land available for allotment. Rule 9 provides for issue and publication of notice. Under Rule 10, application may be filed for allotment within time fixed in the notice. Rule 11 provides for enquiry and report, Rule 12 deals with allotment of land to agriculture graduates. Rule 12-A deals with allotment of land to ex-servicemen. Rule 13 provides for allotment of land to other categories of persons. Rule 16 lays down that the Rajasthan Colonisation (General Colony) Conditions, 1955 shall apply to all allotments of land made under these rules. Rule 17 deals with the price of land and mode of payment. Under Rule 17(4), if any Government land as uncommand land becomes command land at any time after allotment, the allottee is required to pay to the State Government, the reserve price of command land at the prescribed rates less the price already paid in terms of uncommand land. Under Rule 17(5), if any land as command land is declared by the competent authority as uncommand land subsequently before its price has been fully paid up, the amount paid towards its price as command land will be adjusted towards the price of instalment payable for it as uncommand land, and any amount already paid in excess thereof shall be refunded to the allottee. These are some of the salient provisions of the Rules. 7. These are some of the salient provisions of the Rules. 7. Rule 13-A was added by amendment on 20.2.1980 to provide for special allotment. It may not be out of place to mention that Rule 24 already contained provision for allotment of land in special cases. Under the said rule, the State Government is competent to make allotment to any person "as a special case notwithstanding anything contained in the Rules". 8. Rule 13-A, if we may say so, is a self-contained provision with respect to sale of land by special allotment. On a reading of the various parts of Rule 13-A, it would appear that they broadly correspond to the provisions relating to eligibility and extent of allotment, priorities of allotment, filing of application for allotment and enquiry, and terms and conditions of general allotment referred to above. It is not necessary to notice all the provisions except sub-rule (5) which deals with the price of land and mode of payment. The provision may be quoted in extenso in order to appreciate the context in which clause (vii) occurs in the rules:– "(5)(i) A sum of Rs. 500/- of the notified price shall be deposited by the applicant as earnest money before his application is taken up for consideration by the allotting authority. (ii) Twenty-five percent of the notified price shall be paid by the allottee at the time of issue of the allotment order, and ten percent of the notified price shall be paid by him before taking actual possession of the land allotted to him. (iii) The remaining 60% shall be recovered in three equal instalments. If the allotment order is issued before 30th June of the year, the first instalment shall fall due on the first day of January of the year immediately following and if the allotment order is issued in between 1st July and 31st December of the year, the first instalment shall fall due on 1st July of the year immediately following the second and third instalments shall fall due one year after the preceding instalment respectively. The earnest money of an applicant who retracts and does not deposit the notified price as prescribed in the rules at the time of allotment shall be forfeited by the State Government. The earnest money of an applicant who retracts and does not deposit the notified price as prescribed in the rules at the time of allotment shall be forfeited by the State Government. (iv) In case more than one eligible persons of the same category applying for allotment of the same plot of land, allotment shall be made by auction amongst these persons, but the highest bid shall not be sanctioned by the allotting authority if it is less than the maximum price for a check as notified under Rule 13-A. (vi) After completion of allotment the earnest money of the non-allottee applicants shall be returned immediately. . . . . . . . . ." 9. Clause (vii) was added by amendment on 4.2.1992. Being subject matter of contention, it may also be quoted in extenso as under:– "(vii) If at any time after coming into force of Rule 13-A any Government land allotted as uncommand land becomes command land, the allottee or his transferee, in possession of the land, as the case may be, shall pay to the State Government the price fixed for the nearest command land in the same chak notified under Rule 13-A at the time of the initial allotment of the uncommand land, and in case the price of command land in the same chak has not been fixed under this rule at the time of initial allotment of uncommand land then the price of command land in the nearest chak, increased @ 15% per annum from the date of initial allotment upto the land becoming command land less the price which he has already paid for the allotment of the uncommand land." 10. It is relevant to mention here that the words "after coming into force of Rule 13-A" were inserted in clause (vii) by amendment on 21.12.1992. By virtue of the said amendment, thus, clause (vii) was made effective from 20.2.1980 itself - the date when Rule 13-A was added to the Rules. On a bare reading of the provision, it is manifest that by reason of the latter amendment incorporating the words "after coming into force of Rule 13-A", clause (vii) has been given retrospective effect so as to apply and cover allotments made on or after 20.2.1980. 11. The point of consideration is whether the liability of the allottee can be altered giving the provision a retrospective effect. 11. The point of consideration is whether the liability of the allottee can be altered giving the provision a retrospective effect. It is not in dispute that the allotment made in favour of the petitioners in 1990 were completed transaction and had become final. The rights of the allottees cannot be altered or taken away by making rules to that effect without any legislative sanction. 12. Counsel for the petitioners referring to sub-rule (5) of Rule 13-A submitted that the rule refers to the notified price to be paid by the allottee in the manner mentioned therein and once the price fixed and notified by the Government stands paid and accepted by the competent authority, a concluded sale comes into existence which cannot be modified or altered later without any legislative sanction. 13. It was submitted on behalf of the State that Rule 17(4) contains a similar provision and if this Court were to hold that Rule 13-A(5)(vii) cannot be given a retrospective effect, the liability of the petitioners to pay the additional price in the event of the uncommand land becoming command land cannot be disputed. 14. We may mention here that the provisions of Rule 13-A(5)(vii) and Rule 17(4) the allottee is required to pay the difference of price with reference to the "reserve price" of command land at the rate mentioned in the rule whereas under Rule 13-A(5)(vii), he is required to pay "the price fixed for the nearest command land". However, it is not necessary to consider the relative import of the two provisions, for the allotments having been admittedly made in terms of Rule 13-A – which provides for "special allotment", the general provisions would not be applicable. As mentioned above, the Rules refer to different kinds of allotments such as agriculture graduates, landless persons and ex-servicemen. Rule 13-A was added in 1980 to provide for special allotment even though Rule 24 already contains provision for allotment of land "in special cases". It is well settled that where special provisions are made in the subject the general provisions stand excluded. The principle is expressed in the maxims Generalia specialibus non derogant and Generalibux specialia derogant. We have noticed above that Rule 13-A is a self-contained provision containing provisions relating to eligibility, priorities, manner of filing applications and enquiry, terms and conditions of allotment and so on. 15. The principle is expressed in the maxims Generalia specialibus non derogant and Generalibux specialia derogant. We have noticed above that Rule 13-A is a self-contained provision containing provisions relating to eligibility, priorities, manner of filing applications and enquiry, terms and conditions of allotment and so on. 15. In Jesaram vs. State of Rajasthan, 1985(1) WLN 662, on which reliance was placed on behalf of the petitioners, a more or less similar question had arisen for consideration. The petitioner has been allotted land in compliance of the order of the Commissioner Colonization for allotment of land to the declared landless agriculturists of Bhakra Project Area in the Rajasthan Canal Project Area. The allotment order stated, among other things, that the rules framed under the Rajasthan Colonisation Act, 1954 shall apply to the allotted land and the allottee would be bound by the rules framed from time to time. It was further provided that the allottee would be responsible for making payment of price as determined by the Government in time. On 17.7.1984 notice was served on the petitioner to submit application for regularisation of the allotment. The notice stated that the regularisation or the allotment has to be made under Rule 24 of the Rajasthan Colonization (Allotment and Sale of Government Land in the Rajasthan Canal Colony Area) Rules, 1975 (the same very Rules which are subject matter of the present case). The notice also stated that those Bhakra landless persons who have got the land in excess of the allotment limit are required to get the land regularized under Rule 24 of the Rules of 1975. The allotment was to be made upto 25 Bighas of irrigated land or 50 bighas of un-irrigated land on the reserve price and those who are in possession of excess land upto ceiling limit, the allotment was to be made on payment of four times of the reserve price. Contending that the total price of the land had been paid and the land vested in him, the petitioner approached the High Court for quashing the notice. Upholding the claim of the petitioner, the Court observed as under:– "After payment of price according to 1967 rules nothing remains to be done by the allottees and a right in the land had vested in them on payment of price. Upholding the claim of the petitioner, the Court observed as under:– "After payment of price according to 1967 rules nothing remains to be done by the allottees and a right in the land had vested in them on payment of price. When a right is vested in them, there are no powers conferred on the State Government under the 1975 Rules, whereby such allottees can be called upon to make payment of the reserved price upto 25 Bighas and payment of four times of the reserved price in respect of excess land upto the ceiling limit. The petitioners have been in possession for the last 18 to 23 years. The price can only be fixed once and the price can not be revised or increased by the State Government at its will from time to time in respect of Pre-167 allottees, so, it was incompetent for the State Government to increase the price of the land after it was once fixed." 16. Reliance was also on behalf of the petitioners on Smt. Tulsi vs. State of Rajasthan 1996 WLC (Raj.) UC 501 wherein applying the principle of promissory estoppel, it was held that the respondents are not entitled to the payment of difference of price at market rate. 17. In State of Rajasthan vs. Purkha Ram, 1994 Supp. (2) SCC 169 dealing with a somewhat similar controversy in the context of the Rajasthan Colonization (Rajasthan Central Project Government Land Allotment and Sale) Rules, 1967, the Supreme Court held as under:– "3. . . . . . the effect of the allotment made in favour of the displaced persons from Bhakra Nangal Project area and rehabilitated in Rajasthan Canal Project area was that the allotment was on permanent basis irrespective of the area allotted to each of the allottees. They shall be deemed to have been allotted under the Rules. The allottee was enjoined to pay the price of the land at the rate provided in Rule 23. It is an admitted case that the respondents did make payment as contemplated under Rule 23. 5. . . . . . They shall be deemed to have been allotted under the Rules. The allottee was enjoined to pay the price of the land at the rate provided in Rule 23. It is an admitted case that the respondents did make payment as contemplated under Rule 23. 5. . . . . . A reading of this rule would clearly show that its operation is prospective subject to the provisions contained in the Act, the rules and the special terms and conditions specified in the Rajasthan Colonisation (General Colony) Conditions, 1955, allotments of Government lands under these Rules shall be on permanent basis, the allottees would be eligible ultimately to the conferment of the khatedari rights subject, however, to special terms and conditions which might hereafter be imposed by the Government would be applicable and the allottees are bound by them. On the word hereafter, emphasis was laid by Shri B.D. Sharma to contend that the allottees the displaced persons under Bhkara Nangal Project who would come under Rule 8(1)(b) are also bound by the special terms and conditions enumerated in Rule 8(1)(a) and that, therefore, they are bound to pay the demands as issued in the impugned notice. a reading of the rule does not warrant such an interpretation. Rule 8(1)(a) would prospectively apply independently to the future allottees, be they displaced persons or any person applying for allotment. They alone would be bound by the terms and conditions. If the rule-making authority intended the operation of Rule 8(1)(a) to apply to the persons covered by Rule 8(1)(b), suitable language would have been employed in Rule 8(1)(b) to make them liable to the special terms and conditions. We find no such language. From Rule 8(1)(b) itself, no such indication is discernible. Unfortunately, no such language was there even to impliedly so suggest. On the other hand, it is said expressly that the allottee shall be liable to the payment of price of such land at the rates provided for in Rule 23". Thereby, their liability is only with reference to the rates fixed under Rule 23. As admittedly, the respondents have paid the price fixed under Rule 23, there is no power for the Government to revise the price already fixed and paid. Accordingly, we are of the view that the High Court is right in quashing the demands. We do not find any ground warranting interference." 18. As admittedly, the respondents have paid the price fixed under Rule 23, there is no power for the Government to revise the price already fixed and paid. Accordingly, we are of the view that the High Court is right in quashing the demands. We do not find any ground warranting interference." 18. In view of the precedents on the subject, we are clearly of the view that clause (vii) can be given effect to only from the date of amendment i.e. 4.2.1992, and the allotments already made which had become final in the eye of law prior to that date cannot be reopened and the allottees can not be asked to pay the additional price or difference of price treating the land in question as command land for the purpose of payment of price later. In the above premises, the impugned notices calling upon the petitioners to pay the additional price cannot be said to be in accordance with law, and they are fit to be quashed. 19. In the result, the impugned notices contained in Annexures 7 to 12 in Writ Petition No. 4954/1997, Annexures 12 to 22 in Writ Petition No. 3877/1999, Annexures 4 to 6 in Writ Petition No. 1775/2000 and Annexures 4 to 6 in Writ Petition No. 2646/2000 are quashed and the writ petitions are accordingly allowed but without any order as to costs.