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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No. 9521  of 2019   (Arising out of SLP(C) No 30220  of 2019)

(D No 45004 of 2018)

State of Odisha & Ors              .... Appellant(s)

      Versus

Bichitrananda Das                  ....Respondent(s)

J U D G M E N T

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,

1  “GA Department”

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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)

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)

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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.

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:

2 “Act”

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“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

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his family is residing there in residential purposes.

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.

3W P (C) No 8159 of 2015

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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 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 frame 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

4 2019 SCC OnLine SC 931

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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

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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 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.

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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.

…………...…...….......………………........J.                                                                     [Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J.                              [Hrishikesh Roy]

 New Delhi; December 18, 2019

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ITEM NO.15               COURT NO.8               SECTION XI-A

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

SPECIAL LEAVE PETITION (CIVIL) Diary No(s). 45004/2018

(Arising out of impugned final judgment and order dated  12-01-2018 in WPC No. 8159/2015 passed by the High Court of Orissa at Cuttack)

THE STATE OF ODISHA & ORS.                         Petitioner(s)

                               VERSUS BICHITRANANDA DAS                                  Respondent(s)

(WITH IA No. 22402/2019 - CONDONATION OF DELAY IN FILING, IA No. 22403/2019  -  CONDONATION  OF  DELAY  IN  REFILING  /   CURING  THE DEFECTS,  IA  No.  22404/2019  -  EXEMPTION  FROM  FILING  C/C  OF  THE IMPUGNED JUDGMENT)   Date : 18-12-2019 This petition was called on for hearing today.

CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD          HON'BLE MR. JUSTICE HRISHIKESH ROY

For Petitioner(s) Mr. V. Giri, Sr. Adv. Mr. Suvendu Suvasis Dash, AOR Ms. Swati Vaibhav, Adv. Mr. Nabab Singh, Adv.

                   For Respondent(s) Mr. Santosh Raut, Adv.                   Mr. Vishwa Pal Singh, AOR

Mr. Rajendra Prasad, Adv. Ms. Pallavi, Adv.

UPON hearing the counsel the Court made the following                               O R D E R

Delay condoned.

Leave granted.

The  appeal  is  allowed  in  terms  of  the  signed

reportable judgment. There shall be no order as to costs.

Pending application, if any, stands disposed of.

 (SANJAY KUMAR-I)                (SAROJ KUMARI GAUR)      AR-CUM-PS                           COURT MASTER

(Signed reportable judgment is placed on the file)