Madhya Pradesh High Court
M/S S.R.J Betterbuild Pvt. Ltd. Through ... vs The State Of Madhya Pradesh on 15 April, 2025
Author: Pranay Verma
Bench: Pranay Verma
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
WRIT PETITION No. 22077 of 2022
M/S S.R.J BETTERBUILD PVT. LTD. THROUGH ITS DIRECTOR
DR. RAJESH JAIN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Amit Agarwal - Senior Advocate along with Shri Arpan Jain, Advocate
for the petitioner.
Shri Bhuwan Deshmukh - Government Advocate for the respondent/State.
Ms. Mini Ravindran, learned counsel for respondent No.5.
WITH
WRIT PETITION No. 28954 of 2022
OMPRAKASH AND OTHERS
Versus
INDORE MUNICIPAL CORPORATION THROUGH
COMMISSIONER AND OTHERS
Appearance:
Shri Ashok Kumar Sethi - Senior Advocate along with Shri Aayush Gupta -
Advocate for the petitioners.
Shri Amol Shrivastava - Advocate for respondent No.1.
Ms. Mini Ravindran, learned counsel for respondent No.3.
ORDER
(Reserved on 16.12.2024)
(Pronounced on 15.04.2025)
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Since these petitions raise common questions of facts and law,
they have been heard together and are being decided by a common order.
Facts are being taken from W.P. No.22077/2022.
2. By this petition preferred under Article 226 of the
Constitution of India, the petitioner has prayed for the following reliefs:
"(i) To issue an appropriate writ/order/ direction quashing the
impugned order dated 02.09.2022 by Respondent No.3
(Annexure P/11) and consequent proceedings, if any.
(ii) To issue an appropriate writ/ order/direction setting aside the
show cause notices dated 18.08.2022 by Respondent No.3,
Respondent No.4. and Respondent No.5 (Annexure P/9).
(iii) Direct the Respondents to allow the Petitioners to continue
with development of nursing home on the subject property;
(iv) Any other order/orders, direction/ directions may also be
passed as this Hon'ble Court may deem fit;
(v) Cost of the Petition may also kindly be awarded."
3. The case of the petitioner is that land bearing Survey Nos.
361, 364, 365, 366, 368, 369 and 370 total area 22.25 acre village
Khajrani, Tehsil and District Indore was purchased jointly by Ashok
Bhai Patel and Bhaiyalal Patel by a registered sale deed dated
14/10/1959. They were promoters of Prestressed Concrete Industries and
with an intention to establish a cement pole factory leased the lands to
the said firm. Thereafter, the firm sought permission and approval from
the concerned authorities. No objection certificate from Indore Town
Improvement Trust (T.I.T) which is the predecessor body of respondent
No.5, Indore Development Authority (IDA) was received on 28.11.1959.
The same was for establishing a cement pole factory on Survey No.368
area 2.51 acre and Survey No.369 area 2.69 acre, total area 5.14 acre.
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4. On 18.04.1962 the T.I.T. issued a notice under Section 48 of
Town Improvement Trust Act, 1960 proposing to include Survey
No.370 in Improvement Scheme No.49. On 30.05.1962 objection to the
said proposal was submitted by Patel brothers. On 11.10.1966 a
notification was issued by the T.I.T. under Section 68 of the Act, 1960
with regard to 640.30 acre of land declaring its intention to implement a
Town Improvement Scheme. Patel brothers submitted an objection
under Section 68(3) of the Act requesting to exclude Survey No.361, 368
and 369 total area 12.38 acre from the Scheme. On 09.11.1973
notification in the official Gazette was issued by the T.I.T. under Section
71(1) of the Act, 1960 to the effect that the survey numbers mentioned
therein are required for implementation of Scheme No.54. It was
declared that with effect from the publication of notification the notified
survey numbers will vest in the trust free from all encumbrances. In this
notification Survey Nos. 361, 365 and 366 were notified but Survey
No.368 and 369 were neither included nor notified. On 04.12.1975 T.I.T.
took possession of Survey Nos.361, 365 and 366.
5. On 30.11.1992 a resolution was passed by the Indore
Development Authority (IDA), successor of T.I.T. Indore, and
permission for development was granted to Patel brothers on Survey
Nos. 361, 365 and 366. On 04.12.1992 IDA issued a letter to Patel
brothers to execute an agreement with it for surrendering 50% of land
comprised in Survey Nos. 361, 365 and 366. On 26/12/1992 an
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agreement was entered into between Patel brothers and IDA for private
development of 50% of land comprised in Survey No.361, 365 and 366.
On 30/1/1993 possession of 50% of land of these survey numbers was
taken over by the IDA. On 20.08.2015 a resolution was passed by the
IDA revoking the resolution dated 30/11/1992 alleging that Patel
brothers have violated the terms of agreement.
6. On 28.12.2019, 03.01.2020 and 11.03.2020, four sale deeds
were executed in favour of the petitioner with respect to Survey
No.368/2/2 to 368/2/5, 369/1 and 369/2. On 16.08.2016 the IDA had
issued certificate clearly stating that these survey numbers are not part of
any of its Scheme. In 2017-18 lay out plan was sanctioned by the Joint
Director, Town and Country Planning Department, Indore in favour of
predecessors of petitioner. On 20/7/2018 the previous land owners had
got the lands diverted under Section 172 of M.P. Land Revenue Code,
1959 for professional offices / chamber purposes. Subsequent to
petitioner's sale deeds, on 1/3/2021, the Joint Director, Town and
Country Planning Department, Indore sanctioned a layout plan for
development of the aforesaid lands for purpose of nursing home. On
25/3/2022 the IDA issued NOC for grant of development permission to
Municipal Corporation, Indore. On 16/6/2022 building permission was
granted by the Municipal Corporation in favour of the petitioner.
7. Thereafter, on 18.08.2022 the Joint Director, Town and
Country Planning Department, Indore issued a show cause notice to the
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petitioner proposing to revoke the layout sanction on the ground that
Survey Nos.368 and 369 were not included in the scheme because
cement pole factory was constructed thereupon and consequently land of
Survey No.361, 365 and 366 was released to the extent of 50% for
private development. It was stated that the sanction is liable to be
revoked. On 18.08.2022 itself Municipal Corporation, Indore also issued
a notice to the petitioner to stop building activities by staying the
building permission. Explanation was sought for from the petitioner. On
29.08.2022 reply was filed by the petitioner stating that Survey No.368
and 369 were never included in Scheme No.54 and have no connection
with the acquired lands Survey Nos.361, 365 and 366. Prayer was made
for dropping of the proceedings. However, by order dated 2/9/2022
(Annexure P/11) the layout sanction (development permission) of the
petitioner has been revoked by the Directorate, Town and Country
Planning Department, Indore which is under challenge.
8. Learned Senior counsel for the petitioner has submitted that
revocation of development permission can be done only as per Rule 25-
A of Bhoomi Vikas Rules, 2012 ('Rules, 2012') on the ground that the
authority has reasons to believe that development permission was
obtained either by misrepresentation of facts or by false representation
of facts or by fraud. None of the eventualities are present in the instant
case. No fact has ever been suppressed by the petitioner. After
purchasing the lands it had got the layout plan sanctioned from
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respondent No.3 itself. The Municipal Corporation had also issued NOC
for grant of development permission which permission was granted on
16.06.2022. In all the proceedings there has never been any
misrepresentation of facts on part of the petitioner hence the Rule itself
is not applicable. There has been total non-application of mind on behalf
of respondent No.3. He received communication from Municipal
Corporation on 18.08.2018 on which day itself show cause notice was
issued to the petitioner. It hence cannot be said that respondent No.3 had
reasons to believe that development permission was obtained contrary to
law. There has been legal malice on part of respondent No.3 in
entertaining a thought that Survey No.368 and 369 cannot be used for
any purpose except cement pole factory, godown and shed. It is further
submitted that as per the current Master Plan / Development Plan, 2021
the land use of Survey No.368 and 369 is assigned as public and semi
public purpose and nursing home falls in that purpose. The permission
has been revoked without considering the fact that due no objection by
IDA itself was given when it was granted. While granting permission to
petitioner as well as its predecessors, the respondents had conducted a
detailed enquiry and had specifically held that the disputed lands are not
part of any scheme nor are Government lands. It is also submitted that
the disputed lands were never property of IDA and no objection sought
from it was only procedural limited to the extent that the land is not
covered under any of its scheme. The IDA hence had no authority to
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take any objection with respect to the disputed lands. They would be
governed by development plan of TNCP and permission granted by it
and by the Corporation on basis of such plan. If objection taken by IDA
is considered and given effect to then it would restrict the use of the
disputed land only to cement industry which would be in violation of the
master plan of TNCP.
9. Reply has been filed by respondents No.1 to 3 and learned
counsel for respondents 1 to 3 has submitted that on 18.08.2022 IDA
had sent a letter to TNCP department stating that Survey No.368 and 369
were not included in the Scheme as there was a cement pole factory,
godown and shed hence the development permission has rightly been
revoked. There was a specific condition under which the these lands
were exempted from their inclusion in Scheme No.54 i.e., a cement pole
factory, godown and shed being erected on it. They were hence to be
used only for the said purpose but instead had been sought to be used for
some other purpose. The impugned order is just, legal and proper and
has been passed by following principles of natural justice by issuing
show cause notice to the petitioner and seeking its reply. The impugned
order is an appealable order under Section 31 of Nagar Tatha Gram
Nivesh Adhiniyam, 1973 ('Adhiniyam, 1973') and Rule 23 of the Rules
made thereunder in view of which the petition is liable to be dismissed.
10. Reply has also been filed by respondent No.4 IMC
submitting that the petitioner had approached it seeking building
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permission for construction of a hospital / nursing home on the basis of
NOC received from IDA. Building permission was granted on that basis.
However the petitioner had concealed the fact that IDA had demarcated
the land specifically for use of cement pole factory and shed which
cannot be used for any other purpose. The IDA by letter dated
18.08.2022 informed IMC as regards the usage of the lands as aforesaid
on the basis of which show cause notice was issued to the petitioner and
thereafter the impugned order was passed in which there is no illegality.
11(i). Detailed reply has been filed by respondent No.5 IDA and
learned counsel for respondent No.5 has submitted that the impugned
order is an appealable order under Section 31 of the Adhiniyam, 1973
read with Rule 23 of the Bhumi Vikas Rules, 2012. The said remedy is
efficacious for the petitioner and ought to be resorted to by it. Survey
Nos.361, 368 and 370 were recorded in Bhumiswami rights in name of
Ashok Patel and Survey Nos. 365 and 366 were recorded in the name of
Bhailal Patel. They were leased out to firm Prestressed Concrete
Industries. The firm established factory for manufacture of electricity,
transmission poles, structural beams etc. on lands Survey No.361, 368,
369 and 370 and Survey No.365 and 366 were used for stocking
material. Before establishment of the factory the T.I.T. gave a NOC on
28.11.1959 in respect of Survey Nos.368 and 369 pursuant to resolution
dated 27.11.1959. Thereafter, all the aforesaid lands were sought to be
acquired for Scheme No.49 of T.I.T.. The predecessor-in-title of
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petitioner submitted an objection to the proposed acquisition stating that
Survey Nos.361, 368, 369 and 370 have a factory and Survey No.365
and 366 are used for storage of electricity / cement poles. However,
Scheme No.49 was not executed due to various reasons.
(ii) In order to implement Scheme No.54 the T.I.T. issued a
notification on 11.10.1966 under Section 68(1) of the TIT Act declaring
its intention to acquire lands. The predecessor - in - title of petitioner
submitted objection praying that the scheme be dropped pertaining to
Survey Nos.361, 368 and 369. After hearing the objection notification
under Section 71(1) of the TIT Act was issued on 19/11/1973 which
included Survey Nos.361, 365 and 366 which leads to conclusion that
the authority considering the factum of factory being established on
Survey Nos.368 and 369 hence did not finalize the scheme on these
lands. The same was only for the reason that Survey Nos.368 and 369
were being used for stocking cement poles manufactured in the factory.
Possession of Survey No.361, 365 and 366 was taken on 04.12.1979. On
08.11.1971 permission for development on part of Survey No.365 and
366 was granted looking to the fact that these lands were used for
ancillary work for the factory situated over Survey No.368 and 369.
Agreement in respect of Survey Nos.361, 365 and 366 was also on
executed on 26-12-1992 for self development of these lands on
representation of predecessor in title of petitioner that factory was
running on Survey Nos.368 and 369 and part of these lands were being
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used for ancillary work of factory. The petitioner wants to develop the
disputed lands for purpose other than factory and its ancillary work for
which originally they were exempted from the Scheme. They cannot be
used for any purpose other than factory purpose. It is for that reason that
IDA has submitted objection against sanction of layout looking to which
alone layout permission granted earlier has been cancelled. The petition
hence deserved to be dismissed.
12. In rejoinder learned senior counsel for the petitioner has
submitted that the disputed lands are only 368 and 369 whereas
respondent No.5 has tried to project as if all the survey numbers are
disputed. Survey Nos.368 and 369 were never acquired nor vested in the
State or any other Authority. The bar of alternate remedy would not be
applicable since appeal is provided against an order granting permission
on condition or refusing permission. It is not in respect of revocation of
permission already granted. Since lands had never vested in the IDA it
had no right of objection which right is only available to a person having
interest in the property. The IDA is trying to create an interest after
giving no objection certificate from and specifically denying that the
disputed lands are not included in any of its Scheme. Reason for
dropping acquisition proceeding and consequent permission in respect of
Survey No.361, 365 and 366 has no bearing upon the present dispute.
Though proceedings were initially taken for acquisition of the disputed
lands but they never went pass the stage of hearing of preliminary
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objections and were dropped. No specific agreement or any MOU was
executed imposing any specific condition assigning any specific purpose
on the basis of which the disputed lands were released. In no document
is it stated that the reason for release of the disputed lands is the factory
situated over the same. The reasons given in the objection for seeking
release of the other lands cannot be held binding upon the disputed lands
in absence of any express condition in writing having been imposed in
that regard. Reliance has been placed on the decision of the Apex Court
in Joti Parshad V/s. State of Haryana, 1993 Supp (2) SCC 497, State of
A.P. & Ors. V/s. Goverdhanlal Pitti, (2003) 4 SCC 739, Punjab State of
Electricity Board Ltd. V/s. Zora Singh & Ors, (2005) 6 SCC 776 and
Somesh Tiwari V/s. Union of India & Ors., (2009) 2 SCC 592.
13. Learned counsel for respondent No.5 in rebuttal has
submitted that in acquisition proceedings instituted with respect to
Scheme No.54 the disputed lands were left out only on account of an
objection having been raised by predecessor - in - title of the petitioner
to the effect that factory is running over them and that the other lands are
being used for ancillary purposes. However, by concealing material fact
and submitting misinformation permission was obtained by the
petitioner. On true facts coming to knowledge intimation was given by
the IDA to TNCP department pursuant to which the impugned order has
rightly been passed revoking the permission. Reliance has been placed
on the decision of the Apex Court in Rajasthan State Industrial
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Development & Investment Corporation & Anr. V/s. Diamond & Gem
Development Corporation Ltd & Anr., (2013) 5 SCC 470, Ashok
Service Centre & Ors. V/s. State of Orissa, (1983) 2 SCC 82, W.A.
No.614 of 2021 (Suyash Exim Pvt. Ltd & Anr. V/s. State of M.P. & Ors)
decided on 20.01.2021, Jacky V/s. Tiny @ Antony & Ors., (2014) 12
SCC 173, District Corporation Central Bank Employees & Officers
Federation V/s. State of M.P. & Ors. (2018) 4 MPLJ 443, Bhagwat
Sharan (Dead Thr. LR's) V/s. Purushottam & Ors. (2020) 6 SCC 387,
Ashish Mishra @ Monu V/s. State of U.P. (2023) SCC Online 86,
Ghaziabad Development Authority & Ors. V/s. Maithali Devi, (2019) 17
SCC 401 and Delhi Development Authority V/s. Anant Raj Agencies
Pvt. Ltd. 2016 (11) SCC 406.
14. I have considered the submission of the learned counsel for
the parties and have perused the record.
15. Though the learned counsel for the parties have advanced
arguments at length on the question as to whether there is an alternate
remedy available to the petitioner for assailing the impugned order dated
02.09.2022 under the provisions of Adhiniyam, 1973 and the Rules,
2012 but prior to adverting to the said aspect of the matter, it would be
appropriate to consider whether in facts and circumstances of the case,
the petitioner deserves to be relegated to avail the alternate remedy
available to it. It is well settled that despite availability of alternate
remedy to the petitioner a writ petition can also be entertained and
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adjudicated upon in certain eventualities.
16. Under Article 226 of the Constitution of India, this Court has
a discretion to entertain or not to entertain a writ petition. If an effective
and efficacious remedy is available this Court would not normally
exercise its jurisdiction. But the alternate remedy would not operate as a
bar where the writ petition has been filed for enforcement of any of the
fundamental rights or where there has been a violation of the principles
of natural justice or where the order or proceedings are wholly without
jurisdiction or the virus of an Act has been challenged. In Whirlpool
Corpn. v. Registrar of Trade Marks and others, (1998) 8 SCC 1 , it was
held by the Apex court as under:
"15. Under Article 226 of the Constitution, the High Court,
having regard to the facts of the case, has a discretion to
entertain or not to entertain a writ petition. But the High Court
has imposed upon itself certain restrictions one of which is that if
an effective and efficacious remedy is available, the High Court
would not normally exercise its jurisdiction. But the alternative
remedy has been consistently held by this Court not to operate as
a bar in at least three contingencies, namely, where the writ
petition has been filed for the enforcement of any of the
Fundamental Rights or where there has been a violation of the
principle of natural justice or where the order or proceedings are
wholly without jurisdiction or the vires of an Act is challenged.
There is a plethora of case-law on this point but to cut down this
circle of forensic whirlpool, we would rely on some old
decisions of the evolutionary era of the constitutional law as they
still hold the field."
17. The aforesaid principle was reiterated in the case of
HarbanslalSahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107 in which
it was held as under :
"7. So far as the view taken by the High Court that the remedy by
way of recourse to arbitration clause was available to the appellants
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and therefore the writ petition filed by the appellants was liable to be
dismissed is concerned, suffice it to observe that the rule of exclusion
of writ jurisdiction by availability of an alternative remedy is a rule
of discretion and not one of compulsion. In an appropriate case, in
spite of availability of the alternative remedy, the High Court may
still exercise its writ jurisdiction in at least three contingencies: (i)
where the writ petition seeks enforcement of any of the fundamental
rights; (ii) where there is failure of principles of natural justice; or
(iii) where the orders or proceedings are wholly without jurisdiction
or the vires of an Act is challenged. (See Whirlpool Corpn. v.
Registrar of Trade Marks [(1998) 8 SCC 1] .) The present case
attracts applicability of the first two contingencies. Moreover, as
noted, the petitioners' dealership, which is their bread and butter,
came to be terminated for an irrelevant and non-existent cause. In
such circumstances, we feel that the appellants should have been
allowed relief by the High Court itself instead of driving them to the
need of initiating arbitration proceedings."
18. In Union of India an another versus Tantia Construction,
Private Limited (2011) 5 SCC 697 it was held by the Apex Court held
that injustice, whenever and wherever it takes place has to be struck
down as an anathema to the rule of law and the provisions of the
Constitution, it was held as under :
"33. Apart from the above, even on the question of maintainability of
the writ petition on account of the arbitration clause included in the
agreement between the parties, it is now well established that an
alternative remedy is not an absolute bar to the invocation of the writ
jurisdiction of the High Court or the Supreme Court and that without
exhausting such alternative remedy, a writ petition would not be
maintainable. The various decisions cited by Mr Chakraborty would
clearly indicate that the constitutional powers vested in the High
Court or the Supreme Court cannot be fettered by any alternative
remedy available to the authorities. Injustice, whenever and wherever
it takes place, has to be struck down as an anathema to the rule of law
and the provisions of the Constitution."
19. In Maharashtra Chess Association Union of India an another
(2020) 13 SCC 285, the Apex Court held that jurisdiction of High Court
under Article 226 of the Constitution of India is equitable and
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discretionary. The power under this Article can be exercised to reach
injustice wherever it is found. No limitation can be placed on the power
of the High Court in exercise of writ jurisdiction. The nature of power is
inherently dependent on the threat to the rule of law. The power cannot
be circumscribed by strict legal principles so as to hobble the High Court
in fulfilling its mandate to uphold the rule of law. It was held as under:
"12. Echoing the sentiments of Lord Coke, this
Court in U.P. State Sugar Corpn. Ltd. v. Kamal
Swaroop Tondon [U.P. State Sugar Corpn. Ltd. v.
Kamal SwaroopTondon, (2008) 2 SCC 41 observed
that :
"35. ... It is well settled that the jurisdiction of the
High Court under Article 226 of the Constitution is
equitable and discretionary. The power under that
Article can be exercised by the High Court "to
reach injustice wherever it is found"."
13. The role of the High Court under the
Constitution is crucial to ensuring the rule of law
throughout its territorial jurisdiction. In order to
achieve these transcendental goals, the powers of
the High Court under its writ jurisdiction are
necessarily broad. They are conferred in aid of
justice. This Court has repeatedly held that no
limitation can be placed on the powers of the High
Court in exercise of its writ jurisdiction. In A.V.
Venkateswaran v. Ramchand Sobhraj Wadhwani
AIR 1961 SC 1506 a Constitution Bench of this
Court held that the nature of power exercised by the
High Court under its writ jurisdiction is inherently
dependent on the threat to the rule of law arising in
the case before it :
"10. ... We need only add that the broad lines of the
general principles on which the court should act
having been clearly laid down, their application to
the facts of each particular case must necessarily be
dependent on a variety of individual facts which
must govern the proper exercise of the discretion of
the Court, and that in a matter which is thus pre-
eminently one of discretion, it is not possible or
even if it were, it would not be desirable to lay
down inflexible rules which should be applied with
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rigidity in every case which comes up before the
court."
The powers of the High Court in exercise of its writ
jurisdiction cannot be circumscribed by strict legal
principles so as to hobble the High Court in
fulfilling its mandate to uphold the rule of law."
20. The principles have been further summarized by the Apex
Court in the case of Radha Krishan Industries versus State of Himachal
Pradesh and others, (2021) 6 SCC 771, in which it has been held as
under:
"27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution to issue
writs can be exercised not only for the enforcement of
fundamental rights, but for any other purpose as well.
27.2. The High Court has the discretion not to entertain a writ
petition. One of the restrictions placed on the power of the High
Court is where an effective alternate remedy is available to the
aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise where : (a)
the writ petition has been filed for the enforcement of a
fundamental right protected by Part III of the Constitution; (b)
there has been a violation of the principles of natural justice; (c)
the order or proceedings are wholly without jurisdiction; or (d)
the vires of a legislation is challenged.
27.4. An alternate remedy by itself does not divest the High
Court of its powers under Article 226 of the Constitution in an
appropriate case though ordinarily, a writ petition should not be
entertained when an efficacious alternate remedy is provided by
law.
27.5. When a right is created by a statute, which itself prescribes
the remedy or procedure for enforcing the right or liability, resort
must be had to that particular statutory remedy before invoking
the discretionary remedy under Article 226 of the Constitution.
This rule of exhaustion of statutory remedies is a rule of policy,
convenience and discretion.
27.6. In cases where there are disputed questions of fact, the
High Court may decide to decline jurisdiction in a writ petition.
However, if the High Court is objectively of the view that the
nature of the controversy requires the exercise of its writ
jurisdiction, such a view would not readily be interfered with."
21. When the facts of the case are examined it is seen that in
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2017-18, layout plan was sanctioned by the Joint Director, TNCP
Department in favour of predecessors of petitioner, which accrued to its
benefit upon purchase of the disputed lands by it. The previous
landowners had also got the lands diverted under Section 172 of the
Code, 1959 for professional offices/chamber purpose. Subsequent to
execution of petitioner's sale deeds on 01.03.2021 the Joint Director,
TNCP Department, sanctioned a layout plan for development of the
aforesaid lands for purpose of a nursing home. On 25.03.2022 the IDA
issued NOC for grant of development permission to Municipal
Corporation, Indore. On 16.06.2022 building permission was granted by
the Corporation in favour of the petitioner. The layout sanction of the
petitioner has been cancelled on the ground that lands bearing survey
number 368 and 369 were not included in the scheme of the IDA
because cement pole factory was constructed thereupon and
consequently, land of Survey No 361, 365 and 366 was released to the
extent of 50% for private development. However, those lands have been
sold by the landholders by dividing the same in violation of the
conditions. Permission hence could not have been granted for any
construction except that of cement pole factory, godown and shed over
survey number 368 and 369 which so granted deserves to be revoked.
Thus, it is required to be ascertained whether the same were released
only for that reason.
22. The stand of IDA is that survey number 368 and 369 were
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left out of scheme number 54 only on the ground that a cement pole
factory was constructed thereupon and at specific requests of
predecessor in title of petitioners. In application dated 16.04.1967
(Annexure R-5/8) predecessor-in-interest of petitioner had stated that
acquisition in respect of these lands be dropped and he agrees to abide
by the terms of resolution of the improvement trust. An application for
dropping the scheme in respect of all the survey numbers was made on
20.01.1975 vide (Annexure R-5/14) and 22.04.1984 (Annexure R-5/14).
Similar applications were continued to be made from time to time the
last one having been made on 03.11.1992 vide (Annexure R-5/15).
23. On 30.11.1992 resolution was passed by IDA granting
permission for development to Patel Brothers on survey number 361,
365 and 366 pursuant to which letter was issued on 04.12.1992 to them
for surrendering 50% of land comprising in these survey numbers and
granting development permission over remaining 50% of the land. An
agreement was thereafter executed by Patel Brothers with the IDA.
Though the said permission has been subsequently cancelled and has
been challenged by way of a separate writ petition, but that is not the
subject matter of this petition. Admittedly, survey number 368 and 369
were not included in the finalized scheme number 54 and were left out
from the same. Though, it is contended by learned counsel for IDA that
the same was only for the reason that cement pole factory was existing
over these Survey numbers but there is no document produced to
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substantiate the said contention. Correspondences may have been
exchanged between Patel Brothers and IDA but there is no conclusive
document to demonstrate that there was any agreement executed
whereby it was agreed that permission is being granted in respect of
survey number 361, 365 and 366 subject to the condition of existing of
cement pole factory over survey number 368 and 369 which shall be
continued to be used for that purpose only. Survey number 368 and 369
were hence permissible to be dealt with by Patel Brothers in accordance
with law, regardless of the condition on which survey number 361, 365
and 366 were released in their favour under an agreement.
24. It is not disputed that survey number 368 and 369 were never
acquired or vested in the State Government or any other authority at any
point of time. They were not acquired for any scheme. Though survey
number 361, 365 and 366 were notified under the notification dated
09.11.1973 and permission for self-development of their 50% was given
but they are not the lands in dispute in the present petition. Violation of
terms of agreement in respect of those land has no relation with the lands
in dispute in this petition which were never acquired. Nowhere has it
been stated that self-development permission is being granted in respect
of survey number 361, 366 and 366 only for the reason that a cement
pole factory is existing and shall continue to exist over survey number
368 and 369. Any violation of conditions regarding these lands would be
relatable only to them and for their violation survey number 368 and 369
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would not be effected in any manner. There was no specific agreement
executed imposing any specific condition assigning any specific purpose
on the basis of which survey number 368 and 369 were released. Only
for stating reason in the representations that survey number 361, 365 and
366 are being used for ancillary work of factory situated at survey
number 368 and 369 for availing release of these lands it does not create
any binding effect on these lands which have not been acquired. No
document has been produced by the respondents to show that there was
any agreement between the original land owners and them for release of
lands subject to imposing any condition upon the disputed lands survey
number 368 and 369.
25. In paragraph number 11 of the rejoinder, the petitioner has
stated that the TIT after considering preliminary objections before actual
acquisition proceedings were initiated, decided to exempt survey number
368 and 369 from the acquisition proceedings and no specific condition
dependent on other survey numbers was attached to the same therefore
the notification dated 09.11.1973 in respect of scheme No. 54 did not
include survey number 368 and 369. Further in paragraph No.12, it is
stated that self-development permission with respect to survey number
361, 365 and 366 and the pursuant agreement between the landowners
and the IDA nowhere had any specific condition or covenant stating that
such permission and its continuity is dependent in any manner
whatsoever upon the fact that factory is in operation on survey number
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368 and 369. On the basis of this pleading, it has been submitted by the
counsel for the IDA that there was a decision taken by the IDA which is
in possession of the petitioner which he deserves to be directed to
produce. An application bearing I.A. No.7553 of 2024 has also been
filed by the IDA for a direction to the petitioner to produce the said
document.
26. The aforesaid contention and the application preferred by the
IDA are most surprising to say the least. The decision, if any, taken was
by the IDA itself and all the records in respect of the same would be
available with it but instead of producing the same they have been
demanded to be produced by the petitioner. Since it is record of the IDA
itself it was for it to produce the same. No reason has been given by the
IDA for such non-production of the record and the burden has been tried
to be shifted upon the petitioner. For its own shortcoming the IDA
cannot blame the petitioner. If there is an order in respect of survey
number 368 and 369 the IDA ought to produce the same and cannot
wriggle out of its responsibility by merely stating that the said order
cannot be traced in its files owing to the fact that the record is very old
and is not traceable. If it cannot produce the order it should not expect
the petitioner to do so. In such circumstances, the contention of
petitioner that the self-development permission and the pursuant
agreement nowhere had any specific condition or covenant stating that
the permission and its continuity is dependent upon the fact that factory
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is in operation on survey number 368 and 369 has to be necessarily
accepted.
27. As per the relevant extract of Master Plan 2021 (Annexure
P/12), the usage of the disputed lands survey number 368 and 369 is
earmarked as PSP i.e. Public and Semi-public purpose. Admittedly
nursing home falls within the said purpose. On that basis permission had
earlier been granted to the petitioner for opening up of a nursing home
which was perfectly justified. The respondents, however, contend that
the lands should be used only for running a cement pole factory which
would be in contravention to its usage as permissible under the master
plan. The respondents cannot force the petitioner to run a factory itself
on the disputed lands and contravene the master plan.
28. Prior to grant of permission to the petitioner certification was
given by the IDA itself to the competent authority on 10.07.1997 vide
(Annexure P/3) and to the Joint Director, TNCP by letter dated
16.08.2016 (Annexure P/4) that the disputed lands are not a part of any
of its scheme. On the basis of the same, layout was sanctioned and
permission was granted to the petitioner based upon the intimation
furnished by the IDA itself. The said statement of the IDA and which is
being canvassed by the petitioner also is not false or erroneous in any
manner. The lands in dispute are not a part of any scheme of the IDA
and have never been acquired for any of its scheme and are shown in the
master plan to be for public and semi public usage. The permission
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granted to the petitioner was hence not a result of any concealment of
fact or false statement by it but was, on the contrary, on the basis of the
statement as made by the IDA itself.
29. A permission granted under the Adhiniyam, 1973 may be
revoked or cancelled as per Rule 25 of the Rules, 2012 , which is as
under:
"25. Revocation of permission.-The Authority may suspend or
revoke any permission granted by it under the provisions of
these rules if it has reasons to believe that such permission has
been obtained on the basis of a false statement or any
misrepresentation of any material fact or that the conditions
imposed in the permission have been violated or that the
provisions of the Act or rules made thereunder have not been
observed:
Provided that no such order shall be passed unless the person
who obtained such permission has been given an opportunity of
being heard:
Provided further that such order of revocation or suspension may
be annulled if the applicant cures the violation of the Act or the
rules or any conditions imposed in the permission. However
where the permission has been obtained on the basis of a false
statement or any misrepresentation of any material fact no such
order of revocation shall be annulled."
30. For revocation of permission there has to be reason to
believe that it has been obtained on the basis of a false statement, or any
misrepresentation of any material fact or that conditions imposed in the
permission have been violated or that the provisions of the Act or rules
made thereunder have not been observed. Though it is contented by the
IDA that permission was obtained by the petitioner on the basis of false
statements and by misrepresentation of material facts but as discussed
above, it is evident that no false statement was made by the petitioner
and no material fact was misrepresented by it. The disputed lands have
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not been acquired by the IDA for any of its scheme and have not vested
in any of the respondents. They continued to be of the ownership of the
previous landowner from whom they have been legally purchased by the
petitioner. Development permission was granted to the previous
landowners and subsequently to the petitioner on the statement of the
IDA itself that they are not included in any scheme. The previous
landowner and the petitioner applied for development permission stating
all the necessary facts and from the record it has not been demonstrated
by any of the respondents that any material fact was concealed by the
petitioner or any false statement was made by him. On the contrary, the
statements made by the petitioner and the previous landowner at the time
of obtaining permission were factually correct. Section hence had no
application to the facts of the case and the conditions precedent for
invocation of the same were wholly absent in view of which the
impugned order is wholly illegal and unjustified.
31. Earlier on a communication made by the IDA by letter dated
18.08.2022 a notice was issued to the petitioner by the TNCP stating that
since survey number 368 and 369 were having a cement pole factory
survey number 361, 365 and 366 were released from acquisition for its
ancillary purpose hence permission ought not to have been granted in
respect of survey no. 368 and 369 hence petitioner should show cause
why the permission should not be cancelled. The petitioner duly filed his
detailed reply to the show cause notice. Thereafter the impugned order
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02.09.2022 was passed which reiterated the statements as contained in
the letter dated 18.08.2022 of the IDA and after reproducing the same,
by merely observing that the reply of the petitioner has not been found
to be satisfactory, the permission has been cancelled. The impugned
order itself states that the same is being passed on the basis of
communication dated 18.08.2022 of the IDA. It is evident that there has
not been any application of mind by the Joint Director, TNCP
Department while passing the impugned order. It has merely acted on the
dictats of the IDA. It received letter from the IDA, issued show cause
notice to the petitioner and passed the impugned order reproducing the
statement made by the IDA merely observing that reply of the petitioner
is not satisfactory. The said order cannot be said to be a judicial order in
any manner. Since thereunder development permission having been
granted to the petitioner was being cancelled, it was imperative for the
Joint Director to have applied his independent mind to the proceedings
and to have passed a reasoned order which has not been done by him.
The same hence cannot be sustained.
32. From the facts as have been found aforesaid, it is evident that
the impugned order is wholly illegal and has deprived the petitioner of
its right to go ahead with the construction of a nursing home on the basis
of the building permission granted to it earlier. It has resulted in greatly
prejudicing its rights in a most injudicious manner. The entire
proceedings have been taken by the respondents with an apparent
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intention of merely passing the impugned order and by showing a
formality of having carried out the proceedings in accordance with law.
Such an order cannot be permitted to stand. The same being an apparent
illegality affecting the valuable rights of the petitioner, I do not find it to
be a fit case for relegating the petitioner to avail the alternate remedy. In
any case, the pleadings in the matter have been completed in extenso and
the counsel for the parties have also advanced their arguments on each
and every aspect of the matter and there are no factual disputes involved
in the matter, hence, it is a fit case for exercise of writ jurisdiction under
Article 226 of the Constitution of India.
33. Even otherwise it may be incidentally ascertained as to
whether any alternate remedy is in fact available to the petitioner against
the impugned order. Learned counsel for the IDA has placed heavy
reliance upon Rule 25-A of the Rules, 2012 which provides inter alia
that from an order passed under rule 25 the provisions of Section 31 and
32 of the Adhiniyam, 1973 shall apply mutatis mutandis for appeal and
revision accordingly. Rule 25 has already been extracted above whereas
25-A of the Rules, 2012 is as under:
"25(A). Appeal and revision.-For an order passed under rule 25,
the provisions of section 31 and 32 of Madhya Pradesh Town &
Country Planning Act, 1973 shall apply mutatis mutandis for
appeal and revision respectively."
34. Learned counsel for the petitioner has submitted that though
an appeal has been provided under Section 31 of the Adhiniyam,
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1973 stating that the same may be preferred to such authority as may be
prescribed but no such authority has been prescribed. For ready
reference Section 31 of the Adhiniyam, 1973 is as under:
:31. Appeal.-[(1) Any applicant aggrieved by an order granting
permission on condition or refusing permission under section 30
may, within thirty days of the date of communication of the
order to him, prefer an appeal to such authority, in such manner
and accompanied by such fees as may be prescribed.]
(2) The appellate authority may], after giving a reasonable
opportunity to the appellant and the Director to be heard, by
order, dismiss the appeal or allow the appeal by granting
permission unconditionally or subject to the conditions as
modified.
(3) Subject to the provisions of section 32 the order of the
appellate authority shall be final."
3 5 . Learned counsel for the IDA has relied upon a notification
dated 29.12.2021 issued by the State Government whereby the
Divisional Commissioner has been nominated as the Ex-Officio
appellate authority under Section 31 of the Adhiniyam, 1973. Learned
counsel for the petitioner has pointed out that the said notification has
already been quashed by this Court by order dated 24.02.2025 passed in
W.P. No.23511 of 2021 [Ms. Dwarka and others vs. State of MP and
others].
36. In the case of Ms. Dwarka and others (Supra) the
notification dated 29.01.2021 has been held to be not sustainable for
want of sanction of an enabling statutory provision and has been
declared invalid, illegal and inoperative. The relevant part of the said
judgement is as under:
"28. Learned counsel for respondents forcefully argued
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regarding remedy of appeal under Rule 25-A of BVR read with
section 31. On behalf of the petitioners it was submitted that
issuance of a Notification is a legislative function as held by the
Apex Court in Video Electronics Pvt. Ltd. V. State of Punjab
(1990) 3 SCC 87. It was further submitted that unless the
Adhiniyam, 1973 or the M.P Town and Country Planning Rules,
2012 or BVR, 2012 contain an enabling provision conferring
power upon the state govt. to issue a notification, it cannot be
issued in vaccum in absence of a statutory enabling provision. It
was further submitted that section 31 provides for an appeal
against "conditional grant" or "refusal" of layout by the
competent authority to an authority "as may be prescribed". The
word "prescribed" means "prescribed by Rules" as per section 2
(32) of the M.P. General Clauses Act, 1957. According to the
petitioners M.P Town and Country Planning Rules, 2012 were
framed in accordance with section 85(2)(X) but Rule 23 omitted
to prescribe the authority to whom appeal would lie U/s 31.
29. The Learned counsel for respondent No. 4 relied upon the
decision in BSNL (Supra); Surendra Singh (Supra); S. Srinivasan
(Supra) and Orissa State (Prevention and Control of Pollution)
Board (Supra). The decisions cited by the learned counsel for
Respondent no. 4 in the case of BSNL (supra) is totally out of
place. Similarly, the decision in the case of Surendra Singh
(Supra) only lays down that when a statute is silent regarding a
particular subject then executive instructions can be issued to fill
in the gap. This decision cannot be relied upon to hold that a
notification can be issued without any enabling statutory
provision in exercise of administrative and executive power. The
decision in the case of Orissa State (Prevention and Control of
Pollution) Board (Supra) is distinguishable as in Para 11 of the
said judgments it was noted that section 19 of the concerned
statute conferred enabling power of issuing notification.
Likewise, the decision in the case of Power Machines India Ltd.
(Supra) also is out of context as in that case the Apex Court was
considering the inter-play between Arbitration and Conciliation
Act, 1996 and MSME Act.
30. During the course of hearing, we pointedly invited the
attention of the learned counsel for Respondents to point out any
enabling provision in Adhiniyam, 1973 or Rules made there
under to issue notification. However, the learned counsel for
Respondents could not point out any express enabling statutory
provision either in the Adhiniyam or in the Rules conferring
upon the Govt. any enabling power to issue any notification for
appointing an appellate authority for the purposes of section 31.
In this view of the matter the notification dated 29.01.2021
(Annexure P/31) appears to have been issued without a statutory
sanction and as such is unsustainable in law.
35. Ex Consequenti, we hereby grant following reliefs to the
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petitioners:-
i. Notification dated 29.01.2001 (Annexure P/31) nominating the
Divisional Commissioner as Ex-officio appellate authority under
section 31 of the T&C Adhiniyam, 19.73 is declared to be
invalid, illegal and inoperative for want of enabling statutory
provision; and it is consequently quashed."
37. Thus, even accepting the contention of learned counsel for
the IDA that under Rule 25-A of the Rules, 2012 an appeal can be
preferred against revocation of building permission to the
authority as prescribed under Section 31 of the Adhiniyam, 1973 but
there is no such authority prescribed and the notification issued
appointing such an authority has already been quashed by this Court as
aforesaid. Thus, as on date it cannot be said that the petitioner has an
alternate remedy of preferring an appeal before the appellate authority
under Section 31 of the Adhiniyam, 1973.
38. Thus, in view of the aforesaid discussion, the impugned
orders passed by the respondents are hereby quashed and the respondents
are directed to allow the petitioners to continue with their development
work on the basis of their sanctions/permissions.
39. The petitions are accordingly allowed and disposed off.
(PRANAY VERMA)
JUDGE
jyoti
