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Brijesh Kumar Vijay v/s The Urban Improvement Trust, Kota & Another

    Civil Writ Petition No. 4336 of 2005

    Decided On, 17 February 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE MOHAMMAD RAFIQ

    For the Appearing Parties: S.S Hora, Counsel, Alok Sharma, Senior Advocate with Harsh Sahu, Counsel, Kanishk Gupta for Sushil Sharma, Additional Advocate General.



Judgment Text

Mohammad Rafiq, J.

1. This writ petition has been filed by petitioner Brijesh Kumar Vijay inter-alia with the prayer that respondents be directed to allot him land measuring 1721 square meters in Dadabari District Centre area or alternatively in Rajeev Gandhi Yojna of UIT, Kota.

2. Factual matrix of the case is that out of total land measuring 4375 square meters belonging to one Ram Gopal Son of Kalyan Lal, situated in village Sakatpura, comprising of Khasra no.200, respondents acquired land measuring 2654 square meters under Rajasthan Urban Land Ceiling and Regulation Act, 1976 (for short, ULCAR Act'), leaving remaining land of 1721 square meter which was the permissible limit, on 07.07.1988. However, respondent Urban Improvement Trust (for short, 'the UIT'), without the authority of law, issued pattas to various persons on that land. Shri Ram Gopal, owner of this land, executed a will in favour of Poonam Chand and his sons Brijesh Kumar and Balram. Poonam Chand was son of Ram Gopal's younger brother Jawahar Lal. It was thereafter that on 31.10.1987 Ram Gopal passed away. On 06.08.1991 Poonam Chand also passed away. Petitioner is son of Poonam Chand. In a meeting of sub-committee of UIT held on 05.10.1990, certain lands were identified as alternative land which could be allotted to petitioner, which were in Dadabari LIG & Extension, Pratap Nagar and Dadabari

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CAD Circle. The Government of Rajasthan by order dated 03.02.1992 issued directions to respondent UIT, Kota, to allot land measuring 1721 square meters in any of favour of petitioner in any of the scheme mentioned in minutes of meeting dated 05.10.1990. The respondent UIT, however, by resolution dated 04.10.1994 rejected claim of the petitioner. In those circumstances, petitioner had to approach this court by filing Writ Petition No.824/1996. Learned Single Judge of this court while deciding aforesaid writ petition by order dated 08.09.1998, quashed and set aside aforesaid UIT resolution dated 04.10.1994 and directed it to comply with Government order dated 03.02.1992.

3. Shri S.S. Hora, learned counsel for petitioner has argued that respondent UIT filed an appeal against aforesaid judgment before Division Bench of this Court, in which apart from making other arguments, it was also argued that present writ petitioner i.e. Brijesh Kumar Vijay was neither owner of land in dispute nor was in possession thereof. He was unable to prove his title. Since title of land of khasra no.200 was disputed, therefore he was not entitled to alternative land. The Division Bench rejected the appeal. Thereafter, Special Leave to Petition (C) 4635 of 2000 was filed by respondent UIT against aforesaid judgment, which was also rejected by the Supreme Court on 07.08.2000. Petitioner filed a contempt petition for compliance of judgment of learned Single Judge. However, respondent UIT, in order to frustrate the judgment, made allotment of land measuring 1721 square meters in another scheme known as Ram Nagar Vistar Yojna vide letter dated 23.07.2004, which was never the intention of aforesaid judgment of Single Bench dated 08.09.1998. Although the contempt petition dismissed as being not maintainable but it was observed by the court that if the petitioner was aggrieved with the nature and character of the land, which has been alloted to him, he can challenge the same by way of an alternative remedy before the appropriate forum. Learned counsel submitted that this observation would mean that a second writ petition on the same subject matter would not be barred.

4. On the question of correctness of location and site of the land allotted to petitioner by respondent UIT, it was agreed that this could be either in any of the schemes identified by subcommittee of respondent UIT in its meeting dated 05.10.1990 or any other analogous scheme nearby but not certainly Vistar Yojna, wherein land was allotted to the petitioner, which is at about eight kilometers away from the city. This was never the intention of the judgment of this Court dated 08.09.1998.

5. Shri S.S. Hora, learned counsel further submitted that the Government has thereafter also issued number of directions to respondent UIT on 02.09.2008, 25.11.2009, 02.08.2010 and 20.12.2010 and in fact Secretary of respondent UIT, Kota, in response to one of these letters, wrote back to Government on 23.03.2010 that because of rejection of contempt petition by this court, claim of petitioner does not survive. There is no difficulty in allotting land to petitioner even in Rajeev Gandhi Nagar Scheme because respondent UIT has allotted such land at reserve price to serval persons. Learned counsel has given names of two persons, namely, Hitesh Khandelwal and Virendra Khandelwal at reserve price. Reserve price of various localities of Kota indicates that land in Rajeev Gandhi Nagar Scheme carries almost same price as that of the land in Dadabari LIG & Extension, Pratap Nagar and Dadabari CAD Circle, wherein originally respondent UIT decided to allot the land to petitioner and therefore petitioner's case can be considered for allotment of land also in Rajeev Gandhi Nagar Scheme where surplus land is still available with respondent UIT.

6. Per contra, Shri Alok Sharma, learned senior counsel for respondent UIT opposed writ petition and submitted that this writ petition is not maintainable as principles of resjudicata would apply in present matter. Earlier a writ petition on the same subject matter was filed by petitioner and that was decided and contempt petition was also filed. When allotment of land in Ram Nagar Extension Yojna was made in favour of petitioner, the contempt petition was also dismissed. Land of Rajeev Gandhi Nagar Yojna, has been entrusted to respondent UIT for being auctioned with a particular purpose of raising funds for revival of a sick Company M/s Instrumental Limited, Kota, and effort of the UIT was to raise maximum funds, which was possible only by putting the plots carved out therein, to auction.

7. Learned counsel for petitioner disputed that allotment of land in Ram Nagar Vistar Yojna being conditional one, is not compliance of judgment of this court. UIT allotted to petitioner land measuring 1721 square meter in Ram Nagar Scheme subject to condition of petitioner giving his consent and producing succession certificate. He also questioned the condition of producing succession certificate and argued that this argument was raised by respondent UIT before Division Bench but was not accepted.

8. On the question of succession certificate, learned counsel for petitioner relied on judgment of Banarsi Dass v. Teeku Dutta and Another, (2005) 4 SCC 449, and argued that provisions of Section 372 of Indian Succession Act, 1925, mandatorily gives general power of administration on estate of deceased to establish title of grantee as heir of deceased but only furnishes him with authority to collect his debts and allows debtors to make payments to him without incurring any risk.

9. Shri Alok Sharma, learned senior counsel submitted that land over which pattas have been issued by respondent UIT, Kota, to slum dwellers, is only one-and-a-half kilometer away from Ram Nagar Extension Yojna, where petitioner has been allotted alternative land. Now petitioner wants to get plot in heart of the city, which is much away from his land which the respondent otherwise took for settlement of slum dwellers. There is huge difference between price of the land of those schemes which are in the heart of Kota city and the land of the petitioner. Petitioner cannot be allotted the demanded land. As and when the Government wrote to the UIT, it conveyed to Government reasons why alternative land cannot be given to petitioner in Dadabari LIG & Extension, Pratap Nagar, Dadabari CAD Circle and Rajeev Gandhi Nagar Scheme. Allotment in Ram Nagar Vistar Yojna was made subject to production of succession certificate by petitioner because he claims to be son of power of attorney holder of Ram Gopal, whose land was acquired by respondent UIT. Learned counsel for respondent submits that argument regarding condition of succession certificate was noticed but no finding has been given either way but that should not be considered by this court any further because of specific observation by this court while deciding contempt petition. Learned Single Judge directed respondent UIT to give effect to order dated 23.07.2004 expeditiously but not later than a period of six weeks from date of passing of order in contempt petition on 24.03.2005. Writ petition be therefore dismissed.

10. I have considered rival submissions of learned counsel for parties and perused material available record.

11. On perusal of judgment passed by learned Single Judge of this court dated 08.09.1998, I find that issue that was raised by respondent UIT was that ownership of land of khasra no.200 of which petitioner's land measuring 1721 square meter was part, was itself disputed and therefore petitioner was not entitled to allotment of any alternative land. On this basis, respondent UIT, by its resolution dated 04.10.1994, decided not to implement order of Government dated 03.02.1992. In other words, UIT maintained that since petitioner was not able to prove his title on part of land of Khasra No.200, therefore, he was not entitled to allotment of alternative land. But, at the same time, respondent UIT was unable to dispute before this Court that land measuring 1721 square meter was such land, which was not resumed or acquired by it under proceedings of ULCER Act and even then land was made use of it for settlement of slum dwellers. This court on consideration of rival submissions, came to conclusion that resolution of UIT dated 04.10.1994 was illegal and therefore quashed the same and directed UIT to comply with order of Government dated 03.02.1992. Net result was that the Government order dated 03.02.1992 stood revived. On perusal of this order dated 03.02.1992, it transpires that Government thereby conveyed to Secretary of the UIT that demand of petitioner was justified because his land has been unauthorizedly taken possession of by UIT and allotted to trespassers and therefore he may be allotted land measuring 1721 square meters at appropriate place in the schemes of UIT proposed by its land allotment committee in its meeting dated 05.10.1990.

12. Perusal of minutes of aforesaid meeting indicates that the allotment committee of UIT was apprised of report given by Deputy Town Planner whereby he conveyed availability of land in Dadabari LIG & Extension, Pratap Nagar, Dadabari CAD Circle and Basant Vihar, out of which land in Dadabari LIG & Extension, Dadabari CAD Circle and Pratap Nagar were found to be vacant. UIT unsuccessfully approached the Division Bench of this court by filing special appeal against aforesaid judgment of learned Single Judge and on failure also approached the Supreme Court by way of Special Leave Petition. Said special appeal was dismissed by Division Bench of this court vide order dated 08.09.1999 and its SLP was also dismissed by the Supreme Court on 07.08.2000. Thereafter, when aforesaid judgment of Single Bench was not complied, petitioner filed contempt petition wherein respondent UIT placed before this court the order of allotment dated 23.07.2004 by which land measuring 1721 square meters was allotted to petitioner in Ram Nagar Vistar Yojna.

13. I hold that this issue needs not be allowed to be reopened and raised again in view of the fact that Division Bench noticed this argument yet did not uphold the same and Single Bench while deciding the contempt petition gave a specific direction to UIT to give effect to its order dated 23.07.2004 not later than six weeks from the date of passing of aforesaid order, notwithstanding the condition of consent and succession certificate imposed by UIT.

14. Coming now to claim of petitioner for allotment of land in Dadabari LIG & Extension, Pratap Nagar and Dadabari CAD Circle, I find that learned Single Judge while rejecting contempt petition clearly observed that petitioner could challenge the allotment made in Ram Nagar Vistar Scheme by way of alternative remedy before the appropriate forum if he was aggrieved with nature and character of the land, which is allotted to him. That would not mean that location of site of the land can be questioned because nature and character of the land essentially refers to nature like residential or commercial land and when it comes to agriculture land, in common parlance, irrigated or un-irrigated or cultivated or uncultivated land etc. Even otherwise, Government in its order dated 03.02.1992, never specifically directed that a particular piece of land should be allotted to petitioner. Even in minutes of meeting of land-allotment-committee of the UIT, no such specific decision was taken for allotment of land in a particular scheme. Now respondents have allotted land to petitioner in Rajeev Gandhi Yojna of the same size which is nearer to the land which the respondents have taken possession from the petitioner. No legal right accrues to him to claim allotment in scheme like Dadabari LIG & Extension, Pratap Nagar and Dadabari CAD Circle or Rajeev Gandhi Yojna, which, as rightly argued by the learned counsel for respondents, are having much more commercial value than the land of the petitioner.

15. Writ petition is therefore dismissed in so far as claim of petitioner for allotment of land in any of those schemes is concerned. However, respondents are directed to give effect to the order dated 23.07.2004 as already required by the Single Bench of this Court by its order dated 24.03.2005 while deciding contempt petition without insisting upon petitioner to fulfill requirement of succession certificate, within a period of six weeks from today.

16. This does not however finally determine the rights of any other legal heir of late Shri Ram Gopal, who may now come forward to stack a claim.

Writ Petition Dismissed Without Prejudice to Rights of Other Co - Owners of Land.
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