Madhya Pradesh High Court
Vishandas Katariya S/O Govindram ... vs Indore Development Authority Through ... on 4 March, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
R.P. No.388/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 4th OF MARCH 2024
REVIEW PETITION No. 388 of 2023
BETWEEN:-
VISHANDAS KATARIYA S/O
GOVINDRAM KATARIYA,
OCCUPATION: BUSINESS, ADDRESS
PLOT NO. 13, SCHEME NO.47,
THROUGH HIS POWER OF
ATTORNEY HOLDER PRADEEP S/O
SUNDERALAL JAIN, OCCUPATION -
BUSINESS, R/O 301 BANSIWALA
TOWER, SCHEME NO. 47 DISTRICT
INDORE (MADHYA PRADESH)
.....PETITIONER
(SHRI AMIT S. AGRAWAL, LEARNED
SENIOR COUNSEL WITH SHRI SAVIL
PARASHAR, LEARNED COUNSEL FOR
THE PETITIONER)
R.P. No.388/2023
AND
INDORE DEVELOPMENT
AUTHORITY THROUGH CHIEF
EXECUTIVE OFFICER,
1.
PRADHIKARI BHAWAN, 07 RACE
COURSE ROAD, DISTRICT INDORE
(MADHYA PRADESH)
ESTATE OFFICER, INDORE
DEVELOPMENT AUTHORITY, 7,
2.
RACE COURSE ROAD, INDORE
(MADHYA PRADESH)
COMPETENT AUTHORITY / S.D.O.
M.P. LOK PARISAR BEDKHALI
(JUNI INDORE) PRASHASANIK
3.
SANKUL, COLLECTORATE, MOTI
TABELA, INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(MS. MINI RAVINDRAN, LEARNED
COUNSEL FOR THE RESPONDENT [R-
2].
----------------------------------------------------------------------------------------------------
Reserved on : 24.11.2023
Pronounced on : 04.03-2024
..................................................................................................................
This Review Petition having been heard and reserved for orders,
coming on for pronouncement this day, Shri Justice Sushrut Arvind
Dharmadhikari passed the following :
R.P. No.388/2023
ORDER
This review petition under Section 114 read with Order 47 Rule
1 of the Code of Civil Procedure has been filed challenging the order
dated 13.03.2023, passed in W.P. No.6833/2021 whereby, the writ
petition was dismissed at the admission stage.
2. Brief facts of the case are that vide order dated 10.07.2014,
passed by the respondents No.1 and 2, the lease deed executed for
residential plot No.13 situated at Scheme No.47, admeasuring 12065
sq. ft. has been cancelled on the ground that the petitioner has violated
certain terms and conditions of the lase deed by constructing
commercial building on the residential plot. Therefore, the eviction
proceedings were initiated and that the Rules known as "Madhya
Pradesh Vikas Pradhikarno Ki Sampattiyon Ka Prabhandan Tatha
Vyayan Niyam, 2018( hereinafter referred to as ...."Rules of 2018"), the
petitioner is entitled to mitigate the dispute by applying for
compounding for which provision was not available earlier.
3. Learned Senior Counsel for the review petitioner submitted that
an error apparent on the face of the record has crept in the order dated
13.03.2023 holding that the said rules will have no applicability
retrospectively on the ground that the lease deed was cancelled in the
year 2014 and by no stretch of imagination the Rules of 2018 would be
applicable in the case of the petitioner. No termination order was
challenged. The prayer for deciding the representation was also rejected
on the ground that the Rules of 2018 shall have prospective
applicability. He further submitted that the respondents have concelaed
the material fact Rule 22 of Rules of 2018 was amended w.e.f .
09.04.2021 which was not brought to the attention of this Court,
therefore, the Court came to the conclusion that the Rules of 2018
would not have applicability retrospectively. Therefore, the order
needs to be recalled in the interest of justice.
4. Per Contra, learned counsel for the respondent submitted that
none of the grounds under Order 47 Rule 1 of CPC is available to
renew/review the order. Further, the scope of review cannot be enlarged
to such an extent taking the review to be an appeal. The jurisdiction of
review can be exercised for correction of a mistake and not to
substitute a view / reasoning so taken in the order/judgment sought to
be reviewed. Mere possibility of two different views cannot be a
ground for review. On these grounds, the review petition cannot be
entertained so as to re-appreciate or re-hear the entire issue which was
the subject-matter of the original writ petition.
6. The chart showing the statutory provisions occupying the field in
respect of Un-amended and amended Rule 22 Clause (xi) which
contemplates that the proceeding for revocation of cancellation of lease
for reviving the lease can be done in cases where lease was cancelled
"before" coming into effect of amended Rules i.e. 09/04/2021
provided the lease, the petitioner in this case, makes an application for
revocation of cancellation of lease for its revival "within 180 days"
from the date of amendment i.e. 09/04/2021. The Amended and Un-
amended provisions are reproduced below :-
UN-AMENDED AMENDED w.e.f. 09/04/2021
22. Cancellation of lease and
right of re-entry:-
(1) If the lease holder violates
the terms of the lease deed, then
the following process will be
adopted by the Authority. for
cancellation. of the lease:-
(i)The Estate Officer on the
violation of the terms of the
lease deed shall issue a letter to
the lease holder by registered
post or email. The Estate Officer
shall state the terms of the lease
violated by the lessee and shall
grant one month time to the
lessee to comply with the terms
of the lease. In case the lessee is
not found the notice shall be
affixed at the visible place of the
property and a panchnama hall
be prepared for the same.
(ii) If the violation continues
after the expiry of the aforesaid
period then the Estate Officer
will call upon the lease holder
by issuing a notice, to remain
present in the office of the
Authority along with the reply
in his support.
(iii) If the reply submitted by the
lessee is found to be reasonable
then the Estate Officer can
further grant a period of one
month time to the lessee to
comply / adhere with the terms
of the lease.
(iv) On not finding the
explanation / reason submitted
by the lessee reasonable or if the
violation continues even after
the expiry of the maximum
period granted then the Estate
Officer shall move a proposal
for cancelling the lease deed to
CEO for orders.
(v) After receiving the approval
from the Board of the Authority
the CEO will inform the lease
holder about the cancellation
order of lease deed by registered
post / email. If the lessee is not
found then in that situation the
notice will be affixed at the
visible place of the property and
a pancharna will be prepared of
the same.
(vi) After cancelling the lease
deed the Authority will have the
right to tore-enter into the
property. After cancellation of
lease deed, in case of (vii) if the lease holder submits an
unauthorized possession of the application in writing after the
property action will be taken cancellation order of lease deed but
under the provision of Section before re-entry, for mitigation of
248 of the M.P Land Revenue lease terms, then by taking actions
Code, 1959. as mentioned herein below the
process of cancellation and re-
(vii) If the lease holder submits entry can be stayed: however, the
an application in writing during process of mitigation will not be
the process of cancellation of possible er the re-entry in the
lease deed for mitigation of property.
lease terms then by taking
actions as mentioned herein (a) Estate Officer shall prepare a list
below the process of of violation / non-compliance of all
cancellation and re-entry can the terms and conditions.
be stayed / cancelled but the
(b) Will assess the valuation of the
Process of mitigation will not be
property for the Current year
possible after the re-entry in the according to the Rule 6(vii);
property.
(c) if the property is being used
(a) Estate Officer will prepare a completely or partly contrary to the
list of violation / non-adherence usage mentioned in the lease deed
of all the terms and conditions. then based on the area of all the
different land usage, the Estate
(b) Will assess the valuation of
Officer will assess the valuation of
the property for the Current year
the land use for the current year in
according to the Rule 6(viii).
accordance with sub-rule (viii) of
(c) if the property is being used Rule 6;
completely or partly contrary to
(d) The Estate Officer after
the usage mentioned in the lease
consideration, for mitigation of the
deed then based on the area of
terms will assess the mitigation
all the different land usage, the
amount as per the prescribed
Estate Officer will assess the
schedule and will forward the matter
valuation of the land use for the
to the CEO for order."
current year in accordance with
sub-rule (viii) of Rule 6. (viii) The CEO shall either pass the
order to direct the lease holder to
(d) The Estate Officer after
deposit the mitigation amount and
consideration, for mitigation of
shall inform about the relinquishing
the terms will assess the
right of the Authority to re-enter or
mitigation amount as per the
shall reject the application and
prescribed schedule and will
inform the lease holder about the
forward the matter to the CEO
date on which the development
for order.
authority will re-enter at the
(viii) The CEO shall either pass premises.
the order to direct the lease
(ix) Estate Officer will inform the
holder to deposit the mitigation
lease holder in seven days about the
amount and will inform about
date on which during the office
the relinquishing right of the
hours the Authority will renter at the
Authority to re-enter or will pass
leased property.
the cancellation order and will
inform the lease holder about (x) The lease holder shall handover
the date on which the the peaceful Possession of the leased
Development Authority will re- property. Otherwise the Authority
enter at the premises. shall dispossess the lease holder
from the leased property by force
(ix) Estate Officer will inform
and shall prepare a Panchahama
the lease holder in seven days
about the taking over of possession.
about the date on which during
the office hours the Authority (xi) revocation of cancellation order
will renter at the leased for reviving the lease may be done
property. in such cases where cancellation
order has been passed by competent
(x) The lease holder shall
authority:
handover the peaceful
Possession of the leased (a) If the lessee is willing to fulfill
property. Otherwise the the condition, the violations of
Authority shall dispossess the which led to the issuance of
lease holder from the leased cancellation order;
property by force and will
(b) if the lessee deposits the entire
prepare a Panchahama about the
outstanding balance amount, as per
taking over of possession.
the schedule along with the interest
(2) The lease holder aggrieved and penal interest (at the rate of
by an order passed under this 10%);
rule, within 30 days of the date
(c) this provision will be applicable
of commutation of the order to
in only such cases where the process
him, may file an appeal to the
of re-entry has not been executed;
Director, Town & Country
Planning. The Director after Explanation :- re-entry means
giving a reasonable opportunity taking possession of the property
to the appellant and the CEO to following due process of law by the
be heard, by order dismiss the CEO;
appeal or allow the appeal by
cancelling the order passed by (d) if the lessee files an application
the CEO. The order of the for revocation of cancellation order
within 30 days, the CEO shall pass
appellate authority shall be final. an appropriate order within 90 days
of receiving the application.
The CEO shall consider such
applications from the lessees
against whom cancellation orders
were passed before coming into
effect of these rules, within 180 days
from the date of amendment. The
CEO shall give wide publicity to
disseminate this information"
7. In the case of M/s Northern India Caterers(India) Ltd. Vs.
L.T. Governor of Delhi reported in [(1980) 2 SCC 167] a question
arose as to whether on the facts of the present case, a review is
justified. The Hon'ble Supreme Court held as under :-
"It is well settled that a party is not entitled to seek a
review of a the judgment delivered by this Court
merely for the purpose of a rehearing and afresh
decision of the case. The normal principle is that a
judgment pronounced by the Court is final, and
departure from that principle is justified only when
circumstances of a substantial and compelling
character makes it necessary to do so. For instance, if
the attention of the Court is not drawn to a material
statutory provision during the original hearing, the
Court will review its judgment. The Court may also
reopen its judgment if a manifest wrong has been
done and it is necessary to pass an order to do full
and effective justice"
8. In view of the aforesaid pronunciation by the Apex Court as well
as looking to the fact that the amended Act was not brought to the
notice of this Court, therefore, this Court is of the view that a manifest
wrong has been done and, therefore, it would be necessary to review
the order by recalling and re-hearing in the light of amended
provisions, in order to do full and effective justice.
9. Accordingly, the order impugned dated 13.03.2023 passed in
W.P. No.6833/2021 is hereby recalled and set aside.
10. Office is directed to list the W.P. No.6833/2021 for re-hearing
before the appropriate Bench in the week commencing 18.03.2024.
With the aforesaid, the review petition stands disposed of.
(S.A. DHARMADHIKARI ) ( PRAKASH CHANDRA GUPTA )
JUDGE JUDGE
pn
Date: 2024.03.04 16:53:34 +05'30'
