State of
Madhya Pradesh Vs. Nurbudda Vally Refigerated Products & Ors [2010] INSC
522 (23 July 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5883 OF
2010 (Arising out of S.L.P. (C) No. 35732 of 2009) State of Madhya Pradesh.
.... Appellant (s) Versus Nerbudda Valley Refrigerated Products Company Pvt.
Ltd & Ors. .... Respondent(s) WITH
CIVIL APPEAL NO. 5884 OF 2010 (Arising out of S.L.P.(Civil) No. 35734 of 2009)
P.
Sathasivam, J.
1) Delay
condoned in S.L.P.(C) No. 35734 of 2009.
Leave
granted in both the special leave petitions.
2) Being
aggrieved by the final order dated 26.09.2008 passed by the High Court of
Madhya Pradesh at Jabalpur in Writ Petition No. 5469 of 2008 setting aside the
order dated 15.04.2008 passed by the Nazul Officer rejecting the 1 application
moved by the Respondent-Nerbudda Valley Refrigerated Products Company Pvt. Ltd.
(hereinafter referred to as "the Company") for the grant of No
Objection Certificate (NOC) to raise constructions on the leased land after
changing the land use from industrial purpose to commercial purpose, the State
of Madhya Pradesh has filed appeal arising out of S.L.P.(C) No. 35734 of 2009.
Pursuant
to the order of the High Court, the respondent- Company alleging that though
the Nazul Officer passed an order, has not granted NOC and disposed of the same
not in accordance with the Circular of the State Government, filed a Contempt
Petition (C) 173 of 2009 before the High Court. By order dated 13.10.2009, the
High Court after finding that the Nazul Officer has dealt with the matter
beyond the Circular dated 14.02.1966 of the State Government and not followed
its earlier order, directed him to personally present before the Court on
27.10.2009 to explain his "misconduct" in passing such order.
2
Questioning the said order, the State of Madhya Pradesh has also filed SLP (C)
35732 of 2009. Since both the orders of the High Court relate to the same
issue, these appeals are being disposed of by this judgment.
3) Heard
Mr. Ravindra Shrivastav, learned senior counsel for the appellant and Mr. S.
Gopakumaran Nair, learned senior counsel for the respondent.
4) The
issues which arise for consideration in these appeals are:- (i) Whether the
High Court has exceeded its jurisdiction under Article 226 of the Constitution
of India while setting aside the order dated 15.04.2008 passed by the Nazul
Officer in a writ petition when an alternative remedy is available to
respondent no. 1 to challenge the said order before the Collector as per
Section 18 of the Revenue Book Circular? 3 (ii) Whether the High Court is
justified in directing the Nazul Officer to present personally to explain his
"misconduct"? 5) Before considering the above issues, it is useful to
refer certain factual details which necessitated the Nazul Officer to pass an
order declining to grant NOC. The State of Madhya Pradesh as early as on
14.03.1939 executed the lease of 12 acres of land in favour of the respondent-
Company for a term of 30 years from 14.03.1939 to 13.03.1969 for the purpose of
developing trade in refrigerated food stuffs and industries at the ground rent
of Rs. 1/- per acre per annum for the first 30 years of the lease. The
Government of Madhya Pradesh, vide notification dated 14.02.1966, instructed
the Nazul Officer to examine the question of ownership of the land as per rules
and regulations so that the Government land could not be encroached at the time
of construction of the building. This notification empowers the Nazul Officer
to 4 examine the question of ownership of the land on which the construction
has to be raised. As Respondent No. 1 has violated the terms and conditions of
the lease and exceeded the scope and purpose of the lease by raising
constructions on the leased land without prior approval or permission of the
State Government, the Additional Collector, Bhopal, on 03.05.1982, issued a
show cause notice asking the respondent to explain as to why the lease not to
be determined. In view of the dispute between the parties, the issue was
referred to Arbitration as per clause 12 of the lease deed dated 14.03.1939 for
amicable settlement. The Arbitrator, by his award dated 03.07.1985, held that
there is no prohibition in the lease deed that respondent No. 1 would not raise
constructions to develop industry, trade and commerce. The said award was
challenged by the appellant-State in Misc. Appeal No. 166 of 1988 before the
High Court of Madhya Pradesh and the High Court upheld the award passed by the
Arbitrator 5 on 03.07.1985. Pursuant to the said order of the High Court, the
appellant-State renewed the lease deed for 3.82 acres of land for a period of
30 years commencing from 1969 to 1999 in favour of the respondent. The
Government of Madhya Pradesh, vide its letter dated 04.05.1999, permitted the
respondent-Company to change the use of leased land from industrial purpose to
commercial or residential purpose on payment of lease rent, as payable on the
land used or changed for commercial or residential purpose, as per the
commercial rate assessed according to the rules and regulations and also
directed the Collector, District Bhopal, to recover the said rent as per the
rules and regulations.
6) The
appellant-State again renewed the lease deed for 3.13 acres of land for 30
years from 14.03.1999 to 13.03.2029 in favour of the respondent-Company. Vide
letter dated 16.01.2004, the appellant-State permitted the respondent-Company
to change the use of leased land 6 from industrial purpose to commercial and
residential purpose on payment of lease rent as assessed as per the rules and
regulations. The Joint Director, Town & Country Planning, Bhopal sanctioned
the plan for 3 years for residential, commercial development on the leased land
presented by the respondent. The Government of Madhya Pradesh, vide its letter
dated 19.01.2007, directed the Collector, Bhopal that where the use of leased
land is changed, then the rent on such leased land shall be re- assessed as per
the rules and regulations. On 06.03.2007, the respondent-Company made an
application for grant of NOC before the Nazul Officer, Bhopal, for raising
commercial and residential constructions on the leased land without paying the
lease rent of Rs. 30,41,10,240/- assessed as per rules and regulations on the
change of use of leased land to commercial and residential purpose.
7 7) The
respondent filed a Writ Petition No. 15400 of 2007 before the High Court of
Madhya Pradesh praying for issuance of Writ of Mandamus directing the Nazul
Officer to decide the application for grant of NOC pending before him. On
25.02.2008, the Tehsildar issued advertisement in the newspapers inviting
objections against granting of NOC to the respondent-Company for change of use
of leased land. One Aziz Udeen, Partner M/s Chandan Mal Looks & Co. had
registered his objection against granting NOC to the respondent-Company on the
ground that there is a dispute between the respondent and his company regarding
the land for which the respondent is seeking NOC and Civil Suit No. 503 of 2006
is already pending before the Civil Judge.
8) By
order dated 20.03.2008, in Writ Petition No. 15400 of 2007, the High Court
directed the Nazul Officer/Appropriate Authority to take a decision on the
application of the respondent-Company for grant of NOC.
8 In
compliance of the said order, the Nazul Officer, Bhopal, asked for certain
documents and sought information from the respondent-Company to decide the
application. The respondent-Company failed to submit those documents and
information sought for despite several reminders.
After
hearing the parties, the Nazul Officer, by order dated 15.04.2008, rejected the
application for grant of NOC. Aggrieved by the said order, the first respondent
preferred Writ Petition No. 5467 of 2008 before the High Court of Madhya
Pradesh. In the said writ petition, the State had taken the preliminary
objection that the writ petition is not maintainable as alternative remedy was
available to the respondent under Section 18 of the Revenue Book Circular. In
spite of the said objection, by order dated 26.09.2008, the High Court directed
the respondent- Company to submit the documents and information sought for by
the Nazul Officer and also directed the Nazul Officer to decide the application
of the respondent for 9 grant of NOC by passing a speaking order. In the same
order, the High Court directed the Nazul Officer to consider only the circular
dated 14.02.1966 and the Arbitration Award while deciding the application for
NOC. Again, the Nazul Officer asked certain documents and sought for
information from the respondent-Company and after hearing the respondent the
Nazul Officer, by order dated 02.02.2009, rejected the application for grant of
NOC. Questioning the said order, the respondent preferred Contempt Petition (C)
No. 173 of 2009 before the High Court. The High Court, on 13.10.2009, while
issuing notice in the Contempt Petition, observed that the Nazul Officer is
trying to frustrate and circumvent the directions issued by the High Court
directing him to explain his "misconduct".
9) Mr.
Ravindra Shrivastav, learned senior counsel appearing for the State objected to
the order of the High Court by pointing out that under Section 18 of the 10
Revenue Book Circular, against the order of the Nazul Officer, an effective
remedy by way of appeal would lie before the Collector. According to him, when
such remedy is available, the High Court is not justified in exercising its
extraordinary jurisdiction under Article 226. He also pointed out that even
after the direction of the High Court, the Nazul Officer has passed an order
only in accordance with law, hence, if the first respondent is aggrieved, it
can be challenged in the manner known to law before the Collector. However, it
filed a contempt petition and the High Court directed personal appearance of
the Nazul Officer to explain his "misconduct" for not passing orders
as per the earlier order. According to the learned senior counsel for the
State, the Nazul Officer has passed an order as per the provisions of the
statute, circulars and Government instructions. On the other hand Mr. S. Gopakumaran
Nair, learned senior counsel for the respondent-Company supported the order of
the High 11 Court and pleaded for dismissal of both the appeals.
10) We
have carefully considered the rival contentions and perused the relevant
materials.
11)
Coming to the first objection as to the exercise of jurisdiction by the High
Court under Article 226 in respect of the order dated 15.04.2008 passed by the
Nazul Officer, it is pointed out that an effective remedy by way of an appeal
to the Collector is provided under Section 18 of the Revenue Book Circular
which reads as under:- "Section 18-Sale and Disposal of Land 2.117. All
land which is the property of Government should ordinarily be sold through the
Director of Land Records.
Agricultural
or pastoral land acquired for public purposes should, when it is no longer
required by Government, be disposed of in accordance with the instructions in
paragraph 3 of M.P. Revenue Book Circular 1-5.
2.118. If
any Nazul land in charge of the W.D. is to be relinquished, a reference should
be made by the C.E. to the Collector who will deal with the land under the Provisions
of the M.P. Revenue Book Circular IV-I, paragraph 29.
2.119.
When any Government land or other immovable public property is made over to a
local body for public, religious, educational or any other specified purposes,
the grant should be subject to the following conditions in addition to any
other that may be prescribed:- (1) that the property shall be liable to be
resumed by Government;
12 (a) if
it is used for any purpose other than that specified; or (b) in the case of
buildings, if they are allowed to fall into disrepair;
(2) that
the property should be at any time resumed by Government, the compensation
payable shall in no case exceed- (a) the amount paid to Government by the local
body less depreciation on buildings, if any, calculated in accordance with
Paragraph 3.036 of Chapter III-"Buildings" for the period during
which the property was in charge of the local body or the present value of the
property, whichever is less;
(b) the
cost or present value, whichever is less, of any buildings or other works
constructed on the property by the local body."
12) A
perusal of the order of the Nazul Officer shows that grant of NOC depends upon
various factors and fulfillment of certain conditions. It is also not in
dispute that the said officer is better equipped with to decide the application
for grant of NOC. Undoubtedly, while deciding such an application, Nazul
Officer has to consider not only the circulars but also rules and regulations
framed by the State Government. Even otherwise, when the ultimate order of
Nazul Officer can be canvassed before Collector, the High Court ought not to
have exercised its extraordinary jurisdiction under Art. 226 as an appellate 13
court over the finding of fact arrived at by the Nazul Officer. In this
context, it is useful to refer the following decisions:
In Punjab
National Bank vs. O.C. Krishnan & Ors., (2001) 6 SCC 569, this Court held:-
"6. The Act has been enacted with a view to provide a special procedure
for recovery of debts due to the banks and the financial institutions. There is
a hierarchy of appeal provided in the Act, namely, filing of an appeal under
Section 20 and this fast-track procedure cannot be allowed to be derailed
either by taking recourse to proceedings under Articles 226 and 227 of the
Constitution or by filing a civil suit, which is expressly barred. Even though
a provision under an Act cannot expressly oust the jurisdiction of the court
under Articles 226 and 227 of the Constitution, nevertheless, when there is an
alternative remedy available, judicial prudence demands that the Court refrains
from exercising its jurisdiction under the said constitutional provisions. This
was a case where the High Court should not have entertained the petition under
Article 227 of the Constitution and should have directed the respondent to take
recourse to the appeal mechanism provided by the Act."
In State
of Himachal Pradesh and Ors. vs. Gujarat Ambuja Cement Ltd. and Anr. (2005) 6
SCC 499, this Court observed as under:- "17. We shall first deal with the
plea regarding alternative remedy as raised by the appellant-State. Except for
a period when Article 226 was amended by the Constitution (42nd Amendment) Act,
1976, the power relating to alternative remedy has been considered to be a rule
of self imposed limitation. It is essentially a rule of policy, convenience and
discretion and never a rule of law. Despite the existence of an alternative
remedy it is within the jurisdiction of discretion of the High Court to grant
relief under Article 226 of the Constitution. At the same time, it cannot be
lost sight of that though the matter relating to an alternative remedy 14 has
nothing to do with the jurisdiction of the case, normally the High Court should
not interfere if there is an adequate efficacious alternative remedy. If
somebody approaches the High Court without availing the alternative remedy
provided the High Court should ensure that he has made out a strong case or
that there exist good grounds to invoke the extraordinary jurisdiction."
13) There
is broad separation of powers under the Constitution between three organs of
the State, i.e., the Legislature, the Executive and the Judiciary. It is also
well established principle that one organ of the State should not ordinarily
encroach into the domain of another. Even if the order of the first authority,
in the case on hand, Nazul Officer, requires interference, it is for the
appellate authority to look into it and take a decision one way or the other
and it is not an extraordinary case which warrants direct interference by the
High Court under Art. 226. It is relevant to note that the Nazul Officer has
adverted to a relevant fact that the Government, while renewing the lease of
3.13 acres of land from 14.03.1999 to 13.03.2029 in favour of the
respondent-Company, permitted it to change the use of 15 leased land from industrial
purpose to commercial or residential purpose on payment of the lease rent, as
payable on the land used or changed for commercial or residential purpose. In
such circumstances, if the said direction is applicable, it is but proper on
the part of the respondent to comply with it. Even if the stand of the
respondent-Company is acceptable and if they are aggrieved of the order of the
Nazul Officer, they are free to challenge the same before the Collector as
pointed above.
In our
opinion, interference by the High Court against the order of the original
authority, which is based on factual details, is not warranted under writ
jurisdiction.
14)
Coming to the second submission, in view of our conclusion about the order of
the High Court dated 26.09.2008, we are satisfied that the second issue is to
be answered against the respondent. Here again, this Court, in a series of
decisions, has held that when a matter is remitted to the original authority to
decide the issue, the 16 said authority must be allowed to take a decision one
way or the other in accordance with the statutory provisions, rules and
regulations applicable to the same. There cannot be any restriction to pass an
order in such a way de hors to the statutory provisions or
regulations/instructions applicable to the case in particular. As pointed out
earlier, even if there is any error, it is for the Collector/Government to set
it right and the High Court is not justified in asking the officer to
personally present and explain his "misconduct". In our considered
view, the High Court has exceeded its jurisdiction in issuing such a direction.
15) In
the light of the above discussion, we set aside the impugned order of the High
Court dated 26.09.2008 passed in Writ Petition No. 5469 of 2008 and the order dated
13.10.2009 in Contempt Petition No. 173 of 2009.
We make
it clear that if the matter is still pending with the Nazul Officer, he is at
liberty to pass appropriate orders in 17 accordance with the earlier directions
of the High Court as well as the rules and regulations, instructions and
circulars issued by the Government which are applicable to the matter in issue
uninfluenced by any of the observations made by the High Court. It is further
made clear that if the Nazul Officer has already concluded and passed an order
and the respondent-company is aggrieved of the same, it is free to avail the
remedy under Section 18 of the Revenue Book Circular and in that event it is
for the Collector to consider and pass orders in accordance with law.
16) With
the above directions, both the appeals are allowed. No order as to costs.
..........................................J. (P. SATHASIVAM)
..........................................J. (ANIL R. DAVE)
NEW DELHI;
JULY 23, 2010.
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