Andhra HC (Pre-Telangana)
St. Joseph Educational Society, ... vs Government Of Andhra Pradesh And Ors. on 5 December, 2001
Equivalent citations: 2002(2)ALD53, 2002(2)ALT763, AIRONLINE 2001 AP 20
Author: N.V. Ramana
Bench: N.V. Ramana
ORDER N.V. Ramana, J.
1. This petitioner St. Joseph Educational Society, Kurnool (for short 'the Society'), represented by its Secretary-cum-Treasurer, has filed this writ petition questioning the Memorandum Roc. No. 110/ H/92-2 MA, dated 29-10-1992 issued by the 1st respondent-Secretary, Municipal Administration and Urban Development, Government of A.P., insofar as it relates to imposition of a condition that the petitioner-society should surrender the portion of the land, which is to be affected in the proposed 100 feet road widening programme as per the Master Plan of Kurnool Town, as illegal and arbitrary, and consequently to set aside the same.
2. Briefly stated, the facts of the case are as follows:
3. The petitioner-society for the purpose of establishing a Junior College, purchased agricultural land in an extent of Ac.6-81 cents in Sy Nos. 10/1 and 2 abutting Kurnool-Sunkesula road with compound wall, from M/s. U. Pratap and U. Shilpa under an agreement of sale, and took the possession thereof. As in the revenue records, the lands were shown as agricultural lands, the petitioner-society submitted an application to the respondents on 20-3-1991 seeking conversion of the land use from agricultural to residential, and also permit them to use the land for educational and' extra-curricular activities.
4. The 3rd respondent-Commissioner, Kurnool Municipality, vide his proceedings in Roc. No.5588/G1-E1 dated 29-1-1992 sent the representation of the petitioner-society, enclosing the resolution passed by the Municipal Council along with the remarks of the Town Planning Department to the 2nd respondent-Director of Town and Country Planning, Government of A.P., Hyerabad, with a request to forward the same to the 1st respondent. The 1st respondent, on receipt of the proposal, directed the 2nd respondent to obtain an undertaking from the land owners to the effect that they are prepared to surrender the land, which is likely to be affected in the 100 feet road widening programme, as per the approved master plan for the town, and send the same to the Government for taking necessary action in the matter.
5. The petitioner-society as well as the owners of the land without knowing the purport of the memo and the exact extent of the land that is likely to be affected in the 100 feet road widening programme, gave an undertaking to the effect that they will surrender the required land free of cost, without the knowledge and consent of the Managing Committee of the petitioner-society, in which the title and possession of the land is vested. Finally the Government vide its Memo No. 110/H/92-2 MA dated 29-10-1992 permitted the petitioner-society to change the land use from agriculture to residential use (educational purpose) subject to condition that the petitioner-society shall surrender the land that is likely to be affected under the road widening programme, to the Municipality free of cost. Basing on the abovesaid memo, the 2nd respondent vide his letter Roc.No. 1872/92/A7 dated 1-12-1992, while communicating his approval for change of user of the land, directed the 3rd respondent to obtain a registered gift deed from the petitioner-society in respect of the area likely to be affected under the road widening programme. Basing on the said directions, the 3rd respondent directed the petitioner-society to execute a registered gift deed conveying the land likely to be affected to the Municipality.
6. The petitioner-society on 15-4-1993, addressed a letter to the 3rd respondent requesting him to intimate the extent of land the petitioner-society has to gift. The 3rd respondent in his endorsement in Roc.No. 5588/9/G1 dated 17-4-1993 informed that the petitioner-society that they should hand over a site admeasuring 324' x 24' equivalent to 8110 sft. or 900 square yards i.e., 1/4th acre. As the cost of the land was more than Rs. 2,80,000/- the petitioner-society addressed a letter to the 4th respondent seeking clarification as to under what provision the land should be surrendered free of cost so as to enable the petitioner-society to place the same before the Managing Committee of the society for its approval. Subsequently the Managing Committee of the petitioner-society on 28-4-1993 passed a resolution, resolving that the request of the respondents to surrender the land is not backed with any statutory authority or provision, and that the undertaking given by the petitioner-society and the land owners is not binding on the society as the society has not passed any resolution to surrender the land free of cost. The same was conveyed to the 3rd respondent by letter dated 29-4-1993. Without considering the said letter, the 4th respondent in his endorsement Roc.No.5588/ 91/G1 dated 26-8-1993 again directed the petitioner to hand over the site to the Municipality by executing a registered gift deed.
7. Since the 3rd respondent did not grant permission for construction of the building, the petitioner-society after expiry of the statutory period for grant of permission constructed pucca building and also renovated the compound wall. The 4th respondent vide proceedings Roc.No.5588/ 91/G1 dated 15-4-1994 informed that if the petitioner fails to hand over the affected portion of the land, the compound wall constructed by the petitioner-society will be removed without any further notice. Questioning the above proceedings, the petitioner-society filed suit OS No.304 of 1994 on the file of the District Court, Kurnool seeking permanent injunction restraining the 3rd respondent and his subordinates from demolishing the compound wall. Pending disposal of the suit, the District Court granted ad-interim injunction in IA No. 335 of 1994 dated 2-5-1994, which is still subsisting.
8. The petitioner-society aggrieved by the orders passed by the la respondent in Memo No. 110/H/92-1 MA, dated 27-4-1992 and Memo No. 110/H/92-2-M, dated 29-10-1992 directing the petitioner to surrender the portion of the land likely to be affected in 100 fee road widening programme as per the master plan, free of cost, the present writ petition is filed.
9. The 2nd respondent-Director of Town Planning, has filed counter-affidavit on behalf of the respondents denying the claim made by the petitioner-society. It is stated that the petitioner-society first submitted an unregistered General Power of Attorney given by M/s. U. Pratap and U. Shilpa stating that the land owners have authorised the petitioner-society to seek conversion of the land use from agricultural to residential (educational purpose), that the petitioner's request for change of land use was forwarded by the 3rd respondent vide his letter No. 5588/91/G1 dated 7-9-1991 to the Government through the 2nd respondent. Thereafter, the 2nd respondent forwarded the proposals for the change of land use to the 1st respondent by his letter Rc.Noc.No. 1872/92A7 dated 15-2-1992 stating that the petitioner-society's site is affecting to a width of 25' in road the road widening and requested the 1st respondent to consider the change of land use from agricultural to residential subject to the condition that the petitioner-society has to hand over the portion of the land likely to be affected by the widening of Sunkesula-Kurnool road, to the Municipality free of cost. The first respondent in Memo No. 110/ H/92-1 MA dated 27-4-1992 requested the second respondent to obtain a 'No objection Certificate' from the land owners and also obtain an undertaking that they are prepared to surrender the portion of the land that is likely to be affected by the road widening programme as per the master plan, for taking further action. The petitioner, vide its letter dated 19-6-1992, obtained an undertaking from the landowners to surrender the land likely to be affected in road widening programme. The said undertaking was forwarded to the 1st respondent. The 1st respondent agreed to the change of land use from agricultural to residential and further requested to furnish draft variations.
10. It is denied by the respondents that the land owners gave the underking without the knowledge and consent of the Managing Committee of the petitioner-society. It is contended that in fact the petitioner has applied for change of land use for agricultural to residential on behalf of the society and under the seal of the Secretary and Treasurer of the petitioner-society. Apart from that, the petitioner himself has obtained and submitted the consent letter from the landowners for handing over the land that is to be affected by the road widening programme. The respondents contend that the petitioner is misleading the Court by introducing the so-called Managing Committee and its resolution dated 28-4-1993. It is stated that when the proposals for change of land use were under consideration, the question of permitting the petitioner-society to construct a building in the said land does not arise unless and until the said proposals are approved by the Government, confirming the draft variation.
11. Sri A. Satya Prasad, the learned Counsel appearing on behalf of the petitioner submitted that the respondents have no power or authority under the Andhra Pradesh Town Planning Act, 1920 (for short 'the Act'), to impose conditions to surrender the land in lieu of granting permission for change of land use. The learned Counsel would submit that if the 3rd respondent acquires any land for public purpose without paying any cost, it would violate the provisions of Section 33 of the Act. He further submits that there is no provision in the Act, which enables the authorities to take any land for public purpose free cost. The learned Counsel, in support of this contention, placed reliance upon the decision of the apex Court in Pt. Chef Ram Vashist v. Municipal Corporation of Delhi, , and the decision of this Court in Estate Officer, HUDA v. Talari Gangamma, 1996 (2) ALD 48.
12. The learned Counsel for the petitioner further submitted that the petitioner-society never agreed to gift the land free of cost. Placing reliance on the memo dated 27-4-1992, the learned Counsel submitted that in the said memo it is only mentioned that the 2nd respondent was requested to obtain 'No Objection Certificate' from the land owners and submit that the same to the Government. The 2nd respondent was also requested to obtain an undertaking from the land owners that they are prepared to surrender the land likely to be affected in the 100' wide road widening programme, as per the master plan and send the same to the Government for taking necessary action in the matter. The learned Counsel submitted that a perusal of the Government Memo, dated 27-4-1992, would clearly disclose that the Government only directed the surrender of land, and it is nowhere stated that the land should be surrendered free of cost. For the first time, the Government vide its second Memo dated 29-10-1992, requested the petitioner to surrender the land to the Municipality free of cost. He, thus submitted that the impugned order be set aside.
13. Sri Y. Rama Rao, the learned Government Pleader for Housing and Municipal Administration, placing reliance upon section 15 of the Act contended that a town planning scheme sanctioned under Section 14 thereof may, at any time, be varied or revoked by a subsequent scheme, published and sanctioned in accordance with the provisions of the Act. As per Section 15 of the Act, for effecting any change or modification in the scheme, the respondents are competent to invoke the provisions of Section 4(d) of the Act, which reads as under
The acquisition by purchase, exchange or otherwise, of any land or other immovable property within the area included in the scheme whether required or not.
14. He submitted that the word 'otherwise' in the above provision, would mean by way of 'gift' also.
15. The learned Government Pleader submitted that the petitioner has filed application under Section 15 of the Act for modification of the scheme i.e., change of land use, and the respondents are competent to deal with the matter in terms of Section 15(1) read with Section 4(d) of the Act.
16. The sum and substance of the argument of the learned Government Pleader is that in the process of modification of any scheme i.e., change of land use, the respondents can direct the land owners, who are seeking benefit of modification under Section 15 of the Act, to surrender the land by reading the word 'otherwise' appearing in Section 4(d) of the Act.
17. The learned Government Pleader contended that even though the matter relating to change of land use was under consideration before the Government and even before the final draft notification was issued, the petitioner constructed the building in violation of the provisions of the Act. The learned Government Pleader further contended that the petitioner-society itself having given an undertaking that they would surrender the land to the Government free of cost, is estopped from pleading ignorance. He would further contend that the petitioner-society having agreed to surrender cannot now be permitted to approabate and reprobate, and in support of this contention, he placed reliance upon the decisions of the Supreme Court in State of M.P. v. Bindal Agro Chemical Limited, and R.N. Gosain v. Yashpal Dhir, .
18. On 20-3-1991, the petitioner-represented by its Secretary-cum-Treasurer, filed an application before the 1st respondent seeking permission for conversion of the land use from agricultural to residential, and pending such consideration, prayed for grant of permission to construct and develop the land for educational purpose. A reading of the contents of the said application would indicate that the petitioner on behalf of the educational institution proposed to purchase the land in S.No. 10/2 on Sunkesala Road admeasuring Ac.6-81 cents in two parts and entered into an agreement with the owners of the land, and though the lands has not fully been registered in the same of the society, the possession thereof has been given to the petitioner-society, and because of dire necessity of providing play ground, the petitioner requested the 1st respondent to accord permission for changing the land use. The above representation, which was forwarded by the 2nd respondent to the 1st respondent, and by Memo No. 110/H/92-1 MA dated 27-4-1992, he directed the 2nd respondent to obtain No Objection Certificate from the land owners and an undertaking that they are prepared to surrender the land.
19. In pursuance of the above memo, the owner of the land submitted a Certificate of Undertaking dated 18-6-1992 on a stamped paper which reads as follows:
The land in Survey No. 10/2 of Roza village in Kurnool Municipal limits stands in my name. I have applied for conversion of land from agricultural to residential purpose (educational). I have no objection to surrender the required space of 100 feet width for the master plan road. I undertake to deliver possession of the required land for the said road whenever I am directed to do so at free of cost.
20. The owner of the land also appointed the petitioner-society as his Power of Attorney holder to seek conversion of land use. Subsequently the Government vide Memo No. 110/H/92-2, MA, dated 29-10-1992 agreed to change of land use in S.No. 10/2 from agricultural to residential (educational purpose) subject to the condition that the portion of the land that is to be affected by the road widening programme, should be handed over to the Municipality free of cost and directed to send the draft variations and schedule of boundaries for taking further action in the matter. The 2nd respondent intimated the same to the 3rd respondent and directed to send registered gift deed for the area that is going to be affected by the road widening programme to the Government. At this point of time, the petitioner vide letter dated 15-4-1993 addressed to the 3rd respondent, stated that they are unable to understand how a valuable piece of land should be handed over free of cost to the Municipality as a gift in order to obtain permission for using agricultural land for constructing a building for educational purpose and on the very same day, the petitioner-society addressed another letter to the 3rd respondent to intimate the petitioner as to how much extend of land has to be gifted by the petitioner to the Municipality for widening of the road. In response to the said letters, the 3rd respondent by his letter dated 17-4-1993 intimated the petitioner society that it has to surrender a site admeasuring 324' x 25' = 8110 sft. or 900 sq.yards. On 28-4-1993 a resolution was passed by the Managing Committee of the petitioner-society stating that it is not possible for the society to surrender the land, as the land is a valuable one. The resolution stated that the undertaking given by the previous owners and/or the Secretary and Treasurer of the petitioner-society to surrender the land free of cost to the Kurnool Municipality is without its knowledge and consent, and as such, is not binding on the society. The resolution further directed the Secretary and Treasurer of the Society, to correspond with the concerned authorities. Finally on 15-4-1994 the 3rd respondent directed the society to hand over the portion of the land affected by the road widening programme as per the master plan, as otherwise the compound wall constructed by the petitioner will be removed without further notice.
21. The entire correspondence reveals that initially the petitioner-society, represented by its Secretary and Treasurer, and the owner of the land were willing to surrender the land. This is clear from the Certificate of Undertaking given by the owner of the land as well as the petitioner. It seems, subsequently the petitioner-society retracted from its stand having regard to the appreciating value of the land. The stand of the petitioner-society is contrary to the undertaking given by the owner of the land as well as the Secretary and Treasurer of the petitioner society. The contention of the learned Counsel for the petitioner that the society has no knowledge about the undertaking given by the Secretary and Treasurer of the society and the owner of the land, cannot be accepted. From the material papers filed by the petitioner before this Court, it is not clear as to in whom the ownership of the property is vested. I fail to understand, as to how the petitioner-society even before registration of the property in its name, can make an application seeking conversion of land use and construct a building without obtaining permission. That apart, the Managing Committee of the petitioner society in its resolution dated 28-4-1993 discussed the subject-matter, and it is nowhere stated in the minutes of the meeting that they have taken action against the Secretary and Treasurer of the society for giving undertaking to surrender the land free of cost without its knowledge. On the other hand, it directed the very same Secretary and Treasurer to further correspond with the concerned authorities. In my opinion, the resolution has been passed only with an intention to circumvent the undertaking dated 18-6-1992, given by the Secretary and Treasurer of the petitioner-society. The undertaking dated 18-6-1992, given by the Secretary and Treasurer of the society, in my opinion, is a valid undertaking and it binds the petitioner society.
22. The Memo No. 110/H/92-1, MA, dated 27-4-1992, issued by the 1st respondent reads:
The attention of the Director, Town and Country Planning, Hyderabad is invited to the reference cited. He is requested to obtain no objection certificate from the land owners and submit the same to Government. He is also requested to obtain an undertaking from the land owners that they are prepared to surrender the land affected in 100' wide Master Plan road and send the same to Government for taking necessary further action in the matter.
23. A reading of the memo coupled with the act of the petitioner giving an undertaking, would clearly go to show that the petitioner has voluntarily surrendered the land. The petitioner having agreed to surrender the land, cannot now be allowed to plead ignorance or lack of knowledge, and is estopped from taking such a plea.
24. The submission of the learned Counsel for the petitioner that the respondents cannot interfere with the possession of the petitioner having regard to the fact that ad-interim injunction granted by the District Court is still subsisting, cannot be accepted because it is brought to my notice by the learned Government Pleader that the District Court disposed of the main suit itself basing on the evidence and material produced before it. Therefore, no finding need be given on this aspect of the matter.
25. Coming to the legal submission made by the learned Counsel for the petitioner that the Government has violated the provisions of Section 33 of the Act relating to acquisition of immovable property for public purpose, I am of the opinion that the said provision would be applicable only in respect of the cases where the respondents want to notify any town planning schemes, and it does not apply to the schemes which are initiated at the request of private individuals. In the instant case, the petitioner has requested for modification of the scheme for its benefit i.e., change of land use from agricultural to residential, and as such, it cannot be said that the respondents have acted in violation of the provisions of Section 33 of the Act.
26. The submission of the learned Counsel for the petitioner that the respondents have no power or authority under the Act to impose a condition to surrender the land is lieu of granting permission for change of land use, is a matter which need not be gone into because the question has become academic in view of the fact that the petitioner voluntarily and on its own accord agreed to handover the land. In A.P. Power Diploma Engineers' Association v. APSEB, 1995 (3) ALD 501, and Government of A.P. v. Medwin Educational Society, , two Full Benches of this Court held that in exercise of its jurisdiction under Article 226, this will not decide academic issues.
27. The submission of the learned Counsel for the petitioner, that the land has to be acquired only in terms of Section 33 of the Act, and any direction by the respondents to surrender the land without paying any costs, would be in violation of Section 33 of the Act, cannot also be accepted. Under Section 33 of the A.P. Town Planning Act, property required for the purpose of a Town Planning Scheme shall be deemed to be land intended for a public purpose within the meaning of the Land Acquisition Act and may be acquired--
(a) under the said Act;
(b) under the said Act as modified in the manner provided in Chapter VI of the said Act, 1920.
28. Section 33 of the Act deals with compulsory acquisition of land and not voluntary surrender. A distinction has to be made between compulsory acquisition and voluntary transfer of land. The Supreme Court in Sunder v. UOI, 2001 (6) Scale 405, held that compulsory nature of acquisition is to be distinguished from voluntary sale or transfer. In the latter case, the land owner has the widest advantage in finding out a would be buyer and in negotiating with him regarding the sale price. The owner is free to settle terms of transfer and choose the buyer as also to fix a date or time when he would be receiving consideration and parting with his title and possession over the land. But, it compulsory acquisition the land owner is deprived of the right and opportunity to negotiate and bargain for the sale price. Section 33 of the Act deals only with compulsory acquisition and not voluntary transfer. There is nothing in the Act, which prohibits voluntary transfer of land.
29. The submission of the learned Counsel for the petitioner that there is no estoppel against a statute has no application to the facts of the present case, cannot be accepted. This principle has been explained by the apex Court in C. Vasantkumar Radhakisan Vora v. Board of Trustees of the Port of Bombay, . In paragraph 12, it held:
It is equally settled that the promissory estoppel cannot be used compelling the Government or a public authority to carry out a representation or a promise which is prohibited by law or which was devoid of the authority or power of the officer of the Government or the public authority to make. We may also point out that the doctrine of promissory estoppel being an equitable doctrine, it must yield place to the equity, if larger public interest so requires and if it can be shown by the Government or public authority, for having regard to the facts as they have transpired that it would be inequitable to hold the Government or public authority to the promise or representation made by it. The Court on satisfaction would not, in those circumstances, raise the equity in favour of the persons to whom a promise or representation is made and enforce the promise or representation against the Government or the public authority.
30. As has been held by the Apex Court, the principle of there being no estoppel against a statute applies in cases where the Government or public authority is compelled to carry out promises prohibited by law. This principle has no application to the facts of the present case, since there has been no promise made by the Municipality to the petitioner contrary to law. Reliance placed by the learned Counsel for the petitioner upon the decision of the Apex Court in A.C. Jose v. Sivan Pillai, , and Indira Bai v. Nand Kishore, , in support of his submission that there is no estoppel against a statute, is therefore, not applicable to the facts of the present case. While Fundamental Rights cannot be waived, there is no prohibition against waiver of rights conferred by statutes which are not based on public policy or which do not contain any bar of waiver. For instance, Section 17 of the Workmen's Compensation Act, 1923 and Section 25 of the Minimum Wages Act, 1948 prohibit contracting out, i.e., any agreement whereby the rights conferred under these Acts are waived, are deemed to be null and void. There is no such prohibition of contracting out under the Act. The petitioner, having voluntarily surrendered his land, has waived his right to seek compensation under Section 33 of the Act.
31. Reliance placed by the learned Counsel upon the judgment of the apex Court in Pt. Chet Ram Vashist v. Municipal Corporation of Delhi, , and the judgment of the Division Bench of this Court in Estate Officer, HUDA v. Talari Gangamma, 1996 (2) ALD 48, in support of his submission that the respondents have no power to impose any condition to surrender the land, have also no application to the facts of the present case.
32. In Pt. Chet Ram Vashist, the question which arose for consideration by the Supreme Court was whether the Municipal Corporation of Delhi could, in the absence of any provision in the Delhi Municipal Corporation Act, 1957, sanction plans for building activities with conditions that the open space for parks and schools be transferred to the Corporation free of cost. The Supreme Court, on an interpretation of the provisions of the Act, held that no such condition could be imposed before sanctioning the layout plan. In the present case, the petitioner has voluntarily surrendered his land, and as such the question whether the Municipality has the power to impose condition or not, has become academic, and need not be adjudicated upon, and is left open for decision in an appropriate case.
33. Similarly, the judgment of the Division Bench of this Court in Talari Gangamma, also has no application to the facts of the present case. In Talari Gangamma, the question which arose for consideration by the Division Bench is that when 4(1) notification, issued under the Land Acquisition Act, is quashed by the High Court, at the instance of some land owners, is it permissible for the other land owners, whose lands were covered by the same notification, but who had participated in the enquiry under Section 5-A of the Act and in respect of whom awards had been passed, to come before the High Court under Article 226 of the Constitution after lapse of several years to seek quashing of acquisition proceedings in respect of other lands and restoration of possession of other lands. In the instant case, the petitioner voluntarily transferred the land. The land of the petitioner was not acquired by invoking the compulsory provision, and as such, the judgment of the Division Bench of this Court in Talari Gangamma, cannot be said to have any application to the facts of the instant case.
34. As rightly contended, by the learned Government Pleader, appearing on behalf of the respondents, the doctrine of approbation and reprobation applies to the facts of the present case. In R.N. Gosain v. Yashpal Dhil, , the Hon'ble Supreme Court held:
Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage.
35. This doctrine prohibits a party who I has obtained some advantage, by virtue of a transaction, to contend that the advantage I obtained by him is valid one but, the said transaction is void for the purpose of securing some other advantage. Having voluntarily surrendered land for obtaining the immediate benefit of conversion, the petitioner cannot now turn round and say that the Municipality could not take the land voluntarily surrendered by the petitioner.
36. As per the provisions of Sections 14, and 15 of the Act, the Municipal Council is competent to modify the scheme after approval of the State Government. According to the said provision, whenever there is a the Municipal Council can pass a resolution and request the Government for its approval of any variation or change of the schemes. In this case, the Municipality has passed a resolution requesting the Government to change the land use. If the Government requires any land for public purposes, certainly they have to follow the procedure contemplated under Section 33 of the Act. The present case is not one of compulsory acquisition, but is a case of voluntary transfer.
37. In view of the said position, I see no reason to interfere in the matter. I also find that there is no illegality or arbitrariness in the conditions imposed by the respondents directing the petitioner to surrender the portion of the land that is likely to be affected in 100 feet road widening programme, as per the Master Plan of Kurnool Town. The writ petition fails, and is accordingly dismissed. No costs.