Madhya Pradesh High Court
Pradeep Hinduja vs The State Of Madhya Pradesh on 30 May, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
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 GAJENDRA SINGH
ON THE 30TH OF MAY, 2024
WRIT PETITION No. 31209 of 2023
BETWEEN:-
PRADEEP HINDUJA S/O SHRI
TIKAMDAS HINDUJA, AGED ABOUT 60
YEARS, OCCUPATION: SELF
EMPLOYED AND SOCIAL WORKER R/O
207 VICTORIA URBAN 12 PARK ROAD
VALLABH NAGAR INDORE (MADHYA
PRADESH)
.....PETITIONER
(SHRI R.S.CHHABRA, SENIOR ADVOCATE ASSISTED BY SHRI MUDIT
MAHESHWARI, COUNSEL FOR THE PETITIONER.
AND
THE STATE OF MADHYA PRADESH,
THROUGH PRINCIPAL SECRETARY,
DEPARTMENT OF URBAN
1. DEVELOPMENT HOUSING,
VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
DIRECTOR, TOWN AND COUNTRY
PLANNING DEPARTMENT,
2. PARYAVAS BHAWN, PARYAVARAN
PARISAR, E-5, ARERA COLONY,
BHOPAL (MADHYA PRADESH)
JOINT DIRECTOR TOWN &
COUNTRY PLANNING
3.
DEPARTMENT, SHOPPING
COMPLEX, A.B. ROAD, INDORE
(MADHYA PRADESH)
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 30-05-
2024 17:36:38
2
COLLECTOR INDORE
COLLECTORATE OFFICE, MOTI
4.
TABELA, INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI ANIKET NAIK, DEPUTY ADVOCATE GENERAL FOR THE
RESOPNDENTS/STATE).
-------------------------------------------------------------------------------------------------
Reserved on : 25.04.2024
Pronounced on : 30.05.2024
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This petition having been heard on admission and reserved for order,
coming on for pronouncement this day, Hon'ble Shri Justice Sushrut
Arvind Dharmadhikari passed the following:
ORDER
This petition under Article 226 of the Constitution of India has
been filed by the petitioner in the nature of a Public Interest Litigation
being aggrieved by the development permissions granted by respondents
No.3 in blatant violation of provisions of the M.P.Nagar Tatha Gram Nivesh
Adhiniyam, 1973 (hereinafter referred to as the Adhiniyam 1973). The
following reliefs have been prayed :
(i) Direct respondent No.3 to disclose all the permissions
granted in relation to 79 village from 01.10.2021.
(ii) Direction respondent No.3 to disclose all the permissions
granted in relation to 79 village from 12.03.2021.
(iii) Quash all colony development permissions issued by
respondent No.4 in violation of Section 13 of the
Adhiniyam, 1973.
(iv) Quash all development permissions granted by respondent
no.3 in relation to 79 villages which are contrary to Section
16 of the Adhiniyam 1973 and Rule 14(5) of the Bhumi
Vikas Niyam 2012.
(v) Direction respondent No.2 to ensure that the statutory
provisions are complied with strictly.
(vi) Any other relief which this Court may deem fit be granted
to the petitioner.
(vii) Costs of this petition be awarded.
2. The petitioner is a law abiding citizen of the country and is a
permanent resident of city of Indore. He is self employed individual with
public spirited orientation, concerned with proper planning and
development of Indore and other cities of Madhya Pradesh. Previously, the
petitioner had filed several Public Interest Litigation raising various issues
of public interest like proliferation of multiplex construction and marriage
gardens over lands irrespective of land use, non-adherence to the statutory
requirement while granting development permission in view of norms of
residential density, non-adherence to the minimum community open space
in violation of the rules of Bhumi Vikas Niyam, etc. The aforesaid acts of
the petitioner is demonstrative of the fact that he is a keen observer of urban
development and intends to be an active participant in the development
process by seeking proper enforcement of provisions of law. In the instant
petition, he has no personal interest and is filed in the interest of residents
of Indore City as the issue raised in the petition is directly involved with
the day to day problems of the residents.
3. By way of present petition, petitioner is seeking adherence to
the statutory provisions contained in the Adhiniyam 1973. The State
Government published Gazette Notification dated 12.03.2021 whereby 78
villages were included in the Planning Area of Indore in terms of Section
13(2) of the Adhiniyam 1973. All the powers in respect of grant of
development permission stood transferred in favour of respondent No.2 by
virtue of Section 13(3) of the Adhiniyam 1973.
4. The respondent No.3 vide Gazette Notification dated
01.10.2021 published notification under Section 5(1) of the Adhiniyam
1973 dated 27.09.2021 in respect of the Existing Land Use Map of the 79
villages. After hearing objections and suggestions, respondent No. 3
adopted the Existing Land Use Map vide notification dated 23.12.2021. On
publication of notification, the Existing Land Use of 79 villages stood
frozen by virtue of Section 16 till publication of development plan in
gazette in terms of Section 19(5) of the Adhiniyam 1973. During the
intervening period, the change of land use could only be done with the
written permission of respondent No.2. The respondent No.1 in exercise of
its power under Section 73 of the Adhiniyam 1973 issued order dated
13.06.2022 specifying the conditions on which respondent no.2 could issue
development permission after taking into consideration the opinion of the
Committee constituted under the Rules 15(5) of the M.P.Town and Country
Planning Rules 2012.
5. Shri Chhabra, learned Senior Counsel for the petitioner
contended that despite the aforesaid, respondent No. 4 through Colony Cell
Department granted permission for colonies namely The Grand Virasat-A,
The Grand Virasat-B and Singapore British Pearl after seeking opinion of
respondent no.3 in violation of Section 13(3) of the Adhiniyam 1973 and
Rule 10 of the MP Gram Panchayat (Colony Development) Rules 2014
(hereinafter referred to as Rules 2014). The respondent No.3, by usurping
the jurisdiction of respondent No.2, is continuously granting development
permission in gross violation of Section 16 of the Adhiniyam 1973 and
order dated 13.06.2022. Respondent No. 3 has changed the land use of
lands forming part of 79 villages thereby changing the land use of
agriculture to residential or commercial to other activities without obtaining
prior permission of respondent No.2.
6. Learned Senior Counsel for the petitioner further contended
that the scheme of granting permission is divided into two different
categories after publication of Planning Area which are as under :
Category I - From the date of constitution of Planning Area
under Section 13 till the Publication of Existing Land Use Map
under Section 15(1): Under Rule 10 of the M.P.Gram Panchayat
(Development of Colonies) Rules 2014, prior to publication of
notification under Section 13 an opinion was required to be sought
from the T&CP. However, after publication of notification under
Section 13, all powers vest unto Director, Town & Country
Planning and State Government. The parameters of consideration
for granting opinion and granting permission are different. At the
time of granting opinion, the land for which permission is sought is
not a part of planning area. Whereas, while grating permission, the
land for which permission is sought is a part of planning area and
the provisions of the existing master plan in addition of Bhumi
Vikas Niyam are also required to be considered.
Category II - After publication of the Existing Land Use Map
u/s 15(1) till the Adoption of Master Plan: Once the notification
of Existing Land Use Map of Planning Area notified under Section
13(1) is published under Section 15(1), by virtue of Section 16(1)
the land use of the areas notified stands frozen. The Director has
the exclusive power under Section 16 to grant permission.
Permissions of Director is also required to be sought for changing
the land use of the areas for which existing land use map has been
published. The power under Section 16 of the Adhiniyam 1973 has
not been delegated.
7. Section 13(3) of the Adhiniyam 1973 reads as under :
''13. Planning area - (1) The State Government may, by notification,
constitute planning areas for the purposes of this Act and define the
limits thereof.
(2) The State Government may, by notification,-
(a) alter the limits of the planning area so as to include therein or
exclude therefrom such area as may be specified in the
notification;
(b) amalgamate two or more planning areas so as to constitute
one planning area;
(c) divide any planning area into two or more planning areas;
(d) declare that the whole or part of the area constituting the
planning area shall cease to be a planning area or part thereof.
[(3) Notwithstanding anything contained in the Madhya Pradesh
Municipal Corporation Act, 1956 (No. 23 of 1956), the Madhya
Pradesh Municipalities Act, 1961 (No. 37 of 1961) or the Madhya
Pradesh Panchayat Raj Adhiniyam, 1993 (No. 1 of 1994), the Municipal
Corporation, Municipal Council or the Nagar Panchayat or a
Panchayat, as the case may be, shall, in relation to the planning areas,
from the date of the notification issued under sub-section (1), cease to
exercise the powers, perform the functions and discharge the duties
which the State Government or the Director is competent to exercise,
perform and discharge under this Act.''
8. Section 16 of the Adhiniyam 1973 reads as under :
''16. Freezing of land use. (1) On the publication of the existing land use
map under Section 15,-
(a) no person shall institute or change the use of any land or carry
out any development of land for any purpose other than that
indicated in the existing land use map without the permission in
writing of the Director :
Provided that the Director shall not refuse permission if the
change is for the purpose of agriculture;
(b) no local authority or any officer or other authority shall,
notwithstanding anything contained in any other law for the time
being in force, grant permission for the change in use of land
otherwise than as indicated in the existing land use map without
the permission in writing of the Director.''
9. Rule 10 of the Rules of 1974 reads as under :
10. Lay out of proposed colony :
(1) Where the proposed colony to be developed, is situated in
any Planning Area constituted under the Madhya Pradesh Nagar Tatha
Gram Nivesh Adhiniyam, 1973 (No. 23 of 1973), the application under
rule 9 shall be accompanied by an approved layout in Form-6 appended
to these rules as provided in Madhya Pradesh Nagar Tatha Gram
Nivesh Adhiniyam, 1973 (No. 23 of 1973), and Madhya Pradesh Bhoomi
Vikas Niyam, 2012.
(2) Where the land proposed to be developed is situated outside any
planning area constituted under the Madhya Pradesh Nagar Tatha
Gram Nivesh Adhiniyam, 1973, the Sub-Divisional Officer (Revenue)
shall seek the opinion of the Competent Authority of concerned Town
and Country Planning authority. Only after receipt of affirmative
opinion the diversion order of the said land under Section 172 of the
Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959) shall be
issued. After the approval of layout and issuance of diversion order, the
building permission shall be granted by the Officer having Jurisdiction
under clause (B) of sub-rule (5) of rule 2, of the Madhya Pradesh
Bhoomi Vikas Niyam, 2012.
10. Learned Senior counsel for the petitioner, referring to the
above-mentioned provisions contended that there is gross violation of
Sections 13 and 16 of the Adhiniyam 1973 as well as Rule 10 of the Rules
1974 as colony development permissions were granted in relation to land
parcels forming part of Planning Area merely on the opinion of T&CP
instead of seeking proper permission/approval of T&CP Department.
Despite notification of Existing Land Use Map, respondent No. 3 keep
issuing permissions in contravention of the provisions of the Adhiniyam
1973. Therefore, the respondent No.3 by granting development permissions
contrary to the statutory framework has risked the entire investments made
by the buyers in the colonies developed pursuant to the permission issued
without jurisdiction. In view of the aforesaid, it is prayed that the petition
be allowed.
11. Per contra, Shri Aniket Naik, learned Dy. Advocate General
appearing for the respondents/State has opposed the petition and contended
that the period when the existing land use of extended planning areas has
been frozen under Section 14 and 15 of the Adhiniyam 1973 until a new
development plan is adopted, development permission is being issued under
Section 16 of Adhiniyam 1973, so that development of the city is not
interrupted. The permission already issued under Section 16 would be
incorporated in the new development plan. As regards powers vested upon
the respondent No.2/Director, Town and Country Planning under Section
13(3) of the Adhiniyam 1973, this provision is regarding the local authority
ceasing to exercise the powers conferred on the State Government or the
Director, Town and Country Planning. The local authorities grant
permission for colony development under the Madhya Pradesh Municipal
Corporation Act, 1956, Madhya Pradesh Municipality Act, 1961, Madhya
Pradesh Nagar Palika (Colony Vikas) Niyam 2021 or Madhya Pradesh
Panchayat Raj Act, 1993 and Madhya Pradesh Gram Panchayat
(Development of Colony) Rule, 2014 and not under the Adhiniyam 1973.
Therefore, it is incorrect to say that the meaning of the said Section 13(3) is
regarding issuance of development permission.
12. Learned Dy. AG further contended that under the provisions of
Rule 9(1) of the Madhya Pradesh Nagar Palika (Colony Vikas) Niyam,
2021 and Rule 10 of the Madhya Pradesh Gram Panchayat (Development
of Colonies) Rules, 2014, permission for colony development in urban local
body area or the Gram Panchayat area is granted by the competent authority
after obtaining opinion from the Town and Country Planning Office in the
area where notification under Section 15(4) of the Adhiniyam 1973 has not
been published. Thus, it is clear that in all such cases, after detailed
examination by the committee, only it is found suitable for issuing
development permission, the District Office with its opinion will take a
decision regarding issuance of development permission under Section 16 of
the Act, for which District Office has been authorized.
13. Learned Dy. AG for the State contended that the permission
which are stated to have been issued by the Joint Director, T&CP are just,
valid and proper. It is further contended that by order dated 10.03.2023 of
the Director, T&CP, Madhya Pradesh, Bhopal, the powers of Section 16 of
the Adhiniyam 1973 have been delegated to the Joint Director, T&CP,
District Office, Indore to take decisions regarding issuance of development
permission. In such cases, the permission has been issued by the
respondent No.3/Joint Director, T&CP endorsing copies to the Director,
T&CP. The petition cannot be said to be of public interest as the
development that is taking place is with prior legal permission ensuring
planned urban development. The present petition is based on
misinterpretation of Sections 13 to 16 of the Adhiniyam 1973 with an
objective to hamper the development. Moreso, when there are no specific
and substantiated allegations, no relief for quashment of specific
development permission can be granted.
14. Apart from the above contention, learned Dy. AG for the
respondents/State has raised a preliminary objection that the Writ Petition
suffers from misjoinder of the parties as the petitioner has not impleaded
the private colonizers and 79 villages as party to the petition in respect of
whom development permissions were granted, as they will be directly
affected by any order being passed by this Court. The reliefs claimed by the
petitioner with regard to quashment of development permission cannot be
granted without giving proper opportunity of hearing to the affected parties.
Hence, this petition suffers from the vices of misjoinder and non-joinder.
15. Heard learned counsel for the parties.
16. Before entering into the merits of the case, however, taking
into consideration the preliminary objection raised by the learned Dy. AG
for the State, the question which falls for consideration of this Court is as to
who is the necessary or proper party for being impleaded as party in a Writ
Petition?
17. There are certain special statutes which postulate as to who can
be joined as parties in the proceedings instituted under the said statutes,
otherwise, the provisions of the Code of Civil Procedure should be
applicable. So far as the addition of parties under the Code of Civil
Procedure is concerned, we find that such power of addition of parties
emanates from Order 1 Rule 10 of the Code of Civil Procedure, which reads
as under:
''10. (1) Where a suit has been instituted in the name of the wrong
person as plaintiff or where it is doubtful whether it has been
instituted in the name of the right plaintiff, the Court may at any stage
of the suit, if satisfied that the suit has been instituted through a bona
fide mistake, and that it is necessary for the determination of the real
matter in dispute so to do, order any other person to be substituted or
added as plaintiff upon such terms as the court thinks just.
(2) The Court may at any stage of the proceedings, either upon or
without the application of either party, and on such terms as may
appear to the Court to be just, order that the name of any party
improperly joined, whether as plaintiff or defendant, be struck out,
and that the name of any person who ought to have been joined,
whether a plaintiff or defendant, or whose presence before the court
may be necessary in order to enable the court effectually and
completely to adjudicate upon and settle all the questions involved in
the suit, be added.... ''
18. From a bare perusal of Sub-Rule (2) of Order 1 Rule 10 of the
Code of Civil Procedure, we find that the power has been conferred on the
Court to strike out the name of any party improperly joined whether as
plaintiff or defendant and also when the name of any person ought to have
been joined as plaintiff or defendant or in a case where a person whose
presence before the Court may be necessary in order to enable the Court to
adjudicate upon and settle all the questions involved in the Suit effectually
and completely. A bare reading of this provision, namely, second part of
Order 1, i.e., Rule 10 Sub-Rule 2 of CPC would clearly show as to who
could be a necessary party in a Suit and the tests that are required to be
applied in such a situation are - (1) there must be a right to some relief
against such party in respect of the controversy involved in the proceedings;
(2) no effective decree can be passed in the absence of such party.
19. Since, the objection raised by the respondents is with regard to
non-joinder of necessary party in a Writ Petition, therefore, it is to be seen
as to whether the principles provided for impleadment of parties in the
Code of Civil Procedure can be made applicable to the Writ proceedings.
There being no separate statutory provision with regard to this subject on
Writ Petitions, as such, the baseline to be accepted is that of the provisions
of the Code of Civil Procedure are to be kept in mind, however, the concept
of necessary party in a purely Civil Suit and a Writ Petition cannot be one
and the same, as scope of necessary party in a Writ Petition is much wider
than in the Civil Suit and persons to be vitally affected by the Order to be
passed by the Writ Court are necessary parties.
20. The Writ Court has to take into account the consequences or
the effect which the decision will have or is likely to have on the interests of
others who may not be wholly necessary for decision of the issue at hand,
but whose interests would be vitally affected in consequence of the decision
rendered in the Writ Petition. The concept of necessary party in a Civil Suit
and a Writ Petition cannot be one and the same. That apart, the scope of
necessary party in the Writ Petition will be much wider than in the Civil
Suits. The High Court, invoking Writ jurisdiction, has to look beyond the
parties appearing before it and ensure that not only the persons, who are
essential for the purpose of the disposal of the case, but also those, who will
be vitally affected by the order to be passed, are made parties so that
nothing is decided behind their back.
21. In a case of Prabodh Verma & Ors. v. State of Uttar
Pradesh & Ors., reported in AIR 1985 SC 167, the Apex Court has held
as under:
''28. .......... A High Court ought not to decide a writ petition under
Article 226 of the Constitution without the persons who would be
vitally affected by its judgment being before it as respondents or at
least by some of them being before it as respondents in a
representative capacity if their number is too large, and, therefore, the
Allahabad High Court ought not to have proceeded to hear and
dispose of the Sangh's writ petition without insisting upon the reserve
pool teachers being made respondents to that writ petition, or at least
some of them being made respondents in a representative capacity,
and had the petitioners refused to do so, ought to have dismissed that
petition for non-joinder of necessary party.''
22. In case of A.K.Kraipak vs. Union of India, (1969) 2 SCC
262, the Apex Court has held that:
''The aim of the rules of natural justice is to secure justice or to put it
negatively to prevent miscarriage of justice. These rules can operate
only in areas not covered by any law validly made. In other words
they do not supplant the law of the land but supplement it.-The
concept of natural justice has undergone a great deal of change in
recent years. In the past it was thought that it included just two rules
namely (1) no one shall be a judge in his own case (Nemo debet esse
judex propria causa) and (2) no decision shall be given against a
party without affording him a reasonable hearing (audi alteram
partem).''
23. Thus, the principle is clear and settled that right of hearing,
even if not provided under a specific statute, the principles of natural justice
shall so demand, unless by specific law, it is excluded. It is more so when
exercise of authority is likely to vest the person with consequences of civil
nature.
24. Keeping in view the above pronunciation of law and principles
governing the concept of necessary party in a petition under Article 226,
this Court is required to consider the aspect of the matter as to whether a
person or a party is or is not a necessary party to a proceeding is not always
a mere question of law, rather it can really be a mixed question of facts and
law. While considering this aspect of the matter, it is of paramount
importance to note that the permissions issued in respect of 79 villages
cannot be wiped out or canceled at the stroke of a pen by contravening the
principles of natural justice. Any order passed by this Court will have a far-
reaching impact on the persons who are not party to this litigation. That
apart, except for making general and vague allegations that the
development permissions with regard to 79 villages were issued without
jurisdiction or in gross violation of the provisions of the Adhiniyam of
1973, no specific instance or material irregularity or illegality is pointed out
in the matter. We find force in the submissions made by the learned Dy.
AG for the respondents/State that on the foundation of vague, bald and
unspecific allegations, a writ for quashment of specific development
permissions cannot be issued without hearing all the necessary parties.
25. Accordingly, this petition being bereft of merit and substance,
deserves to be and is hereby dismissed.
No order as to cost.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
vidya
