Andhra Pradesh High Court - Amravati
Sri Srinivasa Vidya Parishad, vs The State Of Andhra Pradesh, on 27 July, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.17189 of 2020
ORDER:
Srinivasa Vidya Parishad, a registered society, filed this petition under Article 226 of the Constitution of India questioning the action of the respondents in not completing the process of alienation of the allotted land admeasuring Ac.63.50 cents situated in Sy.Nos.60/1 to 60/5, 61/1 to 61/7 of Pothina Mallayya Palem and Sy.No.364/1, 364/2 Madhurawada villages of Visakhapatnam Mandal and District despite delivery of possession of the said land in the year 1981 to the petitioner and the initiation of proceedings for resumption of the land from the petitioner and to declare the same as illegal, arbitrary and direct the respondents to alienate the land to the petitioner at the rate which existed at the time of allotment of the same, in terms of Rc.No.6308 of 1983 dated 19.08.1983 and so as to confer title to the land on the petitioner, to enable the petitioner to carry on its educational institutions in the site.
The petitioner is an educational society registered with the Registrar of Cooperative Societies vide registration No.51/1980, dated 06.03.1980 under the Societies Registration Act, 1960 with the objective of establishing and to run various educational institutions/colleges, in particular, law college/technical education etc ., and in that pursuit, it has approached the State Government to alienate land, so that it can be used for construction of buildings for housing various colleges and educational institutions, in particular law college and technical education etc. The State having been impressed by the presentation of the profile by the petitioner, respondent No.2 vide proceeding in Rc.No.6308/83 dated 19.08.1983 has allotted two land parcels MSM,J wp_17189_2020 2 admeasuring Ac.32.50 cents in Pothina Mallayya Palem (Sy.Nos.60/1 to 5 and 61/1 to 7) and another extent of Ac.31.00 cents in Madhurawada village of Visakhapatnam Mandal (Sy.Nos.364/1 and 2, 365/1 to 4 and 366/1 to 3) on the specific condition that the allotment of land is for establishment of Nyaya Vidya Parishad (National Law School) and Sanketika Vidya Parishad (Engineering college) on alienation basis and called for the alienation proposals from respondent No.3. The possession of the land was delivered to the petitioner on 16.01.1981, since then the petitioner is in exclusive physical possession and enjoyment of the said land (totally admeasuring Ac.63-50 cents).
The allotment of land and delivery of possession in favour of the petitioner has amounted to a government grant within the meaning of the Government Grants Act, 1895. Hence, the provisions of the Transfer of Property Act, 1882 are not applicable to the said transaction. Though the respondents delivered possession of the property about 36 years ago and the petitioner has been in exclusive and continuous possession and enjoyment of the said land, the alienation process is not completed.
The petitioner constructed various buildings in the said land and established educational institutions/colleges in the buildings, which are as follows:
A. POTHINA MALLAYYA PALEM
1) Sanketika Vidya Parishad Engineering College
a) B. Tech, b) M. Tech, c) MBA and d) MCA
2) Sanketika Institute of Technology and Management
a) B. Tech., b) M. Tech.
3) Srinivasa Rao College of Pharmacy MSM,J wp_17189_2020 3
a) B. Pharmacy, b) M. Pharmacy, c) Pharma. D
4) S.V.P. Industrial Training College
a) ITI
5) Sanketika Polytechnic
6) Skill Development Centre in Collaboration with ILFS (Infrastructure Leasing and Financial Services) New Delhi.
B. Madhurawada
1. N.V.P. Law College.
a) 3 years LLB, b) 5 years LLB, c) 2 years LLM
2. Srinivasa Institute of Management Studies (SIMS)
a) BBA, b) MBA, c) MCA
3. Centre for Management & Technology (CMT) a. PGDM/MBA
4. Greendale International School.
Facilities with Sports Arena, Food Court, Football Ground, 200 Mtr Track, Volley Ball, Throw Ball, Horse Polo Club, Art Village, Basket Ball, Tennis Court, Play Pen, Galleries, Amphitheatre etc.
5. Rajyalakshmi Junior College
a) M.P.C., b) Bi.P.C., c) C.E.C. As the petitioner is contemplating to construct few more buildings which comprise of built up area of about 1.5 lakh sft. each (for the purpose of extension of existing engineering college and for 2000 persons capacity auditorium and Central Library, Hostels etc) and to promote fashion technology institution in a built up area of 40,000 sft. it is intending to utilize the entire land to construct buildings and establish educational institutions etc. Since the date of inducting the petitioner into possession in pursuance of the proceedings, the petitioner making representation to the authorities for expeditious action to complete alienation MSM,J wp_17189_2020 4 proposals and the State authorities have not done anything positive in that context.
Recently, respondent No.2 vide letter dated 16.10.2017 called upon the respondent No.3 to conduct survey and submit proposals for alienation or for resumption of the land. Thus, it is clear that the respondents have not taken any definite decision about the alienation of the land in favour of the petitioner. The State authorities seem to have an impression that the present market value of the land is to be applied for alienating the land to the petitioner though the land was allotted in the year 1983 and possession was delivered in the year 1987. The state cannot take advantage of hike in prices and demand for payment of the present market value and cannot resume the land after 36 years.
The petitioner mainly raised the following contentions to issue a direction as sought for.
(a) The land was proposed for allotment in the year 1983, delivered possession in 1987 and allowed the petitioner to utilise major part of the site by raising massive construction for education purpose and to cater the educational needs of the public of the Visakhapatnam area. The respondents, now, contemplating to resume the land and failed to keep up their promise, thereby 64000 students will lose their opportunity to continue their studies besides 590 staff working in the educational institutions will be put to serious loss.
(b) Though the respondents promised and fulfilled its part of obligation, no final proceedings were issued alienating the property to the petitioner, failed to keep up its promise, MSM,J wp_17189_2020 5 thereby the respondents are not entitled to resume the land from the possession of the petitioner.
(c) It is further contended that the respondents committed breach of promise and the State cannot be allowed to capitalize of its own default to proceed either with resumption of land or imposition of present market value for alienation of the land. On the principle of estoppel and waiver as held by the Apex Court in "B.L.Sreedhar v. K.M.Munireddy (Dead) and others1" and "Ram Chand v. Union of India2", the State should be restrained from taking any coercive steps against the petitioner.
(d) The grant made in favour of the petitioner in the year 1981 was unconditional; thereby resumption of the grant does not arise. On this ground alone, the proposed action to resume the land by the respondents is illegal.
(e) The petitioner approached this Court earlier and despite the order passed by this Court in W.P.No.11433 of 1995, the respondents did not finalise the alienation proposals and that the petitioner perfected his title by adverse possession and willing to pay market value of the land existed in the year 1983, hence, the petitioner requested to issue a direction as claimed in the writ petition.
Respondents filed counter denying all the material allegations interalia contending that based on the requisition of the petitioner, the then District Collector, Visakhapatnam issued proceedings Rc.No.594/1981/B2 dated 10.01.1981 to handover advance 1 AIR 2003 SC 578 2 1994 (1) SCC 44 MSM,J wp_17189_2020 6 possession of certain land to the petitioner for establishment of National Law College and Engineering College pending finalization of alienation proposals. Accordingly, the land in different survey numbers was handed over to the petitioner on 16.01.1981, which is as follows:
Name of Survey Extent in Name of the Survey Extent the Village No. Ac.cts Villag No. in Ac.cts e PM Palem 60/1 1.91 Madhurawadaa 364/1 5.03 60/2 2.39 364/2 5.10 60/3 1.00 365/1 4.26 60/4 3.09 365/2 3.25 60/5 4.99 365/3 3.52 61/1 1.90 365/4 1.17 61/2 0.43 366/1 3.07 61/3 0.69 366/2 3.30 61/4 4.65 366/3 2.30 61/5 0.35 Total 31.00 61/6 5.00 61/7 6.10 Total 32.50 It is further contended that based on the representation of Sri Srinivasa Vidya Parishad stating that the land allotted could not be utilized for the purpose and requested for permission to utilize for other Educational purposes, vide proceedings Rc.No.6308/83/dt.19.08.1983 the District Collector, Visakhapatnam district accorded permission to Sri Srinivasa Vidya Parishad to utilize the land allotted in Pothinamallayyapalem and Madhurawada villages of Visakhapatnam Rural Mandal for General Education and Other Education purposes.
The Government vide G.O.Ms.No.635 dated 02.07.1990 has enhanced the powers of Commissioner of Land Revenue and the District Collector for disposal of land to different bodies wherein the District Collector is vested with power to dispose land to companies, private associations and private corporations and MSM,J wp_17189_2020 7 private individuals for which market value of Rs.l0,000/- and Ac.0.25 cts or 0.10 guntas whichever is less. Prior to the said G.O., the District Collector was competent to dispose the land to private individuals where the market value does not exceed Rs.1,000/-. Therefore, in the present case, the then District Collector has ordered to handover advance possession of land to the petitioner to an extent of Ac.63.50 cts which is beyond the powers vested on him. Therefore, the said proceedings Rc.No.594/1981/B2 dated l0.01.1981 were issued without jurisdiction, consequently they are unsustainable under law.
The respondents further contended that the land in an extent of Ac.63.50 cts in various Survey number of P.M.Palem and Madhurawada villages of Visakhapatnam Rural Mandal is pending finalization of the alienation proposals. The handing over of possession of the land by the District Collector is not absolute and only subject to the decision of the competent authority through alienation proposals.
It is further contended that the above land was handed over to the petitioner pending alienation. BSO-24 governs the subject matter of alienations to Government departments, private bodies, institutions and individuals. In the present case, the handing over advance possession of subject matter of land to the petitioner is governed by BSO-24 and therefore, the petitioner cannot contend that the delivery of possession in his favour amounts to a Government Grant within the meaning of Government Grants Act, 1895 and hence, the provisions of the Transfer of Property Act, 1882 are not applicable. In this case, the then District Collector had no power to give advance possession for such an extent of land.
MSM,J wp_17189_2020 8 A grant is stated to have been made only in the exclusive powers vested on the Government.
The respondents further contended that the petitioner has submitted the details of the various Educational Institutions established in the above land and also future expansion plans. A period of 39 years have already elapsed and the contention of future expansion is not correct and the petitioner is intended to keep the Government land in the clutches of the petitioner, which does not deserve any consideration.
It is also contended that in view of reasons explained in the earlier paragraphs, the land to an extent of Ac.63.50 cts in various Survey numbers of Pothinamallayyapalem village and Madhurawada village of Visakhapatnam Rural Mandal was handed over to the petitioners on 16.01.1981 pending finalization of alienation proposals for establishment of National Law College and Engineering College.
As seen from the material available on record, the then Joint Collector, Visakhapatnam inspected the land in the year 1995 and ordered to take back unutilized land and to submit regular alienation proposals for the remaining land. The extent of unutilized is as follows.
Sl.No. Name of the Village Survey Number Extent found
unutilized
1 Madhurawada 364/1 5.03
365/1A 1.88
365/2B 0.92
365/4 1.16
365/3B 0.32
2 Pothinamayyallapalem 61/1 to 7 19.12
Total 28.43
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The respondents further contended that the then Mandal Revenue Officer, Visakhapatnam Rural Mandal has issued notice to the petitioner to handover unused lands to an extent of Ac.9.31 cts at Madhurawada and Ac.19.12cts at P.M.Palem. Aggrieved by the above action, petitioner has filed W.P.No.11443/1995 before the High Court of Andhra Pradesh, Hyderabad. The Secretary of the petitioner submitted a representation to the Government for alienation of above land and in turn the Government vide Memo NoA9986/Assn.-1 (3)/2003-1 Revenue (Assn.I) Department, dated 15.12.2003 issued instruction to send alienation proposals. The said proposal could not be submitted due to pendency of writ petition.
It is further contended that the High Court on 29.07.2009 disposed the W.P.No.11433 of 1995 directing respondents to finalize the alienation proposals in favour of the petitioner society as per Government Memo dated 15.12.2003. Smt.Pothina Atchiyyamma W/o late Adiyya and Matta Suvarna Raju have filed W.P.No.8690 of 2007, contending that Ac.4.26 cts in Sy.No.365/1 of Madhurawada village is assigned in favour of Pothina Adiyya under EX.Serviceman quota in the year 1970 and prayed to issue directions to the respondent not to interfere with their enjoyment. The High Court passed orders on 29.07.2009 directing the respondents therein not to interfere with the possession and enjoyment of the petitioner in respect of the land in an extent of Ac.4.26cts, Sy.No.365/1 of Madhurawada village without following due process of law. Accordingly alienation proposals from the Tahsildar, Visakhapatnam Rural excluding the above land were called for vide Rc.No.2964/2002/dt.3.11.2009.
MSM,J wp_17189_2020 10 The Tahsildar Visakhapatnam Rural Mandal and Revenue Divisional Officer, Visakhapatnam have submitted the proposals for alienation of an extent of Ac.59.24 cts excluding Ac.4.26 cts in Sy.No.365/1 of Madhurawada village. The then Joint Collector inspected the land on 05.12.2013 and observed that some parts in the premises are kept vacant by the institutions. Hence, he has recommended to conduct survey on ground and report actual build up area and vacant area duly demarcating in the sketch. Accordingly, Lr.Rc.No.2964/2002/E2 dated 27.2.2013 was addressed to the Tahsildar, Visakhapatnam Rural Mandal to submit report. The then Joint Collector inspected the land on 17.08.2017 and as per the above inspection report following is the status of land on ground.
Sl. Name of the Village Survey Built up Vacant Remarks
No. area on
No
ground
Ac.cts
Ac.cts
1 364/1 - 2.48 Land handed over
Housing Dept for
construction of HUD
HUD housing court
case is pending
between Assignee
and Government
364/2 0.72 4.38 Constructed
Scattered buildings
364/3 0.07 2.48
and most of the
extent is left vacant
365/1 4.26 - VUDA Layout
365/2 0.47 2.79 Constructed
Greendale
International School
Madhurawada building, 2 sheds
and vacant land is
covered with
bushes.
365/3 0.03 3.49 Newly established
play ground and one
shed.
365/4 - 1.16 Vacant on ground.
Covered with
bushes
366/1 0.04 3.03 Newly established
play ground and
open gallery
366/2 0.10 3.20 Newly established
Basket Ball court,
sports room and
MSM,J
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11
Horse shed
366/3A 0.02 2.28 Security guard room
and 3B and rest of land are
vacant on ground
366/4 - - Vacant on ground.
2 60 - - 90% of the land is
covered with college
building and play
ground
61 - - Nearly at about in
Ac.2.00 cts of land
P.M.Palem Civil Engineering
block, ACC shed,
Two RCC building
and play ground
were established
and most of land is
vacant on ground
In view of the above, it is clear that the petitioner has not utilized approximately an extent of Ac.25.00 cts out of the total extent of land handed over to the petitioner. The land allotted to the petitioner is lying vacant and the said land is located in prime locations of Visakhapatnam. Since the land was allotted pending alienation, the Government is competent to resume the land in the event of non utilization as per the conditions laid down in BSO 24.
It is further contended that the Government has issued guidelines vide G.O.Ms.No.571 Revenue Department dated 14.09.2012 for alienation of Government lands to various institutions and individuals either on payment of market value or free of cost. According to the said guidelines, the applicant has to submit requisition in Appendix-XXIX and also justification from the secretary to Government of the Administrative Department concerned in the proforma Annexure-XI. After receipt of the above two requisitions, the District Collector will process the alienation proposals and submit the same with specific recommendation on market value to the Chief Commissioner of Land Administration for placing the proposal before the AP MSM,J wp_17189_2020 12 Land Management Authority (APLMA) for consideration and approval. After the proposal is approved by the APLMA, the same will be transferred to Revenue Department by the Government of A.P., which in turn circulate the proposal and also places before the Cabinet by following due procedure. Thereafter, the cabinet approves and the Government may issue final orders for alienation of the land to departments, institutions, private bodies and individuals either on payment of Market value or free of cost, and finally, the land will be delivered to the alienee after collecting Market Value.
Finally, the respondents contended that as the land was not utilized fully, the unutilized land is to be returned to the State in terms of BSO 24. However, a Special Investigation Team (SIT) is constituted to conduct special investigation in the year 2019 and taken over the connected file along with other files relating to proposed allotment of subject land to the petitioner for investigation and the outcome of the investigation is awaited. Therefore, in those circumstances, the alienation is not valid and it could not be completed, finally requested to dismiss the writ petition.
During hearing, Sri Vedula Venkata Ramana, learned senior counsel, would contend that possession of the property was delivered in the year 1983 during pendency of alienation proposals and allowed to raise massive constructions for accommodating educational institutions, now the Government cannot resile from its promise and resume the unutilized land after 36 years and such demand for payment of present market value and proposed resumption of part of the land is contrary to the judgment in MSM,J wp_17189_2020 13 W.P.No.11433 of 1995 as the respondents did not complete the process of alienation.
It is further contended that when once the State has taken decision, it is a law as defined under Section 2 (f) of the Andhra Pradesh Reorganization Act, 2014 and it is the obligation of the residuary State to implement the decision taken by the common State. He placed reliance on the judgments of the Apex Court in "State of Punjab v. Balbir Singh3", "State of Uttar Pradesh v. Hari Ram4" "Azim Ahmad Kazmi v. State of Uttar Pradesh5" to contend that allotment is a Government grant and such allotment is governed by the terms of the grant, when once the Government has absolute discretion to incorporate such conditions, limitations or restrictions as per the terms of grant as it considers it, the Government is bound by the terms incorporated therein and cannot resile from the terms of original grant, which is governed by the Government Grants Act. He placed reliance on the judgment of the Apex Court in "the State of U.P. v. Zahoor Ahmad6". On the strength of the principles laid down in the above judgments, learned senior counsel contended that the respondents having suffered from an order in writ petition No.11433 of 1995, allowed the petitioner to raise massive construction in the land allotted to it, now, the State cannot insist the petitioner for payment of market value as on date and cannot resume the unutilized land. Therefore, the proposed act of the respondents to collect the present market values and to resume the part of the land is illegal, arbitrary and violative of 3 (1976) 3 Supreme Court Cases 242 4 (2013) 4 SCC 280 5 (2012) 7 SCC 278 6 (1973) 2 SCC 547 MSM,J wp_17189_2020 14 principle of legitimate expectation, requested to issue a direction as claimed in the writ petition.
Sri Ponnavolu Sudhakar Reddy, learned Additional Advocate General, while supporting the contentions urged in the counter, more particularly about the powers of the Collector to alienate the land with reference to BSO 24, strongly supported the proposed action of the respondents, placed reliance on the judgment of the Apex Court in "Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh7" and other two judgments of the High Court of Andhra Pradesh in "S. Lingamaiah v. State of A.P.8" and "Road Metal Industry v. Secretary to Government of A.P.9", where the Court held that basically, the Government being the owner of the land can allot it for any purpose, which is conducive to the welfare of the State. There are also some statutory provisions, which provided inter alia for such assignment e.g. Board‟s Standing Order 24 and such alienation without authority is illegal, arbitrary and that the Court cannot issue a direction to the respondents based on such alienation, requested to dismiss the writ petition.
Considering rival contentions, perusing the material available on record, the points that need to be answered by this Court are as follows:
(1) Whether the allotment of land and handing over of the advance possession of the land pending alienation is governed by the Government Grants Act? If not, whether the State is competent to revoke the grant to the extent of unutilised portion of the land in 7 1979 (2) SCC 409 8 2004 (2) ALD 837 9 2001 (5) ALT 670 MSM,J wp_17189_2020 15 Sy.Nos.60/1 to 60/5, 61/1 to 61/7 of POthina Mallayya Palem and Sy.No.364/1, 364/2 Madhurawada Villages of Visakhapatnam Mandal?
(2) Whether the petitioner is liable to pay market value of the land as on date on completion of alienation proposals for an extent of Ac.63.50 cents situated in Sy.Nos.60/1 to 60/5, 61/1 to 61/7 of Pothina Mallayya Palem and Sy.No.364/1, 364/2 of Madhurawada Villages of Visakhapatnam Mandal? If not, Whether the State is entitled to resume the land after such long period of 39 years having allowed the petitioner to construct various buildings in the land allotted to it for running educational institutions for the benefit of public at large?
P O I N T No.1:
The first and foremost contention of the learned senior counsel for the petitioner is that the allotment of land to the petitioner is Government Grant governed by the provisions of the Governments Grants Act, whereas learned Additional Advocate General Sri P.Sudhakara Reddy would contend that the Collector, Visakhapatnam District allotted the land by exercising power under BSO 24 of A.P.Revenue Board Standing Orders, exceeding authorisation. Therefore, the grant is governed by BSO 24 and land alienation policy of the State but not by the Government Grants Act.
In view of the little controversy about the law governing such allotment, it is appropriate to advert to the proceedings issued by the District Collector on 10.01.1981 for better appreciation and the same is extracted hereunuder.
"Pending finalization of alienation proposals and in order to avoid encroachments by un-authorised people, the Tahsildar, Visakhapatnam is hereby permitted to handover the following State lands in Pothina Mallayyapalem and Madhurawada villages of Visakhapatnam Taluk to Sri Sreenivas Vidya Parishad, Visakhapatnam for the location of "Nyaya Vidya MSM,J wp_17189_2020 16 Parishad (National Law College) and Sanketika Vidya Parishad (Engineering College) Visakhapatnam and obtain proper acknowledgement.
Name of Survey Extent in Name of the Survey Extent in
the Village No. Ac.cts Village No. Ac.cts
PM Palem 60/1 1.91 Madhurawada 364/1 5.03
60/2 2.39 364/2 5.10
60/3 1.00 365/1 4.26
60/4 3.09 365/2 3.25
60/5 4.99 365/3 3.52
61/1 1.90 365/4 1.17
61/2 0.43 366/1 3.07
61/3 0.69 366/2 3.30
61/4 4.65 366/3 2.30
61/5 0.35 Total 31.00
61/6 5.00
61/7 6.10
Total 32.50
The Tahsildar, Visakhapatnam is also requested to finalise the allocation proposals and submit them in complete shape within 3 weeks."
A bare look at the contents of the order of the District Collector dated 10.01.1981, the Collector decided to alienate the land in favour of the petitioner shown in different survey numbers in the table extracted above, pending finalization of alienation proposals to avoid encroachments by un-authorised people, the Tahsildar, Visakhapatnam was also permitted to handover the State lands in Pothina Mallayyapalem and Madhurawada villages of Visakhapatnam Taluk to Sri Sreenivas Vidya Parishad, Visakhapatnam for the location of "Nyaya Vidya Parishad (National Law College) and Sanketika Vidya Parishad (Engineering College) Visakhapatnam and obtain proper acknowledgement.
The District Collector agreed to alienate the property shown in the proceedings and directed the Tahsildar to deliver vacant possession of the property. In pursuance of the letter dated 10.01.1981 issued by the Collector, the Tahsildar delivered the possession of the property both at Pothinamallayyapalemn Village MSM,J wp_17189_2020 17 and Madhuravada to the Secretary, Sri Srinivasa Vidya Parishad, Visakhapatnam and obtained delivery receipt from the Secretary of the petitioner on 16.01.1981. A copy of the delivery receipt is also placed on record by the petitioner. Thus, the allotment of land and delivery of vacant possession of the property to the petitioner in different survey numbers (referred supra) is not in dispute.
According to the terms of allotment during finalisation of alienation proposals, the land should be utilised for the purpose of establishing Nyaya Vidya Parishad (National Law College) and Sanketika Vidya Parishad (Engineering College). But the petitioner could not utilise the total land for the purpose stated in the letter dated 10.01.1981 extracted above, addressed a letter dated 23.03.1983 to the District Collector, Visakhapatnam to permit the petitioner to utilise the land for other educational institutions. The Collector, Visakhapatnam issued proceedings in R.C.6308/83/B2 dated 19.08.1983 while reiterating the allotment of land to the petitioner for establishment of Nyaya Vidya Parishad (National Law College) and Sanketika Vidya Parishad (Engineering College), granted permission to utilise the land allotted for construction of college buildings/facilities, while directing the Tahsildar to send alienation proposals within two weeks without fail. A copy of the proceedings of the District Collector is also placed on record.
It is clear from the proceedings referred above, the property can be utilised for any educational purpose including general education. Accordingly, the petitioner constructed several buildings as shown in the table above, still, there is some land unutilised according to the respondents. Therefore, utilisation of major part of the land is not in dispute including allotment of land. The allotment MSM,J wp_17189_2020 18 is nothing but making a grant in favour of one person or institution by the Government. Therefore, such allotment during pendency of alienation can be said to be transfer of interest in immovable property. Therefore, the petitioner is entitled to continue and utilise the property for the purpose permitted by the State. The petitioner is utilising the property only for educational purpose not for any other purpose. Hence, the grant in favour of the petitioner by the State can be said to be a Government grant. But the word "Government Grant" is not defined anywhere in the Government Grants Act. The "Government grant" can be defined as follows:
Government grant means and includes assistance by government in the form of transfers of resources to an entity in return for past or future compliance with certain conditions relating to the operating activities of the entity. They exclude those forms of government assistance which cannot reasonably have a value placed upon them and transactions with government which cannot be distinguished from the normal trading transactions of the entity.
In the present case, allotment of land during pendency of alienation proceedings can be said to be Government Grant in the form of transfer of resources to an entity i.e. petitioner - Society with certain condition to establish educational institutions i.e. Nyaya Vidya Parishad (National Law School) and Sanketika Vidya Parishad (Engineering college). Later, the conditions were relaxed permitting the petitioner to utilise the land for general education in view of the proceedings stated above. Therefore, the grant can be said to be a Government grant.
The connotation of Government Contract was discussed by the High Court of Judicature at Bombay in "Bank of Baroda v. Mumbai Metropolitan Regional Development Authority (W.P.No.750 of 2000)." In the facts of the above judgment, lease was granted by Mumbai Metropolitan Regional Development Authority in MSM,J wp_17189_2020 19 favour of Bank of Baroda. Later, after expiry of lease, bank was allowed to continue in possession and the same was held to be as tenant, but the contention was that the Mumbai Metropolitan Regional Development Authority is not a Government, it is only a Corporation. Consequently, the Government Grants Act is not applicable, as such the lease is governed by the Transfer of Property Act.
In "Cosmopolitan Club v Government of Tamil Nadu (W.P.No.9636 of 1999)" an identical question came up for consideration with regard to continue in possession after expiry of lease period, but the Court held that Once the Government, in the public interest, exercise their option and refuse the renewal of lease governed under the provisions of the Government Grants Act, the properties go back to the Government at the end of the lease period. Therefore, Government grant by way of lease is deemed to be permitted in the public interest. Though, the principle laid down in the above judgment is pertaining to lease, the Government can refuse to renew the lease in the public interest.
The word "allotment" is defined in "Amar Singh v. Custodian Evacuee Property, Punjab10" by the Apex Court, which is as follows:
"allotment' is defined as meaning the grant by a person duly authorised of a right of use or occupation of an immovable evacuee property to any other person but does not include a grant by way of a lease."
Herein, the land was allotted except alienation of land on papers. Hence, the allotment itself can be said to be a grant in favour of the petitioner by the Government.
10
AIR 1957 SC 599 MSM,J wp_17189_2020 20 In "Jnanendra NathNanda v. JaduNath Banerji11", an example of a Government grant within the meaning of the Government Grants Act wad discussed. In the facts of the above judgment, two leases of two lots were granted by the Sunderban Commissioner on behalf of the Secretary of State. The lands comprised in the two lots were waste lands of the Government. The waste lands of the Sunderbans were not the, property of any subject. The Sundebans were a vast impenetrable forest. It was the property of the East India Company. It later on vested in the Crown in those days by virtue of an Imperial statue, as such it is a Government grant.
In "Secretary of State for India in Council v. Lal Mohan Chaudhuri12", there is an illustration of "what is not a Government grant within the meaning of the Government Grants Act". The Government in that case granted lease in respect of Khas Mahal lands. The lease of Khas Mahal was held not to fall within the category of grants as contemplated in the then Crown Grants Act. The lease in the said case was for the purpose of erecting a temporary rice mill and for no other purpose. The mere fact that the State is the lessor will not by itself make it a Government grant within the meaning of the Government Grants Act.
The lease in favour of third party or institution does not fall within the definition of Government Grant. In case of Government Grant, the Government has unfettered discretion to impose any conditions, limitations, or restrictions in its grants, and the right, privileges and obligations of the grantee would be regulated according to the terms of the grant, notwithstanding any provisions 11 I.L.R. (1938) 1 Cal. 626 12 I.L.R. 63 Cal. 523 MSM,J wp_17189_2020 21 of any statutory or common law as held in "State of U.P. v. Zahoor Ahmad13"
When the grant is made by the State can be construed as Government Grant not by any Corporation and the State can impose any conditions, limitations, or restrictions in its grants, and the right, privileges and obligations of the grantee would be regulated according to the terms of the grant, notwithstanding any provisions of statute or common law.
In the present case, the grant was made by the Collector representing the State, allotted the subject land in different survey numbers as mentioned in the table, during pendency of alienation proposals, advance possession was also granted. Hence, the grant made in favour of the petitioner would fall within the meaning of Government Grant and it is governed by the conditions and restrictions contained therein, irrespective of the laws applicable.
In the present case, the respondents did not dispute the allotment of land, handing over possession to the petitioner during pendency of alienation proposals, but the respondents after lapse of 39 years proposing to resume the land unutilised, issued proceedings impugned in the writ petition. Such restriction was not imposed in the grant made initially in favour of the petitioner or subsequently while granting permission to run general educational institutions, all of a sudden under the impugned proceedings, State proposed to resume the un-utilised land. There is no reference about the public interest in the said proceedings impugned in the writ petition. In the absence of any condition to resume the land, proposal to resume the land after 39 years is contrary to doctrine of 13 AIR 1973 SC 2520 MSM,J wp_17189_2020 22 legitimate expectation.
One of the major contentions of learned Additional Advocate General is that G.O.Ms.No.635 dated 02.07.1990 has enhanced the powers of Commissioner of Land Revenue and the District Collector for disposal of land to different bodies wherein the District Collector is empowered to dispose land to companies, private associations and private corporations and private individuals for which market value of Rs.l0,000/- and Ac.0.25 cts or 0.10 guntas whichever is less. Prior to the said G.O. the District Collector was competent to dispose the land to private individuals where the market value does not exceed Rs.1,000/-. As such, in the present case, the then District Collector has ordered for advance possession of land to the petitioner to an extent of Ac.63.50 cts which is beyond the powers vested on him. Handing over advance possession of subject matter of land to the petitioner is governed by BSO-24 and therefore, the petitioner cannot contend that the delivery of possession in his favour amounts to a Government Grant within the meaning of Government Grant under the Government Grants Act, 1895 and hence, the provisions of the Government Grants Act are not applicable. In this case, the then District Collector had no power to give advance possession for such an extent of land.
Learned Additional Advocate General relied on "M/s. Motilal Padampat Sugar Mills Co.Limited v. State of Uttar Pradesh"
(referred supra) in support of his contentions. There is no dispute with regard to the principle laid down in "M/s. Motilal Padampat Sugar Mills Co.Limited v. State of Uttar Pradesh" (referred supra). The Apex Court in "Shabi Construction Company v. City MSM,J wp_17189_2020 23 and Industrial Development Corporation14" as well as in "Pune Municipal Corporation v. Promoters and Builders Association15"
consistently held that doctrine of promissory estoppels cannot be invoked to compel the public bodies or the Government to carry out a promise which is contrary to law. Taking advantage of the principle laid down in the said judgments, learned Additional Advocate General contended that as the allotment was made in contravention of BSO 24, the State cannot be compelled to perform its promise.
The law laid down in the above judgments is not in quarrel, but the A.P. Board Revenue Standing Orders have statutory basis, and the enforceability of the Board Standing Orders was considered by the Division Bench of the High Court of Andhra Pradesh in the case of "Kanumuri Anji Raju v. State of Andhra Pradesh16", candidly held that the Standing Orders are merely executive instructions issued for the guidance of officers who are to carry out the policy of the Government.
The said principle was reiterated by the learned single Judge of the High Court of Andhra Pradesh in "Smt. C. Rajamma v The District Collector17".
Further, a learned single Judge of this Court in the case of "Katta Rattamma v. Gannamaneni Kotaiah18" held that the Standing Orders are only administrative instructions and they do not have any statutory force, or force of law.
14 (1995) 4 SCC 301 15 (2004) 10 SCC 796 16 1960 (2) An.W.R. 272 (D.B.) 17 1995 (1) ALT 681 18 1975 (2) An.W.R. 122 MSM,J wp_17189_2020 24 Therefore, standing orders are not having legal enforceability and they are only guidelines for the purpose of administration. Hence, it is difficult to sustain the contention of learned Additional Advocate General that the allotment was in contravention of the law and the Court cannot direct the State to perform its promise made in the letter of allotment during pendency of alienation proceedings, is rejected. However, in "Shabi Construction Company v. City and Industrial Development Corporation" and "Pune Municipal Corporation v. Promoters and Builders Association" (referred supra), it is made clear that if the promise of the State is in contravention of law, the State cannot be compelled to perform the same. Law means a law made by State legislature or Parliament, as such the above judgments have no direct bearing on the issue to deny the relief as the Andhra Pradesh Revenue Board Standing Orders are not the law made by either Parliament or the State legislature.
Learned Additional Advocate General relied on the judgment of the Apex Court in "Union of India v. M/s. V.V.F.Ltd.19", wherein the Apex Court referred to the principle laid down in "Kasinka Trading v. Union of India (UOI)20", which is as follows:
"It has been settled by this Court that the doctrine of promissory estoppel is applicable against the Government also particularly where it is necessary to prevent fraud or manifest injustice. The doctrine, however, cannot be pressed into aid to compel the Government or the public authority "to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make". There is preponderance of judicial opinion that to invoke the doctrine of promissory estoppel clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and that bald expressions, without any supporting material, to the 19 AIR 2020 SC 2954 20 (1995) 1 SCC 274 MSM,J wp_17189_2020 25 effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine. In our opinion, the doctrine of promissory estoppel cannot be invoked in the abstract and the courts are bound to consider all aspects including the results sought to be achieved and the public good at large, because while considering the applicability of the doctrine, the courts have to do equity and the fundamental principles of equity must for ever be present to the mind of the court, while considering the applicability of the doctrine. The doctrine must yield when the equity so demands if it can be shown having regard to the facts and circumstances of the case that it would be inequitable to hold the Government or the public authority to its promise, assurance or representation."
The doctrine of promissory estoppel can be applied in narrow sense, whereas a wider connotation of doctrine of legitimate expectation is applicable to the present facts of the case.
One of the contentions of the learned counsel for the petitioner is that the respondents have violated their promise to finalise the process of alienation while permitting the petitioner to raise massive constructions to run educational institutions. On the basis of doctrine of legitimate expectation by a citizen, the respondents are not competent to resume the land. In the recent judgment, in "the State of Jharkhand v. Brahmputra Metallics Ltd., Ranchi21" the Hon‟ble Apex Court drawn the distinction between the "doctrine of promissory estoppel" and "doctrine of legitimate expectation". After referring to entire law on the doctrine of legitimate expectation and promissory estoppel relying on the "State of Bihar v. Kalyanpur Cement Limited22", and "Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh" (referred supra) concluded that doctrine of promissory estoppel will not give raise to cause of action, but doctrine of legitimate expectation will give raise to cause of action. 21
2021 (1) SCJ 131 22 (2010) 3 SCC 274 MSM,J wp_17189_2020 26 The common law recognizes various kinds of equitable estoppel, one of which is promissory estoppel. In Crabb v Arun DC23 Lord Denning, speaking for the Court of Appeal, traced the genesis of promissory estoppel in equity, and observed:
"The basis of this proprietary estoppel - as indeed of promissory estoppel - is the interposition of equity. Equity comes in, true to form, to mitigate the rigours of strict law. The early cases did not speak of it as "estoppel". They spoke of it as "raising an equity" If I may expand that, Lord Cairns said: "It is the first principle upon which all Courts of Equity proceed", that it will prevent a person from insisting on his legal rights - whether arising under a contract or on his title deed, or by statute - when it would be inequitable for him to do so having regard to the dealings which have taken place between the parties."
The requirements of the doctrine of promissory estoppel have also been formulated by Hugh Beale in Chitty on Contracts (32nd Edition Sweet & Maxwell 2017).
"4.086. For the equitable doctrine to operate there must be a legal relationship giving rise to rights and duties between the parties; a promise or a representation by one party that he will not enforce against the other his strict legal rights arising out of that relationship; an intention on the part of the former party that the latter will rely on the representation; and such reliance by the latter party. Even if these requirements are satisfied, the operation of the doctrine may be excluded if it is, nevertheless, not "inequitable" for the first party to go back on his promise. The doctrine most commonly applies to promises not to enforce contractual rights, but it also extends to certain other relationships.
4.088.....The doctrine can also apply where the relationship giving rise to rights and correlative duties is non-contractual:
e.g. to prevent the enforcement of a liability imposed by statute on a company director for signing a bill of exchange on which the company's name is not correctly given; or to prevent a man from ejecting a woman, with whom he has been cohabitating, from the family home."
Chitty on Contracts, clarifies that the doctrine of promissory estoppel may be enforced even in the absence of a legal relationship. Generally speaking under English Law, judicial decisions have in the past postulated that the doctrine of promissory estoppel cannot be 23 3 [1976] 1 Ch 179 (Court of Appeal) MSM,J wp_17189_2020 27 used as a „sword‟, to give rise to a cause of action for the enforcement of a promise lacking any consideration. Its use in those decisions has been limited as a „shield‟, where the promisor is estopped from claiming enforcement of its strict legal rights, when a representation by words or conduct has been made to suspend such rights. In "Combe v Combe24" the Court of Appeal held that consideration is an essential element of the cause of action:
"It [promissory estoppel] may be part of a cause of action, but not a cause of action itself.
.....
The principle [promissory estoppel] never stands alone as giving a cause of action in itself, it can never do away with the necessity of consideration when that is an essential part of the cause of action. The doctrine of consideration is too firmly fixed to be overthrown by a side- wind."
Even within English Law, the application of the rule laid down in Combe (referred supra) has been noticed to be inconsistent. The scope of the rule has also been doubted on the ground that it has been widely framed. Hence, in the absence of a definitive pronouncement by the House of Lords holding that promissory estoppel can be a cause of action, a difficulty was expressed in stating with certainty that English Law has evolved from the traditional approach of treating promissory estoppel as a „shield‟ instead of a „sword‟. By contrast, the law in the United States and Australia is less restrictive in this regard.
Under English Law, the doctrine of legitimate expectation initially developed in the context of public law as an analogy to the doctrine of promissory estoppel found in private law. However, since then, English Law has distinguished between the doctrines of promissory estoppel and legitimate expectation as distinct remedies under private law and public law, respectively. De Smith‟s Judicial 24 [1951] 2 K.B. 215 MSM,J wp_17189_2020 28 Review25 noted the contrast between the public law approach of the doctrine of legitimate expectation and the private law approach of the doctrine of promissory estoppel:
"[d]espite dicta to the contrary [Rootkin v Kent CC, (1981) 1 WLR 1186 (CA); R v Jockey Club Ex p RAM Racecourses Ltd, [1993] AC 380 (HL); R v IRC Ex p Camacq Corp, (1990) 1 WLR 191 (CA)], it is not normally necessary for a person to have changed his position or to have acted to his detriment in order to qualify as the holder of a legitimate expectation [R v Ministry for Agriculture, Fisheries and Foods Ex p Hamble Fisheries (Offshore) Ltd, (1995) 2 All ER 714 (QB)]. . . Private law analogies from the field of estoppel are, we have seen, of limited relevance where a public law principle requires public officials to honour their undertakings and respect legal certainty, irrespective of whether the loss has been incurred by the individual concerned [Simon Atrill, „The End of Estoppel in Public Law?‟ (2003) 62 Cambridge Law Journal 3]."
Another difference between the doctrines of promissory estoppel and legitimate expectation under English Law is that the latter can constitute a cause of action. The scope of the doctrine of legitimate expectation is wider than promissory estoppel because it not only takes into consideration a promise made by a public body but also official practice, as well. Further, under the doctrine of promissory estoppel, there may be a requirement to show a detriment suffered by a party due to the reliance placed on the promise. Although typically it is sufficient to show that the promisee has altered its position by placing reliance on the promise, the fact that no prejudice has been caused to the promisee may be relevant to hold that it would not be "inequitable" for the promisor to go back on their promise. However, no such requirement is present under the doctrine of legitimate expectation. In Regina (Bibi) v Newham London Borough Council26, the Court of Appeal held:
"55 The present case is one of reliance without concrete detriment. We use this phrase because there is moral detriment, which should not be dismissed lightly, in the prolonged 25 Harry Woolf and others, De Smith's Judicial Review (8th edn, Thomson Reuters 2018). 26 [2002] 1 W.L.R. 237 MSM,J wp_17189_2020 29 disappointment which has ensued; and potential detriment in the deflection of the possibility, for a refugee family, of seeking at the start to settle somewhere in the United Kingdom where secure housing was less hard to come by. In our view these things matter in public law, even though they might not found an estoppel or actionable misrepresentation in private law, because they go to fairness and through fairness to possible abuse of power. To disregard the legitimate expectation because no concrete detriment can be shown would be to place the weakest in society at a particular disadvantage. It would mean that those who have a choice and the means to exercise it in reliance on some official practice or promise would gain a legal toehold inaccessible to those who, lacking any means of escape, are compelled simply to place their trust in what has been represented to them."
Consequently, while the basis of the doctrine of promissory estoppel in private law is a promise made between two parties, the basis of the doctrine of legitimate expectation in public law is premised on the principles of fairness and non-arbitrariness surrounding the conduct of public authorities. This is not to suggest that the doctrine of promissory estoppel has no application in circumstances when a State entity has entered into a private contract with another private party. Rather, in English law, it is inapplicable in circumstances when the State has made representation to a private party, in furtherance of its public functions.
Under Indian Law, there is often a conflation between the doctrines of promissory estoppel and legitimate expectation. This has been described in Jain and Jain‟s well known treatise, Principles of Administrative Law27.
"At times, the expressions „legitimate expectation‟ and „promissory estoppel‟ are used interchangeably, but that is not a correct usage because „legitimate expectation‟ is a concept much broader in scope than „promissory estoppel‟. ... A reading of the relevant Indian cases, however, exhibit some confusion of ideas. It seems that the judicial thinking has not as yet crystallised as regards the nature and scope of the doctrine. At times, it has been referred to as merely a procedural doctrine; at times, it has been treated interchangeably as promissory 27 M.P. Jain and S.N. Jain, Principles of Administrative Law (7th edn., EBC 2013).
MSM,J wp_17189_2020 30 estoppel. However both these ideas are incorrect. As stated above, legitimate expectation is a substantive doctrine as well and has much broader scope than promissory estoppel. In Punjab Communications Ltd. v. Union of India, the Supreme Court has observed in relation to the doctrine of legitimate expectation: "the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way Reliance must have been placed on the said representation and the representee must have thereby suffered detriment." It is suggested that this formulation of the doctrine of legitimate expectation is not correct as it makes "legitimate expectation" practically synonymous with promissory estoppel. Legitimate expectation may arise from conduct of the authority; a promise is not always necessary for the purpose."
While this doctrinal confusion has the unfortunate consequence of making the law unclear, citizens have been the victims. Representations by public authorities need to be held to scrupulous standards, since citizens continue to live their lives based on the trust they repose in the State. In the commercial world also, certainty and consistency are essential to planning the affairs of business. When public authorities fail to adhere to their representations without providing an adequate reason to the citizens for this failure, it violates the trust reposed by citizens in the State. The generation of a business friendly climate for investment and trade is conditioned by the faith which can be reposed in government to fulfil the expectations which it generates. Professors Jain and Deshpande characterize the consequences of this doctrinal confusion in the following terms:
"Thus, in India, the characterization of legitimate expectations is on a weaker footing, than in jurisdictions like UK where the courts are now willing to recognize the capacity of public law to absorb the moral values underlying the notion of estoppels in the light of the evolution of doctrines like LE [Legitimate Expectations] and abuse of power. If the Supreme Court of India has shown its creativity in transforming the notion of promissory estoppel from the limitations of private law, then it does not stand to reason as to why it should also not articulate and evolve the doctrine of LE for judicial review of resilement of MSM,J wp_17189_2020 31 administrative authorities from policies and longstanding practices. If such a notion of LE is adopted, then not only would the Court be able to do away with the artificial hierarchy between promissory estoppel and legitimate expectation, but, it would also be able to hold the administrative authorities to account on the footing of public law outside the zone of promises on a stronger and principled anvil. Presently, in the absence of a like doctrine to that of promissory estoppel outside the promissory zone, the administrative law adjudication of resilement of policies stands on a shaky public law foundation."
The need for this doctrine to have an independent existence was articulated by Justice Frankfurter of the United State Supreme Court in Vitarelli v. Seton28 as follows:
"An executive agency must be rigorously held to the standards by which it professes its action to be judged. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword."
Thus, the Court held that the doctrine of legitimate expectation cannot be claimed as a right in itself, but can be used only when the denial of a legitimate expectation leads to the violation of Article 14 of the Constitution.
The Apex Court in The State of Jharkhand v. Brahmputra Metallics Ltd. (referred supra) by relying on earlier judgments of the Apex Court, concluded that the respondent is entitled to rebate/deduction from electricity duty and affirmed the order passed by the High Court on the ground that the State violated its promise and legitimate expectation. Here, attempt to resume the land is in violation of expectation of petitioner on account of promise and the 28 359 US 535 (1959) MSM,J wp_17189_2020 32 petitioner will suffer substantial loss in case of resumption, such proposed resumption can be held to be arbitrary.
Proprietary estoppel is a legal claim, especially connected to English land law, which may arise in relation to rights to use the property of the owner, and may even be effective in connection with disputed transfers of ownership. Proprietary estoppel transfers rights if, someone is given a clear assurance that they will acquire a right over property, they reasonably rely on the assurance, and, they act substantially to their detriment on the strength of the assurance it would be unconscionable to go back on the assurance. If these elements of assurance, reliance and detriment, and unconscionability are present, the usual remedy will be that the property will be transferred to the claimant, if the court views the reliance to warrant a claim in all the circumstances.
The Delhi High Court in "Raj Kishan Dass v. Mrs. Kusum Singh29" considered the Scope of Proprietary Estoppel, wherein it was observed that, Proprietary estoppel operates in a variety of cases to disparate that it has been described as "an amalgam of doubtful utility". The cases can be divided broadly into two categories. In the first, one person acts under a mistake as to the existence or as to the extent of his rights in or over another's land. Even though the mistake was in no way induced by the landowner, he might be prevented from taking advantage of it. Particularly if he "stood by"
knowing of the mistake, or actively encouraged the mistaken party to act in reliance on his mistaken belief. These cases of so-called "acquiescence" do not raise any questions as to the enforceability of promises and therefore do not call for further discussion. In the 29 93 (2000) DLT 359 MSM,J wp_17189_2020 33 Second situation, there is not merely "acquiescence" by the landowner, but "encouragement". The other party acts in reliance on the landowner's promise (or on conduct or a representation from which a promise can be inferred) that the promise has a legally recognized interest in the land or that one will be created in his favor. The question then arises, to what extent such a promise can be enforced, even though it may not be supported by consideration, or fail to satisfy the other requirements (such as certainty) of a binding contract. The present facts would attract the second situation as reliance on the terms made by the State, the Government entered into a contract and delivered possession of the land which was converted into non-agriculture and development activities were taken place. Therefore, the petitioner is entitled to insist the State to perform its obligation based on the Principle of Proprietary Estoppel, as the petitioner altered its position like Promissory Estoppel, since it is an Equitable Doctrine, the Courts have to interpret the same and applying the principle to the facts on hand and extend the benefit to the concerned.
The Supreme Court in "A.P Transco v. Sai Renewable Power Pvt.Ltd30" referred to use of promissory estoppel as a basis of cause of action and held as follows:
"It is a settled canon of law that doctrine of promissory estoppel is not really based on principle of estoppel but is a doctrine evolved by equity in order to prevent injustice There is no reason why it should be given only a limited application by way of defence. It can also be the basis of a cause of action."
In view of the principle laid down by the Apex Court, the petitioner being an allottee expected that the State would fulfil its 30 (2011) (11) SCC 34 MSM,J wp_17189_2020 34 obligation i.e. completion of alienation process. Instead of doing so, after 39 years, in violation of its obligation trying to resume the unutilised land though there was no such condition for resumption. Therefore, the act of the respondents to the extent of proposed resumption of unutilised land allotted under the grant is in violation of doctrine of legitimate expectation.
Sri Ponnavolu Sudhakar Reddy, learned Additional Advocate General, would contend that the allotments are governed by BSO 24 and a grant was made in contravention of BSO 24, it cannot be said to be a legal, thereby such illegal act of the of the Collector would not enure any benefit to the petitioner to claim any right in the property or question the proposed resumption of unutilised land. He placed reliance on the judgment of the High Court of Andhra Pradesh at Hyderabad in "Road Metal Industry v. Secretary to Government of A.P." (referred supra), wherein the Government intend to allot the land for different purpose by the side of Highway, then the Court took note of specific allegation made in the counter by the State, where the State contended that "basically, the Government being the owner of the land can allot it for any purpose, which is conducive to the welfare of the State. There are also some statutory provisions, which provided inter alia for such assignment e.g. Board‟s Standing Order No.24. Further, under the Rules framed under A.P. (Telangana Area) Grant of Lease of Lands for Non-Agricultural Purposes Rules, 1977 under the A.P.(Telangana Area) Land Revenue Act, 1317 Fasli leases of Government lands in Telangana area may be granted on payment of rent or even free of rent."
MSM,J wp_17189_2020 35 The Court discussed several aspects as to the policy of the Government for allotment and finally concluded as follows:
"The government owns and controls vast extents of public land. The Constitution makers wanted that the ownership of the material resources of the community should be so made available to subserve the common good. The government is not like a private individual who can deal with his property in whatsoever manner. The government cannot pick and choose the person with whom it will deal, since the government is still a government when it is administering largesse and that it cannot, without adequate reason either distribute or take away the largesse arbitrarily. It is too elementary to reiterate the distinction between the public and private power. In a decent society governed by rule of law and constitutionalism, it is unthinkable that the government, or any officer or authority of the government, possesses arbitrary power over the person or property including its own properties. There is nothing like unlimited discretion conferred upon the government or any of its authorities to deal with the government properties in accordance with one's own choice. May be, discretionary power is necessary to solve particular problems. It may be a toot, indispensable for individualisation of justice. But such discretion must be confined within clearly defined limits. Meaningful statutory standards and realistic procedural requirements are among the tools to control the discretionary power."
In the said judgment, learned single Judge relied on the judgment of the Apex Court in "Jaisinghani v. Union of India31", wherein it is observed as follows:
"The absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law."
In "Road Metal Industry v. Secretary to Government of A.P." (referred supra) the learned Single Judge further held as follows:
"The Alienation Rules as well as the Lease Rules prescribe meaningful statutory standards and realistic procedural requirements to be followed by 31 AIR 1967 SC 142 MSM,J wp_17189_2020 36 the government and its officers in the matter of disposal/alienation/grant of lease of government lands. Such meaningful statutory standards are prescribes in order to avoid the risk of possible arbitrary use of discretionary power. Those rules are mandatory in nature. The alienation of the government lands or the lease of the same, as the case may be, in Telangana Area of the State of Andhra Pradesh is to be inconformity with the prescribed standards under the rules referred to hereinabove. Any decision by the authority or the government contrary to the said rules may have to be declared ultra vires. The power to alienate the government lands can be exercised only inconformity with the rules. The wide powers of the State and the discretion vested in the authority required them to be exercised in a fair manner and, the surest mode of exercise of power fairly is by following and observing the procedures prescribed by the statute or the rules, as the case may be. The observance of the procedure is not a matter of secondary importance. The procedural fairness and regularity have been the great bastion against arbitrariness.
The procedural requirements have not been followed at any stage by any of the authorities. The statutory rules are altogether ignored. The decision has resulted in public mischief. This court, when such public mischief is exposed, cannot refuse to interfere on the ground that such exposure is by a petitioner to whom no relief could be granted. The petitioner may not get any relief for itself. The petitioner may not have any right in the land in question. Lease may not be extended in its favour. But, those factors do not constitute any ground to uphold the ex facie illegal and improper decision of the government to allot its valuable land to respondents 5 and 6."
Taking advantage of the said principle, Sri Ponnavolu Sudhakar Reddy, learned Additional Advocate General would submit that when the procedural requirements have not been followed, the statutory rules are altogether ignored, the decision has resulted in public mischief. Thereby, the grant in favour of the petitioner, which is in violation of BSO 24 cannot be legalised and the State cannot be prevented from resuming part of unutilised land under notice impugned in the writ petition.
In the present facts of the case, grant in favour of the petitioner is for establishment of educational institutions initially Nyaya Vidya Parishad (National Law School) and Sanketika Vidya Parishad (Engineering college). Later, permission was granted for MSM,J wp_17189_2020 37 utilising the land for general education also. Accordingly, establishment of educational institutions are for public purpose and to cater the educational needs of various students prosecuting their studies in the area of Srikakulam, Vizianagaram, Visakhapatnam and other districts of Andhra Pradesh. Providing education to the students is nothing but public interest and such allotment is only to serve public purpose. As discussed above, though the land was allotted by Collector during pendency of alienation process, the same is not governed by BSO 24, for the reason that A.P. Revenue Board Standing Order is only a guideline for administrative convenience and not law made by the State legislature or parliament. Therefore, allotment of land in contravention of BSO 24 cannot be said to be illegal. Actually, State used to frame guidelines known as "land allotment policy" and being changed from time to time, based on such allotment policy, the Government authorising authorities under its control to allot the property. The allotment was made during 1983, the then "land allotment policy" of the State is the basis for such allotment, but either the learned senior counsel for the petitioner or Sri Ponnavolu Sudhakar Reddy, learned Additional Advocate General appearing for the respondents not placed the same for perusal, at least to examine whether the allotment is in consonance with the land allotment policy of the State. In any view of the matter, when the allotment is Government Grant as discussed in earlier paragraphs, it is totally governed by Section 3 of the Government Grants Act, which is as follows:
"3. Government grants to take effect according to their tenor - All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to MSM,J wp_17189_2020 38 their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding."
As discussed above, when the Grant is made by the Government, it is governed by tenor of its contents and not any other law.
At the same time, the Government is under obligation to take care of every direction/guidelines issued by the Apex Court while allotting land to different persons. Therefore, the grant made in favour of the petitioner made by the State is not governed by BSO 24 and it is governed by the Government Grants Act and the then State land allotment policy. Learned Additional Advocate General could not bring to my notice about the violation of any of the conditions of the then land allotment policy of the State. In fact, it was not his case at any stage. Therefore, the contention of learned Additional Advocate General that the allotment is in contravention of the provisions of the BSO 24 is hereby rejected while holding that the allotment is governed by the Government Gants Act. Accordingly, the point is answered in favour of the petitioner against the respondents while holding that the respondent - State cannot resume the un-utilised part of land and on the other hand the State is directed to complete the process of alienation within four (4) months from today. P O I N T No.2:
One of the major contentions raised by the learned senior counsel for the petitioner before this Court is that the land was allotted on payment of the market value existing in the year 1981. Since the alienation process is not completed, the market value was not collected from the petitioner. Thereupon, the petitioner approached this Court, filed W.P.No.11433 of 1995 where a direction was issued by the High Court of Judicature at Hyderabad, without MSM,J wp_17189_2020 39 touching the merits of the case, to finalise alienation proposals within a period of three (3) months from the date of the order in W.P.No.11433 of 1995. Though, the State suffered order, which attained finality, obviously for the reasons best known to the State did not implement the order till date. But in utter violation of direction issued by the High Court of Judicature at Hyderabad in W.P.No.11433 of 1995, now, the State is proposing to resume the land and demanding the present market value from the petitioner, but none of the documents placed on record would show that the allotment was made subject to payment of market value as on the date of alienation or that the respondent/State is demanding to pay the present market value. Therefore, demanding payment of market value by the respondents as on date is not based on any material, even otherwise there is no condition for payment of market value in the allotment letter or delivery letter. The allotment must be based on the market value as on the date of allotment, but not on the date of alienation. Since the petitioner raised massive constructions as shown in the table in the earlier paragraphs, on the basis of the promise made by the State to complete alienation, the State is demanding to pay market value in view of the hike in price of the land value within the Visakhapatnam District. Therefore, insisting the petitioner to pay present market value with a threat to resume the land is contrary to the promise made by the State to the petitioner and the same is illegal and arbitrary.
Sri Vedula Venkata Ramana, learned senior counsel for the petitioner would contend that when an allotment was made by the United State of Andhra Pradesh, after its bifurcation, residuary State of Andhra Pradesh cannot deny its liability to perform its obligation.
MSM,J wp_17189_2020 40 He placed reliance on the Full Bench Judgment of the Apex Court in "State of Punjab v. Balbir Singh" (referred supra), wherein the Apex Court analysed the meaning of "law" with reference to Section 2
(g) of the Punjab State Reorganisation Act, which is as follows:
Law is defined in Clause (g) of Section 2 of the Act to say: 'law" includes any enactment, ordinance, regulation, order, bye-law, rule, scheme, notification or other instrument having, immediately before the appointed day, the force of law in the whole or in any part of the existing State of Punjab In the facts of the said judgment, the Apex Court considered the effect of Section 82 (1) of the Panjab State Reorganisation Act with reference to benefits payable to the employees and concluded as follows:
"Section 88 appears to have been introduced as a matter of abundant caution. In my opinion, mere splitting up of the territories of Punjab into four successor States would not ipso facto result in the abrogation or repeal of the laws which were immediately in force before the appointed day in those territories. There is nothing in the 1966 Act, not even in Section 88, which expressly or by necessary intendment repeals the laws which were in force immediately before the appointed day in the territories of the former Punjab. Those laws derived their force de hors the 1966 Act. The first part, of Section 88 is merely clarificatory of any doubts which might arise as a result of the reorganisation of Punjab, while the latter part of this section is merely an adaptative provision, to the effect, that the territorial references in any such law to the State of Punjab shall continue to mean the territories within that State immediately before the appointed day. Thus, read as a whole Section 88 merely dispel doubts as to the continuity of the laws which wore in force before the appointed day in the former State of Punjab, until the competent legislature or authority of the successor States effects any change in those laws."
In view of the principle laid down in the above judgment, the successor State is bound to perform the promise made by it before bifurcation. Similar provisions are incorporated in the Andhra Pradesh Reorganisation Act. The "law" is defined under Section 2 (f) of the Andhra Pradesh Reorganisation Act, which is as follows:
MSM,J wp_17189_2020 41 2 (f) 'law" includes any enactment, ordinance, regulation, order, bye-law, rule, scheme, notification or other instrument having, immediately before the appointed day, the force of law in the whole or in any part of the existing State of Andhra Pradesh.
Thus, the definition under Section 2 (g) of the Punjab State Reorganisation Act is in pari materia to Section 2 (f) of the Andhra Pradesh Reorganisation Act. Similarly, Section 100 of the A.P. Reorganisation Act deals with territorial extent of laws, which is similar to Section 88 of the Punjab Reorganisation Act. At the same time, Section 100 of the A.P.Reorganisation Act corresponds to Section 53 of the Andhra State Act 1953 and Section 119 of States Reorganisation Act, 1956, Section 87 of Bombay reorganization Act, Section 88 of Punjab Reorganisation Act, Section 84 of Bihar Reorganisation, Section 78 of MP Reorganisation Act, and Section 86 of UP Reorganisation Act. Such provisions are enacted to maintain continuity, and at the same time authorise the States to make such modifications and adaptations as are considered necessary by mere issuance of orders within two years, and thereafter by legislation or exercise of power by the competent authority. Such provisions have necessarily to be incorporated in legislations relating to reorganization of States. It is, therefore, appropriate that such legislations must be construed in the light of the unusual situation created by the creation of a new State and the object sought to be achieved.
Section 88 of the Punjab Reorganisation Act fell for consideration in the above judgment, which is similar to Section 100 of the A.P. State Reorganisation Act, where the Apex Court agreed with the High Court that the impugned orders therein are not law MSM,J wp_17189_2020 42 within the meaning of Section 2(g) of the Punjab Reorganisation Act as they were not saved by Section 88 of the Punjab High Court. However, the Court held that when there is no change of sovereignty and it is merely an adjustment of territories by the reorganization of a particular State, the administrative orders made by the Government of the erstwhile State continue to be in force and effective and binding on the successor States until and unless they are modified, changed or repudiated by; the Governments of the successor States. The Court further observed that no other view is possible to be taken. The other view will merely bring about chaos in the administration of the new States. The Apex Court found no principle in support of the stand that administrative orders made by the Government of the erstwhile State automatically lapsed and were rendered ineffective on the coming into existence of the new successor States. It is well established that when one State is absorbed in another, whether by accession, conquest, merger or integration, all contracts of service between the prior Government and its servants automatically terminate and thereafter those who elect to serve in the new State, and are taken on by it, serve on such terms and conditions as the new State may choose to impose.
If these principles are applied to the present facts of the case, the decision taken by the United State of Andhra Pradesh was not modified by any law by the Successor State. Therefore, the successor state of Andhra Pradesh is bound to honour the decisions taken by common State of Andhra Pradesh and implement the orders/decisions taken by the common State in view of the law laid down by the Apex Court in "State of Punjab v. Balbir Singh"
(referred supra).
MSM,J wp_17189_2020 43 One of the contentions raised by Sri P.Sudhakar Reddy, learned Additional Advocate General is that the writ petition is not maintainable as there are disputed questions of fact to be considered by this Court. In support of his contentions, he placed reliance on the judgment of the learned single Judge of this Court in "S. Lingamaiah v. State of A.P." (referred supra), wherein the Court while considering the facts before it, framed a point whether writ petition against a mere show-cause notice is maintainable and whether disputed questions of fact relating to the title of a property can be gone into in a proceeding under Article 226 of the Constitution of India? Learned single Judge of the High Court of Andhra Pradesh relied on various judgments, recorded specific findings based on the facts of the case.
The principle laid down in the above judgment is distinguishable on facts for the reason that here the petitioner questioned the impugned letter issued for the purpose of resumption of land. But the allotment, delivery of possession, allowing the petitioner to raise constructions, running educational institutions granting permission etc., are not in dispute. Therefore, it is not the case, where the disputed questions of facts as to title can be gone into by this Court, the impugned notice is only an administrative decision and the same is challenged before this Court in the writ petition. Hence, the principle laid down in "S. Lingamaiah v. State of A.P." (referred supra), has no application to the present facts of the case. Hence, I find that the State is under obligation to implement its decision to alienate the property both on the principle of legitimate expectation and that the grant is Government grant governed by the Government Grants Act and not by A.P.Board MSM,J wp_17189_2020 44 Revenue Standing Orders, which are in the nature of administrative guidelines. At the same time, State is not entitled to collect market value prevailing as on date after 39 years (approximately) and not entitled to resume the land after completion of 39 years as the petitioner is running educational institutions for public purpose and to cater the needs of the youth, who are prosecuting their studies and apart from that the proposed resumption is not in the public interest. Accordingly, the point is answered in favour of the petitioner and against the respondents.
In the result, the petition is allowed declaring the action of the respondents in not alienating the allotted land admeasuring Ac.63.50 cents situated in Sy.Nos.60/1 to 60/5, 61/1 to 61/7 of Pothina Mallayya Palem and Sy.No.364/1, 364/2 Madhurawada villages of Visakhapatnam Mandal and District despite delivery of possession of the said land in the year 1981 to the petitioner and the initiation of proceedings for resumption of the land from the petitioner is illegal and arbitrary while directing the State to complete the process of alienation within four (4) months from today strictly adhering to the allotment letter. No costs.
Consequently, miscellaneous applications pending if any, shall also stand dismissed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 27.07.2021 Ksp