Allahabad High Court
Anand Kumar Sharma vs State Of U.P. Thru' Secretary And Others on 28 May, 2013
Bench: Ashok Bhushan, Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 26.04.2013 Delivered on 28.05.2013 Case :- WRIT - C No. - 41958 of 2008 Petitioner :- Anand Kumar Sharma Respondent :- State Of U.P. Thru' Secretary And Others Petitioner Counsel :- Arun Kumar Gupta,S.K. Purwar,Sarita Singh Respondent Counsel :- C.S.C. _________ Hon'ble Ashok Bhushan,J.
Hon'ble Surya Prakash Kesarwani,J.
(Delivered by Hon'ble Ashok Bhushan, J.) By this writ petition, the petitioner has prayed for quashing the order dated 18.12.2006, passed by the Collector, Lalitpur by which order, the application of the petitioner dated 25.7.2005 for grant of freehold right has been rejected on the ground that in view of the Government order dated 4.8.2006, the provisions for regularising the possession of unauthorised occupants have been withdrawn.
Brief facts giving rise to the writ petition are; that the petitioner's father constructed a house on land No. 42, Tuwan Teela, Azadpura, in District Lalitpur being Nazul land No. 3579. State Government issued Government Order dated 1.12.1998 by which provision was made by the State Government for grant of freehold rights on Nazul land. The said right was also granted to unauthorised occupants, who were in possession of Nazul land. The scheme was subsequently modified by the Government Order dated 10.12.2002. A notice dated 30.6.2002 was issued to the petitioner by Nagar Palika Parishad asking him to submit an application for grant of freehold right of plot No. 3579 area 160.40 square meters which is in unauthorised occupation of the petitioner. The petitioner submitted an application dated 20.7.2005 for grant of freehold right for an area of 188.72 square meters along with deposit of an amount of Rs. 66052/- on the basis of self assessment. The said application remained pending. The State Government by Government Order dated 4.8.2006 amending the Government Order dated 1.12.1998 by cancelling paragraph 7 and Government Order dated 10.12.2002 by cancelling paragraph 5 which paragraphs provided for grant of freehold rights to unauthorised occupants. After issue of the Government Order dated 4.8.2006, the Collector rejected the application of the petitioner vide order dated 18.12.2006 informing that in view of the Government Order dated 4.8.2006, the unauthorised occupation cannot be regularised hence, the application dated 25.7.2005 submitted by the petitioner is rejected.
We have heard Sri B.N. Asthana, learned Senior Advocate assisted by Sri S.K. Purwar and Sri Arun Kumar Gupta for the petitioner and Sri C.B. Yadav, learned Additional Advocate General for the State.
Sri Asthana submitted that petitioner's application dated 25.7.2005 could not be rejected on the basis of Government Order dated 4.8.2006, which is a subsequent Government Order and shall have only prospective operation. It is submitted that the petitioner's application dated 25.7.2005 was in accordance with the policy of the State, which entitled grant of freehold right to unauthorised occupants also. The petitioner also deposited amount on the basis of self assessment hence, the application was required to be processed in accordance with the Government Order dated 1.12.1998 as well as the Government Order dated 10.12.2002. Had the respondents decided the application within reasonable time, the application would have been allowed. By keeping the application pending for sufficiently long time, the respondents cannot reject the application on the basis of the Government Order dated 4.8.2006. Learned Counsel for the petitioner has placed reliance on the Division Bench judgment of this Court reported in 2009(4) AWC 4038 Dr. O.P. Gupta Vs. State of U.P. and others. He submits that the said judgment fully covers the issues raised in the present writ petition. He submits that the Division Bench has held that cause which was otherwise acceptable on the date of the application could not be permitted to be negatived by any change in the policy unless the policy has been given retrospective effect. Reliance has also been placed on the judgment of the apex Court reported in (2007) 9 SCC 571 State Bank of India Vs. Jaspal Kaur.
Sri C.B. Yadav, learned Additional Advocate General assisted by Dr. Y.K. Srivastava submitted that the Government is free to amend/modify/change its nazul policy from time to time. He submitted that the State Government having decided by Government Order dated 4.8.2006 not to grant freehold right to unauthorised occupants, the petitioner cannot claim grant of freehold right subsequent to 4.8.2006. The mere fact that the application remained pending for sufficiently long time, does not clothe the petitioner with any right to insist that his application should be considered according to the policy which was prevalent at the time of submission of application i.e. on 25.7.2005. It is submitted that the Government Order dated 4.8.2006 is not being given retrospective effect, in so far as it does not nullify any freehold right granted to any person in accordance with the earlier policy but the said Government Order shall become enforceable on the date of issue i.e. 4.8.2006 and no freehold right can be granted subsequent to the issue of the said Government Order. It is submitted that the relevant decisions of the apex court touching the issue raised were not cited before the Division Bench, which decided Dr. O.P. Gupta's case. He submits that the Division Bench judgment in Dr. O.P. Gupta's case does not lay down the correct law hence, a reference be made to the larger Bench to consider the issue. Sri Yadav also cited several judgements of the apex Court and this Court, which shall be referred to while considering the issue in detail.
From the pleadings on record and submissions made by learned counsel for the parties, following are the two issues which arise for consideration.
1. Whether the application of the petitioner dated 25.7.2005 submitted for grant of freehold right on the basis of the Government Order dated 1.12.1998 (Paragraph 7) and the Government Order dated 10.12.2002 (paragraph 5) was entitled to be considered in accordance with the Government policy as was in existence on the date of application or the Government policy as amended by Government Order dated 4.8.2006, was to be taken into consideration while deciding the application on 18.12.2006?
2. Whether the Division Bench judgment in Dr. O.P. Gupta Vs. State of U.P. 2009 (4) AWC 4038 lays down the correct law?
Both the issues being interconnected are being considered together. The parties are not at issue regarding facts of the present case. The Government Orders dated 1.12.1998 and 10.12.2002 entitled unauthorised occupants to make application for regularising their occupation on the rate as provided in the said Government Orders. In paragraph 5 of the Government Order dated 10.12.2002, it was provided that the persons who are unauthorised occupants up to 1.12.1998 shall be entitled for consideration of freehold right on the basis of 100% of the current circle rate. Similar provisions were made by paragraph 7 of the Government Order dated 1.12.1998. According to the earlier Government Orders those persons who were unauthorised occupants since before 1.1.1992 were entitled to make application for grant of freehold right. By subsequent Government Order dated 4.8.2006, both the aforesaid provisions of the Government Orders were withdrawn. It is useful to note the contents of the Government Order dated 4.8.2006, which are as follows:
".......
vkokl ,oa 'kgjh fu;kstu vuqHkkx&4 y[kuÅ fnukWad% 04 vxLr] 2008 fo"k;% utwy Hkwfe ds izcU/k ,oa fuLrkj.k ds laca/k esa fuxZr 'kklukns'kksa esa la'kks/[email protected] egksn;] mi;qZDr fo"k;d 'kklukns'k la[;k&1818@ vkB& 4&04&262 ,u@04 fnukWaad 18&04&05 rFkk 'kklukns'k la[;k&1364@vkB &4&2006&137,u@2004 Vh0lh0 fnukWad 30&06&06 ds dze esa eq>s ;g dgus dk funs'k gqvk gS fd utwy Hkwfe ij voS/k dCtksa ds laca/k esa lE;d fopkjksijkUr 'kklu }kjk ;g fu.kZ; fy;k x;k gS fd utwy Hkwfe ij voS/k dCtksa dks fofu;fer u fd;k tk;A vr% voS/k dCtksa dks fofu;fer fd;s tkus ds laca/k esa mi;qZDr 'kklukns'k la[;k&2268@9&vk&4&98&70,u@97 fnukWad 01 fnlEcj] 1998 ds iw.kZ izLrj&7 vkSj 'kklukns'k la[;k 2878@9&v &4&02&152,u@2000 Vhlh] fnukad 10&12&02 ds izLrj&5 esa dh x;h O;oLFkk dks ,rn~}kjk lekIr fd;k tkrk gSA 2& mDr 'kklukns'k fnukWad 01&12&98 vkSj fnukWad 10&12&02 bl lhek rd la'kksf/kr le>s tk;saxs 'ks"k Qzh gksYM uhfr dh vU; O;oLFkk,a ;Fkkor jgsaxhA 3& mDr vkns'k rkRdkfyd izHkko ls ykxw gksaxsA Hkonh;] g0 vLi"V 4@8@06 ¼ds0,y0ehuk½ lfpo"
The application was submitted by the petitioner on 25.7.2005 i.e. much before the Government Order dated 4.8.2006. A perusal of the Government Order dated 4.8.2006 indicates that the said Government Order was made effective with immediate effect vide paragraph 3 of the Government Order. Paragraph 1 of the Government Order clearly provides that the State Government has decided not to regularise unauthorised occupation and the scheme as provided in the Government Orders dated 1.12.1998 and 10.12.2002 for regularisation of unauthorised occupation is withdrawn. The clear intendment of the Government Order is that after the issue of the Government Order, no unauthorised occupants be granted freehold right. The Government Order not being retrospective did not affect the rights of any person, who had already acquired freehold right under the earlier scheme but whether a person whose application made prior to 4.8.2006 and was pending as per earlier scheme, should be treated as an exception to the Government Order dated 4.8.2006. A perusal of the Government Order indicates that no such exception or saving was provided in the Government Order dated 4.8.2006. The Division Bench in Dr. O.P. Gupta's case (supra) had occasion to consider similar issue. In Dr. O.P. Gupta's case, the petitioner's of that case had made an application for getting the land freehold. The petitioner of that case claimed to be nominee from the person in whose favour the original lessee had executed registered Will but on the basis of the nomination dated 27.6.2002 application was made for grant of freehold right on 3.7.2002. At that time, the policy as mentioned in the Government Order dated 1.12.1998 was in operation permitting nominee to apply for freehold right subject to other conditions. The application was decided on 26.4.2008 after lapse of several years by the Collector rejecting the application. The Collector, while rejecting the application relied on the policy as enforced by the Government Order dated 17.3.2008. The similar submission was raised in the said case that the policy of making freehold which was applicable at the time of application should have been considered. The said submission was noted in paragraph 7 which is quoted as below:
"7. The submission of learned Counsel for the petitioner is that the claim of the petitioners was required to be considered by the learned Collector in accordance with the policy so prevailing at that time when the petitioner applied for getting the land freehold. The petitioner applied for freehold on 3.7.2002. The policy dated 1.12.1998 was to be taken note. The amendment to the policy of making freehold in favour of nominee was amended vide Government order dated 10.12.2002 which is clear from the perusal of paragraph 3 of the Government order dated 10.12.2002. In the said Government order it is clearly mentioned that the policy/ provision of making freehold in favour of nominee is being withdrawn and now freehold is to be done only in favour of original lessee or legal heirs or subsequent purchasers who have taken the land by means of registered sale-deed by paying stamp duty. It is further submitted that freehold has been made in favour of a large number of other lessee whose lease stood expired already and they applied later on. This aspect was placed during the course of argument on the basis of a reply given from the office of the Collector under Right to Information Act, dated 27.6.2009 which is annexed as Annexure-SA1 to the supplementary affidavit. The submission is that as the claim of the petitioners has not been considered on merits and has been rejected only on the basis that term of the lease stood expired and the petitioners claimed to be nominee and in view of the present/current policy freehold in their favour cannot be made, the impugned order be quashed and the Collector be directed to consider the claim of the petitioners afresh on merits in accordance with law after giving opportunity of hearing to the other claimants also including the petitioners."
The Division Bench in the said case held that the cause of the petitioner which has been otherwise applicable on the date of application cannot be negatived by any change in the policy. Following was laid down in paragraph 12:
"12. Be as it may, these facts as noted above appear to be undisputed. They are borne out from the record. Petitioners applied for renewal on 3.7.2002 and at that time the policy of making freehold in favour of nominee was available. If the authority has taken such a long time in disposing of the application for making land freehold and that was not decided on merits by the time that policy stood amended then it is not a case of fault/lapse from the side of petitioners for which they are to be penalised. By keeping a matter pending for a long without any justification or for any inaction on the part of a claimant/ applicant, his cause which was otherwise acceptable on the date of move, cannot be permitted to be negatived by any change in policy unless that has been given retrospective effect. If the approach of authorities is permitted to prevail, then according to their whims or for various hidden reasons, they will delay in disposal of the matter for getting desired result if that is in offing. Why for the inaction/lapses of respondent/authority a claimant is to be made to suffer? If that can be so then the official will have to spell the reason and justification for long, unreasonably, undue delay in disposal of things which otherwise need to be completed, on completion of needed formalities. A lawful, valid, bona fide excuse will have to be shown when matter comes to the Court to deprive a person of his claim to which he has a legitimate expectation. Counsel for petitioners also informed the Court that a large number of freehold has been done in favour of various lessees and the persons so entitled whose lease stood expired but we are not to go into this question as on today, learned Collector has rejected the petitioners application not on merits, i.e., for any violation or on any other grounds on account of which they may not be able to get the land freehold in their favour but the application has been rejected solely on two technical grounds. In respect to this, Court is of the view that it could not have been made a ground of rejection of the application. Thus, the direction is required to be given to the learned Collector to take final decision in the matter on the merits in accordance with law keeping in mind the policy so prevailing at the time when the petitioners applied for getting the land freehold and all the persons are to be given proper opportunity of hearing before taking appropriate final decision in the matter."
The Division Bench in Dr. O.P. Gupta's case fully supports the submission of Sri Asthana. Learned Additional Advocate General submitted that Division Bench in Dr. O.P. Gupta's case (supra) does not lay down the correct law. He submits that the Government has right to frame policy and change it from time to time. He submits that the policy of granting freehold rights to unauthorised occupants having been withdrawn, the petitioner's application could not have been considered in view of the changed policy and has rightly been rejected by the Collector.
Whether by making application any indefeasible right accrued in favour of the petitioner for grant of freehold right, which could not have been taken away by any subsequent amendment in the policy, is the issue to be answered. It is well settled that vested rights cannot be taken away by any subsequent statute, rule or scheme unless statute, rule or scheme is expressly made retrospective in nature. 'Vested right' has been defined in Law Lexicon P. Ramanatha Aiyer 3rd Education as follows:
"Vested rights. Property rights.
The expression 'vested rights' means an absolute or indefeasible right. It is an immediate fixed right in present or future enjoyment in respect of property. The claim based on the vested right or settled expectation to obtain sanction cannot be set up against statutory provisions. It cannot be countenanced against public interest and conveniences which are sought to be served. Howrah Municipal Corpn. Vs. Ganges Rope Co. Ltd., (2004) 1 SCC 663, 680, para 37. [Howrah Municipal Corporation Act (58 of 1980), S. 175] A right is said to be vested when the right to enjoyment, present or prospective has become the property of some particular person or persons as a present interest independent of a contingency. It is a right which cannot be taken away without the consent of the owner. Such rights may arise from contract or statute and from the operation of law. Mohammadi Begam Sahiba, Bhopal Vs. Abdul Majidkhan, MLJ:QD (1961-1965) Vol I CI918: 1963 MPLJ 157: ILR (1962) M.P. 689 [Civil Procedure Code of Bhopal State, S. 49]"
The word 'vested right' also came for consideration before the apex Court in Howrah Municipal Corpn. & Others vs Ganges Rope Co. Ltd. & Others (2004) 1 SCC 663. In the aforesaid case, an application was submitted by the respondent company praying for grant of sanction for construction of three additional floors to the multi-storeyed complex which was already constructed up to fourth floor. The High Court disposed of the application by order dated 23.12.1993 directing the corporation to grant sanction to the respondent's plan up to fourth floor. It was further provided that the company would be at liberty to apply for further sanction at a later stage, if the same was permissible at a later date. An application made on 27.5.1994 by the company for sanction to construct up to 7th which was not granted by the Corporation. A writ petition was filed. The Division Bench of the High Court vide its judgment dated 5.9.1997 directed the Corporation to grant sanction of three additional floors against which order municipal corporation filed the appeal. By notification dated 15.7.1994, the Building Rules were amended restricting the height of high-rising buildings to the prescribed level depending upon the width of the street on which the building was proposed to be constructed. As per the amended Rules, additional floors could not have been permitted to be constructed. The submission was raised before the Court that company has vested right to claim sanction of the additional floors. The apex Court accepted the case of the corporation and set aside the judgment of the High Curt. The submission that sanction is to be granted on the basis of the Building Rules prevailing at the time of submission of the application, was not accepted. Following was laid down in paragraphs 29 and 30:
"29. It has been urged very forcefully that the sanction has to be granted on the basis of Building Rules prevailing at the time of submission of the application for sanction. In the case of Usman Gani (supra), the High Court negatived a similar contention and this Court affirmed the same by observing thus:
"In any case, the High Court is right in taking the view that the building plan can only be sanctioned according to the building regulations prevailing at the time of sanctioning of such building plans. At present the statutory bye-laws published on 30.4.1988 are in force and the fresh building plans to be submitted by the petitioners, if any, shall now be governed by these bye-laws and not by any other bye-laws or schemes which are no longer in force now.
If we consider a reverse case where building regulations are amended more favourably to the builders before sanctioning of building plans already submitted, the builders would certainly claim and get advantage of the regulations amended to their benefit."
30. This Court, thus, has taken a view that the Building Rules or Regulations prevailing at the time of sanction would govern the subject of sanction and not the Rules and Regulations existing on the date of application for sanction. This Court has envisaged a reverse situation that if subsequent to the making of the application for sanction, Building Rules, on the date of sanction, have been amended more favourably in favour of the person or party seeking sanction, would it then be possible for the Corporation to say that because the more favourable Rules containing conditions came into force subsequent to the submission of application for sanction, it would not be available to the person or party applying."
The apex Court had also in the said judgment laid down that company had no vested right to claim sanction of the additional floors on the basis of the building plans as they stood prior to the amendment. The said application was negatived. Paragraphs 36 and 37 which are relevant are quoted below:
"36. The above stated legal position is not disputed on behalf of the respondent company. What is being contended is that the order of the High Court fixing a period for the Corporation to decide its pending application for sanction creates a vested right in favour of the applicant company to seek sanction for its additional proposed construction on the basis of Building Rules, as they stood prior to the amendment introduced to the Building Rules and the consequent Resolution of the Corporation restricting the height of buildings on G.T. Road. It is undeniable that after the amendment of the Building Rules and the Resolution passed by the Corporation thereunder restrictions imposed on heights of buildings on specified wards, roads and localities would apply to all pending applications for sanction. The question is whether any exception can be made to the case of the applicant seeking sanction who had approached the court and obtained consideration of its applications for sanction within a specified period. We have extracted above, the various orders passed by the High Court in writ petitions successively filed by the company in an effort to obtain early sanction for its additional construction of three floors on the buildings in its multi-storeyed complex already completed up to 4th floor. In none of the orders of the High Court, there is a mandate issued to the Corporation to grant a sanction. What was directed by the High Court in the first order was merely a 'liberty' or option to the company to seek sanction for additional three floors. In the subsequent order, an 'expectation' was expressed for decision of the pending applications within a period of four weeks. There was, thus, in favour of the company an order of the High Court directing the Corporation to decide its pending applications for sanction within the allotted period but non-compliance thereof by the Corporation can not result in creation of any vested right in favour of the company to obtain sanction on the basis of the Building Rules as they stood on the date of making application for sanction and regardless of the amendment introduced to the Building Rules. Neither the provisions of the Act nor general law creates any vested right, as claimed by the applicant # company for grant of sanction or for consideration of its application for grant of sanction on the then existing Building Rules as were applicable on the date of application. Conceding or accepting such a so-called vested right of seeking sanction on the basis of unamended Building Rules, as in force on the date of application for sanction, would militate against the very scheme of the Act contained in Chapter XII and the Building Rules which intend to regulate the building activities in a local area for general public interest and convenience. It may be that the Corporation did not adhere to the time limit fixed by the court for deciding the pending applications of the company but we have no manner of doubt that the Building Rules with prohibition or restrictions on construction activities as applicable on the date of grant or refusal of sanction would govern the subject matter and not the Building Rules as they existed on the date of application for sanction. No discrimination can be made between a party which had approached the court for consideration of its application for sanction and obtained orders for decision of its application within a specified time and other applicants whose applications are pending without any intervention or order of the court.
37. The argument advanced on the basis of so-called creation of vested right for obtaining sanction on the basis of the Building Rules (unamended) as they were on the date of submission of the application and the order of the High Court fixing a period for decision of the same, is misconceived. The word 'vest' is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With the long usage the said word 'vest' has also acquired a meaning as "an absolute or indefeasible right" [See K.J. Aiyer's 'Judicial Dictionary' (A complete Law Lexicon), Thirteenth Edition]. The context in which respondent - company claims a vested right for sanction and which has been accepted by the Division Bench of the High Court, is not a right in relation to 'ownership or possession of any property' for which the expression 'vest' is generally used. What we can understand from the claim of a 'vested right' set up by the respondent-company is that on the basis of Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the court for its consideration, it had a 'legitimate' or 'settled expectation' to obtain the sanction. In our considered opinion, such 'settled expectation', if any, did not create any vested right to obtain sanction. True it is that the respondent-company which can have no control over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of its rule making power, amended the Building Rules and imposed restrictions on the heights of buildings on G.T. Road and other wards, such 'settled expectation' has been rendered impossible of fulfillment due to change in law. The claim based on the alleged 'vested right' or 'settled expectation' cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation against whom such 'vested right' or 'settled expectation' is being sought to be enforced. The 'vested right' or 'settled expectation' has been nullified not only by the Corporation but also by the State by amending the Building Rules. Besides this, such a 'settled expectation' or so-called 'vested right' cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon."
The judgment of the apex Court in (1981) 2 SCC 205 State of Tamil Nadu Vs. M/s Hind Stone and others is also relevant in the context. In the said Case, Tamil Nadu Minor Mineral Concession Rules, 1959 came for consideration. The Rule 3 amended by insertion of Rule 8-C which provided as follows:
"8-C Lease of quarries in respect of black granite to Government Corporation, etc. (1) Notwithstanding anything to the contrary contained in these rules, on and from 7th December, 1977 no lease for quarrying black granite shall be granted to private persons.
(2) The State Government themselves may engage in quarrying black granite or grant leases for quarrying black granite in favour of any corporation wholly owned by the State Government.
Provided that in respect of any land belonging to any private person, the consent of such person shall be obtained for such quarrying or lease".
Large number of persons made application for renewal of their lease and some of the applications were made much prior to the insertion of Rule 8-C. It was also held by the apex Court that the applicants cannot claim any right to have the applications disposed of on the basis of the rule in force at the time of making of the applications. Following was laid down in paragraphs 12 and 13 of the judgment:
"12. The next question for consideration is whether Rule 8C is attracted when applications for renewal of leases are dealt with. The argument was that Rule 9 itself laid down the criteria for grant of renewal of leases and therefore rule 8C should be confined, in its application, to grant of leases in the first instance. We are unable to see the force of the submission. Rule 9 makes it clear that a renewal is not to be obtained automatically, for the mere asking. The applicant for the renewal has, particularly, to satisfy the Government that the renewal is in the interests of mineral development and that the lease amount is reasonable in the circumstances of the case. These conditions have to be fulfilled in addition to whatever criteria is applicable at the time of the grant of lease in the first instance, suitably adapted, of course, to grant of renewal. Not to apply the criteria applicable in the first instance may lead to absurd results. If as a result of experience gained after watching the performance of private entrepreneurs in the mining of minor minerals it is decided to stop grant of leases in the private sector in the interest of conservation of the particular mineral resource, attainment of the object sought will be frustrated if renewal is to be granted to private entrepreneurs without regard to the changed outlook. In fact, some of the applicants for renewal of leases may themselves be the persons who are responsible for the changed outlook. To renew leases in favour of such persons would make the making of Rule 8C a mere exercise in futility. It must be remembered that an application for the renewal of a lease is, in essence an application for the grant of a lease for a fresh period. We are, therefore, of the view that Rule 8C is attracted in considering applications for renewal of leases also.
13. Another submission of the learned counsel in connection with the consideration of applications for renewal was that applications made sixty days or more before the date of G.O.Ms. No. 1312 (2-12-1977) should be dealt with as if Rule 8C had not come into force. It was also contended that even applications for grant of leases made long before the date of G.O.Ms. No. 1312 should be dealt with as if Rule 8C had not come into force. The submission was that it was not open to the Government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rule 8C notwithstanding the fact that the applications had been made long prior to the date on which Rule 8C came into force. While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable tune clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. None has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of G.O.Ms. No. 1312 should be dealt with as if Rule 8C did not exist."
A Division Bench of this Court in which one of us (Ashok Bhushan, J.) was a member in 2013 (2) ADJ 166 Nar Narain Misra Vs. State of U.P. and others, also considered the similar submissions in context of the U.P. Minor Minerals Concession Rules 1963. Applications were made by several applicants for grant of mining lease under Chapter II of the Rules. The applications remained pending. The State Government issued a Government Order dated 31.5.2012 by which all vacant area was notified under Chapter III i.e. for settlement of right by auction/tenders. The writ petitions were filed by the applicants seeking a mandamus that respondents may be directed to consider their applications for grant of mining lease and the Government Order dated 31.5.2012 declaring the area under Chapter II be not applied in their cases. Submission was made that Government Order dated 31.5.2012 at best shall apply to the area which fall vacant subsequent to the Government Order. Negativating the said submissions, following was laid down by the Division Bench in paragraph 46:
"46. In view of the above pronouncement of the apex Court, it is clear that the applicants whose application for renewal is pending cannot claim that their application for renewal be considered under Chapter II and those areas be kept out of purview of the Government order dated 31.5.2012. The areas having been declared under Rule 23(1), the provisions of Chapter II under which renewal of lease can be granted becomes inapplicable. The new state of affairs which have been brought into existence by declaration under Rule 23(1) has to be given its full effect and no rider or exception can be read specially when the Government Order dated 31.5.2012 does not contemplate any such exception. Thus, the submission of the applicants that their renewal applications which were pending at the time of issuance of declaration on 31.5.2012 shall be considered according to Chapter II cannot be accepted and the areas in respect of which the applications for renewal were pending on 31.5.2012, cannot be said to be not vacant."
Another judgment which needs to be noted is (2003) 7 SCC 270 Union of India Vs. R. Padmanabhan. In the said case, the respondents had claimed for reward in accordance with the guidelines issued by the Government for giving the rewards to the informants as well as the Government servants who are responsible for seizure under the Gold Control Act, 1968 and other statutes. The scheme of reward was modified from time to time. In the said case, seizure was made in the year 1989 on the basis of which respondents claimed the reward. The scheme was amended in April, 1989. In the above case, the apex Court laid down following in paragraph 8:
"8. ....The line of decisions relation to vested rights accrued being protected from any subsequent amendments may not be relevant for such a situation and it would be apposite to advert to the decision of this Court reported in State of Tamil Nadu v. Hind Stone and Ors. . That was a case wherein this Court had to consider the claims of lessees for renewal of their leases or for grant of fresh leases under the Tamil Nadu Minor Mineral Concession Rules, 1959. The High Court was of the view that it was not open to the State Government to keep the applications filed for lease or renewal for a long time and then dispose them of on the basis of a rule which had come into force later. This Court, while reversing such view taken by the High Court, held that in the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application, despite the delay, if any, involved although it is desirable to dispose of the applications, expeditiously. Therefore, the reward could not have been allowed in this case completely ignoring the amendments, which came into force in April 1989, merely because the seizure was in February 1989. That apart, under the Scheme final reward is postulated only on adjudication of the case resulting in confiscation of the goods as found stated in Clause 6 of the Guidelines and that should, therefore, be crucial and relevant date for consideration of award and, therefore, the Guidelines, as are in force on that date, will be really applicable and would relevant. Consequently, the exclusion of the amendment, which was made in April 1989, from consideration in this case, may not be proper, and the conclusion to the contrary by the High Court, cannot be sustained."
In (2006) 5 SCC 702 Kuldeep Singh Vs. Government of NCt of Delhi, similar issue came for consideration. Applications for grant of L-52 licences were invited. Subsequently, the policy decision was changed. Following was laid down in paragraphs 30 to 36.
"30. Unless, therefore, an accrued or vested right had been derived by the Appellants, the policy decision could have been changed.
31. What would be an acquired or accrued right in the present situation is the question.
32. In Director of Public Works and Another v. HO PO Sang and Others [(1961) AC 901], the Privy Council considered the said question having regard to the repealing provisions of Landlord and Tenant Ordinance, 1947 as amended on 9th April, 1957. It was held that having regard to the repeal of Sections 3A to 3E, when applications remained pending, no accrued or vested right was derived stating:
"In summary, the application of the second appellant for a rebuilding certificate conferred no right on him which was preserved after the repeal of sections 3A-E, but merely conferred hope or expectation that the Governor in Council would exercise his executive or ministerial discretion in his favour and the first appellant would thereafter issue a certificate. Similarly, the issue by the first appellant of notice of intention to grant a rebuilding certificate conferred no right on the second appellant which was preserved after the repeal, but merely instituted a procedure whereby the matter could be referred to the Governor in Council. The repeal disentitled the first appellant from thereafter issuing any rebuilding certificate where the matter had been referred by petition to the Governor in Council but had not been determined by the Governor."
[See also Lakshmi Amma alias Echuma Amma v. Devassy 1970 KLT 204.]
33. The question again came up for consideration in Howrah Municipal Corpn. and Others v. Ganges Rope Co. Ltd. and Others [(2004) 1 SCC 663] wherein this Court categorically held:
"The context in which the respondent Company claims a vested right for sanction and which has been accepted by the Division Bench of the High Court, is not a right in relation to "ownership or possession of any property" for which the expression "vest" is generally used. What we can understand from the claim of a "vested right" set up by the respondent Company is that on the basis of the Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the Court for its consideration, it had a "legitimate" or "settled expectation" to obtain the sanction. In our considered opinion, such "settled expectation", if any, did not create any vested right to obtain sanction. True it is, that the respondent Company which can have no control over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of its rule-making power, amended the Building Rules and imposed restrictions on the heights of buildings on G.T. Road and other wards, such "settled expectation" has been rendered impossible of fulfilment due to change in law. The claim based on the alleged "vested right" or "settled expectation" cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation against whom such "vested right" or "settled expectation" is being sought to be enforced. The "vested right" or "settled expectation" has been nullified not only by the Corporation but also by the State by amending the Building Rules. Besides this, such a "settled expectation" or the so-called "vested right" cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon."
34. In Union of India and Others v. Indian Charge Chrome and Another [(1999) 7 SCC 314], again this Court emphasized:
"The application has to be decided in accordance with the law applicable on the date on which the authority granting the registration is called upon to apply its mind to the prayer for registration"
35. In S.B. International Ltd. and Others v. Asstt. Director General of Foreign Trade and Others [(1996) 2 SCC 439], this Court repelled a contention that the authorities cannot take advantage of their own wrong, viz., delay in issuing the advance licence stating:
"We have mentioned hereinbefore that issuance of these licences is not a formality nor a mere ministerial function but that it requires due verification and formation of satisfaction as to compliance with all the relevant provisions"
36. In a case of this nature where the State has the exclusive privilege and the citizen has no fundamental right to carry on business in liquor, in our opinion, the policy which would be applicable is the one which is prevalent on the date of grant and not the one, on which the application had been filed. If a policy decision had been taken on 16.9.2005 not to grant L-52 licence, no licence could have been granted after the said date."
Sri Asthana, learned counsel for the petitioner has placed reliance on the apex Court judgment in State Bank of India Vs. Jaspal Kaur (supra). In the above case, the husband of the respondent, who was working as Record Assistant in the Bank died on 1.8.1999. The widow applied for compassionate appointment on 5.2.2000. On 7.1.2002, the bank declined the application. The order was challenged in the High Court. The High Court directed for reconsideration. The bank on reconsideration again declined taking into consideration the financial conditions of the family. Another writ petition was filed in the Punjab and Haryana High Court by the respondents, which was allowed. The apex Court in the said case had made observation that High Court erred in applying the scheme formulated on 4.8.2005 when her application was made in 2000. Following was laid down in paragraph 26:
"26. Finally in the fact situation of this case, Sri. Sukhbir Inder Singh (late), Record Assistant (Cash & Accounts) on 01.08.1999, in the Dhab Wasti Ram, Amritsar branch, passed away. The respondent, widow of Sri. Sukhbir Inder Singh applied for compassionate appointment in the appellant Bank on 05.02.2000 under the scheme which was formulated in 2005. The High Court also erred in deciding the matter in favour of the respondent applying the scheme formulated on 04.08.2005, when her application was made in 2000. A dispute arising in 2000 cannot be decided on the basis of a scheme that came into place much after the dispute arose, in the present matter in 2005. Therefore, the claim of the respondent that the income of the family of deceased is Rs. 5855/- only, which is less than 40% of the salary last drawn by Late Shri. Sukhbir Inder Singh, in contradiction to the 2005 scheme does not hold water."
The said judgment has no application in the present case. In the aforesaid case, scheme dated 4.8.2005 could not have been applied since the application was already rejected by the Bank on 7.1.2002 and thereafter again on 5.4.2004. Hence, the apex Court held that scheme dated 4.8.2005 was not applicable. In the above case, no such proposition was laid down that on the date of consideration, the scheme which was existing at the time of application should only be looked into. The apex Court itself had occasion to consider the above case of State Bank of India Vs. Jaspal Kaur (supra) in (2010) 11 SCC 661 State Bank of India and another Vs. Raj Kumar. In the said case, the respondent father died on 1.10.2004. Application was made in June 2005 requesting for appointment on compassionate ground. When the application was being processed and verified, compassionate appointment was substituted by SBI scheme of payment of ex-gratia Lumpsum Amount w.e.f. 4.8.2005. The new scheme abolished the compassionate appointment. In the said case, respondent had relied on observation of the State Bank of India Vs. Jaspal Kaur (supra). The said case was distinguished and apex Court held that the respondent was not entitled for consideration of her application on the basis of the scheme as prevalent on the date when the application was made. Following was laid down in paragraphs 16 to 19:
"16. In this case the employee died in October, 2004, the application was made only in June, 2005. The application was not even by the respondent, but by his mother. Therefore, it was necessary to ascertain whether respondent really wanted the appointment, whether he possessed the eligibility, and whether any post was available. Within two months of the application, the new scheme came into force and the old scheme was abolished. The new scheme specifically provided that all pending applications will be considered under the new scheme. Therefore it has to be held that the new scheme which came into force on 4.8.2005 alone will apply even in respect of pending applications.
17. The respondent relied upon the following observations in State Bank of India v. Jaspal Kaur - 2007 (9) SCC 571 to contend that he was entitled to be considered under the old scheme which was in force at the time of the application by his mother:
"26. Finally in the fact situation of this case, Sri. Sukhbir Inder Singh (late), Record Assistant (Cash & Accounts) on 01.08.1999, in the Dhab Wasti Ram, Amritsar branch, passed away. The respondent, widow of Sri. Sukhbir Inder Singh applied for compassionate appointment in the appellant Bank on 05.02.2000 under the scheme which was formulated in 2005. The High Court also erred in deciding the matter in favour of the respondent applying the scheme formulated on 04.08.2005, when her application was made in 2000. A dispute arising in 2000 cannot be decided on the basis of a scheme that came into place much after the dispute arose, in the present matter in 2005. Therefore, the claim of the respondent that the income of the family of deceased is Rs. 5855/- only, which is less than 40% of the salary last drawn by Late Shri. Sukhbir Inder Singh, in contradiction to the 2005 scheme does not hold water"
18.The said observations are read out of context by the respondent. In that case the Bank employee died on 1.8.1999. Application was filed by the widow on 5.2.2000. The case of the widow was considered twice and the request for appointment on compassionate grounds was declined by taking into consideration the financial position/capacity of the family. The High Court allowed the writ petition filed by the widow in 2004 on the ground that the terminal benefits of Rs.4,57,607/- received by the family were not sufficient for the sustenance of the family. In an appeal by the Bank, it was contended before this Court that in addition to Rs.4,57,607/- paid as terminal benefits, the widow was getting Rs.2055/- per month as family pension and that was not considered by the High Court. During the hearing before this court, the widow relied upon the new scheme dated 4.8.2005 and sought additional payment in terms of the scheme.
19. The above observations were made in the context of rejecting the widow's request for additional payment under the 2005 scheme. In fact, this court allowed the Bank's appeal and dismissed the writ petition filed by the widow for additional benefits. The said observations, cannot therefore be of any assistance to consider the applicability of the old scheme for compassionate appointment vis-`-vis the new scheme for ex- gratia payment."
The above case also clearly laid down that the right has to be considered on the date when the application is considered and the changed scheme has to be taken into consideration.
Sri C.B. Yadav, learned additional Advocate General has placed reliance on (2011) 6 SCC 725 Deepak Agarwal and another Vs. State of U.P. And others, where the apex Court had laid down that the rules which are prevalent at the time when consideration takes place for promotion has to be applied. Following was laid down in paragraphs 26 and 32:
"26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the `rule in force' on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah's case (supra) lays down any particular time frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it can not be accepted that any accrued or vested right of the appellants have been taken away by the amendment.
32. Similarly, this view has been reiterated by this Court in the cases of State of M.P. & Vs. Raghuveer Singh Yadav (supra), H.S. Grewal Vs. Union of India (supra) and Rajasthan Public Service Commission case Vs. Chanan Ram (supra). This Court in Rajasthan Public Service Commission's case (supra) has held that it is the rules which are prevalent at the time when the consideration took place for promotion, which would be applicable. In Para 17, it has been held as follows:
"In the case of State of M.P. v. Raghuveer Singh Yadav, a Bench of two learned Judges of this Court consisting of K. Ramaswamy and N. Venkatachala, JJ., had to consider the question whether the State could change a qualification for the recruitment during the process of recruitment which had not resulted into any final decision in favour of any candidate. In paragraph 5 of the Report in this connection it was observed that it is settled law that the State has got power to prescribe qualification for recruitment. In the case before the Court pursuant to the amended Rules, the Government had withdrawn the earlier notification and wanted to proceed with the recruitment afresh. It was held that this was not the case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered according to the rules then in vogue. The amended Rules had only prospective operation. The Government was entitled to conduct selection in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State was entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules. In the case of J&K Public Service Commission v. Dr Narinder Mohan9 another Division Bench of two learned Judges of this Court consisting of K. Ramaswamy and N.P. Singh, JJ. considered the question of interception of recruitment process earlier undertaken by the recruiting agency. In this connection it was observed that the process of selection against existing and anticipated vacancies does not create any right to be appointed to the post which can be enforced by a mandamus. It has to be recalled that in fairness learned Senior Counsel, Shri Ganpule for the respondent-writ petitioner, stated that it is not his case that the writ petitioner should be appointed to the advertised post. All that he claimed was his right to be considered for recruitment to the advertised post as per the earlier advertisement dated 5-11-1993 Annexure P-1 and nothing more. In our view, the aforesaid limited contention also, on the facts of the 32 present case, cannot be of any assistance to the writ petitioner as the earlier selection process itself had become infructuous and otiose on the abolition of the advertised posts, as we have seen earlier. The second point, therefore, will have to be answered in the negative in favour of the appellants and against the respondent-writ petitioner."
The law laid down by the apex Court as noted above thus, clearly indicates that unless there is any vested or accrued right in an applicant, the scheme as applicable on the date of consideration has to be applied. In the present case, mere submission of the application by the petitioner on 25.7.2005 for consideration of his case for grant of freehold right does not clothe him with any vested right. No freehold right accrued to the petitioner merely by making an application. The application was required to be processed and then decided by the State Government. During the pendency of the application, the State Government having abolished the scheme of grant of freehold right to unauthorised occupants, the petitioner cannot claim that the Government Order dated 4.8.2006 shall not be taken into consideration, while considering his application.
The Division Bench in Dr. O.P. Gupta's case has laid down that authority has taken long time for disposing of the application for making the land freehold and in the meantime, the policy stood amended, the cause of the applicant cannot be permitted to be negatived by any change in the policy. In Dr. O.P. Gupta's case the above observation was made by the Division Bench mainly on the ground of undue delay on the part of the authority since in the said case the application was made in 2002 and was rejected in 2008. In the present case, no unreasonable delay can be imputed to the authorities since the application submitted on 25.7.2005 was decided on 18.12.2006. However, since direction was issued by the Division Bench that application shall be considered in accordance with the scheme prevalent at the time of making of the application, the above law laid down by the Division Bench needs to be reconsidered.
The Nazul policy of the State issued from time to time and amended from time to time is important policy of the State and large number of applications are submitted in each district and an authoritative pronouncement on the above issue is necessary to clarify the law. In view of the above, following two questions need to be answered by larger Bench.
1. Whether the application of the petitioner dated 25.7.2005 submitted for grant of freehold right on the basis of the Government Order dated 1.12.1998 (Paragraph 7) and the Government Order dated 10.12.2002 (paragraph 5) was entitled to be considered in accordance with the Government policy as was in existence on the date of application or the Government policy as amended by Government Order dated 4.8.2006, was to be taken into consideration while deciding the application on 18.12.2006?
2. Whether the Division Bench judgment in Dr. O.P. Gupta Vs. State of U.P. 2009 (4) AWC 4038 lays down the correct law?
Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.
Order Date :- 28.5.2013 LA/-