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2023 DIGILAW 846 (AP)

Synectics Society v. State of Andhra Pradesh

2023-06-14

D.V.S.S.SOMAYAJULU

body2023
ORDER : 1. This Writ Petition is filed by the petitioner for the following relief: “…to issue a writ of Mandamus or any other appropriate Writ, order or direction declaring G.O.Ms.No. 151 Revenue (Assistant. I) dated 22.03.2013 as arbitrary, illegal, unjust as ultra vires of powers of the first respondent and as in violation of the Principles of Natural Justice and issue a consequential direction directing the respondents not to interfere with the ownership and possession of the petitioner society in Ac.5-00 of land in Sy.No. 401 out of Sy.No. 314 in Kapulupadu village, Bheemunipatnam Mandal, Visakhapatnam District in any manner whatsoever, either under the impugned G.O.Ms.No. 151 Revenue (Assignment I) dated; 22.02.2013 or otherwise and to pass such other order or orders as this Hon’ble Court may deems fit just and proper in the circumstances of the case.” 2. This Court has heard Sri M. Vijay Kumar, learned senior counsel appearing on behalf of Sri B. Manoj Kumar, learned counsel for the petitioner and Sri C. Sumon, learned Special Government Pleader for the respondents. 3. The facts are not seriously in dispute. Learned senior counsel for the writ petitioner points out that Ac.5-00 cents of land was allotted to the writ petitioner on 20.02.2009 on payment of total sale consideration of Rs.1,46,25,000/- by the writ petitioner and proceedings were issued on 24.10.2009 acknowledging the same and. Physical delivery of the property measuring Ac.5-00 cents was given on 07.11.2009. The petitioner wanted to establish a world class Business and Hospitality School and the land was allotted for this purpose. Learned senior counsel points out that soon thereafter a notice was received in February, 2010 directing the petitioner to pay Rs.1,46,25,000/- towards conversion fee from agricultural land to nonagricultural land. He points out that immediately the petitioner made a representation which was pending and no decision was taken on this issue till recently. Petitioner’s contention that nothing needs to be paid, but ultimately overruled by the respondents during the pendency of this Writ on 16.02.2023. It is submitted that due to this issue and the delay in respondents taking a decision, the petitioner could not continue with the work and therefore the delay cannot be attributed to the writ petitioner. Petitioner’s contention that nothing needs to be paid, but ultimately overruled by the respondents during the pendency of this Writ on 16.02.2023. It is submitted that due to this issue and the delay in respondents taking a decision, the petitioner could not continue with the work and therefore the delay cannot be attributed to the writ petitioner. Learned senior counsel also submits that the show cause notice, which is issued to the writ petitioner, and led to the order of cancellation, did not specify the consequences that would follow. Relying upon Gorkha Security Services vs. Govt. (NCT of Delhi), AIR 2014 SC 3371 learned senior counsel argues that show cause notice did not state that cancellation would be affected and therefore it is submitted that the same is contrary to law. In conclusion learned senior counsel submits that there is no delay in the implementation of the project and in the alternative the order of the cancellation also should be set aside because the show cause notice did not clarify the action that would be taken. 4. In reply to this Sri C. Sumon, appearing for the respondent-State argues that the alienation in this case is subject to certain conditions only. He points out that from the 1st G.O.Ms.No. 218 issued clearly states that the allotment is subject to the conditions stipulated in BSO No. 24 and also securing of necessary statutory clearances. He also relies upon the proceedings, dated 24.10.2009, which clearly state the conditions of the alienation. These conditions are that the petitioner should not infringe any of the conditions of the grant and the land should only be utilised for establishment of world class Business and Hospitality School subject to the statutory clearances. It is also specified that BSO 24 would apply. Even in the show cause notice it is pointed out that there is a reference to BSO 24 and also to the fact that the land was found vacant on the ground. He submits that BSO 24 also stipulates that resumption of land in case of lack of development. Learned counsel also submits that a detailed reply was given through the show cause notice and the writ petitioner is aware of the consequences of non-development. It is submitted that no prejudice is also caused merely because the show cause notice does not expressly specify that action for cancellation would be taken. Learned counsel also submits that a detailed reply was given through the show cause notice and the writ petitioner is aware of the consequences of non-development. It is submitted that no prejudice is also caused merely because the show cause notice does not expressly specify that action for cancellation would be taken. It is also submitted that even though the allotment was made in 2009, even upto the date of cancellation i.e., in March, 2013 not one statutory clearance has been obtained by the petitioner. COURT: 5. This court after examining the submission made notices that the 1st order passed for alienation is G.O.Ms.No. 218, dated 20.02.2009. This order itself clearly states that the land is being alienated subject to condition that the institute should produce statutory clearances and BSO 24 shall apply. 6. Even in the order dated 24.10.2009 the conditions of alienation are to the same effect: BSO 24 shall apply and the conditions also specified that the land should be used for establishment of World Class Business and Hospitality school subject to the statutory clearances. It is mentioned that the Government also can resume the land in the event of infringement of any of the conditions. 7. The point urged by the learned senior counsel that there is no time fixed for construction of the school is appreciable, but the law on the issue is well settled that even if no time is fixed action should be taken in a reasonable time. Admittedly, the allotment was made in 2009 and the physical possession was handed over on 07.11.2009. In the reply to the show cause notice that is issued on 15.12.2012 by the writ petitioner it is clear that other than cleaning, levelling the uneven land no progress has been achieved. Even in March, 2012 it is stated that the petitioner is initiating action for obtaining statutory clearances from AICTE, Andhra University and other agencies. Process for finalising the architect for the project is also initiated according to this letter. Process for taking permissions from Government of India for commencing centre is also initiated. It is stated that the admission process would start by the end of 2013 and classes would commence in the years 2014-15. Marketing activity would start in July-August, 2013. Process for finalising the architect for the project is also initiated according to this letter. Process for taking permissions from Government of India for commencing centre is also initiated. It is stated that the admission process would start by the end of 2013 and classes would commence in the years 2014-15. Marketing activity would start in July-August, 2013. It is thus clear from a reading of this reply notice itself that almost three years after the actual physical possession has been granted no work worth mentioning has been commenced. Statutory clearances have not been obtained. An architect was not finalised even in March, 2012. Some marketing activity is scheduled to start in July-August, 2013. Academic classes according to this estimate would commence in 2014-15. It is thus clear that there is virtually no progress whatsoever in the implementation of the project. The link between the conversion and the activities mentioned in this letter is also not clear. The petitioner did not even finalise the architect for making the plans. The letter itself says necessary design and building plans will be finalised in the next few months. It is crystal clear that the petitioner grossly failed in implementing the project. Lands, which are allotted subject to these sort of conditions, cannot be kept dormant and unused for years together. The petitioner’s bona fides in this aspect are lacking. More than a reasonable period was available to the writ petitioner to start the activities within the legal guidelines to show some concrete and clear progress. Absolutely nothing has been done. In the opinion of this Court BSO 24 is applicable, which states as follows: “BSO 24(6): 6. Condition for the grant of State land (i) Lands at the disposal of Government: A grant of State land whether for religious, educational or other public purpose should always contain the following conditions: (1) The land shall be used and for no other purpose. (2) The Government may resume the land wholly or in part with any buildings thereon, in the event of the infringement of any of the conditions of the grant. (2) The Government may resume the land wholly or in part with any buildings thereon, in the event of the infringement of any of the conditions of the grant. In the event of such resumption no compensation shall be payable for any improvements that may have been effected, or other works that may have been executed on the land by the grantee and the grantee shall not be entitled to the repayment of any amount that may have been paid to the Government for the grant. If there are buildings on the land the Government may direct the grantee to remove them. (3) The Government may resume the land wholly or in part, with any buildings thereon, if in the opinion of the Government the land is required for a public purpose or for conducting mining operations. In the event of such resumption or in the event of the acquisition of the land for any reason, the compensation payable for the land and trees, shall in no case exceed the amount paid for them by the grantee or their value at the time of resumption or acquisition whichever may be less. (4) In the event of resumption under condition (3), if there are buildings on the land, the Government shall pay compensation for them in accordance with the provisions of condition (5). (5) In the event of the resumption of the land under condition (3) or in the event of the acquisition of the land for any reason the compensation payable for buildings or other improvement shall in no case exceed the amount paid for them by the grantee at the time of grant or their value at the time of resumption or acquisition whichever may be less, together with the initial cost or the value at the time of resumption or acquisition, whichever may be less of any buildings erected or other improvements effected on the land by the grantee in accordance with the terms of the grant. The amount of any grant made by the Government towards the cost of the buildings or other improvements shall be deducted from the compensation payable under this condition. (6) In the event of the grantee refusing to remove the buildings when so directed under condition (2), the Government may remove them and realize the cost of the removal by the sale of the materials. (6) In the event of the grantee refusing to remove the buildings when so directed under condition (2), the Government may remove them and realize the cost of the removal by the sale of the materials. (7) In the event of the voluntary relinquishment of the land by the grantee no compensation shall be payable for any improvements that may have been effected or for works that may have been executed on the land by the grantee but the grantee shall be entitled to the repayment of any amount that may have been paid to the Government, for the grant, or the value of the land at the time of relinquishment, which-ever may be less. (8) The Government reserve to themselves the right to all sandalwood trees and their branches and roots which exist at the time of grant as well as those which may grow subsequently on the land and the Government shall be at liberty to cut or dig out any such trees or their roots and branches and remove them from the land and dispose of them at their pleasure. The grantee shall not be entitled to cut or remove them or cause them to be cut or removed without permission of the Collector of the district. (9) The grantee shall take all reasonable measures to the satisfaction of the Collector of the district for the protection of the sandalwood trees from theft or damage and for the careful protection of the immature trees growing on the land. (10) The grantee shall take steps to see that the marks made by the officers of the Government on the sandalwood trees are preserved and are not tampered with. (11) In the event of the infringement of, or failure to observe any of the conditions (8) to (10), the grantee shall pay to the Government such compensation as is determined by the Collector of the district for any loss or damage caused by such infringement or failure on his part. The Government shall also be at liberty to resume the land and re- enter on it and the whole land shall thereupon vest absolutely in the Government. In that case the grantee shall not be entitled to any compensation whatever. The Government shall also be at liberty to resume the land and re- enter on it and the whole land shall thereupon vest absolutely in the Government. In that case the grantee shall not be entitled to any compensation whatever. Note: When lands are placed at the disposal of a person, an institution or a local body in the districts noted below, the conditions (8) to (11) above relating to the reservation of sandalwood trees should be scored out. Guntur, East Godavari, Visakhapatnam, Cuddapah, Krishna, West Godavari, Srikakulam, Nellore. These conditions are not intended to be exhaustive and it is open to the authority competent to sanction such grants to impose such additional conditions as it may think fit. The conditions need not be very stringent when land is granted on payment of value. Where the disposal of land is ordered free of charge to local bodies for public purposes, and additional condition should be inserted reserving the right to the Government to collect the value of the land in the event of the local bodies deriving a substantial income from it. Whenever it is proposed to place land at the disposal of a school, the question whether the land is in a locality accessible to member of all communities should be examined. One of the conditions of grant should be that the school shall be open to members of all communities. In the case of grants of land for school playgrounds and other purposes where the erection of many expensive buildings would be inconsistent with the object of the grant, the further condition should be imposed that the grant shall be liable to forfeiture without any compensation if buildings are erected on the land without the previous sanction of the State Government or other competent authority. In all cases a condition should be imposed prohibiting the construction without the previous permission of the Collector of buildings other than those to be specified and providing that no compensation shall be payable in the event of resumption or acquisition for any buildings erected without such permission. If the condition is considered unsuitable in any particular case, e.g. where the extent is petty and there is a building already on the site, the reasons for omitting the condition should be fully explained. If the condition is considered unsuitable in any particular case, e.g. where the extent is petty and there is a building already on the site, the reasons for omitting the condition should be fully explained. In order that these conditions, which should be set out in full in every case, may be duly enforced, a register of all land granted should be maintained in every village and taluk office in the form prescribed in the village and Taluk Accounts. (ii) Lands acquired at the cost of the grantee:-In the case of lands acquired at the cost of private institutions or associations under the provisions of the Land Acquisition Act, for educational or other public purposes and placed at the disposal of the institutions or associations, the following conditions should be imposed in the place of conditions (1) to (7) in the previous sub-paragraph: (1) The land shall be used for.........and for no other purpose. (2) The Government may resume the land wholly or in part, with any buildings thereon, if, in their opinion, the land is required for a public purpose or for conducting mining operations. In the event of such resumption, the compensation payable for the land and trees shall be the amount paid for them by the grantee at the time of the acquisition, including the 15 per cent solatium, or the value at the time of resumption together with 15 per cent thereof, whichever may be less. If there are buildings on the land, the Government shall pay compensation for them in accordance with the provisions of condition. (3) In the event of the resumption of the land under condition (2), the compensation payable for the buildings and other improvements shall be the amount paid for them by the grantee at the time the acquisition including the 15 per cent solatium or their value at the time of resumption by the Government together with 15 per cent thereof, whichever may be less, together with the initial cost or the value at the time of resumption, whichever may be less, of any buildings erected and other improvements effected on the land by the grantee in accordance with the terms of the grant, plus 15 per cent of such cost or value. (4) In the event of the infringement of any of the conditions of the grant or in the event of the voluntary relinquishment of the land by the grantee, the Government may resume the land if it is required for a public purpose or if the Government consider that it should be returned to the original owner. If the Government decide not to exercise this power and inform the grantee accordingly, the latter may dispose of the land in any manner he likes, subject to his repaying to the Government the amount of any grant made by them towards the cost of the lands and of the buildings or other improvements. In the event of the resumption of the land under this condition, the compensation payable to the grantee shall be the value of the land at the time of acquisition (less the 15 per cent awarded for compulsory acquisition) or its value at the time of resumption whichever may be less, together with the value of buildings and other improvements, at the time of resumption. If there are buildings on the land, which the Government do not require, the grantee shall remove them at his cost. In the event of the grantee refusing to remove the buildings, the Government may remove them and realize the cost of the removal by the sale of the materials. (5) The amount of any grant made by the Government towards the cost of the land and of the buildings or other improvements shall be deducted from the compensation payable under conditions (2), (3) and (4). 8. There is an infringement of the conditions of grant as virtually no progress has been made even as on date of the show cause notice and the cancellation order. In fact, in the cancellation order it is clearly noted that no statutory clearances have been granted by the society to start the course even in 2014-15. 9. The other issue that arises is about the contents of the show cause notice. Relying upon a judgment reported in Gorkha Security Services case (supra) learned senior counsel argued that the contents of the show cause notice should also state the proposed action that is likely to be taken, this would then enable the party to give an effective reply. Learned senior counsel relies upon para 19 of this judgment. Relying upon a judgment reported in Gorkha Security Services case (supra) learned senior counsel argued that the contents of the show cause notice should also state the proposed action that is likely to be taken, this would then enable the party to give an effective reply. Learned senior counsel relies upon para 19 of this judgment. The Hon’ble Supreme Court of India agreed to this proposition, but also stated in para 20 that even if a proposed penalty or action is not mentioned in the show cause notice, if the same can be discerned from a reading thereof that would be sufficient to meet the requirement. In the opinion of this Court a reading of the show cause notice and the reply together would make it clear that the writ petitioner was aware of the consequences. The notice said that the land is found vacant on ground without development and that this is against the conditions of BSO 24. The demand was made to submit an explanation for failure to develop the land. A detailed reply was given on 15.03.2012, which is dealt with earlier. It is therefore clear that the writ petitioner was aware of the consequences of the failure and the likely order that would be passed. The judgment relied upon is also a judgment relating to blacklisting of a contractor. This is a case relating to the cancellation of the land which is allotted to on the basis of certain conditions including BSO-24 including fulfilling the conditions of allotment. The stipulation is clearly there that the Government can resume the land if the conditions are not fulfilled. Therefore, a reading of all the documents in conjunction would clearly reveal that the writ petitioner is aware of the consequences or the action that would be taken for their failure to develop the land. Therefore, the submission of the learned senior counsel on this ground is negatived. In the strict sense of the word, no prejudice is also caused to the writ petitioner, because he has got a detailed post decisional hearing also in the course of hearing of the writ petition. The decision to cancel the allotment is not yet implemented also. The status quo was preserved and the matter was heard at length. Therefore, in the strict sense no tangible prejudice is caused to the writ petitioner in this case. 10. The decision to cancel the allotment is not yet implemented also. The status quo was preserved and the matter was heard at length. Therefore, in the strict sense no tangible prejudice is caused to the writ petitioner in this case. 10. For all the above mentioned reasons the writ petition is dismissed. There shall be no order as to costs. 11. Consequently, Miscellaneous Applications pending, if any, shall also stand dismissed.