STATE OF ODISHA & ORS. versus BICHITRANANDA DAS

[2019] 15 S.C.R. 214

[2019] 15 S.C.R.

STATE OF ODISHA & ORS.

BICHITRANANDA DAS

(Civil Appeal No. 9521 of 2019)

BDECEMBER 18, 2019

[DR. DHANANJAYA Y CHANDRACHUD ANDHRISHIKESH ROY, JJ.]

Lease:

CLease-hold property – Conversion to free-hold propertyunder policy – Conversion charges – Computation of – Relevantdate – Whether would be the date when the applicant applied forconversion or the date when the final decision was taken – Held:Submission of an application does not confer vested right ofpermission – The application for conversion must necessarily beDconsistent with and compliant to the governing provisions of theconversion policy – Without affecting the compliance, applicantdid not have right to claim conversion of the land to free-hold –High Court was wrong in directing that rate for computation ofconversion charges would be that which was prevalent on the dateEwhen application was made.

Allowing the appeal, the Court

HELD: 1. The submission of an application does not confervested right for permission. The applicant must comply with theterms of the policy. One of the terms in the policy in questionFwas that the applicant should not have encroached on governmentland. An applicant who seeks the benefit of the policy must complywith its terms. In the present case, the policy which was formulatedby the State Government specifically contained stipulation tothe effect that lessee, who had encroached upon orGunauthorisedly occupied Government land anywhere withinBhubaneswar Municipal Corporation limits would not be eligibleto be covered by the scheme unless the unauthorised occupationis vacated. [Para 17][220-F-G]

Chennai Metropolitan Development Authority v.HPrestige Estates Project Ltd. (2019) SCC OnLine SC

931; State of Tamil Nadu v. Hind Stone (1981) 2 SCC205 : [1981] 2 SCR 742; Howrah MunicipalCorporation v. Ganges Rope Co Ltd. (2004) 1 SCC 663: [2003] 6 Suppl. SCR 1212 – relied on.

2. There was no justification for the High Court to directthat the rate for the computation of conversion charges shouldbe that which was applicable on the submission of an application.The application for conversion from leasehold to freehold mustnecessarily be consistent with and compliant to the governingprovisions of the policy which has been framed by the StateGovernment. Unless compliance is effected, there is no right toclaim conversion of the land to freehold. The respondent wouldnecessarily have to pay the conversion charges on the date whena final decision was taken after due verification that there was noencroachment and after scrutinizing the declaration which wasfiled by the respondent. [Para 19][221-F-H; 222-A]

3. period of nearly twelve years has elapsed in themeantime. The respondent moved the writ proceedings beforethe High court only in 2015. If the grievance of the respondentwas that the State had not taken any action on his representations,he ought to have moved the writ proceedings at an earlier pointof time seeking decision on his application. Having himselfwaited until 2015 to seek declaration from the High Court, therespondent cannot claim that the conversion charges should befixed as on the date of the application. [Para 20][222-B]

Case Law Reference

From the Judgment and Order dated 12.01.2018 of the High Courtof Orissa, Cuttack in W.P. (C) No. 8159 of 2015.

V. Giri, Sr. Adv., Suvendu Suvasis Dash, Ms. Swati Vaibhav, NababSingh, Advs. for the Appellants.

ASantosh Raut, Vishwa Pal Singh, Rajendra Prasad, Ms. Pallavi,Advs. for the Respondent.

The Judgment of the Court was delivered by

DR. DHANANJAYA Y CHANDRACHUD, J.

B1. Delay condoned.

2. Leave granted.

3. This appeal arises from judgment of Division Bench of theHigh Court of Orissa dated 12 January 2018.

4. On 30 September 1981, lease of plot bearing No F/37Cadmeasuring 75 feet by 100 feet described as Drawing No BS-136 (R)Mouza-Nayapalli, Bhubaneswar, was granted to the respondent by theState Government in the General Administration Department[1] for periodof ninety years under the Government Grants Act 1895. On 18 July2003, the State government formulated scheme to allow conversion ofDresidential leasehold plots under the GA Department within the area ofBhubaneswar Municipal Corporation into freehold land. The policy, interalia, contained the following condition:

“Lessees who have encroached or unauthorisedly occupiedgovernment land anywhere within Bhubaneswar municipalcorporation limits would not be eligible to be covered under theEscheme unless they vacate the unauthorised occupation.

5. On 15 September 2003, the respondent applied for conversionof the leasehold plot to freehold. In response to the application, theRevenue Inspector in the GA Department recorded on 22 November2003 that:F

“Order on the above file I have visited to the site of Drawing PlotNo. N/4-37/F (75x100). Drawing No.BS-136 (R), Nayapalli,corresponding to the 1991-92 Final Settlement Revenue Plot No.100/3090 Area ACO. 172 under Khata no.1020 n Unit XVI, MZ– Jayadev Vihar and Board, two storied building has beenGconstructed as per approval building plan. But lessee hasencroached Govt. land (which was kept as open space) in frontof the plot, 60 x 63, by way of illegible fence and Garden. Lesseemay be asked to vacate the encroachment.”

(Emphasis supplied)

H1 “GA Department”

6. On 13 May 2004, the respondent was directed by the LandOfficer in the GA Department to vacate the area of unauthorisedoccupation, recording thus:

“In inviting reference to the subject cited above, I am directedto say that during the field enquiry it has come to the notice thatyou have unauthorizedly occupied Govt. Land measuring 60’ x63’ by covering barbed wire fencing and using the same for gardenpurpose.

You are therefore, requested to vacate the above land immediatelyand report compliance within 15 days for consideration of yourconversion application.” (Emphasis supplied)

7. Four years later, On 6 August 2008, the respondent addresseda communication to the Land Officer with reference to the letter dated13 May 2004, stating that he had already sent reply on 19 April 2006,a copy of which was enclosed stating that there existed no barbed wirefencing and “no encroachment now exists”. The letter dated 19 April2006, however, contained statement that:

“But I am told that in communication (not received by me)Ihave been asked to vacate portion of Government land reportedlyoccupied by me unauthorisedly with barbet wire fencing.”

(Emphasis supplied)

Hence, though in his letter dated 6 August 2008, the respondentstated that he had already furnished reply on 19 April 2006 to the letterdated 13 May 2004, meaning thereby, that the letter dated 13 May 2004was in possession of the respondent when he submitted the reply, thepurported letter dated 19 April 2006 suggested that the communicationhad not been received. Be that as it may, on 21 December 2009, therespondent wrote letter to the Directorate of Estates stating that nobarbed wire fencing or encroachment existed at presentaround his plot.On 28 December 2009, proceedings were initiated against the respondentby issuing notice under Section 4(1) of the Orissa Public Premises(Eviction of Unauthorized Occupants) Act 1972[2]. By the notice, therespondent was called upon to show cause as to why an order of evictionshould not be made.

A8. Subsequently, on 30 June 2010, in response to representationdated 21 December 2009, the GA Department was directed to re-enquire.On 30 June 2010, the following position was indicated upon verification:

“Verified the land bearing training Plot No. N-4/F-37 of MTJayadevihar Unit No. 16 and on field verification the encroachmentBreported earlier has not been vacated now.” (Emphasis supplied)9. On 11 November 2010, the respondent once again sought adecision on his application for conversion, stating that:

“I have responded to the above objection clearly indicating thatthe reported encroached area is completely outside my puccaCcompound wall. This area is not covered with any barbed wirefencing as alleged. There is no construction whatsoever. The areais covered with some green plantation. Moreover the vacant areais always available to G.A. Department” (Emphasis supplied)

10. On 23 February 2011, the Land Officer in the GA DepartmentDvisited the site and submitted report that there was no barbed wirefencing on the encroached site, but that the respondent had put up atemporary fencing and small iron grill gate for access to the encroachedarea. On 2 August 2013, the respondent once again sought conversionto freehold. On 2 September 2013, the respondent was directed to file adeclaration, in communication of the Deputy Secretary to theEGovernment, GA Department which read as follows:

“In inviting reference to your application dated 02.08.2013, I amdirected to inform you that, you are required to file registereddeclaration to the effect that, you have not fenced the Govt. landin front of your lease plot.You should indicate the declarationFthat, you would not claim long possession on the said land evenafter conversion is allowed.The sketch map of the said land isenclosedherewith for preparing the declaration. Your request forconversion will be considered only after submission of the saiddeclaration.”

(Emphasis supplied)

11. On 22 March 2014, the competent officer in the GA Departmentsubmitted report indicating the following position at the site:

Lessee Sri B.N. Das has made compound wall over his allottedland and one, single storied RCC building exist over the said land.HLessee with his family is residing there in residential purposes.

Earlier reported regarding encroachment reveals that there is nobarbed fence now. Only open plantation exists over Governmentland available in between road and allottee’s plot. The saidplantation may not be treated as encroachment. Copy ofphotograph is enclosed herewith for reference.”

(Emphasis supplied)

Consequently, the conversion fee was recomputed.

12. Eventually, on 9 April 2014, the Director of Estates calledupon the respondent to submit an affidavit that he had not encroachedon government land nor would he claim possession in future. Therespondent submitted an affidavit on 21 April 2014. Consequently,permission was granted on 5 May 2014 for conversion of the land fromleasehold to freehold, conditional on deposit of an amount ofRs 13,25,758.

13. The respondent moved writ petition[3] before the High Courtof Orissa challenging the communications dated 5 May 2014 and 9December 2014 (the latter having rejected the plea of the respondentfor recomputing the conversion fees on the basis of the rate prevalent in2003). counter affidavit was filed by the State. The High Court, by itsimpugned judgment and order, allowed the writ petition and directed theState to recompute the conversion fees as on the date of the making ofthe application on 15 September 2003.

14. Aggrieved by the direction of the High Court, the State is inappeal before us.

15. Mr V Giri, learned senior counsel appearing on behalf of theappellants, submitted that the rates chargeable for the conversion fromleasehold to freehold would be those which govern on the date when theapplication has been decided. Learned counsel relied on the decision ofthis Court in Chennai Metropolitan Developoment Authority vPrestige Estates Project Ltd[4]. Mr Giri submitted that as the recordwould indicate in the present case, an encroachment had been made bythe respondent adjacent to his leasehold plot and, in terms of the applicablepolicy, the respondent was required to remove the encroachment. Itwas urged, relying on the correspondence which has been referred toabove, that the respondent responded to the communication dated

3 W P (C) No 8159 of 2015

4 2019 SCC OnLine SC 931

A13 May 2004 only on 6 August 2008 and that the purported communicationdated 19 April 2006 appears to be an ante-dated document. Be that as itmay, it was urged that as matter of principle it was not open to therespondent to claim that the conversion charges be computed on thebasis of the rate prevalent on the date of the application. The applicationfor conversion could be considered only in terms of the policy framed byBthe government and one of its conditions was that the applicant shouldnot be in unauthorized occupation of government land.

16. On the other hand, it has been urged by Mr Santosh Raut,learned counsel appearing on behalf of the respondent that, as matterof fact, the case of the respondent was that there was no encroachmentCwhatsoever on the land, which was clarified in the letters dated 19 April2006 and 6 August 2008. Learned counsel submitted that, at the highest,only plantation had been made outside the leasehold plot and this couldnot have been treated as an encroachment. Hence, it was urged onbehalf of the respondent that where the State had taken an inordinatelylong time to consider the application, there was no justification or reasonDto saddle the respondent with the increased rates which were payableas on the date on which the decision was ultimately taken. Hence, it wasfurther urged that the High Court was correct in coming to the conclusionthat the rate as on the date of the application must be the governing ratefor computing the conversion charges.

E17. In the recent decision of this Court in Chennai MetropolitanDevelopoment Authority (supra), this Court relied upon line ofprecedents emanating from the Court, including the decisions in State ofTamil Nadu v Hind Stone[5 ]and Howrah Municipal Corporation vGanges Rope Co Ltd[6]. The submission of an application does notFconfer vested right for permission. The applicant must comply withthe terms of the policy. One of the terms in the policy in question is thatthe applicant should not have encroached on government land. An applicantwho seeks the benefit of the policy must comply with its terms. In thepresent case, the policy which was formulated by the State governmentspecifically contained stipulation to the effect that lessee, who hadGencroached upon or unauthorisedly occupied government land anywherewithin Bhubaneswar Municipal Corporation limits would not be eligibleto be covered by the scheme unless the unauthorised occupation isvacated.

5 (1981) 2 SCC 205H6 (2004) 1 SCC 663

18. The record shows that on 13 May 2004, the Land Officerinformed the respondent that he was unauthorisedly in occupation ofland admeasuring 60’ x 63’ which had been covered by barbed wirefencing, which was being used for the purpose of garden. The respondentaddressed communication on 6 August 2008, stating that he had alreadyreplied to the letter dated 13 May 2004 on 19 April 2006. The letterdated 19 April 2006 is carefully worded and states that “no barbed wirefencing and “no encroachment nowexists”. Interestingly, copy of theearlier letter dated 19 April 2006 was annexed to the communicationdated 6 August 2008. However, the purported letter dated 19 April 2006contains statement that the respondent had been told that in acommunication, which had not been received by him, he had been askedto vacate portion of the government land, which had been occupiedunauthorisedly with barbed wire fencing. The contents of the letterdated 6 August 2008 do not square up with the purported communicationdated 19 April 2006. Be that as it may, it is evident from thecommunications that it was his case that no encroachment existed “atpresent”. Eventually, notice to show cause had to be issued to therespondent under the Act on 28 December 2009. The State has placedon record copy of the inspection report of 30 June 2010 which indicatesthat the encroachment had not been vacated. It was in this view of thematter that the State called upon the respondent to furnish declarationthat the encroachment had been removed and that he would not claimpossession of the adjacent land even after conversion was allowed.Eventually, on 22 March 2014, it was stated that while an open plantationexisted over the land, the plantation may not be treated as anencroachment.

19. In this background, we are of the view that there was nojustification for the High Court to direct that the rate for the computationof conversion charges should be that which was applicable on thesubmission of an application on 15 September 2003. The application forconversion from leasehold to freehold must necessarily be consistentwith and compliant to the governing provisions of the policy which hasbeen framed by the State government. Unless compliance is effected,there is no right to claim conversion of the land to freehold. Consequently,we are of the view that the High Court was in error in directing the Stateto recompute the conversion charges as on 15 September 2003. Therespondent would necessarily have to pay the conversion charges onthe date when final decision was taken after due verification that there

Awas no encroachment and after scrutinizing the declaration which wasfiled by the respondent.

20. period of nearly twelve years has elapsed in the meantime.It is significant that the respondent moved the writ proceedings beforethe High court only in 2015. If the grievance of the respondent was thatBthe State had not taken any action on his representations, he ought tohave moved the writ proceedings at an earlier point of time seeking adecision on his application. Having himself waited until 2015 to seek adeclaration from the High Court, the respondent cannot claim that theconversion charges should be fixed as on the date of the application,namely, 15 September 2003.C

20. For the above reasons, we allow the appeal and set aside theimpugned judgment and order of the High Court. The writ petition filedby the respondent shall stand dismissed. However, we direct that in theevent that the respondent complies with the directions contained in thecommunication of the State government by which the conversion chargesDwere computed and makes the necessary payment, the application shallbe processed expeditiously so as to facilitate the grant of conversion ofthe land from leasehold to freehold. There shall be no order as to costs.

Kalpana K. Tripathy

Appeal allowed.