Govt Has Authority Under Rajasthan Land Revenue Act To Regularise Unauthorised Land Conversions : High Court

The division bench of Chief Justice Akil Kureshi and Justice Sudesh Bansal, observed,

"Insofar as the Government's desire to regularise the existing land uses, the same falls into broad categories, (a) where agricultural land is put to non-agricultural use without permission and (b) where such lands as aforesaid or other lands of nonagricultural character which have been put to uses other than land use specified in the development plans. So far as clause (a) category of uses are concerned, per se we find no illegality in the approach of the Government. The Government has the authority in terms of Section 90B of the Act of 1956 as it stood at the relevant time and Section 90-A as it stands today to regularise such unauthorised land conversions."

So far as clause (b) land category is concerned, the Court opined that must strictly conform to the Gulab Kothari judgment (infra).

Essentially, the challenge of the petitioner pertains to the question of regularising kachchi basties and illegal encroachments made on public land. The case of the petitioner is that these Government decisions and the corresponding statutory changes are opposed to the judgments and orders of this Court in case of Gulab Kothari and even otherwise illegal and impermissible.

Gulab Kothari's Observations

Notably, in Gulab Kothari, Editor, Rajasthan, Patrika, Jaipur v. State of Rajasthan (Gulab Kothari-1) [2017(1) DNJ(Raj.) 147, it was observed that under the scheme of Urban Improvement Trust Act, the urban areas in respect of which master plan is once prepared, the sanctity thereof has to be maintained and all improvement schemes of various zones and development work to be undertaken by the local authorities or the private entities must conform to the land use specified under such master plan. It was observed that though the Act does not provide for modification of the master plan during its operative period, such power to modify or revise the plan is inherent.

This decision of Gulab Kothari-1 was carried in appeal before the Supreme Court. The Supreme Court placed the matter back to the High Court to be considered by a bench of three Judges. A further detailed order was passed by the Larger Bench of three Judges on 15.12.2018, Gulab Kothari-2 [2019 (1) WLC (Raj.) 645].

The fundamental issue considered in these judgments was of haphazard unplanned development of urban centers in the State. 

The directions issued by the Court thus were for the purpose of preserving the sanctity of developing plans and to ensure that the future development takes place strictly in terms of the provisions made in the plan and no existing development which is contrary to the land use permitted under the plan is regularised. (Read para 51 onwards)

Findings

The court examined the State Government's policy expressed in the impugned circulars and orders from three angles, namely

(i) the decisions of the Division Bench and Larger Bench in case of Gulab Kothari;

(ii) whether these policies can be implemented within the existing statutory framework, and the validity of the statutory amendments under challenge; and;

(iii) whether in the process of implementing these policies the State Government has in any manner breached the principle of public trust.

In the present matter, the court observed that lands of non-agricultural character which have been put to uses other than land use specified in the development plans, then any such regularisation of the land use, must strictly conform to the Gulab Kothari judgments. The court ordered that no construction in the guise of operating any of the provisions of the scheme which cannot be regularised as per the existing bye-laws, would be regularised. Unless and until the Government brings a valid legislation, Gulab Kothari directions must apply.

The court ruled that the decision to regularise the kachchi bastis, per se, is not opposed to any of the Gulab Kothari's principle as long as the Government sticks to its stand of not granting leases to the residents of such kachchi bastis which have developed on reserved facility areas such as park, playground, roads, open land, public land etc.; reserved land, forest land, river, drain, ponds and other restricted areas. The vires of challenged statutory provisions failed, the court ruled further.

The court further opined that insofar as the impugned Government circulars pertaining to recognising the rights over properties and granting lease deeds subject to terms and conditions indicated, the same are not opposed to the Gulab Kothari judgments nor are impermissible in any other manner.

It was pointed out to the court that Gulab Kothari related issues are still pending before the Larger Bench and one possible approach is to place these petitions for hearing before the same Bench where a holistic view can be taken. The court remarked it chose to continue and complete the hearing because, firstly, by then considerable judicial time was already consumed, which would go totally waste if no finality was given to these petitions. Secondly, formation of a larger bench in Gulab Kothari would mean disturbing several benches and current roster.

Refusing to accept the vires of the impugned provisions as unconstitutional, the court relied on Apex Court's decision in State of J&K v. Triloki Nath Khosa (1974), wherein it was observed that if there is a presumption of constitutionality of a statute the onus is on the one who urges that the same is unconstitutional, to produce necessary material in support of such a contention.

Further reliance was placed on the Supreme Court's case of State of Andhra Pradesh v. Mcdowell & Company (1996), whereby it was held that the statute framed by the Parliament or State legislature can be challenged only on the ground that the same is not within the legislative competence of the concerned legislature or is opposed to any other fundamental right or any of the provisions of the Constitution. This principle has been expanded by a Constitution Bench judgment in the case of Shayara Bano v. Union of India (2017), where it has been held that a legislation can also be challenged on the ground of manifest arbitrariness, added the court.

Arguments

The counsel for the petitioner raised following contentions:-

(i) The Government decisions are in conflict with the judgments in case of Gulab Kothari and the directions contained therein. He demonstrated that the Government scheme and policy cannot be implemented in view of the restrictions imposed by this Court in Gulab Kothari.

(ii) Government policy is even otherwise illegal. The policy envisages regularisation of landholdings by the encroachers on the private as well as public lands. It also envisages regularisation of construction which has been carried out without any permission from the local authority whatsoever. Both these steps would be taken even if the land use is opposed to the approved plans. Any such permission by the Government would lead to haphazard and unplanned growth of the towns and cities in the State and which even otherwise would be opposed to the Urban Improvement Act and other land laws.

(iii) That the proposed regularisation scheme of the State Government would be damaging to the environment and ecology also.

In contrast, the counsel for the state submitted that the State Government has framed a policy in the larger interest and the scope of judicial review of such decisions is available on extremely limited grounds. He argued that this policy is not opposed to any of the directives in case of Gulab Kothari nor is unreasonable or arbitrary. He further argued that the Government has the necessary mandate to make policy changes and also has the wherewithal to frame such policy with the aid and advise of the experts in the field. The Court would ordinarily not interfere in such policy matters, he added.

Adv. Moti Singh and Adv. Manoj Bohra appeared for the petitioner, while Sr. Adv. Kailash Vasdev, Sr. Adv. Harin P. Raval, AAG Sandeep Shah, Adv. Shrey Kapoor Adv. Akshit Singhvi, AAG Sunil Beniwal, Adv. Abhimanyu Singh Rathore and Adv. Saransh Vij appeared for the respondents.