Estate Officer, Haryana Urban Development Authority and Ors. v. Nirmala Devi

Estate Officer, Haryana Urban Development Authority and Ors. v. Nirmala Devi

Re : Question (ii)

11. As noticed above, the scheme requires the allottees under the scheme for land-losers/oustees, to pay the normal allotment rates for the allotted plots. The question is what is the meaning of the term `the normal allotment rate’. No doubt, the term would ordinarily refer to the allotment rate prevailing at the time of allotment. If an acquisition is made in 1985 and the developed layout in the acquired lands is ready for allotment of plots in 1990, and allotments are made in the years 1990, 1991, 1992, 1993, 1994 and 1995 at annually increasing rates, a land-loser who is allotted a plot in 1990 will naturally be charged a lesser price. But if his application is kept pending by the Development Authority for whatsoever reason and if the allotment is made in 1992, he may have to pay a higher price; and if the allotment is made in 1995 he may have to pay a much higher price. The question is whether any discrimination should be permitted depending upon the whims, fancies and delays on the part of the authority in making allotments. To take this case itself, the application for allotment was made in 1990. On 9.9.1991, HUDA advertised the residential plots in the sectors developed from the acquired lands for allotment, wherein the allotment rate was shown as Rs.1032 per sq.m. (Rs.863/- per sq.yd) for plots of 300 sq. m. In the year 1993, the allotment price was increased to Rs.1342/- per sq.m. (Rs.1122/- per sq.yd.) and the appellants are required to pay the 1993 price instead of paying the rate in vogue when the layout was ready for allotment. Should the land loser who promptly made the application in 1990 be made to suffer, because of the inaction on the part of HUDA in making the allotment? We get the answer in the HUDA scheme itself.”

45. In Jarnail Singh (supra), the Full Bench of the Punjab and Haryana High Court held that every co-sharer is entitled to a plot as per his entitlement, although his land is joint with others. The Full Bench held that every co-sharer has an independent right to allotment to plot under the oustee quota. It is the share of the co-sharers which is acquired, and the compensation is paid independently to all co- sharers and the entire compensation is not paid to one co-sharer

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on behalf of all. In such circumstances, a co-sharer is entitled to separate plot as per his share, if eligible, in accordance with law. In Jarnail Singh (supra), the Full Bench struck down Clause 6(V) of the Policy dated 26.09.1994 and held that it had no reasonable nexus with the object to be achieved, as the basic purpose of the policy of HUDA is to rehabilitate the oustees.

46. The Writ Petitions ultimately came to be disposed of with the following orders and directions: “1. The oustees, whose land is compulsorily acquired for a public purpose, form a class in itself, having a rational basis with the object of re-settlement;

2. Clause 6(v) of the Policy dated 26.9.1994 is struck down as it has no reasonable nexus with the objective to be achieved;

3. A co-owner, as per the eligibility criteria fixed by the State Government, shall be entitled to be considered for allotment of plot irrespective of the fact that his holding of land is joint with other co-owner;

4. However, the oustees, as a class in themselves, would be entitled to reservation of plots to such an extent as the State Government may deem appropriate;

5. That the State Government shall be at liberty to reframe policy for reservation of plots to constitutionally permissible classes and within limit of 50% of plots; and

6. That till such time an appropriate policy is framed, the State Government or its instrumentalities shall not allot plots under the oustees quota.”

i. Dictum as laid by this Court in Brij Mohan (Supra) and the Ratio Decidendi.

47. This Court has rendered plethora of decisions explaining how to cull out the ratio decidendi of a judgment and identify the principles which have precedential value. It is now well settled that not every observation in a judgment of this Court is binding as precedent. Only the ratio decidendi or the propositions of law that were necessary to decide on the issues between the parties are binding. Observations

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by the judge, even determinative statements of law, which are not part of her reasoning on a question or issue before the court, are termed obiter dicta. Such observations do not bind the Court. More simply, a case is only an authority for what it actually decides.

48. A Constitution Bench of this Court in Islamic Academy of Education v. State of Karnataka reported in 2003 INSC 391 pithily observed: “2. …The ratio decidendi of a judgment has to be found out only on reading the entire judgment. In fact, the ratio of the judgment is what is set out in the judgment itself. The answer to the question would necessarily have to be read in the context of what is set out in the judgment and not in isolation. In case of any doubt as regards any observations, reasons and principles, the other part of the judgment has to be looked into. By reading a line here and there from the judgment, one cannot find out the entire ratio decidendi of the judgment. …” (emphasis supplied)

49. In Secunderabad Club v. CIT reported in 2023 INSC 736 this Court, had the occasion to delineate how to cull out the ratio decidendi of a judgment and identify the principles which have precedential value. This Court observed: “14….According to the well-settled theory of precedents, every decision contains three basic ingredients: (i) findings of material facts, direct and inferential. An inferential finding of fact is the inference which the judge draws from the direct or perceptible facts ; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of (i) and (ii) above. For the purposes of the parties themselves and their privies, ingredient (iii) is the material element in the decision, for, it determines finally their rights and liabilities in relation to the subject-matter of the action. It is the judgment that

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estops the parties from reopening the dispute. However, for the purpose of the doctrine of precedent, ingredient (ii) is the vital element in the decision. This is the ratio decidendi. It is not everything said by a judge when giving a judgment that constitutes a precedent. The only thing in a judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi.” (emphasis supplied)

50. Further, a simple test that has been invoked by this Court to determine whether a particular proposition of law is to be treated as the ratio decidendi of a case is the “inversion test” formulated by Professor Eugene Wambaugh. The test mandates that to determine whether a particular proposition of law is part of the ratio decidendi of the case, the proposition is to be inversed. This means that either that proposition is hypothetically removed from the judgment, or it is assumed that the proposition was decided in reverse. After such removal or reversal, if the decision of the Court on that issue before it would remain the same then the observations cannot be regarded as the ratio decidendi of the case.

51. In State of Gujarat v. Utility Users’ Welfare Assn. reported in (2018) 6 SCC 21, the test was explained thus: “113. In order to determine this aspect, one of the well- established tests is “the Inversion Test” propounded inter alia by Eugene Wambaugh, a Professor at The Harvard Law School, who published a classic text book called The Study of Cases [ Eugene Wambaugh, The Study of Cases (Boston: Little, Brown & Co., 1892).] in the year 1892. This textbook propounded inter alia what is known as the “Wambaugh Test” or “the Inversion Test” as the means of judicial interpretation. “the Inversion Test” is used to identify the ratio decidendi in any judgment. The central idea, in the words of Professor Wambaugh, is as under: “In order to make the test, let him first frame carefully the supposed proposition of law. Let him then insert in the proposition a word reversing its meaning. Let him

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then inquire whether, if the court had conceived this new proposition to be good, and had it in mind, the decision could have been the same. If the answer be affirmative, then, however excellent the original proposition may be, the case is not a precedent for that proposition, but if the answer be negative the case is a precedent for the original proposition and possibly for other propositions also. [ Eugene Wambaugh, The Study of Cases (Boston: Little, Brown & Co., 1892) at p. 17.] ”

114. In order to test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is to be inversed i.e. to remove from the text of the judgment as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case. This test has been followed to imply that the ratio decidendi is what is absolutely necessary for the decision of the case. “In order that an opinion may have the weight of a precedent”, according to John Chipman Grey [ Another distinguished jurist who served as a Professor of Law at Harvard Law School.], “it must be an opinion, the formation of which, is necessary for the decision of a particular case”. (emphasis supplied)

52. The test was affirmed by a three-Judge Bench of this Court in Nevada Properties (P) Ltd. v. State of Maharashtra reported in (2019) 20 SCC 119 wherein it was held thus: “13. It follows from the aforesaid discussion that the decision in Tapas D. Neogy [State of Maharashtra v. Tapas D. Neogy, (1999) 7 SCC 685 : 1999 SCC (Cri) 1352] did not go into and decide the issue: whether immovable property would fall under the expression “any property” under Section 102 of the Code. We say so by applying the inversion test as referred to in State of Gujarat v. Utility Users’ Welfare Assn. [State of Gujarat v. Utility Users’ Welfare Assn., (2018) 6 SCC 21] , which states that the Court must first carefully frame the supposed proposition

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of law and then insert in the proposition a word reversing its meaning to get the answer whether or not a decision is a precedent for that proposition. If the answer is in the affirmative, the case is not a precedent for that proposition. If the answer is in the negative, the case is a precedent for the original proposition and possibly for other propositions also. This is one of the tests applied to decide what can be regarded and treated as ratio decidendi of a decision. Reference in this regard can also be made to the decisions of this Court in U.P. SEB v. Pooran Chandra Pandey [U.P. SEB v. Pooran Chandra Pandey, (2007) 11 SCC 92 : (2008) 1 SCC (L&S) 736], CIT v. Sun Engg. Works (P) Ltd. [CIT v. Sun Engg. Works (P) Ltd., (1992) 4 SCC 363] and other cases which hold that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio. Not every observation found therein nor what logically flows from those observations is the ratio decidendi. Judgment in question has to be read as a whole and the observations have to be considered in light of the instances which were before the Court. This is the way to ascertain the true principles laid down by a decision. Ratio decidendi cannot be decided by picking out words or sentences averse to the context under question from the judgment.” (emphasis supplied)

a. Wambaugh’s Test / Inversion Test

53. The Inversion Test propounded by Wambaugh is based on the assumption that the ratio decidendi is a general rule without which a case must have been decided otherwise. Inversion Test is in the form of a dialogue between him and his student. He gave following instructions for this:

1. Frame carefully the supposed proposition of law.

2. Insert in the proposition a word reversing its meaning.

3. Inquire whether, if the court had conceived this new proposition to be good and had had it in mind, the decision could have been the same.

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4. If the answer is affirmative, then, however, good the Original Proposition may be, the case is not a precedent for that proposition.

5. But if the answer be negative, the case is a precedent for the Original Proposition and possibly for other propositions also.

54. Thus, when a case turns only on one point the proposition or doctrine of the case, the reason for the decision, the ratio decidendi, must be a general rule without which the case must have been decided otherwise. A proposition of law which is not ratio decidendi under the above test must, according to Wambaugh, constitute a mere dictum.

55. However, Rupert Cross criticized the Inversion Test on the ground that “the exhortation to frame carefully the supposed proposition of law and the restriction of the test to cases turning on only one point rob it of most of its value as a means of determining what was the ratio decidendi of a case, although it has its uses as a means of ascertaining what was not ratio”.

56. Thus, the merit of Wambaugh’s test is that it provides what may be an infallible means of ascertaining what is not ratio decidendi. It accords with the generally accepted view that a ruling can only be treated as ratio if it supports the ultimate order of the court.

b. Halsbury’s Test

57. The concept of precedent has attained important role in administration of justice in the modern times. The case before the Court should be decided in accordance with law and the doctrines. The mind of the Court should be clearly reflecting on the material in issue with regard to the facts of the case. The reason and spirit of case make law and not the letter of a particular precedent.

58. Lord Halsbury explained the word “ratio decidendi” as “it may be laid down as a general rule that that part alone of a decision by a Court of Law is binding upon Courts of coordinate jurisdiction and inferior Courts which consists of the enunciation of the reason or principle upon which the question before the Court has really been determined. This underlying principle which forms the only authoritative element of a precedent is often termed the ratio decidendi”.

59. In the famous case of Quinn v. Leathem, Lord Halsbury said that:

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“Now, before discussing the case of Allen v. Flood and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.” (emphasis supplied)

60. Thus, according to Lord Halsbury, it is by the choice of material facts that the Court create law.

c. Goodhart’s Test

61. In 1929, Goodhart had argued that the ratio of a case must be found in the reasons for the decision and that there is no necessary connection between the ratio and the reasons. He laid down following guidelines for discovering the ratio decidendi of a case:

1. Ratio decidendi must not be sought in the reasons on which the judge has based his decision.

2. The reasons given by the judge in his opinion are of peculiar importance, for they may furnish us with a guide for determining which facts he considered material and which immaterial.

3. A decision for which no reasons are given does not necessarily lack a ratio; furthermore, the reasons offered by a court in reaching a decision might be considered inadequate or incorrect, yet the court’s ruling might be endorsed in later cases – a ‘bad reason may often make good law’.

4. Thus, ratio decidendi is whatever facts the judge has determined to be the material facts of the case, plus the judge’s decision

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as based on those facts. It is by his choice of the material facts that the judge creates law.

62. If we accept Goodhart’s conception of ratio decidendi, we could explain why hypothetical instances are unlikely to be accorded the same weight as judicial precedents as hypothetical instances are by definition obiter dicta. Also, this conception of ratio decidendi links the doctrine of precedent with the principle that like cases be treated alike. Any court which considers itself bound by precedent would come to the same conclusion as was reached in a prior case unless there is in the case some further fact which it is prepared to treat as material, or unless fact considered material in the previous case is absent.

63. Applying the three tests referred to above, so as to understand the ratio of the decision of the Court rendered in Brij Mohan (supra) and its binding effect we have no hesitation in taking the view that the case on hand is not covered by the dictum as laid in Brij Mohan (supra). We find it difficult to accept the vociferous submission canvased on behalf of the respondents that so far as the rate at which the allotment is to be made is squarely covered by the dictum as laid in Brij Mohan (supra).

64. Ms. Bhati the learned ASG is right in her submission that so far as the first question answered by this Court in Brij Mohan (supra) is concerned i.e. whether HUDA should charge only the actual land cost plus development charges for the plots allotted to an oustee and not at the market price/normal allotment price; this Court returned a finding that the land acquisition Act, 1894 contemplates only benefits like solatium, additional amount and higher rate of interest to the oustees and not allotment of plots at cost price. HUDA or the State Government does not have any scheme providing for allotment of plots at actual cost of oustees. In such circumstances, it is not permissible for the Court to direct the State Government or the development authority to allot plots to the oustees at the reasonable price.

65. In so far as the second question answered by this Court in Brij Mohan (supra) is concerned i.e. what is the meaning of the expression “normal allotment rate”, this Court found that as a matter of fact the land-loser had made an application in the year 1990 for allotment of plot. A direction was issued by this Court in the year 1992 but HUDA delayed the allotment to the appellants therein. In

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such circumstances, the rate for which the plots were initially offered was to be charged.

66. The second question answered in Brij Mohan (supra) is keeping in mind the facts of the case wherein the application was submitted by an oustee but still the plot was not allotted to him.

67. Ms. Bhati is right in her submission that the dictum as laid in Brij Mohan (supra) should not be read as laying down an absolute proposition of law that the “normal allotment rate” in all circumstances shall be paid when the sector is first floated for sale. As a matter of fact, the normal allotment rate would be the rate advertised by HUDA in pursuance of which the plots are allotted. In the case on hand the picture is hazy in so far as the fact whether appropriate applications in the prescribed format were preferred in accordance with the Policy of 1992 with deposit of the earnest money as stipulated in the scheme itself.

68. However, with all that has been said by us as aforesaid we are still inclined to direct the appellant to allot the plots to the eligible oustees in accordance with the Policy of 2016. It shall be open for the eligible oustees i.e., the respondent herein to apply online in accordance with the Policy of 2016 with the requisite deposit of the amount. If such application is filed online with the deposit of the requisite amount, the appellant shall consider the same and process the online application accordingly.

ii. Maintainability of the Suit filed under Section 39 of the Specific Relief Act, 1963 for seeking Mandatory Injunction for Enforcement of the Obligations in terms of the Scheme of 1992.

69. Although it is not necessary for us to look into Section 39 of the Specific Relief Act, 1963 (for short, the Act, 1963) or consider whether the suits instituted by the respondents herein invoking Section 39 of the Act were maintainable in law, yet for the benefit of the courts below we would like to explain the scope and purport of Section 39 of the Act, 1963. We say so because irrespective of the question whether suits were maintainable in law or not we have decided to give the respondents herein the benefit of the 2016 Scheme.

70. Section 39 of the Act 1963 reads thus:

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“39. Mandatory injunctions.—When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.”

71. The term “obligation” in Section 39 referred to above has been defined under Section 2(a) of the Act 1963. The same reads thus:- “obligation” includes every duty enforceable by law;”

72. Obligation is a tie or bond which obliges one to do or suffer something. The term as defined in the Act 1963, means any duty enforceable by law and, therefore, excludes all imperfect obligations, such as moral, social and religious duties, as the performance of those duties cannot be enforced by law. As the present definition includes any duty enforceable by law, it includes:- (a) Obligations arising out of law of torts as well as of contract. (b) Obligations arising out of trust. (c) Obligations arising out of a statute.

73. In the case on hand, the suits were instituted by the respondents herein for mandatory injunction seeking allotment of plots in accordance with the scheme of 1992 floated by the State of Haryana.

74. This Section requires that the defendant or the party concerned must be prevented from breach of an obligation under the contract. It further requires that certain special acts, which flow from such obligation, must be specifically proved. The acts must have reference to an enforceable obligation. The breach of obligation and performance and compulsion to perform certain acts in relation to such obligation must be specifically established before a mandatory injunction can be granted. The plaintiff in a suit instituted by him under Section 39 of the Act 1963 is obliged to satisfy the court with appropriate pleadings and cogent evidence that the defendant is committing breach of a particular obligation which is binding on him and there are certain acts which are capable of being enforced by the court in view of the terms of the policy of allotment of plot so far as the case on hand is concerned.

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75. Mandatory injunction by its nature embodied under Section 39 of the 1963 Act is discretionary. The granting of mandatory injunction is a matter of judicial discretion of the court and it can be granted only in a case which falls strictly within the four corners of the provision - Section 39 of the Act 1963. The two elements which govern Section 39 of the Act 1963 for the grant of mandatory injunction are (i) the necessity to prevent breach of an obligation by the intervention of the court and (ii) that such acts should be of that nature capable of enforcement by the court. Yet another ingredient is also available which is crucial in the matter of grant of mandatory injunction that it should be ‘amenable for exercise of judicial discretion’. A relief which is not amenable for exercising judicial discretion of the Court cannot be granted by way of a mandatory injunction. It should satisfy not only breach of an obligation and the necessity of its prevention, but also the availability of judicial discretion to be exercised. A mere breach of an obligation or necessity to prevent the same alone cannot be brought under the purview of mandatory injunction unless the same is amenable for exercising discretion by the Court.

a. Conditions for granting a Mandatory Injunction.

76. The Conditions for granting a mandatory injunction as developed over time by a catena of decisions of this Court may be summarized as under: i) Obligation: There must be a clear obligation on the part of the defendant. ii) Breach: A breach of that obligation must have occurred or be reasonably apprehended iii) Necessity: It must be necessary to compel the performance of specific acts to prevent or rectify the breach. iv) Enforceability: The court must be able to enforce the performance of those acts. v) Balance of Convenience: The balance of convenience must be in favour of the party seeking the injunction. vi) Irreparable Injury: The injury or damage caused by the breach must be irreparable or not adequately compensable in monetary terms.

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77. Specific relief may, in brief be explained as relief in specie. It is the remedy which aims at the exact fulfilment of the obligation. The term ‘obligation’ as used in the Specific Relief Act in its wider juristic sense covers duties arising either ex-construction or ex-delicto. Every duty enforceable at law is obligation. The definition clause of the Act of 1963 does not allow narrow interpretation of the word ‘obligation’ to restrict it to a contractual duty alone. The definition of the word ‘obligation’ as used in the Act of 1963 is wide enough and the definition cannot be equated with the definition of the word ‘obligation’ used in the English Law. ‘Obligation’ may be said to be a bond or tie, which constrains a person to do or suffer something, it implies a right in another person to which it is co-related, and it restricts the freedom of the obligee with reference to definite acts and forbearance; but in order that it may be enforced by a Court, it must be a legal obligation. The definition of ‘obligation’ in Section 2 of the Specific Relief Act is so wide that any breach of legal obligation may give a cause to the affected party. The definition of the word ‘obligation’ in Section 2 of the Act of 1963 should be interpreted in a way which may serve the cause of the society.

78. Before we talk about the legal rights of the oustees and the legal obligations on the part of the authorities, so far as the enforcement of the scheme for allotment of plots is concerned, we must look into some law on this subject: i. The question of allotment of the plots to the oustees, came up for consideration before this Court in State of U.P. Vs. Smt. Pista Devi & Ors. reported in AIR 1986 SC 2025, wherein the Court was called upon to consider the acquisition of land by Meerut Development Authority. The Court directed that where large tracts of land for the purposes of land development in urban areas is acquired, the developing authority should provide a house or shop site of reasonable size on reasonable terms to each of the expropriated persons, who have no houses or shops/ buildings in the urban area in question. The said direction was issued in view of the provisions of Section 21(2) of the Delhi Development Act, 1957, which contemplates settlement of those land-owners, whose land has been acquired.

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ii. In State of Madhya Pradesh v. Narmada Bachao Andolan & Anr. reported in (2011) 7 SCC 639, this Court negated the argument that in case of land acquisition, the plea of deprivation of right to livelihood under Article 21 is sustainable. It was held to the following effect: “26. It is desirable for the authority concerned to ensure that as far as practicable persons who had been living and carrying on business or other activity on the land acquired, if they so desire, and are willing to purchase and comply with any requirement of the authority or the local body, be given a piece of land on the terms settled with due regard to the price at which the land has been acquired from them. However, the State Government cannot be compelled to provide alternate accommodation to the oustees and it is for the authority concerned to consider the desirability and feasibility of providing alternative land considering the facts and circumstances of each case.

27. In certain cases, the oustees are entitled to rehabilitation. Rehabilitation is meant only for those persons who have been rendered destitute because of a loss of residence or livelihood as a consequence of land acquisition. The authorities must explore the avenues of rehabilitation by way of employment, housing, investment opportunities, and identification of alternative lands. “10.... A blinkered Vision of development, complete apathy towards those who are highly adversely affected by the development process and a cynical unconcern for the enforcement of the laws. lead to a situation where the rights and benefits promised and guaranteed under the Constitution hardly ever reach the most marginalised citizens.” (Mahanadi

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Coalfields Ltd. Vs. Mathias Oram (2010) 11SCC 269) For people whose lives and livelihoods are intrinsically connected to the land, the economic and cultural shift to a market economy can be traumatic. (Vide State. of UP. v. Pista Devi AIR 1986 SC 2025, Narpat Singh v. Jaipur Development Authority AIR 2002 SC 2036, Land Acquisition Officer v. Mahaboob (2009) 14 SCC 54, Mahanadi Coalfields Ltd. v. Mathias Dram (2010) 11see 269 and. Brij Mohan v. HUDA (2011)2 see 29.) The fundamental right of the farmer to cultivation is a part of right to livelihood. “Agricultural land is the foundation for a sense of security and freedom from fear. Assured possession is a lasting source for peace and prosperity.” India being a predominantly agricultural society, there is a “strong linkage between the land and the person’s status in [the] social system”.

28. However, in case of land acquisition, “the plea of deprivation of right to livelihood under Article 21 is unsustainable”. (Vide Chameli Singh v. State of U’P. (1996) 2 sec 549 and Samatha v. Slate of A.P. (1997) 8 SCC191). This Court has consistently held that Article 300-A is not only a constitutional right but also a human right. (Vide Lachhman Dassv, Jagat Ram (2007) 10 see 448 and Amarjit Singh v. State of Punjab (2010) 10 see 43). However, in Jilubhai Nanbhai Khachar v. State of Gujarat 1995 Supp. (1) scc 596, this Court held: (SCC pp. 620 & 632, paras 30 & 58) “30. Thus it is clear that right to property under Article 300- A is not a basic feature or structure of the Constitution. It is only a constitutional right. ....

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58. ...The principle of unfairness of the procedure attracting Article 21 does not apply to the acquisition or deprivation of property under Article 300-A giving effect to the directive principles.” (Emphasis supplied)

iii. This Court in Narmada Bachao Andolan Vs. Union of India reported in (2000) 10 SCC 664 held as under: (SCC pp. 702-03, para 62) “62. The displacement of the tribals and other persons would not per se result in the violation of their fundamental or other rights. The effect is to see that on their rehabilitation at new locations they are better off than what they were. At the rehabilitation sites they will have more and better amenities than those they enjoyed in their tribal hamlets. The gradual assimilation in the mainstream of the society will lead to betterment and progress.” (Emphasis supplied)

iv. In State of Kerala v. Peoples Union for Civil Liberties reported in (2009) 8 SCC 46, this Court held as under: (SCC p. 95, paras 102-03) “102. Article 21 deals with right to life and liberty. Would it bring within its umbrage a right of tribals to be rehabilitated in their own habitat is the question?

103. If the answer is to be rendered in the affirmative, then, for no reason whatsoever even an inch of land belonging to a member of Scheduled Tribe can ever be acquired. Furthermore,’ a distinction must be borne between a right of rehabilitation, required to be provided when the land of the members of the Scheduled Tribes are acquired vis-a-vis a prohibition imposed upon the State from doing so at all.” (emphasis supplied)

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79. In the Narmada Bachao Andolan (supra), under the head ‘land for land’, this Court observed that Constitution requires removal of economic inequalities and provides for provision of facilities and opportunities for a decent standard of living and protection of economic interests of the weaker segments of the society. Every human has a right to improve his standard of living. The Court concluded that allotment of land in lieu of land acquired in view of the Rehabilitation & Resettlement Policy (for short ‘R&R ‘Policy’), the State Authorities are under obligation to allot land to the allottees as far as possible. The expression ‘as far as possible’ has been explained in para 38, which reads as under: “38. The aforesaid phrase provides for flexibility, clothing the authority concerned with powers to meet special situations where the normal process of resolution cannot flow smoothly. The aforesaid phrase can be interpreted as not being prohibitory in nature. The said words rather connote a discretion vested in the prescribed authority. It is thus discretion and not compulsion. There is no hard- and-fast rule in this regard as these words give a discretion to the authority concerned. Once the authority exercises its discretion, the court should not interfere with the said discretiori/decision unless it is found to be palpably arbitrary. (Vide Iridium India Telecom Ltd. v. Motorola Inc. (2005) 2 see 145 and High Court of Judicature for Rajasthan v. Veena Verma (2009) 14 SCC 734). Thus, it is evident that this phrase simply means that the principles are to be observed unless it is not possible to follow the same in the particular circumstances of a case.”

80. The Court further held that the Government has the power and competence to change the policy on the basis of ground realities and that State Government is competent to frame policy and a public policy can be challenged, where it offends some constitutional or statutory provisions. It observed as under: “35. In State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117, this Court while examining the State policy fixing the rates for reimbursement of medical expenses to government servants held: (SCC pp. 129-30, paras 25-26 & 29)

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“25. ...When Government forms its policy, it is based on a number of circumstances on facts, law including constraints based on its resources. [t is also based on expert opinion. It would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The court “would dissuade itself from entering into this realm which belongs to the executive. It is within this matrix that it is to be seen whether the new policy violates Article 21 when it restricts reimbursement on account of its financial constraints. 26.... For every return there has to be investment. Investment needs resources and finances. So even to protect this sacrosanct right, finances are an inherent requirement. Harnessing such resources needs toр priority.

29. No State of any country can have unlimited resources to spend on any of its projects. That is why it only approves its projects to the extent it is feasible.”

36. The Court cannot strike down a policy decision taken by the Government merely because it feels that another decision would have been fairer or more scientific or logical or wiser. The wisdom and advisability of the policies are ordinarily not amenable to judicial review unless the policies are contrary to statutory or constitutional provisions or arbitrary or irrational or an abuse of power. (See Ram Şingh Vijay Pal Singh v. State of U.P. (2007) 6 SCC 44, Villianur 1yarkkai Padukappu Maiyam v. Union of India (2009) 7 sec 561 and State of Kerala v. Peoples Union for Civil Liberties (2009) 8 see 46.)

37. Thus, it emerges to be a settled legal proposition that the Government has the power and competence to change the policy on the basis of ground realities. A public policy cannot be challenged through PIL where the State Government is competent to frame the policy and there is no need for anyone to raise any grievance even if the policy is changed. The public policy can only

p. 847

Estate Officer, Haryana Urban Development Authority and Ors. v. Nirmala Devi

be challenged where it offends some constitutional or statutory provisions.” (emphasis supplied)

81. This Court in Narmada Bachao Andolan (supra) has held that it is impermissible in law to read a part of the document in isolation. The document is to be read as a whole. (see para 44). In Jage Ram & others v. Union of India & others reported in 1995 Supp (4) SCC 615, this Court considered the earlier judgment in Pista Devi’s case and held that since the acquisition is only for defence purposes, the allotment of alternative ‘site would create innumerable complications and that allotment of alternative sites ‘depends upon the purpose of acquisition as well. It was held to the following effect: “1. The only question raised in these two writ petitions is whether an observation is to be made by this Court to the effect that the petitioners would be entitled to allotment of alternative sites by the Delhi Development Authority; It is true that the lands of the petitioners were acquired for a defence purpose, viz., establishment of Radar. They were duly paid the compensation demanded of. One of the reliefs sought in the writ petitions is that since they have been displaced from their holdings, they need some site for construction of their houses and that, therefore the Government of India may make an effort to provide them alternative Sites. We are aware of the decision rendered by this Court in State of UP, vs. Pista Devi AIR 1986 SC 2025 (See at p. 260). But it depends upon the acquisition for which it was made. In that case, acquisition related to planned development of housing scheme by Meerut Development Authority. Therefore, though no scheme was made providing alternative sites to those displaced persons whose lands were acquired and who themselves needed housing accommodations, a direction was given to the Meerut Development Authority to provide alternative sites for their housing purpose. Since the acquisition is only for defence purpose and if the request is acceded to, it would create innumerable complications, we are constrained not to accede to forceful persuasive argument addressed by Mr. RP. Gupta, learned counsel for the petitioners.”

p. 848

82. In S. Gurdial Singh & others v. Ludhiana Improvement Trust reported in (1995) 5 SCC 138, considering Pista Devi’s case, this Court observed that the benefit of providing alternative sites should not be uniformly and mechanically extended to all the cases unless there is any express scheme framed by appropriate authorities and the scheme is in operation. This Court was considering the allotment of alternative sites for commercial purposes, as a local displaced persons in terms of acquisition of land by the Improvement Trust. It was observed as under: “4. It is then contended, relying upon-the decision of this Court in State of U.P. v. Pista Devi AIR 1986 SC 2025 that the appellants are entitled to allotment of alternative sites for commercial purpose. Therein, the land was acquired for housing development and the persons whose properties were sought to be displaced were directed to be provided housing accommodation under the schemes formed thereunder. The general ratio therein cannot be uniformly and mechanically extended to all the cases unless there is any express scheme framed by appropriate authorities and the scheme is in operation. Under these circumstances, we cannot give any express direction in this behalf. However, when the grievance was made by the appellants, an admission was made in the counter- affidavit filed in the High Court thus:“The petitioners could get a plot of land as local displaced persons in lieu of their acquired land according to rules on the subject.” (Emphasis supplied)

83. In Amarjit Singh & ors. v. State of Punjab & ors. reported in (2010) 10 SCC 43, it has been held that rehabilitation is not a recognized right either under the Constitution or under the provisions of the Land Acquisition Act. Any beneficial measures taken by the Government are, therefore, guided only by humanitarian considerations of fairness and equity towards the landowners. The rehabilitation of the property owners is a part of the right to life guaranteed under Article 21 of the Constitution and that acquisition made in exercise of power of eminent domain for public purpose and that individual right of ownership over land must yield place to the larger public good. It was held as under:

p. 849

Estate Officer, Haryana Urban Development Authority and Ors. v. Nirmala Devi

“16. As regards the question of rehabilitation of the expropriated landowners, Mr. Subramanium, submitted that rehabilitation was not a recognised right either under the Constitution or under the provisions of the Land Acquisition Act. Any, beneficial measures taken by the Government are, therefore, guided only by humanitarian considerations of fairness and equity towards the landowners. The benefit of such measures is however subject to the satisfaction of all such conditions as may be stipulated by the Government in regard thereto. The policy relied upon by the appellants being only prospective cannot be made retrospective by a judicial order to cover acquisitions that have since long been finalised.

xxx xxx xxx

50. In New Reviera case (supra). this Court held that if the State comes forward with a proposal to provide alternative sites to the owners, the Court can give effect to any such proposal by issuing appropriate directions in that behalf. But a provision for alternative sites cannot be made a condition precedent for every acquisition of land. In Chameli Singh case (supra) also the Court held that acquisitions are made in exercise of power of eminent domain for public purpose, and that individual right of ownership over land must yield place to the larger public good. That acquisition in accordance with the procedure

p. 850

sanctioned by law is a valid exercise of power vested in the State hence cannot be taken to deprive the right to livelihood especially when compensation is paid for the acquired land at the rates prevailing on the date of publication of the preliminary notification.

51. There is, thus, no gainsaying that rehabilitation is not an essential requirement of law for any compulsory acquisition nor can acquisition made for a public purpose and in accordance with the procedure established by law upon payment of compensation that is fair and reasonable be assailed on the ground that any such acquisition violates the right to livelihood of the owners who may be dependent on the land being acquired from them.” (emphasis supplied)

84. Thus, from the above-referred judgments, it is evident that acquisition of land does not violate any constitutional/ fundamental right of the displaced persons. However, they are entitled to resettlement and rehabilitation as per the policy framed for the oustees of the project concerned.

85. We looked into one of the judgments of the trial court rendered in Civil Suit No. 538 of 2007 titled “Smt. Nirmala Devi, W/o Sh. Shishpal Varma, resident of Kaithal vs. The Estate Officer, Haryana Urban Development Authority, Kaithal & Ors.”. We take notice of the fact that the said suit came to be dismissed by the trial court essentially on two grounds. First on the ground that the plaintiff had failed to apply with the authorities concerned in a specified format with deposit of the earnest money at the rate of 10% of the total price as mentioned in the details provided in the brochure, and secondly on the ground that the suit was hopelessly time-barred as the same came to be instituted after a period of 14 years from the date of the advertisement/ notice. The relevant findings recorded by the trial court read thus:- “12. However, as per the brochure issued by the defendants in the year 1992, placed on record as Ex.P6, the prospective applicants, including the outees, were required to apply in a specified format with deposit of earnest money at the rate of 10% of the total cost as mentioned in the details provided in the said brochure. However, the plaintiff never

p. 851

Estate Officer, Haryana Urban Development Authority and Ors. v. Nirmala Devi

applied for the said plot under the oustees quota in the year 1992 in response to the said advertisement/brochure before the last date of application. As per the averments of the plaintiff herself, as contained in the plaint, the plaintiff had applied for the said plot only on 19.12.2006, i.e. after about 14 years of the said advertisement/notice. Although the plaintiff has submitted in her plaint that she had applied for the release of a free-hold residential developed plot in January 2000, no documentary evidence in the form of a copy of application or postal receipt etc., has been placed on record. In the case titled as Smt. Bhagwanti vs. HUDA 2002 (4) RCR (Civil) 21 (P&H) a division Bench of the Hon’ble High Punjab and Haryana High Court has held that where the petitioners submitted their application for allotment of plots after the prescribed date, the authority is not expected to wait for more than four years to apply at his/her convenience and then proceed to make allotment to others. In the present case too, a fair opportunity was granted to all concerned to apply. However, the plaintiff failed to avail of that opportunity. That being the case, the plaintiff has to thank herself for failure to get any plot.

13. Besides, as per a mandatory condition, as mentioned in the brochure, the applicants were supposed to deposit earnest money at the rate of 10% of the total cost of the plot. Rule 5 of the Haryana Urban Development (Disposal of Land and Buildings) Regulations, 1978, requires that the intending purchaser shall make an application to the Estate Officer concerned in the prescribed form (annexed to the regulation) and no application shall be valid unless it is accompanied by such amount as may be determined by the authorities which shall not be less than 10% of the price/premium. In the present case, the plaintiff has neither pleaded the payment of the earnest money nor placed on record any evidence regarding the payment of earnest money at the rate of 10%.

x x x x

17. It is an admitted fact that the land of the plaintiff had been acquired by the defendants in the year 1992 and

p. 852

the plaintiff had applied for the release of a free-hold residential developed plot under the oustees quota on 19.12.2006 and the present suit was filed on 1.8.2007. In other words, the plaintiff had applied for the plot after 14 years of the acquisition of her land and has filed the present suit after 15 years of the said acquisition. As per article 113 of the Limitation Act, 1993, the period of limitation for an injunction suit is three years from the date when the right to sue accrues to the plaintiff. I find merit in the contention of Ld. Counsel for the defendants that the cause of action had arisen in favour of the plaintiff in the year 1992 itself when her land had been acquired by the defendants. It is pertinent to mention here that throughout her plaint, the plaintiff has not specified the date as to when the cause of action accrued in her favour. Therefore, the suit of the plaintiff having been filed after 15 years of the cause of action having arisen in her favour, the same is not only hopelessly time-barred but the plaintiff is also guilt of delay, laches and acquiescence on her part and is therefore not entitled to the equitable and discretionary relief of injunction. Therefore, issue No. 4 is also decided in favour of the defendants and against the plaintiff.” (emphasis supplied)

86. The plaintiff Smt. Nirmala Devi preferred civil appeal in the court of the Additional District Judge bearing Civil Appeal No. 47 of 2012. The First Appeal came to be allowed. The matter of concern is that there is no discussion worth the name by the first appellate court as regards the findings recorded by the trial court referred to above. The reason for us to say that it is a matter of concern is because right from the inception the appellant herein has been saying that none of the oustees, at least the respondents before us, had applied in the requisite format for allotment of plots with the deposit of the earnest money. If this part of the obligation would have been performed or discharged by the oustees in accordance with the scheme then perhaps HUDA could have been called upon to perform its part of the obligation. It is only if the plaintiff would have performed its part of the obligation according to the scheme, then Section 39 of the

p. 853

Estate Officer, Haryana Urban Development Authority and Ors. v. Nirmala Devi

Specific Relief Act, 1963 could have been invoked to compel the HUDA as defendant to perform its part of the obligation. This aspect unfortunately has not been looked into even by the High Court.

87. We also looked into one of the judgments of the trial court allowing the suit filed by one Dixit Lal s/o Sh. Sunder Lal resident of Kaithal. We are referring to the judgment rendered by the trial court in Civil Suit No. 228/1 of 2009 decided on 21.11.2009.

88. In the said suit the entire line of reasoning is different. The trial court while decreeing the suit in favour of the plaintiff held as under: “10. Plaintiff has claimed that no plot was allotted to him despite various requests made by him. Smt. Bimlesh mother of the plaintiff examined as PW-1 has deposed that plaintiff had applied for allotment of plot under the oustees quota, but the copy of the application was not readily available with him. She has further deposed that in the year 2007 as well she had approached the defendants at the time of allotment of plots in Sector-19 and 20 HUDA, Kaithal but her request was not considered by the defendants; whereas similarly placed persons had been allotted plots under the court orders. Shri Lakhi Ram, Clerk from the office of Haryana Urban development Authority. Kaithal examined as DW-1. Has deposed that plaintiff had not applied for allotment of plot nor had she deposited 10% of the earnest amount despite advertisement Ex. D3.

11. Admittedly, there is no proof on record to show that the plaintiff had applied for a plot under the oustees quota. A perusal of Ex. D3 shows that the booking of the plots was open for general category as well as the oustees from 02.09.1992 till 01.10.1992. No doubt the earnest money has been specified against each category of land, but the said advertisement cannot be said to be in consonance with the policy of 1992 of Haryana Urban Development Authority which is applicable. According to the said policy, Haryana Urban Development Authority was required to offer to the oustees in proportion to their acquired land. Only after making an offer, the Haryana Urban Development Authority could take the plea that the offer has not been accepted by the oustees by not

p. 854

applying for the plot within the given time. The oustees who make the application pursuant to such advertisement can be asked by Haryana Urban Development Authority to deposit 10% of the earnest money. Any revision or modification in the policy of 1992 cannot bar the claim of the persons whose land had been acquired two prior to the said modification. In the present suit the land of the plaintiff was acquired in the year 1989 and award was passed on 26.02.1992 and the modification in the policy made by Haryana Urban Development Authority in the year 1993 cannot have a retrospective effect.

12. In Civil Writ Petition No. 19927 of 2009 titled as Sandeep Vs. State of Haryana and others decided on 16.05.2011 by Hon’ble Mr. Justice Raniit Singh, Judge Hon’ble Punjab and Haryana High Court, Chandigarh, it has been observed as under:- “Majority of the claim are being denied on the ground that application is not sent with 10% of the price of the plot. This is also not in conformity with the policy so formulated. The HUDA concededly has not kept in register to keep the claims of the allottees live. The requirement of depositing 10% of the price would arise only if the claims are first invited as per the policies and it has to be through press a newspaper, the price, as per the policy instructions dated 12.03.1993, is to be deposited once the claim is finally accepted by the competent authority and when the sector scheme is floated. It is on account of these violations that majority of the oustees are being made approach this court through various writ petitions. In order to set the position right and as one time measure it is appropriate to direct HUDA to invite claims of all the oustees through an advertisement in the newspaper giving them sufficient time to make applications. Those who make applications pursuant to such an advertisement may be asked to deposit 10% of the price, if the plots are still available. Their claims be considered in the light of the policies formulated by HUDA.”

p. 855

Estate Officer, Haryana Urban Development Authority and Ors. v. Nirmala Devi

13. The Haryana Urban Development Authority has not performed its obligation in inviting the claim of oustees as laid down in the policy dated 19.03.1992 and subsequent policy. The said policy required. Haryana Urban Development Authority to invite the claim of the oustees separately before floating any Sector. The land looser have option to buy first before applications are invited from general public. In the present case as well as the claim of the oustees were invited while inviting the claim of the general public. It cannot be denied that once the claim of the oustees is invited along with general public, the possibility of first satisfying the claim of the oustees would stand defeated. Merely because the plaintiff has not produced any proof with regard to his application for allotment of plot would not defeat her right as it was the duty of the Haryana Urban Development Authority to first make a clear offer with regard to allotment. The land of the plaintiff was admittedly acquired by the defendants and no plot has been allotted to the plaintiff till date in lieu of the said acquisition. The plaintiff has a right to receive the preferential plot under the oustees quota and in order to redress his grievance plaintiff has filed the present suit. The plaintiff has a locus standi to file the present suit and the suit is maintainable.”

89. Thus, while allowing the suit the trial court in no uncertain terms observed that there was no proof or any evidence worth the name on record to indicate that the plaintiff had applied for a plot under the oustee quota yet it proceeded to say that the advertisement issued by HUDA was not in any conformity with the policy of 1992 and in such circumstances the oustees were not obliged to prefer any application in the prescribed format with deposit of 10 per cent of the price.

90. Although we are not convinced with the line of reasoning adopted by the trial court while allowing the suit as referred to above, as affirmed upto the High Court yet even assuming for the moment that the advertisement was not in conformity with the Scheme of 1992 there is no explanation worth the name at the end any of the oustees why the suits were instituted after a lapse of almost 14 to 20 years, more particularly, when the land of respective oustees came to be acquired in 1992.

p. 856

91. Well, it may be argued and quite legitimately that the term “obligation” in Section 39 of the Act, 1963 may not be always mutual. Section 39 deals with mandatory injunctions, which can be used to prevent the breach of an obligation and at times compel the performance of specific acts necessary to prevent that breach. The obligation, in this context, refers to a duty enforceable by law, and while it can be reciprocal in some cases (like a contract), it can also be a unilateral duty such as a trustee’s obligation to a beneficiary. However, it would all depend on the individual facts of each case. When the scheme in question specifically provides that an oustee shall file an application in a specified format with deposit of the requisite amount towards earnest money then it is a part of the obligation on the part of the oustee to do so before he calls upon the State to allot the plot in accordance with the terms of the scheme.

92. There is no explanation worth the name why it took 14-20 years for the plaintiffs to institute their respective suits for mandatory injunction under Section 39 of the Act 1963. Whether Article 58 of the Limitation Act would apply or Article 113 of the Limitation Act, the period of limitation would be 3 years. By no stretch of imagination, it can be said that the case on hand is one of recurring cause of action so as to bring the suit within the period of limitation though instituted almost after a period of 14-20 years.

93. In such circumstances referred to above, we could have taken the view that the suits themselves were not maintainable as they should have been dismissed only on the ground of limitation far from being not maintainable under Section 39 of the Act 1963.

94. However, as observed earlier, since we are inclined to grant the benefit of the scheme of 2016, we are not non-suiting the respondents (original plaintiffs) completely.

D. CONCLUSION

95. We summarise our final conclusion and dispose of all the appeals with the following directions: (i) The respondents are not entitled to claim as a matter of legal right relying on the decision of Brij Mohan (supra) that they should be allotted plots as oustees only at the price as determined in the 1992 policy.

p. 857

Estate Officer, Haryana Urban Development Authority and Ors. v. Nirmala Devi

(ii) The respondents are entitled at the most to seek the benefit of the 2016 policy for the purpose of allotment of plots as oustees. (iii) We grant four weeks time to all the respondents herein to prefer an appropriate online application with deposit of the requisite amount in accordance with the policy of 2016. If within a period of four weeks any of the respondents herein prefer any online application in accordance with the scheme of 2016 then in such circumstances the authority concerned shall look into the applications and process the same in accordance with the scheme of 2016. We clarify that it will be up to the authority to look into whether the respondents are otherwise eligible for the allotment of plots or not. (iv) We make it clear that there shall not be any further extension of time for the purpose of applying online with deposit of the requisite amount. (v) We understand that some of the respondents may be very rustic and illiterate and may not be in a position to apply online, in such circumstances we permit them to apply by preferring an appropriate application or otherwise addressed to the competent authority with deposit of the requisite amount. (vi) We make it clear that the entire exercise shall be completed within a period of eight weeks from the date of the receipt of the online application that may be filed by the respondents. (vii) The State of Haryana as well as HUDA shall ensure that land grabbers or any other miscreants may not form a cartel and try to take undue advantage of the allotment of plots. At the end it should not happen that unscrupulous elements ultimately derive any benefit or advantage from allotment of land to the oustees. In this regard the State and HUDA will have to remain very vigilant. (viii) We believe that since the allotment of plot is with a laudable object and not for any monetary gain, a condition should be imposed at the time of allotment that the allotee shall not be entitled to transfer the plot to any third party without the permission of the competent authority and in any case not within five years from the date of the allotment.

p. 858

(ix) This litigation is an eye opener for all States in this country. If land is required for any public purpose law permits the Government or any instrumentality of Government to acquire in accordance with the provisions of the Land Acquisition Act or any other State Act enacted for the purpose of acquisition. When land is acquired for any public purpose the person whose land is taken away is entitled to appropriate compensation in accordance with the settled principles of law. It is only in the rarest of the rare case that the Government may consider floating any scheme for rehabilitation of the displaced persons over and above paying them compensation in terms of money. At times the State Government with a view to appease its subjects float unnecessary schemes and ultimately land up in difficulties. It would unnecessarily give rise to number of litigations. The classic example is the one at hand. What we would like to convey is that it is not necessary that in all cases over and above compensation in terms of money, rehabilitation of the property owners is a must. Any beneficial measures taken by the Government should be guided only by humanitarian considerations of fairness and equity towards the landowners. (x) Ordinarily, rehabilitation should only be meant for those persons who have been rendered destitute because of loss of residence or livelihood as a consequence of land acquisition. In other words, for people whose lives and livelihood are intrinsically connected to the land. (xi) We have made ourselves very explicitly clear that in cases of land acquisition the plea of deprivation of right to livelihood under Article 21 of the Constitution is unsustainable.

96. All the appeals are disposed of in the aforesaid terms.

97. The Registry is directed to circulate one copy each of this judgment to all the High Courts.

Result of the case: Appeals disposed of with directions.