IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FIFTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 25139 of 2004 Between: Kotagadda Syed Mahaboob Basha S/o Haji Kotagadda Syed Khader, aged about 55 years, R/o Mydukur Road, Produtur, Kadapa district. ..... PETITIONER AND 1 The District Collector, Kadapa District. 2 The Government of Andhra Pradash Rep.by its Secretary, Social Welfare Dept.,Secretariat Buildings, Hyderabad. 3 Mata Amritanandamayi Math, Plot No.844/1, Mahindra Hills, East Maredpally, Br. Sadashiva Chaitanya, S/o M.G.S.Iyer, aged about 40 yrs, resident of Hyd. R-3 is impleaded as per court order dated 06.09.08 in wpmp 23976/08 respectfully. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to Issue an appropriate writ, order or Director, mostly one which is in the nature of a writ of Mandamus declaring the Memo.No.9734/LA.II/98, Dt. 12/10/2000 of the 2nd respondent as illegal, irregular, arbitrary, unjustified, unconstitutional and unsustainable and set aside the same holding that the Memo.No.22691/C2/96-2 dt. 27/12/1996 requires to be implemented by the respondents as per the order dt. 30/07/98 in WP.No.17363/1997 of this Hon'ble court Counsel for the Petitioner:MR.P.VEERA REDDY Counsel for the Respondent No.: GP FOR REVENUE. The Court made the following : ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{GR} O R D E R: A memo of the 2nd respondent dt. 12.10.2000 is in challenge and the petitioner seeks, besides invalidation of this memo, implementation of the earlier memo dt. 27.12.1996. The petitioner is the son of one Syed Khadar, who is no more. Syed Khadar was possessed of agricultural land to an extent of Ac. 2.49 cents in S.Nos. 534/5, 534/6 and 534/7 of Proddutur village, Kadapa District. The State initiated land acquisition proceedings and issued a notification under Section 4(1) of the Land Acquisition Act 1884 (for short ‘the Act’), which was published on 2.3.1976. Eventually, after a due process an Award No. 1 of 1976-77 dt. 23.10.1976 was passed. The land was acquired for the purpose of providing house sites for the weaker sections. The petitioner however asserts that possession of the acquired land was not de facto taken by the State. The petitioner’s father late Syed Khadar, during his life time and shortly after the notification under Section 4(1) of the Act, questioned the same in W.P.No. 104 of 1977. The writ petition having been dismissed, he filed W.A.No. 268 of 1978, which was also dismissed on 14.8.1985. Thereafter, Syed Khadar died and the petitioner as the legal heir filed Spl. Leave Petition No. 14460 of 1985 before the Supreme Court, which was also dismissed. The acquisition proceedings have therefore become final, operative and enforceable. The land was neither taken possession of nor employed for the purpose of providing house sites to weaker sections, the purpose for which the acquisition was made. While so, the petitioner filed W.P.No. 6115 of 1988 seeking de-notification from acquisition. This writ petition was dismissed on 20.4.1990 enabling the petitioner to represent to the concerned authorities for de-notification. Thereupon, the petitioner submitted a representation to the 2nd respondent for de- notification of the land. The State Government/2nd respondent rejected his representation on 10.9.1993. The petitioner submitted yet another representation to the 2nd respondent asserting therein that no compensation for acquisition of the land was paid either to his father, during his life time, nor the amount deposited into civil court and that 17 years had gone by since the award. The petitioner also asserted in the said representation that he has uninterrupted possession over the acquired land. He made further representations on 20.1.1995, 17.9.1996 and on 2.12.1996. He thereafter filed W.P.No. 11249 of 1996 challenging the inaction of the State in considering his representations for reconveyance. This writ petition was dismissed by this court on 9.9.1996 with an observation that the dismissal of the writ petition would not preclude the respondent from considering the petitioner’s application, on merits. The petitioner submitted another representation to the respondent requesting reconveyance of the land. The petitioner after obtaining a Succession Certificate through court by an order dt. 23.12.1994, submitted another representation on 9.9.1996 for reconveyance of the land. Thereupon, the Principal Secretary to the Government through the Memo No. 22691/C2/96-2 dt. 27.12.1996 ordered reconveyance of the land to the petitioner in view of the order of the Subordinate Judge, Proddutur dt. 23.1.2000 in O.P.No. 25 of 1993, declaring the petitioner to be the legal heir of late Syed Khadar. It requires to be noticed and placed on record that the Memo dt.27.12.1996 though constitutes an executive action of the State and purports to convey State property to an individual, is not expressed to be “ order and in the name of the Governor of Andhra Pradesh”, as mandated by Article 166 of the Constitution. It is not known by what contrived practice of the State executive, the Administrative apparatus has dispensed with the constitutional requirement of the invocation of the name and authority of the Governor as executive head of the State even in the matter of conveying or transferring the valuable government property by executive action. Be that as it may. The petitioner then filed W.P.No. 17363 of 1997 alleging that despite the memo dt. 27.12.1996 a formal reconveyance of the property in his favour has not been made. This writ petition was disposed of by this court on 30.7.1997 directing the District Collector (1st respondent herein) to implement the memo dt. 27.12.1996 within the stipulated period. The 1st respondent however appears to have sought clarifications from the State Government by its letters dt. 16.8.1997, 22.8.1997, 18.9.1997. By another memo dt. 17.3.1998 again under the hand of the Principal Secretary to the Government in the Social Welfare Department, the District Collector was directed to implement the orders of the High Court in W.P.No. 17363 of 1997. There being no progress, the petitioner filed C.C.No. 1300 of 1998. After institution of C.C.No. 1300 of 1998, the respondent filed a review application on 25.2.1999 seeking review of the order dt. 30.7.1997 in W.P.No. 17363 of 1996 contending that the earlier order in Memo dt. 27.12.1996 was under a misapprehension and error. The review application was dismissed on 16.12.1999. After such meandering and tortuous course of litigation, the Principal Secretary to the Government in the Social Welfare Department passed the impugned memo dt. 12.10.2000 which also does not invoke the authority of the Governor of Andhra Pradesh, but is yet presented as an executive action of the State. The learned Counsel for the petitioner would, inter alia contend: a) that since the extent of Ac. 2.49 cents acquired by due process under the Act culminating in the Award dt. 23.10.1979 was not utilized for the purpose for which the acquisition was made, the petitioner is entitled to reconveyance of this land, particularly since the petitioner has not received the compensation for the acquired land nor had been dispossessed by the State, despite the formal passing of an Award; b) that the State having been satisfied as to the legitimacy of the petitioner’s claim for reconveyance of the land and having passed an order by the earlier memo dt. 27.12.1996, cannot lawfully recant from that position and cancel the order of reconveyance by a strategy of revised orders qua the impugned memo dt. 12.10.2000; c) that the impugned memo was issued without notice and opportunity to the petitioner. The impugned memo dt. 12.10.2000 is a well-considered and elaborate order but for the fatal infirmity of having been passed without notice and opportunity to the petitioner. It states the relevant chronology of events and asserts that there was due process of acquisition followed under the provisions of the Act culminating in the Award dt. 23.10.1976. Possession of the land was also taken on 10.1.1977 and there was a complete vestiture of the title to the land in the State. Therefore, no question of reconveyance of the land to the petitioner would arise and there was no provision by which property statutorily vested in the State reverts to the owner. In para 6 of the impugned memo, it is recorded that there was a procedure contemplated under B.S.O.No. 90(32) for disposal of land, which was no longer required for public purpose. B.S.O. 90(32) was however, amended by G.O.Ms.No. 783 Revenue (LA) Department dt. 9.10.1998. After the amendment, where the land is not required for the purpose for which it was acquired, the same may be utilized for any other public purpose. The impugned memo further records that there was no legitimate reason to reconvey the land to the petitioner. The 2nd respondent further states that B.S.O. 90(32) even prior to its amendment by G.O.Ms.No. 783 enjoined that the land should have been offered to the parties to whom the proprietary right and the right of occupancy in the land originally belonged or to their heirs at the cost price and that the earlier memo dt. 27.12.1996 did not follow such procedure. The impugned memo also states that the District Collector had opined in a report that the land in question is situate by the side of Proddatur town, a highly developed and thickly populated area and is a very valuable land and reconveyance of the same would occasion loss to a tune of Rs. 1.5 Crores to the State. In conclusion, the impugned memo records that reconveyance of the land to the petitioner would occasion serious prejudice to the public interest and for this reason, the earlier memo dt. 27.12.1996 is reviewed and cancelled. On many an occasion, persons whose lands are acquired are known to urge to State as well as file writ petitions claiming that the land acquired for particular purpose was not so employed and the land be reconveyed to the original land holder. In Tamil Nadu Housing Board vs. Keeravani Ammal 1, the Supreme Court reiterated the established principle that once a piece of land has been duly acquired under the Land Acquisition Act, the land becomes the property of the State and the State can dispose of the property thereafter or convey it to anyone, if the land is not needed for the purpose for which it was acquired, only for the market value that may be fetched for the property as on the date of conveyance. The doctrine of public trust would disable the State from giving back the property for anything less than the market value. In the decision cited supra, the Supreme Court reiterated its earlier decision in the State of Kerala vs. M.Bhaskaran Pillai [1997 (5) SCC 432] wherein the Supreme Court clearly held that even if no other public purpose exists for the purpose for which the land acquired may be employed, instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilized for the public purpose envisaged in the Directive Principles of the Constitution. The principle is therefore that once the process of acquisition is complete under the provision of the Act, the land vests in the State and the State may not thereafter dispose of the property on an eleemosynary view that some equities exit in favour of original land owner from whom the land was acquired, compensation determined in accordance with the provisions of the Act and the compensation tendered or deposited. The mere fact that the petitioner has not chosen to receive compensation or a State actor had defaulted in tendering the compensation to the petitioner or his father or by deposit into court would not mulct the State with diminution of its title to the property which vested in it on completion of the process of acquisition under the Act. Once the property becomes the property of the State, the State cannot dispose of the property except in accordance with a transparent process and in a manner must conducive to public interest. It is important to realize that in a Constitutional frame-work governance, State property is not the property of a public servant for the time being in office. It is the asset of every citizen of the Republic. Public property if irrationally conveyed, by exercise of temporal executive which should occasion severe disciplinary action against the public servant concerned for it would constitute a serious subversion of the public asset, namely State property. The earlier memo dt. 27.12.1996 was a misconceived and ill- thought out executive action engendered on the basis of a spate of representations by the petitioner in quick succession. The State apparatus appear to have succumbed to the constant persuasions of the petitioner and oblivious of its fiduciary obligations, issued the earlier memo in hurry even without following the procedural discipline mandated by Article 166 of the Constitution. Surely, the Principal Secretary to the Government is not the State of Andhra Pradesh. Article 166 of the Constitution mandates that a Secretary to the Government is merely the authorized signatory who may, if the business rules (made under Article 166(3) of the Constitution) authorize append his signature after due diligence to an instrument of the State but the instrument must reflect that it is by order and in the name of the Governor of Andhra Pradesh. This is the procedural discipline mandated by the Constitution, which invests State executive actions with facial legitimacy. On this analysis, this court does not find any fundamental incompetence in the impugned memo dt. 12.10.2000. The other contention urged on behalf of the petitioner is that the State Government having taken a decision to reconvey the property to the petitioner by the memo dt. 27.12.1996, has no authority, power and jurisdiction to resile from that decision and take a different decision not to convey the property, by the impugned memo dt. 12.10.2000. This contention that is stated to be rejected. The memo dt. 12.10.2000 constitutes a review of the decision by the earlier memo, in exercise of executive power of the State under Article 162 of the Constitution. I n R.R.varma vs. Union of India2, the Supreme Court observed that the principle that the power to review must be conferred by statute either specifically or by necessary implication is inapplicable to decisions purely of an administrative nature. The Apex Court held: “to extend the principle to pure administrative decisions would indeed lead to untoward and startling results. Surely, any Government must be free to alter its polity or its decision in administrative matters. If they are to carry on their daily administration, they cannot be hide- bound by the rules and restrictions on judicial proceedings though, of course they are bound to obey all statutory requirements and also observe the principles of natural justice where rights of parties may be affected.” Since the memo dt. 27.12.1996 was in exercise of executive power of the State, it is axiomatic that a perception as to a fundamental error in the decision-making process or in the substantive decision, the State is at liberty to review the earlier decision and resile from it. In the case on hand, in view of the law declared by the Supreme Court in the decision 1st supra and other cases, the legal position is well established that on completion of the process acquisition under the provisions of the Act, title in the land vests in the State and there is no obligation to reconvey it to the original land holder even if the purpose for which the acquisition was made no longer subsists and further that the State is at liberty to employ its asset to any other public purpose or if so desired even dispose of the same but in public auction so as to derive maximum income there- from to be employed for public purposes. In the context of such established legal principle, the earlier decision to reconvey the property to the petitioner (as set out in the memo dt. 27.12.1996) is demonstrably pejorative to public interest. The State was therefore rightly advised to reconsider the said decision which it did by the impugned memo dt. 12.10.2000. Since the cancellation of the earlier memo dt. 27.12.1996 is demonstrably in public interest; the same ought not to be invalidated on jejune pleas like estoppel, at any rate no ingredients of promissory estoppel are pleaded in this case. The residuary issue is whether the cancellation of the earlier memo dt. 27.12.1996 by the impugned memo dt. 12.10.2000 violates the essential principles of fairness i.e. audi alterum partem. It is the admitted and demonstrable position that the impugned memo was issued without notice or opportunity to the petitioner. As pointed out in the decision 2nd supra and as is also the established position, the earlier memo dt. 27.12.1996 creates an expectation in the petitioner, of reconveyance of his land. Such expectation of a benefit is recalled and extinguished by the impugned memo. The principle of fairness require that the petitioner ought to have been issued at least a minimal opportunity of notice before proceeding to pass as order for cancellation of the earlier memo dt. 27.10.1996. The learned Government Pleader for the respondents would contend that in view of the principles laid down in Aligarh Muslim University Vs. Mansoor Ali Khan3, in the absence of the petitioner being able to establish any particular prejudice as a consequence of the breach of principles of natural justice, the order need not be set aside only on account of a technical violation of the principles of natural justice. This contention does not commend acceptance of this court in the facts of this case. The general principle is that violation of the principles of natural justice per se constitutes substantive prejudice since affording of a notice, obtaining objections of persons affected and considering the same before passing an order infuses procedural discipline. It induces the executive agency of the State to work within the bounds of Constitutional governance. To achieve a fair decision by adhering to the established principles of administrative law, audi alterum partem is a fundamental principle. Eschewing the normal procedure of fair opportunity should be only on a rare occasion and where emergent action is required or grave danger is apprehended. The petitioner was to be conveyed the property by a memo issued as early as on 27.12.1996. The petitioner claims to be in possession while the State claims to the contrary. In any event, the circumstances were not such as would not brook a short delay occasioned by the affording of an opportunity to the petitioner to show cause why the earlier memo dt. 27.12.1996 be not cancelled. The principles of fair opportunity should not be jettisoned merely at the whim of the executive. It is a salutary principle and should be salvaged to the extent possible. This case does not warrant avoidance of reasonable opportunity to the petitioner. On the aforesaid analysis, the impugned memo dt. 12.10.2000 is set aside on the short ground that it was issued without notice and opportunity to the petitioner. It is reiterated that there is no obligation on the State to reconvey the property to the petitioner in view of the decision of the Supreme Court (1st supra) nor is the petitioner entitled, by application of the principles of estoppel, to reconveyance of the property on the basis of the earlier memo dt. 27.12.1996. It is also declared that the State has the power, authority and competence to revisit the earlier administrative decision contained in the memo dt. 27.12.1996 by the issuance of a fresh order for cancellation of the same if the circumstances so warrant, but after affording the petitioner an opportunity of representation, considering the same and passing a reasoned order thereon. The respondents may now issue a notice to the petitioner within one month from the date of receipt of a copy of this order and after receiving any representation from the petitioner within the time stipulated on such notice, the respondents shall take an appropriate decision in accordance with law and pass an order recording reasons for the same, expeditiously thereafter and shall communicate the decision to the petitioner by registered post acknowledgement due. The writ petition is allowed to the extent indicated above. There shall no order as to costs. Before parting with the case, this court would like to observe that invocation of the name of the Governor of Andhra Pradesh, in executive actions of the State, would not, in the considered view of this court, in any manner, diminute the status of public servants in the matter of executive actions of the State. ______________ 25th March, 2009. Krb. THE HON’BLE SRI JUSTICE GODA RAGHURAM WRIT PETITION No. 25139 Dated: 25th March, 2009. 1 AIR 2007 SC 1691 2 AIR 1980 SC 1461 3 AIR 2000 SC 2783