STATE OF ODISHA & ORS. versus BICHITRANANDA DAS
[2019] 15 S.C.R. 214, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Arguments
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SUPREME COURT REPORTS
[2019] 15 S.C.R.
STATE OF ODISHA & ORS.
v.
BICHITRANANDA DAS
(Civil Appeal No. 9521 of 2019)
DECEMBER 18, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
HRISHIKESH ROY, JJ.]
Lease:
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
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
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
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
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.
Prestige Estates Project Ltd. (2019) SCC OnLine SC
 [2019] 15 S.C.R. 214
214
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931; State of Tamil Nadu v. Hind Stone (1981) 2 SCC
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
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
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
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
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
[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.
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.
STATE OF ODISHA & ORS. v. BICHITRANANDA DAS
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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.
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
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
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
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:
“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
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 “GA Department”
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6. On 13 May 2004, the respondent was directed by the Land
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
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)
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
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)
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
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
(Eviction of Unauthorized Occupants) Act 19722. By the notice, the
respondent was called upon to show cause as to why an order of eviction
should not be made.
2 “Act”
STATE OF ODISHA & ORS. v. BICHITRANANDA DAS
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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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
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
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
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
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
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.”
(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.
Lessee with his family is residing there in residential purposes.
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Earlier reported regarding encroachment reveals that there is no
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)
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,
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
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
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
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
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
STATE OF ODISHA & ORS. v. BICHITRANANDA DAS
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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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
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
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
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.
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
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
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 (2004) 1 SCC 663
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18. The record shows that on 13 May 2004, the Land Officer
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
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
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
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
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
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,
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
STATE OF ODISHA & ORS. v. BICHITRANANDA DAS
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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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
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.
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
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.