Anand Kumar Sharma vs State Of U.P. Thru' Secretary And ...

Hon'ble Rajes Kumar,J Hon'ble Mahesh Chandra Tripathi,J.

(Delivered by Hon'ble Ashok Bhushan,J) This Full Bench has been constituted to answer the following two questions referred by the Division Bench hearing this writ petition.

"1. Whether the application of the petitioner dated 25.7.2005 submitted for grant of freehold right on the basis of the Government Order dated 1.12.1998 (Paragraph 7) and the Government Order dated 10.12.2002 (paragraph 5) was entitled to be considered in accordance with the Government policy as was in existence on the date of application or the Government policy as amended by Government Order dated 4.8.2006, was to be taken into consideration while deciding the application on 18.12.2006?

2. Whether the Division Bench judgment in Dr. O.P. Gupta Vs. State of U.P. 2009 (4) AWC 4038 lays down the correct law?"

Brief facts giving rise to the writ petition and the reference to this Full Bench need to be noted. The State Government formulated a policy to grant a free hold right on Nazul Land by Government Order dated 23/5/1992. The above policy was amended from time to time. The Government Order dated 01/12/1998, was issued for grant of free hold rights on the Nazul Land on the terms and conditions as mentioned in the said Government Order. (Paragraph 7) of the Government Order dated 01/12/1998, also provided for grant of free hold rights to unauthorised occupants on fulfilment of certain terms and conditions. By subsequent Government Order dated 10/12/2002, the policy of granting free hold rights to unauthorised occupants was continued. A clarification was issued to the Government Order dated 10/12/2002 by subsequent Government Order dated 31/12/2002.

Petitioner's father had made certain constructions on a nazul land. A notice dated 30/6/2002, was issued by the Nagar Palika Parishad asking him to submit an application for grant of freehold right on Plot No.3579 area 160.40 square meters which was said to be in unauthorised occupation of the petitioner.

The petitioner submitted an application dated 20.7.2005 for grant of freehold right for an area of 188.72 square meters along with deposit of an amount of Rs. 66052/- on the basis of self assessment. The said application remained pending. The State Government by Government Order dated 4.8.2006 amended the Government Order dated 1.12.1998 by cancelling paragraph 7 and Government Order dated 10.12.2002 by cancelling paragraph 5 which paragraphs provided for grant of freehold rights to unauthorised occupants. After issue of the Government Order dated 4.8.2006, the Collector rejected the application of the petitioner vide order dated 18.12.2006 informing that in view of the Government Order dated 4.8.2006, the unauthorised occupation cannot be regularised hence, the application dated 25.7.2005 submitted by the petitioner is rejected.

When the writ petition was heard by the Division Bench, learned counsel for the petitioner in support of his submission submitted that the application dated 20/7/2005, was required to be considered as per the Government Orders dated 01/12/1998 and 10/12/2002 and the subsequent Government Order dated 04/8/2006 withdrawing the earlier policy of granting freehold rights to unauthorised occupant was not applicable.

Learned counsel for the petitioner had placed reliance on the Division Bench judgment of this Court in Dr. O.P. Gupta Vs. State of U.P. & Ors, 2009 (4) AWC 4038. The Division Bench hearing the writ petition doubted the correctness of judgment in Dr. O.P. Gupta's case (supra) and vide order dated 28/5/2013, has referred the above noted two questions to be answered by a larger bench. This matter has been placed before the Full Bench under the orders of Hon'ble the Chief Justice dated 24/7/2013.

We have heard Shri P.K. Jain, learned Senior Counsel appearing for the petitioner, Shri C.B. Yadav, learned Additional Advocate General assisted by Shri Shashank Shekhar Singh for the State respondents; Shri H.R. Mishra, learned Senior Counsel has also been heard who has advanced his submission to support the Division Bench judgment of this Court in Dr. O.P. Gupta's case (supra).

Shri P.K. Jain, learned Senior Counsel for the petitioner in support of the writ petition contended that the petitioner having made the application for grant of freehold rights in accordance with the government policy as was existing at the relevant time and having also deposited the amount for grant of freehold rights as per the Government Order, his application was entitled to be considered in accordance with the government's policy as in existence on the date of making the application and his application could not have been rejected on the ground that the policy for grant of freehold rights has been withdrawn subsequently. He submits that the petitioner had acquired "vested right" to obtain freehold rights as per the existing policy of the Government which could not have been taken away by the Government Order dated 04/8/2006. At best the Government Order dated 04/8/2006 can be made applicable prospectively i.e. on the applications which were to be submitted subsequent to the Government Order dated 04/8/2006. He submitted that the Division Bench judgment in Dr. O.P. Gupta's case (supra) lays down the correct law.

Shri C.B. Yadav, learned Additional Advocate General appearing for the State refuting the submissions of the learned counsel for the petitioner submitted that the petitioner did not have any vested right to obtain freehold rights on his application dated 25/7/2005, since the policy of granting freehold rights to an unauthorised occupants was withdrawn by the Government Order dated 04/8/2006, on which date the petitioner's application was still pending. It is submitted that the government having taken a policy decision not to grant any freehold right to any unauthorised occupant and the decision immediately having became applicable from the date of issuance of the Government Order dated 04/8/2006, no freehold rights could have been granted thereafter to any unauthorised occupant. He submits that the Government Order dated 04/8/2006, was also applicable on the applications which were pending on the aforesaid date since there was no such exception made out in the Government Order dated 04/8/2006. It is further submitted that the Government Order dated 04/8/2006, is prospective in nature and does not affect the freehold rights already granted prior to the Government Order dated 04/8/2006. It is submitted that by submitting an application on 25/7/2005, by the petitioner he did not acquire any vested right. He had only right of consideration of his application dated 25/7/2005, in accordance with the provisions as applicable in accordance with law. He submitted that the Division Bench judgment in Dr. O.P. Gupta's case (supra) does not lay down the correct law in holding that the application for grant of freehold right shall be considered in accordance with the policy decision as was in existence on the date of making the application.

Shri H.R. Mishra, learned Senior Counsel submitted that the judgment in Dr. O.P. Gupta's case (supra) lays down the correct law. He submitted that a person making an application for grant of freehold right acquired vested right since he alters his possession by making an application along with the deposit of requisite amount. He submits that he has a legitimate expectation of consideration of his application as per the policy as existing at the time of making an application and any subsequent change in the policy should not affect the right of such person. He further submits that the judgments of the Apex Court relied in the referring order dated dated 25/8/2013 were not relevant since they had not considered the concept of vested right in context of "ownership and possession of land".

Learned counsel for the parties have placed reliance on various judgments of the Apex Court and of this Court which shall be referred to while considering their submissions in detail.

Before we proceed to examine the submissions of the learned counsel for the parties, it is useful to note the relevant Government Orders governing the field. The State Government had issued a Government Order dated 23/5/1992, for management and disposal of nazul land. The policy decision of the State Government as issued by the Government Order dated 23/5/1992, was modified and changed from time to time. By Government Order dated 01/12/1998, earlier Government Orders were again modified. Paragraph 7 of the Government Order dated 01/12/1998, relates to grant of freehold right to the unauthorised occupants. It is useful to quote paragraph 7 of the Government Order dated 01/12/1998 which is as follows:

"7- voS/k dCtks dks fofu;fer fd;s tkus ds lEca/k esa 'kklukns'k la[;k [email protected]&vk&4&95&628 ,[email protected] fnukad 1 tuojh] 1996 ,oa 'kklukns'k la[;k %[email protected]&vk&4&97&260] ,[email protected] fnukad 26 flrEcj 1997 ds izLrj &4 esa fufgr O;oLFkkvksaz dks ;Fkkor j[krs gq, fuEu vfrfjDr O;oLFkk;sa ykxw dh x;h gS%& ¼1½ 1-1-92 ls iwoZ ds vukf/kd`r dCts dh vkoklh; Hkwfe dks v|ru lfdZy jsV dk 120 izfr'kr rFkk O;olkf;d ekeys esa lfdZy jsV ds 200 izfr'kr ij ewY; ysdj Qzh gksYM ds :i esa vfrpkjh ds i{k esa fofu;ferhdj.k dh O;oLFkk dj nh tk,A 1-1-92 ls iwoZ ds dCts izek.k Lo:i ml Hkw[k.M ls lEcfU/kr VsyhQksu fcy] fo|qr fcy] gkml VSDl dh jlhns] ernkrk lwph] jk'kudkMZl vkfn esa ls dksbZ ,d vfHkys[k izLrqr djuk gksxkA ¼2½ fdUrq ,sls vukf/kd`r dCts tks lkoZtkfud LFkyks ]ikdksZ] lMdks dh iVfj;ksa lhoj O;oLFkk ;k Hkwfe lMd foLrkj ls izHkkfor Hkwfe ij gks] mUgsa ;g lqfo/kk vuqeU; ugha gksxhA ¼3½ voS/k dCtks ds varxZr ,slh utwy Hkwfe tks iz'kklfud n`f"Vdks.k ls egRoiw.kZ LFkyks ds ikl fLFkr gks vFkok mldh lkoZtkfud iz;kstu gsrq orZeku esa vFkok Hkfo"; esa vko';Drk le>h tk,] mls Qzh gksYM ugha fd;k tk;sxkA bl gsrq fu.kZ; e.Myk;qDr dh v/;{krk esa xfBr lfefr }kjk fy;k tk;sxk ftlesa lEcafU/kr ftys ds dysDVj] LFkkuh; v/kh{k.k vfHk;ark] yksd fueZk.k foHkkx ,oa mik/;{k fodkl izf/kdj.k ¼;fn ml tuin esa izkf/kdj.k xfBr gks½ o LFkkuh; fudk; ds ofj"Bre vf/kdkjh lnL; gksxsaA ¼4½ 'kklu ds laKku esa ,sls izdj.k Hkh vk;s gS ftuesa utwy Hkwfe dks vukf/kd`r :i ls dqN O;fDr;[email protected] }kjk iathd`r fodz; i= }kjk fdlh vU; O;fDr dks fodz; dj fn;k gSA bldk vFkZ ;g gqvk fd vukf/kd`r dCtsnkj }kjk iathd`r fodz; ds ek/;e ls Hkwfe dk ewY; nsdj Hkwfe dks dzz; fd;k gS vkSj fodzsrk ekSds ij dCtsnkj ugha gSA vr% ,sls dzsrkvksa ds i{k esa mUgsa voS/k dCtsnkj ekurs gq, Qzh gksYM dh dk;Zokgh dh tkrh gS rks mUgsa mlh Hkwfe dk nqckjk ewY; nsuk iMsxkA ,sls izdj.k mu voS/k dCtsnkjks ds izdj.k ls fHkUu gS ftUgksaus utwy Hkwfe ij fcuk dksbZ ewY; fn, voS/k dCtk lh/ks fd;k gSA vr% ,sls izdj.kksa es ftuesa utwy Hkwfe fdlh iVVsnkj ls fHkUu O;[email protected] ls iathd`r fodz;i= ds ek/;e ls ftuds }kjk izkIr dh x;h gS muds i{k esa Qzh gksYM djrs le; fj;k;r nh tk,A 101 oxZ ehVj ls 150 oxZehVj rd utwy Hkwfe ds voS/k dCtsnkjks ds fy, ;g fj;k;r fu/kkZfjr Qzh gksYM ewY; dk 50 izf'kr j[kk tkuk mfpr gksxk D;ksafd ,sls voS/k dCtsnkj iwoZ esa mldk ewY; ,d ckj vnk dj pqds gSA vFkkZr vkoklh; iz;ksx ds fy, 120 izfr'kr ds LFkku ij v|ru lfdZy jsV dk 60 izfr'kr ,oa O;olkf;d iz;ksx ds fy, 200 izfr'kr ds LFkku ij 100 izfr'kr orZeku lfdZy jsV ds ewY; ij Qzh gksYM fd;k tk,A fdUrq 151 oxZ ehVj ls 200 oxZ ehVj rd voS/k dCtsnkjksa ds }kjk ;g nj vkoklh; ekekyksa esa v|ru lfdZy jsV ds 90 izf'kr rFkk O;olkf;d ekeyks esa 150 izfr'kr dh nj ls ewY; ns; gksxhA bl gsrq jftLVMZ cSukek }kjk Hkwfe dz; djus dh dV vkQ MsV 1-1-92 gSA bl frfFk ds ckn ls voS/k dCtsnkjksa ds fo:} csn[kyh dh dk;Zokgh dh tk, vkSj fdlh Hkh n'kk esa Qzh gksYM ugha fd;k tk;sxkA 'kklukns'k tkjh gksus ds fnukad ls 2 ekg dh vof/k rd gh mijksDrkuqlkj Qzh gksYM djkus dh NwV jgsxhA"

Government Order dated 01/12/1998 again was modified by subsequent Government Order dated 10/12/2002. Paragraph 5 of the Government Order dated 10/12/2002 relates to grant of freehold rights to unauthorised occupants which is to the following effect:

"5& 'kklukns'k la[;k % [email protected]&vk&4&98&70] fnukad 1 fnlEcj] 1988 ds izLrj&7 esa fnukWad 1&1&1992 ds iwoZ voS/k dCtksa dks fofu;fer fd;s tkus ds lEcU/k esa njs fu/kkZfjr dh x;h gSA iz'uxr ekeyksa esa uhfr dk ljyhdj.k djrs gq, vc fnukad 1&12&1988 rd voS/k dCtksa dks orZeku lfdZy jsV ds 100 izfr'kr dh nj ij QzhgksYM fd;k tk;sxk rFkk fnukad 1&12&1998 ds iwoZ voS/k dCts ds izek.k Lo:i Hkw[k.M ls lEcfU/kr VsyhQksu fcy] fo|qr fcy gkml VSDl dh jlhn ernkrk lwph] jk'ku dkMZ ds vfrfjDr cSad ds [kkrs ess fn;k x;k irk Hkh vfHkys[kh; lk{; ekuk tk;sxkA"

A clarificatory Government Order was issued on 31/12/2002, clarifying the Government Order dated 10/12/2002. Paragraphs 1 to 3 of the said government order which are relevant are to the following effect:

"vkokl ,oa 'kgjh fu;kstu vuqHkkx&4 y[kuÅ% fnukad %31 fnlaEcj ]2002 fo"k;& utwy Hkwfe ds izcU/k ,oa fuLrkj.k ds lEcU/k esa tkjh 'klukns'k fnukad 10 fnlacj] 2002 ds laca/k esa ekxZn'kZu A egksn;] mi;qZDr fo"k;d 'kklukns'k la[;k% [email protected]&vk&4&2002&152 ,[email protected]] Vh-lh-] fnukad 10 fnlacj] 2002 ds lEcU/k esa eq>s ;g dgus dk funs'k gqvk gS fd iz'uxr ekeys esa dfri; tuinksa }kjk mDr 'kklukns'k tkjh gksus ds iwoZ ds ekeys esa eq[; :i ls fuEu foUnqvksa ij ekxZn'kZu dh vis{kk dh x;h gS& ¼1½- fnukad 10&12&2002 ds iwoZ yfEcr vkosnu i=ksaa dk fuLrkj.k o"kZ ] 1994 ds lfdZy jsV ds vk/kkj ij fd;k tk;sxk vFkok orZeku lfdZy jsV ij QzhgksYM fd;k tk;sxkA ¼2½- fnukad 10-&12&2002 ds iwoZ ukfer O;fDr }kjk fd;s x;s vkosnuks dks u;h uhfr dh O;oLFkk ds vUrXkZr fujLr dj fn;k tk, vFkok ugha ?

2- mDr ds lEcU/k esa ;g Li"V fd;k tkrk gS fd 'kklukns'k la[;k% [email protected]&vk&4&2002&152 ,[email protected]] Vh-lh- fnukad 10&12&2002 }kjk izfrikfnr uhfr rRdky izHko ls ykxw dh x;h gS A vr% fnukad 10&12&2002 ls iwoZ esa ftu vkosndksa us LoewY;kadu dh 25 izfr'kr /kujkf'k tek djrs gwq, pkyku dh izfr ds lkFk izkFkZuk i= izLrqr dj fn;k Fkk] rFkk QzhgksYM dh ik+=rk lEcU/kh leLr fu/kkZfjr vkSipkfjdrk,a iw.kZ dj nh Fkh] mu izdj.kksa esa rRdkyhu uhfr vuqlkj njsa o 'krsZ ykxw gksaxhA ,sls ekeyksa esa 'kklukns'k fnukad 10&12&2002 ykxw ugha gksxkA 3- blh izdkj orZeku esa 'kklukns'k fnukad 10&12&2002 ds izLrj&3 ds lacU/k esa ;g Li"V fd;k tkrk gS fd ukfer Js.kh esa QzhgksYM fd;s tkus dh O;oLFkk dks 'klukns'k fnukad 10&12&2002 }kjk gh lekIr fd;k x;k gSaaA vr% iwoZ uhfr ds rgr ukfer Jsa.kh esa ftu vkosndksa }kjk QzhgksYM ds fy, vkosnu fd;k x;k gS rFkk LoewY;kadu dh 25 izfr'kr /kujkf'k tek dj nh x;h Fkh muds lanHkZ esa orZeku uhfr vFkkZr 'kklukns'k fnukad 10&12&2002 ykxw ugh gksxkA"""

Then came the Government Order dated 04/8/2006.It is useful to note the contents of the Government Order dated 4.8.2006, which are as follows:

".......

vkokl ,oa 'kgjh fu;kstu vuqHkkx&4 y[kuÃ... fnukWad% 04 vxLr] 2008 fo"k;% utwy Hkwfe ds izcU/k ,oa fuLrkj.k ds laca/k esa fuxZr 'kklukns'kksa esa la'kks/[email protected] egksn;] mi;qZDr fo"k;d 'kklukns'k la[;k&[email protected] vkB& 4&04&262 ,[email protected] fnukWad 18&04&05 rFkk 'kklukns'k la[;k&[email protected] &4&2006&137,[email protected] Vh0lh0 fnukWad 30&06&06 ds dze esa eq>s ;g dgus dk funs'k gqvk gS fd utwy Hkwfe ij voS/k dCtksa ds laca/k esa lE;d fopkjksijkUr 'kklu }kjk ;g fu.kZ; fy;k x;k gS fd utwy Hkwfe ij voS/k dCtksa dks fofu;fer u fd;k tk;A vr% voS/k dCtksa dks fofu;fer fd;s tkus ds laca/k esa mi;qZDr 'kklukns'k la[;k&[email protected]&vk&4&98&70,[email protected] fnukWad 01 fnlEcj] 1998 ds iw.kZ izLrj&7 vkSj 'kklukns'k la[;k [email protected]&v &4&02&152,[email protected] Vhlh] fnukad 10&12&02 ds izLrj&5 esa dh x;h O;oLFkk dks ,rn~}kjk lekIr fd;k tkrk gSA 2& mDr 'kklukns'k fnukWad 01&12&98 vkSj fnukWad 10&12&02 bl lhek rd la'kksf/kr le>s tk;saxs 'ks"k Qzh gksYM uhfr dh vU; O;oLFkk,a ;Fkkor jgsaxhA 3& mDr vkns'k rkRdkfyd izHkko ls ykxw gksaxsA Hkonh;] g0 vLi"V [email protected]@06 ¼ds0,y0ehuk½ lfpo"

As noted above, the petitioner's application for grant of freehold right was considered by the District Magistrate on 18/12/2006, by which order the application of the petitioner dated 25/7/2005 was rejected taking the view that vide Government Order dated 04/8/2006, unauthorised occupants cannot be regularised and freehold rights cannot be granted to such an unauthorised occupants. The order further observes that the petitioner may take steps for refund of the amount deposited by the him under self assessment as per the earlier Government Orders dated 01/12/1998 and 10/12/2002.

In Dr. O.P. Gupta's case, the petitioner's of that case had made an application for getting the land freehold. The petitioner of that case claimed to be nominee from the person in whose favour the original lessee had executed a registered Will, on the basis of the nomination dated 27.6.2002 application was made for grant of freehold right on 3.7.2002. At that time, the policy as mentioned in the Government Order dated 1.12.1998 was in operation permitting nominee to apply for freehold right subject to other conditions. The application was decided on 26.4.2008 after lapse of several years by the Collector rejecting the application. The Collector, while rejecting the application relied on the policy as enforced by the Government Order dated 17.3.2008. The similar submission was raised in the said case that the policy of making freehold which was applicable at the time of application should have been considered. The said submission was noted in paragraph 7 which is quoted as below:

"7. The submission of learned Counsel for the petitioner is that the claim of the petitioners was required to be considered by the learned Collector in accordance with the policy so prevailing at that time when the petitioner applied for getting the land freehold. The petitioner applied for freehold on 3.7.2002. The policy dated 1.12.1998 was to be taken note. The amendment to the policy of making freehold in favour of nominee was amended vide Government order dated 10.12.2002 which is clear from the perusal of paragraph 3 of the Government order dated 10.12.2002. In the said Government order it is clearly mentioned that the policy/ provision of making freehold in favour of nominee is being withdrawn and now freehold is to be done only in favour of original lessee or legal heirs or subsequent purchasers who have taken the land by means of registered sale-deed by paying stamp duty. It is further submitted that freehold has been made in favour of a large number of other lessee whose lease stood expired already and they applied later on. This aspect was placed during the course of argument on the basis of a reply given from the office of the Collector under Right to Information Act, dated 27.6.2009 which is annexed as Annexure-SA1 to the supplementary affidavit. The submission is that as the claim of the petitioners has not been considered on merits and has been rejected only on the basis that term of the lease stood expired and the petitioners claimed to be nominee and in view of the present/current policy freehold in their favour cannot be made, the impugned order be quashed and the Collector be directed to consider the claim of the petitioners afresh on merits in accordance with law after giving opportunity of hearing to the other claimants also including the petitioners."

The Division Bench in the said case held that the cause of the petitioner which has been otherwise applicable on the date of application cannot be negatived by any change in the policy. Following was laid down in paragraph 12:

"12. Be as it may, these facts as noted above appear to be undisputed. They are borne out from the record. Petitioners applied for renewal on 3.7.2002 and at that time the policy of making freehold in favour of nominee was available. If the authority has taken such a long time in disposing of the application for making land freehold and that was not decided on merits by the time that policy stood amended then it is not a case of fault/lapse from the side of petitioners for which they are to be penalised. By keeping a matter pending for a long without any justification or for any inaction on the part of a claimant/ applicant, his cause which was otherwise acceptable on the date of move, cannot be permitted to be negatived by any change in policy unless that has been given retrospective effect. If the approach of authorities is permitted to prevail, then according to their whims or for various hidden reasons, they will delay in disposal of the matter for getting desired result if that is in offing. Why for the inaction/lapses of respondent/authority a claimant is to be made to suffer? If that can be so then the official will have to spell the reason and justification for long, unreasonably, undue delay in disposal of things which otherwise need to be completed, on completion of needed formalities. A lawful, valid, bona fide excuse will have to be shown when matter comes to the Court to deprive a person of his claim to which he has a legitimate expectation. Counsel for petitioners also informed the Court that a large number of freehold has been done in favour of various lessees and the persons so entitled whose lease stood expired but we are not to go into this question as on today, learned Collector has rejected the petitioners application not on merits, i.e., for any violation or on any other grounds on account of which they may not be able to get the land freehold in their favour but the application has been rejected solely on two technical grounds. In respect to this, Court is of the view that it could not have been made a ground of rejection of the application. Thus, the direction is required to be given to the learned Collector to take final decision in the matter on the merits in accordance with law keeping in mind the policy so prevailing at the time when the petitioners applied for getting the land freehold and all the persons are to be given proper opportunity of hearing before taking appropriate final decision in the matter."

In Dr. O.P. Gupta's case (supra) the Division Bench has observed that by keeping a matter pending for a long without any justification, the cause of the petitioner which was otherwise acceptable on the date of move, cannot be permitted to be negatived by any change in policy unless that has been given retrospective effect. The Division Bench in its judgment has given a direction to the Collector to take a final decision on the application of the petitioner in accordance with law keeping in mind the policy which was prevailing at the time when the petitioner applied for getting the land free hold.

Whether the above ratio laid down by the Division Bench in the case of Dr. O.P. Gupta's case (supra) lays down the correct law is the issue which is to be considered.

Whether an applicant who submits an application for grant of freehold right in accordance with the Government Orders issued from time to time regulating the grant of freehold right of nazul land acquires a "vested right" to get his application considered as per the policy of the Government at the time when the application was made is the main issue for consideration. It is well settled that the administrative decision taken by the Government or amendment in rules are generally prospective in operation unless they are specifically made retrospective in operation. However, no vested right can be taken away by amendment in rules or in the Government Orders is a well settled principle. We have already noted the relevant Government Orders and the schemes as amended from time to time by the State Government.

As noted above and clarified by paragraphs 2 and 3 of the Government Order dated 31/12/2002, those applicants who have completed all the formalities and deposited 25% of the self assessed amount their applications were to be considered in accordance with the then existing policy and the Government Order dated 10/12/2002 shall not be applicable. It is thus clear that when the Government intended applications to be considered as per the law existing at the time of making the application, specific provisions to that effect has been made in the Government Order. The Government Order dated 04/8/2006, clearly provides that the government after due consideration has decided that the unauthorised occupants on nazul land be not regularised and the earlier Government Orders dated 01/12/1998 and 10/12/2002 are withdrawn. Paragraph 3 of the Government Order dated 04/8/2006, further provides that the said Government Order is enforced with immediate effect. The reading of the Government Order dated 04/8/2006 makes it clear that the government decided to do away with the earlier policy of regularising the unauthorised occupants and the said government order was enforced with immediate effect and there was no such saving or exception in the said government order permitting consideration of pending application as per the earlier policy, rather, the intention is clear that no freehold rights be granted to an unauthorised occupants after 04/8/2006. The said Government Order has no retrospective operation as contended by the learned counsel for the petitioner. The said Government Order is prospective and applies only w.e.f. 04/8/2006, and the rights which have been granted earlier to an unauthorised occupants have not been touched by the Government Order dated 04/8/2006.

The petitioner's contention that he has acquired vested right now needs to be considered.

Whether by making application any indefeasible right accrued in favour of the petitioner for grant of freehold right, which could not have been taken away by any subsequent amendment in the policy, is the issue to be answered. It is well settled that vested rights cannot be taken away by any subsequent statute, rule or scheme unless statute, rule or scheme is expressly made retrospective in nature. 'Vested right' has been defined in Law Lexicon P. Ramanatha Aiyer 3rd Edition as follows:

"Vested rights. Property rights.

The expression 'vested rights' means an absolute or indefeasible right. It is an immediate fixed right in present or future enjoyment in respect of property. The claim based on the vested right or settled expectation to obtain sanction cannot be set up against statutory provisions. It cannot be countenanced against public interest and conveniences which are sought to be served. Howrah Municipal Corpn. Vs. Ganges Rope Co. Ltd., (2004) 1 SCC 663, 680, para 37. [Howrah Municipal Corporation Act (58 of 1980), S. 175] A right is said to be vested when the right to enjoyment, present or prospective has become the property of some particular person or persons as a present interest independent of a contingency. It is a right which cannot be taken away without the consent of the owner. Such rights may arise from contract or statute and from the operation of law. Mohammadi Begam Sahiba, Bhopal Vs. Abdul Majidkhan, MLJ:QD (1961-1965) Vol I CI918: 1963 MPLJ 157: ILR (1962) M.P. 689 [Civil Procedure Code of Bhopal State, S. 49]"

Black's Law Dictionary Ninth Edition defines the word "vest" in the following manner: "vest", vb (15c) 1. To confer ownership (of property) upon a person. 2.To invest (a person) with the full title to property. 3.To give (a person) an immediate, fixed right of present or future enjoyment. 4.Hist. To put (a person) into possession of land by the ceremony of investiture.-

The Apex Court had occasion to consider the concept of "vested right" in J.S. Yadav Vs. State of Uttar Pradesh & Anr, (2011) 6 SCC 570. In paragraphs 21 and 22 of the said judgment following was laid down:

"21. The word "vest" is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With the long usage the said word "vest" has also acquired a meaning as "an absolute or indefeasible right". It had a "legitimate" or "settled expectation" to obtain right to enjoy the property etc. Such "settled expectation" can be rendered impossible of fulfilment due to change in law by the Legislature. Besides this, such a "settled expectation" or the so-called "vested right" cannot be countenanced against public interest and convenience which are sought to be served by amendment of the law. (Vide Howrah Municipal Corpn. v. Ganges Rope Co. Ltd. (2004) 1 SCC 663).

22. Thus, "vested right" is a right independent of any contingency. Such a right can arise from a contract, statute or by operation of law. A vested right can be taken away only if the law specifically or by necessary implication provide for such a course."

A person is said to have acquired a vested right where an immediate fixed right in present or future enjoyment in respect of a property is created. Mere expectancy of a future benefit is not a vested right. Contingent interest in property and anticipated continuance of existing laws does not constitute a vested right. Petitioner by making an application on 25/7/2005 did not acquire a vested right. By making an application he only became entitled for consideration of his application for grant of freehold right.

A perusal of the Government Order dated 01/12/1998, paragraph 7 as well as the Government Order dated 10/12/2002, paragraph 5 indicates that freehold right was not to be granted automatically on making an application by an unauthorised occupant. The grant was conditioned by fulfilling certain requirements as provided in the government order. It is thus clear that by mere making an application on 25/7/2005, the petitioner did not acquire any vested right. The submission of the petitioner's counsel is that he had a legitimate expectation that his application be considered in accordance with the then policy.

"Legitimate expectation" has come up for consideration in several decisions. It is useful to refer to the judgment of the Apex Court in Madras City Wine Merchants' Association & Anr Vs. State of T.N. & Anr,(1994) 5 SCC 509.Paragraphs 43,44,46,47 and 48 of the said judgment which are relevant are quoted below:

"43.We will briefly deal with the doctrine of legitimate expectation. It is not necessary to refer to large number of cases excepting the following few:

On this doctrine Clive Lewis in Judicial Remedies in Public Law at page 97 states thus :

"Decisions affecting legitimate expectations -In the public law field, individuals may not have strictly enforceable rights but they may have legitimate expectations. Such expectations may stem either from a promise or a representation made by a public body, or from a proviso practice of a public body. The promise of a hearing before a decision is taken may give rise to a legitimate expectation that a hearing will be given. A past practice of consulting before a decision is taken may give rise to an expectation of consultation before any future decision is taken. A promise to confer, or past practice of conferring a substantive benefit, may give rise to an expectation that the individual will be given a hearing before a decision is taken not to confer the benefit. The actual enjoyment of a benefit may create a legitimate expectation that the benefit will not be removed without the individual being given a hearing. On occasions, individuals seek to enforce the promise of expectation itself, by claiming that the substantive benefit be conferred. Decisions affecting such legitimate expectations are subject to judicial review."

44.In Council of Civil Service Unions v. Minister for the Civil Service, it is stated thus: (All ER pp.943-44) 'But even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the courts will protect his expectation by judicial review as a matter of public law. This subject has been fully explained by Lord Diplock in O'Reilly v. Mackman, (1982) 3 All ER 1124 and I need not repeat what he has so recently said.

Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue. Examples of the former type of expectation are Re Liverpool Taxi Owners' Association (1972) 2 All ER 589, (1972) 2 QB 299 and A-G of Hong Kong v. Ng Yuen Shiu, (1983) 2 All ER 346. (I agree with Lord Diplock's view, expressed in the speech in this appeal, that 'legitimate' is to be preferred to 'reasonable' in this context. I was responsible for using the word 'reasonable' for the reason explained in Ng Yuen Shiu, but it was intended only to be exegetical of 'legitimate'.) An example of the latter in R v. Hull Prison Board of Visitors, ex p. St. Germain, (1979) 1 All ER 701, 1979) QB 425, approved by this House in O'Reilly v. Mackman, (1982) 3 All ER 1124."

46.Three cases of this Court may now be seen. In State of H.P. v. Kailash Chand Mahajan, 1992 Supp. (2) SCC 351 in a judgment to which one of us was a party it was stated thus: (SCC pp. 386-88, paras 86-87) "It might be urged by the tenure of appointment there is a right to continue; the legitimate expectation has come to be interfered with. In a matter of this kind, as to whether legitimate expectation could be pleaded is a moot point. However, we will now refer to Wade's Administrative Law (6th edn.) wherein it is stated at pages 520-21, as under:

'Legitimate expectation: positive effect.-The classic situation in which the principles of natural justice apply is where some legal right, liberty or interest is affected, for instance where a building is demolished or an office-holder is dismissed or a trader's licence is revoked. But good administration demands their observance in other situations also, where the citizen may legitimately expect to be treated fairly. As Lord Bridge has explained: Westminister CC, (1986) AC 668 at 692.

The Courts have developed a relatively novel doctrine in public law that a duty of consultation may arise from a legitimate expectation of consultation aroused either by a promise or by an established practice of consultation.' In a recent case, in dealing with legitimate expectation in R v. Ministry of Agriculture, Fisheries and Food, ex p Jaderow Ltd., (1991) 1 All ER 41, it has been observed at page 68:

"Question II: Legitimate expectation:- It should be pointed out in this regard that, under the powers reserved to the member states by Article 5(2) of Regulation 170 of 1983, fishing activities could be made subject to the grant of licences which, by their nature, are subject to temporal limits and to various conditions. Further-more, the introduction of the quota system was only one event amongst others in the evolution of the fishing industry, which is characterised by instability and continuous changes in the situation due to a series of events such as the extensions, in 1976, of fishing areas to 200 miles from certain coasts of the Community, the necessity to adopt measures for the conservation of fishery resources, which was dealt with at the international level by the introduction of total allowable catches, the arguments about the distribution amongst the member states of the total allowable catches available to the Community, which were finally distributed on the basis of a reference period which ran from 1973 to 1978 but Which is reconsidered every year.

In those circumstances, operators in the fishing industry were not justified in taking the view that the Community rules precluded the making of any changes to the conditions laid down by national legislation or practice for the grant of licences to fish against national quotas as the adoption of new conditions compatible with Community law.

Consequently, the answer to this question must be that community law as it now does not preclude legislation or a practice of a member-State whereby a new condition not previously stipulated is laid down for the grant of licences to fish against national quotas."

Thus, it will be clear even legitimate expectation cannot preclude legislation."

47.In Food Corpn. of India v. Kamdhenu Cattle Feed Industries,(1993) 1 SCC 71 this Court observed thus (SCC p.76, para 8) "The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this matter would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent."

48.In Union of India v. Hindustan Development Corporation, this Court observed thus:(SCC pp.540-41, para 29) "It has to be noticed that the concept of legitimate expectation in administrative law has now, undoubtedly, gained sufficient importance. It is stated that "Legitimate expectation" is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action and this creation takes its place beside such principles as the rules of natural justice, unreasonableness, the fiduciary duty of local authorities and 'in future, perhaps, the principle of proportionality.' A passage in Administrative Law, 6th Edn., by H.W.R. Wade page 424 reads thus :

'These are revealing decisions. They show that the courts now expect government departments to honour their published statements or else to treat the citizen with the fullest personal consideration. Unfairness in the form of unreasonableness here comes close to unfairness in the form of violation of natural justice, and the doctrine of legitimate expectation can operate in both contexts. It is obvious, furthermore, that this principle of substantive, as opposed to procedural, fairness may undermine some of the established rules about estoppel and misleading advice, which tend to operate unfairly. Lord Scarman has stated emphatically that unfairness in the purported exercise of a power can amount to an abuse or excess of power, and this seems likely to develop into an important general doctrine.' Another passage at page 522 in the above book reads thus :

"It was in fact for the purpose of restricting the right to be heard that 'legitimate expectation' was introduced into the law. It made its rust appearance in a case where alien students of 'scientololgy' were refused extension of their entry permits as an act of policy by the Home Secretary, who had announced that no discretionary benefits would be granted to this sect. The Court of Appeal held that they had no legitimate expectation of extension beyond the permitted time, and so no right to a hearing, though revocation of their permits within that time would have been contrary to legitimate expectation. Official statements of policy, therefore, may cancel legitimate expectation, just as they may create it, as seen above. In a different context where car-hire drivers had habitually offended against airport bye-laws, with many convictions and unpaid fines, it was held that they had no legitimate expectation of being heard before being banned by the airport authority.

There is some ambiguity in the dicta about legitimate expectation, which may mean either expectation of a fair hearing or expectation of the licence or other benefit which is being sought. But the result is the same in either case; absence of legitimate expectation will absolve the public authority from affording a hearing.

(emphasis supplied) Again, at pages 56-57 it is observed thus :(SCC p.547, para 33) "A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfil. The protection is limited to that extent and a judicial review can be within those limits. But as discussed above a person who bases his claim on the doctrine of legitimate expectations, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In considering the same several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest. If it is a question of policy, even by way of change of old policy, the courts cannot interfere with a decision. In a given case whether there are such facts and circumstances giving rise to a legitimate expectation, it would primarily be a question of fact. If these tests are satisfied and if the court is satisfied that a case of legitimate expectation is made but then the next question would be whether failure to give an opportunity of hearing before the decision affecting such legitimate expectation is taken, has resulted in failure of justice and whether on that ground the decision should be quashed. If that be so then what should be the relief is again a matter which depends on several factors." (Emphasis supplied) Again at pages 57-58 it is observed thus :(SCC pp.548-49,para 35) "Legitimate expectations may come in various forms and owe their existence to different kind of circumstances and it is not possible to give an exhaustive list in the context of vast and fast expansion of the governmental activities. They shift and change so fast that the start of our list would be absolute before we reached the middle. By and large they arise in cases of promotions which are in normal course expected, though no guaranteed by way of a statutory right, in cases of contracts, distribution of largess by the Government and in somewhat similar situations. For instance in cases of discretionary grant of licences, permits of the like, carries with it a reasonable expectation, though not a legal right to renewal or non-revocation, but to summarily disappoint that expectation may be seen as unfair without the expectant person being heard. But there again the court has to see whether it was done as a policy or in the public interest either by way of GO, rule or by way of a legislation. If that be so, a decision delaying a legitimate expectation based on such grounds does not qualify for interference unless in a given case, the decision or action taken amounts to an abuse of power. Therefore the limitation is extremely confined and if the according of natural justice does not condition the exercise of the power, the concept of legitimate expectation can have no role to play and the court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the co'!rt is expected to apply an objective standard which leaves to the deciding authority the full range of choice watch the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal' bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. For instance if an authority who has full discretion to grant a licence and if he prefers an existing licence holder to a new applicant, the decision cannot be interfered with on the ground of legitimate expectation entertained by the new applicant applying the principles of natural justice. It can therefore be seen that legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited. It would thus appear that there are stronger reasons as to why the legitimate expectation should not be substantively protected than the reasons as to why it should be protected. In other words such a legal obligation exists whenever the case supporting the same in terms of legal principles of different sorts, is stronger than the case against it. As observed in Attorney General for New South Wales' case (1990) 64 Aust LJR 327 "To strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism. Moreover, the notion of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law.' If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power of violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles."

(Emphasis supplied) For the above it is clear that legitimate expectation may arise -

(a) if there is an express promise given by a public authority; or

(b) because of the existence of a regular practice which the claimant can reasonably expect to continue ;

(c) Such an expectation must be reasonable.

However, if there is a change in policy or in public interest the position is altered by a rule or legislation, no question of legitimate expectation would arise."

In the above case also the apex court had laid down that if there is a change in policy or in public interest the position is altered by a rule or legislation, no question of legitimate expectation would arise.

A Three judges' bench in P.T.R. Exports (Madras) Pvt. Ltd. & Ors. Vs. Union of India & Ors, (1996) 5 SCC 268, had occasion to consider the concept of "legitimate expectation" in context of change of policy. In the above case, the petitioners before the Apex Court were exporters of ready-made garments to several countries. The Government of India, Ministry of Commerce had evolved Export and Import policy in the year 1992-93. New export policy w.e.f. 01/1/1996 was introduced withdrawing the previous policy. The petitioners challenged the change of policy in the High Court which challenge was negatived by the High Court. Before the Apex Court, the Special Leave Petitions were filed. In the above case, the Apex Court held that the applicant has no vested right in respect of import and export licences in terms of the policies in force on the date of making his application. It was further held that the Government is not barred by the promises or of legitimate expectations from evolving new policy. Following was laid down in paragraphs 3, 4 and 5 of the said judgment which are quoted below:

"3. In the light of the above policy question emerges whether the Government is bound by the previous policy of whether it can revise its policy in view of the changed potential foreign markets and the need for earning foreign exchange? It is true that in a given set of facts, the Government may in the appropriate case be hound by the doctrine of promissory estoppel evolved in Union of India v. Indo-Afghan Agencies Ltd.(1968) 2 SCR 366. But the question revolves upon the validity of the withdrawal of the previous policy and introduction of the new policy. The doctrine of legitimate expectations again requires to be angulated thus : whether it was revised by a policy in the public interest or the decision is based upon any abuse of the power? The power to lay policy by executive decision or by legislation includes power to withdraw the same unless in the former case, it is by mala fide exercise of power or the decision or action taken is in abuse of power. The doctrine of legitimate expectation plays no role when the appropriate authority is empowered to take a decision by an executive policy or under law. The Court leaves the authority to decide its full range of choice within the executive or legislative power. In matters of economic policy, it is a settled law that the Court gives the large leeway to the executive and the legislature. Granting licences for import or export is by executive or legislative policy. Government would take diverse factors for formulating the policy for import or export of the goods granting relatively greater priorities to various items in the overall larger interest of the economy of the country. It is, therefore, by exercise of the power given to the executive or as the case may be, the legislature is at liberty to evolve such policies.

4. An applicant has no vested right to have export or import licences in terms of the policies in force at the date of his making application. For obvious reasons, granting of licences depends upon the policy prevailing on the date of the grant of the licence or permit. The authority concerned may be in a better position to have the overall picture of diverse factors to grant permit or refuse to grant permission to import or export goods. The decision, therefore, would be taken from diverse economic perspectives which the executive is in a better informed position unless, as we have stated earlier, the refusal is mala fide or is an abuse of power in which event it is for the applicant to plead and prove to the satisfaction of the Court that the refusal was vitiated by the above factors.

5. It would, therefore, be clear that grant of licence depends upon the policy prevailing as on the date of the grant of the licence. The Court, therefore, would not bind the Government with a policy which was existing on the date of application as per previous policy. A prior decision would not bind the Government for all times to come. When the Government are satisfied that change in the policy was necessary in the public interest, it would be entitled to revise the policy and lay down new policy. The Court, therefore, would prefer to allow free play to the Government to evolve fiscal policy in the public interest and to act upon the same. Equally, the Government is left free to determine priorities in the matters of allocations or allotments or utilisation of its finances in the public interest. It is equally entitled, therefore, to issue or withdraw or modify the export or import policy in accordance with the scheme evolved. We, therefore, hold that the petitioners have no vested or accrued right for the issuance of permits on the MEE or NQE, nor the Government is bound by its previous policy. It would be open to the Government to evolve the new schemes and the petitioners would get their legitimate expectations accomplished in accordance with either of the two schemes subject to their satisfying the conditions required in the scheme. The High Court, therefore, was right in its conclusion that the Government are not barred by the promises or legitimate expectations from evolving new policy in the impugned notification."

Shri P.K. Jain, learned Senior Counsel for the petitioner has placed reliance on the Apex Court judgment in Kusumam Hotels Private Limited Vs. Kerala State Electricity Board & Ors, (2008) 13 SCC 213. The Apex Court in the said case had held that policy decision can be reviewed from time to time. It was further held that the concession granted can be withdrawn in public interest. In the said case by reason of a policy decision adopted by the Central Government, "tourism" was declared to be an "industry". The State of Kerala adopted the said policy of the Central Government. Pursuant to the said policy decision, various incentives were to be granted. The Kerala State Electricity Board was directed to grant tariff concessions to the classified hotels and motels. The concessions included grant of electricity tariff as industrial tariff. The appellants had set up their hotels by Government Order dated 11/10/1999. The industrial tariffs granted to the hotels stood cancelled w.e.f. 15/10/1999. Bills were raised and demand-cum-disconnection notices were issued on the basis of bills raised on commercial tariffs. Writ petition was filed challenging the demand. In the above context following was laid down in paragraphs 19,20,21 and 36 which are quoted below:

"19. There cannot be any doubt whatsoever that a policy decision can be reviewed from time to time. It is also beyond any doubt that the concessions granted can be withdrawn in public interest.

20.Indisputably, the State is also entitled to change or alter the economic policies. Appellants do not have any vested right to enjoy the concessions granted to them forever, particularly when the Board is constituted and incorporated under the provisions of Electricity (Supply) Act, 1948. Any policy decision adopted by the State would not be binding on the Board, save and except provided for in the Act. The Board being an independent entity, the duties and functions of the Board vis--vis the State are enumerated in the Act. The Board, however, would be bound by any direction issued by the State Government on questions of policy. A dispute which may arise as to whether a question is or not a question of policy involving public interest, Central Government is the final arbiter. The policy decision adopted by the State on the basis whereof the Board felt obligated to grant electrical connection in favour of the appellants on the basis of industrial tariff must, therefore, be understood in the context of Section 78A of the 1948 Act. What is binding on the Board is the policy of the State. The direction of the State was to apply a particular category of tariff to the appellants. Such directions could have been withdrawn while making another tariff. The State indisputably has the power to grant subsidy from its own coffer instead of directing the Board to grant concession.

21. It is now a well settled principle of law that the doctrine of promissory estoppel applies to the State. It is also not in dispute that all administrative orders ordinarily are to be considered prospective in nature. When a policy decision is required to be given a retrospective operation, it must be stated so expressly or by necessary implication. The authority issuing such direction must have power to do so. The Board, having acted pursuant to the decision of the State, could not have taken a decision which would be violative of such statutory directions.

36. The law which emerges from the above discussion is that the doctrine of promissory estoppel would not be applicable as no foundational fact therefore has been laid down in a case of this nature. The State, however, would be entitled to alter, amend or rescind its policy decision. Such a policy decision, if taken in public interest, should be given effect to. In certain situations, it may have an impact from a retrospective effect but the same by itself would not be sufficient to be struck down on the ground of unreasonableness if the source of power is referable to a statute or statutory provisions. In our constitutional scheme, however, the statute and/or any direction issued thereunder must be presumed to be prospective unless the retrospectivity is indicated either expressly or by necessary implication. It is a principle of rule of law. A presumption can be raised that a statute or statutory rules has prospective operation only."

Shri P.K. Jain, learned counsel for the petitioner has also referred to the judgment of the Apex Court judgment in J.S. Yadav's case (supra) in which case the Apex Court elaborately examined the concept of vested right. The Apex Court in the said case held that vested right is a right independent of any contingency. The application submitted by the petitioner on 25/7/2005 for grant of freehold right did not culminate in any grant of right and it was dependent on contingency of the application being allowed. The said judgment does not support the contention of the petitioner that the petitioner acquired any vested right merely by making an application for grant of free hold right.

The judgment of the apex Court in (1981) 2 SCC 205 State of Tamil Nadu Vs. M/s Hind Stone and others is also relevant in the context. In the said Case, Tamil Nadu Minor Mineral Concession Rules, 1959 came for consideration. The Rule 3 amended by insertion of Rule 8-C which provided as follows:

"8-C Lease of quarries in respect of black granite to Government Corporation, etc.

(1) Notwithstanding anything to the contrary contained in these rules, on and from 7th December, 1977 no lease for quarrying black granite shall be granted to private persons.

(2) The State Government themselves may engage in quarrying black granite or grant leases for quarrying black granite in favour of any corporation wholly owned by the State Government.

Provided that in respect of any land belonging to any private person, the consent of such person shall be obtained for such quarrying or lease".

Large number of persons made application for renewal of their lease and some of the applications were made much prior to the insertion of Rule 8-C. It was also held by the apex Court that the applicants cannot claim any right to have the applications disposed of on the basis of the rule in force at the time of making of the applications. Following was laid down in paragraphs 12 and 13 of the judgment:

"12. The next question for consideration is whether Rule 8C is attracted when applications for renewal of leases are dealt with. The argument was that Rule 9 itself laid down the criteria for grant of renewal of leases and therefore rule 8C should be confined, in its application, to grant of leases in the first instance. We are unable to see the force of the submission. Rule 9 makes it clear that a renewal is not to be obtained automatically, for the mere asking. The applicant for the renewal has, particularly, to satisfy the Government that the renewal is in the interests of mineral development and that the lease amount is reasonable in the circumstances of the case. These conditions have to be fulfilled in addition to whatever criteria is applicable at the time of the grant of lease in the first instance, suitably adapted, of course, to grant of renewal. Not to apply the criteria applicable in the first instance may lead to absurd results. If as a result of experience gained after watching the performance of private entrepreneurs in the mining of minor minerals it is decided to stop grant of leases in the private sector in the interest of conservation of the particular mineral resource, attainment of the object sought will be frustrated if renewal is to be granted to private entrepreneurs without regard to the changed outlook. In fact, some of the applicants for renewal of leases may themselves be the persons who are responsible for the changed outlook. To renew leases in favour of such persons would make the making of Rule 8C a mere exercise in futility. It must be remembered that an application for the renewal of a lease is, in essence an application for the grant of a lease for a fresh period. We are, therefore, of the view that Rule 8C is attracted in considering applications for renewal of leases also.

13. Another submission of the learned counsel in connection with the consideration of applications for renewal was that applications made sixty days or more before the date of G.O.Ms. No. 1312 (2-12-1977) should be dealt with as if Rule 8C had not come into force. It was also contended that even applications for grant of leases made long before the date of G.O.Ms. No. 1312 should be dealt with as if Rule 8C had not come into force. The submission was that it was not open to the Government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rule 8C notwithstanding the fact that the applications had been made long prior to the date on which Rule 8C came into force. While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable tune clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. None has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of G.O.Ms. No. 1312 should be dealt with as if Rule 8C did not exist."

A Division Bench of this Court in which one of us (Ashok Bhushan, J.) was a member in 2013 (2) ADJ 166 Nar Narain Misra Vs. State of U.P. and others, also considered the similar submissions in context of the U.P. Minor Minerals Concession Rules 1963. Applications were made by several applicants for grant of mining lease under Chapter II of the Rules. The applications remained pending. The State Government issued a Government Order dated 31.5.2012 by which all vacant area was notified under Chapter III i.e. for settlement of right by auction/tenders. The writ petitions were filed by the applicants seeking a mandamus that respondents may be directed to consider their applications for grant of mining lease and the Government Order dated 31.5.2012 declaring the area under Chapter II be not applied in their cases. Submission was made that Government Order dated 31.5.2012 at best shall apply to the area which fall vacant subsequent to the Government Order. Negativating the said submissions, following was laid down by the Division Bench in paragraph 46:

"46. In view of the above pronouncement of the apex Court, it is clear that the applicants whose application for renewal is pending cannot claim that their application for renewal be considered under Chapter II and those areas be kept out of purview of the Government order dated 31.5.2012. The areas having been declared under Rule 23(1), the provisions of Chapter II under which renewal of lease can be granted becomes inapplicable. The new state of affairs which have been brought into existence by declaration under Rule 23(1) has to be given its full effect and no rider or exception can be read specially when the Government Order dated 31.5.2012 does not contemplate any such exception. Thus, the submission of the applicants that their renewal applications which were pending at the time of issuance of declaration on 31.5.2012 shall be considered according to Chapter II cannot be accepted and the areas in respect of which the applications for renewal were pending on 31.5.2012, cannot be said to be not vacant."

Another judgment which needs to be noted is (2003) 7 SCC 270 Union of India Vs. R. Padmanabhan. In the said case, the respondents had claimed for reward in accordance with the guidelines issued by the Government for giving the rewards to the informants as well as the Government servants who are responsible for seizure under the Gold Control Act, 1968 and other statutes. The scheme of reward was modified from time to time. In the said case, seizure was made in the year 1989 on the basis of which respondents claimed the reward. The scheme was amended in April, 1989. In the above case, the apex Court laid down following in paragraph 8:

"8. ....The line of decisions relation to vested rights accrued being protected from any subsequent amendments may not be relevant for such a situation and it would be apposite to advert to the decision of this Court reported in State of Tamil Nadu v. Hind Stone and Ors. That was a case wherein this Court had to consider the claims of lessees for renewal of their leases or for grant of fresh leases under the Tamil Nadu Minor Mineral Concession Rules, 1959. The High Court was of the view that it was not open to the State Government to keep the applications filed for lease or renewal for a long time and then dispose them of on the basis of a rule which had come into force later. This Court, while reversing such view taken by the High Court, held that in the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application, despite the delay, if any, involved although it is desirable to dispose of the applications, expeditiously. Therefore, the reward could not have been allowed in this case completely ignoring the amendments, which came into force in April 1989, merely because the seizure was in February 1989. That apart, under the Scheme final reward is postulated only on adjudication of the case resulting in confiscation of the goods as found stated in Clause 6 of the Guidelines and that should, therefore, be crucial and relevant date for consideration of award and, therefore, the Guidelines, as are in force on that date, will be really applicable and would relevant. Consequently, the exclusion of the amendment, which was made in April 1989, from consideration in this case, may not be proper, and the conclusion to the contrary by the High Court, cannot be sustained."

In (2006) 5 SCC 702 Kuldeep Singh Vs. Government of NCt of Delhi, similar issue came for consideration. Applications for grant of L-52 licences were invited. Subsequently, the policy decision was changed. Following was laid down in paragraphs 30 to 36.

"30. Unless, therefore, an accrued or vested right had been derived by the Appellants, the policy decision could have been changed.

31. What would be an acquired or accrued right in the present situation is the question.

32. In Director of Public Works and Another v. HO PO Sang and Others [(1961) AC 901], the Privy Council considered the said question having regard to the repealing provisions of Landlord and Tenant Ordinance, 1947 as amended on 9th April, 1957. It was held that having regard to the repeal of Sections 3A to 3E, when applications remained pending, no accrued or vested right was derived stating:

"In summary, the application of the second appellant for a rebuilding certificate conferred no right on him which was preserved after the repeal of sections 3A-E, but merely conferred hope or expectation that the Governor in Council would exercise his executive or ministerial discretion in his favour and the first appellant would thereafter issue a certificate. Similarly, the issue by the first appellant of notice of intention to grant a rebuilding certificate conferred no right on the second appellant which was preserved after the repeal, but merely instituted a procedure whereby the matter could be referred to the Governor in Council. The repeal disentitled the first appellant from thereafter issuing any rebuilding certificate where the matter had been referred by petition to the Governor in Council but had not been determined by the Governor."

[See also Lakshmi Amma alias Echuma Amma v. Devassy 1970 KLT 204.]

33. The question again came up for consideration in Howrah Municipal Corpn. and Others v. Ganges Rope Co. Ltd. and Others [(2004) 1 SCC 663] wherein this Court categorically held:

"The context in which the respondent Company claims a vested right for sanction and which has been accepted by the Division Bench of the High Court, is not a right in relation to "ownership or possession of any property" for which the expression "vest" is generally used. What we can understand from the claim of a "vested right" set up by the respondent Company is that on the basis of the Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the Court for its consideration, it had a "legitimate" or "settled expectation" to obtain the sanction. In our considered opinion, such "settled expectation", if any, did not create any vested right to obtain sanction. True it is, that the respondent Company which can have no control over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of its rule-making power, amended the Building Rules and imposed restrictions on the heights of buildings on G.T. Road and other wards, such "settled expectation" has been rendered impossible of fulfilment due to change in law. The claim based on the alleged "vested right" or "settled expectation" cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation against whom such "vested right" or "settled expectation" is being sought to be enforced. The "vested right" or "settled expectation" has been nullified not only by the Corporation but also by the State by amending the Building Rules. Besides this, such a "settled expectation" or the so-called "vested right" cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon."

34. In Union of India and Others v. Indian Charge Chrome and Another [(1999) 7 SCC 314], again this Court emphasized:

"The application has to be decided in accordance with the law applicable on the date on which the authority granting the registration is called upon to apply its mind to the prayer for registration"

35. In S.B. International Ltd. and Others v. Asstt. Director General of Foreign Trade and Others [(1996) 2 SCC 439], this Court repelled a contention that the authorities cannot take advantage of their own wrong, viz., delay in issuing the advance licence stating:

"We have mentioned hereinbefore that issuance of these licences is not a formality nor a mere ministerial function but that it requires due verification and formation of satisfaction as to compliance with all the relevant provisions"

36. In a case of this nature where the State has the exclusive privilege and the citizen has no fundamental right to carry on business in liquor, in our opinion, the policy which would be applicable is the one which is prevalent on the date of grant and not the one, on which the application had been filed. If a policy decision had been taken on 16.9.2005 not to grant L-52 licence, no licence could have been granted after the said date."

Shri H.R. Mishra, learned senior counsel while supporting the Division Bench judgment in Dr. O.P.Gupta's case (supra) submitted that the concept of vested right in context of ownership and possession of land is a different concept. He submits that vested right is a right of enjoyment of possession and property. He submits that the judgments which do not relate on the enjoyment of possession and right in land has no relevance in the present case. He submits that the grant of mining lease or grant of licence is entirely different from the concept of vested right of possession and ownership of the land.

Vested right can be different kind of vested right in context of different variety or nature of right. It is true that the words "vested right" are generally used in context of a right in a property, but the concept of vested right cannot be confined only to right of enjoyment of possession of land. The issue in the present case is as to whether by submitting an application for grant of freehold right any vested right has been acquired by the petitioner.

We after considering the relevant Government Orders on the subject and pronouncements of the Apex Court as noted above, are of the view that merely by making an application for grant of free hold right, petitioner did not acquire a vested right.

Shri H.R. Mishra, learned senior counsel has placed reliance on the judgment of the Apex Court in Mohd. Jamal Vs. Unioin of India & Ors,(2014) 1 SCC, 201. In the said case the private appellants were aspirants for dealerships in respect of retail outlets of Indian Oil Corporation. The genesis of the claim for dealership arose out of policy guidelines dated 08/10/2002. The policy was specifically changed by the Indian Oil Corporation which was challenged by the private appellants. Noticing the contention raised before the Apex Court following was noted in paragraph 16 which is quoted below:

"16. The main ground of challenge canvassed by Mr. Ghosh on behalf of the Appellant, Mr. Jamal, and other similarly placed Appellants, was that having acted on the basis of a policy by which the Respondent Oil Companies had offered full dealership to land owners and having caused such land owners to alter their position to their disadvantage, the Oil Companies were now estopped from going back on their promise. Mr. Ghosh urged that the decision to discontinue the grant of dealership and to introduce the new concept of COCO outlets, to be run by the Maintenance and Handling contractors, could not be used to the disadvantage of those land owners in whose favour a decision had already been taken to issue Letters of Intent for grant of dealership. Mr. Ghosh submitted that these cases were clearly covered by the doctrine of promissory estoppel, inasmuch as, in these cases the land owners had altered their positions to their detriment in several ways. Mr. Ghosh submitted that in most cases the rates of rents at which the lands were offered to the Oil Companies were extremely low and did not reflect the market rental of such lands, which is one of the indications that a promise had been made to the land owners that they would be granted dealerships in respect of the said lands, which was in tune with the policy, which had been declared by the Oil Companies earlier."

The Apex Court in the said case laid down following in paragraphs 57,58,59,60 and 61 which are quoted below:

"57.As will be evident from the submissions made on behalf of the respective parties, the case of the Appellants and the Writ Petitioners, in most of the cases, is based on the doctrine of promissory estoppel on the basis of a promise apparently made by the Respondents to the land owners that they would be granted dealerships in lieu of the lands offered by them for setting up of the retail outlets. From the facts as disclosed, there is sufficient evidence to indicate that initially negotiations had been conducted by the Oil Companies with aspiring land owners that in lieu of the lease to be granted they would be provided with dealerships. The applications made pursuant to the advertisement published by the Oil Companies were also duly processed and were acted upon. However, it is only the suspension of the Policy dated 8.10.2002, which prevented such dealerships for being given to the various applicants.

58. Upon deregularisation of the distribution of petroleum products, the Oil Companies issued guidelines dealing with the procedure for locations outside the marketing plans. It was also stipulated that for the purpose of selection, the dealerships would be categorised as indicated in the guidelines and all retail outlets would be developed only on A/C sites basis, which finds place in Clause (2) of the guidelines.

59. The said guidelines referred to grant of dealership which is completely different from the grant of long-term leases by the land owners to the Oil Companies upon the condition that the same could be used by the lessees in any way they liked, which included the right to sublet the demised plot. The concept of Company Owned and Company Operated outlets was sought to be introduced on 6.9.2003, in supersession of Policy No.MDPM- 319/02 dated 8.10.2002 and the two cannot be co-related unless a link can be established by the Appellants that they had entered into the lease agreements with the Oil Companies upon the understanding that once the earlier policy was restored, the land owners would be given the option of having the COCO units converted into regular retail outlets.

60. In order to appreciate the difference between the two concepts, it has to be understood that the concept of a dealership in respect of a retail outlet is completely alien to the concept of a COCO unit. While the former deals with the right of the dealer to independently operate the retail outlet, in the case of a COCO unit, the entire set up of the retail outlet is owned by the Oil Companies and only the day-to-day operation thereof is outsourced to a M&H Contractor. With the discontinuance of the earlier policy of granting dealerships in respect of retail outlets and the introduction of a new policy awarding M&H Contracts in respect of the COCO outlets, in our view, the land owners who had entered into fresh lease agreements after the policy to grant dealerships had been suspended, cannot now claim any right on the basis of the earlier policy in the absence of any Letter of Intent having been issued thereunder. Had any Letter of Intent, which tantamounts to grant of dealership, been issued and then in respect of the same lands COCO units were established, the situation would have been different. Placed in such a position, the land owners cannot claim any relief in these proceedings and, if any loss or damages have been suffered by them on account of the assurance earlier given regarding grant of dealership, particularly in making the sites ready therefor, the remedy of such applicants would lie elsewhere. The policy guidelines and, in particular, Clauses 1.2 and 1.2.2 thereof are not available to the Appellants and the Petitioners in these proceedings, which are concerned mainly with COCO units which have no connection with the concept of dealership.

61. We are inclined to hold that the doctrine of promissory estoppel and legitimate expectation, as canvassed on behalf of the Appellants and the Petitioners, cannot be made applicable to these cases where the leases have been granted by the land owners on definite terms and conditions, without any indication that the same were being entered into on a mutual understanding between the parties that these would be temporary arrangements, till the earlier policy was restored and the claim of the land owners for grant of dealership could be considered afresh. On the other hand, although, the nominees of the lessors were almost in all cases appointed as the M&H Contractors, that in itself cannot, in our view, convert any claim of the land owner for grant of a permanent dealership. As has been indicated hereinbefore, even the M&H Contractor had to submit an affidavit to the effect that he did not have and would not have any claim to the dealership of the retail outlet and that he would not also obstruct the making over possession of the retail outlet to the Oil Company, as and when called upon to do so. The decisions cited on behalf of the Appellants/Petitioners, are not, therefore, relevant for a decision in these cases. Although, the Appeals have been filed on account of the denial to the land owners of the grant of dealership in respect of the lands demised by them to the Oil Companies, the entire focus has shifted to COCO outlets on account of the fresh lease agreements entered into by the Appellants with the Oil Companies which has had the effect of obliterating the claim of the land owners made separately under earlier lease agreements. The claims of the Appellants/Petitioners in the present batch of matters have to be treated on the basis of the agreements subsequently entered into by the Oil Companies, as submitted by the learned Attorney General."

The aforesaid case was on its own fact and does not support the contention of the learned counsel for the petitioner in the present case.

Shri H.R. Mishra, learned senior counsel further submits that the facts in the case of Dr. O.P. Gupta's case (supra) were different since in the said case application was made by the nominee of the lease holder, whereas the present is a case where the application was filed by an unauthorised occupant. We in the present case are only concerned with the ratio laid down in Dr. O.P. Gupta's case (supra) insofar as it held that the application for grant of freehold right has to be considered on the basis of policy as is applicable on the date of the application. We are not required to make any observation regarding the merits of the controversy in the said case. Our discussion is confined only to the ratio of the Division Bench judgment in Dr. O.P. Gupta's case (supra) and nothing more.

In view of the foregoing discussion, we are of the opinion that the petitioner did not acquire any vested right on making the application on 25/7/2005 to get his application considered on the basis of the policy as existing on the date of making the application. The Government order dated 04/8/2006 was fully applicable w.e.f. 04/8/2006 and no error was committed by the Collector taking into consideration the policy dated 04/8/2006 when the application was rejected on 18/12/2006. The Division Bench judgment in Dr. O.P Gupta's case (supra) to the extent that it lays down that an application for grant of free hold right is to be considered in accordance with the government's policy as was existing on the date of application does not lay down the correct law.

In view of the foregoing discussions, our answer to the abovenoted two questions are:

(1)The application of the petitioner dated 25/7/2005 submitted for grant of free hold right on the basis of the Government Orders dated 01/12/1998 and 10/12/2002 was entitled to be considered in accordance with the government's policy as was in existence at the time of passing of the order. The Government Order dated 04/8/2006 was rightly relied on by the Collector while rejecting the application on 18/12/2006.

(2)The Division Bench judgment in Dr. O.P. Gupta's case (supra) does not lay down the correct law insofar as it holds that the application for grant of freehold right is to be considered as per the government policy as was in existence on the date of making application for grant of freehold right.

In view of our answer to the above two questions, nothing more survives to be decided. The writ petition is also dismissed.

Order Date :-13/2/2014 SB