Madhya Pradesh High Court
Suyash Exim Private Limited Thr. ... vs The State Of Madhya Pradesh on 20 July, 2021
Author: Sujoy Paul
1 WA No.614/2021
The High Court of Madhya Pradesh Bench at Indore
WRIT APPEAL No.614/2021
Suyash Exim Pvt. Ltd. & another Vs. State of MP & others
Indore, Dated:20.07.2021
Heard through video conferencing.
Shri V.K. Jain, learned Sr.Counsel with Shri Vishal Baheti,
learned counsel for appellants.
Shri Pushyamitra Bhargava, learned A.A.G for respondent No.1
to 4.
Shri Ambar Pare, learned counsel for respondent No.5.
With the consent, finally heard.
ORDER
This Intra Court appeal filed u/S.2(1) of the Madhya Pradesh
Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005,
takes exception to the order dated 1/7/2021 passed by the learned
Single Judge in WP No.4778/2021 whereby the petition filed against
the order dated 3/2/2021 (whereby development permission granted to
the petitioner was revoked) was not entertained and petitioner was
relegated to avail the remedy of appeal before the Commissioner
(Revenue), Ujjain on the basis of consent of the parties.
2. Shri Jain, learned Sr.Counsel assailed the order dated 1/7/2021
by contending that the Indore Development Authority (IDA) granted
development permission to the appellants after due scrutiny. When
they tried to revoke the said order of granting permission and put the
appellants to notice, the appellants prayed for 30 days time to file
effective reply. Before that period could be over, abruptly order dated
3/2/2021 was passed by ante dating it which runs contrary to the
principles of natural justice. In absence of giving effective
opportunity to file reply, principles of natural justice were grossly
violated and in this backdrop it was not necessary for the appellants to
avail statutory alternative remedy. The writ court has committed an
error in relegating the appellant to avail remedy of appeal.
3. It is submitted that order of IDA as per Sec.31 of Nagar Tatha
Gram Nivesh Adhiniyam, 1973 (for short "Adhiniyam") is appellable
before the Commissioner (Revenue) but at present the Commissioner
(Revenue), Division Indore/appellate authority is also functioning as
Administrator of the IDA. The impugned order is passed by the IDA
and appeal would lie to the Revenue Commissioner who is
simultaneously holding the charge of Administrator of IDA. Thus,
the said appeal would not be an effective appeal and will be against
the principles of natural justice. He further submits that a careful
reading of Sec.31 of Adhiniyam of 1973 shows that appellate remedy
is available only against an order granting permission or an order
refusing permission whereas in the instant case the permission was
already granted which was revoked subsequently. Thus, Section 31
itself was not applicable.
4. The prayer is opposed by Shri Pushyamitra Bhargava by
contending that a conjoint reading of Rule 25 and 25(a) of M.P.
Bhumi Vikas Rules, 2012 makes it clear that appeal is indeed
available. The petitioner was rightly relegated to avail the remedy of
appeal. Counsel for petitioner gave consent for hearing of appeal by
adjacent Revenue Commissioner of Ujjain and hence against this
consent order, writ appeal is not tenable.
5. Shri Ambar Pare, counsel for respondent No.5 submits that
Sec.51 of Adhiniyam and a notification issued thereunder shows that
for the purpose of dealing with this kind of situation, Revenue
Commissioner, Bhopal is empowered to hear the revisions. He fairly
submitted that impugned order dated 3/2/2021 and 8/2/2021 could not
be assailed in revision.
6. In rejoinder submission, Shri Jain, learned Sr.Counsel submits
that the jurisdiction cannot be conferred by consent of the parties. The
appeal is a statutory remedy which is always created by a statute and
this power of adjudication cannot be conferred by consent of parties.
7. No other point is pressed by learned counsel for parties.
8. We have heard learned counsel for parties at length and perused
the record.
9. In our opinion, as per the judgment of Supreme Court in (1998)
8 SCC 1 (Whirlpool Corporation v/s Registrar of Trade Marks,
Mumbai & Others) the writ petition can be entertained despite
availability of alternative remedy in certain situations. Violation of
principles of natural justice is certainly one of them. However, in
catena of judgments it was made clear that it is a discretion of the
court to entertain a petition despite availability of alternative remedy
and not a compulsion. The Supreme Court again considered the
judgment of Whirlpool Corporation (supra) in (2005) 8 SCC 264
(U.P. State Spinning Corporation Limited v/s R.S. Pandey &
Another). The relevant portion reads as under:-
"17. Where under a statute there is an allegation of
infringement of fundamental rights or when on the undisputed
facts the taxing authorities are shown to have assumed
jurisdiction which they do not possess can be the grounds on
which the writ petitions can be entertained. But normally, the
High Court should not entertain writ petitions unless it is
shown that there is something more in a case, something going
to the root of the jurisdiction of the officer, something which
would show that it would be a case of palpable injustice to the
writ petitioner to force him to adopt the remedies provided by
the statute."
(emphasis supplied)
10. A plain reading of this para makes it clear that merely because
principles of natural justice are violated, a writ petition is ordinarily
not entertainable unless it is shown that there is something more in the
matter which shows that authority who has passed the impugned order
did not have jurisdiction/competence at all. This was not the case of
the appellant before the writ Court. We are unable to hold that if
appellant is relegated to avail the remedy of appeal, it will cause any
palpable injustice to him.
11. So far question of non maintainability of appeal u/S.31 of
Adhiniyam is concerned, on the first blush the argument of Shri Jain,
learned Sr.Counsel appears to be attractive, but lost much of its shine
when it is examined in the teeth of Rule 25 and 25(a) of the Rules of
2012. The Rule 25 and 25(a) provides a remedy of appeal to the
appellant against the order of revocation of permission also. Thus, we
find no merit in the argument that appeal was not tenable under the
relevant statute.
12. Para 7 and 8 of the impugned order of learned Single Judge
reads as under:-
"7. Shri Pushyamitra Bhargava submits that the
letter dated 23.12.2020 was written by the Chief City
Planner and not by the Commissioner in the capacity of
Administrator of the IDA, therefore in the capacity of
Commissioner, Indore Division appeal is maintainable
before it. The Commissioner (Revenue) is designated as
an appellate authority who can hear the appeal being a
quasi-judicial authority. If the petitioners are having any
apprehension, then the petitioners be directed to file the
appeal before the Commissioner (Revenue), Ujjain
Division who shall here and decide the appeal.
8. For this proposition Shri Sethi learned senior
counsel has no objection. He submits that the interim
protection granted by this Court may be extended to the
petitioner."
(emphasis supplied)
13. A bare perusal of these paragraphs makes it clear that the
appellants also gave consent before the learned Single Judge for
hearing of appeal by the Revenue Commissioner, Ujjain. After having
given such a consent, if appellant was of the view that no such consent
can be given or no forum can be created on the basis of consent etc,
the proper course would have been to file a review petition before the
learned Single Judge. Thus, we are only inclined to observe that to
this extent the appellants may seek review before the learned Single
Judge. Thus, we are only inclined to observe that the appellants may
file review petition against the order dated 1/7/2021 to the extent
appeal was directed to be preferred before Commissioner (Revenue),
Ujjain Division and ancillary question regarding entertainability of
appeal by Commissioner (Revenue), Indore. In view of consent given
by the parties before the learned Single Judge, we are not inclined to
entertain this writ appeal.
14. Writ Appeal fails and is disposed of with aforesaid
observations.
(SUJOY PAUL) (ANIL VERMA)
Judge Judge
vm
Digitally signed by
VARGHESE MATHEW
Date: 2021.07.22
09:53:37 -07'00'
