Madhya Pradesh High Court
Indore Development Authority vs Smt. Rashmi Soni on 4 November, 2022
Author: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH AT
INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 04th OF NOVEMBER, 2022
WRIT APPEAL No. 1178 of 2019
BETWEEN:-
INDORE DEVELOPMENT AUTHORITY CHIEF EXECUTIVE
OFFICER 7, RACE COURSE ROAD, INDORE (MADHYA
1.
PRADESH)
EASTATE OFFICER INDORE DEVLOPMENT AUTHORITY 7,
2.
RACE COURSE ROAD, INDORE (MADHYA PRADESH)
.....APPELLANTS
(BY MS. MINI RAVINDRAN, ADVOCATE )
AND
SUNIL DANGI S/O SHRI UMRAO SINGH DANGI, AGED ABOUT
55 YEARS, OCCUPATION: BUSINESS 123-124, MAHAVEER
NAGAR, NEAR TILAK NAGAR, INDORE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI SUNIL JAIN SENIOR COUNSEL WITH SHRI
AYUSHMAN CHOUDHARY, ADVOCATE )
2
WRIT APPEAL No. 1179 of 2019
BETWEEN:-
INDORE DEVELOPMENT AUTHORITY CHIEF EXECUTIVE
OFFICER 7, RACE COURSE ROAD, INDORE (MADHYA
PRADESH)
.....APPELLANT
(BY MS. MINI RAVINDRAN, ADVOCATE )
AND
SMT. RASHMI SONI W/O DR. RAVI SONI OCCUPATION:
HOUSEWIFE 303, REGENCY EMPIRE, 4 SHRINAGAR
EXTENSION , (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI AJAY BAGADIYA, SENIOR COUNSEL WITH SHRI G. S.
CHOUHAN, ADVOCATE )
........................................................................................................
Reserved on 05.08.2022
Delivered on 04.11.2022
.......................................................................................................
These appeals coming on for judgement this day, JUSTICE
SUBODH ABHYANKAR passed the following:
JUDGEMENT
Heard.
2] This order shall govern the disposal of both the writ appeal
Nos.1178 and 1179 of 2019 as the common issue involved in these
appeals.
3] For the sake of convenience the facts as narrated in W.A.
No.1178 of 2019 are being taken into consideration.
4] This writ appeal has been preferred under Section 2(1) of
Madhya Pradesh Uchha Nyayalaya (Khand Nayaypeeth Ko
Appeal) Adhiniyam, 2005 and the rules made thereunder against
the order dated 20.12.2018, passed in W.P. No.15646 of 2018 filed
by the respondent/petitioner Sunil Dangi wherein the writ petition
filed against an advertisement dated 02.07.2018 issued by
appellant No.1/respondent No.1 Indore Development Authority for
sale of 13 residential plots in Scheme No.94, Sector - E despite
informing the petitioner that no residential plots are available with
the respondents. The learned Judge of the writ Court has partly
allowed the petition and has directed the respondents to handover
one plot from the available 13 plots in Sector -E or allot Plot
No.T1 or T2 which are also vacant in Sector - F.
5] In brief the facts as have been noted by the learned Judge of
the writ Court, which are not disputed, are as herein under:-
"2. The petitioner has filed the present petition being
aggrieved by the publication of NIT by the respondents
Indore Development Authority ('IDA' in short ) for sale of
16 residential free hold plots within the Sector E, Scheme
No.94, Indore.
3. The respondents IDA issued an advertisement No.79/94
dated 27.07.1993 for allotment of residential plots in the
Sector-E of Scheme No.94, Indore. In pursuant to the
advertisement the petitioner submitted an application and
the same was accepted after following due procedure. That
vide letter dated 12.9.1994 he was allotted plot No.121/EA
(area 216.00 square meters on lease for the period of 30
years in total premium amount of Rs.3,24,000/-. At the
time of allotment petitioner had deposited 50% of
premium amount and further deposited remaining amount
in 12 months within the prescribed time. The petitioner
made a request to the respondents for handing over the
possession of the said plot. The respondents stated that
vacant possession of the plot will be handed over after
development of the scheme. Thereafter, the petitioner
made several request and representations, but physical
possession of the plot was not handed over to him on the
pretext that some civil dispute is pending, development
has not been done etc. land is under encroachment etc.
Now the IDA has published an advertisement in the daily
newspaper dated 3.7.2018 for sale of 16 residential plots
in Sector-E of Scheme No.94. The petitioner immediately
served a legal notice to a respondents that if the plots are
vacant and available, then the petitioner is entitled to get
the possession in view of the allotment made to him on
12.09.1994 in Sector-E of Scheme No.94. Thereafter, the
present petition has been filed by the petitioner,
challenging the impugned advertisement dt.3.07.2018.
4. By order dt.16.07.2018, this court issued a notice to the
respondents and by way of interim relief permitted them
to complete the process of allotment, but there shall be no
finalization, without prior leave of this court.
5. After notice, the respondents have filed their return
admitting the allotment of plot No.121/EA in favour of the
petitioner and also not disputed that he has deposited the
entire premium amount. It is contended by the respondents
that due to pendency of civil dispute, before the court, the
development of work of certain plots including the
petitioner's plot in Sector E could not be completed. There
were as many as 105 plots, which could not be developed
and the possession could not be given to allottees despite
they completed all the formalities and an allotment letters
were issued in their favour. In order to consider the
grievance of the petitioner, the IDA decided to form the
committee. The committee was constituted vide resolution
no.407, dated 22.10.2001. The committee made a various
recommendations. In order to comply the said
recommendation, the Board of IDA vide resolution
No.204 dated 4.8.2002 had resolved that in respect of
various plots of Sector E, the allottee who have deposited
the entire amount, but could not be given the possession
may be allotted the plot in Sector F of Scheme No.94.
Accordingly, the letters were issued on 30.8.2002 to all the
allottees but 29 allottees gave their consent . The similar
notice was issued to the petitioner and thereafter vides
another letter dt.23.11.2004, consent was sought from the
petitioner and others, and thereafter, lottery was held.
Since the petitioner did not give consent and was not
ready to accept the alternate plot in Sector F, therefore, he
could not be allotted the plot.
6. It is further submitted that the respondents have held
various lotteries in compliance of resolution dt.14.08.2002
and majority of the plot holders, 86 in numbers have been
allotted the plots in Sector F. Now at this stage, there are
as many as, 18 allottees including the petitioner who are
still awaiting the allotment of the plot in Sector E. It is
further submitted that at present there are 4 plots available
in Sector F of 162 Sq. Mtr, area viz. plot nos. 5A, 6, 14
and 17. There are two more plots having area 300 Sq. Mtr.
or more viz. T-1 & T-2, but the same cannot be allotted to
the petitioner. The petitioner is insisting for allotment of
plots in Sector E and not even ready to accept the plot
available in Sector F, therefore, he has no right to
challenge the impugned advertisement. By impugned
advertisement dt.2.07.2008, the respondents are going to
sale free hold plots and the same cannot be inter change
with the plot of the petitioner in view of the fact that he is
having allotment of lease hold plot for the 30 years .
Under Rule 5 of M.P. Vikas Pradhikarno Ke Sampatiyo Ka
Prabandhan Tatha Veyan Niyam, 2013 (herein after
referred as the Niyam of 2013'). The disposal of property
can only be done by inviting bids in a seal cover or by
draw of way of process of lottery at predetermined price.
The answering respondents shall be undertaking another
lottery process in respect of remaining plots No.5A, 6, 14
and 17 admeasuring 162 Sq. Mtr, situated in Sector F of
94. The petitioner and the similarly placed 18 persons may
give their consent for participation in the lottery.
7. Being dissatisfied with the averments of the return,
petitioner has filed the rejoinder. It is further submitted
that in pursuant of resolution dt.14.08.2002, plots were not
allotted in Sector F, but in Sector E itself and this is clear
from the contents of Annexure R/6. It is further submitted
that the respondents have adopted discriminating attitude
with the petitioner as in case of five allottees, the
respondents have allotted them a plot in Sector E itself.
Their names are Sandhya Choukliya, Ravindra Singh
Lodha, M.L. Malhotra, Ashok Kumar Sharma and
Chaganlal Kothari. Copies of the allotment letters have
also been filed along with the rejoinder. These five
persons have been accommodated in the year 2011 and
2013. Now the respondents are having vacant plots in
Sector E itself for which they are going to sale by way of
NIT but same can be transferred to the petitioner as he is
waiting for possession since almost 20 years.
8. In order to deny the averments made in the rejoinder,
the respondents have filed the additional reply by
submitting that Annexure R/6, has wrongly been annexed
due to inadvertent mistake whereas, as per the pleading, it
is quite clear that in compliance of resolution
dt.14.08.2002, the notice was issued to all affected
allottees of Sector-E, Scheme No. 94. The respondents
have admitted that 5 persons were allotted the plots in the
year 2011 and 2013, without adopting the process of
lottery and that was the mistake on the part of IDA, which
cannot be permitted to perpetuate by doing another wrong.
The petitioner cannot claim negative parity. That mistake
was done only in case of Smt.Sandhya Choukliya and Shri
M.L. Malhotra, but in case of Ravindra Singh Lodha and
Chaganlal Kothari, they have been allotted the plots in
Sector F as plots no.158-B, S1 and 204A, respectively.
The plots which are the subject matter of the impugned
tender have recently became free from the litigation are
available for allotment after following the process as per
Niyam 2013. At the most, the petitioner can be allotted
No.5A, 6, 14 and 17 admeasuring 162 Sq. Mtr, situated in
Sector F of 94, if petitioner is ready to participate in the
process of lottery. It is further pleaded that these are two
plots T1 and T2 in Sector F, which are vacant. However,
these plots having large area then the plot allotted to the
petitioner, but disposal of this will be undertaken as per
Rule 5 and 6 of Niyam of 2013. The various letters were
written to the petitioner on address available with the IDA,
but the petitioner did disclose her new address, therefore,
the writ petition is liable to be dismissed.
9. In order to resolve the controversy between the
parties amicably, this court vide order dt.28.09.2018 made
a query from the IDA that as to why both the writ
petitioners cannot be allotted the vacant two plots i.e., T1
and T2 of Sector F. It is submitted by filing an affidavit in
both the writ petitions by IDA that in pursuant to the
resolution dt.14.08.2002, as many as, 94 allottees of
Sector E have been allotted the plot in Sector F of similar
size . Now six plots are remaining in Sector F of Scheme
94 and there are as many as 18 affected allottees of Sector
E. The petitioners are not entitled for plot no.T1 and T2
because of its bigger area more than the area of an allotted
plot to them in Sector E. For remaining 4 plots 5A, 6, 14
and 17, the IDA has taken a decision to go for one more
lottery process and the petitioners can participate in the
said lottery process. It is further submitted that IDA cannot
undertake the division of plot No.T1 and T2, situated in
Sector F. These plots are reserved for residential use and
under the Rule 22(b)(3) of Bhoomi Vikas Niyam, 2012,
the division of plot is not permissible. The provisions of
Niyam 2013, are binding on the IDA being a public
authority. It is further submitted that number of writ
petitions are pending in respect of the challenge to the
Scheme No.94 before this court seeking quashment of the
entire scheme under the provisions of Section 24 of the
Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation, and Resettlement Act, 2013.
10. I have heard Shri Ajay Asudani Advocate and for
the petitioner in their respective petition and Ms. Mini
Ravindran, Advocate for the respondents at length.
11. The main contention of the learned counsel for the
petitioner is that the petitioner had been allotted the plot in
the year 1993. He had paid the entire premium amount
without any delay and default. Initially respondents could
not hand over the possession for want of development.
Thereafter, in order to accommodate the petitioner and
similarly placed persons, the respondents have passed a
resolution for allotment of plot in Sector F of Scheme
No.94, which was not acceptable to the petitioner as the
allocation of plot in sector No.E and allocation of allotted
plot in Scheme F are all together were different, but by the
passage of time in order to settle in life the petitioner is
ready to accept one of the plot from T1 or T2 in Sector F
of Scheme No.94 and also ready to deposit the difference
of amount because the area of plot is larger than the area
of the plot allotted to her. He is also ready to pay the
difference of the amount as per the current market
guidelines. The provisions of Niyam 2013 would not
apply in case of the allotment of the plots to the petitioner
by way of exchange because he got the allotment prior to
the coming into the force of Niyam 2013.
12. Learned counsel for the petitioner has further
emphasized that now 13 plots are available in the Sector E
itself and in order to fetch the higher amount they are
being sold in the market as a free hold plot. The petitioner
was allotted a plot for the 30 years lease period, but the
same is extendable, hence there is no deference between
lease hold plots and free hold plots . Since the respondents
are not ready to allot the plot T1 and T2 to the petitioner
then, she is entitle to get one plot from the so called free
hold which have been put into the auction in the NIT
dt.03.7.2018.
13. Ms. Mini Ravindran, Advocate for the respondents
submitted that the IDA is being the public sector is bound
by the Niyam 2013. It is not in dispute that the petitioner
was allotted the plot and she had paid the premium
amount, but was not given the possession because initially
there was delay in development due to encroachment and
litigation, thereafter, the Board constituted the committee
and on its recommendation, the resolution was passed to
allot the plot in Sector F in the same scheme no. 94 . That
94 allottees have been accommodated and only 18 are
remaining. The four plots are available in Sector F, which
can be allotted to the petitioner by way of lottery amongst
18 persons. Plot T1 and T2 cannot be allotted as they are
having a bigger size and the division of residential plots is
not permissible. It is further submitted that two plots have
wrongly been allotted to Smt.Sandhya Choukliya and Shri
M.L. Malhotra in Sector E. Now the advertisement has
been issued for sale 13 free hold plots in the Sector E of
Scheme 94. The petitioner cannot claim the allotment
from these plots as she is allottee of lease hold plot. In
support of her contention, she has placed reliance on the
judgment of the Apex Court in the case of Kastha Niwarak
Grah Nirman Sahakari Sanstha Maryadit, Indore V/s.
Presient, Indore Development Authority reported as 2006
(2) SCC 604 in which the Apex Court has held that the
party cannot claim that since something wrong has been
done in another case direction should not be given for
doing another wrong. It would not be setting a wrong right
but would be perpetuating another wrong. In such matter
there is no discrimination involved. In view of the above,
she prayed for dismissal of the writ petition.
14. That the facts of the case are not in much dispute
so far it relates to the allotment of the plot to the petitioner
and payment of premium amount without any delay and
default. It is also not in dispute respondents could not allot
the plot within time for want of development purpose. In
the year 2002, there were more than 100 allottee of Sector
E who could not be given possession despite allotment.
Therefore, the Board of IDA passed the resolution on
24.08.2002, for allotment of plot in Sector F of Scheme
94, but the allotment would be made through lottery. The
consent was sought from the petitioner also, but she did
not give the consent for allotment of the plot in Sector F at
the relevant time.
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16. It is also not in dispute that the petitioner is waiting
for allotment of the plot since 1994, especially when she
had paid all the premium amount to the IDA. It is also not
the case that the IDA was not concerned about the
problem of petitioner and similarly placed persons for
allotment of the plots because 94 similarly placed persons
have been allotted the plots in Sector F of the same
scheme. Now only 18 allottees are left for the allotment
including the petitioner, but so far IDA is concerned, they
are concerned about allotments to all 18 similarly placed
allottee, but before this court only the petitioner have filed
the petitions seeking allotment of the plot by challenging
the impugned advertisement. Though the petitioner has a
good prima facie case to challenge the advertisement
because now the respondents have 13 plots in Sector E of
Scheme 94 for allotment but they are going to sale as a
free hold. This scheme no.94 was initiated in the year
1994. These plots were available, but could not be allotted
because of the some encroachment over there and
litigations were pending and at that time also had these
plots were available same would have been given on
possession to the allottees as lease hold plots. Now in
order to earn more revenue the IDA has decided to sale as
free hold plots, but fact remains that the IDA has not been
establish to do the business like property developer or
coloniser or builders it is a Government body must act in
the interest of the citizen of this country in order to
provide the residential accommodation to them. The
present petitioner who is waiting since 1994 has locus and
cause to challenge the impugned advertisement. The
respondents have exchanged two plots in case of Smt.
Sandhya Choukliya and M.L. Malhotra in the same sector
in the year 2011 and 2013 in Scheme No.94, not by way
of lottery. Legally that was permissible because they were
allottee like petitioner and they were allotted another
vacant plot. The allotment in favour of the petitioner have
been done in 1994 and the scheme was introduced in
1994, therefore, the provisions of Niyam 2013 would not
apply in case of inter change of the plot between one
sector to another sector. In view of above the petitioner is
having legitimate expectation for taking possession of plot
from the respondents IDA.
In case of Ram Pravesh Singh v. State of Bihar,
reported in (2006) 8 SCC 381, the Apex court has
explained the principal of legitimate expectation
"13. Realising that the appellants had no contractual or
statutory right, learned counsel for the appellants
sought to derive support for the claim on equitable
considerations, by placing reliance on an amalgam of
the principles relating to legitimate expectation,
fairness in action and natural justice, reiterating the
contentions urged before the High Court.
14. It may be true that when the Board took over
the undertakings of the erstwhile private licensees
several decades ago, it also took over the services of
the employees of such private licensees. It is also
possible that this Court in exer cise of its jurisdiction
under Article 142, on the facts of a given case, might
have directed that the persons, whose services had been
terminated on account of closure of an instrumentality
of the State, be continued in the service of government
departments or other government corporations. It may
also be true that certain enactments providing for
transfer of undertakings in pursuance of nationalisation
or otherwise, had also provided for
continuation/transfer of the services of the employees
of the undertakings to the transferee. But these do not
attract the principle of "legitimate expectation".
15. What is legitimate expectation? Obviously, it is
not a legal right. It is an expectation of a benefit, relief
or remedy, that may ordinarily flow from a promise or
established practice. The term "established practice"
refers to a regular, consistent, predictable and certain
conduct, process or activity of the decision-making
authority. The expectation should be legitimate, that is,
reasonable, logical and valid. Any expectation which is
based on sporadic or casual or random acts, or which is
unreasonable, illogical or invalid cannot be a legitimate
expectation. Not being a right, it is not enforceable as
such. It is a concept fashioned by the courts, for
judicial review of administrative action. It is
procedural in character based on the requirement of a
higher degree of fairness in administrative action, as a
consequence of the promise made, or practice
established. In short, a person can be said to have a
"legitimate expectation" of a particular treatment, if
any representation or promise is made by an authority,
either expressly or impliedly, or if the regular and
consistent past practice of the authority gives room for
such expectation in the normal course. As a ground for
relief, the efficacy of the doctrine is rather weak as its
slot is just above "fairness in action" but far below
"promissory estoppel". It may only entitle an
expectant: (a) to an opportunity to show cause before
the expectation is dashed; or (b) to an explanation as to
the cause for denial. In appropriate cases, the courts
may grant a direction requiring the authority to follow
the promised procedure or established practice. A
legitimate expectation, even when made out, does not
always entitle the expectant to a relief. Public interest,
change in policy, conduct of the expectant or any other
valid or bona fide reason given by the decision-maker,
may be sufficient to negative the "legitimate
expectation". The doctrine of legitimate expectation
based on established practice (as contrasted from
legitimate expectation based on a promise), can be
invoked only by someone who has dealings or trans
actions or negotiations with an authority, on which
such established practice has a bearing, or by someone
who has a recognized legal relationship with the
authority. A total stranger unconnected with the
authority or a person who had no previous dealings
with the authority and who has not entered into any
transaction or negotiations with the authority, cannot
invoke the doctrine of legitimate expectation, merely
on the ground that the authority has a general
obligation to act fairly.
16. In Union of India v. Hindustan Development
Corpn.2 this Court explained the nature and scope of
the doctrine of "legitimate expectation" thus: (SCC p.
540, para 28)
"For legal purposes, the expectation cannot be
the same as anticipation. It is different from a
wish, a desire or a hope nor can it amount to a
claim or demand on the ground of a right.
However earnest and sincere a wish, a desire or a
hope may be and however confidently one may
look to them to be fulfilled, they by themselves
cannot amount to an assert-able expectation and
a mere disappointment does not attract legal
consequences. A pious hope even leading to a
moral obligation cannot amount to a legitimate
expectation. The legitimacy of an expectation
can be inferred only if it is founded on the
sanction of law or custom or an established
procedure followed in regular and natural
sequence. Again it is distinguishable from a
genuine expectation. Such expectation should be
justifiably legitimate and protectable. Every such
legitimate expectation does not by itself fructify
into a right and therefore it does not amount to a
right in the conventional sense."
(emphasis supplied)
17. This Court also explained the remedies flowing by
applying the principle of legitimate expectation: (SCC
pp. 546-47, para 33)
"[I]t is generally agreed that legitimate
expectation gives the applicant sufficient locus
standi for judicial review and that the doctrine of
legitimate expectation is to be confined mostly to
right of a fair hearing before a decision which
results in negativing a promise or withdrawing an
undertaking is taken. The doctrine does not give
scope to claim relief straightaway from the
administrative authorities as no crystallised right
as such is involved. The protection of such
legitimate expectation does not require the
fulfilment of the expectation where an overriding
public interest requires otherwise. In other words
where a person's legitimate expectation is not
fulfilled by taking a particular decision then
decision-maker should justify the denial of such
expectation by showing some overriding public
interest. Therefore even if substantive protection
of such expectation is contemplated that does not
grant an absolute right to a particular person. It
simply ensures the circumstances in which that
expectation may be denied or restricted. 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 expectation, 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 out 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)
18. In Punjab Communications Ltd. v. Union of India3
this Court observed: (SCC pp. 729-30)
"The principle of 'legitimate expectation' is still
at a stage of evolution. The principle is at the root
of the rule of law and requires regularity,
predictability and certainty in the Government's
dealings with the public. The procedural part of it
relates to a representation that a hearing or other
appropriate procedure will be afforded before the
decision is made. ...
However, the more important aspect is whether the
decision-maker can sustain the change in policy by
resort to Wednesbury principles of rationality or
whether the court can go into the question whether
the decision-maker has properly balanced the
legitimate expectation as against the need for a
change. ... In sum, this means that the judgment
whether public interest overrides the substantive
legitimate expectation of individuals will be for the
decision-maker who has made the change in the
policy. The choice of the policy is for the decision-
maker and not for the court. The legitimate
substantive expectation merely permits the court to
find out if the change in policy which is the cause for
defeating the legitimate expectation is irrational or
perverse or one which no reasonable person could
have made."
19. Recently, a Constitution Bench of this Court
in Secy., State of Karnataka v. Umadevi (3)4 referred
to the circumstances in which the doctrine of
legitimate expectation can be invoked, thus: (SCC pp.
38-39, para 46)
"The doctrine can be invoked if the decisions of the
administrative authority affect the person by
depriving him of some benefit or advantage which
either (i) he had in the past been permitted by the
decision-maker to enjoy and which he can
legitimately expect to be permitted to continue to do
until there have been communicated to him some
rational grounds for withdrawing it on which he has
been given an opportunity to comment; or (ii) he has
received assurance from the decision-maker that
they will not be withdrawn without giving him first
an opportunity of advancing reasons for contending
that they should not be withdrawn."
20. Another Constitution Bench, referring to the
doctrine, observed thus in Confederation of Ex-
Servicemen Assns. v. Union of India5: (SCC pp. 416-
17, paras 33 & 35)
"33. ... No doubt, the doctrine has an important
place in the development of administrative law and
particularly law relating to 'judicial review'. Under
the said doctrine, a person may have reasonable or
legitimate expectation of being treated in a certain
way by an administrative authority even though he
has no right in law to receive the benefit. In such a
situation, if a decision is taken by an administrative
authority adversely affecting his interests, he may
have justifiable grievance in the light of the fact of
continuous receipt of the benefit, legitimate
expectation to receive the benefit or privilege
which he has enjoyed all throughout. Such
expectation may arise either from the express
promise or from consistent practice which the
applicant may reasonably expect to continue.
***
35. In such cases, therefore, the Court may not
insist an administrative authority to act judicially
but may still insist it to act fairly. The doctrine is
based on the principle that good administration
demands observance of reasonableness and where
it has adopted a particular practice for a long time
even in the absence of a provision of law, it should
adhere to such practice without depriving its
citizens of the benefit enjoyed or privilege
exercised."
17. By way alternative relief the petitioner has agreed
for allotment of the plot no.T1 or T2 and as per note sheet
at page No.122, the IDA had resolved that if at the time of
handing over the possession the any plot any excess land
is found than allottee shall be charged as per the current
Collector's guideline for extra area and after giving the
consent by the allottee, the possession be handed over to
him. It was further resolved that the allottees of plot
measuring 18 x 12 mtrs in Sector E can be allotted a plot
measuring 9 x 20 (Approx.) in Sector E itself, therefore, it
is clear that as per the convenience the Board is passing
the resolutions for changing of plot in the same Sector as
well as in a different Sector for a different size etc, but
now in case of handing over the plot to the petitioner
either in Sector E or in Sector F, the respondents are
raising all technical objections. The Board is
competent to pass the resolution for allotment of a plot
and handing over a possession to the allottee. The
petitioner is allottee of 1993 her allotments have not be
cancelled so far. She has paid all the premium amount to
the IDA way back in time and till today respondents have
not offered to return the premium amount , therefore, she
is entitled for possession of the plot either in Sector E or
Sector F. Since the respondents are not ready to handover
the plot to them in Sector E though the same are available
and have been put to sell by way of auction as free hold in
order to fetch higher amount. Then petitioner is certainly
entitled for relief of allotment of her choice for Plot No.
T1 or T2. There is no loss of revenue to the respondents as
she is ready to pay the difference amount for the extra area
of plot as per the current Collector's guideline. Therefore,
the petition is allowed in part.
18. The respondents have option either to handover
one plot from the available 13 plots in Sector E which are
under auction in the impugned NIT or allot the plot No.
T1 or T2 as held above. The respondents are permitted to
proceed for the auction process as per the impugned
advertisement after resolving the dispute of the present
petitioner as held above. The petition is partly allowed."
(emphasis
supplied)
6] Counsel appearing for the appellants Ms. Mini Ravindran
has submitted that the impugned order is liable to be set aside as
the learned Judge of the writ Court has erred in directing the
respondents to allot those plots to the petitioners, which were
never allotted to them as the auction of the vacant plots has to be
conducted strictly under the provisions of Madhya Pradesh Vikas
Pradhikarano Ki Sampatiyon Ka Prabandhan Tatha Vyayan Niyam,
2013 (hereinafter referred to as 'the Niyam, 2013'). Counsel has
also submitted that the writ Court did not consider this aspect of
the matter that the petitioners were given ample opportunity to take
possession of the plots, however, they chose not to opt for the
proposal despite the fact that all the other allottees, who were also
given the same option have already been given the plots and now
the petitioners have come before the Court that they were not
allotted the plots despite taking full premium by the respondents.
Counsel has also drawn the attention of this court to the detail
reply filed by the IDA and thus, it is submitted that the impugned
order be set aside.
7] Shri Sunil Jain, Senior counsel appearing for respondent in
W.A. No.1178 of 2019 and Shri Ajay Bagadiya, Senior counsel
appearing for respondent in W.A. No.1179 of 2019 have
vehemently opposed the prayer and it is submitted that no illegality
has been committed by the learned writ Court in directing the
respondents to allot the plots to the petitioners, especially when the
respondents already have the vacant plots available with them, but
only with a view to deprive the petitioners of their rights to claim
their plots, the advertisement has been issued by the respondents to
sell the vacant plots through auction. Thus, it is submitted that the
appeals being devoid of merits, are liable to be dismissed.
8] Heard counsel for the parties and perused the record.
9] So far as the chronology of the case is concerned, it is
necessary to mention the same as the case has a checkered history
dating back to around 3 decades (more than 28 years), as on
27.07.1994, the appellant Indore Development Authority issued an
advertisement No.79/94 for allotment of residential plots in
Scheme No.94, Sector - E. On 12.09.1994, in furtherance to the
advertisement issued by IDA the petitioner submitted his
application form and in pursuant thereto, the petitioner was allotted
Plot No.121-EA(adm.216 sq. mt.) in Scheme No.94, Sector -E [In
W.A. No.1179 of 2019, the appellant/petitioner Smt. Rashmi Soni,
was also allotted Plot No.416/EB (ad-measuring 135 sq. mt.)]. In
September 1997 the petitioner deposited 50% of the premium
amount at the time of allotment and the remaining amount was
deposited by the petitioner in 12 quarterly installments. After
making complete payment of the premium amount the petitioner
was eligible to receive the possession of the allotted plot but the
possession of the said plot was not handed over to him by IDA on
the ground that the matters between IDA & original land owners
with regard to the lands situated in Scheme No.94 are pending
adjudication before the this High Court, Bench at Indore.
10] On 14.08.2002, in the absence of available plots in Sector -E
the Board of the IDA resolved to allot plots by lottery system in
Sector - F, to the allottees who had already deposited the complete
premium amount. On 30.08.2002, the IDA issued a letter to the
petitioner seeking his consent for allotting him plot in Sector- F.
The petitioner was asked to submit his consent by 20.09.2002.
According to the petitioner, the said letter issued by IDA was never
served on the Petitioner and on 24.12.2014, the petitioner
requested the IDA to allot him any other residential plot in Scheme
no. 94. On 05.03.2015 the IDA in reply to the aforesaid letter
issued by the petitioner, stated that no plot of 216 sq.mt. is
available with IDA in Scheme no. 94.
11] On 20.06.2016 the petitioner once again requested the IDA
for allotment of alternate plot in Scheme no. 94. According to the
petitioner, the IDA never informed the petitioner, that vide their
earlier letter dated 03.06.2002, the IDA had already offered for
allotment of plot in Sector-F of the said Scheme.
12] On 02.07.2018, the IDA vide its impugned advertisement
no.142 published in daily newspaper sought the sale of 13 free
hold plots in Sector-E of Scheme no. 94 (same sector in which the
petitioner was initially allotted plot in the year 1994). On
10.07.2018, after the publication of the impugned advertisement,
the petitioner sent a letter to the IDA and asked to allot plot
no.327-EB (scheme no.94) from the list of 13 plots published in
the said advertisement. On 12.07.2018, being aggrieved by the
impugned advertisement issued by the IDA on 02.07.2018 and for
not receiving the allotted plot from IDA, a writ petition was
preferred by the respondent being registered as W.P. No.15646/18.
On 04.06.2019, Board of IDA passed a Resolution no.36 and
decided to refund the amount deposited by the allottees who have
not received the plots in the said Scheme. Whereas, on 20.12.2019,
this Court, allowed the writ petition preferred by the petitioner.
Hence this writ appeal.
13] A perusal of the impugned order dated 20.12.2019 reveals
that it is primarily based on the doctrine of legitimate expectations.
In the considered opinion of this court, the doctrine of legitimate
expectations would not have any application in the present case.
The learned Judge of the writ Court has held that as the allotment
in favour of the petitioner has been done in the year 1994,
therefore, the provisions of Niyam, 2013 would not apply in case
of inter change of the plot between one sector to another sector
and, hence, the doctrine of legitimate expectation would be
applicable in the case for taking possession of plot from the
respondents IDA.
14] So far as the doctrine of legitimate expectation is
concerned, reference may be had to a recent decision of the
Supreme Court in the case of Indian Ex-Servicemen Movement
v. Union of India, (2022) 7 SCC 323 , the relevant para of the
same reads as under:-
35. While the petitioners have not adverted to the
doctrine of legitimate expectations, they have implicitly
relied on this principle. The doctrine of legitimate
expectations can be invoked if a representation made by a
public body leads an individual to believe that they would be
a recipient of a substantive benefit. A part of the petitioners'
grievance stems from the belief that an assurance made by
State functionaries, the Ministers of the Union Government,
did not translate into a conscious policy decision, which is
embodied in the communication dated 7-11-2015.
(emphasis
supplied)
15] In the case of State of T.N. v. Seshachalam, (2007) 10 SCC
137 it has been held as under:-:-
"16. Some of the respondents might have filed
representations but filing of representations alone would not
save the period of limitation. Delay or laches is a relevant
factor for a court of law to determine the question as to
whether the claim made by an applicant deserves
consideration. Delay and/or laches on the part of a
government servant may deprive him of the benefit which
had been given to others. Article 14 of the Constitution of
India would not, in a situation of that nature, be attracted as
it is well known that law leans in favour of those who are
alert and vigilant. Opinion of the High Court that GOMs No.
126 dated 29-5-1998 gave a fresh lease of life having regard
to the legitimate expectation, in our opinion, is based on a
wrong premise. Legitimate expectation is a part of the
principles of natural justice. No fresh right can be created by
invoking the doctrine of legitimate expectation. By reason
thereof only the existing right is saved subject, of course, to
the provisions of the statute. (See State of H.P. v. Kailash
Chand Mahajan.)"
(emphasis supplied)
16] Further, in the case of Union of India v. N. Murugesan,
(2022) 2 SCC 25, the Supreme Court has also reflected upon the
consequences of delay, latches and acquiescence in the following
manner:-
"21. The word "laches" is derived from the French language
meaning "remissness and slackness". It thus involves
unreasonable delay or negligence in pursuing a claim
involving an equitable relief while causing prejudice to the
other party. It is neglect on the part of a party to do an act
which law requires while asserting a right, and therefore,
must stand in the way of the party getting relief or remedy.
22. Two essential factors to be seen are the length of the
delay and the nature of acts done during the interval. As
stated, it would also involve acquiescence on the part of the
party approaching the court apart from the change in position
in the interregnum. Therefore, it would be unjustifiable for a
Court of Equity to confer a remedy on a party who knocks its
doors when his acts would indicate a waiver of such a right.
By his conduct, he has put the other party in a particular
position, and therefore, it would be unreasonable to facilitate
a challenge before the court. Thus, a man responsible for his
conduct on equity is not expected to be allowed to avail a
remedy.
23. A defence of laches can only be allowed when there is no
statutory bar. The question as to whether there exists a clear
case of laches on the part of a person seeking a remedy is
one of fact and so also that of prejudice. The said principle
may not have any application when the existence of fraud is
pleaded and proved by the other side. To determine the
difference between the concept of laches and acquiescence is
that, in a case involving mere laches, the principle of
estoppel would apply to all the defences that are available to
a party. Therefore, a defendant can succeed on the various
grounds raised by the plaintiff, while an issue concerned
alone would be amenable to acquiescence.
Acquiescence
24. We have already discussed the relationship between
acquiescence on the one hand and delay and laches on the
other.
25. Acquiescence would mean a tacit or passive
acceptance. It is implied and reluctant consent to an act. In
other words, such an action would qualify a passive assent.
Thus, when acquiescence takes place, it presupposes
knowledge against a particular act. From the knowledge
comes passive acceptance, therefore instead of taking any
action against any alleged refusal to perform the original
contract, despite adequate knowledge of its terms, and
instead being allowed to continue by consciously ignoring it
and thereafter proceeding further, acquiescence does take
place. As a consequence, it reintroduces a new implied
agreement between the parties. Once such a situation arises,
it is not open to the party that acquiesced itself to insist upon
the compliance of the original terms. Hence, what is
essential, is the conduct of the parties. We only dealt with the
distinction involving a mere acquiescence. When
acquiescence is followed by delay, it may become laches.
Here again, we are inclined to hold that the concept of
acquiescence is to be seen on a case-to-case basis."
(emphasis supplied)
17] In view of the aforesaid dictum of the Supreme Court, in the
considered opinion of this Court, the principles of legitimate
expectation would not be applicable in the facts and circumstances
of the case as there are many factual and legal aspects attached to
the petition and the same cannot be decided on the anvil of
principles of legitimate expectation only. It is no doubt true that the
allotment of the plot in question was indeed made in the year 1994,
but it is to be seen that the aforesaid allotment was conferred only
the lease hold rights to the petitioner and not the free hold rights as
in the case of the plots which are to be sold through impugned
advertisement dated 02.07.2018. On the other hand, the subsequent
disposal of plots in sector - E of scheme No.94 was required to be
conducted strictly under the Vyayan Niyam, 2013 and as per rule 5
of the same, the disposal can only be done by inviting bids in
sealed cover or by drawing of lottery at predetermined price and in
the present case as the IDA has decided to dispose of the property
by inviting bids, it being a policy matter, cannot be interfered and
faulted with.
18] It is also found that a Committee was also formed by IDA to
look into the difficulties in various sectors of the scheme No.94
and vide its resolution No.407 dated 22.10.2001 the Committee
found that the development of plots in Sector - E cannot be
completed, hence, the Board of IDA vide resolution No.204 dated
14.08.2002 resolved that in respect of the various plots of Sector -
E of Scheme No.94 the allottees, who have deposited the entire
amount and were affected due to the dispute pending before the
Court may be allotted plots in Sector - F of Scheme No.94, and the
said allotment process should be effected by way of draw of lottery
and in compliance of the resolution dated 14.08.2002, notices were
also issued to all the affected allottees to give their consent to
participate in the lottery and as many as 29 allottees participated in
the first lottery, who have already been allotted plots in Sector - F.
The respondents stand is that vide notice dated 30.08.2002, the
petitioner was also informed that he will be given another plot in
sector - F and for this purpose he has to submit his consent for
other plot by 20.09.2002, as the lottery was to be held on
27.09.2002 but no such consent was given by the petitioner as he
was not ready to accept the allotment of plot in sector - F of
Scheme No.94. The respondnts have also placed on record the
dispatched register Annexure R/15 to demonstrate that the notice
was sent to the petitioner. However, it was only after around 12
years that again the petitioner vide letter dated 24.12.2014, made a
request that he be allotted plot in the same scheme or in any other
scheme in lieu of its plot ad-measuring 216 square meter. In reply
to which the IDA vide its letter dated 05.03.2015 also informed
that there was no plot available in scheme No.94 having 216
square meter dimension. It is apparent that the petitioner was given
many opportunities to participate in the lottery for allotment of plot
in sector - F in lieu of the plot already allotted to her in section -
E, but as he/she did not participate in the same, he/she cannot be
allowed to plead the principles of legitimate expectations would be
applicable in his case after more than 24 years of the original
allotment. As per the respondents pleadings, vide resolution dated
14.08.2002 a majority of plot holders who are 86 in number, have
already been allotted plots in sector - F and if the petitioner is now
allowed to claim bigger plot after spending 24 years in slumber, it
would be sheer injustice to those 86 plot holders who had opted to
get fresh allotment in sector - F. The petitioner never approached
this Court on the ground of legitimate expectation, and even
otherwise this Court does not find any malafide intentions on the
part of the IDA in refusing to allot the plot to the petitioner in
sector - E itself.
19] It is also found that the petitioner's plot was ad-measuring
216 square meter, whereas the plots in question are nearly 300 or
more than 300 square meter, which is also a discrepancy, the
benefit of which cannot be given to the petitioner after 24 years,
which would also amount to discrimination so far as the other 86
plot holders, who have given their consent to take plots in sector -
F.
20] So far as the parity claimed by the petitioner with Sadhana
Choukaliya and M.L. Malhotra is concerned, the respondents in
their additional reply has admitted that the allotment of plots to the
said person in the sector - E itself was erroneous and was done by
over looking the resolution dated 14.08.2002 as the allotment was
made to them in the year 2013 and 2011 respectively and thus, the
respondents' contention that the aforesaid erroneous allotment of
plots to the said persons cannot be treated as a precedent and a
negative parity cannot be claimed, appears reasonable.
21] In view of the aforesaid discussion, this Court is of the
considered opinion that the relief granted to the
respondent/petitioner by the writ Court cannot be sustained in the
eyes of law and is of the considered opinion that the disposal of 13
plots (wrongly mentioned as 16 plots in the impugned order) in
sector - E, and plots T1 & T2 in sector F, can only be done by
following the procedure as provided under Rule 5 and 6 of the
Vyayan Niyam, 2013. Accordingy, the impugned order dated
20.12.2018 is herey set aside. However, considering the fact that
since the respondents have also brought on record the order dated
12.04.2021 that the plots in question have already been transferred
to Metro project, therefore, no further order is required to be made
in respect of the impugned advertisement.
22] With the aforesaid observation, the appeals stand allowed
and disposed of.
(Subodh Abhyankar) (Satyendra Kumar Singh)
Judge Judge
Pankaj
Digitally signed by PANKAJ
PANDEY
Date: 2022.11.05 17:01:03 +05'30'
