Smt. Suman Kataria vs The State Of Madhya Pradesh
2021 Latest Caselaw 1622 MP

                                                        W.A. No.401/2021

                                  -1-



          HIGH COURT OF MADHYA PRADESH, PRINCIPAL
                   SEAT AT JABALPUR

Case No.                                Writ Appeal No.401/2021
Parties Name
                                          Smt. Suman Kataria
                                                   vs.
                                         State of M.P. & others

Date of Judgment                   28/04/2021
Bench Constituted               Division Bench
Judgment passed by              Justice Prakash Shrivastava
                                Justice Virender Singh
Whether approved for            Yes/No
reporting
Name of counsels for parties For Appellant: Shri Manoj Kumar
                             Sharma, Advocate

                                For Respondents: Shri Pushpendra
                                Yadav, Addl. Advocate General
Law laid down                                    -
Significant paragraph                               -
numbers

                            JUDGMENT

( 28.04.2021)

Per : Prakash Shrivastava, J.

This writ appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 is directed against the order of the learned Single Judge dated 24.03.2021 whereby W.P. No.5674/2021 filed by the appellant has been dismissed.

2. The facts in nutshell are that the appellant was granted temporary lease for an area of 40 ft. X 40 ft. i.e. 1600 sq.ft. at Khasra No.86/3 in Village Amanpur, Tehsil & District Jabalpur for the purpose of setting up the petrol pump. The leased land was a nazul land.

3. The lease was renewed from time to time and last renewal of the W.A. No.401/2021

temporary lease was upto 31.03.1998. On 27.04.20005, the Building Officer of the Municipal Corporation had given notice to the appellant for removal of petrol pump as the land was coming in the way of broadening of the road. The appellant had filed reply to the notice. The appellant was running the petrol pump of the Indian Oil Corporation, which had filed W.P. No.16284/2005, wherein the interim protection was granted. By order dated 22.06.2006, Collector had rejected the application for grant of permanent lease in favour of Indian Oil Corporation and W.P. No.7953/2010 was filed. The writ petitions remain pending and meanwhile the plan relating to broadening of the road also changed and on 18.12.2020, the Municipal Authorities had filed an affidavit in the pending writ petitions stating that the land is not required for the purpose of broadening of the road. By order dated 13.01.2021, both the writ petitions were disposed of taking note of the stand of the respondents that the plan for widening of the road was given up, therefore, the action impugned in those petitions did not survive. This Court had also taken note of the fact that by order dated 22.06.2006, the appellant's application for permanent lease was rejected mainly on the ground that the land was required for the purpose of widening of the road and for developing the crossing but on account of the subsequent development, the said reason did not survive, hence this Court had set aside the order dated 22.06.2006 and directed the Collector Jabalpur to take a fresh decision in accordance with law after giving an opportunity of hearing to all the concerned parties.

4. Thereafter, the Collector had passed the fresh order dated 26.02.2021 rejecting the prayer for renewal of the permanent lease taking into account the subsequent project of construction of Flyover and obstruction of the petrol pump in the way of the said construction. Aggrieved with this decision, the appellant had filed W.P. No.5674/2021 and Indian Oil Corporation had filed W.P. No.5525/2021. Learned Single Judge after hearing all the concerned parties by an order dated 24.03.2021 has dismissed both the writ W.A. No.401/2021

petitions.

5. Learned counsel appearing for the appellant submits that the elevated road in the flyover is being constructed and the appellant's petrol pump can coexist at the ground level, therefore, the respondents are not justified in rejecting the appellant's application for grant of permanent lease. He further submits that the Dealer has not been heard while passing the impugned order by the Collector and that the appellant is ready to shift at some alternate site, therefore, the respondents be directed to allot the alternate site. He has also submitted that the appellant in the meanwhile has stopped the operation of the petrol pump and demolished a part of the construction.

6. Learned counsel for the respondents has opposed the writ appeal by submitting that it was only a temporary lease in favour of the appellant which has expired and that the land belongs to the State which is required for public purpose. He has referred to the report of the Tahasildar, Executive Engineer as also the order of the Collector in support of his submission that the Flyover cannot be constructed without removal of the petrol pump. He has also submitted that if the appellant proposes any alternate site, then the respondents will duly consider it.

7. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that on the basis of the order dated 13.01.2021 passed in W.P. No.16284/2005 and W.P. No.7953/2010, the Collector has examined the matter in detail. He had called for the report of the Executive Engineer Public Works Department dated 01.02.2021 disclosing that in the Flyover Project at Madan Mahal Crossing, a road is to be constructed on the ground floor and first floor and for that construction, it is very necessary to remove the petrol pump in question. By the said communication, a request was also made to the Collector to take expeditious action so that the construction of the Flyover could be completed. The Tahasildar also W.A. No.401/2021

had submitted the report dated 22.02.2021 to the Collector pointing out that the pillars of the Flyover are to be constructed on all sides of the petrol pump and in fact, one of the pillars is required to be constructed on a part of the petrol pump and heavy machineries will be deployed in the construction, there is possibility of accident, therefore, it was stated that the lease in favour of the petrol pump may not be renewed. The spot inspection report was also produced before the Collector.

8. The Collector after considering the stand of the appellant as also the material which was produced by the different Authorities and Experts has passed the order dated 26.02.2021 refusing to grant the permanent lease to the appellant. While reaching to the said conclusion, the Collector has found that as per the project, a part of the Flyover has already been constructed but on account of the petrol pump in question, the important part of construction is obstructed. It has also been noted that the temporary lease in favour of the Indian Oil Corporation had already expired on 31.03.1998 and it is also found that for the construction of pillars and their safety, the petrol pump is an obstruction and if the petrol pump is allowed to continue at the present place, there is possibility of accidents. It has also been found that for the proposed Flyover, the land in question is required. While reaching to the aforesaid conclusion, the Collector has duly taken into account the material produced by the Public Works Department, Consultant Engineer Authority Engineer, Bridge Expert and Safety Consultant. The order passed by the Collector is a well reasoned order and the Collector after taking into account all the relevant circumstances has committed no error in rejecting the application of the Indian Oil Corporation Ltd. for grant of permanent lease. The temporary lease of the land has already expired in the year 1998 and thereafter there was no renewal and the appellant was continuing merely on the basis of the interim order passed by this Court. No legal right, in the circumstances of the case, exists in favour of the appellant to seek a mandamus for renewal of lease especially when the order of W.A. No.401/2021

the Collector rejecting the prayer for permanent lease does not suffer from any illegality.

9. The learned Single Judge has not committed any error in taking the view that the decision based upon the records of the experts does not require any interference. Learned Single Judge while dismissing the writ petition has rightly held that :

"13. Development of infrastructure and providing civic amenities are the duties of the civic bodies. The projects involving construction of flyover, rotary which are vital for development of infrastructure have been entrusted to experts in such fields, who have vast knowledge and expertise in the field of flyover/rotary development and maintenance as evident from the reply field by the respondents. These detailed project reports are prepared keeping in view the various factors including intensity of vehicular traffic and larger public interest.

14. In the case of Union of India Vs. Kaushala Shetty and others (2011) 12 SCC 69, the Supreme Court has observed :-

"28............The Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in rarest of rare cases, the particular project, if it is found to be ex-facie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained."

15. The factual report is by the government approved Consultant Engineer, Bridge expert and safety consultant. The maps placed on record clearly show that four different roads are connecting to the Madan Mahan square, under such circumstances and working to the space available, it would be contrary to public interest and public safety to permit the petitioners to continue to run the petrol pump at the existing place. Moreover, renewal of lease cannot be claimed by way of right and can be refused in public interest which prevails over private interest. The lease of petitioners has expired long back, however, they continued to run the retail outlet/petrol pump under the protection of various interim orders passed by this Court, resulting in stalling of the construction of flyover. Everyday's delay in construction not only affects the commuters adversely but also increase the cost of project/construction, resulting in loss of public exchequer. In the facts and circumstances, power of judicial review cannot be invoked to protect private interest at the cost of public interest."

10. Having regard to the aforesaid, we are of the opinion that no W.A. No.401/2021

case for interference in the order of the learned Single Judge is made out. So far as the appellant's prayer for grant of alternate land is concerned, the learned Single Judge in concluding paragraph has already granted liberty to the appellant to approach the competent authority for grant of alternative suitable site. We have no doubt if appellant approaches the competent authority for grant of alternate suitable site, then the competent authority will take an appropriate decision in accordance with law expeditiously on such a prayer.

11. In these circumstances, we do not find any merit in this appeal, which is accordingly dismissed.

    (PRAKASH SHRIVASTAVA)                            (VIRENDER SINGH)
         JUDGE                                            JUDGE

    Biswal



SHIBA NARAYAN BISWAL
2021.04.29 13:52:58 +05'30'