Madhya Pradesh High Court
M/S Narmada Ginning And Pressing ... vs The State Of Madhya Pradesh on 27 October, 2021
Author: Sanjay Dwivedi
1
W.P. No.7460/2020
THE HIGH COURT OF MADHYA PRADESH
JABALPUR
W.P. No.7460/2020
M/s Narmada Ginning and Pressing Factory, Harda
Versus
State of Madhya Pradesh and others
Date of Order 27.10.2021
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay
Dwivedi, J.
Whether approved for Yes
reporting
Name of counsels for For Petitioner : Shri Ravish
the parties Agrawal, Senior Advocate with
Shri Sanjay Agrawal,
Advocate.
For Respondent Nos.1 and
2/State : Shri Pushpendra
Yadav, Additional Advocate
General.
For respondent No.3: Shri
R.N. Singh, Senior Advocate
with Shri Akshay Pawar,
Advocate.
Law laid down 1. In a petition filed under
Article 226 of the Constitution
of India, High Court must issue
a writ of mandamus and give
directions to compel
performance in an appropriate
and lawful manner of the
discretion conferred upon the
government or a public
authority. If it is found by the
High Court in appropriate
case, an order is required to
prevent injustice to the parties
direction can be issued to the
government or the public
2
W.P. No.7460/2020
authority to pass an order, had
it properly and lawfully
exercised its discretion.
2. The party cannot put to
suffer owing to any
administrative lapse on the
part of the government or
public authority when there is
no fault on its part.
3. Under the provisions of
M.P. Municipal (Achal
Sampatti Antran) Rules, 2016,
the Chief Executive Officer,
Municipal Council is only the
competent authority as per
sub-rule (4) of Rule 20 to
convert the lease hold rights
into free hold rights, but not
the State Government.
4. Order passed by the
authority without jurisdiction
and suffers from corum non
judice, is a nullity.
Significant Para Nos. 14, 34 and 35
Reserved on : 06.09.2021
Delivered on : 27.10.2021
O R D E R
(27.10.2021)
This petition is filed under Article 226 of the
Constitution of India challenging the order dated
16.03.2020 (Annexure-P/10) passed by respondent No.3
whereby the petitioner has been asked to return back the
land to respondent No.3 which was allotted to the
petitioner on lease for a period of 30 years i.e. from
01.04.1989 to 31.03.2019.
W.P. No.7460/2020
2. By urging multifarious grounds assailing the
action of the respondents, the petitioner has sought
following reliefs:-
"(i) That, this Hon'ble Court be pleased to call for
the entire record leading to issuance of the
impugned communication/letter dated
16.03.2020 (Annexure-P/10) from the
Respondent No.3.
(ii) That, this Hon'ble Court be pleased to set
aside the impugned communication/letter
dated 16.03.2020, passed by the Respondent
No.3, contained in Annexure-P/10.
(iii) That, this Hon'ble Court be further pleased to
direct the respondents to decide the
petitioner's application (Annexure-P/8) for
conversion of land in question from lease hold
into free hold within the specified time frame.
(iii-a) The impugned orders dated 12.05.2020
passed by respondents No.2 & 3 contained in
Annexures-P-11 & P-12 respectively be set
aside.
(iii-b) The possession of the property in question be
directed to be restored to the petitioner.
(iii-c) That, the Resolution No.1014 dated
16.10.2019 of the Municipal Council, Harda
(Respondent No.3) contained in
Annexure-R-3/7 be set aside.
(iv) That, this Hon'ble Court be further pleased to
directed the respondents not to take
possession of the land in question from the
petitioner even if an application for conversion
of land from lease hold land to free hold is
rejected by the respondents as the petitioner
has a right to submit an application for renewal
of lease in accordance with Clauses-3 and 12
of the lease deed dated 16.08.1989
(Annexure-P-2), Rule 17 of Rules of 2016
(Annexure-P-5) and order dated 01.08.2016
passed by Hon'ble Division Bench of High
Court in Writ Appeal No.459/2009 and if such
an application is submitted the same is
required to be considered by the respondent
No.3.
(v) That, any other relief which this Hon'ble Court
deems fit and proper in the facts and
W.P. No.7460/2020
circumstances of the present matter be also
granted to the petitioner.
(vi) Cost of the petition."
3. To resolve the controversy involved in the case
necessary facts are required to be taken note of which in
a nutshell are;
(3.1) That the petitioner is a registered partnership firm,
which was registered in the year 1983 in the
name & style "M/s Narmada Ginning & Pressing
Factory" and is engaged in the business of
Ginning and Pressing of Cotton and also Dal &
Oil Mills. The petitioner-firm have three units
located over the land of different khasras i.e.
Khasra Nos.58/1, 58/2 and 58/11, total area
around 8.95 acres. This land has been purchased
by the petitioner through six different registered
sale-deeds dated 09.01.1953, 12.03.1953,
13.05.1953, 30.05.1953, 06.07.1953 and
01.02.1953. Adjoining to the aforesaid land,
Khasra No.56 having an area of 6.43 acres
belonging to respondent No.3 (Municipal Council,
Harda) was situated and the petitioner since
interested to construct godown and residential
quarters for its labourers on the said land,
therefore, they moved an application for granting
W.P. No.7460/2020
lease in respect of the said land to respondent
No.3 in the year 1966.
(3.2) The lease was granted to the petitioner for 6.43
acres of land which is a part land of Khasra No.56
situated at Village Kulharda, Tehsil & District
Harda in the year 1966. In the present case, the
dispute is in respect of the land situated over
Khasra No.56, area measuring 6.43 acres and as
such, hereinafter it is referred to as "the land in
question".
(3.3) Initially, the lease was year-to-year basis till 1975,
then in the year 1975, the petitioner was granted
lease for a period of 3 years and that situation
continued till 1989.
(3.4) An agreement was also executed between the
petitioner and respondent No.3 for permanent
lease on 27.07.1989 (Annexure-P/2) and that was
granted to the petitioner for business purpose for
a period of 30 years commencing from
01.04.1989 to 31.03.2019. Thereafter, a
registered lease-deed dated 16.08.1989
(Annexure-R-3/2) was executed for a period of 30
years with the following stipulations:-
W.P. No.7460/2020
"1- pwafd mDr Hkwfe dks iVzVkxzkfgrk vius O;olk; ds fodkl ds
gsrq jsaV ij ysus bPNqd gSa rFkk iVzVknkrk mls iVzVs ij nsus
dks lger gS A
2- ;g fd mDr iVzVs dh vof/k 30 o"kZ dh gS tks fnukad1-4-1989
ls ikzjaHk gksdj fnukad 31-3-2019 rd jgsxh rFkk iVzVkxzkfgrk
ds fuosnu ij vksj vkxs 99 o"kZ rd fy;s uohuhdj.k ;ksX;
jgsaxh A
3- ;g fd iVzVkxzkfgrk iVzVs ij yh tehu ij vius m|ksx
iz;kstu gsrq fo/kor fuekZ.k djk ldsxk A"
(3.5) Thereafter, certain dispute arose between the
petitioner and the respondents in respect of
renewal of lease, then the petitioner filed a
petition i.e. W.P. No.4918/2009 before this Court
which faced dismissal on 13.05.2009
(Annexure-P/4).
(3.6) Aggrieved thereof, a writ appeal was preferred
against the order of dismissal of writ petition,
which was numbered as W.A.No.459/2009.
During the pendency of said writ appeal, the State
Government in exercise of powers conferred
under Section 80 read with Section 433 of
Madhya Pradesh Municipal Corporation Act, 1956
and Section 109 read with Section 355 of the
Madhya Pradesh Municipalities Act, 1961 has
framed Rules known as M.P. Municipal (Achal
Sampatti Antran) Rules, 2016 (for short "2016
Rules") in which a provision has been made for
W.P. No.7460/2020
renewal of lease as also for conversion of lease-
hold land into free-hold land as per rules.
(3.7) In the said writ appeal, an application was filed by
the petitioner for settlement of the controversy
involved and referred therein stating that the
petitioner would file an application for renewal of
lease and would also file an application for
conversion of lease-hold land into free-hold land
because during the pendency of writ appeal, the
State Government has framed rules for
converting the lease-hold land into free-hold land.
(3.8) The writ appeal was finally allowed and disposed
of by the Division Bench vide order dated
01.08.2016 (Annexure-P/7) with the following
observations:-
"3. Shri P.K. Kaurav, learned counsel for the
Municipal Corporation fairly submits that if the
appellant submits a fresh application for
renewal of lease and after taking note of the
Madhya Pradesh Municipal (Achal Sampatti
Antran) Rules, 2016, if this Court directing the
Municipal Corporation, Harda to consider the
proposal/ application of the petitioner, the
Municipal Corporation would have no
objection in doing so.
4. In view of the aforesaid, we allow this appeal
in part. The impugned order passed by the
writ Court dated 13.05.2009 passed in Writ
Petition No.4918/2009 is quashed and the writ
appeal stands disposed of with following
directions:
W.P. No.7460/2020
(i) The appellant would submit fresh
application for renewal of lease and the
same may be considered by the
Municipal Council, Harda.
(ii) That, the State Government has recently
issued a Gazette Notification dated
24.02.2016 framing rules, namely
Madhya Pradesh Municipal (Achal
Sampatti Antran) Rules, 2016, which
provides for renewal of lease as also
conversion of lease hold lands into free
hold land. The petitioner may be
permitted to submit an application for
conversion of lease hold land into free
hold land on payment of charges as
specified by the aforesaid rules which
may be considered by Council, Harda
and other concerned authorities in
accordance with the Rules."
From the order, it is clear that the writ appeal was
disposed of with a proposal submitted by the
counsel for respondent No.3.
(3.9) In pursuance to the aforesaid order of Division
Bench passed in writ appeal, the petitioner
submitted an application in the prescribed format
for conversion of lease-hold land into free-hold
land on 24.05.2018. Respondent No.3 in
accordance with the rules framed for conversion
of lease-hold land into free-hold processed the
application; made publication of proposals in
newspapers affixing at conspicuous places;
invited objections and thereafter while deciding
the same, recommended for conversion of the
aforesaid land from lease-hold to free-hold to the
W.P. No.7460/2020
State Government by a letter dated 17.07.2018
(Annexure-P/9). The relevant extract of the
recommendation is reproduced hereinbelow:-
"............e-iz- jkti= esa mYysf[kr vuqlkj lekpkj i=ksa esa
tkfgj lwpuk dk izdk'ku fd;k x;k ,oa LFkkuh; Lrj ij Hkh lwpuk
dh pLik dh xbZ izfr layXu gS A mDr Hkwfe dks QzhgksYM ij nsus
gsrq pkj O;fDr;ksa }kjk fyf[kr vkifRr is'k dh xbZ A ftudk
fujkdj.k fd;k tkdj lacaf/krks dks lwfpr fd;k x;k gS A mDr
vkifRr;ka ,oa mudk fujkdj.k izdj.k ds lkFk layXu gS A"
(3.10) As per the provisions mentioned in the 2016
Rules, the entire exercise for conversion of land
was required to be completed as far as possible
within 120 days but that was not done and no
decision was taken by the authorities on the
pending application of the petitioner and in the
meantime the period of lease got expired on
31.03.2019, whereas the application for
conversion was already submitted by the
petitioner on 24.05.2018 (on that date lease was
subsisting).
(3.11) The respondents thereafter sent a letter to the
petitioner, which is impugned communication
dated 16.03.2020 (Annexure-P/10), asking
petitioner to deliver the possession of the land in
question as period of lease has expired.
W.P. No.7460/2020
(3.12) The petitioner then preferred this petition
challenging the action of the respondents mainly
on the ground that on the date of submitting the
application for conversion of lease-hold land into
free-hold land, the lease was alive and in sub-rule
(6) of Rule 20 of 2016 Rules it is provided that the
authorities shall finally decide the application as
far as possible within a period of 120 days and
the said decision had to be taken by the Chief
Executive Officer, but if final decision is not taken
within the specified period and lease got expired
during the pendency of the said application, the
petitioner cannot be left to suffer due to inaction
or delay and laches on the part of the
respondents/authorities.
4. The petitioner has relied upon umpteen
decisions saying that the action of the authorities is
completely illegal and arbitrary because it was the
authority which has kept the matter pending for long,
whereas as per the statute, the application for conversion
of lease-hold land into free-hold land was to be decided as
far as possible within 120 days.
5. After filing of the petition, the petitioner received
an order dated 12.05.2020 (Annexure-P/11) wherein it was
W.P. No.7460/2020
informed that the application has been rejected by
respondent No.2. The order reveals that a three member
Committee was constituted for investigating the affairs of
the petitioner and giving the following reasons, the
application has been rejected.
"(i) Council had cancelled its earlier resolution
No.1042 dated 24.08.2016 by subsequent
resolution No.1014 dated 16.10.2019.
(ii) The period of lease has expired on 31.03.2019
and the same has not been renewed in
accordance with the rules.
(iii) That the land in question is not being used for
the purpose for which it was allotted."
6. As per the petitioner, neither they were informed
about the constitution of any such Committee nor were
they given an opportunity of hearing. According to the
petitioner, the members of the said Committee never
visited the land in question physically nor issued any
notice to the petitioner to remain present on spot when
they inspected the land and even a copy of the report of
the Committee has never been supplied to the petitioner.
As per the petitioner, that report was illegal as it has been
prepared in violation of principle of natural justice and
based upon the material collected unilaterally behind the
back of the petitioner.
7. The petitioner again received a letter dated
12.05.2020 (Annexure-P/12) from the office of respondent
W.P. No.7460/2020
No.3 for delivery of possession of the land in question to
respondent No.3.
8. In pursuance to the said letter dated
12.05.2020, respondent No.3 has forcibly taken
possession of some of the portion of the land in question
and as per the petitioner, the said possession could not
have been taken because the Division Bench in W.P.
No.6062/2020 and connected petitions has passed an
order dated 20.03.2020 (Annexure-P/13) restraining the
authorities from dispossessing anybody during COVID
epoch. The petition was accordingly, amended and the
action of the respondent/authority whereby they have
issued the notice of dispossession to the petitioner from
the land in question has also been challenged.
9. As per the petitioner, they have been using the
land for the past 55 years on the basis of valid lease
executed in their favour, therefore, the impugned orders,
according to the petitioner, are arbitrary, illegal and without
any jurisdiction.
10. Respondent Nos.1 and 2 have filed their reply,
supported their stand and stated that the possession of the
land by the petitioner is unlawful. It is stated by them that
the possession has been taken by the State Government
W.P. No.7460/2020
on the basis of report of Enquiry Committee. As per the
report of Enquiry Committee, a resolution No.1014 dated
16.10.2019 is a subsequent resolution withdrawing earlier
resolution No.1042 dated 24.08.2016. It is also stated by
the respondents that the land was not being specifically
utilized for the purpose for which lease had been granted.
The authorities have taken a decision that as the lease
was not extended, therefore, there was no reason for
converting the lease-hold land into free-hold land. As per
the respondents, the land was valued more than 5 crores
and as per Rule 5 of 2016 Rules, respondent No.2 i.e. the
Commissioner, Urban Administration and Development
Department was the competent authority to take final
decision in the matter and further that the State
Government has rightly exercised the power and took final
decision for rejecting the application as under the
provisions of Section 322 and 326 of the Municipalities
Act, 1961 the State is empowered to control and supervise
the functions of the Municipal Council.
11. Respondent No.3 has also filed its reply
emphasizing the fact that W.A. No.459/2009, was allowed
and disposed of by the Division Bench with a clear
direction that the petitioner would simultaneously file an
application for renewal of lease as also an application for
W.P. No.7460/2020
conversion of land from lease-hold to free-hold, but the
petitioner did not do so and filed the application only for
conversion of lease-hold land into free-hold land.
Respondent No.3 has also taken a stand that in view of
the provisions of 2016 Rules, the State Government was
the competent authority and as such, the possession has
been taken by competent authority and resolution
No.1042 dated 24.08.2016 was withdrawn by subsequent
resolution No.1014 dated 16.10.2019 and according to
them since lease period has expired, nothing can be done
now and lease land cannot be converted into free-hold
land. As per respondent No.3, sub-rule (6) of Rule 20 of
2016 Rules stipulates the words "as far as possible" but
that does not mean that the authorities are under
obligation to decide the application within the stipulated
period of 120 days and according to respondent No.3
since no consequence is provided therein, the period of
120 days can be said to be directive, not mandatory for
deciding the application. It is also submitted by them that
the application for renewal of lease has not been filed by
the petitioner though the writ appeal was allowed and
disposed specifically directing the petitioner to make an
application for lease renewal and also for conversion of
lease-hold land into free-hold land. Respondent No.3 has
W.P. No.7460/2020
also placed reliance in regard to the provisions prescribing
limitation of 120 days as directory but not mandatory and
relied upon the decisions reported in the case of
Administration, Municipal Committee Charkhi Dadri
and another v. Ramji Lal Bagla and others (1995) 5
SCC 272 and Dalchand v. Municipal Corporation,
Bhopal (1984) 2 SCC 486.
Indisputably, the provision for considering the
application for conversion of lease-hold land into free-hold
land as far as possible within 120 days, is directory in
nature.
12. Respondent No.3 has also placed reliance upon
the decisions of Syed Sugara Zaidi v. Laeeq Ahmad
(2018) 2 SCC 21 and State of Gujarat and others v.
Nirmalaben S. Mehta and another (2016) 9 SCC 240 in
respect of extension of lease.
However, in this case there is no dispute about the
extension of lease as has been dealt by this Court
hereinafter. Thus, these decisions have no applicability to
the question/issue decided by this Court.
13. Considering the submissions made by the
petitioner in his petition and also the submissions made by
the respondents in their reply, the following questions
W.P. No.7460/2020
emerge for consideration.
I. Whether, the application for conversion of
lease-hold land into free-hold land which was
submitted on 24.05.2018 i.e. during the
subsistence of lease period could have been
rejected by order dated 16.03.2020
(Annexure-P/10) or 12.05.2020 (Annexure-
P/12) passed by the respondents on the ground
that period of lease has now expired on
31.03.2019?
II. Whether, the State Government or the
Municipal Council has any power to decide an
application for conversion of lease-hold land
into free-hold?
III. Whether, the resolution No.1014 dated
16.10.2019 (Annexure-R-3/7) passed by the
Municipal Council cancelling its earlier
resolution No.1042 dated 24.08.2016
(Annexure-R-3-6) is illegal and without
jurisdiction?
IV. Whether the petitioner has changed the
purpose of lease?
14. To proficiently answer the aforesaid
W.P. No.7460/2020
questions/issues, it is indispensable to discuss the
relatable facts in the following manner.
Question/issue No.I -
"Whether the application for conversion of lease
hold land into free hold which was submitted on
24.05.2018 i.e. during the subsistence of lease
period could have been rejected by order dated
16.03.2020 (Annexure-P/10) or 12.05.2020
(Annexure-P/12) passed by respondents on the
ground that period of lease has now expired on
31.03.2019?"
(14.1) The petitioner was granted permanent lease vide
lease-deed dated 16.08.1989 (Annexure-R-3/2)
and an agreement in that regard was executed
on 27.07.1989 (Annexure-P/2). The lease was
granted for industrial/business purpose for a
period of 30 years commencing from 01.04.1989
to 31.03.2019. W.A. No.459/2009 (M/s Narmada
Ginning and Pressing Factory, Harda Vs. State of
M.P. and others) was allowed and disposed of by
the Division Bench of the High Court vide order
dated 01.08.2016 with the following directions.
"(i) The appellant would submit a fresh application for
renewal of lease and the same may be considered
by the Municipal Council, Harda.
(ii) That, the State Government has recently issued a
Gazette Notification dated 24.02.2016 framing rules,
namely Madhya Pradesh Municipal (Achal Sampatti
Antran) Rules, 2016, which provides for renewal of
lease as also conversion of lease hold hands into
free hold land. The petitioner may be permitted to
submit an application for conversion of lease hold
land into free hold land on payment of charges as
W.P. No.7460/2020
specified by the aforesaid rules which may be
considered by Municipal Council, Harda and other
concerned authorities in accordance with the Rules."
(14.2) The petitioner in pursuance to the directions
issued by the Division Bench while availing its
option, moved an application for conversion of
lease-hold land into free-hold land. The
application was submitted in the prescribed
format on 24.05.2018 before respondent No.3.
(14.3) Respondent No.3 in respect of such application,
conducted an enquiry as envisaged in sub-rule
(5) of Rule 20 of 2016 Rules and found it
plausible to convert the land of the petitioner but
instead of deciding, on its own, referred the
matter to the State Government vide letter dated
17.07.2018 (Annexure-P/9). In the said letter,
there is a reference of resolution No.1042 dated
24.08.2016.
(14.4) The petitioner has filed a copy of resolution
No.1042 dated 24.08.2016 as Annexure-P/21,
which reveals that the Municipal Council had
permitted 3583 Lease Holders including the
petitioner for converting the nature of their lands
from lease-hold to free-hold.
W.P. No.7460/2020
(14.5) The matter remained pending on such
application for conversion of land before the
State Government and in the meantime, the
period of lease got expired on 31.03.2019. After
expiry of lease, respondent No.3 issued a letter
on 16.03.2020 (Annexure-P/10) which is
impugned in this petition asking the petitioner to
deliver the possession of the land in question as
the period of lease has since expired. On receipt
of said letter, the petitioner filed the instant writ
petition and during the pendency of this petition,
the petitioner received another letter dated
12.05.2020 (Annexure-P/11) issued by
respondent No.2 stating therein that the
petitioner's application for conversion of land
cannot be considered as earlier resolution i.e.
resolution No.1042 dated 24.08.2016 has been
withdrawn by the Municipal Council by
subsequent resolution i.e. resolution No.1014
dated 16.10.2019. In the said letter, reference
has been made about some enquiry report and it
is disclosed that the land in question was not
being used for the purpose for which it was
allotted.
W.P. No.7460/2020
(14.6) According to the petitioner, as per sub-rules (1)
and (2) of Rules 20 of 2016 Rules, a person
holding a valid lease may make an application to
the Chief Executive Officer for conversion of
lease-hold land into free-hold land. As per the
petitioner, the aforesaid rules make it clear that
the application can be submitted by any person,
organization, etc. when valid lease exists in their
favour. On the date of submitting the application
by the petitioner, a valid lease for a period of
thirty years was existing and was very much
alive on 24.05.2018 (Annexure-P/8), the date of
submitting the application.
(14.7) As per the petitioner, respondent No.3 after
receiving such application was expected to
proceed further in accordance with Rule 5 of
2016 Rules and if it is found that the petitioner
was eligible for conversion of land in question, he
should have passed the order, but instead of
doing so or to take final decision in the matter, it
was unnecessarily forwarded to the State
Government under misconception that the State
Government is the final authority for deciding the
application of conversion and thereafter the State
W.P. No.7460/2020
Government sat tight over the matter and did not
pass final order and in the meantime lease
period which was to be ended on 31.03.2019 got
expired. As per the petitioner, in sub-rule (6) of
Rule 20 of 2016 Rules it is provided that the
competent authority has to take decision on the
application for conversion of land as far as
possible within a period of 120 days, even
though the said period does not provide any
consequence. It was a statutory obligation upon
the authority.
(14.8) The respondents have also taken the same
stand saying that the respective rule provides to
take final decision on the application for
conversion of land as far as possible within a
period of 120 days but it is nowhere provided if
the decision is not taken within 120 days then
what would be the consequence thereof and as
such, according to the respondents, the period of
120 days is merely directive and not mandatory
in nature. They have also taken a stand that
since the period of 120 days is not mandatory,
therefore, the claim of the petitioner that if
application is kept pending by the State
W.P. No.7460/2020
Government even after 120 days then refusal
thereafter on the ground that the lease period
has expired is illegal, is not justified. The
respondents have also taken a stand that the
Division Bench of the High Court in writ appeal
clearly directed the petitioner to file the
application for renewal of lease and also for
conversion of land from lease-hold to free-hold,
but instead of doing so the petitioner himself has
opted to move an application only for conversion
of lease-hold land to free-hold but did not move
any application for renewal of lease and on that
basis, they have supported the order passed by
the State Government claiming it to be legal and
valid.
(14.9) However, as per the petitioner the words "as far
as possible" do not mean that the application for
conversion of land may be kept pending sine die
and that in any case, the application ought to
have been decided within the reasonable period
if not within 120 days. As per the petitioner, if the
period of 120 days is doubled, even then, during
the extended period of lease which was in favour
of the petitioner was still alive as it expired on
W.P. No.7460/2020
31.03.2019. As per the petitioner, the Division
Bench although directed the petitioner to move
two separate applications for renewal of lease
and for conversion of lease-hold land into free-
hold land, but that does not mean that the
petitioner should have moved both the
applications simultaneously. The purpose of the
Division Bench was infact to direct the petitioner
to avail the option so as to move an application
for conversion of land because the relevant rules
were introduced during the pendency of writ
appeal for which the respondents' counsel had
also given undertaking that if the petitioner was
not interested in moving such application, he
could have moved an application for renewal of
lease. Since both the options were open, the
petitioner chose to avail the option by moving an
application for conversion of lease-hold land into
free-hold land keeping in mind that they have
sufficient time because the application was to be
decided within 120 days. If at all some more time
is consumed by the authority, at the most it could
be decided within a further period of 120 days as
such, total period of 240 days, even though, the
W.P. No.7460/2020
lease period could not have been expired and
lease would have been alive. It is submitted by
the petitioner that filing both the applications i.e.
for renewal of lease and for conversion of land
was not possible at a time because it would give
wrong inclination as would tantamount to
claiming contradictory relief in each application.
When conversion sought, there was no occasion
for the petitioner to seek renewal of lease as the
petitioner was under impression that the final
decision would be taken within a period when
lease was subsisting. As per the petitioner, it is
the State Government which has prolonged the
matter and due to lapse on their part, the
petitioner cannot be made to suffer. To bolster his
contention, the petitioner relied upon a decision
of P.N. Premachandran Vs. State of Kerala
reported in (2004) 1 SCC 245, in which the
Supreme Court has clearly held that the parties
cannot be made to suffer owing to the
administrative lapse on the part of the State and
no fault can be found with on the part of the
petitioner. The Supreme Court in the said case in
paragraph-7 has observed as under:-
W.P. No.7460/2020
"7. It is not in dispute that the posts were
to be filled up by promotion. We fail to understand
how the appellant, keeping in view the facts and
circumstances of this case, could question the
retrospective promotion granted to the private
respondents herein. It is not disputed that in view
of the administrative lapse, the Departmental
Promotion Committee did not hold a sitting from
1964 to 1980. The respondents cannot suffer
owing to such administrative lapse on the part of
the State of Kerala for no fault on their part. It is
also not disputed, that in ordinary course they
were entitled to be promoted to the post of
Assistant Director, in the event, a Departmental
Promotion Committee had been constituted in due
time. In that view of the matter, it must be held
that the State of Kerala took a conscious decision
to the effect that those who have been acting in a
higher post for a long time although on a
temporary basis, but were qualified at the time
when they were so promoted and found to be
eligible by the Departmental Promotion
Committee at a later date, should be promoted
with retrospective effect."
(emphasis supplied)
(14.10) The petitioner submits that if any lapse caused
by the authority, the petitioner cannot be made to
suffer and as such, the stand taken by the
respondents saying that since lease period had
expired, application for conversion of land from
lease-hold to free-hold is completely illegal in the
eyes of law and that cannot be accepted.
Question/issue No.II -
"Whether the State Government or the
Municipal Council has any power in deciding
an application for conversion of lease hold
land into free hold?"
W.P. No.7460/2020
(14.11) To adjudicate this issue, it is apt to go-through
the respective rules giving competence to the
authority to take decision on an application for
conversion of lease-hold land into free-hold. Rule
2(d) of 2016 Rules defines the word
"Conversion" and further Rule 2(q) defines the
words "Transfer of Property" which are as
under:-
"Rule 2(d) "Conversion" means the grant of free
hold right in respect of the lands as mentioned;
2(q) "Transfer of Property" means to confer the
right to use of immovable property for certain
period to one or more persons by the Urban local
Body under the conditions as may be determined
at the premium and lease rent or as free hold;"
(14.12) Further, Rule 5 of 2016 Rules provides the
competent authority for transfer of immovable
property. It is apt to mention Rule 5 of 2016
Rules hereinbelow.
" 5. Competent authority for transfer of
immovable property.-
(i) In case of transfer of immovable property
by sale, lease, gift, mortgage or exchange the
power of approving the transfer shall be vested
in the authorities as under:-
Sr. No. Class of Urban Value of Property Competent
Local Body authority for
approval
(1) (2) (3) (4)
1 Municipal Up to Rs.10.00 Crore Council
Corporation More than 10.00 Crore Commissioner,
having Urban
population more Administration
W.P. No.7460/2020
than 5 lakh and Development
Up to Rs.20.00 Crore State Government
More than 20.00 Crore
2 Municipal Up to Rs.2.00 Crore Council
corporation and
Municipal More than 2.00 Cr. Commissioner,
Council having Up to Rs.5.00 Crore Urban
population less Administration
than 5 lakh and Development
More than 5.00 State Government
Crore
3 Nagar Up to Rs50.00 Council
Parishad Lakh.
More than Commissioner,
Rs.50.00 Lakh. Urban
Up to Rs.5.00 Administration
Crore and Development
More than 5.00 State Government
Core
(ii) The Chief Executive Officer of the
concern Urban Local Body shall prepare and
forward the proposal for the approval with
detailed information of the property related to the
transfer. If a immovable property of the
ownership of Urban Local Body is suitable for the
transfer, then the required documents related
with the ownership shall be collected after survey
of such property. The Chief Executive Officer
shall verify by submitting the details of the
property that the transfer of such property is in
interest of the Urban Local Body. The proposal
shall be submitted before the council of the
Urban Local Body for decision after completing
above process. The Council shall take the
decision after considering all the facts after
mentioning the details of the property for transfer
and the reserve price and lease rent shall be
decided accordingly."
(14.13) Clause-(i) of Rule 5 provides; in case of transfer
of immovable property by sale, lease, gift,
mortgage or exchange, the power of approving
transfer shall be vested in the authorities as
mentioned therein. The words "free hold" is not
W.P. No.7460/2020
used in the said provision. Clause-(i) specifically
provides power about the competent authority
vested in case of transfer of immovable property
by sale, lease, gift, mortgage or exchange.
Although, in case of conversion of land from
lease-hold to free-hold, there is no element of
transfer of property either by sale, lease, gift,
mortgage or exchange. Rule 5 of 2016 Rules
deals with grant of municipal property by the
mode mentioned therein. As such, Rule 5 and
the competent authority mentioned therein has
no application with respect to conversion of
land.
(14.14) The conversion has been specifically defined in
Section 2(d) of Rule 20 of 2016 Rules and as
per sub-rule (4) of Rule 20, it is the Chief
Executive Officer who shall be the authorised
officer for conversion, and he has also been
empowered to convert the lease-hold rights to
free-hold under the provisions of 2016 Rules.
(14.15) Likewise sub-rule (6) of Rule 20 of 2016 Rules
prescribes that the application of conversion
shall, as far as possible be finally decided within
W.P. No.7460/2020
120 days by the Chief Executive Officer. Rule 20
of 2016 Rules is reproduced hereinbelow.
"20. Right to conversion,-(1) The land of the
ownership of Municipal body, which is used for
residential or commercial purpose or for other
purposes and which is allotted to any person,
organization etc. on lease then such land of lease
may be brought into the category of right of
conversion.
(2) Subject to the provisions of these rules,
any eligible lease holder may make an application to
the Chief Executive Officer in Format- "III", for grant
of right of conversion in respect of land held by him
in lease hold right.
(3) Any land which is of the improvement
trust/special area development authority/
Development Authority or other dissolved body and
is under the control of or in ownership of Urban Local
Body and the developed and allotted plots on it are
given on lease for residential or commercial or other
purposes for a period of 30 years or more than 30
years may be converted in to freehold:
Provided that, no such land of lease shall be
converted into freehold whose lease conditions
specifically prohibit conversion or on which leasehold
right have accrued under the Madhya Pradesh
Nagriya Kshetron Ke Bhoomihin Vyakti (Pattadhari
Adhikaron Ka Pradan Kiya Jana) Adhiniyam, 1984 or
Rajiv Gandhi Patta Aashrya Yojna or Mukhyamantri
Aashrya Yojana or which is not of the ownership of
Urban Local Body.
(4) Chief Executive Officer shall be the
authorized officer for conversion, who shall be
empowered to convert the lease hold rights into the
freehold right under the provisions of these rules,
(5) On receipt of the application, the Chief
Executive Officer shall issue a public notice inviting
objections for the conversion of such land by giving
15 days time in at lease two news papers of which
one shall be a Hindi News paper and also display on
the notice board of Municipal Corporation / Municipal
Council/ Nagar Parishad/ Collector and
Commissioner's offices and the following points shall
be taken into consideration for hearing the objections
that-
(i) the lease of the land is valid;
W.P. No.7460/2020
(ii) all dues related to the conditions of lease
have been paid;
(iii) no breach of the conditions of lease has
occurred and if a breach has occurred then it
has been regularized under the provisions of
these rules by depositing compounding fee;
(iv) the conditions of lease do not prohibit
conversion;
(v) an affidavit to this effect has been filed by
the lessee that no case involving land under
conversion is pending before any Court or
Authority;
(vi) other necessary documents and fee
according to the instructions of the Government
for the time being in force, shall be borne by the
lease holder;
(vii) any other point which may be deemed
appropriate by the Chief Executive Officer.
(6) The application of conversion shall, as far
as possible, be finally decided within a period of 120
days by the Chief Executive Officer."
(14.16) From perusal of aforesaid rule, it is clear that for
conversion of land, no other authority, except
the Chief Executive Officer, has power to pass
the order in regard to conversion of land. Now, it
is clear that Rule 5 and Rule 20 are two distinct
provisions and operate in different fields as Rule
5 deals with transfer of immovable property and
Rule 20 deals with conversion of land. The
conversion has been specifically defined in
Section 2(d) of 2016 Rules. Rule 20 deals with
conversion of land from lease-hold to free-hold.
Sub-rules (4) and (6) of Rule 20 provide that the
Chief Executive Officer shall be the authorised
W.P. No.7460/2020
officer for conversion and who shall be
empowered to convert lease-hold rights into
free-hold rights. As such, the words used "shall"
and "empowered" in sub-rule (4) of Rule 20 and
the words "the application of conversion
shall" and "be finally decided by the Chief
Executive Officer" unequivocally means that
the Chief Executive Officer alone is the authority
empowered to decide the application for
conversion of land. But, no other authority has
any role to play to decide the said application,
therefore, there was no occasion for the Chief
Executive Officer to forward the matter to the
State Government and if any decision is taken
by the State Government, that is without
jurisdiction. Once the Chief Executive Officer
after having processed the application submitted
by the petitioner had formed an opinion that the
petitioner is entitled for conversion of land, he
ought to have immediately passed the order of
conversion of land instead of sending the matter
to the State Government because the rule
clearly provides that the Chief Executive Officer
has to take final decision in the matter.
W.P. No.7460/2020
(14.17) Considering the aforesaid position, it is now
clear that the State Government did not have
any role to play in deciding the application of
conversion and, therefore, the order passed by
the Commissioner Urban Administration and
Development Department on 12.05.2020
(Annexure-P/11) rejecting the application of the
petitioner was without any jurisdiction and
suffers from coram non judice. The order,
therefore, was void ab initio passed by the
authority without any jurisdiction and as such, it
was a nullity.
(14.18) The Supreme Court in case of Kiran Singh and
another v. Chaman Paswan and others, AIR
1954 SC 340 in paragraph-6 has observed as
under:-
"6. The answer to these contentions must
depend on what the position in law is when a court
entertains a suit or an appeal over which it has no
jurisdiction, and what the effect of Section 11 of the
Suits Valuation Act is on that position. It is a
fundamental principle wellestablished that a decree
passed by a court without jurisdiction is a nullity,
and that its validity could be set up whenever and
wherever it is sought to be enforced or relied upon,
even at the stage of execution and even in
collateral proceedings. A defect of jurisdiction,
whether it is pecuniary or territorial, or whether it is
in respect of subject-matter of the action, strikes at
the very authority of the court to pass any decree,
and such a defect cannot be cured even by consent
of parties. If the question now under consideration
W.P. No.7460/2020
fell to be determined only on the application of
general principles governing the matter, there can
be no doubt that the District Court of Monghyr was
coram non judice, and that its judgment and decree
would be nullities. The question is what is the effect
of Section 11 of the Suits Valuation Act on this
petition."
(14.19) Further, in case of Hasam Abbas Sayyad v.
Usman Abbas Sayyad and others, (2007) 2
SCC 355, in paragraph-22, the Supreme Court
has observed as under:-
"22. The core question is as to whether an order
passed by a person lacking inherent jurisdiction
would be a nullity. It will be so. The principles of
estoppel, waiver and acquiescence or even res
judicata which are procedural in nature would have
no application in a case where an order has been
passed by the tribunal/court which has no authority
in that behalf. Any order passed by a court without
jurisdiction would be coram non judice, being a
nullity, the same ordinarily should not be given
effect to. [See Chief Justice of A.P. v. L.V.A. Dixitulu
(1979) 2 SCC 34 and MD, Army Welfare Housing
Organisation v. Sumangal Services (P) Ltd. (2004)
9 SCC 619]."
(14.20) Likewise, in case of Chandrabhai K. Bhoir and
others v. Krishna Arjun Bhoir and others,
(2009) 2 SCC 315, the Supreme Court in
paragraph-26 has observed as follows:-
"26. Thus, the said issue, in our opinion, did not
attain finality. In any view of the matter, an order
passed without jurisdiction would be a nullity. It will
be a coram non judice. It is non est in the eye of the
law. Principles of res judicata would not apply to
such cases. (See Chief Justice of A.P. v. L.V.A.
Dixitulu (1979) 2 SCC 34), Union of India v.
Pramod Gupta (2005) 12 SCC 1 and National
Institute of Technology v. Niraj Kumar Singh (2007)
2 SCC 481."
W.P. No.7460/2020
(emphasis supplied)
(14.21) Over and above, in case of Sarup Singh and
another v. Union of India and another (2011)
11 SCC 198, the Supreme Court in paragraphs-
20, 21 and 24 has observed as under:-
"20. Insofar as the second issue is concerned, it is
true that the executing court cannot go behind the
decree and grant interest not granted in the decree
as submitted by the counsel appearing for the
appellants in the light of the decision rendered by
this Court in State of Punjab v. Krishan Dayal
Sharma (2011) 11 SCC 212. But, if a decree is
found to be a nullity, the same could be challenged
and interfered with at any subsequent stage, say, at
the execution stage or even in a collateral
proceeding. This is in view of the fact that if a
particular court lacks inherent jurisdiction in passing
a decree or an making an order, a decree or an
order passed by such court would be without
jurisdiction and the same is non est and void ab
initio.
(emphasis supplied)
21. The aforesaid position is well settled and not
open for any dispute as the defect of jurisdiction
strikes at the very root and authority of the court to
pass decree which cannot be cured by consent or
waiver of the parties. This Court in several decisions
has specifically laid down that validity of any such
decree or order could be challenged at any stage. In
Union of India v. Sube Ram (1997) 9 SCC 69 this
court held thus: (SCC pp. 70-71, para 5).
"5. ... here is the case of entertaining the
application itself; in other words, the question of
jurisdiction of the court. Since the appellate court
has no power to amend the decree and grant
the enhanced compensation by way of solatium
and interest under Section 23(2) and proviso to
Section 28 of the Act, as amended by Act, 68 of
1984, it is a question of jurisdiction of the court.
Since courts have no jurisdiction, it is the settled
legal position that it is a nullity and it can be
raised at any stage."
(emphasis supplied)
W.P. No.7460/2020
24. In Chiranjilal Shrilal Goenka v. Jasjit Singh
(1993) 2 SCC 507 this Court stated thus: (SCC pp.
517-18, para 18)
"18. It is settled law that a decree passed by a court
without jurisdiction on the subject-matter or on the
ground on which the decree made which goes to the
root of its jurisdiction or lacks inherent jurisdiction is
a coram non judice. A decree passed by such a
court is a nullity and is non est. Its invalidity can be
set up whenever it is sought to be enforced or is
acted upon as a foundation for a right, even at the
stage of execution or in collateral proceedings. The
defect of jurisdiction strikes at the very authority of
the court to pass decree which cannot be cured by
consent or waiver of the party."
(emphasis supplied)
(14.22) In case of Zuari Cement Limited v. Regional
Director, Employees' State Insurance
Corporation, Hyderabad and others (2015) 7
SCC 690, in paragraph-16, the Supreme Court
has observed as under:-
"16. Where there is want of jurisdiction, the order
passed by the court/tribunal is a nullity or non est.
What is relevant is whether the court had the power
to grant the relief asked for. The ESI Court did not
have the jurisdiction to consider the question of grant
of exemption, order passed by the ESI Court
granting exemption and consequently setting aside
the demand notices is non est. The High Court, in
our view, rightly set aside the order of the ESI Court
and the impugned judgment does not suffer from any
infirmity warranting interference."
(emphasis supplied)
(14.23) The conspectus of the decision of the Supreme
Court referred above would unambiguously
establish that the order dated 12.05.2020
(Annexure-P/11) passed by respondent No.2 is
W.P. No.7460/2020
illegal, being without any jurisdiction and a
nullity, non est and coram non judice. The
consequential order, therefore, dated
12.05.2020 (Annexure-P/12) passed by
respondent No.3 is also illegal and as such,
possession of the land cannot be demanded by
respondent No.3. The petitioner has rightly
submitted that merely because lease has
expired, the possession of the petitioner does
not become illegal and as such, communication
dated 16.03.2020 (Annexure-P/10) asking
possession of the land in question from the
petitioner is without any authority for the reason
that the petitioner could still apply for renewal of
lease pursuant to Rule 17 of 2016 Rules which
reads as under:-
"17. Renewal of Lease.- The power to renew
the lease for next 30 years for the same purpose
for which the land has been transferred in original
lease deed after the expiry of the prescribed period
of property transferred on lease shall be vested in
Council, provided that the premium amount shall
be determined as 0.5 percent of the prevailing
market value for residential plot/building and as
1.00 percent of prevailing market value in case of
use as commercial/industrial purposes and rate of
the lease rent shall be determined as 4 times of
the rate of rent of original lease deed or 0.5
percent of prevailing market value whichever is
less. The renewal of lease deed shall be made
under the following guidelines:-
(a) An application to renew the lease may
W.P. No.7460/2020
be submitted in the last years of the
period of expiry of lease but four months
before the date of expiration. After the
expiry of the date, the application for the
renewal may be received with a
compounding charge of Rs.1000/- per
year.
(b) In the cases, in which lease rent and
other dues are not deposited in
prescribed time period by the lease
holder, then the penalty shall be levied at
the rate of 12 percent on outstanding
amount and renewal may be made after
recovering penalty of Rs.5000/- by
renunciation the right to re-entre.
(c) In the case where the lease holder has
started the construction work delayed but
it has been completed during the period
of the consideration of the case, then by
renunciation the right to re-enter, the
amount shall be recover by imposing
penalty on the following parameter and
renewal may be made:-
(i) For the towns having - Rs.1500/-
population up to 1 lakh
(ii) For the towns having - Rs.5000/-
population from 1 lakh
to 5 lakh
(iii) For the towns having - Rs.7500/-
population from 5 lakh
to 10 lakh
(iv) For the towns having - Rs.10000/-
population more than
10 lakh
(d) In case where construction work has not
been started by the lease holder and
also not completed during the period of
the consideration of the case i.e. plot is
vacant or partially constructed, then in
such case by renunciation the right to re-
enter renewal may be made by
recovering an amount two times on the
basis of the population as mentioned in
clause (c) above.
(e) In case of a transfer of plot by gift or by
sale without proper permission within the
time period of lease, the lease may be
renewed by recovering the amount on
the basis of the population as mentioned
W.P. No.7460/2020
in clause (c) by renunciation the right to
re-enter,
(f) If a plot has been transferred in
contravention of the terms of lease, in a
way in which division of plot takes place,
then by recovering the penalty amount of
Rs.10000/- for each divided plot the
renewal may be made for whole
undivided plot. If an approval has been
given by Directorate town and Country
Planning for division of plot then the
renewal may be made separately for
each divided plot by recovering the
compounding amount.
(g) In case of plot is currently used for the
purpose other than the purpose stated in
the lease, lease may be renewed for the
current use of the plot after getting
approval for such converted use from
Town and Country Planning after
determining premium rate of 2 percent
and the lease rent of 2 percent of the
current market value. If Town and
Country Planning Department has not
approved the conversion of use then in
that case it shall be mandatory to convert
the use of the land/plot of lease in its
original use otherwise the Chief
Executive Officer may re-enter in to the
plot.
(h) The lease may be renewed after
recovering penalty of Rs.5000/- in the
case where after receiving a notice for
the violation of the conditions the
activities consistent to the conditions has
been started by closing the activities
related with the violation of the
conditions."
(14.24) Although, the power of superintendence of the
State Government is mentioned in Sections 322
to 326 of the Municipalities Act, 1961 and that
does not mean that it can be exercised for
rejecting the application of conversion because
it is a settled principle of law that where specific
W.P. No.7460/2020
provision is made, residuary power cannot be
invoked so as to prevail over the specific
provisions and this has been held by the
Division Bench of this Court in case of S.
Goyanka Lime and Chemicals, Katni vs.
Nagar Panchayat, Katni 2011 (2) M.P.L.J.
2019.
In view of the discussion made
hereinabove, it is clear that respondent No.3 i.e.
the Chief Executive Officer, Municipal Council is
the only competent authority to take decision on
an application for conversion of lease-hold land
into free-hold. The State Government and the
Municipal Council has no role for deciding the
application of conversion of lease-hold land into
free-hold. The question/issue no.2 is
accordingly, answered.
Question/issue No.III -
"Whether the resolution dated 16.10.2019
(Annexure-R-3/7) passed by the Municipal
Council cancelling its earlier resolution
dated 24.08.2016 (Annexure-R-3-6) is
illegal and without jurisdiction?"
(14.25) As per the petitioner, the resolution No.1014
dated 16.10.2019 is without jurisdiction because
W.P. No.7460/2020
the Municipal Council has no role to play in the
matter in regard to conversion of lease-hold land
into free-hold.
(14.26) In view of the aforesaid discussion and as per
Rule 20 of 2016 Rules, it is the Chief Executive
Officer who is only the competent authority and
has been empowered to take final decision in
the matter. Rule 20 deals with the right of
conversion of lease-hold land into free-hold and
it makes clear that the application for conversion
has to be made before the Chief Executive
Officer in a specific format and then it is the
Chief Executive Officer who is an authorised
officer empowered to convert the lease-hold
rights into free-hold rights. Thus, neither the
State Government nor the Municipal Council has
any role to play for deciding the application for
conversion of land.
(14.27) The Municipal Council once passed the
resolution No.1042 dated 24.08.2016
(Annexure-P/21) deciding that the land of 3583
lease holders be converted into free-hold land
as per the provisions of prevailing rules, then
there was no reason for cancelling the said
W.P. No.7460/2020
decision that too only in respect of the land
belonging to the petitioner. The resolution
No.1014 dated 16.10.2019 withdrawing the
decision taken in respect of the petitioner's land
is nothing but a discriminatory action and also
unfair on the part of the respondents. The
petitioner at the inception raised an objection by
sending a letter dated 14.10.2019 (Annexure-
P/22) to the Collector, Harda about including the
agenda that the same is illegal and the Collector
Harda vide his letter dated 15.10.2019
(Annexure-P/23) directed the Municipal Council
not to take-up the matter pertaining to lease-
hold land belonging to the petitioner without
obtaining legal opinion. A notice was also pasted
in the notice board of the Municipal Council that
the respective agenda should be included for
discussion only after obtaining opinion and
guidance from the law officer, but all went in
vain. The agenda was taken-up for discussion
and resolution No.1014 dated 16.10.2019 was
passed withdrawing resolution No.1042 dated
24.08.2016 as regards conversion of land
belonging to the petitioner. At this stage, the
W.P. No.7460/2020
opinion of the competent authority which he has
expressed vide its letter dated 23.10.2019
(Annexure-P/25) wherein he has informed
respondent No.1 about the illegality committed
in the meeting of Municipal Council on
16.10.2019 and the prohibitory order of the
Collector was also placed in the meeting and the
members of the Municipal Council were also
advised not to take-up the agenda but despite
that the said agenda was taken-up. It indicates
that the Municipal Council under some oblique
motive was not willing to consider the opinion of
the competent authority i.e. the Chief Executive
Officer. It shows that the respondents/authorities
had decided to act contrary to law and somehow
rejected the application of the petitioner for
conversion of lease-hold land into free-hold. It is
pertinent to see that when respective rule i.e.
Rule 20(4) of 2016 Rules clearly prescribed that
it is the Chief Executive Officer who has to take
decision on the application for conversion of
land, then passing resolution No.1014 dated
16.10.2019 (Annexure-R-3/7) contrary to the
view and opinion of the competent authority and
W.P. No.7460/2020
also the prohibitory order of Collector, is nothing
but an arbitrary exercise making resolution no.
1014 dated 16.10.2019 illegal and without
jurisdiction. Since the provisions of 2016 Rules
do not give any power to the Municipal Council
to pass any resolution in respect of conversion
of lease, therefore, there was no occasion to
pass any such resolution. But even though, the
Municipal Council acted contrary to law showing
their adamantine attitude so as to act against
the petitioner and reason best known to them as
to why the Municipal Council was behaving in
such a discriminatory manner by choosing only
the petitioner out of 3583 lease holders. The
resolution, therefore, is without jurisdiction,
passed contrary to law and as such, it is void ab
initio.
Question/issue No.IV -
"Whether the petitioner has changed the
purpose of the lease?"
(14.28) As per available material, the petitioner was the
owner of land comprised of Khasra Nos.58/1,
58/2 and 58/11 area 8.95 acres on which
Ginning and Pressing of Cotton as also Dall and
W.P. No.7460/2020
Oil mills are established. The land belonging to
these khasras were purchased by registered
sale-deed in the year 1953. Adjoining to the said
land, Khasra No.56 having 6.43 acres land
belonging to the Municipal Corporation, Harda is
situated. The petitioner was desirous to
construct residential quarters for its labourers
and also a godown over the said land and,
therefore, it had made an application to the
Municipal Council asking lease of the said land
in the year 1966. The said application was
accepted and the lease was granted in favour of
the petitioner initially on year-to-year basis. This
practise was continued till 1975. In the year
1975, the petitioner made an application for
granting a permanent lease. On such
application, resolution No.122 dated 25.04.1975
(Annexure-P/16) was passed by the-then
Administrator of Municipal Council, Harda,
giving permanent lease for a period of 30 years
and renewal for 99 years. Respondent No.3,
however, granted lease for a period of 30 years
and it was continued to be renewed after expiry
of every 30 years till 1989. A lease-deed was
W.P. No.7460/2020
thereafter executed on 16.08.1989 (Annexure-
R-3/2) for a period of 30 years commencing
from 01.04.1989 and was ended on 31.03.2019
for industrial purpose (commercial purpose). As
per Clauses 3 and 12 of Annexure-P/2 which is
an agreement of permanent lease dated
27.07.1989, there is a renewal clause that it
would be at the option of lessee.
(14.29) Undisputedly, the petitioner was in possession
of the land continuously since 1966 on the basis
of lease granted by the Municipal Council. The
petitioner has constructed residential quarters
as also godown over the said land and when
dispute arose, the matter travelled up to the
High Court and in view of the directions given by
the High Court in W.A. No.459/2009, the
petitioner moved an application for conversion of
land from lease-hold to free-hold. Respondent
No.3 (Municipal Council) processed the said
application and found the petitioner eligible for
conversion of land and thereafter decision was
to be taken by the Chief Executive Officer who
was the competent authority but instead of doing
so, the matter was referred to the State
W.P. No.7460/2020
Government for taking final decision on the said
application, but in the said letter i.e.
Annexure-P/9 dated 17.07.2018 there was no
reference of the fact that the petitioner was not
using the land for the purpose for which lease
was granted. According to the petitioner, till
17.07.2018 there was no such situation that the
land was being used by the petitioner for some
other purpose. Further, a letter dated
26.02.2019 (Annexure-P/18) makes it clear that
respondent No.1 was informed that the
petitioner became entitled to get his lease-hold
land converted into free-hold land. The said
letter contained that over the lease land, the
petitioner has constructed shade, godown and
labourer quarters and lease holder was carrying
out its activities. The letter further indicates that
there was no government road existing to
access the lease land. Importantly, it is also
mentioned in the letter that because of existing
location of the lease land which is surrounded
by the lands of other land owners and in
absence of any government road to access the
lease land, there is no possibility for proposing
W.P. No.7460/2020
any government undertaking scheme. It is
worthwhile here to focus upon the letter dated
26.02.2019 written by the competent authority
so as to make it clear that all necessary aspects
were apprised to respondent No.1 showing as to
why application submitted by the petitioner for
conversion of lease-hold land into free-hold, is
required to be considered and allowed. The said
letter, for ready reference, is reproduced as
under:-
"dk;kZy; uxj ikfydk ifj"kn] gjnk ftyk&gjnk
Ø[email protected]@[email protected] gjnk fnukad [email protected]
izfr]
Jheku milfpo
e/;izns'k 'kklu
uxjh; fodkl ,oa vkokl foHkkx
ea=ky;] Hkksiky] e/;izns'k
fo"k;% &yht gksYM Hkwfe dks QzhgksYM Hkwfe esa laifjofrZr djus ckor~A
lanHkZ%&vkidk i= Øa-,Q 10&[email protected]@18&2 fnukad 28 tuojh
2019A
fo"k;kUrxZr mijksDr lanfHkZr i= ds ifjikyu esa fuosnu gS fd%&
1½ ekuuh; mPp U;k;ky; dh ;qxy ihB }kjk izdj.k Ø[email protected]
¼ftlesa fd uxj ifj"kn gjnk o jkT; 'kklu izfroknh Fks½ vius vkns'k
esa fnukad [email protected]@2016 ls izo`Rr e/;izns'k uxj ikfydk vpy laifRr
dk varj.k fu;e 2016 ds varxZr fu;ekuqlkj yht Hkwfe dks QzhgksYM
djus dk funsZ'k fn;k FkkA bl fu.kZ; ds izHkko ls /kkjd ueZnk
thafux ,aM izsflax QSDVªh gjnk Leso gh fnukad [email protected]@2016 dks
yht Hkwfe dks QzhgksYM esa laifjofrZr djkus dk ik= gks x;k FkkA
layXu&vkids lqyHk lUnHkZ gsrq yxHkx leLr yht /kkjdksa dh lwphA
2½ yht/kkjd ds lkFk fu"ikfnr iV~Vk vfHkys[k ¼yht MhM½ fnukad
[email protected]@1989 esa fof.kZr 'krksZa dk ikyu yht/kkjd }kjk fof/kor fd;k
tk jgk gSA orZeku esa Hkwfe ij yht/kkjd }kjk viuh O;olkf;d
xfrfof/k;ka lapkfyr dh tk jgh gS rFkk yht/kkjd dks rRdkyhu
izkf/kdj.k }kjk [email protected]@1989 dks [email protected] fuekZ.k vuqKk iznku dh
x;h FkhA orZeku esa mDr Hkwfe ij 'ksM] xksnke o yscj DokVj fufeZr
gSA ftlesa yht /kkjd viuh xfrfof/k;ka lapkfyr djrs gSA mYys[kuh;
gS fd bl Hkwfe esa tkus ds fy, dksbZ Hkh 'kkldh; ekxZ ugha gSA
lyXu%& 1 vuqKk o uD'ks dh dkihA
2 iVokjh uD'ks dh Nk;kizfrA
3½ yht MhM esa i`"B Ø-3 dh dafMdk 1 esa mYysf[kr gS fd "30 o"kZ
ds yht jsUV dk iVVkxzkfgrk }kjk Hkqxrku iV~Vknkrk ds dk;kZy; esa
W.P. No.7460/2020
fd;k tk pqdk gS" ls Li"V gksrk gS fd yht/kkjd }kjk 30 o"kZ dk iw.kZ
yht jsUV fu"iknu ds le; tek fd;k tk pqdk FkkA
layXu%& izfr 10 o"kZ dh o`f) vuqlkj yht jsUV dh x.kuk o
izkIr jkf'k dh foLr`r tkudkjhA
4½ dysDVj xkbZM ykbZu ds vuqlkj mDr Hkwfe dk bl o"kZ dk
cktkj ewY; 5]99]45][email protected]& : ¼ikap djksM fuU;kuos yk[k iSarkfyl
gtkj nks lkS :i;k½ gS tks fd orZeku esa izpfyr e/;izns'k 'kklu ds
laink lkQ~Vos;j }kjk fu/kkZfjr fd;k x;k gSA
layXu%& x.ku i=dA
5½ mDr Hkwfe pkjksa vksj ls vU; Hkwfe Lokfe;ksa dh Hkwfe ds e/; fLFkr
gksus ls bl rd igqp ekxZ dk vHkko gSA blh O;ogkfjd dfBukbZ ds
dkj.k gh bl Hkwfe ij fdlh Hkh 'kkldh; vFkok fudk; dh dksbZ
Hkh ;kstuk izLokfor ugha gks ldh gS vkSj u gh laHko gSA foxr 60 o"kksaZ
ls bl Hkwfe dks esllZ ueZnk thfuax ,ao izsflax QSDVªh gjnk dks yht
ij nh xbZ gSA ,oa bl Hkwfe dk vuqca/k ,oa 'krksaZ ds vuq:i gh mi;ksx
gksdj budk <akpk ,oa e'khujh LFkkfir gSA
vr% izdj.k vfxze dk;Zokgh gsrq iszf"kr A
lyaXu%& ;FkksifjA
eq[; uxj ikfydk vf/kdkjh
uxj ikfydk ifj"kn gjnk "
(14.30) In view of the submissions made by the parties
especially the respondents, the case is based
upon the fact that some enquiry report has been
submitted on 30.09.2019 (Annexure-P/19) which
is based upon some spot inspection of the land
in question and the striking features of the report
are as follows:-
(i) That houses were constructed over the lease
land pursuant to permission granted on
31.03.1989.
(ii) Such construction is as per permission
granted.
(iii) During spot inspection, labourers who are
residing over the land in question informed the
W.P. No.7460/2020
inspection team that they are the labourers of
Seth Eknath (partner of the petitioner firm) and
that they are residing over there since long.
(iv) That on the basis of map and photographs,
the same situation as existed during the grant
of permission for Bhawan Nirman
(construction of godown), exists now.
(v) The report is also suggestive of the fact that
the business operation is still being carried on
by the petitioner firm and that the labourers
engaged in the business are residing in the
constructed houses over the land in question.
(14.31) Although, the respondents are using the said
report as a tool saying that the land in question
was being used for some other purpose by the
petitioner, but on the contrary the petitioner has
tried to establish with the help of letters dated
17.07.2018, 26.02.2019 and inspection report
dated 30.09.2019 Annexures-P/9, P/18 and P/19
respectively that the land is being used for the
purpose for which the same was leased out. As
per the petitioner, Annexures-P/9, P/18 and
P/19 have not been denied by respondent No.3
W.P. No.7460/2020
either in its return or additional return, but in the
return, it is mentioned that Annexure-P/9 is
nothing but an internal communication between
respondent No.3 and respondent No.1 and
hence is of no avail to the petitioner. Likewise,
Annexures-P/18 and P/19, in the additional
return, those documents have been said to be
internal communication between the
government authorities and those are also of no
avail to the petitioner. But, according to the
petitioner all these documents clearly indicate
that the purpose for which the land was leased
out is still same and the stand taken by the
respondents that the land was being used for
some other purpose, is absolutely unfounded.
(14.32) From perusal of the lease-deed, it is clear that it
was granted to the petitioner for industrial
purpose. Continuously the petitioner has been
saying that they have established their industry
adjoining to the land owned by them, purchased
by them through registered lease-deed but for
the purpose of constructing godown, labour
quarters and other connecting activities of their
industry, the lease land was being used. It is not
W.P. No.7460/2020
a case of the respondents that the land is being
used for residential purpose or for some other
purpose which does not come within the
industrial/business purpose. Even otherwise, as
per the petitioner, the report is illegal because
the expert body appointed by respondent No.2
never visited the site and did not give any
opportunity of hearing or information at any point
of time to the petitioner before submission of its
report and as such, the same suffers from
principal of natural justice.
(14.33) According to the petitioner, constitution of such
committee is itself illegal and it had no role to
play in the matter of deciding the application of
conversion of lease-hold land into free-hold.
Reliance upon the report of committee is said to
be arbitrary and illegal as the report is merely a
piece of paper in the eyes of law and it cannot
be taken into account because it was prepared
in violation of principles of natural justice and
that report according to the petitioner cannot be
made basis for rejecting the application of the
petitioner for conversion of lease-hold land into
free-hold.
W.P. No.7460/2020
(14.34) I find substance in the submissions made by the
counsel for the petitioner in regard to the report
which has been referred in the impugned order.
The respondents have nowhere stated and even
during the course of arguments did not deny this
fact that the said committee which has
submitted the report has ever intimated the
petitioner about constitution of committee before
inspecting the spot or even after preparing the
report the petitioner was given any opportunity
to submit its explanation about the contents of
the report. In the eyes of law, if any such report
or document is produced which prejudices the
interest or rights of the party and is prepared
behind the back of the party, it is nothing but an
arbitrary exercise and such document has no
legal sanctity. It is trite law that any order, report
or action which prejudices the rights of the
parties and is prepared without giving any
opportunity of hearing to the person concerned,
the same is illegal and has no legs to stand and
as such, that document and report cannot be
made foundation of any decision. Astoundingly,
when the documents which have been
W.P. No.7460/2020
discussed hereinabove are of the
respondents/authorities indicating that the land
was being used by the petitioner for the same
purpose for which lease has been granted then
a report contrary to the said finding that too
without giving any opportunity of hearing to the
petitioner, is worthless and has no value.
15. Learned counsel for the petitioner has placed
reliance upon a judgment of the Supreme Court reported
in AIR 1964 SC 1643 (Brajlal Manilal and Co. Vs. Union
of India and another), in which the Supreme Court in
paragraphs-4 and 5 has observed as under:-
"4. As we have already indicated, the State
Government had refused renewal of the certificate
of approval because they considered that there had
been a change in the composition of the firm which
destroyed its identity. On the other hand, the case
of the appellants was that the terms of the
partnership deed made express provisions for the
continuance of the identity of the firm,
notwithstanding changes in the persons composing
the firm by death, retirement or because of the
accession of new members to replace deceased or
retiring partners or even otherwise. If the report of
the State Government made any points against the
representations made by the appellants and these
were being taken into consideration by the Union
Government, in common fairness, the appellants
were entitled to be informed as to what these were
and an opportunity to point out how far they
militated against the contention raised by them.
"5. Learned counsel for the respondent - Union
of India, did not seek to support the petition taken
by the Central Government that they were justified
in refusing to disclose the contents of the report
they obtained from the State Government which
afforded them the factual basis on which they
W.P. No.7460/2020
rejected the application for review. We have
therefore no hesitation in holding that the order of
the Central Government now under appeal is
vitiated as being contrary to the principles of natural
justice, in that the decision was rendered without
affording to the appellants a reasonable opportunity
of being heard which is a sine qua non of a fair
hearing."
16. As per the petitioner, the Supreme Court in the
case of The D.F.O., South Kheri and others v. Ram
Sanehi Singh reported in (1971) 3 SCC 864 has not only
considered the scope of judicial review in a matter of
contract, but also considered that when an administrative
order is prejudicial and a person against whom it is passed
entitled to a hearing alike to judicial tribunals and bodies of
person invested with authority to adjudicate upon matters
involving civil consequences. In paragraph 5 of the said
decision, it has been observed as under:-
"5. It la unnecessary to consider whether the order
of the Divisional Forest Officer is made on
"irrelevant grounds" because it is clear that before
passing the order the Divisional Forest Officer did
not call for any explanation of the respondent, and
gave him no hearing before passing the order. It is
averred in Paragraph-22(i) of the petition that the
"cancellation order is in violation of the principles of
natural justice having been done at a very late
stage without affording any opportunity to the
petitioner (respondent) to say anything against the
action canceling his tallies". To that averment, ho
reply was made by the forest authorities against
whom the petition was filed. Granting that the order
was administrative and not quasi-judicial, the order
had still to be made in a manner consonant with the
rules of natural justice when it affected the
respondent's rights to property. This Court in the
case of State of Orissa v. Dr. (Miss) Binapani Dei
held in dealing with an administrative order that "the
rule that a party to whose prejudice the order is
W.P. No.7460/2020
intended to be passed is entitled to a hearing
applied alike to judicial tribunals and bodies of
persons invested with authority to adjudicate upon
matters involving civil consequences. It is one of
the fundamental rules of our Constitutional setup
that every citizen is protected against exercise of
arbitrary authority by the State or its officers". The
Divisional Forest Officer in the present case set
aside the proceeding of a subordinate authority and
passed an order which involved the respondent in
considerable loss. The order involved civil
consequences. Without considering whether the
order of the Divisional Forest Officer was vitiated
because of irrelevant considerations, the order
must be set aside on the simple ground that it was
passed contrary to the basic rules of natural
justice."
(emphasis supplied)
17. Further, in a case reported in (1970) 1 SCC 764
(Messrs. Mahabir Prasad Santosh Kumar Vs. State of
U.P. and others), the Supreme Court in paragraphs-7 and
8 has observed as under:-
"7. Opportunity to a party interested in the
dispute to present his case on questions of law as
well as fact, ascertainment of facts from materials
before the Tribunal after disclosing the materials to
the party against whom it is intended to use them,
and adjudication by a reasoned judgment upon a
finding of the facts in controversy and application of
the law to the facts found, are attributes of even a
quasi-judicial determination. It must appear not
merely that the authority entrusted with quasi-judicial
authority has reached a conclusion on the problem
before him : it must appear that he has reached a
conclusion which is according to law and just, and for
ensuring that end he must record the ultimate mental
process leading from the dispute to its solution.
Satisfactory decision of a disputed claim may be
reached only if it be supported by the most cogent
reasons that appeal to the authority. Recording of
reasons in support of a decision on a disputed claim
by a quasi-judicial authority ensures that the decision
is reached according to law and is not the result of
caprice, whim or fancy or reached on grounds of
policy or expediency. A party to the dispute is
ordinarily entitled to know the grounds on which the
W.P. No.7460/2020
authority has rejected his claim. If the order is subject
to appeal, the necessity to record reasons is greater,
for without recorded reasons the appellate authority
has no material on which it may determine whether
the facts were properly ascertained, the relevant law
was correctly applied and the decision was just.
8. The High Court in rejecting the petition filed
by the appellants has observed that the District
Magistrate in considering the explanation of the
appellants has "considered all the materials" and also
that "the State Government in considering the appeal
had considered all the materials". We have, however,
nothing on the record to show what materials, if any,
were considered by the District Magistrate and the
State Government. The High Court has also observed
that Clause 7 of the Sugar Dealers' Licensing Order
does not require "the State Government to pass a
reasoned order. All that is required is to give an
aggrieved person an opportunity of being heard." We
are of the view that the High Court erred in so
holding. The appellant has a right not only to have an
opportunity to make a representation, but they are
entitled to have their representation considered by an
authority unconcerned with the dispute and to be
given information which would show the decision was
reached on the merits and not on considerations of
policy or expediency. This is a clear implication of the
nature of the jurisdiction exercised by the appellate
authority : it is not required to be expressly mentioned
in the statute. There is nothing on the record which
shows that the representations made by the
appellants was even considered. The fact that Clause
7 of the Sugar Dealers' Licensing Order to which the
High Court has referred does not "require the State
Government to pass a reasoned order" is wholly
irrelevant. The nature of the proceeding requires that
the State Government must give adequate reasons
which disclose that an attempt was made to reach a
conclusion according to law and just."
18. The counsel for the petitioner has placed
reliance upon a case reported in (2019) 7 SCC 172
(Vasavi Engineering College Parents Association Vs.
State of Telangana and others), in which the Supreme
Court has held as under:-
W.P. No.7460/2020
"18. Judicial restraint in exercise of Judicial
review was considered in the State (NCT of Delhi) v.
Sanjeev [State (NCT of Delhi) v. Sanjeev, (2005) 5
SCC 181 : 2005 SCC (Cri) 1025 1025] as follows:
(SCC p. 191, para 16)
"16... One can conveniently classify under three heads
the grounds on which administrative action is subject
to control by judicial review. The first ground is
"illegality", the second "irrationality", and the third
"procedural impropriety". These principles were
highlighted by Lord Diplock in Council of Civil Service
Unions v. Minister for the Civil Service, 1985 AC 374 :
(1984) 3 WLR 1174 (HL)] (commonly known as CCSU
case). If the power has been exercised on a non-
consideration or non-application of mind to relevant
factors, the exercise of power will be regarded as
manifestly erroneous. If a power (whether legislative or
administrative) is exercised on the basis of facts which
do not exist and which are patently erroneous, such
exercise of power will stand vitiated."
Thus, this Court has no hesitation to say that the report
which has been prepared by the respondents without
giving any opportunity of hearing to the petitioner, the
decision taken by the authority on the basis of that report
is absolutely illegal and the stand taken by the
respondents that no opportunity was required to be given
to the petitioner before preparing the said report is also not
sustainable because the Supreme Court in the cases
referred hereinabove has very categorically observed that
opportunity in such a matter is indispensable. Since the
respondents have taken an adverse decision on the said
report, the order of respondents, therefore, vitiates being
contrary to the principle of natural justice and apart from
that the decision of the State Government is also without
W.P. No.7460/2020
jurisdiction.
19. The stand taken by the respondents is that the
lease period has expired on 31.03.2019 and as such, no
application for renewal has been submitted by the
petitioner and that the possession of the land has already
been taken, therefore, the petitioner is not entitled for any
relief. The counsel for the respondents have submitted
that no mandamus can be issued by this Court in exercise
of power provided under Article 226 of the Constitution of
India for restoration of possession.
20. The petitioner has tried to substantiate that the
decision for not considering the application for conversion
of the respondents is absolutely illegal and without
jurisdiction and further since the petitioner is in possession
of the land for last more than 55 years that too on the
basis of valid lease, forcible possession taken by the
respondents is completely de hors the law and the
petitioner cannot be dispossessed in such an unlawful
manner. The counsel for the petitioner has submitted that
this Court has ample power under Article 226 of the
Constitution of India to issue mandamus to the
respondent/authority for handing over the possession to
the petitioner and as such, the possession which has been
unlawfully taken from the petitioner shall be restored. It is
W.P. No.7460/2020
submitted by the counsel for the petitioner that not only
this, but this Court has ample power to direct the
respondent/authority to allow the application of the
petitioner of conversion of lease-hold land into free-hold.
21. Shri Agrawal, learned senior counsel appearing
for the petitioner has submitted that the application for
conversion had been filed at the time when lease was very
much alive and the respondents/authorities did not
consider the said application within the prescribed time but
sitting over the same not taken any final decision even
during the sufficient time and that lapse on the part of the
respondents/authorities cannot make the petitioner's
application redundant and infructuous. Shri Agrawal further
submitted that there is a provision for renewal of lease
even an application can be moved by the petitioner after
expiry of the period as the respective provision provides
so. Moreover, he submitted that now in the existing
circumstance when respondents/authorities acted
arbitrarily and passed the order without any competence,
this Court cannot shut its eyes and allow the authorities to
act in such a manner and for the ends of justice
mandamus can be issued in a positive manner directing
the respondent/authority to allow the application and to
restore the possession by handing over the possession of
W.P. No.7460/2020
the lease land to the petitioner. The counsel for the
petitioner has placed reliance upon a decision of the
Supreme Court reported in (2020) 9 SCC 356 (Hari
Krishna Mandir Trust Vs. State of Maharashtra and
other) in which the Supreme Court in paragraphs-88 and
99 to 107 has observed as under:-
"88. Mr Adkar submitted that the matter should
be remanded to the Government for de novo
adjudication to consider all relevant aspects of the
matter. The Corporation respects and reveres the great
personalities involved in the appellant Trust, and for
that reason the present litigation is not adversarial in
nature, but in the interest of justice. Proper legal
method should be followed before arriving at any
conclusion one way or the other. Mr Adkar's arguments
are untenable, since as recorded in the judgment and
order under appeal, the facts pleaded by the appellant
are not in dispute. At the cost of repetition it is
reiterated that the name of Pune Municipal Corporation
was incorporated without recourse to any procedure
contemplated under the Regional and Town Planning
Act. The respondents have not produced any materials
evincing compliance with the procedure prescribed
under the Regional and Town Planning Act. The case
made out by the appellant cannot be rejected on the
basis of assumption. Since the parties have been
litigating for over a decade-and-a-half, we are not
inclined to remit the matter back to the authority
concerned for de novo hearing and decision.
99. In case of dispossession, except under the
authority of law, the owner might obtain restoration of
possession by a proceeding for mandamus against the
Government as held by this Court in Wazir Chand v.
State of H.P. AIR 1954 SC 415 : 1954 Cri LJ 1029
Admittedly, no compensation has been offered or paid
to the appellant Trust. As observed by this Court in K.T.
Plantation (P) Ltd. v. State of Karnataka (2011) 9 SCC
1 : (2011) 4 SCC (Civ) 414, even though the right to
claim compensation or the obligation of the State to
pay compensation to a person who is deprived of his
property is not expressly provided in Article 300-A of
the Constitution, it is inbuilt in the Article. The State
seeking to acquire private property for public purpose
cannot say that no compensation shall be paid. The
Regional and Town Planning Act also does not
W.P. No.7460/2020
contemplate deprivation of a landholder of his land,
without compensation. Statutory authorities are bound
to pay adequate compensation.
100. The High Courts exercising their
jurisdiction under Article 226 of the Constitution of
India, not only have the power to issue a writ of
mandamus or in the nature of mandamus, but are duty-
bound to exercise such power, where the Government
or a public authority has failed to exercise or has
wrongly exercised discretion conferred upon it by a
statute, or a rule, or a policy decision of the
Government or has exercised such discretion mala
fide, or on irrelevant consideration.
101. In all such cases, the High Court must
issue a writ of mandamus and give directions to compel
performance in an appropriate and lawful manner of
the discretion conferred upon the Government or a
public authority.
102. In appropriate cases, in order to prevent
injustice to the parties, the Court may itself pass an
order or give directions which the Government or the
public authorities should have passed, had it properly
and lawfully exercised its discretion. In Director of
Settlements, A.P. v. M.R. Apparao [Director of
Settlements, A.P. v. M.R. Apparao, (2002) 4 SCC 638] .
Pattanaik, J. observed: (SCC p. 659, para 17).
"17. ... One of the conditions for exercising power
under Article 226 for issuance of a mandamus is
that the court must come to the conclusion that
the aggrieved person has a legal right, which
entitles him to any of the rights and that such right
has been infringed. In other words, existence of a
legal right of a citizen and performance of any
corresponding legal duty by the State or any
public authority, could be enforced by issuance of
a writ of mandamus, "mandamus" means a
command. It differs from the writs of prohibition or
certiorari in its demand for some activity on the
part of the body or person to whom it is
addressed. Mandamus is a command issued to
direct any person, corporation, inferior courts or
Government, requiring him or them to do some
particular thing therein specified which appertains
to his or their office and is in the nature of a public
duty. A mandamus is available against any public
authority including administrative and local
bodies, and it would lie to any person who is
under a duty imposed by a statute or by the
common law to do a particular act. In order to
obtain a writ or order in the nature of mandamus,
the applicant has to satisfy that he has a legal
W.P. No.7460/2020
right to the performance of a legal duty by the
party against whom the mandamus is sought and
such right must be subsisting on the date of the
petition (see Kalyan Singh v. State of U.P., AIR
1962 SC 1183). The duty that may be enjoined by
mandamus may be one imposed by the
Constitution, a statute, common law or by rules or
orders having the force of law."
(emphasis in original)
103. The Court is duty-bound to issue a writ of
mandamus for enforcement of a public duty. There can
be no doubt that an important requisite for issue of
mandamus is that mandamus lies to enforce a legal
duty. This duty must be shown to exist towards the
applicant. A statutory duty must exist before it can be
enforced through mandamus. Unless a statutory duty
or right can be read in the provision, mandamus cannot
be issued to enforce the same.
104. The High Court is not deprived of its
jurisdiction to entertain a petition under Article 226
merely because in considering the petitioner's right to
relief, questions of fact may fall to be determined. In a
petition under Article 226, the High Court has
jurisdiction to try issues both of fact and law. Exercise
of the jurisdiction is, it is true, discretionary, but the
discretion must be exercised on sound judicial
principles. Reference may be made inter alia to the
judgments of this Court in Gunwant Kaur v. Municipal
Committee, Bhatinda (1969) 3 SCC 769 and State of
Kerala v. M.K. Jose (2015) 9 SCC 433. In M.K. Jose
this Court held: (SCC pp. 442-43, para 16)
"16. Having referred to the aforesaid decisions, it is
obligatory on our part to refer to two other
authorities of this Court where it has been opined
that under what circumstances a disputed question
of fact can be gone into. In Gunwant Kaur v.
Municipal Committee, Bhatinda (1969) 3 SCC 769,
it has been held thus: (SCC p. 774, paras 14-16)
'14. The High Court observed that they
will not determine disputed question of fact in a
writ petition. But what facts were in dispute
and what were admitted could only be
determined after an affidavit-in-reply was filed
by the State. The High Court, however,
proceeded to dismiss the petition in limine.
The High Court is not deprived of its
jurisdiction to entertain a petition under Article
226 merely because in considering the
petitioner's right to relief questions of fact may
fall to be determined. In a petition under Article
W.P. No.7460/2020
226 the High Court has jurisdiction to try
issues both of fact and law. Exercise of the
jurisdiction is, it is true, discretionary, but the
discretion must be exercised on sound judicial
principles. When the petition raises questions
of fact of a complex nature, which may for their
determination require oral evidence to be
taken, and on that account the High Court is of
the view that the dispute may not appropriately
be tried in a writ petition, the High Court may
decline to try a petition. Rejection of a petition
in limine will normally be justified, where the
High Court is of the view that the petition is
frivolous or because of the nature of the claim
made dispute sought to be agitated, or that the
petition against the party against whom relief is
claimed is not maintainable or that the dispute
raised thereby is such that it would be
inappropriate to try it in the writ jurisdiction, or
for analogous reasons.
15. From the averments made in the
petition filed by the appellants it is clear that in
proof of a large number of allegations the
appellants relied upon documentary evidence
and the only matter in respect of which conflict
of facts may possibly arise related to the due
publication of the notification under Section 4
by the Collector.
16. In the present case, in our judgment,
the High Court was not justified in dismissing
the petition on the ground that it will not
determine disputed question of fact. The High
Court has jurisdiction to determine questions
of fact, even if they are in dispute and the
present, in our judgment, is a case in which in
the interests of both the parties the High Court
should have entertained the petition and called
for an affidavit-in-reply from the respondents,
and should have proceeded to try the petition
instead of relegating the appellants to a
separate suit.'"
(emphasis in original and supplied)
105. In ABL International Ltd. v. Export Credit
Guarantee Corpn. of India Ltd. (2004) 3 SCC 553, this
Court referring to previous judgments of this Court
including Gunwant Kaur v. Municipal Committee,
Bhatinda, (1969) 3 SCC 769 held : (ABL International
Ltd. case [ABL International Ltd. v. Export Credit
Guarantee Corpn. of India Ltd., (2004) 3 SCC 553] ,
SCC pp. 568-69 & 572, paras 19 & 27)
W.P. No.7460/2020
"19. Therefore, it is clear from the above
enunciation of law that merely because one of
the parties to the litigation raises a dispute in
regard to the facts of the case, the court
entertaining such petition under Article 226 of the
Constitution is not always bound to relegate the
parties to a suit. In the above case of Gunwant
Kaur [Gunwant Kaur v. Municipal Committee,
Bhatinda, (1969) 3 SCC 769] this Court even
went to the extent of holding that in a writ
petition, if the facts require, even oral evidence
can be taken. This clearly shows that in an
appropriate case, the writ court has the
jurisdiction to entertain a writ petition involving
disputed questions of fact and there is no
absolute bar for entertaining a writ petition even if
the same arises out of a contractual obligation
and/or involves some disputed questions of fact.
* * *
27. From the above discussion of ours, the
following legal principles emerge as to the
maintainability of a writ petition:
(a) In an appropriate case, a writ petition as
against a State or an instrumentality of a State
arising out of a contractual obligation is
maintainable.
(b) Merely because some disputed questions of
fact arise for consideration, same cannot be a
ground to refuse to entertain a writ petition in all
cases as a matter of rule;
(c) A writ petition involving a consequential relief
of monetary claim is also maintainable."
106. In the present case, it is not even in
dispute that the private road in question did not at any
point of time belong to Pune Municipal Corporation. It is
shown to be held by the holders by adjacent Plots Nos.
473-B1, 473-B2 and 473-B3.
107. In the facts and circumstances of the
instant case, in the light of admissions, on the part of
the respondent authorities that the private road
measuring 414 sq.m. was private property never
acquired by Pune Municipal Corporation or the State
Government, the respondents had a public duty under
Section 91 to appropriately modify the scheme and to
show the private road as property of its legitimate
owners, as per the property records in existence, and
or in the award of the arbitrator. In our considered
opinion, the Bombay High Court erred in law in
dismissing the writ petition with the observation that the
W.P. No.7460/2020
land in question had vested under Section 88 of the
Regional and Town Planning Act."
22. Further, in case of Union of India and another
Vs. S.B. Vohra and others reported in (2004) 2 SCC 150,
the Supreme Court in paragraphs-12, 13 and 14 has
observed as under:-
"12. Mandamus literally means a command.
The essence of mandamus in England was that it was
a royal command issued by the King's Bench (now
Queen's Bench) directing performance of a public legal
duty.
13. A writ of mandamus is issued in favour of a
person who establishes a legal right in himself. A writ of
mandamus is issued against a person who has a legal
duty to perform but has failed and/or neglected to do
so. Such a legal duty emanates from either in
discharge of a public duty or by operation of law. The
writ of mandamus is of a most extensive remedial
nature. The object of mandamus is to prevent disorder
from a failure of justice and is required to be granted in
all cases where law has established no specific remedy
and whether justice despite demanded has not been
granted.
14. In Comptroller and Auditor General of India
v. K.S. Jagannathan (1986) 2 SCC 679 it was held that:
(SCC p. 691, para 18)
Article 226 is designedly couched in a wide
language in order not to confine the power conferred by
it on the High Courts only to the power to issue
prerogative writs as understood in England. The High
Courts exercising jurisdiction under Article 226 can
issue directions, orders or writs so as to enable the
High Courts to reach injustice wherever it is found and
to mould the reliefs to meet the particular and
complicated needs of this country."
23. The Supreme Court in case of Shangrila Food
Products Ltd. and another Vs. Life Insurance
Corporation of India and another reported in (1996) 5
SCC 54 in paragraph-11 has held as under:-
W.P. No.7460/2020
"11. It is well settled that the High Court in
exercise of its jurisdiction under Article 226 of the
Constitution can take cognisance of the entire facts and
circumstances of the case and pass appropriate orders
to give the parties complete and substantial justice.
This jurisdiction of the High Court, being extraordinary,
is normally exercisable keeping in mind the principles
of equity. One of the ends of the equity is to promote
honesty and fair play. If there be any unfair advantage
gained by a party priorly, before invoking the
jurisdiction of the High Court, the Court can take into
account the unfair advantage gained and can require
the party to shed the unfair gain before granting relief.
What precisely has been done by the learned Single
Judge, is clear from the above emphasised words
which may be reread with advantage. The question of
claim to damages and their ascertainment would only
arise in the event of the Life Insurance Corporation,
respondent, succeeding to prove that the appellant
Company was an unlawful sub-tenant and therefore in
unauthorised occupation of public premises. If the
findings were to go in favour of the appellant Company
and it is proved to be a lawful sub-tenant and hence not
an unauthorised occupant, the direction to adjudge the
claim for damages would be rendered sterile and
otiose. It is only in the event of the appellant Company
being held to be an unlawful sub-tenant and hence an
unauthorised occupant that the claim for damages
would be determinable. We see therefore no fault in the
High Court adopting such course in order to balance
the equities between the contestants especially when it
otherwise had power of superintendence under Article
227 of the Constitution in addition. We cannot be
oblivious to the fact that when the occupation of the
premises in question was a factor in continuation of the
liability to pay for the use and occupation thereof, be it
in the form of rent or damages, was also a continuing
factor. The cause of justice, as viewed by the High
Court, did clearly warrant that both these questions be
viewed interdependently. For those who seek equity
must bow to equity."
24. Further, in the case reported in (1986) 3 SCC
247 parties being Harmindar Singh Arora Vs. Union of
India and others the Supreme Court has observed that
acceptance of bid by respondents though it was much
higher and detriment to the State and rejection of the
W.P. No.7460/2020
tender of the lowest bidder under the terms of the tender
notice was found to be illegal, therefore, the Supreme
Court quashed the acceptance of tender of respondent
No.4 by the authorities instead directing consideration of
the tender of the lowest bidder, specifically mandated that
the tender of the lowest bidder be accepted.
25. In case of State of Orissa Vs. Dr. (Miss)
Binapani Dei and others reported in AIR 1967 SCR
1269, the Supreme Court in paragraphs-6, 9 and 12 has
held as under:-
"6. It was the case of the first respondent in her
petition before the High Court that the State had
arbitrarily fixed her date of birth as April 16, 1907, and
on that basis had declared her superannuated before
she attained the age of 58 years. On behalf of the State
it was denied that the true date of birth of the first
respondent was April 10, 1910, and that the authorities
of the State had arbitrarily and maliciously chosen to
refix her date of birth. Under Article 226 of the
Constitution the High Court is not precluded from
entering upon a decision on questions of fact raised by
the petition. Where an enquiry into complicated
questions of fact arises in a petition under Article 226 of
the Constitution before the right of an aggrieved party
to obtain relief claimed may be determined, the High
Court may in appropriate cases decline to enter upon
that enquiry and may refer the party claiming relief to a
suit. But the question is one of discretion and not of
jurisdiction of the Court. In the present case the
question in dispute was about the regularity of the
enquiry and the High Court was apparently of the view
that the question whether the State acted arbitrarily did
not raise any question of investigation into complicated
issues of fact. No interference with the exercise of the
discretion of the High Court is therefore called for.
9. The first respondent held office in the
Medical Department of the Orissa Government. She,
as holder of that office, had a right to continue in
service according to the Rules framed under Article 309
W.P. No.7460/2020
and she could not be removed from office before
superannuation except "for good and sufficient
reasons". The State was undoubtedly not precluded,
merely because of the acceptance of the date of birth
of the first respondent in the service register, from
holding an enquiry if there existed sufficient grounds for
holding such enquiry and for re-fixing her date of birth.
But the decision of the State could be based upon the
result of an enquiry in manner consonant with the basic
concept of justice. An order by the State to the
prejudice of a person in derogation of his vested rights
may be made only in accordance with the basic rules of
justice and fairplay. The deciding authority, it is true, is
not in the position of a Judge called upon to decide an
action between contesting parties, and strict
compliance with the forms of judicial procedure may
not be insisted upon. He is however under a duty to
give the person against whom an enquiry is held an
opportunity to set up his version or defence and an
opportunity to correct or to controvert any evidence in
the possession of the authority which is sought to be
relied upon to his prejudice. For that purpose the
person against whom in enquiry is held must be
informed of the case he is called upon to meet, and the
evidence in support thereof. The rule that a party to
whose prejudice an order is intended to be passed is
entitled to a hearing applies alike to judicial tribunals
and bodies of persons invested with authority to
adjudicate upon matters involving civil consequences.
It is one of the fundamental rules of our constitutional
set-up that every citizen is protected against exercise
of arbitrary authority by the State or its officers. Duty to
act judicially would therefore arise from the very nature
of the function intended to be performed: it need not be
shown to be super-added. If there is power to decide
and determine to the prejudice of a person, duty to act
judicially is implicit in the exercise of such power. If the
essentials of justice be ignored and an order to the
prejudice of a person is made, the order is a nullity.
That is a basic concept of the rule of law and
importance thereof transcends the significance of a
decision in any particular case.
12. It is true that some preliminary enquiry was
made by Dr S. Mitra. But the report, of that enquiry
officer was never disclosed to the first respondent.
Thereafter the first respondent was required to show
cause why April 16, 1907 should not be accepted as
the date of birth and without recording any evidence
the order was passed. We think that such an enquiry
and decision were contrary to the basic concept of
justice and cannot have any value. It is true that the
order is administrative in character, but even an
W.P. No.7460/2020
administrative order which involves civil consequences,
as already stated, must be made consistently with the
rules of natural justice after informing the first
respondent of the case of the State, the evidence in
support thereof and after giving an opportunity to the
first respondent of being heard and meeting or
explaining the evidence. No such steps were
admittedly taken, the High Court was, in our judgment,
right in setting aside the order of the State."
26. The Supreme Court in case of University of
Calcutta and others Vs. Sm. Gopa Chakraborty and
another reported in AIR 1993 Cal. 1 in paragraphs-4, 5
and 6 has observed as under:-
"4. Mr. Harasit Chakraborty, the learned
Advocate for the respondent-writ petitioner, on the
other hand, has contended that there is no rule
regarding the procedure to be followed for re-
examination. It is done by the University according to
practice. That the answer script which has to be re-
examined is sent to an examiner other than the original
examiner. The admitted position in the present case, it
is urged, is that Paper VI could not be re-examined as
it was lost and the marks in Paper VIII in which the
respondent-writ petitioner got 23, on re-examination
remained unaltered. The student, the writ petitioner,
was not certainly at fault for the loss of Paper VI. In
various affidavits, sworn by the appellant-University
and its different officers filed by the Registrar of the
university, it was disclosed that the writ petitioner
candidate was given average marks in the lost paper VI
calculated on the basis of marks obtained by her in
paper-V, paper-VII and Paper VIII in which she
obtained 52, 42 and 23 respectively. By adding the
average marks she got in all 156. It was further
disclosed that she was given six marks on the basis of
average marking and 3 marks on the basis of general
grace marks. This 9 (67+3) marks was added to her
marks which she obtained in Paper VI, i.e. 30 marks. It
appears from the facts disclosed in the affidavits of the
appellant and its officers that such average marks or
extra 9 marks was given by the Vice Chancellor on 28-
5-84 in terms of the resolution adopted by the
Syndicate in its minutes of the proceeding against the
item Nos. 30 and 31 dated 31-3-83 and 26-4-83
respectively. It would further appear that even this
W.P. No.7460/2020
revised marks, i.e. 30 marks in the lost paper VI was
not quoted in the letter sent to the candidate. It is the
case of the university that it was not done through
oversight. Mr. Chakraborty has strenuously urged that
the appellant could not produce any rules or disclose
any modality for awarding average marks or grace
marks and whatever they did, they did according to
their discretion. He has further objected to the stand
taken by the appellant that the writ petitioner candidate
made no grievance as to her marks obtained in Papers
VI and VIII and made no representation with regard to
marks obtained in such papers. Her specific case, it is
submitted by Mr. Chakraborty, in the writ petition that
she had to move even the Minister of Education having
failed to obtain the form for re-examination in respect of
Papers VI and VIII in B.A. II examination. According to
him, the stand taken by the university in this regard is
wholly unfounded. He finally submits that the learned
trial Judge in the facts and circumstances of the case
rightly held that the average marks should be
calculated on the basis of undisputed marks in paper VI
and Paper VII which were 52 and 42 respectively. If
calculation is done on the basis of the marks obtained
in the undisputed paper V and VII then average marks
would be 47. He has further proceeded to submit that if
"general grace marks theory" of awarding 3 marks by
the university be accepted, this extra 3 marks if added
to the total of 164 it would come to 167. This marks if
added to the marks the writ petitioner obtained in Part I
examination which was 155 would make a total of 322.
The learned Trial Judge instead of going by this
calculation took the mean and awarded 1 mark in
Paper VIII and thus came to the conclusion that the
candidate would get by this process 165 and if this
mark be added to the marks obtained by her in Part I
examination it would bring the total marks 320 which is
the minimum marks for obtaining honours in total eight
honours papers at the rate of 40% marks in each of the
papers. According to him, there is no ground for
interference with the finding of the learned trial Judge in
this appeal.
5. On examination of the respective case of the
parties as disclosed by the pleadings and affidavits and
the materials on record in the shape of minutes of the
proceedings of the Syndicate and the correspondence
that passed internally between the different
departments of the university and between the writ
petitioner and also the appellant, the university, it is
clear that the appellant, university acted after
discussion and deliberations in the meeting of the
Syndicate and in the exercise of their discretion instead
of following any rules or procedure. The discretion,
W.P. No.7460/2020
according to well established principles means that
when something is to be done according to discretion it
must be done according to rules of reasons and justice
and not private opinion and humour. It is to be not
arbitrary, vague and fanciful but legal and regular. It
must be exercised within the limit to which an honest
man is competent to the discharge of his office ought to
confine himself Sharp v. Wakefield, 1891 AC 173. "If
people, who have to exercise a public duty by
exercising their discretion, taken into account the
matter which should the court consider not to be proper
for their guidance of their discretion, then in the eye of
law they have not exercised that discretion" --
(Maxwell on the Interpretation of Statutes 11th Edition
page 118). "It is well settled that a public body invested
with statutory powers .........may take care not to
exceed or abuse out of the power. It must keep within
limits of the authority committed to do it must act to
good faith and it must act reasonably Mayor etc. v.
N.W. Railway Company, 1905 AC 426 at page 430 See
Maxwell on the Interpretation of Statutes 12th Edition
146. This approach to construction has two
consequences: The statutory discretion must be truly
exercised and when exercised it must be exercised
reasonably (Maxwell 146). See also Johnson v.
Buttress (1936) 56 CLR 113 at p 135: "When a man is
occupying a position involving assendency or influence
over another or a dependence or trust on his part it is
his duty to use his position of influence in the interest of
no one but the man who is governed by his judgment."
The court, as in the present case, examined the
propriety of use of discretion by dominant authority like
the university in which the examinees, candidates,
guardians and the people at large usually repose their
trust and confidence, should follow the tests contained
in the principles stated above. The learned trial Judge
while considering the pros and cons of the matter after
examining the relevant materials on record came to the
conclusion that the university acted arbitrarily and did
not do justice to the writ petitioner. In order to do justice
to the writ petitioner, the learned trial Judge took a fair
and just view of the matter and awarded minimum of
the marks in order to enable the writ petitioner to get
honours in the examination in which she appeared. The
Supreme Court in the decision of Madan Gopal v. Man
Raj, AIR 1976 SC 461 held that there is no particular
ritualistic formula in which the order of the court has to
be passed when it used its own discretion. See also
S.G. Jaisinghani v. Union of India, AIR 1967 SC 1427.
It lays down that discretion when conferred upon
executive authorities, must be found within clearly
defined limits. It means sound discretion guided by law.
It must be governed by rule, not by humour, it must not
W.P. No.7460/2020
be arbitrary, vague and fanciful. It is also the law that
the court in appeal should only examine whether the
discretion by trial court has been properly exercised
and it would not substitute its own discretion in place of
the discretion exercised by the trial court. Mysore State
v. Mirza, AIR 1977 SC 747 : (1977 Lab IC 272). If the
discretion has been exercised by the trial court
reasonably and in a judicial manner, the fact that the
appellate court would have taken a different view may
not justify interference with the trial court's exercise of
discretion U.P. Co-operative v. Sundar, AIR 1967 SC
249. The trial Judge, in our view, has used his
discretion very fairly and reasonably in the facts and
circumstances of the case. We are of the view that no
interference is called for with the order passed by the
learned trial Judge in this regard.
6. The learned trial Judge also considered the
sufferings, anxiety and harassment of the writ petitioner
who appeared in B.A. Part II examination sometime in
February, 1983 and moved the court more than once in
writ petition for getting justice and held that the
university which had lost the answer scripts in paper VI
should take a compassionate view as to the grievances
of the writ petitioner. We are in agreement with the view
taken by the learned trial Judge. After struggling for 7
years she could get the judgment in her favour only in
February, 1990. We find no infirmity in the said
judgment."
27. The Supreme Court also in the case of
Karnataka State Forest Industries Corporation v.
Indian Rocks (2009) 1 SCC 150 has dealt with the scope
of Article 226 of the Constitution of India and considered
as to in what circumstances, the writ of mandamus can be
issued. It is observed by the Supreme Court even in a
matter of contract when it is found that the action of the
State is arbitrary or discriminatory and violative of Article
14 of the Constitution of India, writ petition is not only
maintainable, but mandamus can also be issued to protect
W.P. No.7460/2020
the legal rights of the petitioner. In this case, a government
undertaking engaged in sale of seized and confiscated
granite blocks to persons who intended to purchase in the
tender-cum-allotment sale on "as is where is basis". The
bidder has to make arrangement to obtain transit permit at
his own cost from the Forest Department. The dispute
arose out of the contract awarded alleging breach of its
conditions then it has been cancelled at the risk and cost
basis. There was some outstanding towards the bidder to
whom contract was awarded but he refused to pay the
amount. Finally, bidder filed a writ petition claiming the
following relief:-
(i) Issue an order, direction or writ in the
nature of mandamus directing the State
Organisation to implement government
order dated 16.01.1996.
(ii) Issue an order, direction or writ in the
nature of mandamus, directing the
respondents to refund the sum of
Rs.9,44,478.55 together with interest
calculated at 18% in terms of the
government order dated 16.01.1996.
The Single Bench of the High Court allowed the writ
petition directing the State Corporation to refund the sum
of Rs.3,75,905.35 with interest, then writ appeal was
preferred, which was also dismissed. Against the said
W.P. No.7460/2020
order, SLP was preferred, in which, the Supreme Court
while dismissing the SLP, has observed as under:-
"38. Although ordinarily a superior court in
exercise of its writ jurisdiction would not enforce
the terms of a contract qua contract, it is trite that
when an action of the State is arbitrary or
discriminatory and, thus, violative of Article 14 of
the Constitution of India, a writ petition would be
maintainable. ( See ABL International Ltd. v.
Export Credit Guarantee Corpn. of India Ltd.
[ (2004) 3 SCC 553.
39. There cannot be any doubt whatsoever that a
writ of mandamus can be issued only when there
exists a legal right in the Writ Petition and a
corresponding legal duty on the part of the State,
but then if any action on the part of the State is
wholly unfair or arbitrary, the superior courts are
not powerless. Reliance placed by Mr. Divan on
G.J. Fernandez v. State of Mysore and other,
( [1967] 3 SCR 636 ) is not apposite. In that case
itself it was held :-
"12. Thus under Art. 162 the State
Government can take executive action in all
matters in which the legislature of the State
can pass laws. But Art. 162 itself does not
confer any rule making power on the State
Government in the behalf."
28. The Supreme Court in the case of Zonal
Manager, Central Bank of India v. Devi Ispat Limited
and others (2010) 11 SCC 186 has dealt with the scope
of judicial review in contractual matter and has observed
as under:-
"28. It is clear that, (a) in the contract if there is a
clause for arbitration, normally, writ court should not
invoke its jurisdiction; (b) the existence of effective
alternative remedy provided in the contract itself is a
good ground to decline to exercise its extraordinary
jurisdiction under Art. 226; and (c) if the
instrumentality of the State acts contrary to the
public good, public interest, unfairly, unjustly,
unreasonably discriminatory and violative of Art. 14
W.P. No.7460/2020
of the Constitution of India in its contractual or
statutory obligation, writ petition would be
maintainable. However, a legal right must exist and
corresponding legal duty on the part of the State
and if any action on the part of the State is wholly
unfair or arbitrary, writ courts can exercise their
power. In the light of the legal position, writ petition
is maintainable even in contractual matters, in the
circumstances mentioned in the earlier paragraphs.
29. In the case on hand, it is not in dispute that the
appellant-Bank, being a public sector Bank,
discharging public functions is "State" under Article
12. In view of the settlement of the dues on the date
of filing of the writ petition by arrangement made
through another Nationalized Bank, namely, State
Bank of India and the statement of accounts
furnished by the appellant-Bank subsequent to the
same i.e. on 14.05.2009 is 0.00 (nil) outstanding, we
hold that the High Court was fully justified in issuing
a writ of mandamus for return of its title deeds."
29. The counsel for the petitioner also relied upon
the judgments of the Delhi High Court wherein specific
mandamus was issued in exercise of power under Article
226 of the Constitution of India directing conversion of
lease hold land into free hold and such judgments are as
follows:-
(i) Annu Chopra Vs. D.D.A. decided vide
order dated 04.01.2005.
(ii) J.K. Bhartiya and Ors Vs. Union of
India and Anr., 126 (2006) DLT 302
decided vide order dated 05.12.2005.
(iii) Maharaj Krishan Kapoor Vs. Delhi
Development Authority and Anr. [W.P.
W.P. No.7460/2020
(C) No.4886/2006] decided vide order
dated 07.09.2007. The said decision has
been upheld by the Division Bench of
Delhi High Court in LPA No.1365/2007
vide order dated 11.08.2009.
30. In case of Annu Chopra (supra) the question
regarding conversion of lease-hold land into free-hold land
has been considered by the Delhi High Court and while
exercising writ jurisdiction under Article 226 of the
Constitution, it has been been observed as under:-
"49. Since, in the instant case record of DDA does
not show any prior notice being served upon the
petitioner, no misuse charges can be levied.
However, counsel for the petitioner submitted that
petitioner would not like to retract from the
concession given by her in letter dated 9.12.2003.
In that view of the matter, in view of the circulars
dated 26.6.2001 and 8.8.2001, misuse charges
which can be levied from the petitioner have to be
restricted to the period 22.10.1997 up to
28.6.1999. It has to be noted that record of DDA
shows that the dealing assistant of DDA has put a
note on the file that matter for levy of misuse has
to be dealt with as per circulars dated 26.6.2001
and 8.8.2001. The said note is dated 17.12.2003.
The nate has been approved by the Director (RL)
on 17.12.2003.
50. For the area qua which misuse charges can be
levied, area circulated by DDA being 55.27 Sq.
Mtrs. has been found to be the ipsi dixit of the
officers of the DDA. Petitioner admitted using
11.87 Sq. Mtrs. Area for running pre-nursery/KG
classes. Since strictly speaking petitioner would
not be liable to make any payment towards misuse
charges and whatever flows towards the coffers of
the DDA in as per her concession, misuse charges
have to be calculated by treating 11.87 Sq. Mtrs.
area as being misused.
51. Rule is made absolute. Impugned letter dated
W.P. No.7460/2020
23.9.2004 is quashed in so far misuse charges in
sum of Rs. 7,78,071/- are demanded. Mandamus
is issued to DDA to raise a demand on the
petitioner for misuse charges treating area
misused as 11.87 Sq. Mtrs. Period of misuse to be
restricted from 22.10.1997 to 28.6.1999. On the
petitioner paying the revised demand, application
of the petitioner for conversion of the property from
lease hold to free hold would be processess. DDA
would raise the revised demand within 4 weeks
from today. Petitioner would pay the same within 4
weeks thereafter. Within 4 weeks of receipt of
misuse charges, DDA would execute the
conveyance deed converting the land from lease
hold to free hold subject to the petitioner paying
the stamp duty and any other unpaid charges and
on completing formalities.
(emphasis supplied)
52. No costs."
It is clear from the aforesaid decision that a writ of
mandamus can be issued by the High Court exercising
jurisdiction under Article 226 of the Constitution with a
positive direction giving the authority to allow the
application for conversion of lease-hold land into free-hold
land.
31. Further, in the case of J.K. Bhartiya (supra)
again, the Delhi High Court consider the dispute with
regard to converting lease-hold land into free-hold land in
a petition filed by the holders of lease-hold land claiming
conversion of their land into free-hold land in view of the
conversion policy, which was modified/clarified from time
to time and also claimed refund of sum of Rs.4,84,168/-
from Delhi Development Authority. The High Court finally
W.P. No.7460/2020
allowed the writ petition with the following directions:-
"49. The two writ petitions are accordingly allowed
as under:-
(i) WP(C) No. 9911-12/05 is disposed of with a
direction to DDA to refund sum of Rs. 18,35,646/-
to the petitioners within a period of 60 days from
date of the present decision, failing which the
amount would be paid with interest @ 12% p.a.
with effect from 60 days from date of the present
decision till date of payment. Mandamus is issued
to DDA to convert the leasehold tenure in respect
of plot No. D-5, Maharani Bagh, New Delhi into
freehold in the names of the petitioners after
receiving the conversion charges and surcharge
thereon if not already paid. If paid, necessary
conveyance deed would be executed on the
petitioner's obtaining the proforma of the
conveyance deed and paying the requisite stamp
duty thereon. Needful would be done within four
months from date of the present decision.
(ii) WP(C) 4590-95/04 is disposed of with a
direction to DDA to refund a sum of Rs. 4,84,168/-
to the petitioners 5 and 6 within a period of 60
days from date of the present decision, failing
which the amount would be paid with interest @
12% p.a. with effect from 60 days from date of the
present decision till date of payment. Mandamus is
issued to DDA to convert the leasehold tenure in
respect of plot No. D-1087, New Friends Colony,
New Delhi into freehold in the names of the
petitioners 5 and 6 after receiving the conversion
charges and surcharge thereon if not already paid,
subject to petitioners 5 and 6 paying the
restoration charges since the lease has been
determined and re-entry has been ordered, which
order requires to be undone. Needless to state the
quantum of restoration charges would be as per
DDA's circular dated 2.8.1996. (It may be noted
that Sh. Ravinder Sethi, learned Senior Counsel
for the petitioners had consented in this respect
that the petitioners 5 and 6 would pay the
restoration charges). If paid, necessary
conveyance deed would be executed on the
petitioners 5 and 6 obtaining the proforma of the
conveyance deed and paying the requisite stamp
duty thereon.
(emphasis supplied)
(iii) Needful would be done within four months from
date of the present decision."
W.P. No.7460/2020
32. Further, in the case of Maharaj Krishan
Kapoor (supra), the Delhi High Court again considered
the dispute with regard to the conversion of lease-hold
land into free-hold land as per the policy introduced by the
Delhi Development Authority and exercising writ
jurisdiction under Article 226 of the Constitution of India,
allowed the writ petition with the following directions:-
"29. Accordingly, the impugned demand for
permission fee raised by the DDA against the
Petitioner by its letter dated 3.3.2006 in respect of
the premises in question is held to be bad in law
and is hereby quashed. As regards the liability the
SBI, the facts of the present case show that the
SBI had already been deducting the composition
fee component from the monthly rent payable to
the petitioner for the premises in question during
the period from 16.1.1992 onwards till it vacated
the premises. It remains to be seen whether this
amount was remitted by the SBI to the DDA. The
question of the liability of the SBI for the period
prior thereto will also have to be determined in light
of the order dated 29.11.2006 of the Hon'ble
Supreme Court. If in light of these facts and
circumstances, the DDA seeks to contend that the
permission fee is still owing to it for the premises in
question it will open to the DDA proceed against
the SBI in accordance with law.
30. The Petitioner has admittedly paid the entire
conversion charges together with interest.
Therefore, within a period of four weeks from
today, and in any event not later than 8.10.2007,
the DDA will pass the necessary orders granting
conversion of the premises in question from
leasehold to freehold and also execute the
necessary conveyance deed in favor of the
petitioner within the same period.
31. With the above directions, the writ petition is
allowed with costs of Rs. 5,000 which will be paid
by the DDA to the Petitioner also within a period of
four weeks from today, and in any event not later
than 8.10.2007."
33. The order passed by the writ court was
W.P. No.7460/2020
further assailed and the Division Bench in LPA
No.1365/2007 while dismissing the appeal, has
observed as under:-
"8. In our opinion, appellant-DDA having decided
to prosecute respondent-SBI for misuse of
premises in question and having been a party to
quashing of the said proceedings, cannot now
insist that respondent-owner should first make the
payment of misuse charges before appellant-DDA
can grant conversion of the aforesaid premises. In
fact, we find that appellant-DDA's stance of
recovery of misuse charges is an afterthought and
has been taken for the first time in the present
proceedings, as initially it was appellant-DDA's
case that the respondents were not entitled to any
permission and for breach of the Perpetual Lease
covenants, respondent-SBI was liable to be
criminally prosecuted. Even in March, 2006 at the
time of rejection of respondent- owner's
application, the appellant-DDA asked for payment
of aforesaid amount on account of permission fee
and not misuse charges.
9. We are also in agreement with learned Single
Judge that if indeed the misuse had continued
from 1st April, 1990 to 6th May, 1999 then why did
DDA not raise such a demand prior to 3rd March,
2006 against the respondent-owner. Keeping in
view the aforesaid, we are of the opinion that the
stance adopted by appellant-DDA is inequitable in
the facts and circumstances of this case.
10. Consequently, present appeal is dismissed
but appellant-DDA is given liberty to recover, if so
permissible in law, the demand of Rs. 36,23,538/-
from respondent-SBI. However, Appellant-DDA is
directed to pass necessary orders granting
conversion of premises in question from leasehold
to freehold and also to execute necessary
conveyance deed in favour of respondent-owner
within a period of four weeks from today."
34. Considering the aforesaid decisions and the
view taken by the Courts therein, it is clear that the High
Court in exercise of its power under Article 226 of the
Constitution can issue mandamus and give directions to
W.P. No.7460/2020
compel performance in an appropriate and lawful manner
and in an appropriate case, in order to prevent injustice to
the party and can mould the relief to meet the
requirements of the case and the Court may itself pass an
order or give directions which the Government or the
Public Authority should have passed, had it properly and
lawfully exercised its discretion.
35. In the manner in which the
respondents/authorities have acted against the petitioner, I
find that this would be a futile exercise to remit the matter
to the authority to reconsider the application of the
petitioner and to pass an appropriate order thereon.
Considering the material produced by the parties before
this Court, I have no hesitation to say that the
respondent/authority acted arbitrarily, illegally and without
jurisdiction refused to allow the application submitted by
the petitioner for conversion of lease-hold land into free-
hold land. As already observed above that there was no
necessity to make any recommendation and to seek
approval from the State Government because it is the
Chief Executive Officer who is the competent authority to
take final decision on the application and the said authority
was very much inclined to allow the application and has
already expressed its opinion in letter dated 26.02.2019
W.P. No.7460/2020
(Annexure-P/18) then merely because the decision could
not be taken by the State Government on the said
application and on a recommendation of the competent
authority till the expiry of lease period and refused to
consider the application on the ground that lease period is
expired and as such the application cannot be considered,
is an absolutely arbitrary and illegal exercise of power. It
indicates that the respondents/authorities were bent upon
to dispossess the petitioner for the reason best known to
them, whereas law permits the petitioner to get conversion
of his lease-hold land into free-hold land.
36. In the circumstance, this Court is duty bound to
pass an order to do substantial/complete justice.
Therefore, all the relatable questions framed by this Court
hereinabove are answered in favour of the petitioner on
the basis of detailed discussion made hereinabove
elaborately considering the material available on record.
37. Consequently, this petition is allowed and the
impugned orders dated 16.03.2020 (Annexures-P/10),
12.05.2020 (Annexures-P/11) and 12.05.2020
(Annexures-P/12) are set aside with the following
directions:-
(i) Respondent No.3 shall pass an order
W.P. No.7460/2020
allowing the application of the petitioner
for conversion of lease-hold land into free-
hold land; and,
(ii) The respondents shall restore the
possession of the land in question and
handover the same to the petitioner
forthwith.
38. Looking to the facts and circumstances of the
case, the parties are directed to bear their own costs.
(SANJAY DWIVEDI)
JUDGE
Sudesh
ac/-
ANIL CHOUDHARY
2021.10.27 17:24:06
+05'30'
