I1 ^.^. ^s^- ^. .;. AF^ ^ •\:, HIGH CQURT QF CHHATTISGARH : BILASPUR Writ Petition No. 5328 of 1996 Bharat Aluminium Company IJmited Versus State of Chhattisgarh & Others Postfor pronouncement ofthejudgment and order on ^-2-2009 Sd/- SatishK.Agnihotri Judge PETmQNER HIGH COURT OF CHHATTISGARH : BILASPUR Writ Petition No. 5328 of 1996 Bharat Aluminium Company Limited, through its Director (Operation and Projects), Korba (Chhattisgarh). RESPONDENTS Versus 1. State of Chhattisgarh, through the Secretary, Department of Revenue, Government of Chhattisgarh, D.K.S. Bhawan, Mantralaya, Raipur (Chhattisgarh). 2. The Collector, Bilaspur, District Bilaspur (Chhattisgarh). 3. The Tehsildar, Korba, District Bilaspur (Chhattisgarh). (Writ petition underArticle 226/227 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Anindo Mitra, Sr. Advocate with Shri Prashanto C. Sen, Shri Abhishek Sinha, Shri Pratul Shandilya, Shri Bhaskar Pyasi and Shri Ghanshyam Patel, Advocates for the petitioner. Shri Vinay Harit, Dy. Advocate General with Shri Shashank Thakur, Panel Lawyerforthe State/respondents. Shri Prateek Sharma,counsel for the inten/enor - Bupesh Baghel. None for the intervenor - Madan Singh Daharia. ORDER (Passed on this _j^day of February, 2009) In the original petition, which was filed on 30-12-1996, the petitioner - Bharat Aluminium Company Limited (for short "BALCO") seeks following reliefs : "I to issue a writ in the nature of certiorari for quashing the allotment order dated 20-9-93 (Annexure-P/3) issued by respondent No.1. II to issue a writ of certiorari for quashing the demand made, R.R.C. issued by respondent No.3 by letter dated 8-12-93 (Annexure-P/4). III to issue a writ of certiorari for quashing the demand letter dated 16-12-1996 as also ^' R.R.C. and revised R.R.C. dated 19-12-1993 (P-9), issued by respondent No.3 being without jurisdiction. IV to declare that Petitioner Company is liable to pay premium @ Rs.200/- per acre and rent @ Rs.20/- per acre per annum to the State Government. V to direct the respondent No.1 to produce the entire record for perusal on the basis of which allotment memo dated 20-9-93 (Annex. P-3) has been issued for perusal by the Hon'ble High Court. VI to grant any other relief deemed fit and proper in the facts and circumstances ofthe case." 2) Subsequently, BALCO filed an application being I.A.No.203 W/97 on 13-1-997 for deletion of relief clauses II & III, which was allowed by order dated 28-1-1997 and thereafter by order dated 11-8-1997 time was extended to comply with the order dated 28-1-1997 during the course of the said day. Thus, clauses II & III were accordingly deleted. Reply was filed on behalf of the respondents on 6-11-1997 and thereafter rejoinder to the reply was filed and the same was taken on record 26-2-1998. BALCO filed an application i.e. I.A.No. 1873/2004 seeking amendment in the grounds i.e. from 6.8 to 6.12 and reliefs i.e. from VII & VIII. The relief ctause reads as under: "VII issue an appropriate writ, order or direction directing the Respondent No.1 to enter into and execute a lease deed with the applicant in terms of the letter of allotment dated 18-3-1968 bearing D.O.No.103 SCI/68 : and/or VIII issue an appropriate writ, order or direction restraining the Respondents from taking any action contrary to the terms of letter of allotment dated 18-3-1968 bearing D.O.N0.103/SCI/68 issued by the Department of Commerce and Industry." yC^ By order dated 24-3-2004 the amendment application i.e. I.A.No. 1873/2004 was allowed, thereafter by order dated 16-4-2004 time was extended to comply with the order dated 24-3-2004 and the amendment was incorporated on 29-4-2004. 3) On 16-4-2004 this Court ordered as under: "In the above view of the matter, it is directed that no coercive action/steps may be taken against the petitioner till the next date of hearing. Certified copy after amendment is incorporated." 4) The aforesaid interim order was extended time and again till 6-7-2005. By disposing of M.(W.).P.No.758/2004, the interim order was modified on 6-7-2005 in the following terms : "In view ofthe above situation, the respondents are directed to maintain status quo, till the next date of hearing." 5) More amendments were sought for by BALCO in the cause title, pleadings i.e. from 5.14 to 5.26 and in the relief part i.e. from IX to XII by filing I.A.No.6439/2005. The relief part reads as under: "IX to issue an appropriate writ, order or direction directing the respondents to produce the all proceedings relating to the applications made for 668.67 acres of land for which advance possession was given by the Government as is confirmed form the notices dated 21-6-2005 issued by the Tahsildar and the concerned records of the proceedings for transfer of the land from the respondent No.3, Tahsildar be catled for the kind perusal of this Hon'ble Court, in the interest ofjustice. X to issue an appropriate writ, order or direction quashing the notices and subsequent proceedings initiated by the Tahsildar, Korba, ^ ^T^ J ^.sy vide the notices dated 21-6-2005 and 28-6-2005 (Annexure-P/17), in the interest of justice. XI to issue an appropriate writ, order or direction directing restraining the State Government from taking any coercive action/steps for dispossessing the petitioner (BALCO) from land in its possession. XII Any other writ, order or direction as deemed just and proper in the facts and circumstances of the case may also be issued to protect the lawful interest ofthe petitioner, in the interest of justice and fair play." The amendment application i.e. I.A.No.6439/2005 was allowed by order dated 26-7-2005. The interim order dated 6-7-2005 was modified by order dated 26-7-2005 as under : "..... the petitioner is also directed to maintain status quo in respect of the land, which is in its possession and should not involve in de-forestation activities in respect of the land, which is in petitioner's possession, and also should not try to encroach upon any extra Govemment land. This order is in addition to the earlier order passed on 6-7-2005. Order dated 6-7-2005 shall continue, till the next date of hearing." 6) BALCO filed one more application being I.A.No.3 on 12-6-2007 for clarification of the order dated 26-7-2005. The same was disposed of by order dated 2-7-2007 in the following terms : "The earlier order dated 6-7-2005 was passed on the request of the petitioner that the Tehsildar is forcing the petitioner to vacate the land, which is in possession of the petitioner company and vide that order dated 6-7-2005 the respondents were directed to maintain the status quo till the next date of hearing. Now if the petitioner wants to raise any construction on the land in his possession and wants to have any other developmental activities on the land, it is for him J~ to seek permission from the concerned authorities and it is for the concerned authorities to consider his case in accordance with law and pass necessary orders. As far as de-forestation on the land in possession of the petitioner is concerned, the same has also to be carried out after seeking permission from the concerned authorities in accordance with law relating to forest and environmental laws." 7) The prayer clauses II & III which were deleted by order dated 11-8-1997 were included in the amended petition, which was filed on 17-8-2005, without an order ofthe Court. 8) I.A.No.5/2001, application for intervention filed on behalf of Madan Singh Daharia, is dismissed for want of prosecution. 9) In the part heard matter, one Bupesh Baghel filed an application (I.A.No.13) on 28-1-2009 for permission to intervene in the writ petition on the groundthat the intervenor/applicant has filed an intervention application i.e. I.A.No. 1424-25 of 2005, W.P.(C) No.202 of 1995 in the Supreme Court of India wherein the issue of encroachment of forest land was raised. On query it was informed that his application has not been allowed by the Supreme Court till date. The dispute involved in this petition is with regard to allotment of land, payment of premium and lease rent and, as such, the intervenor has no role to play in the present petition. Thus, the application (I.A.No.13)isrejected. 10) The brief facts, in nutshell, as projected by BALCO, for adjudication of the case, are that the Government of Madhya Pradesh, Department of Commerce and Industries vide letter dated 18-3-1968 (Annexure-P/1) proposed to grant land to BALCO for Korba Alumina/ Aluminium project on 99 years' lease at a premium of Rs.200/- per acre (payable one time) and annual lease rent of Rs.20/- per acre per annum, reviewable every 30 years subject to maximum enhancement of 25%. Premium and lease rent as ^- specified were as per Revenue Book Circular Dated 11-04-1962. For standing growth on the forest land within the total area of the land proposed to be granted, compensation was to be payable in addition to premium and rent. The private lands were to be acquired for BALCO by the State Government on payment of compensation. BALCO, by letter dated 13-6- 1968 accepted the proposal for grant of land accordingly. The forest land, which was immediately required for alumina plant to be cleared by BALCO and the remaining forest land may be cleared by the forest department and vacant land to be handed over to BALCO. 1616 acres of land was the estimated requirement. Land was granted for setting up aluminium project by BALCO in Korba. The quantum of land to be granted was not restricted to any ceiling limit. It is submitted that land as required for setting up the aluminium project was promised to be granted. 11) On the faith of the aforesaid promise of grant made by the Government at the premium and rent as set out in Government's letter dated 18-03-1968, BALCO started setting up the aluminium project in Korba in 1971. Had the requisite land not been promised at the rates as specified, BALCO would not have set up the aluminium project in Korba. In reliance upon the promised grant BALCO has taken the following steps : (i) The work started in 1971 and the project was completed in 1976-1977. (ii) Private land was acquired by BALCO through the Government. Total cost for setting up of the aluminium project was around Rs.4000 crores in the year 1976. Total area of land occupied by the aluminium project of BALCO by 1976-77 was 2613 acres (including private land) as recorded in the assessment of the Special Area Development Authority (SADA - now Municipal Corporation of Korba) property tax. (iii) Total cost for setting up the project was around Rupees 4000 crores in the year1976. (iv) In the assessment made by SADA from 1976-77, detailed references are made to constructions already made including aluminium plant, township, quarters, hospital, shops, security barracks etc. which shows that by the said date, all these constructions were in place. (v) BALCO's name has been recorded as possession hotder in the records of SADA. BALCO have paid property tax for the entire land of 2613 acres and are continuing to make payment of the property tax at the rate of 3 crores per annum. Possession of Government land was handed-over to BALCO. The details of the lands of which possession was given and the specific averments are made. (vi) The State Government have already received premium and rent for the entire plots of land for the period from 1971 at the rates specified in the Government's letter dated 18-03-1968 without demur. 12) The State Government treated BALCO as lessee. The State Government in its counter affidavit dated 13-02-1978 in another case relating to levy of property tax on BALCO have stated that the land has been given to BALCO on permanent lease. Both the High Court and the Supreme Court were led to proceed on the basis that these lands in possession of BALCO belong to BALCO and i.e. how BALCO was held liable to pay the property tax. High Court's judgment is dated 15-04-1978. The Supreme Court's judgment is dated 26-11-1981. There is no dispute that the whole of the aforesaid land is utilized for the aluminium project of BALCO and in possession of BALCO. It may be noted that the state government nominee was on the board of BALCO. Applications for the plots of land were made by BALCO from time to time and in phases ...^;-^^^, according tothe requirements as and when different parts of the factory were being set up. Initially 1136 acres of land was immediately required to start work of setting up the main plant and the related township and for other necessary facilities. The State Government, by its letter dated 26-03-1971 assessed the amountof premium to be paid for 1136 acres of land and the compensation for felling of trees. The details of 1136 acres of land were annexed to the letter. In the letter, the Government indicated that if rates are changed by the Government, then BALCO agrees to pay the changed rates. The maximum change which could have been made to the rates was clearly provided for in the Government letter dated 18.3.1968. On 05-04-1971, payments were made by BALCO as demanded in respect of 1136 acres of land. The rates applied by the State Government were as per the rates specified in the Government letter dated 18-03-1968 and in line with the Revenue Book Circular dated 11-4-1962. 13) Possession of the remaining 668.67 acres of land was also received from time to time as and when required for setting up the different parts of the factory. No demand for the premium and lease rent was made on BALCO. The applications relating to 668.67 acres of land were made from time to time between 1968 to 1984. It will also appear from the Chart annexed to the Counter Affidavit of the Government; the purposes for which the land was required found place in the application. The 668.67 acres of land was received by BALCO after removal of the trees by the forest department and hence no question of payment of any compensation to the forest department. Since no formal demand for premium and rent was raised in respect of 668.67 acres as was done in respect of the 1136 acres of land, no premium could be paid immediately upon taking of possession. Ultimately, in 2005, BALCO has paid the amount of premium calculated at the rates mentioned in the Government's letter dated 18-3-1968 for 668.67 acres of land and the same has been accepted by the Government. The ^^ letter dated 26-3-1971 flows out of the letter of grant dated 18-3-1968 by which the Government promised to grant land, on the terms stated in the letter. Significantly, the letter dated 26-3-1971 mentionssubject and the grant of the Government land to BALCO. Thereafter, the three plots of land aggregating 1136 acres havebeen mentioned for payment of forest compensation and the premium and rent have been calculated. It all flows from the parent letter of grant and is based upon the letter dated 18-3-1968. It shows that BALCO had demanded immediate delivery of 1136 acres of land for setting up of the plant and accordingly the Government in the first phase calculated the rent and premium for total 1136 acres of land and asked BALCO to deposit the same. This letter dated 26-3-1971 does not say that no further land would be allocated to BALCO by way of grant of Government land. By a letter dated 28-2-1980 issued on behalf of the Collector to the Additional Tahsildar, Korba regarding 1771.15 acres of Government land, out of which proposal of 338.66 acres of land has been presented to the Government for sanction till date and the Tahsildar, Korba is asked to inspect and report with respect to the remaining land, since proposal was pending with him. 14) Shri Anindo Mitra, learned Sr. Advocate with Shri Prashanto C. Sen, Shri Abhishek Sinha, Shri Pratul Shandilya, Shri Bhaskar Pyasi and Shri Ghanshyam Patel, learned Advocates appearing for the petitioner woutd submit that at present BALCO is in possession of 2753.91 acres of land including 914.31 acres of private land. According to the affidavit filed by the Government, BALCO is in possession of 2753.91 acres of land out of that 1839.60 acres is Government land and 914.31 acres is private land. The Government in its letter dated 18-3-1968 allotted 1136 acres of land at the rate of payment of premium of Rs.200/- per acre and the annual rent of Rs.20/- per acre. In addition, compensation was also payable in respect of standing growth on the forest lands. By letter dated 26-3-1971, the 10 Government Authorities calculated the premium and rent on the basis of aforesaid rate in respect of 1136 acres. On the faith that the lease of requisite land for the aluminium project in Korba would be granted for 99 years, BALCO accepted the offer and deposited the premium and lease rent, in addition to the compensation for forest growth standing on the forest land. After lapse of 22 years and after having accepted the rent and premium at the aforesaid agreed rates in respect of 1 136 acres of land, the State Government byletter dated 20-9-1993 (Annexure-P/3) claimed the rent at the rate of Rs.160/- as annual rent and premium at the rate of Rs.1600/- per acre. For 338.66 acres the total premium calculated was Rs.5,41,856/- at the rate of Rs.1600/- per acre and annual lease rent was Rs.54,185/- at the rate of Rs.160/- per acre. The said 338.66 acres as stated in the letter dated 26-3-1971 was a portion of 1136 acres of land, which was allotted earlier in 1971. 15) Learned senior counsel would further submit that once the promise has been made, the respondents cannot take a different stand other than its promise. The premium and lease rent was payable as per the offer dated 18-3-1968, which was acted upon and the possession was handed over to BALCO. The rate of premium and rent specified in the letter dated 18-3-1968 is acceptable to BALCO. Shri Mitra would next submit that the doctrine of promissory estoppel is applicable to the facts of the present case. In support of his contention, he relies on the decisions of Supreme Court in Steel Authority of India Ltd. vs. State of M.P. and others , Gujarat State Financial Corporation vs. M/s Lotus Hotels Pvt. Ltd.2, State of Punjab vs. Nestle India Ltd. and another3. 16) BALCO further prays for a wriVdirection to the State Government to execute lease deed in terms of the letter dated 18-3-1968. The State 1 (1999)48cc76 2 (1983) 3 SCC 379 3 (2004) 6 SCC 465 ^ 11 Government has treated BALCO as a permanent lessee, as is evident from the affidavit filed by the State Government in a property tax case. On 21-9-2000, office ofthe Collector has admitted in the letter as under: "The Government has provided land on 99 years' lease for the establishment of Balco Project. The lease deed of the above said lease is urgently required which has to be sent to the Government." 17) The chart annexed to the return filed by the State Government ultimately shows that 27 applications have been received at the Tahsildar's office relating to 1136 and 668.67 acres of land. Out of 27 number of applications, only two applications have been sent to the State Government and the remaining applications have not been processed and sent by the Tahsildar's office uptill now. These applications were made mainly from 1968 to 1980 consequent to the letter dated 18-3-1968. Two applications for execution of lease of 1136 acres have been made. One application thereafter for 31.51 acres of land, another application for 298.10 acres of land, application for 47.35 acres of land and application for 64.67 acres of land were made. Execution of formal deed is required for implementation of the expansion projects of the Company. BALCO has further paid revenues after disinvestment in fiveyears to the tune of Rs.400 crores to the State Government and Rs. 1850 crores to the Central Government. BALCO is further paying approximately Rs.3 crores per annum to the Municipal Authority as Corporation Tax. 18) In the letters dated 25-8-2000 & 21-9-2000 the State Government admitted that BALCO was entitled to get formal lease deed. Execution of formal lease deed has been delayed due to inaction on the part of the State authorities, therefore, the State Government may be directed to execute the formal lease deed on the basis of letter dated 18-3-1968 for the entire land i.e. 1804.67 acres or atleast 1616 acres of land at this stage. \- 12 19) Shri Mitra would next submit that long possession of tand for more than 40 years gives rise to a presumption of grant, although no formal document has been executed. Learned counsel placed reliance on the decision of Supreme Court in C. Periaswami Gounder vs. Sundaresa Ayyar4 wherein the Supreme Court relied upon the decision of Privy Council in Mohammed Muzafar Ali Musavi vs. Jabeda Khatun5. 20) During pendency of the writ petition subsequent events were brought on record by amendments, which were ordered by this Court. Five notices dated 21-6-2005 & 28-6-2005 were issued under Section 248 of the MP/CG Land Revenue Code, 1959 {for short "the Code, 1959") by the Tahsildar calling upon the petitioner asto why the land encroached by BALCObe not taken back. The allegation that BALCO is in unauthorized possession is baseless, as the land in dispute is in possession of the petitioner for the last several years. Thus, notice under Section 248 ofthe Code, 1959 was illegal and bad. Learned counsel would further submit that even if there is some disputed question of fact in such situation the Court can adjudicate the matter in its writ jurisdiction. Thus, it is prayed that the State/respondents may be directed to levy the premium and annual lease rent on the basis of letter dated 18-3-1968, further they may be directed to execute the formal lease deed in favour ofthe petitioner - BALCO. 21) Per contra, Shri Vinay Harit, learned Dy. Advocate General with Shri Shashank Thakur, learned Panel Lawyer appearing for the State/respondents would submit that the letter dated 18-3-1968 was a D.0. letter written to Shri S. Vohra, Managing Director of BALCO. This was simple proposal by the Government subject to acceptance of certain terms and conditions containing therein. Thereafter no final decision was taken and communicated in respect of the subject matter to BALCO. The letter 4AIR1965SC516(V52C84) 5AIR 1930 PC 103 (V 17): 57 Ind App 125 13 -^ does not indicate the size of land and the area. The subsequent letter dated 13-6-1968 whereby BALCO conveyed its acceptance for a total requirement of about 1616 acres of land wherein it was clearly stated that the particular lands as indicated therein may be handed over to the CPM (Chief Project Manager). Thus, it is clear that till 13-6-1968 neither the land was identified nor any specific area was handed over to BALCO. For the first time the petitioner made applications dated 5-3-1968 and 18-9-1968 for allotment of 32.72 acres of land in villages Roagbahari and Jambahar for Red Mud Pond and for allotment of 316.77 acres of land in villages Risda and Kohadiya for the purpose of plant, administrative area and water treatment plant (Annexure-R/4 to the additional return dated 14-9-2006). Thus, for the first time the petitioner submitted particulars of 349.49 acres of land in its letter dated 18-9-1998 for allotment. Several applications were made by BALCO between the period from 1971 to 1977. 22) Shri Harit, would further submit that BALCO has failed to point out a particular date on which it came into possession of particular part of land. It is a case of the respondents that the land was never handed over to BALCO. This is a disputed question of facts, which cannot be adjudicated upon by this Court in exercise of its extraordinary writ jurisdiction. It is not clear from the letter dated 26-3-1971 also asto when possession of the land admeasuring 1136 acres of Government land including 947.95 acres of forest land was given to BALCO. Learned counsel would next submit that the land admeasuring 338.66 acres of land under letter dated 20-12-1993 was a