STATE OF ODISHA & ORS.versusBICHITRANANDA DAS

214                      [2019]REPORTS
               SUPREME COURT    15 S.C.R. 214             [2019] 15 S.C.R.


A                        STATE OF ODISHA & ORS.
                                       v.
                          BICHITRANANDA DAS
                        (Civil Appeal No. 9521 of 2019)
B                           DECEMBER 18, 2019
              [DR. DHANANJAYA Y CHANDRACHUD AND
                      HRISHIKESH ROY, JJ.]
            Lease:
C           Lease-hold property – Conversion to free-hold property
      under a policy – Conversion charges – Computation of – Relevant
      date – Whether would be the date when the applicant applied for
      conversion or the date when the final decision was taken – Held:
      Submission of an application does not confer a vested right of
      permission – The application for conversion must necessarily be
D
      consistent with and compliant to the governing provisions of the
      conversion policy – Without affecting the compliance, applicant
      did not have right to claim conversion of the land to free-hold –
      High Court was wrong in directing that rate for computation of
      conversion charges would be that which was prevalent on the date
E     when application was made.
            Allowing the appeal, the Court
             HELD: 1. The submission of an application does not confer
      vested right for permission. The applicant must comply with the
      terms of the policy. One of the terms in the policy in question
F     was that the applicant should not have encroached on government
      land. An applicant who seeks the benefit of the policy must comply
      with its terms. In the present case, the policy which was formulated
      by the State Government specifically contained a stipulation to
      the effect that a lessee, who had encroached upon or
G     unauthorisedly occupied Government land anywhere within
      Bhubaneswar Municipal Corporation limits would not be eligible
      to be covered by the scheme unless the unauthorised occupation
      is vacated. [Para 17][220-F-G]
            Chennai Metropolitan Development Authority v.
H           Prestige Estates Project Ltd. (2019) SCC OnLine SC
                                      214
    STATE OF ODISHA & ORS. v. BICHITRANANDA DAS                           215


      931; State of Tamil Nadu v. Hind Stone (1981) 2 SCC                 A
      205 : [1981] 2 SCR 742; Howrah Municipal
      Corporation v. Ganges Rope Co Ltd. (2004) 1 SCC 663
      : [2003] 6 Suppl. SCR 1212 – relied on.
      2. There was no justification for the High Court to direct
that the rate for the computation of conversion charges should            B
be that which was applicable on the submission of an application.
The application for conversion from leasehold to freehold must
necessarily be consistent with and compliant to the governing
provisions of the policy which has been framed by the State
Government. Unless compliance is effected, there is no right to
claim conversion of the land to freehold. The respondent would            C
necessarily have to pay the conversion charges on the date when
a final decision was taken after due verification that there was no
encroachment and after scrutinizing the declaration which was
filed by the respondent. [Para 19][221-F-H; 222-A]
      3. A period of nearly twelve years has elapsed in the               D
meantime. The respondent moved the writ proceedings before
the High court only in 2015. If the grievance of the respondent
was that the State had not taken any action on his representations,
he ought to have moved the writ proceedings at an earlier point
of time seeking a decision on his application. Having himself             E
waited until 2015 to seek a declaration from the High Court, the
respondent cannot claim that the conversion charges should be
fixed as on the date of the application. [Para 20][222-B]
                       Case Law Reference
(2019) SCC OnLine SC 931                relied on        Para 15          F
[1981] 2 SCR 742                         relied on       Para 17
[2003] 6 Suppl. SCR 1212                relied on        Para 17
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9521
of 2019.                                                                  G
      From the Judgment and Order dated 12.01.2018 of the High Court
of Orissa, Cuttack in W.P. (C) No. 8159 of 2015.
      V. Giri, Sr. Adv., Suvendu Suvasis Dash, Ms. Swati Vaibhav, Nabab
Singh, Advs. for the Appellants.
                                                                          H
216               SUPREME COURT REPORTS                        [2019] 15 S.C.R.


A           Santosh Raut, Vishwa Pal Singh, Rajendra Prasad, Ms. Pallavi,
      Advs. for the Respondent.
               The Judgment of the Court was delivered by
               DR. DHANANJAYA Y CHANDRACHUD, J.

B              1. Delay condoned.
               2. Leave granted.
            3. This appeal arises from a judgment of a Division Bench of the
      High Court of Orissa dated 12 January 2018.
             4. On 30 September 1981, a lease of a plot bearing No F/37
C     admeasuring 75 feet by 100 feet described as Drawing No BS-136 (R)
      Mouza-Nayapalli, Bhubaneswar, was granted to the respondent by the
      State Government in the General Administration Department1 for a period
      of ninety years under the Government Grants Act 1895. On 18 July
      2003, the State government formulated a scheme to allow conversion of
D     residential leasehold plots under the GA Department within the area of
      Bhubaneswar Municipal Corporation into freehold land. The policy, inter
      alia, contained the following condition:
               “Lessees who have encroached or unauthorisedly occupied
               government land anywhere within Bhubaneswar municipal
               corporation limits would not be eligible to be covered under the
E
               scheme unless they vacate the unauthorised occupation.
            5. On 15 September 2003, the respondent applied for conversion
      of the leasehold plot to freehold. In response to the application, the
      Revenue Inspector in the GA Department recorded on 22 November
      2003 that:
F
               “Order on the above file I have visited to the site of Drawing Plot
               No. N/4-37/F (75x100). Drawing No.BS-136 (R), Nayapalli,
               corresponding to the 1991-92 Final Settlement Revenue Plot No.
               100/3090 Area ACO. 172 under Khata no.1020 n Unit XVI, MZ
               – Jayadev Vihar and Board, two storied building has been
G              constructed as per approval building plan. But lessee has
               encroached Govt. land (which was kept as open space) in front
               of the plot, 60 x 63, by way of illegible fence and Garden. Lessee
               may be asked to vacate the encroachment.”
                                                             (Emphasis supplied)
      1
H         “GA Department”
       STATE OF ODISHA & ORS. v. BICHITRANANDA DAS                                217
           [DR. DHANANJAYA Y CHANDRACHUD, J.]

      6. On 13 May 2004, the respondent was directed by the Land                  A
Officer in the GA Department to vacate the area of unauthorised
occupation, recording thus:
            “In inviting a reference to the subject cited above, I am directed
            to say that during the field enquiry it has come to the notice that
            you have unauthorizedly occupied Govt. Land measuring 60’ x           B
            63’ by covering barbed wire fencing and using the same for garden
            purpose.
            You are therefore, requested to vacate the above land immediately
            and report compliance within 15 days for consideration of your
            conversion application.”                     (Emphasis supplied)      C
      7. Four years later, On 6 August 2008, the respondent addressed
a communication to the Land Officer with reference to the letter dated
13 May 2004, stating that he had already sent a reply on 19 April 2006,
a copy of which was enclosed stating that there existed no barbed wire
fencing and “no encroachment now exists”. The letter dated 19 April               D
2006, however, contained a statement that:
            “But I am told that in a communication (not received by me) I
            have been asked to vacate a portion of Government land reportedly
            occupied by me unauthorisedly with barbet wire fencing.”
                                                         (Emphasis supplied)      E

       Hence, though in his letter dated 6 August 2008, the respondent
stated that he had already furnished a reply on 19 April 2006 to the letter
dated 13 May 2004, meaning thereby, that the letter dated 13 May 2004
was in possession of the respondent when he submitted the reply, the
purported letter dated 19 April 2006 suggested that the communication             F
had not been received. Be that as it may, on 21 December 2009, the
respondent wrote a letter to the Directorate of Estates stating that no
barbed wire fencing or encroachment existed at present around his plot.
On 28 December 2009, proceedings were initiated against the respondent
by issuing a notice under Section 4(1) of the Orissa Public Premises              G
(Eviction of Unauthorized Occupants) Act 1972 2. By the notice, the
respondent was called upon to show cause as to why an order of eviction
should not be made.

2
    “Act”                                                                         H
218            SUPREME COURT REPORTS                         [2019] 15 S.C.R.


A            8. Subsequently, on 30 June 2010, in response to a representation
      dated 21 December 2009, the GA Department was directed to re-enquire.
      On 30 June 2010, the following position was indicated upon verification:
            “Verified the land bearing training Plot No. N-4/F-37 of MT
            Jayadevihar Unit No. 16 and on field verification the encroachment
B           reported earlier has not been vacated now.” (Emphasis supplied)
            9. On 11 November 2010, the respondent once again sought a
      decision on his application for conversion, stating that:
            “I have responded to the above objection clearly indicating that
            the reported encroached area is completely outside my pucca
C           compound wall. This area is not covered with any barbed wire
            fencing as alleged. There is no construction whatsoever. The area
            is covered with some green plantation. Moreover the vacant area
            is always available to G.A. Department” (Emphasis supplied)
             10. On 23 February 2011, the Land Officer in the GA Department
D     visited the site and submitted a report that there was no barbed wire
      fencing on the encroached site, but that the respondent had put up a
      temporary fencing and a small iron grill gate for access to the encroached
      area. On 2 August 2013, the respondent once again sought conversion
      to freehold. On 2 September 2013, the respondent was directed to file a
      declaration, in a communication of the Deputy Secretary to the
E     Government, GA Department which read as follows:
            “In inviting a reference to your application dated 02.08.2013, I am
            directed to inform you that, you are required to file a registered
            declaration to the effect that, you have not fenced the Govt. land
            in front of your lease plot. You should indicate the declaration
F           that, you would not claim long possession on the said land even
            after conversion is allowed. The sketch map of the said land is
            enclosed herewith for preparing the declaration. Your request for
            conversion will be considered only after submission of the said
            declaration.”
G                                                          (Emphasis supplied)
            11. On 22 March 2014, the competent officer in the GA Department
      submitted a report indicating the following position at the site:
            Lessee Sri B.N. Das has made compound wall over his allotted
            land and one, single storied RCC building exist over the said land.
H           Lessee with his family is residing there in residential purposes.
        STATE OF ODISHA & ORS. v. BICHITRANANDA DAS                             219
            [DR. DHANANJAYA Y CHANDRACHUD, J.]

         Earlier reported regarding encroachment reveals that there is no       A
         barbed fence now. Only open plantation exists over Government
         land available in between road and allottee’s plot. The said
         plantation may not be treated as encroachment. Copy of
         photograph is enclosed herewith for reference.”
                                                       (Emphasis supplied)      B
         Consequently, the conversion fee was recomputed.
      12. Eventually, on 9 April 2014, the Director of Estates called
upon the respondent to submit an affidavit that he had not encroached
on government land nor would he claim possession in future. The
respondent submitted an affidavit on 21 April 2014. Consequently,               C
permission was granted on 5 May 2014 for conversion of the land from
leasehold to freehold, conditional on a deposit of an amount of
Rs 13,25,758.
       13. The respondent moved a writ petition3 before the High Court
of Orissa challenging the communications dated 5 May 2014 and 9                 D
December 2014 (the latter having rejected the plea of the respondent
for recomputing the conversion fees on the basis of the rate prevalent in
2003). A counter affidavit was filed by the State. The High Court, by its
impugned judgment and order, allowed the writ petition and directed the
State to recompute the conversion fees as on the date of the making of          E
the application on 15 September 2003.
      14. Aggrieved by the direction of the High Court, the State is in
appeal before us.
       15. Mr V Giri, learned senior counsel appearing on behalf of the
appellants, submitted that the rates chargeable for the conversion from         F
leasehold to freehold would be those which govern on the date when the
application has been decided. Learned counsel relied on the decision of
this Court in Chennai Metropolitan Developoment Authority v
Prestige Estates Project Ltd4. Mr Giri submitted that as the record
would indicate in the present case, an encroachment had been made by
the respondent adjacent to his leasehold plot and, in terms of the applicable   G
policy, the respondent was required to remove the encroachment. It
was urged, relying on the correspondence which has been referred to
above, that the respondent responded to the communication dated
3
    W P (C) No 8159 of 2015
4
    2019 SCC OnLine SC 931                                                      H
220               SUPREME COURT REPORTS                       [2019] 15 S.C.R.


A     13 May 2004 only on 6 August 2008 and that the purported communication
      dated 19 April 2006 appears to be an ante-dated document. Be that as it
      may, it was urged that as a matter of principle it was not open to the
      respondent to claim that the conversion charges be computed on the
      basis of the rate prevalent on the date of the application. The application
      for conversion could be considered only in terms of the policy framed by
B     the government and one of its conditions was that the applicant should
      not be in unauthorized occupation of government land.
             16. On the other hand, it has been urged by Mr Santosh Raut,
      learned counsel appearing on behalf of the respondent that, as a matter
      of fact, the case of the respondent was that there was no encroachment
C     whatsoever on the land, which was clarified in the letters dated 19 April
      2006 and 6 August 2008. Learned counsel submitted that, at the highest,
      only a plantation had been made outside the leasehold plot and this could
      not have been treated as an encroachment. Hence, it was urged on
      behalf of the respondent that where the State had taken an inordinately
      long time to consider the application, there was no justification or reason
D
      to saddle the respondent with the increased rates which were payable
      as on the date on which the decision was ultimately taken. Hence, it was
      further urged that the High Court was correct in coming to the conclusion
      that the rate as on the date of the application must be the governing rate
      for computing the conversion charges.
E            17. In the recent decision of this Court in Chennai Metropolitan
      Developoment Authority (supra), this Court relied upon a line of
      precedents emanating from the Court, including the decisions in State of
      Tamil Nadu v Hind Stone5 and Howrah Municipal Corporation v
      Ganges Rope Co Ltd6. The submission of an application does not
F     confer a vested right for permission. The applicant must comply with
      the terms of the policy. One of the terms in the policy in question is that
      the applicant should not have encroached on government land. An applicant
      who seeks the benefit of the policy must comply with its terms. In the
      present case, the policy which was formulated by the State government
      specifically contained a stipulation to the effect that a lessee, who had
G     encroached upon or unauthorisedly occupied government land anywhere
      within Bhubaneswar Municipal Corporation limits would not be eligible
      to be covered by the scheme unless the unauthorised occupation is
      vacated.
      5
          (1981) 2 SCC 205
      6
H         (2004) 1 SCC 663
     STATE OF ODISHA & ORS. v. BICHITRANANDA DAS                               221
         [DR. DHANANJAYA Y CHANDRACHUD, J.]

       18. The record shows that on 13 May 2004, the Land Officer              A
informed the respondent that he was unauthorisedly in occupation of
land admeasuring 60’ x 63’ which had been covered by barbed wire
fencing, which was being used for the purpose of a garden. The respondent
addressed a communication on 6 August 2008, stating that he had already
replied to the letter dated 13 May 2004 on 19 April 2006. The letter
                                                                               B
dated 19 April 2006 is carefully worded and states that “no barbed wire
fencing and “no encroachment now exists”. Interestingly, a copy of the
earlier letter dated 19 April 2006 was annexed to the communication
dated 6 August 2008. However, the purported letter dated 19 April 2006
contains a statement that the respondent had been told that in a
communication, which had not been received by him, he had been asked           C
to vacate a portion of the government land, which had been occupied
unauthorisedly with a barbed wire fencing. The contents of the letter
dated 6 August 2008 do not square up with the purported communication
dated 19 April 2006. Be that as it may, it is evident from the
communications that it was his case that no encroachment existed “at
                                                                               D
present”. Eventually, a notice to show cause had to be issued to the
respondent under the Act on 28 December 2009. The State has placed
on record a copy of the inspection report of 30 June 2010 which indicates
that the encroachment had not been vacated. It was in this view of the
matter that the State called upon the respondent to furnish a declaration
that the encroachment had been removed and that he would not claim             E
possession of the adjacent land even after conversion was allowed.
Eventually, on 22 March 2014, it was stated that while an open plantation
existed over the land, the plantation may not be treated as an
encroachment.
        19. In this background, we are of the view that there was no           F
justification for the High Court to direct that the rate for the computation
of conversion charges should be that which was applicable on the
submission of an application on 15 September 2003. The application for
conversion from leasehold to freehold must necessarily be consistent
with and compliant to the governing provisions of the policy which has
been framed by the State government. Unless compliance is effected,            G
there is no right to claim conversion of the land to freehold. Consequently,
we are of the view that the High Court was in error in directing the State
to recompute the conversion charges as on 15 September 2003. The
respondent would necessarily have to pay the conversion charges on
the date when a final decision was taken after due verification that there     H
222             SUPREME COURT REPORTS                       [2019] 15 S.C.R.


A     was no encroachment and after scrutinizing the declaration which was
      filed by the respondent.
              20. A period of nearly twelve years has elapsed in the meantime.
      It is significant that the respondent moved the writ proceedings before
      the High court only in 2015. If the grievance of the respondent was that
B     the State had not taken any action on his representations, he ought to
      have moved the writ proceedings at an earlier point of time seeking a
      decision on his application. Having himself waited until 2015 to seek a
      declaration from the High Court, the respondent cannot claim that the
      conversion charges should be fixed as on the date of the application,
      namely, 15 September 2003.
C
             20. For the above reasons, we allow the appeal and set aside the
      impugned judgment and order of the High Court. The writ petition filed
      by the respondent shall stand dismissed. However, we direct that in the
      event that the respondent complies with the directions contained in the
      communication of the State government by which the conversion charges
D     were computed and makes the necessary payment, the application shall
      be processed expeditiously so as to facilitate the grant of conversion of
      the land from leasehold to freehold. There shall be no order as to costs.


      Kalpana K. Tripathy                                        Appeal allowed.
E




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