STATE OF MADHYA PRADESHversusNERBUDDA VALLEY REFRIGERATED PRODUCTS COMPANY PVT. LTD. & ORS.

                        [2010] 8 S.C.R. 982


A                STATE OF MADHYA PRADESH
                                  v.
             NERBUDDA VALLEY REFRIGERATED
            PRODUCTS COMPANY PVT. LTD & ORS.
              (Civil Appeal NO. 5883 OF 2010 etc.)
B
                           JULY 23, 2010
           [P. SATHASIVAM AND ANIL R. DAVE, JJ.]

        Constitution of India, 1950:
c
        Article 226 - Exercise of writ jurisdiction in the matters
  falling in the domain of executive - High Court in a writ
  petition setting aside the order of Nazul Officer by which he
  rejected petitioner's application for NOC filed without payment
D of lease rent - HELD: The Nazul Officer is better equipped
  with to decide the application for grant of NOC - Even if the
  order of Nazul Officer requires interference, the person
  aggrieved could challenge the same before the Collector u/s
  18 of the Revenue Book Circular - It is not such a case which
E warrants direct interference by High Court in exercise of its
  extra-ordinary jurisdiction under Article 226 - Revenue Book
  Circular (Madhya Pradesh) - s. 18 - Constitutional Law -
  Separation of powers.

        Contempt of Court:
F
        Contempt petition - In a writ petition High Court directing
  Nazul Officer to decide the application for NOC filed by writ
  petitioner and to consider particular documents only - Nazul
  Officer on consideration of the relevant rules and regulations,
G rejecting the application - High Court directing the Nazul
  Officer to explain his "misconduct" - HELO: When a matter
  is remitted to original authority, it must be allowed to take a
  decision in accordance with the statutory provisions, rules and
  regulations and there cannot be any restriction on such a
H                                982
STATE OF M. P. v. NERBUDDA VALLEY REFRIGERATED 983
               PRODUCTS COMPANY

course - Even if there is an error in the order of the original        A
authority, it is for the appellate authority to set it right and the
High Court is not justified in issuing the direction -
Constitution of India, 1950 - Article 226 - Practice and
Procedure.
                                                                       B
     The appellant-State executed a lease deed in favour
of respondent no.1-company in respect of certain land on
14.3.1939 for a term of 30 years for the purpose of
developing trade in refrigerated food stuffs and
industries. The lease was being renewed with 30 years                  C
term and lastly it was renewed for a period of 30 years
from 14.3.1999 to 13.3.2029.

     By letter dated 16.1.2004 the State Government
permitted the respondent company to change the use of
the leased land from industrial purpose to commercial                  D
and residential purpose on payment of lease rent as
assessed in terms of the rules and regulations. On
6.3.2007, the respondent-company made an application
before the Nazul Officer for grant of NOC for raising
commercial and residential constructions on the leased                 E
land without paying the lease rent. The Nazul Officer
rejected the application by order dated 15.4.2008. The
order was challenged by the respondent-company in a
writ petition. An objection was raised by the State
Government as to maintainability of the writ petition in               F
view of the alternative remedy u/s 18 of the Revenue
Book Circular. However, the High Court, by its order
dated 26.9.2008, directed the Nazul Officer to decide the
application of the respondent-company and to consider
only the Circular dated 14.2.1966 and the arbitration                  G
award while taking the decision. The Nazul Officer
considered the relevant rules and regulations, and
rejected the application by order dated 2.2.2009. The
respondent-company filed a contempt petition before the
                                                                       H
    984      SUPREME COURT REPORTS              [2010] 8 S.C.R.

A High Court which, by its order dated 13.10.2009, directed
  the Nazul Officer to personally present himself before the
  Court and explain his "misconduct". Aggrieved, the State
  Government filed the appeals.

          Allowing the appeals, the Court
B
        HELD: 1.1 There is broad separation of powers under
  the Constitution of India between three organs of the
  State, i.e., the Legislature, the Executive and the
  Judiciary. It is also well established principle that one
C organ of the State should not ordinarily encroach into the
  domain of another. Even if the order of the first authority,
  in the case on hand, the Nazul Officer, requires
  interference, it is for the appellate authority to look into it
  and take a decision one way or the other and it is not an
D extraordinary case which warrants direct interference by
  the High Court in exercise of its extra-ordinary jurisdiction
  under Art. 226 of the Constitution of India, as an appellate
  court over the finding arrived at by the Nazul Officer. [para
  13) [994-B-F]
E
        1.2 Grant of NOC depends upon various factors and
  fulfilment of certain conditions and the Nazul Officer is
  better equipped with to decide the application.
  Undoubtedly, while deciding the application, Nazul
F Officer has to consider not only the circulars but also
  rules and regulations framed by the State Government.
  It is relevant to note that the Nazul Officer has adverted
  to a relevant fact that the Government, while renewing the
  lease of 3.13 acres of land from 14.03.1999 to 13.03.2029
  in favour of the respondent-Company, permitted it to
G change the use of leased land from industrial purpose to
  commercial or residential purpose on payment of the
  lease rent, as payable on the land used or changed for
  commercial or residential purpose. In such
  circumstances, if the said direction is applicable, it is but
H proper on the part of the respondent to comply with it. If
 STATE OF M. P. v. NERBUDDA VALLEY REFRIGERATED 985
                PRODUCTS COMPANY

the respondents are aggrieved of the order of the Nazul            A
Officer, they could challenge the same before the
Collector u/s 18 of the Revenue Book Circular.
lnterferenc~ by the High Court against the order of the
original authority, which is based on factual details, is not
warranted under writ jurisdiction. [para 13] [994-B-F]             B

    Punjab National Bank vs. 0. C. Krishnan & Ors., 2001 (1)
Suppl. SCR 466 = (2001) 6 SCC 569; State of Himachal
Pradesh and Ors. vs. Gujarat Ambuja Cement Ltd. and Anr.
2005 (1) Suppl. SCR 684     = (2005) 6 SCC 499 - relied on. C
      2. This Court, in a series of decisions, has held that
when a matter is remitted to the original authority to
decide the issue, the said authority must be allowed to
take a decision one way or the other in accordance with
the statutory provisions, rules and regulations applicable         D
to the same. There cannot be any restriction to pass an
order in such a way de hors the statutory provisions or
regulations/instructions applicable to the case in
particular. Even if there is any error, it is for the Collector/
Government to set it right and the High Court is not               E
justified in asking the officer to personally present and
explain his "misconduct". The High Court has exceeded
its jurisdiction in issuing such a direction. [para 14] [994-
G-H; 995-A-B]

                      Case Law Reference:                          F

 2001 (1) Suppl. SCR 466         relied on          para 12
 2005 (1) Suppl. SCR 684         reli~d on          para 12
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.                G
5883 of 2010.

    From the Judgment & Order dated 13.10.2009 of the High
Court of Madhya Pradesh at Jabalpur in Contempt Petition Civil
No. 173 of 2009.
                                                                   H
    986      SUPREME COURT REPORTS                 [2010] 8 S.C.R.


A                                  WITH

          C.A. No. 5884 of 2010.

        Ravindra Shrivastav, C.D. Singh, S. Choudhary, J. Merlyn
    Abraham for the Appellant.
B
       S. Gopakumaran Nair, T.G. Narayaan Nair, K.N.
    Madhusoodanan for the Respondents.

          The Judgment of the Court was delivered by
c         P. SATHASIVAM, J. 1. Delay condoned in S.L.P.(C) No.
    35734 of 2009. Leave granted in both the special leave
    petitions.

         2. Being aggrieved by the final order dated 26.09.2008
o   passed by the High Court of Madhya Pradesh at Jabalpur in
    Writ Petition No. 5469 of 2008 setting aside the order dated
    15.04.2008 passed by the Nazul Officer rejecting the
    application moved by the Respondent-Nerbudda Valley
    Refrigerated Products Company Pvt. Ltd. (hereinafter referred.
E   to as "the Company") for the grant of No Objection Certificate
    (NOC) to raise constructions on the leased land after changing
    the land use from industrial purpose to commercial purpose,
    the State of Madhya Pradesh has filed appeal arising out of
    S.L.P.(C) No. 35734 of 2009. Pursuant to the order of the High
F   Court, the respondent-Company alleging that though the Nazul
    Officer passed an order, has not granted NOC and disposed
    of the same not in accordance with the Circular of the State
    Government, filed a Contempt Petition (C) 173 of 2009 before
    the High Court. By order dated 13.10.2009, the High Court after
G   finding that the Nazul Officer has dealt with the matter beyond
    the Circular dated 14.02.1966 of the State Government and not
    followed its earlier order, directed him to personally present
    before the Court on 27.10.2009 to explain his "misconduct" in
    passing such order. Questioning the said order, the State of
    Madhya Pradesh has also filed SLP (C) 35732 of 2009. Since
H   both the orders of the High Court relate to the same issue, these
STATE OF M. P. v. NERBUDDA VALLEY REFRIGERATED 987
     PRODUCTS COMPANY [P. SATHASIVAM, J.]

appeals are being disposed of by this judgment.                        A

      3. Heard Mr. Ravindra Shrivastav, learned senior counsel
for the appellant and Mr. S. Gopakumaran Nair, learned senior
counsel for the respondent.

    4. The issues which arise for consideration in these               B
appeals are:-

    (i) Whether the High Court has exc,Jeded its jurisdiction
    under Article 226 of the Constitution of India while setting
    aside the order dated 15.04.2008 passed by the Nazul               C
    Officer in a writ petition when an alternative remedy is
    available to respondent no. 1 to challenge the said order
    before the Collector as per Section 18 of the Revenue
    Book Circular?
                                                                       D
     (ii) Whether the High Court is justified in directing the Nazul
     Officer to present personally to explain his "misconduct"?

      5. Before considering the above issues, it is useful to refer
certain factual details which necessitated the Nazul Officer to
pass an order declining to grant NOC. The State of Madhya              E
Pradesh as early as on 14.03.1939 executed the lease of 12
acres of land in favour of the respondent- Company for a term
of 30 years from 14.03.1939 to 13.03.1969 for the purpose of
developing trade in refrigerated food stuffs and industries at the
ground rent of Rs. 1/- per acre per annum for the first 30 years       F
of the lease. The Government of Madhya Pradesh, vide
notification dated 14.02.1966, instructed the Nazul Officer to
examine the question of ownership of ine land as per rules and
regulations so that the Government land could not be
encroached at the time of construction of the building. This           G
notification empowers the Nazul Officer to examine the question
of ownership of the land on which the construction has to be
raised. As Respondent No. 1 has violated the terms and
conditions of the lease and exceeded the scope and purpose
of the lease by raising constructions on the leased land without       H
   988      SUPREME COURT REPORTS                 [2010] 8 S.C.R.


A prior approval or permission of the State Government, the
  Additional Collector, Bhopal, on 03.05.1982, issued a show
  cause notice asking the respondent to explain as to why the
  lease not to be determined. In view of the dispute between the
  parties, the issue was referred to Arbitration as per clause 12
B of the lease deed dated 14.03.1939 for amicable settlement.
  The Arbitrator, by his award dated 03.07 .1985, held that there
  is no prohibition in the lease deed that respondent No. 1 would
  not raise constructions to develop industry, trade and
  commerce. The said award was challenged by the appellant-
C State in Misc. Appeal No. 166 of 1988 before the High Court
  of Madhya Pradesh and the High Court upheld the award
  passed by the Arbitrator on 03.07 .1985. Pursuant to the said
  order of the High Court, the appellant-State renewed the lease
  deed for 3.82 acres of land for a period of 30 years
  commencing from 1969 to 1999 in favour of the respondent.
0
  The Government of Madhya Pradesh, vide its letter dated
  04.05.1999, permitted the respondent-Company to change the
  use of leased land from industrial purpose to commercial or
  residential purpose on payment of lease rent, as payable on
E the land used or changed for commercial or residential purpose,
  as per the commercial rate assessed according to the rules
  and regulations and also directed the Collector, District Bhopal,
  to recover the said rent as per the rules and regulations.

       6. The appellant-State again renewed the lease deed for
F 3.13 acres of land for 30 years from 14.03.1999 to 13.03.2029
  in favour of the respondent-Company. Vide letter dated
  16.01.2004, the appellant-State permitted the respondent-
  Company to change the use of leased land from industrial
  purpose to commercial and residential purpose on payment of
G lease rent as assessed as per the rules and regulations. The
  Joint Director, Town & Country Planning, Bhopal sanctioned the
  plan for 3 years for residential, commercial development on the
  leased land presented by the respondent. The Government of
  Madhya Pradesh, vide its letter dated 19.01.2007, directed the
H Collector, Bhopal that where the use of leased land is changed,
 STATE OF M. P. v. NERBUDDA VALLEY REFRIGERATED 989
      PRODUCTS COMPANY [P. SATHASIVAM, J.]

then the rent on such leased land shall be re-assessed as per          A
the rules and regulations. On 06.03.2007, the respondent-
Company made an application for grant of NOC before the
Nazul Officer, Bhopal, for raising commercial and residential
constructions on the leased land without paying the lease rent
of Rs. 30,41, 10,240/- assessed as per rules and regulations           B
on the change of use of leased land to commercial and
residential purpose.

     7. The respondent filed a Writ Petition No. 15400 of 2007
before the High Court of Madhya Pradesh praying for issuance           C
of Writ of Mandamus directing the Nazul Officer to decide the
application for grant of NOC pending before him. On
25.02.2008, the Tehsildar issued advertisement in the
newspapers inviting objections against granting of NOC to the
respondent-Company for change of use of leased land. One
Aziz Udeen, Partner Mis Chandan Mal Looks & Co. had                    D
registered his objection against granting NOC to the
respondent-Company on the ground that there is a dispute
between the respondent and his company regarding the land
for which the respondent is seeking NOC and Civil Suit No. 503
of 2006 is already pending before the Civil Judge.                     E

     8. By order dated 20.03.2008, in Writ Petition No. 15400
of 2007, the High Court directed the Nazul Officer/Appropriate
Authority to take a. decision on the application of the
respondent-Company for grant of NOC. In compliance of the              F
said order, the Nazul Officer, Bhopal, asked for certain
documents and sought information from the respondent-
Company to decide the application. The respondent-Company
failed to submit those documents and information sought for
despite several reminders. After hearing the parties, the Nazul        G
Officer, by order dated 15.04.2008, rejected the application for
grant of NOC. Aggrieved by the said order, the first respondent
preferred Writ Petition No. 5467 of 2008 before the High Court
of Madhya Pradesh. In the said writ petition, the State had taken
the preliminary objection that the writ petition is not maintainable   H
    990     SUPREME COURT REPORTS                  [2010) 8 S.C.R.


A as alternative remedy was available to the respondent under
  Section 18 of the Revenue Book Circular. In spite of the said
  objection, by order dated 26.09.2008, the High Court directed
  the respondent-Company to submit the documents and
  information sought for by the Nazul Officer and also directed
B the Nazul Officer to decide the application of the respondent
  for grant of NOC by passing a speaking order. In the same
  order, the High Court directed the Nazul Officer to consider only
  the circular dated 14.02.1966 and the Arbitration Award while
  deciding the application for NOC. Again, the Nazul Officer
c asked certain documents and sought for information from the
  respondent-Company and after hearing the respondent the
  Nazul Officer, by order dated 02.02.2009, rejected the
  application for grant of NOC. Questioning the said order, the
  responaent preferred Contempt Petition (C) No. 173 of 2009
  before the High Court. The High Court, on 13.10.2009, while
0
  issuing notice in the Contempt Petition, observed that the Nazul
  Officer is trying to frustrate and circumvent the directions issued
  by the High Court directing him to explain his "misconduct".

        9. Mr. Ravindra Shrivastav, learned senior counsel
E appearing for the State objected to the order of the High Court
  by pointing out that under Section 18 of the Revenue Book
  Circular, against the order of the Nazul Officer, an effective
  remedy by way of appeal would lie before the Collector.
  According to him, when such remedy is available, the High
F Court is not justified in exercising its extraordinary jurisdiction
  under Article 226. He also pointed out that even after the
  direction of the High Court, the Nazul Officer has passed an
  order only in accordance with law, hence, if the first respondent
  is aggrieved, it can be challenged in the manner known to law
G before the Collector. However, it filed a contempt petition and
  the High Court directed personal appearance of the Nazul
  Officer to explain his "misconduct" for not passing orders as
  per the earlier order. According to the learned senior counsel
  for the State, the Nazul Officer has passed an order as per the
H
 STATE OF M. P. v. NERBUDDA VALLEY REFRIGERATED 991
      PRODUCTS COMPANY [P. SATHASIVAM, J.]

provisions of the statute, circulars and Government instructions.   A
On the other hand Mr. S. Gopakumaran Nair, learned senior
counsel for the respondent-Company supported the order of the
High Court and pleaded for dismissal of both the appeals.

    10. We have carefully considered the rival contentions and      B
perused the relevant materials.

      11. Coming to the first objection as to the exercise of
jurisdiction by the High Court under Article 226 in respect of
the order dated 15.04.2008 passed by the Nazul Officer, it is
pointed out that an effective remedy by way of an appeal to the     C
Collector is provided under Section 18 of the Revenue Book
Circular which reads as under:-

     "Section 18-Sale and Disposal of Land

     2.117. All land which is the property of Government should     D
     ordinarily be sold through the Director of Land Records.
     Agricultural or pastoral land acquired for public purposes
     should, when it is no longer required by Government, be
    ·disposed of in accordance with the instructions in
     paragraph 3 of M.P. Revenue Book Circular 1-5.                 E

    2.118. If any Nazul land in charge of the W.D. is to be
    relinquished, a reference should be made by the C.E. to
    the Collector who will deal with the land under the
    Provisions of the M.P. Revenue Book Circular IV-I,              F
    paragraph 29.

    2.119. When any Government land or other immovable
    public property is made over to a local body for public,
    religious, educational or any other specified purposes, the     G
    grant should be subject to the following conditions in
    addition to any other that may be prescribed:-

    ( 1) that the property shall be liable to be resumed by
    Government;
                                                                    H
    992      SUPREME COURT REPORTS                    [2010] 8 S.C.R.


A         (a) if it is used for any purpose other than that specified;
          or

          (b) in the case of buildings, if they are allowed to fall into
          disrepair;
B         (2) that the property should be at any time resumed by
          Government, the compensation payable shall in no case
          exceed-

          (a) the amount paid to Government by the local body less
c         depreciation on buildings, if any, calculated in accordance
          with Paragraph 3.036 of Chapter 111-"Buildings" for the
          period during which the property was in charge of the local
          body or the present value of the property, whichever is
          less;
D         (b) the cost or present value, whichever is less, of any
          buildings or other works constructed on the property by the
          local body."

        12. A perusal of the order of the Nazul Officer shows that
E grant of NOC depends upon various factors and fulfillment of
  certain conditions. It is also not in dispute that the said officer
  is better equipped with to decide the application for grant of
  NOC. Undoubtedly, while deciding such an application, Nazul
  Officer has to consider not only the circulars but also rules and
F regulations framed by the State Government. Even otherwise,
  when the ultimate order of Nazul Officerican be canvassed
  before Collector, the High Court ought not to have exercised
  its extraordinary jurisdiction under Art. 226 as an appellate court
  over the finding of fact arrived at by the Nazul Officer. In this
G context, it is useful to refer the following decisions:

        In Punjab National Bank vs. 0. C. Krishnan & Ors., (2001)
    6 SCC 569, this Court held:-

          "6. The Act has been enacted with a view to provide a
H         special procedure for recovery of debts due to the banks
STATE OF M. P. v. NERBUDDA VALLEY REFRIGERATED 993
     PRODUCTS COMPANY [P. SATHASIVAM, J.]

    and the financial institutions. There is a hierarchy of appeal   A
    provided in the Act, namely, filing of an appeal under
    Section 20 and this fast-track procedure cannot be
    allowed to be derailed either by taking recourse to
    proceedings under Articles 226 and 227 of the
    Constitution or by filing a civil suit, which is expressly       B
    barred. 'Even though a provision under an Act cannot
    expressly oust the jurisdiction of the court under Articles
    226 and 227 of the Constitution, nevertheless, when there
    is an alternative remedy available, judicial prudence
    demands that the Court refrains from exercising its              c
    jurisdiction under the said constitutional provisions. This
    was a case where the High Court should not have
    entertained the petition under Article 227 of the
    Constitution and should have directed the respondent to
    take recourse to the appeal mechanism provided by the            D
    Act."

                               ' and Ors. vs. Gujarat
    In State of Himachal Prades,h
Ambuja Cement Ltd. and Apr. (2005) 6 SCC 499, this Court
observed as under:-
                                                                     E
    "17. We shall first deal with the plea regarding alternative
    remedy as raised by the appellant-State. Except for
    a period when Article 226 was amended by the
    Constitution (42nd Amendment) Act, 1976, the power
    relating to alternative remedy has been considered to be         F
    a rule of self imposed limitation. It is essentially a rule
    of policy, convenience and discretion and never a rule of
    law. Despite the existence of an alternative remedy it
    is within the jurisdiction of ,discretion of the High Court to
    grant relief under Article ·226 of the Constitution. At the      G
    same time, it cannot be lost sight of that though the matter
    relating to an alternative remedy has nothing to do with the
    jurisdiction of the case, normally the High Court should not
    interfere if there is an adequate efficacious alternative
    remedy. If somebody approaches the High Court without            H
    994      SUPREME COURT REPORTS                    [2010] 8 S.C.R.


A         availing the alternative remedy provided the High Court
          should ensure that he has made out a strong case or that
          there exist good grounds to invoke the extraordinary
          jurisdiction."

8         13. There is broad separation of powers under the
    Constitution between three organs of the State, i.e., the
    Legislature, the Executive and the Judiciary. It is also well
    established principle that one organ of the State should not
    ordinarily encroach into the domain of another. Even if the order
C   of the first authority, in the case on hand, Nazul Officer, requires
    interference, it is for the appellate authority to look into it and
    take a decision one way or the other and it is not an
    extraordinary case which warrants direct interference by the
    High Court under Art. 226. It is relevant to note that the Nazul
    Officer has adverted to a relevant fact that the Government,
D   while renewing the lease of 3.13 acres of land from 14.03.1999
    to 13.03.2029 in favour of the respondent-Company, permitted
    it to change the use of leased land from industrial purpose to
    commercial or residential purpose on payment of the lease rent,
    as payable on the land used or changed for commercial or
E   residential purpose. In such circumstances, if the said direction
    is applicable, it is but proper on the part of the respondent to
    comply with it. Even if the stand of the respondent-Company is
    acceptable and if they are aggrieved of the order of the Nazul
    Officer, they are free to challenge the same before the Collector
F   as pointed above. In our opinion, interference by the High Court
    against the order of the original authority, which is based on
    factual details, is not warranted under writ jurisdiction.

       14. Coming to the second submission, in view of our
G conclusion about the order of the High Court dated 26.09.2008,
  we are satisfied that the second issue is to be answered
  against the respondent. Here again, this Court, in a series of
  decisions, has held that when a matter is remitted to the original
  authority to decide the issue, the said authority must be aliowed
H to take a decision one way or the other in accordance with the
 STATE OF M. P. v. NERBUDDA VALLEY REFRIGERATED 995
      PRODUCTS COMPANY [P. SATHASIVAM, J.]

statutory provisions, rules and regulations applicable to the          A
same. There cannot be any restriction to pass an order in such
a way de hors to the statutory provisions or regulations/
instructions applicable to the case in particular. As pointed out
earlier, even if there is any error, it is for the Collector/
Government to set it right and the High Court is not justified in      B
asking the officer to personally present and explain his
"misconduct". In our considered view, the High Court has
exceeded its jurisdiction in issuing such a direction.

      15. In the light of the above discussion, we set aside the       C
impugned order of the High Court dated 26.09.2008 passed
in Writ Petition No. 5469 of 2008 and the order dated
13.10.2009 in Contempt Petition No. 173 of 2009. We make
it clear that if the matter is still pending with the Nazul Officer,
he is at liberty to pass appropriate orders in accordance with
the earlier directions of the High Court as well as the rules and      D
regulations, instructions and circulars issued by the Government
which are applicable to the matter in issue uninfluenced by any
of the observations made by the High Court. It is further made
clear that if the Nazul Officer has already concluded and passed
an order and the respondent-company is aggrieved ·of the               E
same, it is free to avail the remedy under Section 18 of the
Revenue Book Circular and in that event it is for the Collector
to consider and pass orders in accordance with law.

     16. With the above directions, both the appeals are               F
allowed. No order as to costs.

R.P.                                            Appeals allowed.