9911796707
TMI Blog1992 (9) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... III, represented by the General Power of Attorney, to call for and quash Government Memo No. 580/ U.C.II(2)/83-87, Revenue (UC.II) Department, dt. 16-3-1991. Nassar Co-operative Housing Society Ltd., filed W.P. No. 14942/91 seeking almost the same reliefs. We will refer to the two petitioners as petitioner Nos. 1 and 2. The facts leading to the Writ Petitions are as following: 3. Petitioner No. 1 filed an application under Section 20(1) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the "Ceiling Act"), seeking exemption of about Ac. 300.00 known as 'Chiran Palace', on 19-10-1981. The second petitioner filed an application on 18-12-1982 stating that it had entered into an agreement of sale with the 1st petitioner on 9-12-1981 and requested the Government to grant exemption of that land under S. 20(1) of the Ceiling Act. Government considered the two applications and rejected them by order dated 15-2-1983. First petitioner filed W.P. No. 1942/83 but the second petitioner did not. This Court disposed of the Writ Petition on 19-11-1987 directing the 1st petitioner to submit a representation to the Government and the Government to con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Memo dated 16-3-1991 on the allegation that the respondents did not serve any copy of the order on it and it had therefore, to obtain from the 1st petitioner. 6. The State Government maintains that it had taken possession of the excess land in question on 25-3-1991 i.e. even before the interim order of this Court dated 27-3-1991. In G.O.Ms. No. 957 Revenue (UC.I) Department dated 25-10-1991, the Government allotted the land under S. 23 of the Ceiling Act to the Andhra Pradesh Forest Department for development as national park and for allied activities. It was clarified in the order that the above order was subject to final decision in W.P. 4513/1991. Petitioner submits that till 27-3-1991 the Government had not taken possession; and that effective from that date, there has been an order of this Court directing the parties to maintain status quo as on that date. In W.A.M.P. 2078/91 this Court has passed an order on 8-11-1991 suspending the order of the learned single Judge. The Court, however, directed that the State Government should not carry on any permanent construction on the land in question, shall not fell any trees standing thereon nor interfere with the possession of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner submits that the findings contained in the notes dated 12-9-84 are binding on the 2nd respondent and he could not pass an order contrary thereto. He Submits that in similar cases of "undue hardship" exemption has been granted to others, and refusal in his case alone, amounts to differential treatment which is discriminatory. He submits further that the order of the Chief Secretary runs counter to the ratio in C.B.S. Coop. Building Society v. Govt. of A.P. 1986 (2) ALT 574. Petitioner seeks issue of a writ of certiorari to quash Government Memo No. 580/UC.II-(2)/83-S7, Revenue Department dated 16-3-1991, which he is alleged to have received on 25-3-1991. 8. There has been considerable improvement in the pleadings thereafter virtually changing the nature of the case. We may refer to the embellishments with the caution that what the respondents had to face primarily was the limited plea referred to above. 9. In the counter affidavits filed on behalf of the respondents it is stated that the petitioner had excess land all over the twin cities and the agglomeration surrounding it, and that the competent authority under the Ceiling Act had passed order No. El/10122/76 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Urban Ceiling Act is applicable to all alike, and excess property owned by any person like the petitioner is liable to be surrendered irrespective of his past or present situation or status. Respondents assert that pursuant to the order dt. 23-2-1983, the competent authority issued notification under S. 10(3) of the Ceiling Act, vesting the land in the Government, with effect from 28-2-1983. Thereafter, the authority issued a notice under S. 10(3) of that Act to the petitioner, calling upon him to handover possession of the land to the Government. That notice was served on the General Power of Attorney to the petitioner on 17-3-1983. It is therefore, asserted that all procedural requirements under the Ceiling Act were duly complied with and the excess land had duly vested in the Government, much before the present Writ Petition was filed. It is also asserted that the land was already reduced to physical possession as per the panchnama dated 25-3-1991. Dealing with the objection to the competence of the Chief Secretary to hear and dispose of the petitioner's application for exemption, it is asserted that the above objection was withdrawn at the time of hearing before the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointed in G.O.Ms. No. 658 General Administration (Sc.F.) Department, dt. 9th November, 1984 wherein the existence of arrears of Income Tax and Wealth-tax amounting to Rs.7,71,95,944/- was admitted and the notings in the files indicating that the then Government was inclined to consider the application of the petitioner favourably. Petitioner invited our attention to the file notings of the then Chief Minister dt. 5-9-1984 to the effect that - the Government Pleader in this High Court be instructed to have the Writ Petition filed in the High Court regarding Chiran land to be allowed in favour of the Writ Petitioners, subject to the condition of allotment of 50 per cent, of the houses to Government nominees (N.R.I.) in terms of the affidavit referred to above. 11. The above reply affidavit provoked an additional counter-affidavit and an additional reply affidavit, though the permission of Court was not sought for nor granted for this extraordinary procedure. Respondents contend that the nature of the order in W.P. 1942/83 had the effect of obliterating the earlier applications, and the Government was to consider only the fresh representation which the petitioner was directed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t" and "under hardship" which are relevant under S. 20(1)(a) and (b) respectively of the Ceiling Act were emphatically urged before and were not duly considered by the 2nd respondent. It is also asserted that any concession made by counsel appearing for the petitioner would not confer jurisdiction on the 2nd respondent to finally dispose of the applications filed by the petitioner under S. 20(1) of the Ceiling Act. Arithmetical mistakes in the extent of protected surplus area are sought to be highlighted. Petitioner has referred to the covenants made by the erstwhile Nizam of his properties even prior to the commencement of the Ceiling Act. It is therefore, asserted that except the properties which the present Nizam is able to retain with him, he has no other properties; and such properties as he has in his possession will not yield the fabulous amount of over seven crores of rupees for which demands have been raised by the Income Tax Department towards arrears of Income Tax, Wealth-tax etc., petitioner asserts that those assessments have not so far been finalised and some of them are pending in this Court in reference applications, Writ Petitions etc. 14. It is cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in W.P. 11497/90 dt. 10-9-90. The only aspect of "public interest" which the petitioner sought to highlight was dealt with in paragraph-26 of the impugned order, dt. 16-3-1991, as- In so far as the Nassar Cooperative Society is concerned, their interest emerges primarily from the agreement entered into by them with the petitioner. Vide Govt. Memo No. 2164/ UC/81, dt. 29-12-1982, they were asked to file certain documents. Their case was duly considered and rejected vide Govt. Memo N0.2164/UC.II/85, dt. 15-2-1983. The Writ Petition No, 1942/83 was filed only by the GPA Holder of the Nizam. As such the order in W.P. No. 1942/83 relates only to the parties therein. The application dt. 28-2-1988 is a sequel to the order is W.p. No. 1942/83 and this was filed by the GPA Holder of Sri Mukarrum Jah Bahadur. As such there is no Subsisting application of the Nassar Cooperative Housing Society. Notwithstanding this, the Society is one of the Writ Petitioner in W.P. No. 11497/80 wherein the Court ordered the disposal of the applications filed /by the petitioners for exemption. The application for exemption of Sri Mukarrum Jah has been disposed off as above. The question of the N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order rejecting its claim for exemption by order dt. 15-2-83 had become final and could not be reopened and (2) the order refusing exemption to the 1st petitioner had the effect of refusal in the case of the 2nd petitioner as well. Counsel for the 2nd petitioner submitted that the impugned order did not comply with the directions of this Court in the judgment in W.P. No. 11497/90 and has therefore, to be set aside. These submissions are not available to either of the parties. We have to proceed on the assumption that the only ground on which exemption was sought by the petitioner and could have been considered by the 2nd respondent was the ground of "undue hardship" which is relevant only under S. 20(1)(b) of the Ceiling Act. 20. Counsel for the petitioner submitted that the impugned order is liable to be avoided since it did not consider the offer made by the petitioner in his representation that he was willing to undertake group housing in terms of G.O.Ms. No. 4271 Revenue (U.C. II) Department dated 10-9-1990 in view of the fact that Cooperative Housing as provided in G.O.Ms. No. 136 Revenue (U.C. II) Department dated 28-1-1991 could not be undertaken. Counsel sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner had no right to continue the proceedings in spite of the fact that it was one of the petitioners in W.P. No. 11494/90. 23. In G.O.Ms. No. 4271 Revenue (U.C. II) Department dt. 10-9-1980 Government laid down guidelines for grant of exemption under S. 20(1)(a) of the Ceiling Act with a view to encourage construction of group housing if the owner proposes to utilise excess vacant land held by him for the construction of group-housing. Condition No. 5 provided that; the land which has been exempted should not be transferred by way of sale, gift, lease, or otherwise without the previous permission of the Government. However, there is no objection to mortgaging the land without possession to support a loan from bank or financial institution. 24. G.O.Ms. No. 136 Revenue (U.C. II) Department dt. 28-1-1981 was issued in furtherance of the guidelines to deal with cases where the owners proposed to transfer the excess lands to registered cooperative housing societies. Such permission was to be considered in terms of the conditions laid down in the order. Para 5 of the G.O. is to the following effect: The land owner should invariably indicate in his application to Government for exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner or by the 2nd petitioner-Society. The 1st petitioner was also required to file an application before the Government in terms of the guidelines issued in G.O. Ms. No. 4271 dt. 18-9-1980. The Legal Advisor of the Nizam replied on 13-12-1982 requesting the Government to reconsider - directions for filing application in accordance with the guidelines laid down in G.O.Ms. No. 4271 and to please grant exemption from the provisions of Chapter III of the Urban Land Ceiling Act and to permit the sale of the land to the Nassar Cooperative Housing Society. 28. With reference to the letter of the 2nd petitioner Society dt. 18-12-1981, application of the 1st petitioner dated 31-3-1981 and the letter of ANRICH dt. 29-3-1982, Government required the Society to file immediately an application with a sworn affidavit agreeing to take up construction of group housing in terms of G.O.Ms. No. 4271 dt. 10-9-1980, in order to enable the Government to consider grant of exemption under S. 20(1)(a) of the Ceiling Act for sale of excess land in Chiran palace premises at Banjara Hills, Hyderabad. The Nizam was also required to indicate in the sworn affidavit that 50% of the houses constructed would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cooperative Housing Society Ltd., and under the said collaboration the construction programme would be taken up by Nizam with the assistance of the Nassar Cooperative Society. On 19-3-1990 Nassar Co-operative Housing Society filed an application apparently in support of the fresh application submitted by Nizam. It was that application which was rejected after various references in the impugned order dt. 16-3-1991. 31. It appears that the earlier application of the petitioner was processed in the Government and was about to be granted in his favour when there was a change in the Government and a new Chief Minister directed rejection of the application which resulted in the order dated 15-2-1983. There was another change of Government in September, 1984. It appears that the new incumbent in the office of the Chief Minister was in favour of allowing the application. However, before orders could be passed, the power equations in the State politics underwent other transformations and the Government reverted to and reaffirmed the decisions to reject the application of the petitioner. 32. Sri Parasaran, counsel for petitioner submits that the letters of the Government referring to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and is effected by attachment. It would not also be possible to raise finance by mortgage during the pendency of the attachment. He therefore, requested - to reconsider your directions for filing application in accordance with the guidelines laid down in G.O.Ms. No. 4271 and to please grant exemption from the provisions of Chapter-III of the Urban Land Ceiling Act and to permit the sale of the land to the Nassar Cooperative Housing Society. Even assuming that the theory of legitimate expectation is to apply, it is clear that the request of the State Government to the petitioner to comply with the terms of G.O.Ms. No. 4271 was spurned by the petitioner. He could not have had any legitimate expectation of any order in his favour in spite of his refusal to comply with the direction issued by the State Government. We are therefore, not persuaded to hold that the impugned order has to be avoided since it did not protect the "legitimate expectation" of the petitioner. 33(a). A subsequent offer which the petitioner made in his application which the Government received on 25-2-1988 that - the applicant is willing to take up the construction of group housing in collaboration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portion of the notified route while denying others such facility invited interference by the Court. He also invited our attention to the decision in Sterling General Insurance Co. Ltd. v. Planters Airways Private Limited, [1975] 3 SCR 136 , to show that 'undue' means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. He submitted that in the present case, the accumulation of arrears of tax was not due to any conduct of the petitioner, since he inherited non-productive assets which continued to be assessed under the Wealth Tax Act, without yielding any return. He referred to Thakorbhai Dajibhai Desai v. State of Gujarat, AIR 1980 Guj 189 , to support his submission that incapacity to pay tax arrears amounts to "undue hardship". Counsel referred to the decision in Mohinder Singh Gill v. Chief Election Commissioner, [1978] 2 SCR 272 , in support of his submission that reasons conjured up and stated in affidavit in Court shall not supplement the reasons mentioned in the statutory order. 35. The claim based on legitimate expectation calls for consideration of some more facts. It is true that in his Note dated 5-9-198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with the provisions contained in G.O. Ms. No. 4271 dated 10-9-1980 either. It is due to those reasons that the Government passed orders on 15-2-1983 rejecting the proposal to grant exemption. The "expectation" which shall be protected must be "legitimate" though it may not amount to a right in the conventional sense. But the hope or desire of a person to obtain a favourable order, notwithstanding that he had not complied with the necessary requirements may not amount to a "legitimate expectation". This is clear from a review of the important cases decided by Courts. 36A. Perhaps, the first decision in which the theory of 'legitimate expectation' was propounded was Schmidt v. Secretary of State for Home Affairs, 1969 (2) Law Reports Chancery Division 149. Dealing with the case of an immigrant who has no right to enter the country except by leave and has no right to stay a day longer than the permitted time. Lord Denning stated that - if his permit is revoked before the time limit expires, he ought, I think, to be given an opportunity of making representations : for he would have a legitimate expectation of being allowed to stay for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illegal immigrants from Mecau, in the announcement outside the Government House in October 28, that each case would be considered on its merits. 38. Council of Civil Service Unions also dealt with a case of an obligation on the part of the deciding authority to give the affected person a right to be heard. The House of Lords observed that - but even where a person claiming some benefit of privilege has no legal right as a matter of private law he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the Court will protect its expectation by judicial review as a matter of public law. Lord Roskill in his opinion stated : The principle may now said to be firmly entrenched in this branch of the law. As the cases show, the principle is closely connected with 'a right to be heard". Such an expectation may take many forms. One may be an expectation of prior consultation. Another may be an expectation of being allowed time to make representations, especially where the aggrieved party is seeking to persuade an authority to depart from a lawfully established policy adopted in connection with the exercise of a particular power because of some sugg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e expectation is State of Kerala v. K. G. Madhavan Pillai, AIR 1989 SC 49 . That case arose out of a decision of the Government of Kerala to keep in abeyance an order which it had passed under R. 2-A(5) of the Kerala Education Rules, 1959 agreeing sanction to open/upgrade aided recognized schools. In the normal course, but for that order of abeyance, the respective educational agencies could have established/upgraded their institutions. They challenged the abeyance order. A single Judge of the Kerala High Court dismissed the writ petition. However, a Division Bench of that Court quashed the abeyance order and issued a direction to the State Government to consider the applications of the respondents on their merits. Supreme Court, on appeal, affirmed the decision of the Division Bench. The Supreme Court relied on a passage in Wade on Administrative Law that - An applicant for a licence, though devoid of any illegal right to it, is as a general rule, entitled to a fair hearing and to an opportunity to deal with any allegations against him. The Court held that even though there was no legal right, situations involving legitimate expectation furnishes Judges with a flexible criterio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28-1-1981. With the order dated 15-2-1983, any claim for exemption based on co-operative housing under G.O.Ms. No. 136 dated 28-1-1981, came to a natural end. That became final as far as the 2nd petitioner was concerned since it did not challenge that order in any competent proceedings. The judgment in W.I. No. 1942/83 dated 19-10-1987 did not have the effect of resurrecting the applications of the petitioners which were rejected way back on 15-2-1983. The first petitioner was conscious of this fact when he stated in his representation dated 25-2-1988 that he was filing a fresh representation pursuant to the judgment of this Court. Petitioners could not have had any legitimate expectation of grant of exemption on the basis of applications which had already been rejected due to defaults committed by them. The first petitioner was required to file a fresh representation. Neither that judgment nor the representation which the petitioner had filed, could have justified any legitimate expectation that his application would be granted. 43. We have dealt with the question of public interest and undue delay at some length. We reiterate that the pleadings do not disclose any such facts whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its, does not attract the principle of the decision in Mohinder Singh Gill v. Chief Election Commissioner. The Government is not attempting to supplement the reasons contained in the order by assertions in the affidavits filed before this Court. Advocate General submits that he stands by the statements contained in the order and he had filed additional materials only because the additional grounds which the petitioner has sought to raise in the writ petition. We are of the opinion that Mohinder Singh Gill also does not apply to the facts of the present case. 45. Vishnudas Hundumal was a case of discrimination in allowing some private operators to ply their buses on overlapping sectors of notified routes, while refusing such permission to others. The Supreme Court held that such discrimination was unconstitutional, and permitted all similarly placed operators to ply their vehicles. We have hardly any parallel to the above principle in the facts of the present case. It is true that the Government had issued orders of exemption in favour of some of the existing land-owners to wipe of their pre-existing debts or tax liabilities. In the present case, one fact which glares at us is, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, not persuaded to hold that the petitioner was entitled to grant of exemption on the ground of "undue hardship" or on the theory of proportionality, because of the undischarged tax arrears. 47. Nor do we find any reason to uphold the contentions of the petitioner on the basis of M/s. Canara Bank Staff Co-operative Building Society Ltd, v. N. V. Rao. That was a case where a Co-operative Society had complied with all the requirements of law including G.O.Ms. No. 136 dated 28-1-1981, the Government had processed the application and the Commissioner for Land Revenue had recommended to the Government that exemption be granted. The rejection thereafter, on the basis of untenable grounds was struck down in the above decision. Here in the present case, the Co-operative Society has backed out and must be taken to have accepted finally the decision dated 15-2-1983. Even earlier to that, on 13-12-1982 the first petitioner had abandoned the proposal for construction of houses through co-operative group housing scheme under G.O. Ms. No. 136 dated 28-1-1981. The petitioner himself had stated that he will construct the houses on his own. It was found, as a matter of fact, that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deal with that question in Pattabhi Kami Reddy v. Government of Andhra Pradesh, W.P. No. 2171/1984 dated 6th December, 1991. On a detailed consideration of a number of decisions of Indian and English Courts, it was held therein that - We are not inclined to hold that notes and minutes made by the respective officers on the relevant files, opinions expressed or representations made and gist of final decisions reached in the course of determination of the said questions are protected from scrutiny by the Court or from disclosure to the public gaze by virtue of provisions contained in Art. 163(3) of the Constitution of India. In respect of such peripheral area, the only consideration shall be public interest immunity; the considerations are to be balanced one against the other, the injury to public interest which is likely by the disclosure, against the injury by reason of non-disclosure to the rights of individuals as also public interest involved in maintaining open government. We are of the opinion that such immunity from examination of these files and materials can be negatived only in cases where public interest in favour of non-disclosure outweighs the imperative need for ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Government (Please see State of Punjab v. Sodhi Sukhdev Singh, [1961] 2 SCR 371 and Bachhittar Singh v. State of Punjab, AIR 1963 SC 395 ) as long as they are not communicated. We should state further that inconclusive deliberations in the file can hardly support a claim for "legitimate expectation". 54. We heard W.P. No. 4531/91 and W.A. No. 1220/91 finally on 10-8-1992. After the above two cases were reserved for judgment, counsel for the 1st petitioner informed us about the pendency of W.P. No. 14942/91 filed by the 2nd petitioner. We kept our judgment in abeyance and heard the second petitioner on 8-9-1992. We have dealt with that petition also. We have also heard Sri Ratnakar who appeared for the 2nd petitioner therein who is none other than the first petitioner. Same arguments were reiterated before us. Advocate General reiterated that the judgment in W.P. No. 11497/90 did not indicate that the State had made a promise at any stage nor had it by its conduct generated any legitimate expectation either in the 1st petitioner or 2nd petitioner that the exemption would be granted in favour of either. He also submits that this Court may not permit the petitioners to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
