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2012 DIGILAW 562 (ORI)

Samir Mohanty v. State of Odisha

2012-12-20

S.K.MISHRA, V.GOPALA GOWDA

body2012
JUDGMENT V. GOPALA GOWDA, C.J. : This writ petition has been filed by way of public interest litigation by the petitioner who is claiming to be a social activist working for the cause of the general public in various fields representing the interest of the public at large challenging the auction of the State Government in transferring a vast extent of land at Baramunda, Bhubaneswar, the prime locality of the State capital having an area of Ac.14.430 decimals at Baramunda, Bhubaneswar, over which the inter-state and intra-state bus stand is operating, to a private company i.e. opposite party No.5 which has been designated as Concessionaire and opposite party No.6 as preferred bidder vide agreement dated 16.3.2011 by creating a permanent lease in their favour for a period of 90 years from the date of completion of the construction for the alleged commercial facility which includes residential and shopping complex to be constructed over 40% of the lease hold land and the rest 60% of the leasehold property for a period of 15 years over which the alleged Modern Bus Terminus will be constructed by opposite party No.5 hereinafter called ‘the Company’ in short, having unfettered, perennial right of collection of the entry fees, user charges from the buses and parking fees from the visiting cars and other vehicles to be entered into the proposed Bus terminus. It is stated that the grant of leasehold rights for a period of 90 years in favour of a Company is detrimental to the interest of the State and therefore, the said action of the State Government has created unrestricted scope in favour of opposite party Nos.5 and 6 to grab the valuable state property at the behest of none else than the State Government. Therefore, the petitioner has filed this Public Interest Litigation alleging that public interest at large is affected and there is violation of rule of law in executing the agreement dated 16.3.2011 which is produced at Annexure-11 and sought for quashing of the same as the same is contrary to public policy and violative of the constitutional mandate under Article 299 of the Constitution of India and the provisions under the Transfer of Property Act, Indian Registration Act and Indian Contract Act etc. 2.The brief facts of the case are stated for the purpose of considering the rival factual and legal contentions with a view to find out as to whether this petition has to be entertained as PIL and relief granted as prayed in this writ petition. 3.The Drawing Plot No. B/135 (R) in mouza Barmunda in Bhubaneswar city comprising of an area of Ac.14.430 decimals of land originally belongs to G.A. Department of the State Government and the said Department is continuing as the owner in possession of the aforesaid vast area. After establishment of the State Capital at Bhubaneswar, rapid growth of the city took place within a very short span of time and hence the area of the old bus terminus which was functioning at Unit-II, Bhubaneswar became inadequate to accommodate large number of buses coming to Bhubaneswar city every day. Due to heavy traffic congestion, in the year 1992, the aforesaid land was leased out to Bhubaneswar Development Authority, which is a statutory body constituted under the provisions of the Orissa Development Authorities Act, 1982, hereinafter called in short ‘ODA Act’. After the land in question was leased out to the Bhubaneswar Development Authority, it undertook the development of the bus stand at Baramunda and on completion of such development by obtaining loan from HUDCO, the BDA leased out the bus stand and the structures standing thereon to OSRTC by entering into an agreement on the 1st day of January, 1992 with the sole object of operating and maintaining the bus stand. The aforesaid agreement was executed between the OSRTC and the BDA conferring the leasehold right upon the OSRTC with due permission from the Government. After execution of the aforesaid agreement, the main bus terminus of Bhubaneswar city was shifted to the disputed land at Baramunda, adjacent to N.H.5 which is passing through the middle of Bhubaneswar city. The entire area of Ac.14.430 decimals of land is being used for the purpose of main bus stand which is being managed by the OSRTC w.e.f. 1992 till today. 4.By passage of time, the number of buses coming to Bhubaneswar from each corner of the state has increased from year to year. The present strength of the total number of buses coming and going from Bhubaneswar touching the main bus terminus at Baramunda is 750 which are making about 1500 trips in a day. 4.By passage of time, the number of buses coming to Bhubaneswar from each corner of the state has increased from year to year. The present strength of the total number of buses coming and going from Bhubaneswar touching the main bus terminus at Baramunda is 750 which are making about 1500 trips in a day. The entire area of Ac.14.430 decimals of land was earmarked for operation of bus stand. At present, practically the said area is inadequate to accommodate the aforesaid number of buses to make their trips in a smooth manner. 5.It appears that on 22.5.2008, a high level meeting was held in the conference hall of the Hon’ble the Chief Minister of the State. Decision was taken for modernization of different bus terminus situated throughout the State including the bus stand situated at Baramunda through Public Private Partnership mode (PPP). Further, it was decided that the modernization of the bus stand will be regulated through Commerce and Transport Department, Government of Odisha in co-ordination with the District Collectors and the Transport Commissioner will be the Nodal Officer for this purpose. 6.After the said decision was taken, the Commerce and Transport Department, Govt. of Odisha invited tender in the form of Request for Proposal (RFP) from the intending bidders to participate in the bid process to undertake modernization of Baramunda Bus Stand. According to the counter statement filed by the opposite parties, three private Companies had participated in the bidding process in pursuance to the tender notice issued by the Commerce and Transport Department. The broad role of the intending bidders as categorized in the tender notice are as follows : (a)Design, finance, construct, operate and maintain the bus terminal facility till the end of the concession period. (b)Carry out routine and periodic maintenance of the bus terminal during concession period. (c)Design, finance, construct, Book and market commercial facilities in the balance build up area and collect lease premium for commercial facility. 7.It was further stipulated in the tender notice that the completed RFP should reach the office of the PMU, IDCO latest by 15.00 hours on 20.1.2010. The ARSS Infrastructure Project Ltd-opposite party No.6 submitted the proposal to undertake the implementation of the project with a financial offer of Rs.56 crores towards concession fee (premium) subject tot he terms and conditions specified in the RFP. The ARSS Infrastructure Project Ltd-opposite party No.6 submitted the proposal to undertake the implementation of the project with a financial offer of Rs.56 crores towards concession fee (premium) subject tot he terms and conditions specified in the RFP. The Secretary to Government, Commerce and Transport Department vide its letter No.4715 dated 26.7.2010 issued a letter of acceptance of the offer submitted on behalf of ARSS-opposite party No.6. In the letter of acceptance, it was clarified that the selected bidder will pay Rs.18,66,66,667/- in form of a demand draft in favour of the OSRTC and in respect of the balance concession fee (premium) of Rs.37,33,33,333/-, the Company will submit an unconditional and irrevocable demand bank guarantee from the scheduled nationalized bank acceptable to the OSRTC. The said letter further reveals that the decision for execution of the agreement in form of concession agreement between the OSRTC and opposite party No.6 was taken by the Commerce and Transport Department in the month of July, 2010. 8.In response to the letter dated 26.7.2010 issued by the Secretary, Commerce Department, the opposite party No.6 issued a letter to the opposite party No.4-Managing Director of OSRTC complying with the pre-condition for execution of the concession agreement. Before execution of the alleged agreement, the selected bidder-opposite party No.6 stated to have deposited Rs.2,33,24,038/- in the form of demand draft in favour of Odisha Project Development Company Private Limited. In compliance with the further pre-condition, with regard to payment of premium amount, the first instalment of Rs.18,66,66,667/- was paid by the Company in the form of demand draft. The Managing Director, ARSS Infrastructure Ltd. wrote a letter to the Chairman-cum-Managing Director, OSRTC in proof of compliance of further condition of depositing the bank guarantee towards the balance premium amount. The Managing Director, ARSS Infrastructure Ltd. in compliance with all the formalities issued a letter to the Commissioner-cum-Secretary, Commerce and Transport Department, Govt. of Odisha acknowledging the letter of acceptance for development of Modern Bus Terminal at Baramunda. The Director of Estate and Ex-officio Additional Secretary to Government representing the G.A. Department issued the purported order of allotment of the land in question in favour of the OSRTC for development of the bus stand through PPP mode. of Odisha acknowledging the letter of acceptance for development of Modern Bus Terminal at Baramunda. The Director of Estate and Ex-officio Additional Secretary to Government representing the G.A. Department issued the purported order of allotment of the land in question in favour of the OSRTC for development of the bus stand through PPP mode. In the said allotment letter, it is indicated that on 20.12.2010, the G.A. Department had resumed the land from B.D.A. an discussed the purported order of allotment in favour of OSRTC with the following condition that :- (i)The terms and conditions of the lease agreement between G.A. Department and Odisha State Road Transport Corporation including the amount of premium will be decided subsequently. (ii)Pending execution of lease agreement, the Odisha State Road Transport Corporation is allowed to enter into the concession agreement with the highest bidder in order to expedite the process for development of modern bus terminal at Baramunda. 9.On 16.3.2011 after finalization of the aforesaid purported procedural requirement, the impugned agreement was executed by way of a clever drafting between the OSRTC as the Grantor and ARSS Bus Terminal (P) Ltd. as the Concessionaire and M/s. ARSS Infrastructure Project Private Limited as the Preferred Bidder for the first time disclosing in the said agreement that in respect of 60% of the allotted land the Concessionare will develop the Modern Bus Terminus within two years and will appropriate the entry fee, user fee, parking fee and other charges from the buses operating from the Bus Terminus for a period of fifteen years. In respect of other 40% of the allotted land, the Concessionaire will undertake the development of commercial complex, residential complex and shopping mall with a right to induct the tenants over the same for a period of 90 years and realize the premium amount from them during that period. 10.After execution of the impugned agreement, it came to the knowledge of the general public that Ac. 14.430 decimals of land in prime location of Bhubaneswar have been given to a private company for an indefinite period to exercise the right of ownership over the same and appropriate the profit out of the same for a period of fifteen years in respect of 60% of the land and in respect of 40% for a period of 90 years. By knowing about the aforesaid illegal transaction, application was made under the RTI Act by one Radhamohan Kar of B.D.A. Colony on 8.8.2011 seeking detail information with regard to the ownership of the land, status of the company in whose favour the impugned agreement has been executed and the procedure followed in executing such agreement. On receipt of the application from Radhamohan Kar, the PIO-cum-Law Officer of the OSRTC supplied the information. Only after receipt of the document supplied by the OSRTC, it came to the notice of the general public that in the pretext of modernization of Bus Stand, vast extent of Government property are going to be misutilized by non-else than the Government officials, in a very perfunctory manner by giving a complete go by to all the procedures approved under the law and by violating the constitutional and statutory provisions as stated above. Further, it is stated that the decision making process of transferring/leasing out the disputed land in favour of a private company by entering into the so-called concession agreement was against the public policy as well as the interest of the general public. Therefore, the petitioner has filed this writ petition challenging the validity of such contract. 11.On 5.1.2012, at the time of preliminary hearing, objection was raised on behalf of the State about the maintainability of the writ petition on the ground that the dispute involved in the petition is in the nature of a public interest litigation and due to non-compliance of the requirement of Rule-8 of the Orissa High Court Public Interest Litigation Rules, 2010, the writ petition is not maintainable. Therefore, the petitioner is required to ventilate his grievance before the appropriate authority as per the said Rule. This Court having regard to the importance of the dispute involved in the writ petition and the preliminary objection raised on behalf of the State, without disposing of the writ petition, directed the learned counsel for the petitioner to furnish extra copy of the writ petition upon the learned Addl.Government Advocate by 6.1.2012, who shall forward the same to opposite party No.2 and shall treat the copy of the writ petition as the representation and dispose of the same within a period of two weeks from the date of receipt of copy of the order passed by this Court. Petitioner has also prayed for interim protection of stay. Petitioner has also prayed for interim protection of stay. Since we have directed the opposite party No.2 to consider and dispose of the representation, it is open for the petitioner to appear before opposite party No.2 and file a petition seeking for interim relief. The matter was directed to be listed after three weeks. 12.On 7.1.2012, a copy of the writ petition was served upon the Addl.Standing Counsel in the office of the Advocate General. After serving a copy of the petition upon the Addl.Standing Counsel, the petitioner himself submitted a petition to the Principal Secretary to Government in G.A. Department for consideration of the interim relief of prohibiting the Private Company-opposite party No.5 from taking any follow up action on the basis of the agreement impugned in this writ petition. Direction was given to the opposite party No.2 to dispose of the representation by treating the copy of the writ petition as representation within two weeks from the date of receipt of the same, but he did not dispose of the same within 20.3.2012 to comply with the orders of this Court and sat over the matter for more than one and half month from the date of passing of the order i.e. on 5.1.2012. Therefore, the petitioner was compelled to file an additional affidavit before this Court along with copy of the receipt issued from the office of Advocate General on 7.1.2012 to show that copy of the writ petition was served upon the Addl.Standing Counsel in compliance to the direction given on 5.1.2012. The matter was listed on 26.3.2012 for further hearing on the question of admission. On that day, learned Government Advocate, Mr. R.K. Mohapatra sought two weeks time to comply with our order dated 5.1.2012. Even after a long gap of time, the same was not complied with. Accordingly, the matter was directed to be listed on 30.3.2012 for consideration of the interim prayer. Pursuant to the direction, opposite party No.2 did not comply with the direction of this Court. On 30.3.2012, this matter was taken up for consideration of the interim prayer made in the Misc. Case. On that date, a letter dated 29.3.2012 written by the Special Secretary to the Government addressed to the learned Advocate General was produced before the Court though the copy of the same was not served upon the learned counsel for the petitioner. On 30.3.2012, this matter was taken up for consideration of the interim prayer made in the Misc. Case. On that date, a letter dated 29.3.2012 written by the Special Secretary to the Government addressed to the learned Advocate General was produced before the Court though the copy of the same was not served upon the learned counsel for the petitioner. On the same date, another Misc. Case was filed on behalf of the State Government seeking two weeks’ time to comply with the direction issued by this Court on 5.1.2012. This Court by recording the developments in the writ petition, heard the application for interim prayer and after hearing the learned counsel for the petitioner as well as learned Advocate General, as an interim measure, directed both the parties to maintain status quo as on that date with regard to the nature and character of the property in question. The Court also directed the State Government to file their counter affidavit in reply to the contention raised by the petitioner in the writ petition and the matter was directed to be listed after two weeks. 13.On 27.4.2012, OSRTC filed counter affidavit along with a petition for vacation of the interim order passed by this Court on 30.3.2012. Without adverting to the petition averments, the legal questions raised in the writ petition, counter affidavit has been filed on behalf of the OSRTC making an attempt to justify their illegal action by taking the following pleas :- (i)The writ petition is not a public interest litigation; (ii)The writ petition has been filed after much delay; It is further stated that it is a concession provided to the concessionaire for the development of the Baramunda Bus stand as per provision 2.1 of the concession agreement with certain right and obligations which are inconsonance with PPP (mode) adopted by the State Government. The Concessionaire will pay Rs.56 crores to the OSRTC and an equivalent amount of annul license fee at Rs.2.80 crores with increase of 15% after every three years for fifteen years. 90 years lease will be given to the allottees over 40% of the land which will be developed with commercial facility. The Barmunda Bus Stand consisting of an area of Ac.14.430 decimals of land was initially allotted by G.A. Department during 1987 in favour of the BDA for the purpose of development of the bus stand. 90 years lease will be given to the allottees over 40% of the land which will be developed with commercial facility. The Barmunda Bus Stand consisting of an area of Ac.14.430 decimals of land was initially allotted by G.A. Department during 1987 in favour of the BDA for the purpose of development of the bus stand. Since the land was developed as bus stand for public purpose, the same was subsequently allotted free from premium according the policy of the Government. BDA constructed the bus stand and handed over the same to the OSRTC on 1.1.1992. The OSRTC took up the management of the bus stand, collected the parking fees and maintained the bus stand out of its own fund. It was also decided by the State Government that number of bus terminals in the State of Odisha would be developed in PPP mode for providing better amenities to the general public. Accordingly, one Empower Committee was constituted by the government in Transport Department which met on 25.6.2008 and 5.7.2008 and finalized the tender document which are called as Request for Proposal (RFP) documents. The said committee subsequently met on 20.9.2011 and approved the amendments made for request for proposal document. The said document was published on 12.12.2009 in the Economic Times, The Business Standard, The Samaja and The Dharitri calling for proposal from the interested parties. Pursuant to the said notice, three bidders namely, (1) M/s. ARSS Infrastructure-O.P. No.6, (2) M/s. Lovely International Ltd. and (3) M/s. Aravali Power Infrastructure submitted their bids. The Empower Committee accepted the highest bid of the opposite party No.6. It is the case of the petitioner that the property in question belongs to the Government and before execution of the agreement by entering into a contract with the Private Company, no procedure as provided in law has been followed. It is not stated in the counter that they have followed the procedure as provided in law before the impugned contract was entered into between the parties. 14.The stand of the petitioner and the legal contention raised by the petitioner is that the impugned contract is invalid in view of the clear provision under Article 299 of the Constitution of India. In this regard, the OSRTC in paragraph-15 of its counter has stated that OSRTC being the lease holder has executed the agreement with the Concessionaire as it is known as Granter. In this regard, the OSRTC in paragraph-15 of its counter has stated that OSRTC being the lease holder has executed the agreement with the Concessionaire as it is known as Granter. The Chairman-cum-M.D. of the Corporation has delegated the power to the General Manager, OSRTC who executed the agreement. Therefore, there is no violation of Article 299 of the Constitution of India. It is further stated that the agreement executed in favour of the opposite party No.6 without complying with the mandatory constitutional provision referred to supra, is vitiated under the law as being opposed to public policy as provided under Section 23 of the Contract Act. In this regard, the OSRTC has not given any reply. On the other hand, OSRTC in a very slip-shod manner has given a casual reply stating that concession agreement is not a lease agreement. Since OSRTC is the lease holder of the aforesaid land, the OSRTC has been mandated upon for execution of such-lease agreement with different allottees over the commercial facilities only as per applicable law and as per provision of 8.5 of the concession agreement. Therefore, the agreement is only a concession agreement and has not been registered. 15.The State Government in its counter affidavit has adopted the plea taken in this regard on behalf of opposite party No.3 stating that OSRTC being the lease holder is known as granter. The Chairman-cum-M.D. of the OSRTC has delegated the power to the General Manager, OSRTC who has executed the agreement. Therefore, there is no violation of Article 299 of the Constitution of India. In reply to the averments made in para-18 of the writ petition, it is stated that concession agreement is not a lease agreement. Since OSRTC is the lease holder of the aforesaid land, the OSRTC has been mandated upon for execution of sub-lease agreement with different allottees over the commercial facilities only as per applicable law and as per the provision of 8.5 of the concession agreement. This agreement is only a concession agreement and as such has not been registered. 16.Counter affidavit has also been filed on behalf of opp.Party Nos.5 and 6. This agreement is only a concession agreement and as such has not been registered. 16.Counter affidavit has also been filed on behalf of opp.Party Nos.5 and 6. Opposite party Nos.5 and 6 being the beneficiaries by virtue of the impugned agreement have filed their counter affidavit justifying the action taken by the OSRTC as well as the State Government in finalizing the bid in their favour and various other pleas which have been adverted to contending that the writ petition is not maintainable in view of the non-compliance of Rule-8 of the Orissa High Court Public Interest Litigation Rules, 2010. 17.Learned Advocate General has justified execution of the lease agreement by placing strong reliance upon the judgment of the Supreme Court in the case of Nand Kishore Gupta and others v. State of Uttar Pradesh and others., reported in (2010)10 SCC 282 contending that the ratio decided in the said case is applicable to the facts of the present case inasmuch as the Hon’ble Supreme Court had approved the concession agreement in favour of a concessionaire granting the lease hold right for 90 years. 18.The judgment in the case of Nanda Kishore Gupta vs. State of U.P. relied upon by the learned counsel for the petitioner will be adverted to while answering the concession issue in the reasoning portion of the judgment. Further it is contended that the agreement is not a lease agreement, it is only a licence in favour of Concessionaire for development of the property as stated supra while narrating the facts of the case. Therefore, the provisions of Section 105 of Transfer of Property Act read with Section 17 (c) of Indian Registration Act and Article 299 of the Constitution of India are not attracted and the Government should authorize in favour of a delegated sign the lease agreement as contended is wholly untenable in law. 19.By careful reading of the recitals of the agreement, it is not a lease deed in terms of the definition of Section 105 of Transfer of Property Act. Therefore, question of violation of Section 107 of the Transfer of Property Act read with the Indian Registration Act so also the public policy as provided under Section 23 of the Contract Act does not arise and placing reliance upon Section 10 of the Contract Act is also not attracted. Therefore, question of violation of Section 107 of the Transfer of Property Act read with the Indian Registration Act so also the public policy as provided under Section 23 of the Contract Act does not arise and placing reliance upon Section 10 of the Contract Act is also not attracted. Therefore, Article 299 of the Constitution of India is not violated in the present case. Hence, the learned Advocate General submitted that the policy of the State Government adverted to its own affidavit by granting land in favour of the OSRTC in the entire State and notifying the tender in the form of Request for proposal from the intending bidders to participate in the bid process to undertake the work in the entire State on PPP (mode) which is in the public interest. The same cannot be contended that it is opposed to public policy and public interest will be affected. Therefore, there is no violation of rule of law to entertain this public interest litigation. Opposite party No.2 has considered the writ petition and he has examined one of the contention and rejected the same by giving detail reasons in justification of granting the land in favour of OSRTC after resuming the land from the BDA on 20.12.2010. Thereafter, implementing the policy decision in favour of a private Company for the development of the property as Concessionaire on certain terms and conditions is beneficial for the public, the same shall not called that it is against the public policy. There is no public interest involved in this case. The petitioner is liable to be rejected. On the same terms learned Senor Counsel appearing for opposite party No.5 and 6 by placing reliance upon Rules 8,11 and 12 of the Orissa High Court PIL Rules, 2010, placing reliance upon the judgment in the case of BALCO Employees’ Union v. Union of India, reported in (2002) 2 SCC 333 and the judgment in the case of State of Uttaranchal v. Balwant Singh Chaufal, reported in AIR 2010 SC 2550 which judgment has been referred to by Division Bench of this Court in the case of Niranjan Tripathy v. State of Orissa and others., reported in 2012 (I) ILR-CUT-206 to which judgment Chief Justice was a Member of the Bench, submitted that the writ petition is not maintainable and liable to be rejected. 20.On the basis of the aforesaid factual and rival legal contentions urged on behalf of the parties, following points arise for consideration by this Court. (1)Whether this writ petition in the nature of Public Interest Litigation is maintainable in view of the non-compliance of Rule 8 of the Orissa High Court Public Interest Litigation Rules, 2010 ? (2) Whether the petitioner has got the locus standi to challenge the validity of the impugned agreement dated 16.3.2011 under Annexure-11 by filing this PIL writ petition ? (3) Whether this Court can draw legal inference as per the recitals of the agreement and right granted in favour of O.P. Nos.5 & 6 is a profit-a-prendre in respect of immovable property having regard to the period of 15 years and 90 years to the extent of 60% and 40% of land respectively in favour of O.P. Nos. 5 & 6 and the agreement is enforceable under law without the same being registered under Section 17(1)(b) of the Registration Act ? (4) Whether the agreement in question is vitiated under the law due to non-compliance of the constitutional provision as provided under Article 299 of the Constitution of India ? (5) Whether non-compliance of constitutional and statutory provisions at the time of execution of the impugned agreement is against the public policy as provided under Section 23 of the Contract Act ? (6) What order ? 21.Point Nos. 1 & 2 are answered together as they are inter-related to each other. Rule 8 of the Orissa High Court PIL Rules, upon which strong reliance is placed by the learned Sr. Counsel on behalf of O.P. Nos.5 & 6 fell for consideration before the Division Bench of this Court in the case of Niranjan Tripathy v. State of Orissa and others., reported in 2011 (I) ILR-Cut. 206, wherein this Court at paragraph 56 and 57 of the judgment, after referring to Rules 8 and 10 of the said Rules, held that compliance of said Rules is mandatory and the allegations made by the petitioner must be supported by authenticated documents, otherwise the PIL would not be maintainable. It is submitted by the learned Sr. 206, wherein this Court at paragraph 56 and 57 of the judgment, after referring to Rules 8 and 10 of the said Rules, held that compliance of said Rules is mandatory and the allegations made by the petitioner must be supported by authenticated documents, otherwise the PIL would not be maintainable. It is submitted by the learned Sr. Counsel on behalf of O.P. Nos.5 and 6 that the said decision has been rendered by this Court after referring to the judgment of the Supreme Court in the case of State of Uttaranchal v. Balwant Singh Chaufal, AIR 2010 SC 2550 and held that such writ petition which is not genuine one deserves to be dismissed. In this regard, it is worthwhile to referred to the order of this Court dated 05.01.2012 passed in this writ petition at the stage of fresh admission on the basis of the objection raised by the learned Addl.Government Advocate to the effect that Rule 8 of the Orissa High Court PIL Rules has not been complied with. Relevant portion of the said order reads thus : “3. Learned Addl.Government Advocate raised objection to the writ petition and submits that it is a Public Interest Litigation, however, as per the requirement, Rule 8 of the Orissa High Court PIL Rules, 2010 has not been complied with. Therefore, it is submitted that petitioner is required to ventilate the grievance before the appropriate authority as per the said Rules. 4. In this view of the matter, we direct the learned counsel for the petitioner to furnish an extra copy of the writ petition upon the learned Addl.Government Advocate, by tomorrow, who shall forward the same to the opposite party No.2 immediately. Opposite party No.2 shall treat the copy of the writ petition as the representation and upon careful consideration dispose of the said representation within two weeks from the date of receipt of a copy of this order along with writ petition. 5. Learned counsel for the petitioner prays for certain interim protection of stay. Since we have directed the opposite party No.2 to consider and dispose of the representation, it is open for the petitioner to appear before the O.P. No.2 and file petition seeking interim relief.” 22.By virtue of the aforesaid order this Court, instead of entertaining the writ petition, gave the petitioner opportunity to move the appropriate authority complying with Rule 8. Since we have directed the opposite party No.2 to consider and dispose of the representation, it is open for the petitioner to appear before the O.P. No.2 and file petition seeking interim relief.” 22.By virtue of the aforesaid order this Court, instead of entertaining the writ petition, gave the petitioner opportunity to move the appropriate authority complying with Rule 8. Accordingly, on 7.1.2012 petitioner served a copy of the writ petition and submitted a petition before the Principal Secretary to the Government in the G.A. Department for his consideration of the interim relief. However, the opposite party No.2-authority did not consider the same. On the other hand on 26.3.2012 learned Government Advocate sought for two weeks time for complying the order dated 5.1.2012. Thereafter, matter was listed on 30.3.2012 for consideration of the interim prayer as no action was taken on the representation of the petitioner even after lapse of about 3 months. On the said date, taking into consideration the Misc.Case filed by the Government seeking time to go through the records of OSRTC and Commerce and Transport Department and to dispose of the representation of the petitioner and on the prayer of the learned Advocate General, granted two weeks’ time to dispose of the representation. However, taking into account the fact situation of the case and after having satisfied prima facie with regard to the merit of the case, this Court passed the interim order directing the parties to maintain status quo with regard to nature and character of the land in question. This Court further directed the State Government to file counter. In view of the above fact it cannot be said that Rule 8 has not been complied with. Though the writ petition was pending, this Court granted liberty to the petitioner to move before the authority. Accordingly, petitioner moved the authority, the authority did not consider the representation for more than three months. Therefore, Rule 8 of the Rules, 2010 has been substantially complied with before entertaining the writ petition on merits. 23.Apart from the said factual position, after carefully considering and examining the said representation, the authority rejected the same vide order dated 12.4.2012 by recording the reasons. Therefore, Rule 8 of the Rules, 2010 has been substantially complied with before entertaining the writ petition on merits. 23.Apart from the said factual position, after carefully considering and examining the said representation, the authority rejected the same vide order dated 12.4.2012 by recording the reasons. 24.Further, learned counsel for the petitioner has rightly placed reliance upon the judgment of the Privy Council reported AIR 1928 PC 162 , wherein the Court has observed hereunder : “This is a matter of procedure and not of jurisdiction. The jurisdiction over the subject matter continues as before, but a certain procedure is prescribed for the exercise of such jurisdiction. If there is non-compliance with such procedure the defect might be waived and the parties who have acquiesced in the Court exercising it in a wrong way cannot after words turn round and challenge the legality of the proceeding.” 25.So far as the locus standi of the petitioner in challenging the impugned agreement is concerned, it is well settled position of law laid down by the Hon’ble Supreme Court in catena of decisions that if the petitioner shows that action of the State Government or its instrumentality is arbitrary and unlawful, even in a matter of contract, a citizen can espouse the Public Interest by approaching the Court by filing writ petition and the Court on being satisfied can grant the relief. It is also well settled preposition of law that when the act of an instrumentality of the State is contrary to the public policy, public interest, unfair, unjust and unresonable and not in accordance with the constitutional and statutory obligation, every citizen has got locus standi to challenge the said act. The issues of public importance, enforcement of fundamental right of large number of public and the policy decision of the State and its instrumentalities are contrary to any statutory or constitutional provision, the Court even treat a letter or telegram as a public interest litigation upon relaxing procedural laws. 26.In this regard, it is worthwhile to refer to the Constitution Bench decision of the Supreme Court in the case of Fertilizer Corporation Kamagar Union (Regd.) Sindri and others v. Union of India and others., reported in AIR 1981 SC 344 , particularly at paragraphs 37 and 38 wherein Justice Krishna Iyar while speaking for the Bench, has elaborately dealt with the locus standi. The relevant paragraphs of the said judgment reads thus : “37. Assuming that the Government company has acted mala fide, or has dissipated public funds, can a common man call into question in a Court the validity of the action by invocation of Art. 32 or 226 of the Constitution ? Here, we come up on the crucial issue of access to justice and the special limitations of Art. 32 which is the passport to this Court. 38. We have no doubt that in competition between Courts and streets as dispenser of justice, the rule of law must win the aggrieved person for the law Court and wean him from the lawless street. In simple terms, locus standi must be liberalised to meet the challenges of the times. Ubi jus ibi remedium must be enlarged to embrace all interests of public-minded citizens or organisations with serious concern for conservation of public resources and the direction and correction of public power so as to promote justice in its triune facets. Lord Scarman’s warning in his Hamlyn Lectures lend strength to our view : “I shall endeavour to show that there are in the contemporary world challenges, social political and economic, which, if the system cannot meet them, will they certainly cannot be suppressed by lawyers: they have to be met either by discarding or by adjusting the legal system. Which is to be ?” [English Law - The New Dimension - The Hamlyn Lectures by Sir Leslie Scarman, 1974 - Stevens - p.1.]” Further, learned counsel for the petitioner has also rightly placed reliance upon the judgments of the Supreme Court reported in Janta Dal v. H.S. Choudhary, AIR 1993 SC 892 and Guruvayoor Devaswom Managing Committee v. C.K. Rajan, (2003) 7 SCC 546 . 27.The arbitrary and unreasonable action of the opposite parties, in granting the lease of public property which is very valuable being situated in the heart of the Bhubaneswar city for 15 years with regard to 60% of land and 90 years with regard to 40% of land in favour of a private company to build the commercial and residential complex over the same and do its business by entering into an agreement/contract in the guise of development of Bus-terminus without following proper procedure and in violation of fundamental rights guaranteed under Article 14, is against the public interest and detrimental to the rights envisaged under Article 39(b) and Directive Principles of State Policy. 28.The facts stated in this case reveal that the action of the State Government and OSRTC in dealing with public property is in utter disregard of the Constitutional and statutory provisions as narrated in the writ petition. Apart from that, petitioner being a local resident of Barmunda area want to protect the public property and as it appears from the writ petition and legal contentions urged by him, it cannot be said that it is a private interest litigation, rather it is the genuine step taken by the petitioner to protect the said property from being mis-utilised. Further, in this regard, petitioner has brought certain factual aspect urging legal contention in support of the case and sought to safeguard the property of the State by approaching this Court through this Public Interest Petition. Therefore, it cannot be said that the petitioner has no locus standi to espouse the cause of the public at large in the instant case. 29.There is also violation of the statutory provisions under Section 96 read with Sub-section 2 (XXI) and (XXII) of the Motor Vehicles Act on the part of the State Government and OSRTC which clearly provides that the State Government shall specifically frame the Rules with regard to operation, fixation of place, and the area where the Bus Stand will operate along with the collection of fees from the users of the Bus Stand. By interpreting the provisions of Section 68 of the M.V. Act, 1939 which is in parimeteria with the provision of Section 96 of the M.V. Act, 1998, the Supreme Court in the case of Hari Om Gautam v. District Magistrate, Mathura and another, reported in AIR 1987 SC 1339 , has clearly spelt out the law that a Bus Stand can only be notified by the R.T.A. having the jurisdiction over the area. Except the R.T.A., if any other authority has taken the decision selecting the place in which the Bus stand will operate or to the extent of the Area in which the Bus stand will function, the same shall be treated as null and void in the eye of law. The said decision of the Supreme Court, upon which reliance has been placed by the opposite party Nos.7 to 10 who are different Bus Owners’ Association of Bhubaneswar, is aptly applicable to the fact situation of the case. Therefore, there is a statutory violation of the aforesaid provision on the part of the opposite party Nos.1, 2 and 3 in entering into the contract in question with O.P. No.6 for construction of Barmunda Bus Terminal in 60% of the area of the total extent of land granted in favour of OSRTC. In view of the above, aforesaid point No.2., 1 & are answered in favour of the petitioner. 30.Point Nos.3, 4 and 5 are also required to be answered together as they are inter-related to assigning the following reasons. It is well settled position of law that the award of contract by the State or its instrumentality can no doubt be judicially reviewed by this Court, if the Court comes to the conclusion that the award of the contract is vitiated by the violation of any of the constitutional or statutory provisions or vitiated by arbitrariness, unfairness, illegality or by irrationality. Learned counsel for the petitioner has rightly placed reliance upon the information supplied by the PIO-cum-Law Officer of OSRTC under the RTI Act in Annexure-3 to the writ petition, wherein it is specifically admitted at paragraphs 2 & 7 of the said document that “The copy of the ROR is not available. Land stands recorded in the name of G.A. Department; and G.A. Department, Govt. of Odisha is the owner of the land. OSRTC is the lease holder”. Land stands recorded in the name of G.A. Department; and G.A. Department, Govt. of Odisha is the owner of the land. OSRTC is the lease holder”. From the aforesaid information, it is clear that the Government of Odisha under the G.A. Department is the owner of the land in dispute. It is undisputed fact that the G.A. Department resumed the land from BDA on 20.12.2010 and on the same date the land in question measuring Ac.14.430 dec. was allotted in favour of OSRTC and on the basis of such allotment, the right was conferred upon the OSRTC to enter into the agreement with the opposite party Nos.5 and 6 in order to expedite the process for development of Modern Bus Terminus at Barmunda. Therefore, the legal inference is required to be drawn as to whether the OSRTC, who is a lessee of the Government, can grant the lease hold right in favour of opposite party Nos.5 and 6 by entering into an agreement. 31.Learned counsel for the petitioner has rightly placed reliance upon Article 299 of the Constitution with reference to the decision of the Supreme Court in Bihar Eastern Gangetic Fishermen Co-operative Society Ltd., v. Sipahi Singh and others, AIR 1977 SC 2149 , where the apex Court has clearly laid down the law that the provisions of Article 299 of the Constitution are mandatory and while exercising the executive power the Union or a State must satisfy the following three conditions : (1) It must be expressed to be made by the President or by the Governor of the State as the case may be; (2) It must be executed on behalf of the President or the Governor as the case may be; and; (3) Its execution must be by such persons and in such manner as the President or the Governor may direct or authorize. Failure to comply with these conditions nullify the contract and render it void and unforceable. In view of the above, it would be well established that failure to comply with the mandatory provision of Article 299 makes the contract invalid. Law is further well settled that Section 175(3) of the Govt. of India Act, upon which reliance has been placed by the learned counsel for the petitioner, is in parimeteria with Article 299 of the Constitution of India. The parliament intended in enacting the provisions contained in Section 175(3) of the Govt. Law is further well settled that Section 175(3) of the Govt. of India Act, upon which reliance has been placed by the learned counsel for the petitioner, is in parimeteria with Article 299 of the Constitution of India. The parliament intended in enacting the provisions contained in Section 175(3) of the Govt. of India Act that the State should not be saddled with the liability for unauthorized contract and with that object provided that the contracts must show on their face that they are made on behalf of the State, i.e. by the head of the State and executed on his behalf and in the manner prescribed under law. The whole aim and object of the legislature in conferring the power upon the Head of the State would be defeated, if a contract is entered into without following due procedure of law. 32.Further, placing reliance upon the judgments of the Supreme Court reported in the cases of Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Siphal Singh and others, AIR 1977 SC 2149 ; State of Bihar v. M/s. Karam Chand Thapar and Brothers Ltd., AIR 1962 SC 110 ; Bhikraj Jaipuria v. Union of India, AIR 1962 SC 113 ; Constitution Bench of the Supreme Court in State of W.B. v. M/s. B.K. Mondal and Sons, AIR 1962 SC 779 and in the case of Mulamchand v. State of M.P., AIR 1968 SC 1218 , learned counsel for the petitioner rightly submitted that where a contract between the State and the private individual is not in the form as required by Section 175(3) and other required statutory provisions, it cannot be enforced. The ownership of the land in question remain with the State Government as revealed from the document under Annexure-3. However, on perusal of the impugned agreement it is clear that the OSRTC represented by its General Manager has executed the impugned Concession Agreement in favour of O.P. Nos.5 & 6, who is not authorized under the law to execute such agreement transferring the interest over the govt. property in favour of a third party as envisaged under Article 299 of the Constitution. Further, the execution of the impugned agreement by the Managing Director of OSRTC as the Grantor is not satisfying three elementary conditions as set out by the Hon’ble Supreme Court by interpreting the provision under Article 299, referred to supra. property in favour of a third party as envisaged under Article 299 of the Constitution. Further, the execution of the impugned agreement by the Managing Director of OSRTC as the Grantor is not satisfying three elementary conditions as set out by the Hon’ble Supreme Court by interpreting the provision under Article 299, referred to supra. 33.It is also well settled position of law that where a dispute would arise as to whether a document is a “lease” or a “license”, it is the substance of the agreement must be preferred to the form. There is a marked distinction between a “lease” and “license”. The Supreme Court in the case of Associated Hotels of India Ltd. v. R.N. Kapoor, AIR 1959 SC 1262 has laid down the following proposition in that regard. (i)to ascertain whether a document creates a “license” or “lease”, the substance of the document must be preferred to the form. (ii)The real test is the intention of the parties whether they intended to create a “lease” or a “license”. (iii)If the document creates an interest in the property, it is a “lease”; but, if only permits another to make use of the property, of which the legal possession continue with the owner, it is a “license”, and (iv)If under the document a party gets exclusive possession of the property prima facie he is considered to be a “lessee”. 34.In the background of the aforesaid well settled legal proposition, it is necessary in the instant case to go to the relevant recitals of the agreement executed by the OSRTC under Annexure-11 granting lease hold right in favour of O.P. Nos.5 and 6 to know whether it is a lessee or merely a right of ‘concession’ has been granted in their favour without creating any interest over the land. It appears from agreement that the Granter has decided to implement the project through private sector participation on the build, operate, and transfer basis which comprises, subject to the terms and conditions of the agreement, the development, design, financing, construction, operation and maintenance of the project facilities by the private sector participating during the concession period, including the right to develop, design, finance, construct and maintain the commercial facility and to undertake the marketing, booking and allotment of built up area therein to demand, change, collect, retain and appropriate the entry fee and user charges and premia. The relevant clauses of the agreement provides as under : “(i)“Agreement” means this agreement including the recitals, schedules and attachment here to as may be amended, supplemented or modified in accordance with the provision before; (ii)“Annual License Fee” means the fees payable by the concessionaire to the Granter in as per the provisions of this concession agreement; (xii)“Commercial facility” or “CF” means the commercial facility, comprising built up area (Shops, offices, residential complex etc.) the common areas (including the parking lots, and as applicable the green areas, internal road, landscape structure etc.) along with support infrastructure facilities and amenities that shall be developed, designed, financed, constructed, completed, commission and operated and maintain by the concessionaire at the site. (Above the bus terminal facility and as a separate building/structure constructed on a standalone basis) and marketed, allotted and leased (under and pursuant to lease deals) in accordance with the provisions thereof; (xiii)“commercial operation” means the commercial use of the Bus Terminal Facility by charging, demanding, collecting, retaining and appropriating the entry fees and user charges; (xviii)“concession Fee” means the upfront fee of Rs.56,00,00,000/- (Rupees fifty six crores only) quoted by the concessionaire in the financial proposal of the bid and accepted by the granter that shall be paid by the concessionaire to the granter in accordance with the provisions there of in consideration for the grant of concession. (xix)“Concession period” means the period specified in Clause 2.2; (L)“Operation Period” is the period commencing from the operation date and ending on the expire on termination of this agreement/concession or extension there of; (LX)“Premia” means the amounts of money that the concessionaire may, subject to the provisions thereof demand, charge, collect, retain and appropriate from the applicants (persons making bookings/allottees leases/other persons in respect of the built of area in the commercial facility at the market driven rates determined by the concessionaries; GRANT OF CONCESSION : 2.1. Concession : Subject to the terms and conditions of the agreement, the Granter grant to the concessionaire and the concessionaire hear by accepts the exclusive right and authority during the concession period to; (a)Develop, finance, design, construct, manage, operate and maintain the Bus Terminal facility and to manage and to handle the use thereof by third parties; (b)Develop, finance, design and construct OSRTC facilities; (c)Demand, charge, collect, retain and appropriate entry fees and user charges; (d)Manage the bus movement within the bus terminal facility; 2.2. CONCESSION PERIOD : The concession period shall commence from the compliance date and shall extent for a period of 17 years from such date or upto the date of termination or upto a date extended as per the provisions of clause-12 of agreement for the avoidance of doubt the concession period shall include the construction period of twenty four months and subsequent operation period of fifteen years. 35.From the aforesaid recitals it is clear that the sum and substance of the agreement is grant of lease hold right in favour of O.P. Nos.5 & 6. On a conjoint reading of the recitals set forth in the various clauses of the impugned Agreement it is to be ascertained as to whether the Grantor has conferred the lease hold right upon the concessionaire or a mere license has been given to use the land for a certain period. Chapter-V of the Transfer of Property Act deals with the leases of immovable property. Section 105 of the said Act deals with the definition of “lease” and Section 107 deals with the provision as to how the leases are to be made. Similarly, Section 52 of the Indian Easement Act defines the term “license”. Section 3 (26) of the general Clauses Act and Section 2(6) of the Registration Act deal with definition of “immovable property”. 36.In the instant case, by careful reading of the clauses and recitals in the agreement with reference to the aforesaid provision of the relevant Acts, it is clear that agreement executed in favour of O.P. Nos.5 and 6 in substance created an interest over the property in question, out of which the concessionaire is certainly going to appropriate the benefit arising out of the disputed land by remaining in possession for more than 15 years in respect of 60% of land over which Bus Terminus is to be constructed and operated with a further right of collection of entry fee, user fee, and other charges as mentioned in different clauses of the agreement and in respect of remaining 40% of the land, a right has been given to the concessionaire to build the commercial complex over the same and with exclusive right to induct the respective tenants over the same and collect and appropriate the premium from different tenants as has been expressly mentioned in the agreement. It is clear from the documents that possession over the land is to be handed over to the concessionaire for the entire concession period free from all encumbrances. By conjoint reading of all the relevant clauses of the agreement, it is absolutely clear that the document in question is clearly satisfying the condition of “lease” as defined under Section 105 of the T.P. Act. It is well settled proposition of law that a lease cannot be converted into a license merely by calling it as license, it will have to be determined whether in the circumstance of the case, the possession of the aversary was that of a licensee or lessee. Section 52 of the Easement Act defines that license comes into operation where one person grants to another a right to do or continue to do in or upon the immovable property of the Grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an interest in the property. In the case on hand, under the agreement executed, O.P. Nos.5 and 6 are required to do or continue to do a particular type of work either in the built up area of the Bus Terminus or the portion earmarked for commercial complex. On the other hand, exclusive right over the land has been conferred upon the O.P. Nos.5 and 6 by way of this agreement to enjoy the exclusive possession of the property by developing, financing, designing and constructing, operating and maintaining the project in question at the project site and all activities incidental thereto, such as demanding, charging, collecting, retaining and appropriating the user charges for a period of 15 years in respect of Bus terminus facility; and 90 years in respect of commercial facility, wherein right has been granted to O.P. Nos.5 and 6 to construct, develop and thereby to market, book and to allot the built up areas comprising the commercial facility with a right to demand, charge, collect, retain and appropriate the premium for such area from the applicants. Therefore, we have to hold that this type of transaction cannot be said to have created a mere license and hence the O.P. Nos.5 and 6 are the lessees and not the licensees, from the moment they entered into possession. Therefore, we have to hold that this type of transaction cannot be said to have created a mere license and hence the O.P. Nos.5 and 6 are the lessees and not the licensees, from the moment they entered into possession. 37.Learned counsel for the petitioner has rightly placed reliance upon the decision of the Supreme Court in the case of Qudrat Ullah v. Municipal Board, Bareilly, reported in AIR 1974 SC 396 , wherein the Supreme Court has clearly interpreted the distinction between “lease” and “license”. The relevant portion of the said judgment is extracted hereunder : “there is no simple litmus test to distinguish the lease as defined u/s. 105 of TP Act from a license as defined U/s. 52 of the Easement Act, but the character of the transaction turns on the operative intent of the parties. To put it pithily, if an interest in immovable property entitling the transferors to enjoyment, is created, it is a Lease; if permissions to use land without right to exclusive possession is alone granted a license is the legal result”. In the said judgment, the Supreme Court by quoting various paragraphs from Halsbury’s Laws of England Vol-23, ultimately came to the conclusion that where, under an agreement with the municipality a person is allowed to collect the rents and Bazar dues from sheds and shops and the internal roads within the market, the deed has to be held to be a lease deed and not merely a license. 38.Learned counsel for the petitioner further placed strong reliance on the decision of the Supreme Court in the case of Associated Hotels of India Ltd. v. R.N. Kapoor, AIR 1959 SC 1262 , to make purposive interpretation of the real intention of the parties involved in the agreement in the instant case. By careful interpretation of the various recitals of the agreement we can come to the conclusion that the agreement is a “Lease Agreement” entered into between the OSRTC and O.P. Nos.5 and 6 and as the transaction in respect of the disputed property, valuation of which certainly exceeding much more than Rs.100/- and the duration of the agreement is exceeding more than one year, the document in question must have been registered as per the provision of Section 107 of the T.P. Act read with Section 17 of the Registration Act. In the absence of the same, the agreement is rendered as void in the eye of law and therefore, the same is liable to be unenforceable under the law. 39.Further, it is clear from the impugned agreement that the Grantor has created a right in favour of the so-called concessionaire to remain in possession over 60% of the land in question for 15 years and 90 years in respect of remaining 40% of land with a right to collect and appropriate the benefit arising out of the land in question, which benefit in essence is in the character of a immovable property as defined U/s. 2(6) of the Indian Registration Act. Section 2(6) of the Registration Act and Section 3(26) of the General Clauses Act define “immovable property”. The Supreme Court in the cases reported in AIR 1956 SC 17 ; and Bihar Eastern Gangetic Fishermen Co-operative Society Ltd., v. Sipahi Singh and others, AIR 1977 SC 2149 , while dealing with similar cases elaborately discussed the definition of “Immovable Property” and “profit-a-prendre”. In view of the proposition of law, if the clauses of the impugned agreement are interpreted the said document would amount to sale under the Registration Act and is a “profit-a-prendre” in the character of “Immovable Property” and same requires registration in terms of Section 54 of the T.P. Act read with Section 17 of the Registration Act. As “profit-a-prendre” is regarded as “Tangible Immovable property”, and the valuation of the property in the present case, is much more than Rs.100/-, a registered instrument is required under the law to create a right in favour of the O.P. Nos.5 & 6. The ‘sale’ in the present case was under an unregistered instrument. That being the case, the impugned transaction having not conferred title or interest in favour of O.P. Nos.5 & 6, they have no fundamental right which they can enforce under the law. 40.Further, it is an undisputed fact as per the information furnished under the RTI Act referred to supra that the land in question stands recorded in the name of G.A. Department, Government of Orissa and the G.A. Department is the owner of the land. Undisputedly the G.A. Department after resuming the land from the BDA on 20.12.2010, granted the lease of the said land in favour of OSRTC. Hence, the OSRTC is the lease holder. Undisputedly the G.A. Department after resuming the land from the BDA on 20.12.2010, granted the lease of the said land in favour of OSRTC. Hence, the OSRTC is the lease holder. It is well settled proposition of law that if the action of the State Government or its instrumentality by way of entering into a contract with the private party dealing with public property is in contravention of the statutory or constitutional provisions, power of judicial review can no doubt be exercised by this Court. In the instant case, opposite parties, taking advantage of a purported order dated 20.12.2010 under Annexure-10 to this writ petition, stated to be issued by the G.A. Department, have tried to advance a plea that in order to facilitate the execution of the lease agreement in favour of the highest bidder, the G.A. Department had resumed the land from BDA vide order No.12816 dated 20.12.2012 and on the same date i.e. on 20.12.2012,, pending finalization of the terms and conditions of the allotment of land, allotted the land in question to the extent of Ac.14.430 dec. in favour of OSRTC, and on the basis of such allotment, right was conferred upon the OSRTC to enter into the concession agreement with O.P. Nos.5 & 6. The essence of the plea of opposite parties is that the land having been allotted in favour of OSRTC, OSRTC is competent to enter into the agreement with the opposite party Nos.5 & 6. The said action is in violation of the statutory provisions and the same is not tenable in law. In view of the clear provision of Article 299, all contracts made in exercise of the executive power of the union or of a state shall be expressed to be made by the President, or by the Governor of the State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power, shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorize. Sub-article (2) of Article 299 states that, neither the President nor the Governor shall be personally liable in respect of any contract or assurance made or executed for the purpose of this constitution, or for the purposes of any enactment relating to the Govt. Sub-article (2) of Article 299 states that, neither the President nor the Governor shall be personally liable in respect of any contract or assurance made or executed for the purpose of this constitution, or for the purposes of any enactment relating to the Govt. of India heretofore in force, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof. 41.In respect of the contract in the case on hand, it is not authorized by the Governor to execute the lease agreement, but the General Manager of OSRTC as per the delegation of power of the Chairman-cum-Managing Director of OSRTC executed the agreement. 42.It is the well settled legal principles that the procedure under Article 299 of the Constitution must be complied with while dealing with such matter. The effect of non-compliance of the procedure under Article 299 of the Constitution of India has been interpreted in various judicial pronouncements of the Hon’ble Supreme Court. In the case Bihar Eastern Gangetic Fishermen Co-operative Society Ltd., v. Sipahi Singh and others, AIR 1977 SC 2149 , the Supreme Court has clearly and lucidly elaborated the provision of Article 299 and held that the same are mandatory in character and while exercising the executive power the Union or a State must satisfy three conditions : (1) It must be expressed to be made by the President or by the Governor of the State as the case may be; (2) It must be executed on behalf of the President or the Governor as the case may be; and; (3) Its execution must be by such persons and in such manner as the President or the Governor may direct or authorize. Failure to comply with these conditions nullify the contract and render it void and unenforceable.” That has not been done in the instant case. There is no estoppel or ratification in a case where there is contravention of the provisions of Article 299 (1) of the Constitution. The said provision is made in the public interest and therefore the word “shall” has been used to make the provision obligatory and not directory. 43.If the argument advanced and interpretation made by the opposite parties are accepted, we have to give all the statutory and constitution provisions a go by, which cannot be done by a Court. The said provision is made in the public interest and therefore the word “shall” has been used to make the provision obligatory and not directory. 43.If the argument advanced and interpretation made by the opposite parties are accepted, we have to give all the statutory and constitution provisions a go by, which cannot be done by a Court. Therefore, the stand of the opposite parties that the agreement is valid cannot be accepted by this Court. In view of the discussions made above with reference to the decisions and law laid down by the Supreme Court referred to supra, point Nos. 3 to 5 are also answered in favour of the petitioner and against the opposite parties. 44.Having answered all the points in favour of the petitioner due to non-compliance of statutory and constitutional provisions referred to above by the opposite parties, the impugned agreement is void ab-initio and accordingly concessionaire cannot have any right or interest over the land in question on the basis of the said void document, which is opposed to the public policy as provided under Section 23 of the Contract Act. For the reasons stated supra, the writ petition succeeds. The impugned agreement dated 16.3.2012 under Annexure-12 is hereby quashed. No order as to costs. S.K. MISHRA, J.I Agree. Petition succeeds.