M/S Astute Infra Construction ... vs Town And Country Planning
2021 Latest Caselaw 4506 MP

                                   1
         The High Court Of Madhya Pradesh
                    WP-23031-2019
      (M/S ASTUTE INFRA CONSTRUCTION PVT LTD THROU VS STATE OF M.P. & OTHERS


Indore; Dated: 23.08.2021
      Shri V.K. Jain, learned Sr. Advocate with Shri Vaibhav Jain, learned
counsel for the petitioner.
      Shri Chetan Jain, learned Panel Lawyer for the respondent

no.1/State.

Shri Naman Nagrath, learned Sr. Advocate with Shri Anuj Agrawal, learned counsel for the respondent no.2.

Shri Vinay Gandhi, learned counsel for the intervenor. Heard on I.A. No. 4218/2020,an application seeking vacation of interim order dated 11.12.2020 and for dismissal of writ petition.

The instant petition has been filed taking exception to the order dated 28.09.2019 passed by the Joint Director, Town and Country Planning, Indore granting layout permission to respondent no.2 for development over land in question on various grounds inter-alia contending that the respondent no.3 had entered into an agreement to sale dated 04.08.2012. However, instead of executing sale deed, respondent no.3 has passed on title in favour of respondent no.2 by registered sale deed dated 22.12.2012 and 31.03.2013 (Annexure P4). The petitioner has filed a civil suit no. 53A/2016 against both respondent no.2 and 3(defendant no. 5 & 1 respectively in the suit) before the Court below for specific performance of agreement dated 04.08.2012 and also for declaration that sale deed dated 22.12.2012 and 31.03.2013 is null and void. The trial Court has passed the order dated 11.09.2013 for maintaining status-quo against defendants no. 2,3,4 and 6 and not against defendant no.5(respondent no.2) and thereafter, on 27.09.2013, the order of status- quo has been modified to the extent of properties described in sale deeds under challenge. At that time, the Joint Director, Town and Country Planning Department Indore was not arrayed as a defendant.

2. The Joint Director, Town and Country Planning Department, Indore has granted layout permission on 28.09.2019 u/S 30 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam 1973(for short the Act of 1973 hereinafter).

It appears that this Court has granted ex-parte stay on 11.12.2020

The High Court Of Madhya Pradesh WP-23031-2019 (M/S ASTUTE INFRA CONSTRUCTION PVT LTD THROU VS STATE OF M.P. & OTHERS

staying the operation of impugned order of 28.09.2019. It further appears that respondent no. 2 has filed an application for vacating stay vide I.A. No. 4218/2020 on the premise that petitioner has a remedy to file an appeal against the impugned permission for layout u/S 30 of the Act of 1971. This Court did not countenance to the aforesaid objection inter-alia holding that petitioner does not fall within the scope of the term 'applicant' as contemplated u/S 31 of the Act of 1973 and, therefore, no appeal may be preferred by the petitioner against grant of permission for layout. Accordingly overruled preliminary objection raised by the respondent no.2 and continued the interim order.

It further appears that this Court on 22.07.2021 while hearing the instant application i.e. I.A. 4218/2020 prima-facie found that petitioner is having a remedy to challenge the validity of permission for layout before the Civil Court in the pending suit. However, Shri Jain has sought time to address this Court on the issue of maintainability of the writ petition. Thereafter, on two dates i.e. 05.08.2021 and 11.08.2021, hearing was deferred. Today, the case is posted for consideration of the aforesaid I.A.

3. Shri V.K. Jain, learned Sr. counsel contends that this Court has already held that no appeal shall lie against the layout permission at the instance of the petitioner u/S 31 of the Act of 1973 and also revision u/S 32 of the Act of 1973.

There is a bar of suit and other proceedings as contemplated u/S 81 of the Act of 1973. Therefore, the petitioner has no remedy except to approach this Court under Article 226 of the Constitution of India challenging the impugned order of grant of permission for layout dated 28.09.2019 by respondent no. 2 Shri Jain also relied upon the judgments of Hon'ble Supreme Court reported in AIR 1966 SC 893[Ram Swarup and others Vs. Shikar Chand and another] and 1976 (1) SCC 496[The Premier Automobiles Ltd Vs. Kamlekar Shantaram Wadke of Bombay and others & Automatic Electric Pvt. Ltd. Vs. Engineering Mazdoor Sabha and Others] to bolster his submissions.

The High Court Of Madhya Pradesh WP-23031-2019 (M/S ASTUTE INFRA CONSTRUCTION PVT LTD THROU VS STATE OF M.P. & OTHERS

4. Per contra, Shri Nagrath, learned Sr. counsel for respondent no. 2 at the threshold submits that as a matter of fact, the petitioner herein has already filed an application under Order 1 Rule 10 CPC before the trial Court for arraying the Joint Director, Town and Country Planning, Indore as defendant on 28.08.2019. The said application has been allowed and Joint Director, Town and Country Planning has been arrayed as defendant.

5. It is surprising that the Town and Country Planning Department has sanctioned the layout on 28.09.2019. However, no action, whatsoever has been taken by the petitioner to assail the said layout permission before the trial Court. Instead they have flocked to this Court in the instant petition under Article 226 of the Constitution of India. Therefore, the petitioner has not come before this Court with clean hands, in as much as, on the one hand he sought impleadment of the Joint Director, Town and Country Planning Department, Indore as defendant in the pending suit and on the other hand he has filed the present petition challenging the legality and validity of the layout permission dated 28.09.2019 by way of instant petition.

6. Further elaborating his submissions, Shri Nagrath submits that two parallel proceedings cannot be permitted to be continued. In fact, in all fairness, if petitioner has any grievance, he could have challenged the layout permission granted on 28.09.2019, when the Joint Director, Town and Country Planning has already been impleaded as defendant a month before the date of passing of the order of grant of permission for layout.

That apart, learned counsel while referring to the provisions of Section 81 of the Act of 1973 submits that in fact the provision, if read carefully contemplates that no suit, prosecution or legal proceedings shall lie against any person for anything which is done in good faith or intended to be done under this Act or any rules made thereunder. It is submitted that the protection is to the person/authority prescribed under the Act against any action either that of civil nature or criminal nature, if he has acted bonafidely under the provisions of the Act. However, there is no immunity to the action or order passed by such person or authority under

The High Court Of Madhya Pradesh WP-23031-2019 (M/S ASTUTE INFRA CONSTRUCTION PVT LTD THROU VS STATE OF M.P. & OTHERS

the Act. That can always be the subject matter of challenge before the competent forum.

7. Learned counsel for the respondent no.2 further submits that order of status-quo dated 11.09.2013 was not passed against present respondent no.2, at whose instance, the layout permission was granted by the Joint Director, Town and Country Planning Department on 28.09.2019, therefore the said order had no bearing on such permission.

It is submitted that due to ex-parte interim order passed by this Court on 11.12.2020, the entire project has come to a stand still with escalation in construction cost and material causing recurring losses to the respondent no.2.

8. With the aforesaid submissions learned Sr. counsel prays for vacation of interim order and dismissal of the instant petition.

9. Before adverting to rival contentions advanced, it is expedient to observe that writ jurisdiction under Article 226 of the Constitution of India is primarily an equitable jurisdiction based on the concept of justice equity and good conscience. It is always the endeavour of a constitutional Court invoking extraordinary constitutional jurisdiction to avoid multiplicity of litigation or coiling/overlapping of litigation ensuring that parallel proceedings in two forums are not allowed to be resorted to keeping in mind, the concept of discipline of law and perseverance of rule of law.

True it is, powers under Article 226 of the Constitution are wide enough to embrace such causes which affects legal rights of every person apart from fundamental rights, nevertheless, the self-imposed limitations on the constitutional Court are well settled.

10. Turning to the facts in hand, undisputedly, petitioner has filed a suit for specific performance on the strength of an agreement to sale dated 04.08.2012 allegedly executed by respondent no.3 in favour of the petitioner. The suit is pending since 2013. In the said suit, petitioner has sought specific performance of the agreement dated 04.08.2012 and declaration of sale deed dated 22.12.2012 and 31.03.2013 executed in favour of respondent no.2 by respondent no.3 as null and void.

The High Court Of Madhya Pradesh WP-23031-2019 (M/S ASTUTE INFRA CONSTRUCTION PVT LTD THROU VS STATE OF M.P. & OTHERS

This is also true that the trial Court has passed an order of status-quo on 11.09.2013 against defendants no.2,3,4 and 6 and not against the defendant no.5/respondent no.2 in the instant petition. It is also not in dispute that petitioner has filed an application under Order 1 Rule 10 CPC for arraying the Joint Director, Town and Country Planning Department as a defendant and the same stands allowed on 28.08.2019. However, the impugned order dated 28.09.2019 has not been brought to the notice of the trial Court. Instead, the instant writ petition has been filed.

11. Now with the factual matrix in hand, it is evident that parties to the civil suit are same as before this Court. The subject-matter of suit relates to the same parcel of land in respect of which, writ petition has been filed. The main dispute of specific performance of agreement is pending consideration. As on date, petitioner does not have title of the land. The layout permission granted by the Joint Director, Town and Country Planning Department prima facie is on a consideration that respondent no. 2 holds the title of land in question. Nevertheless, the Joint Director is party to the suit after 28.08.2019. If petitioner has any grievance against the order granting permission for layout, he is always free to take recourse to law before the Court where Joint Director, Town and Country Planning has been impleaded as a party.

On a careful persual of Section 81 of the Act of 1973, this Court is of the considered view that suit and other proceedings like prosecution etc are barred against any person for anything which he has done in good faith or intended to be done under the Act or the rules made thereunder. There is no bar to question the legality and validity of the action or the order of such person or authority under the Act of 1973 and rules made thereunder.

12. At this stage, Shri Gandhi, learned counsel for the intervenor submits that respondent no.2 has further entered into an agreement to sale with the intervenor for which separate action is being taken against him.

13. The judgments cited by Shri Jain in the considered opinion of this Court are distinguishable and are of no assistance to the petitioner in the context of maintainability of this petition in the light of the pending civil

The High Court Of Madhya Pradesh WP-23031-2019 (M/S ASTUTE INFRA CONSTRUCTION PVT LTD THROU VS STATE OF M.P. & OTHERS

suit where the Joint Director, Town and Country Planning Department has already been arrayed as defendant no.5.

14. Upon hearing counsel for the parties, it is hereby directed as under:

(i) I.A. No. 4218/2020 is allowed. Petition is held to be not maintainable in the light of pendency of Civil Suit No. 53A/2016 as there is no bar to seek relief against the order granting layout permission dated 28.09.2019 by the Town and Country Planning Department, Indore/defendant no.5 in the suit.

(ii) in such eventuality, the trial Court shall advert to the same and address the challenge, if so made on merits in accordance with law including the application for injunction with promptitude.

(iii) It is made clear that observations made on facts in writ petition are only for the purpose of disposing of this petition and shall not have any bearing on the merits of the pending suit

(Rohit Arya) Judge sh/-

SEHA Digitally signed by SEHAR HASEEN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT

R OF MADHYA PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=900ec6fc757798ea

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EN ba610c57f1559c08bf6c6f5d d40d4, cn=SEHAR HASEEN Date: 2021.08.27 16:43:43 +05'30'