Andhra HC (Pre-Telangana)
Government Of Andhra Pradesh And Others vs Heh The Nizam Viii Of Hyderabad on 29 September, 1992
Equivalent citations: AIR1993AP76, AIR 1993 ANDHRA PRADESH 76
ORDER V. Sivaraman Nair, J.
1. This Writ Appeal arises from the interim order passed by our learned brother Syed Shah Mohammed Quadri, J., in W.P. No. 17955/91 in W.P. No/4513/1991. By his order dated 30-10-1991, the learned single Judge directed stay of all further proceedings pursuant to G.O. Ms. No. 957 Revenue (UC.I) Depart-ruent, dated 25th October, 1991. Against the interim order the State has appealed. On its admission on 8-11-1991, the Division Bench directed that the Writ Appeal be posted along with Writ Petition No. 4513/1991. Hence both the matters are before us. In view of the fact that we are hearing the Writ Petition, it is not necessary for us to consider the Writ Appeal separately.
2. The Writ Petition is filed on behalf of M.JE.H. the Nizam-VIII, represented by the General Power of Attorney, to call for and quash Government Memo No. 580/ U.C.II(2) / 83-87, Revenue (UC.II) Department, dt. 16-3-1991. Nassar Co-operative Housing Society Ltd., filed W.P. No. 14942/91 seeking almost the same reliefs. We will refer to the two petitioners as petitioner Nos. 1 and 2. The facts leading to the Writ Petitions are as following:
3. Petitioner No. 1 filed an application under Section 20(1) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the "Ceiling Act"), seeking exemption of about Ac. 300.00 known as 'Chiran Palace', on 19-10-1981. The second petitioner filed an application on 18-12-1982 stating that it had entered into an agreement of sale with the 1st petitioner on 9-12-1981 and requested the Government to grant exemption of that land under S. 20 of the Ceiling Act. Government considered the two applications and rejected them by order dated 15-2-1983. First petitioner filed W.P. No. 1942/83 but the second petitioner did not. This Court disposed of the Writ Petition on 19-11-1987 directing the 1st petitioner to submit a representation to the Government and the Government to consider and pass appropriate orders thereon after hearing the petitioner.
4. Pursuant to the above directions, the 1st petitioner submitted representations on 5-12-87 and 27-2-1988 to the 1st respondent seeking exemption of the land under S. 20(1) of the Ceiling Act. The matter could not be heard in spite of notices to the petitioner, either because of his non-appearance 'or his requests for time. Petitioners fifed W. P. No..11497/90 for the issue of a writ of mandamus directing the Government to grant exemption from the Ceiling Act in respect of Ac. 398.00 situated in Shaskpet village, by ordering the applications for exemption. This Court passed orders on that Writ Petition on 10-9-1990 directing the 1st respondent to dispose of the application under S. 20(l)(a) and (b) of the Ceiling Act in accordance with law and in the light of the observations made therein preferably within a period of three months from the date of receipt of a copy of the order. The 2nd respondent heard the matter and issued Memo No. 518/UC.I1(2)/ 87-37 dated 16-3-1991 rejecting the application of the 1st petitioner for exemption. Dealing with the 2nd petitioner, that order stated that his application having already been rejected by order dated 15-2-1983 and that order having become final, there was no application which remained for consideration. The respondent also held that rejection of the application of the 1st petitioner for exemption so as to enable him to sell the land to the 2nd petitioner virtually amounted to dismissal of the 2nd petitioner's claim for exemption to purchase that land. The 2nd respondent therefore, directed communication of the order to the 2nd petitioner also. Petitioners have filed these Writ Petitions assailing the order of the 2nd respondent dated 16-3-1991.
5. W.P. No. 4513/91 was admitted on 27-3-1991. Orders were passed in W.P.M.P. Nos. 5582 to 5584 of 1991, directing respon-
dents to maintain status quo as on the date of the order with regard to the land in Chiran Palace. By further order dated 23-4-1991, this Court observed that it would be open to the petitioner to make representation to the Government even during the pendency of the Writ Petition for consideration of the Government in accordance with law. Petitioner is said to have made oral representations pursuant thereto.
5(a). Second Petitioner filed W. P. 14942/ 1991 on 18-11-1991 assailing Memo dated 16-3-1991 on the allegation that the-respon-dents did not serve any copy of the order on it and it had therefore, to obtain from the 1st petitioner.
6. The State Government maintains that it had taken possession of the excess land in question on 25-3-1991 i.e. even before the interim order of this Court dated 27-3-1991. In G.O.Ms. No. 957 Revenue (UC.I) Department dated 25-10-1991, the Government allotted the land under S. 23 of the Ceiling Act to the Andhra Pradesh Forest Department for development as national park and for allied activities. It was clarified in the order that the above order was subject to final decision in W.P. 4513/1991. Petitioner submits that till 27-3-1991 the Government had not taken possession; and that effective from that date, there has been an order of this Court directing the parties to maintain status quo as on that date. In W.A.M.P. 2078/91 this Court has passed an order on 8-11-1991 suspending the order of the learned single Judge. The Court, however, directed that the State Government should not carry on any permanent construction on the land in question, shall not fell any trees standing thereon nor interfere with the possession of the respondent in respect of the building and appurtenant vacant land within the ceiling limits. It was also directed that the petitioner should not, in any way, interfere with the possession of the State Government of the land in question which it had taken over on 25-3-1991.
7. The Writ Petitions are largely based on the observations contained in the Judgment dt. 10th September, 1990 of our tearried brother A. Venkatarami Reddy, J., in W.P. No. 11497/90 laying stress on the aspects of "public interest" and "undue hardship" which are relevant under S. 20(1)(a) and (b) of the Ceiling Act. Reliance was placed on the notings of the then Chief Minister when the file was circulated to him to the effect that exemption may be granted to promote group housing by Non-resident Indians. Reference was also made in those notes to the huge tax arrears owed by the petitioner to the extent of 7.71 crores and public interest which would be served if those arrears were cleared. The development of the large housing colony largely financed by and to be allotted to Nonresident Indians was said to be another aspect of public interest. The then Chief Minister had directed that the minutes to the above effect be "implemented by grant of exemption as required, by insisting on payment to the Income-tax authorities, in full settlement of taxes, and the parties securing necessary release of attachment, by the society through appropriate contract binding itself to offer for sale 50% of the houses to the Non-residents as per the list furnished by the N.R.I. Corporation and not seeking now or later any relaxation in this regard, allot houses only to such persons who do not possess a house or plot in their names or in the names of their wives and minor children, this condition equally applying to Non-Resident Indians and such other conditions as may become attracted". Before those minutes dated 12-9-1984 were drawn up and communicated, there was a change in Government. A formal order was not issued. Later, the power to grant exemption, which was entrusted with the Cabinet was delegated to the Chief Secretary by amendment of the Rules of Business. Petitioners submit that the 2nd respondent, Chief Secretary ought not to have heard the matter because he was biased, for the reason that he had made up his mind to reject the application even before he heard it. First Petitioner submits that the findings contained in the notes dated 12-9-84 are binding on the 2nd respondent and he could not pass an order contrary thereto. He Submits that in similar cases of "undue hardship" exemption has been granted to others, and refusal in his case alone, amounts to differential treatment which is discriminatory. He submits further that the order of the Chief Secretary runs counter to the ratio in C.B.S. Coop. Building Society v. Govt. of A.P., 1986 (2) ALT 574. Petitioner seeks issue of a writ of certiorari to quash Government Memo No. 580/UC.II-(2)/83-S7, Revenue Department dated 16-3-1991, which he is alleged to have received on 25-3-1991.
8. There has been considerable improvement in the pleadings thereafter virtually changing the nature of the case. We may refer to the embellishments with the caution that what the respondents had to face primarily was the limited plea referred to above.
9. In the counter affidavits filed on behalf of the respondents it is stated that the petitioner had excess land all over the twin cities and the agglomeration surrounding it, and that the competent authority under the Ceiling Act had passed order No. El/10122/76 dt. 8-4-1982 determining the excess land in respect of each of the Urban properties owned by the petitioner. That order was passed on the basis of a declaration under S. 6(1) of the Urban Land Ceiling Act filed on 15-9-1976, the draft statement issued by the competent authority under S. 8(1) on 29-12-1981, reply dt. 28-1-1982 filed on behalf of the 1st petitioner by his General Power of Attorney Holder, a further notice dt. 19-3-82 and reply dt. 20-3-1982. Applications filed by the petitioners for exemption under S. 20(1) of the Ceiling Act, their rejection by order dated 15-2-1983, and W.P. No. 1942/1983 filed by petitioners and its disposal by judgment dt. 19-11-1987 are referred to by the respondents. Respondents assert that delay in compliance with the directions in that judgment was due to the conduct of the 1st petitioner. As mentioned above, petitioners filed W. P. No. 1942/83 against order dated 15-2-1983 .and that was 'disposed of on 19-11-1987. Receipt of his representations dt. 5-12-87 and 27-2-19S8 for exemption under S. 20(1) of the Ceiling Act has been admitted. It is asserted, however, that a decision could not be taken on these representation only due to the attitude of the petitioner pursuant to the judg-
ment in W.P. 11497/90 dt. 10-9-1990. Petitioners filed their representations seeking exemption and those were disposed of by the impugned order dt. 16-3-1991. Respondents submit that the petitioner who filed W.P. 11497/90 and obtained disposal of the same with a direction that he may file a fresh representation for exemption under Section 20(1)(a) & (b) of the Ceiling Act cannot be heard to say that the respondent is not entitled to consider the fresh representation on merits uninfluenced by whatever the then Chief Minister had noted in the file. Respondents submit that the directions of this Court in the Judgment in W.P. 1942/83 dt. 19-11-1987 and W.P. 11497/90 dt. 10-9-90 only enabled a fresh consideration of the matter of exemption, on the basis of representations to be submitted by the petitioner. Respondent had emphatically controverted the general assertions of mala fides viz., that the respondents sacrificed the interest of the petitioner only for the purpose of placating the public as if a great purpose was served by bringing the Nizan VIII of Hyderabad to heels by humiliation and taking away his properties by force. It is asserted that the Urban Ceiling Act is applicable to all alike, and excess property owned by any person like the petitioner is liable to be surrendered irrespective of his past or present situation or status. Respondents assert that pursuant to the order dt. 23-2-1983, the competent authority issued notification under S. 10(3) of the Ceiling Act, vesting the land in the Government, with effect from 28-2-1983. Thereafter, the authority issued a notice under S. 10(5) of that Act to the petitioner, calling upon him to handover possession of the land to the Government. -That notice was served on the General Power of Attorney to the petitioner on 17-3-1983. It is therefore, asserted that all procedural requirements under the Ceiling Act were duly complied with and the excess land had duly vested in the Government, much before the present Writ Petition was filed. It is also asserted that the land was already reduced to physical possession as per the panchnama dated 25-3-1991. Dealing with the objection to the competence of the Chief Secretary to hear and dispose of the petitioner's application for exemption, it is asserted that the above objection was withdrawn at the time of hearing before the Chief Secretary, after counsel for the petitioner perused copy of G.O.Ms. No. 6391 dt. 3-12-1990 amending Rule 34-A of the Business Rules. The effect of the above provision was to enable the" concerned Minister to delegate his power to the Chief Secretary. Respondent also asserts that the Chief Secretary heard the matter in detail after providing opportunity to the petitioner and he disposed of the objections in a dispassionate manner and in strict compliance with the provisions of law.
10. In the reply affidavit, the petitioner has improved his case to a large extent. The amendment of Rule 34(A) enabling delegation to the Minister in charge of his powers under the Ceiling Act to decide matters arising under the Act, to the Chief Secretary, is stated to be ultra vires. It is stated that the Government was bound to consider the application for exemption in terms of G.O.Ms. No. 4271 dated 10-9-1980 and G.O.Ms. No. 136 dt. 28-1-1981 dealing with utilisation of excess vacant land for construction of group housing by the owner of the land and exemption of such surplus land in case where the land was transferred to Cooperative Housing Societies, respectively petitioner submits that these two important Government Orders which formed the basis of the judgment of this Court in W.P. 1942/83 rendered it obligatory on the Government to grant exemption in public interest. Petitioner asserts that consent, if any given by the Advocate appearing for the petitioner, does not have the effect of conferring jurisdiction on the Chief Secretary to hear and dispose of his application for exemption. Reference is also made to the fact that the entire amount realised by transfer of the above surplus land for the purpose of housing was to relieve undue hardship, since the whole amount was to be paid over to the Income-tax Department, which had agreed to lift the attachment for collection of arrears of tax. Petitioner has developed his case for exemption under S. 20(1)(a) and (b) of the Ceiling Act for the reason that he had no other source from which the arrears of income-tax, wealth tax etc., could be paid except by selling the excess land in question. It was asserted that the manner in which these two contentions were dealt with indicated the casual approach by the respondent and that vitiates the entire., proceedings. Reference is made to Justice Krishna lyer Commission of Inquiry appointed in G.O.Ms. No. 658 General Administration (Sc.F.) Department, dt. 9th November, 1984 wherein the existence of arrears of Income-tax and Wealth-tax amounting to Rs.7,71,95,944/- was admitted and the no-tings in the files indicating that the then Government was inclined to consider the application of the petitioner favourably. Petitioner invited our attention to the file notings of the then Chief Minister dt. 5-9-1984 to the effect that -
"the Government Pleader in this High Court be instructed to have the Writ Petition filed in the High Court regarding Chiran land to be allowed in favour of the Writ Petitioners, subject to the condition of allotment of 50 per cent, of the houses to Government nominees (N.R.I.) in terms of the affidavit referred to above."
11. The above reply affidavit provoked an additional counter-affidavit and an additional reply affidavit, though the permission of Court was not sought for nor granted for this extraordinary procedure. Respondents contend that the nature of the order in W.P. 1942/83 had the effect of obliterating the earlier applications, and the Government was to consider only the fresh representation which the petitioner was directed to submit. It is in that sense, that the petitioner filed a comprehensive representation dt. 27-2-1988. In that representation, he did not highlight the issue of "public interest nor did he fit his case into the ambit of S. 20(1)(a) of the Ceiling Act. The application of the 2nd petitioner having been rejected earlier and it not having been a party to W.P. 1942/1983 neither of the petitioners was entitled to proceed on the basis of what transpired on their earlier applications. Neither had pleaded before the 2nd respondent that "public interest" was involved in granting exemption to either of the two. To the extent to which this plea was indirectly referred to, paragraph 26 of the impugned order dealt with the same. Respondents stated that reference to the materials before "Krishna Iyer Commission" is totally irrelevant to the matter in issue. It is therefore, stated that no question of 'public interest' was pleaded as is sought to be done now and the 2nd respondent had duly considered whatever plea was raised before him.
12. Dealing with the question of tax arrears it was asserted the urban properties of the 1st petitioner had an extent of 24,02,839.50 Sq. Metres, of which, 2,01,301.94 Sq. Metres were treated as protected area under S.4(11) of the Act. The balance area of vacant land was determined as 22,01,537.56 Sq. Metres. Even in Chiran Palace area, the exempted area is 28,590.26 Sq. Metres consisting of 28 non-dwelling units and 7 dwelling units including the Palace, which are protected. Respondents submit that according to recent auctions held by Hyderabad Urban Development Authority in that area, the price varies between Rs. 1670/- to Rs. 2820/- per Square Metre, and sale of even a portion of the protected land would have enabled the petitioner to pay off the arrears of tax due to the Income-tax Department, even assuming that such arrears to be in the range of over Rs. 10,00,00,000/ -. Reference is also made to the sale of Falak-numa palace for a paltry consideration of Rs. 1,60,00,000; - and disposal of other protected land in the possession of the petitioner which could have yielded more than the amount necessary to liquidate the arrears of tax due to the Income-tax Department.
13. In the additional reply affidavit, petitioner has controverted these assertions. Petitioner submits that the twin aspects of "public interest" and "under hardship" which are relevant under S. 20( l)(a) and (b) respectively of the Ceiling Act were emphatically urged before and were not duly considered by the 2nd respondent. It is also asserted that any concession made by counsel appearing for the petitioner would not confer jurisdiction on the 2nd respondent to finally dispose of the applications filed by the petitioner under S. 20(1) of the Ceiling Act. Arithmetical mistakes in the extent of protected surplus area are sought to be highlighted. Petitioner has referred to the covenants made by the erstwhile Nizam of his properties even prior to the commencement of the Ceiling Act. It is therefore, asserted that except the properties which the present Nizam is able to retain with him, he has no other properties'; and such properties as he has in his possession will not yield the fabulous amount of over seven crores of rupees for which demands have been raised by the Income-tax Department towards arrears of Income-tax, Wealth-tax etc., petitioner asserts that those assessments have not so far been finalised and some of them are pending in this Court in reference applications, Writ Petitions etc.
14. It is clear from the pleadings thai the petitioner had been shifting his case from stage to stage. In W.P. 1942/83, the only point which he had pressed was that the impugned order was passed without notice to him. In the judgment dt. 19-11-1987 this Court directed the petitioner "to submit his representation to the Government and the Government to consider the same and pass appropriate orders". No reference was made in the judgment to G.O. Ms. No. 4271 dt. 10-9-1980 or G.O.Ms. No. 136 dt. 28-1-1981 on which the plea of "public interest" ,is sought to be based in these proceedings nor was the second petitioner a party to those proceedings. In W.P. 11497/90 which was disposed of on 10-9-1990 there was of course, a reference to G.O. Ms. No. 4271 dated 10-9-1980. It is clear from the recitals in the judgment that it was so done only for the purpose of emphasising the case of "undue hardship" and-not "pubh'c interest". Reference was also made to the representations which the petitioner had filed on 15-12-1987, 25-2-1988 and 21-8-1989 and of the 2nd petitioner. It is clear from the judgment dt. 10-9-90 that the only plea which the petitioner had taken in that Writ Petition was -
"the petitioner submits that he is entitled for exemption on the ground of hardship, as admittedly, there is huge liability towards payment of tax and that the sale proceeds will be utilised only for the purpose of deciding the tax liability" and "the note file also reveals that in principle, it was agreed that the first petitioner was liable to pay huge tax running to seventeen crores and that it is a case where application of the provisions of Chapter III of the Act would cause undue hardship to the petitioner and that therefore the respondent should grant exemption to the petitioner."
15. It was only on the basis of the plea of undue hardship that this Court directed that -
"I direct the first respondent to dispose of the said applications filed by the petitioners for exemption under S. 20(l)(a) and (b) of the Urban Land (Ceiling and Regulation) Act, 1970 in accordance with law and in the light of the observations made above as expeditiously as possible preferably within a period of three months from the date of receipt of this order."
16. We are satisfied that the impugned order was passed in strict compliance with the directions contained in the judgment in W.P. 11497/90 dt. 10-9-90. The only aspect of "public interest" which the petitioner sought to highlight was dealt with in paragraph-26 of the impugned order, dt. 16-3-1991, as-
"In so far as the Nassar Cooperative Society is concerned, their interest emerges primarily from the agreement entered into by them with the petitioner. Vide Govt. Memo No.2164/ UC/8I, dt. 29-12-1982, they were asked to file certain documents. Their case was duly considered and rejected vide Govt. Memo N0.2164/UC.II/85, dt. 15-2-1983. The Writ Petition No, 1942/83 was filed only by the GPA Holder of the Nizam. As such the order in W.P. No. 1942/83 relates only to the parties therein. The application dt. 28-2-1988 is a sequel to the order is W.p. No. 1942/83 and this was filed by the GPA Holder of Sri Mukarrum Jah Bahadur. As such there is no Subsisting application of the Nassar Cooperative Housing Society. Notwithstanding this, the Society is one of the Writ Petitioner in W.P. No. 11497/80 wherein the Court ordered the disposal of the applications filed /by the petitioners for exemption. The application for exemption of Sri Mukarrum Jah has been disposed off as above. The question of the Nassar Cooperative Housing Society purchasing land from Sri Mukarrum Jah Bahadur arises only in the event where Government exempted the properties from the purview of the Act. As such, the President of the Nassar Cooperative Housing Society may ' be informed of the rejection of the exemption application of Sri Mukarrum Jah Bahadur."
17. It is clear from a perusal of the impugned order that the 1st petitioner had not raised any submission relating to public interest involved in granting exemption in terms of G.O.Ms. No. 4271 dt. 10-9-80 or G.O.Ms. No. 136 dt. 28-1-1981, before the 2nd respondent. It is also clear from the recitals contained in the affidavit accompanying the Writ Petition that virtually no ground was taken about the aspect of "public interest". The only attempt in that affidavit was to bring the case within the scope of undue hardship, which is relevant under S. 20(l)(b) of the Ceiling Act. There was not even a whisper in the original pleadings of any "public interest" involved in the grant of exemption resulting from Cooperative Housing activities with emphasis for grant of preference to Non Resident Indians.
18. In exercising jurisdiction under Article 226 of the Constitution of India, we are called upon to decide as to whether the statutory authority has committed an error of law apparent on the face of the record or whether the order is bad for any similar , reason. It is obvious that if a ground is not raised before the statutory authority, non-consideration of such a ground cannot be a reason to hold that the order of the authority is bad for error of law apparent on the face of the record or for absence or excess of jurisdiction. It is, evident that the petitioner had not stressed the aspect of "public interest" involved in the grant of exemption of the disputed land due to the likelihood of encouragement to housing activities which were proposed to be undertaken. It is also relevant to note that the application by the 2nd petitioner had been rejected way back on 15-2-1983 and it had not challenged the order of rejection. It was not one of the petitioners in W.P. No. 1942/83, which was disposed of on 19-11-1987 and it could not have filed any representation pursuant thereto.
19. It is clear from para 26 of the impugned order that the case of the 2nd petitioner was not considered for the reasons that (1) the order rejecting its claim for exemption by order dt. 15-2-83 had become final and could not be reopened and (2) the order refusing exemption to the 1st petitioner had the effect of refusal in the case of the 2nd petitioner as well. Counsel for the 2nd petitioner submitted that the impugned order did not comply with the directions of this Court in the judgment in W.P. No. 11497/90 and has therefore; to be set aside. These submissions are not available to either of the parties. We have to proceed on the assumption that the only ground on which exemption was sought by the petitioner and could have been considered by the 2nd res-pondenti was the ground of "undue hardship" which is relevant only under S. 20(1)(b) of the Ceiling Act.
20. Counsel for the petitioner submitted that the impugned order is liable to be avoided since it did not consider the offer made by the petitioner in his representation that he was willing to undertake group housing in terms of G.O.Ms. No. 4271 Revenue (U.C. II) Department dated 10-9-1990 in view of the fact that Cooperative Housing as provided in G.O.Ms. No. 136 Revenue (U.C. II) Department dated 28-1-1991 could not be undertaken. Counsel submits that refusal to consider the above plea amounts to non-compliance with the directions of this Court.
21. It is true that the first petitioner had stated in its representation dated 28-5-1988 that he is "willing to take up the construction of group housing in collaboration with the Nassar Cooperative Housing Society Ltd. (2nd petitioner) and under the said collaboration the construction programme will be taken up by the Nizam with the assistance of Nassar Cooperative Housing Society". It is, however, clear that these submissions were made only in support of the claim that extension may be granted "under S. 20(1)(b) of the Act with respect to the land to enable the applicant to sell the land for the sole purpose of discharging the huge tax liability".
Even assuming that the above statement amounts to an offer by the Nizam himself to undertake group housing in terms of G.O.Ms. No. 4271 dated 10-9-1980, that offer was not made in terms of or in aid of the considerations under S. 20(1)(a) of the Ceiling Act.
22. As far as the 2nd petitioner is concerned its relevance in these proceedings depends entirely upon the terms of G.O.Ms. No. 136 Revenue (UC.II) Department dated 28-1-1991. If cooperative group housing in terms of the above Government Order was given the go-by, the 2nd petitioner has no standing in the controversy. It may perhaps be that the 1st petitioner intended to entrust the construction of the houses to the 2nd petitioner as his agent, but that would not have enabled either of the two petitioners to claim the benefit of G.O.Ms. No. 136 dated 28-1-1991. By reason of two circumstances 2nd petitioner had ceased to be of any significance in relation to the controversy involved in this writ petition. Firstly because its application which was based on G.O.Ms. No. 136 Revenue (UC II) Department dated 28-1-1991 was rejected by order dated 15-2-1983. That rejection has become final. Secondly Nizam himself in his representation dated 15-12-1987 had definitely stated that he proposed to undertake construction himself, but the construction would be entrusted to the 2nd petitioner. The moment the Cooperative Society in excluded with the entrustment with cooperative group-housing, it can have no interest thereafter to insist upon grant of exemption for sale of the land in its favour. We are therefore, of the opinion that the 2nd petitioner had no right to continue the proceedings in spite of the fact that it was one of the petitioners in W.P. No. 11494/90.
23. In G.O.Ms. No. 4271 Revenue (U.C. II) Department dt. 10-9-1980 Government laid down guidelines for grant of exemption under S.20(1)(a) of the Ceiling Act with a view to encourage construction of group housing if the owner proposes to utilise excess vacant land held by him for the construction of group-housing. Condition No. 5 provided that;
"the land which has been exempted should not be transferred by way of sale, gift, lease, or otherwise without the previous permission of the Government. However, there is no objection to mortgaging the land without possession to support a loan from bank or financial institution."
24. G.O.Ms. No. 136 Revenue (U.C. II) Department dt. 28-1-1981 was issued in furtherance of the guidelines to deal with cases where the owners proposed to transfer the excess lands to registered cooperative housing societies. Such permission was to be considered in terms of the conditions laid down in the order. Para 5 of the G.O. is to the following effect:
"The land owner should invariably indicate in his application to Government for exemption, the name of the Co-operative Housing Society, the price at which he intends to sell his land, along with a list of houseless members of such a society to whom the house-sites would be sold. Simultaneously the Co-operative Housing Society should file before the Government, a list of genuine members who do not own a house or a house-site in any of the urban agglomeration as on the date of application for exemption, for whom the land is proposed to be acquired. The Society should obtain a sworn affidavit from each such member in terms of condition (3) above, and file such affidavits in original after verification before the Government along with its application for exemption."
25. The first petitioner filed an application dated 19-10-1981 stating that he owed a tax liability of Rs.7,71,95,944/- for the period from 1957-58 to 1978-79 and all his properties were under attachment. He stated in his application that;
"sale of these properties for the purpose of payment of taxes would be in the public interest, as the huge tax demands raised on these properties would stand discharged. It is therefore, submitted that this is a fit case under S.20(1)(a) of the Act for grant of exemption from the provisions of the Urban Land (Ceiling & Regulation) Act, 1976".
26. On 2nd December, 1981, he addressed a representation to the Chief Minister of the State to the effect that the entire sale proceeds would be utilised only for payment of tax arrears. On 9th December, 198), petitioners ., entered into an agreement for transfer of Ac. 250-00 of land in accordance with G.O.Ms. No. 4270 Dated 10-9-80 andG.O.Ms.No. 136 dt. 28-1-1981. On 18-12-1981 petitioner sent another tetter to the Government specifying the sale price of the land to be Rs. 20/- per Square Metre. On the same day, the 2nd petitioner also sent a letter agreeing to the above price in furtherance of its agreement dt. 9-12-1981. In its letter dt. 18-3-1982 addressed to the A,P. State Non-Residents' Investment Corporation (ANRICH), the President of 2nd petitioner offered to give priority to Non-Resident Investors in allotment of house. The" Corporation responded in its letter dt. 2-7-1982.
27. With reference to the application dt. 19-10-81 of the 1st petitioner for exemption, the Principal Secretary to Government required him to state whether construction of houses was to be undertaken by the 1st petitioner or by the 2nd petitioner-Society. The 1st petitioner was also required to file an application before the Government in terms of the guidelines issued in G.O. Ms. No. 4271 dt. 18-9-1980. The Legal Advisor of the Nizam replied on 13-12-1982 requesting the Government to reconsider -
"directions for filing application in accordance with the guidelines laid down in G.O.Ms. No. 4271 and to please grant exemption from the provisions of Chapter III of the Urban Land Ceiling Act and to permit the sale of the land to the Nassar Cooperative Housing Society."
28. With reference to the letter of the 2nd petitioner Society dt. 18-12-1981, application of the 1st petitioner dated 31-3-1981 and the leter of ANRICH dt. 29-3-1982, Government required the Society to file immediately an application with a sworn affidavit agreeing to take up construction of group housing in terms of G.O.Ms. No. 4271 dt. 10-9-1980, in order to enable the Government to consider grant of exemption under S. 20(1)(a) of the Ceiling Act for sale of excess land in Chiran palace premises at Banjara Hills, Hyderabad.
The Nizam was also required to indicate in the sworn affidavit that 50% of the houses constructed would be allotted to the members nominated by the ANRICH Corporation, and also to furnish a certificate from a scheduled Bank regarding the financial stability of the society to take up construction of group housing. The Society replied on 29-12-1982 along with an affidavit of the President of the Society, to abide by the terms and conditions of that Government Order. An affidavit in terms of the Government Letter in Memorandum No. 2164/UC/81 Revenue (UC.II) Department dated 29-12-1982 was also filed. In Govt. Memo No.2164/UC.II/ 81-5 dt. 15-2-1983 Government communicated its rejection of the request for grant of exemption under S.20(1)(a) and (b) of the Ceiling Act. The first petitioner challenged that order in W.P. No. 1942/83. The 2nd petitioner did not join that Petition. The order became final against it. With that ended the proposal for group cooperative housing provided under G.O.Ms. No. 136 Revenue (U.C. II) Department dated 28-1-1981. We have referred to the fact that Writ Petition No. 1942/91 was disposed of by judgment dated 19-11-1987.
29. In the mean time, the State Government published a notification under S. 10(3) of the Ceiling Act declaring Chiran Palace property among others to contain excess land and vesting the same in the State Government. Petitioner filed W.P. No. 2238/83 challenging that notification. This Court disposed of that Writ Petition by Judgment dt. 4-12-1987 in terms of the Judgment in W.P. No. 1942/83.
30. The Power of Attorney Holder of the petitioner filed fresh representation on 15-12-1987 reiterating that arrears due from the petitioner had risen to Rs. 10,38,90,25/- for the period from 1957-58 to 1984-85 and that exemption may be granted in "public interest" under S. 20(1)(a) and in view of "undue hardship" under S. 20(1)(b) of the Ceiling Act. This was followed by yet another application in which it was specifically stated that it was filed as directed by this Court in the Judgment in W.P. No. 1942/83 "to submit a fresh application for exemption to be considered by the Government taking into account all relevant aspects and dispose of afresh. The applicant is therefore submitting this application". In para 16 of that representation which was received by the Government on 25-2-1988, petitioner stated that he was willing to take up the construction of group-housing in collaboration with the Nassar Cooperative Housing Society Ltd., and under the said collaboration the construction programme would be taken up by Nizam with the assistance of the Nassar Cooperative Society. On 19-3-1990 Nassar Co-operative Housing Society filed an application apparently in support of the fresh application submitted by ' Nizam. It was that application which was rejected after various references in the impugned order dt. 16-3-1991.
31. It appears that the earlier application of the petitioner was processed in the Government and was about to be granted in his favour when there was a change in the Government and a new Chief Minister directed rejection of the application which resulted in the order dated 15-2-1983. There was another change of Government in September, 1984. It appears that the new incumbent in the office of the Chief Minister was in favour of allowing the application. However, before orders could be passed, the power equations in the State politics underwent other transformations and the Government reverted to and reaffirmed the decisions to reject the application of the petitioner.
32. Sri Parasaran, counsel for petitioner submits that the letters of the Government referring to the applications of the petitioners definitely created a legitimate expectation that the applications would be granted in "public interest"and to avoid "undue hardship". He submits that the 1st petitioner is entitled to relief based on such legitimate expectations. He referred us to 'HALS-BURY'S LAWS OF ENGLAND', Fourth Edition Volume I (I) page 15 (paragraph 81 to the effect that:
"A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation or from consistent past practice."
Counsel submits that the course of correspondence which the Government has addressed, the petitioner proceeded on the assumption that the Government was favourably inclined to grant exemption if the petitioner did comply with the provisions contained in G.O. Ms. No,4271 dated 10-9-1980 and G.O.Ms. No. 136 dated 28-1-1981. Reference was also made to the letter dated 2-7-1982 of the A.P. State Non Resident Indian Investment Corporation Limited (ANRICH) to the 2nd respondent, letter dated 10-12-1982 of the Principal Secretary to Government, to the General Power of Attorney Holder of the petitioner as also the extracts of the Note file which the petitioner was alleged to have produced before Justice Krishna Iyer Commission in relation to Chiran Palace,
33. We have to deal with the factual aspects first before we go into the legal question about protection or enforcement of "legitimate expectation". It is relevant to note that the petitioner did not comply with the requirements of G.O.Ms. No. 4271. As a matter of fact, in the reply sent on his behalf by legal Adviser on 13-12-1982, petitioner had stated specifically and definitely that-
"I am to state that under the said G.O.Ms. No. 4271, there is a clear prohibition for transfer of the land by way of sale, gift, lease or otherwise "...... " therefore, as long as the land continues to be in the name of H.E.H the Nizam, the attachment under the Income-tax Act would continue. Any houses that may be constructed on the land would be similarly effected by the Income-tax Attachment. Also, no person would like to associate in the venture as long as the land is effected by attachment. It would not also be possible to raise finance by mortgage during the pendency of the attachment".
He therefore, requested -
"to reconsider your directions for filing application in accordance with the guidelines laid down in G.O.Ms. No. 4271 and to please grant exemption from the provisions of Chapter-Ill of the Urban Land Ceiling Act and to permit the sale of the land to the Nassar'1 Cooperative Housing Society. Even assuming that the theory of legitimate expectation is to apply, it is clear that the request of the State Government to the petitioner to comply with the terms of G.O.Ms. No. 4271 was spurned by the petitioner. He could not have had any legitimate expectation of any order in his favour in spite of his refusal to comply with the direction issued by the State Government.
We are therefore, not persuaded to hold that the impugned order has to be avoided since it did not protect the "legitimate expectation" of the petitioner.
33(a). A subsequent offer which the petitioner made in his application which the Government received on 25-2-1988 that -
"the applicant is willing to take up the construction of group housing in collaboration with the Nassar Cooperative Housing Society Ltd., and under the said collaboration the construction programme would be taken up by Nizam with the assistance of the Nassar Cooperative Society".
could not have created any legitimate expectation, because the State Government had not, at any stage after rejection of the application by order dated 15-2-1983, indicated to the petitioner that it would reconsider its earlier decision and grant such permission. We are not ignoring the submissions based on uncommunicated notings in the file by the Chief Minister who was in office for a short while in September/October, 1984. We will deal with that aspect later. What the subsequent offer indicated may only be a second thought. Petitioner is not entitled to insist that this second thought should have engendered positive response and such assumed response justifies his claim to enforce legitimate expectation. Assuming this to be correct the petitioner has to show that he had complied with all the conditions of G.O.Ms. No. 4271 since his earlier application was rejected due to non-compliance with those conditions. We will deal with the theory of "legitimate expectation" at some length later.
34. Petitioner submitted that his application ought to have been granted on the ground of undue hardship under S.20(1)(b) of the Ceiling Act in view of the fact that huge amounts of arrears were due to the Income-tax department, and the only manner in which he could pay the arrears was from funds to be raised by sale of the property in question. Counsel submitted that the Government had taken into consideration undue hardship which was likely to be occasioned to owners of land if exemption was.not granted. Referencee was made to three orders passed by the Government granting exemption under the provisions of the Ceiling Act in favour of three others. Counsel submits that there are many other instances where, on account of undue hardship Government had granted exemption from the provisions of the Act to enable owners to sell excess vacant lands to relieve themselves of undue hardship. Our attention is invited to the decision in Vishnu-das Hundumal v. State of Madhya Pradesh, , wherein the Supreme Court held that discrimination in implementing schemes of nationalisation of road transport services by allowing some operators to ply their services on overlapping portion of the notified route while denying others such facility invited interference by the Court. He also invited our attention to the decision in Sterling General Insurance Co. Ltd. v. Planters Airways Private Limited, , to show that 'undue' means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. He submitted that in the present case, the accumulation of arrears of tax was not due to any conduct of the petitioner, since he inherited non-productive assets which continued to be assessed under the Wealth Tax Act, without yielding any return. He referred to Tha-korbhai Dajibhai Desai v. State of Gujarat, , to support his submission that incapacity to pay tax arrears amounts to "undue hardship". Counsel referred to the decision in Mohinder Singh Gill v. Chief Election Commissioner, , in support of his submission that reasons conjured up and stated in affidavit in Court shall not supplement the reasons mentioned in the statutory order.
35. The claim based on legitimate expectation calls for consideration of some more facts. It is true that in his Note dated 5-9-1984 the then Chief Minister who lasted for hardly one month had tried to re-open the decision so as to grant exemption in favour of the petitioners, but the entire official machinery opposed that move. The Chief Secretary had noted on 4-9-1984 that the earlier rejection was for non-fulfilment of one of the conditions whiie group housing itself was an approved purpose. The Chief Secretary stuck to his position in his further Note dated 12-9-1984. In the mean time, Secretary, Law and Legislative Affairs, had on 8-9-1984 minuted that one of the important conditions for grant of exemption in terms of G.O.Ms. No. 4271 dated 10-9-1980 still remained unfulfilled. He also stated that "the petitioner sought the exemption on the ground of hardship. Petitioner has vast properties and hence the plea of hardship cannot be accepted. Unless, the above points are examined, it is not desirable to issue a memo as proposed." On 12-9-1984, the then Chief Minister again persisted that his minutes dated 5-9-1984 should be implemented and accordingly, the Advocate General was advised to process the matter through the High Court. The Principal Secretary, Revenue Department stated that if the directions of the Chief Minister were to be implemented "the CeiSing Act may undergo a major modification with this decision as we have to grant exemption in all 590 pending hardship cases." When the file was re-circulated as suggested by the Chief Minister, the Law Secretary minuted with reference to the history of the case, legality of the'proposed exemption and "as to how it is detrimental to the interests of the State". There was change of Government again. On 5-10-1984, the Minister for Revenue and the new Chief Minister directed cancellation of the order passed by the former Chief Minister on 5-10-1984 and 12-9-1984.
36. We are not persuaded to hold that either the correspondence or the note file to which the counsel made detailed reference could have created 'legitimate expectation' in the petitioner or that such expectation requires protection of this Court. The first petitioner himself had backed out of the proposal for co-operative housing in terms of G.O. Ms. No. 136 dated 28-1-1981. That is evident from the letter dated 13-12-1982 which the Legal Adviser of the 1st petitioner had sent to the Principal Secretary to Government. There was no compliance with the provisions contained in G.O. Ms. No. 4271 dated 10-9-1980 either. It is due to those reasons that the Government passed orders on 15-2-1983 rejecting the proposal to grant exemption. The "expectation" which shall be protected must be "legitimate" though it may not amount to a right in the conventional sense. But the hope or desire of a person to obtain a favourable order, notwithstanding that he had not complied with the necessary requirements may not amount to a "legitimate expectation". This is clear from a review of the important cases decided by Courts.
36A. Perhaps, the first decision in which the theory of 'legitimate expectation' was propounded was Schmidt v. Secretary of State for Home Affairs, 1969 (2) Law Reports Chancery Division 149. Dealing with the case of an immigrant who has no right to enter the country except by leave and has no right to stay a day longer than the permitted time. Lord Denning stated that -
"if his permit is revoked before the time limit expires, he ought, I think, to be given an opportunity of making representations : for he would have a legitimate expectation of being allowed to stay for the permitted time. Except in such a case, a foreign alien has no right -- and, I would add, no legitimate expectation -- of being allowed to stay."
It is clear from the above extract that legitimate expectation was correlated to the right of the alien who was permitted to stay for a definite period of time. It is also clear that irrespective of such right, there could not be any legitimate expectation.
37. The principle of legitimate expectation was confined mostly to right to a fair hearing before a decision is revoked or a promise or undertaking is withdrawn, but not the grant of a boon which had not fructified into a right by the Administrator passing an order. Please see -- Cinnamond v. British Airports Authority, 1980 (2) All ER 368 : / 1980(1) WLR 582 CA, Council of Civil Ser-. vice Unions v. Minister for the Civil Service, 1985 AC 374 : 1984 (3) ELR 935, Breen v. Amalgamated Engineering Union, 1971 (2) QB 175, R. v. Liverpool Corpn. Ex. D. Liverpool Taxi Fleet Operators' Association, 1972 (2) QB 299, and R. v. Secretary of State for the Home Department, Ex parte Asif Mohmood Khan, 1985(1) AH ER40:1984(1) WLR 1337. Many of these cases dealt with the rights of illegal immigrants who were required to leave before the permission for stay expire or those who overstay such permissions and-were sought to be removed without giving them an opportunity even though such opportunity was promised.
37A. Attorney General of Hong Kong v. NG Yuen Shiu, 1983 (2) Law Reports (Appeal Cases) 629, also dealt with an illegal immigrant who was sought to be deported without an interview or consideration of his case on individual merits even though the Director of Immigration had issued a statement that in all such cases, the illegal entrant from Macau could be interviewed and his case treated on its merits. Though the Full Bench of the High Court refused the application for issue of a certiorari, the Court of Appeal granted an order preventing the Director from executing the removal order until he gave the applicant an opportunity to be heard. The Attorney General appealed to the Judicial Committee. Dismissing the appeal, the Privy Council held that-
"a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty."
That principle is applicable to the undertaking given by the Government of Hong Kong to the applicant along with other illegal immigrants from Mecau, in the anouncement outside the Government House in October 28, that each case would be considered on its merits.
38. Council of Civil Service Unions also dealt with a case of an obligation on the part of the deciding authority to give the affected person a right to be heard. The House of Lords observed that -
"but even where a person claiming some benefit of privilege has no legal right as a matter of private law he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the Court will protect its expectation by judicial review as a matter of public law."
Lord Roskill in his opinion stated :
"The principle may now said to be firmly entrenched in this branch of the law. As the cases show, the principle is closely connected with 'a right to be heard". Such an expectation may take many forms. One may be an expectation of prior consultation. Another may be an expectation of being allowed time to make representations, especially where the aggrieved party is seeking to persuade an authority to depart from a lawfully established policy adopted in connection with the exercise of a particular power because of some suggested exceptional reasons justifying such a departure."
39. In R. v. Secretary of State for the Home Department, Ex parte Ruddock, 1987 (2) All ER 518, Taylor, J. held that:
"...The doctrine of legitimate expectation in essence imposes a duty to act fairly. Whilst most of the cases are concerned, as Lord Roskill said, with a right to be heard, I do not think the doctrine is so confined. Indeed, in a case where ex hypothesi, there is no right to be heard, it may be thought the more important to fair dealing that a promise or undertaking given by a minister as to how he will proceed should be kept. Of course such promise or undertaking must not conflict with his statutory duty or his duty, as here, in the exercise of a prerogative power."
40. In an interesting Treatise on "The Provenance and Protection of Legitimate Expectations", the Cambridge Law Journal, Volume 47, Part-2 at page-238, C.F. Forsyth has dealt with legitimate expectations in elaborate detail. The principle which was re-
stated was as follows :
"So substantive protection of legitimate expectations does not mean that in all circumstances the expectation will be fulfilled by a favourable decision.
Where there is an "overriding public interest" the expectation may be dashed; but in the absence of such an "overriding public interest" legitimate expectations of some boon or benefit should be fulfilled.
It is also observed therein that:
"It follows that substantive protection does not grant an absolute right to a particular decision; it simply ensures that the circumstances in which that expectation may be denied are restricted. Substantive protection, therefore, is within the field of public law not private law."
41. The gradual development of the law of legitimate expectation in the Common wealth countries and others reached the stage of protecting legitimate expectation. It does not ensure fulfilment by a favourable deci sion. Nor does it grant an absolute right to a particular decision. It only restricted the circumstances in which the expectation may be denied. It is within this narrow compass, that we have to find a solution as to the relief which the petitioners are entitled on the basis of legitimate expectations even assuming that the theory applies to the facts of the present case.
41-A. . The only decision in India in which reference was made to legitimate expectation is State of Kerala v. K. G. Madhavan Pillai, . That case arose out of a decision of the Government of Kerala to keep in abeyance an order which it had passed under R. 2-A(5) of the Kerala Education Rules, 1959 agreeing sanction to open/upgrade aided recognized schools. In the normal course, but for that order of abeyance, the respective educational agencies could have established/ upgraded their institutions. They challenged the abeyance order. A single Judge of the Kerala High Court dismissed the writ petition. However, a Division Bench of that Court quashed the abeyance order and issued a direction to the State Government to consider the applications of the respondents on their merits. Supreme Court, on appeal, affirmed the decision of the Division Bench. The Supreme Court relied on a passage in Wade on Administrative Law that -
"An applicant for a licence, though devoid of any illegal right to it, is as a general rule, entitled to a fair hearing and to an opportunity to deal with any allegations against him."
The Court held that even though there was no legal right, situations involving legitimate expectation furnishes Judges with a flexible criterion whereby they can reject unmerito-rious or unsuitable reliefs. The Court held that once Government had approved a new unaided school or a higher class in an existing unaided school and passed an order under Rule 2A (5), then the successful applicant acquires a right of legitimate expectation to have his application further considered under Rules 9 and 11 for the issue of a sanction order under Rule 11 for opening a new school or upgrading an existing school. The decision rested entirely on the above basis of an intermediate order which the Government had passed which contained a clear promise that individual applicants would be considered on merits under Rules 9 and 11 of the Kerala Education Rules. In other words, the ratio of Madhavan Pillars case was that a person obtaining a right by reason of an intermediate order, may seek protection of his legitimate expectation. We are not called upon to refer to any decision which had preceded the impugned orders and which could have aroused legitimate expectation so that even in the absence of any right to insist upon grant of exemption, a person may successfully plead that the Court shall exercise its power, so as to guarantee enforcement of a legitimate expectation.
42. Even assuming the extreme proposition that legitimate expectation is enforceable and its enforcement could be guaranteed in exercise of the discretion of this Court under Art. 226 of the Constitution, the facts of the case do not justify that relief in the present case. We have stated our reasons why the correspondence and the note file on which strong reliance is placed, do not justify a legitimate expectation for the grant of exemption as sought by the petitioners. In India, the theory of legitimate expectation applies only to a fair hearing which the petitioner had before his application was rejected or to a final favourable order in pursuance of a similar intermediate order. He had not pointed out any new or additional circumstance which took place subsequent to the initial rejection of the application, by order dated 15-2-1983. That order was occasioned by the default of the petitioner in complying with the conditions contained in G.O.Ms. No. 4271 dt. 10-9-1980. The letter of the Legal Adviser of the petitioner dt. I3-12-W82 evidenced that he had abandoned the case of the petitioner relatable to co-operative housing in G.O.Ms. No. 136 dated 28-1-1981. With the orderdated 15-2-1983, any claim for exemption based on co-operative housing under G.O.Ms. No. 136 dated 28-1-1981, came to a natural end. That became final as far as the 2nd petitioner was concerned since it did not challenge that order in any competent proceedings. The judgment in W.I. No. 1942/83 dated 19-10-1987 did not have the effect of resurrecting the applications of the petitioners which were rejected way back on 15-2-1983. The first petitioner was conscious of this fact when he stated in his representation dated 25-2-1988 that he was filing a fresh representation pursuant to the judgment of this Court. Petitioners could not have had any legitimate expectation of grant of exemption on the basis of applications which had already been rejected due to defaults committed by them. The first petitioner was required to file a fresh representation. Neither that judgment nor the representation which the petitioner had filed, could have justified any legitimate expectation that his application would be granted.
43. We have dealt with the question of public interest and undue delay at some length. We reiterate that the pleadings do not disclose any such facts which would justify grant of exemption either under S. 21(a) or 21(d) of the Ceiling Act. With the non-compliance with the conditions contained in G.O.Ms. No.4271 dated 10-9-1980, the withdrawal of the proposal in letter dated 13-12- 1982 and the proposal for co-operative housing under G.O.Ms. No. 136 dated 28-1-1981, the only public interest which the petitioner sought to plead, had disintegrated. On the question of 'undue hardship', Advocate General has rightly asserted that it is not true to state that the7 entire arrears of tax which had fallen due arose consequent on the proceedings under the Ceiling Act. Substantial portion of such arrears fell due for the period from 1958 to 1976 when the Ceiling Act was enacted. Amount of arrears which fell due thereafter, was not considerable. The first petitioner submits that excepting by sale of the land in question, he cannot raise the necessary funds to pay off the arrears. Advocate General has asserted that the petitioner had extensive properties in the twin cities of Hyderabad and Secunderabad. He had 22,00,000.00 Square Metres of vacant protected land. It is submitted that even in Chiran palace, he has substantial extent of land and at the then prevailing market price had he sold the lands it would have been easy for him to raise substantial amounts which could easily have wiped out the entire arrears. It is therefore, not as if the only manner in which hardship occasioned by accumulation of tax arrears could be avoided was by sale of the excess land in respect of which he had sought exemption. He had a lot of other protected land, sate of even a minor portion of which, could have enabled to meet all his obligations and wipe out the tax arrears.
44. We are also of the opinion that in the facts of the present case, the petitioner was not able to make out his case of undue hardship, because he had other disposable protected lands of sufficient extent as to raise the necessary funds to wipe out all his tax arrears and other liabilities. The decisions in Vishnudas Hundumal v. State of Madhya Pradesh, Sterling General Insurance Co. Ltd. v. Planters Airways Pvt. Ltd. and Thakorbhai Dajibhai Desai v. State of Gujarat, do not apply to the facts of the case. The only fact that the respondents tried to meet the ever changing case which the petitioner has sought to project in the reply and additional reply affidavits, does not attract the principle of the decision in Mohinder Singh Gill v. Chief Election Commissioner. The Government is not attempting to supplement the reasons contained in the order by assertions in the affidavits filed before this Court. Advocate General submits that he stands by the statements contained in the order and he had filed additional materials only because the additional grounds which the petitioner has sought to raise in the writ petition. We are of the opinion that Mohinder Singh Gill also does not apply to the facts of the present case.
45. Vishnudas Hundumal was a case of discrimination in allowing some private operators to ply their buses on overlapping sectors of notified routes, while refusing such permission to others. The Supreme Court held that such discrimination was unconstitutional, and permitted all similarly placed operators to ply their vehicles. We have hardly any parallel to the above principle in the facts of the present case. It is true that the Government had issued orders of exemption in favour of some of the existing land-owners to wipe of their pre-existing debts or tax liabilities. In the present case, one fact which glares at us is, that the petitioner had a large extent of protected land, the sale of a few of which, would have enabled him to pay off all his liabilities. The arrears are growing year after year due to the fact that he has been disputing the liabilities before the tax authorities and in the Courts. It is not evident that he had made any effort to raise the necessary funds to discharge his tax arrears by sale of any of such protected land. It is clear from the decision in Thakorbhai Dajibhai Desai, that a holder of excess vacant land cannot claim exemption from Chapter III of the Act merely on the ground of his indebtedness. The Court also held that if a land-holder in anticipation of the Ceiling legislation, deliberately created debts and incurred liabilities with a view to escape the clutches of the law, the State Government would be perfectly justified in refusing to grant exemption. It was also held that if the other assets of the land-holder are sufficient to meet the financial obligations, the Government may take into consideration that circumstance in rejecting the claim for exemption.
46. We are of the opinion that the rule in Sterling General Insurance Co. Ltd., also cannot apply to the facts of the present case. It is true that the Court held that "undue" must mean -- that which was not merited by the conduct of the candidate or is very much disproportionate to it. On the facts of the case, it is difficult to hold that the accumulation of tax arrears for a period from 1957-5$ to 1984-85 by a person who was possessed of enormous wealth results in undue hardship or that refusal to grant exempt ion-in respect of excess land measuring about 300 acres is so disproportionate to his conduct. We are at a loss to know how the theory of dispropor-tionality can apply to a case of exemption from statutory provisions of universal application. We reiterate our finding that the 1st petitioner could easily have raised sufficient resources even now to liquidate all his tax arrears by sale of 28,590,26 Square Metres of protected land in Chiran palace or any portion of over 2,01,301.94 Sq. Metres of other protected land owned by him. The specific assertion of the State that even in Chiran palace compound the petitioner has protected land which will fetch far more than the aggregate liabilities, if sold at the existing market rates, is not seriously controverted. We are therefore, not persuaded to hold that the petitioner was entitled to grant of exemption on the ground of "undue hardship" or on the theory of proportionality, because of the undischarged tax arrears.
47. Nor do we find any reason to uphold the contentions of the petitioner on the basis of M/s. Canara Bank Staff Co-operative Building Society Ltd, v. N. V. Rao. That was a case where a Co-operative Society had complied with all the requirements of law including G.O.Ms. No. 136 dated 28-1-1981, the Government had processed the application and the Commissioner for Land Revenue had recommended to the Government that exemption be granted. The rejection thereafter, on the basis of untenable grounds was struck down in the above decision. Here in the present case, the Co-operative Society has backed out and must be taken to have accepted finally the decision dated 15-2-1983. Even earlier to that, on 13-12-1982 the first peti-
tioner had abandoned the proposal for construction of houses through co-operative group housing scheme under G.O. Ms. No. 136dated28-l-1981.Thepetitionerhim-self had stated that he will construct the houses on his own. It was found, as a matter of fact, that the petitioner had not complied with the conditions contained in G.O.Ms. No. 4271 dated 10-9-1980. We are not told even now whether the petitioner had, at least thereafter, complied with the requirements of the above Government Order. We do not understand the decision in Canara Bank Staff Co-operative Building Society, to make it obligatory on the part of the Government to grant exemption even in cases where it suspects the bona fides of the application or finds that the statutory pre-conditions have not been duly complied with.
48. We shall, before we leave this case, refer to a very important aspect of this case which sounds in the realms of legal and constitutional proprieties The case of the 1st petitioner for protection of "legitimate expectation" is built largely upon notings in the file including those made on 5-9-1984 and 12-9-1984 by the then Chief Minister and its reversal by his successor. Advocate General submitted that the very fact that these file notings which are protected under Art. 163(3) of the Constitution of India should have been" obtained on the sly by the petitioner or his agent and openly produced in Court indicate the extent of impropriety in an attempt to extract what he wanted by employing any means. The argument in opposition was that the files were produced before Justice Krishna lyer Commission on Land Grabbing and were extracted therefrom and therefore, no question of impropriety arises for consideration. We have given our anxious thought to this aspect.
49. We would have expected a litigant who believes or even expects that the Government had dealt with his case favourably at some stage of the proceedings before it turned turtle, to have sought production of the relevant files in Court. In that event, we would have had an opportunity to consider the merits of summoning the files and disclosure of its contents with reference to the provisions of Article 163 (3) of the Constitution of India. Advocate General would have had an opportunity to claim privilege against disclosure under the Official Secrets Act or the Indian Evidence Act. The Court would have decided, in all probability, in favour of production and disclosure of material documents except to the extent of Cabinet papers and notings of officials which lead to the Cabinet decision. One of us (Sivaraman Nair, J.) had occasion on behalf of a Division Bench to deal with tnat question in Pattabhi Kami Reddy v. Government of Andhra Pradesh, W.P. No. 2171/1984 dated 6th December, I991-. On a detailed consideration of a number of decisions of Indian and English Courts, it was held therein that -
"We are not inclined to hold that notes and minutes made by the respective officers on the relevant files, opinions expressed or representations made and gist of final decisions reached in the course of determination of the said questions are protected from scrutiny by the Court or from disclosure to the public gaze by virtue of provisions contained in Art. 163(3) of the Constitution of India. In respect of such peripheral area, the only consideration shall be public interest immunity; the considerations are to be balanced one against the other, the injury to public interest which is likely by the disclosure, against the injury by reason of non-disclosure to the rights of individuals as also public interest involved in maintaining open government. We are of the opinion that such immunity from examination of these files and materials can be negatived only in cases where public interest in favour of non-disclosure outweighs the imperative need for open government and accountability. We are of the opinion that files containing notings by departmental officials, proposals leading to decisions by Ministers etc., may not be protected, except when they form or directly lead to the advice tendered by the Minister or the Cabinet to the Governor. We are of the opinion that public interest favours an open government rather than exaggerated claims for secrecy and confidentiality, either, in the interests of upholding andour of the decision makers or class claims. The absolute prohibi-
tion against disclosure and scrutiny applies only to documents covered by Art. 163(3) of the Constitution of India. Even in respect of claim for privilege under Ss. 123 and 162 of the Evidence Act, there has been a perceptible change in the approach of the Courts for more openness and greater liberalisation. This shall be far more so in a case where production and scrutiny of the files are sought to prove allegation of mala fides of the decision-makers.
50. But those observations were made in a case where the Court had ordered production of the relevant files and the Advocate General had produced them without any claim for privilege.
51. Totally different considerations shall prevail in a case where all the relevant files, as it were, were available to be produced and extracts from them were produced with impunity to support a claim for protection and enforcement of "legitimate expectation". Such practice deserves to be condemned. The conduct of the petitioner or his agent in obtaining government files on the sly by use of questionable methods is itself without anything more -- good enough reason to refuse him any relief, whatever be the merits of his submission as was held by this Court in R. Venkataramaih v. The Chief Engineer, Sri Ramsagar Project -- W.A. Nos. 763/92 and 764/92 dated 3rd August, 1992.
52. We have discussed the entire range of materials before us notwithstanding the procedural improprieties involved in the petitioner evolving his case by additions and embellishments at different stages and his all too unedifying conduct in obtaining government files on the sly. This we have done in an anxiety to give the petitioner a full and fair hearing of all his grievances not in recognition of any right in him to indulge in such conduct.
53. We add that file notings by Ministers can hardly be treated as final orders of Government (Please see State of Punjab v. Sodhi Sukhdev Singh, and Bachhittar Singh v. State of Punjab, ) as long as they are not communicated. We should state further that inconclusive deliberations in the file can hardly support a claim for "legitimate expectation".
54. We heard W.P. No. 4531/91 and W.A. No. 1220/91 finally on 10-8-1992. After the above two cases were reserved for judgment, counsel for the 1st petitioner informed us about the pendency of W.P. No. 14942/91 filed by the 2nd petitioner. We kept our judgment in abeyance and heard the second petitioner on 8-9-1992. We have dealt with that petition also. We have also heard Sri Ratnakar who appeared for the 2nd petitioner therein who is none other than the first petitioner. Same arguments were reiterated before us. Advocate General reiterated that the judgment in W.P. No. 11497/90 did not indicate that the State had made a promise at any stage nor had it by its conduct generated any legitimate expectation either in the 1st petitioner or 2nd petitioner that Jhe exemption would be granted in favour of either. He also submits that this Court may not permit the petitioners to escape the rigour of the rule of estoppel for the only reason that they mosquerade that claim under "legitimate expectation". We feel that the Advocate . General is right in his submission that neither by any positive terms nor by any implied conduct had the State generated any legitimate expectation in the petitioners, They had not suffered any damage by reaion of any representation, promise or conduct of the State. We also hold that it is against public policy to grant exemption in respect of a substantial area of land of about 300 acres in the urban agglomeration after having deprived a large number of urban land-holders of even small extents of excess land on the basis of the policy underlying the Ceiling Act. The only fact that the 1st petitioner had accumulated large amount of tax arrears is no reason to hold that he is entitled to exemption on grounds of public interest. Admittedly he had asiets out of proportion to his liabilities. Again the fact that the petitioner did not or could not effectively utilise the offer made by the State Government on an earlier occasion which resulted in the withdrawal of that offer is no reason to hold that the public interest justifies grant of exemption for the purpose of encouraging urban housing.
55. In this view, we dismiss W. P. Nos. 4513/91 and 14942/91. Writ Appeal No. 1220/91 is disposed of in view of the dismitsal of the writ petitions. It will now'be open to the State Government to proceed with implementation of the impugned decisions and other consequential orders issued in furtherance thereof. Petitioners will pay the costs of the respondents including Advocate's fee of Rs. 1000/-one set.
56. Order accordingly.