Madhya Pradesh High Court
Javed Khan vs Ujjain Development Authority on 1 May, 2025
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
NEUTRAL CITATION NO. 2025:MPHC-IND:11754 1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 1st OF MAY, 2025
WRIT PETITION No. 30278 of 2024
JAVED KHAN
Versus
UJJAIN DEVELOPMENT AUTHORITY AND OTHERS
Appearance:
Shri Tehjeeb Khan - advocate for the petitioner.
Shri Bharat Singh - A A G along with Shri Koustubh Pathak,
learned counsel for the respondent.
WITH
WRIT PETITION No. 30295 of 2024
SMT. KANEEZ KHAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Sunil Jain - senior advocate with Ms. Nandini Sharma -
advocate for the petitioner.
Shri Bharat Singh - A A G along with Shri Koustubh Pathak,
learned counsel for the respondent.
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 19-05-2025
18:50:41
NEUTRAL CITATION NO. 2025:MPHC-IND:11754 2
WRIT PETITION No. 30300 of 2024
ZULFIQAR
Versus
UJJAIN DEVELOPMENT AUTHORITY AND OTHERS
Appearance:
Shri Tehjeeb Khan - advocate for the petitioner.
Shri Bharat Singh - A A G along with Shri Koustubh Pathak,
learned counsel for the respondent.
ORDER
1] This order shall also govern the disposal of W.P.
Nos.30278/2024, 30295/2024 and 30300/2024 as in all the petitions,
identical orders directing the petitioner to vacate the premises has
been passed. For convenience, the facts as narrated in WP
No.30278/2024 are being taken up for consideration.
2] This petition has been filed by the petitioner under Article 226
of the Constitution of India seeking the following reliefs:-
"[A] That the petition may kindly be allowed and impugned order
dated 25/09/2024 (Annexure P/15) of the respondent authorities may
kindly be set aside.
[B] That the Respondents be directed to consider the request of the
Petitioner for compounding and the Respondents may kindly be
restrained from taking possession of the disputed property.
[C] That this Hon'ble Court may grant any other relief as it deems fit
and proper in the interest of justice, equity and good conscience along
with costs."
3] The petitioner is aggrieved by the order dated 25/09/2024,
passed by the respondent No.1 Chief Executive Engineer, Ujjain
Development Authority, Ujjain whereby the petitioner has been
directed to vacate the premises on account of cancellation of lease
and violation of the lease condition No.16 and 17.
4] Admittedly, the lease has already been cancelled on
10/10/2023, against which, a civil suit has also been filed and in the
said civil suit, the injunction application has already been rejected by
the trial Court.
5] The grievance of the petitioner is that the respondents could not
have directed him to vacate the premises as the petitioner was ready
and willing to comply with Clause (vii) of Rule 22 of Madhya
Pradesh Vikas Pradhikarano Ki Sampatiyon Ka Pravandhan Tatha
Vyayan Niyam, 2018 (hereinafter referred to as ''the Rules of 2018'')
which provides that if the lease holder submits an application in
writing after the cancellation order of lease deed but before re-entry,
for mitigation of lease terms, then by taking actions as mentioned in
the said Rule, the process of cancellation and re-entry can be stayed.
6] Learned counsel for the petitioner has submitted that since the
aforesaid Clause (vii) Of Rule 22 would applicable and the
petitioners have already given their undertaking that they are ready
and willing to comply with all the alleged violation of the lease deed,
they could not have been asked to vacate the premises.
7] The prayer is vehemently opposed by the learned counsel for
the respondents and it is submitted that no case for interference is
made out as the petitioner was never granted any lease by the Ujjain
Development Authority, and in fact, the chronology of the case
clearly reveals that initially the lease was granted to one
Chandraprakash Malhotra way back in the year 1984 and
subsequently, the said lease was transferred by Chandraprakash
Malhotra to Mohd. Kadir in the year 2003-2004, whereas Mohd.
Kadir transferred the lease to Smt. Tanveer and Sharif Khan by
splitting the plot in two parts, and one part was sold to the parents of
the petitioner, thus, the petitioner who has obtained the possession
from his parents, is in illegal possession of the said lease as it is
apparent from the lease agreement itself that it was valid for a period
of 30 years only.
8] Learned counsel for the petitioner has also drawn the attention
of this Court to conditions No.16 and 17 of the Lease agreement
which provide that in case if the lease is transferred without the
permission of the Development Authority, the Authority shall have
the right to cancel the lease, and also if the lease is used for
commercial purposes despite it was granted only for residential
purposes. Thus, it is submitted that the lease has been rightly
cancelled by the respondents, which is the subject matter of the civil
suit, and in such circumstances, when the injunction application has
also been rejected by the trial Court, the respondents have rightly
passed the order of vacating the premises. It is also submitted that all
the objections raised by the petitioner have already been decided by
the Board of the Authority vide order dated 13/10/2023 at the time of
cancellation of the lease. Counsel for the petitioner has also relied
upon the decision rendered by the Supreme Court in the case of R.K.
Mittal and others vs. State of U.P. and others reported as AIR 2012
SC 389 wherein it is held that:-
"56. For the reasons afore-recorded, we would dispose of the appeals of the
Development Authority, the Appellants/occupiers/ lessees, interveners and occupants
in the following terms:
1.That banking or nursing homes or any other commercial activity is not
permitted in Sector 19 and for that matter, in any sector, in the Development Area
earmarked for 'residential use'.
2. That the 21 banks and the nursing homes, which are operating in Sector 19 or any
other residential sector, shall close their activity forthwith, stop misuse and put the
premises to residential use alone, within two months from the date of pronouncement of
this judgment.
3. That lessees of the plots shall ensure that the occupant banks, nursing homes,
companies or persons carrying on any commercial activity in the residential sector
should stop such activity and shift the same to the appropriate sectors i.e. commercial,
commercial pockets in industrial/ institutional area and specified pockets for
commercial use within the residential sector, strictly earmarked for that activity in the
development Plan, Regulations and provisions of the Act.
4. That the Development Authority shall consider the request for allotment of
alternative spaces to the banks and the persons carrying on other commercial activities,
with priority and expeditiousness.
5. That the Doctors, Lawyers and Architects can use 30 per cent of the area on the
ground floor in their premises in residential sector for running their clinics/offices.
6. That for such use, the lawyers, architects and doctors shall be liable to pay such
charges as may be determined by the Development Authority in accordance with law
and after granting an opportunity of being heard. The affected parties would be at
liberty to raise objections before the Development Authority that no charges are
payable for such users as per the law in force.
7. In the event the lessee or the occupant fails to stop the offending activity and/or shift
to alternate premises within the time granted in this judgment. The Development
Authority shall seal the premises and proceed to cancel the lease deed without any
further delay, where it has not already cancelled the lease deed.
8. Wherever the Development Authority has already passed the orders cancelling the
lease deeds, such orders shall be kept in abeyance for a period of two months from
today. In the event the misuse is not stopped within a period of two months in terms of
this judgment, then besides sealing of the premises, these orders of cancellation shall
stand automatically revived and would come into force without further reference to any
Court. In the event the misuse is completely stopped in all respects, the orders passed by
the authorities shall stand quashed and the property would stand restored to the lessees.
9. These orders shall apply to all cases, where the order of termination of lease has been
passed by the Development Authority irrespective of whether the same has been quashed
and/or writs of the lessees dismissed by any Court of competent jurisdiction and even if
such judgment is in appeal before this Court.
10. The orders in terms of this judgment shall be passed by an officer not below the rank
of Commissioner. This order shall be passed after giving an opportunity to the parties of
being heard by such officer. This direction shall relate only to the determination of
charges, if any, payable by the lessee or occupant for the period when the commercial
activity was being carried on in the premises in question."
9] Heard learned counsel for the parties and perused the
documents filed on record.
10] From the record, it is found that the original lease of the
disputed land was granted in the year 1995 to one Chandraparakash
Malhotra on 30/08/1995. In the aforesaid lease, Clause 4, 16 and 17
are relevant, which read as under:-
4& izkf/kdj.k dh vuqKk ls vUrj.k dh fLFkfr esa izpfyr fu;e ¼fofu;e½
'kklukns'k ds vuqlkj vUrj.k'kqYd yhtxzfgrk dks izkf/kdj.k esa tek
djokuk gksxkA cxSj vuqKk vUrj.k Lohd`fr %Lohdk;Z% ugh gksxkA ,oa
;fn Lohd`r fd;k tk,xk rks fu/kkZfjr n.M 'kqYd izkf/kdj.k esa tek
djokuk gksxkA
-----------------------------------------------------------------------------
----------------------------------------------------------------------------
16& vkoklh; Hkw[k.M dk dsoy vkoklh; ,oa m|ku ds fy;s gh mi;ksx
fd;k tk;sxk] cxSj izkf/kdj.k dh vuqefr ds vU; mi;ksx dh fLFkfr
esa izkf/kdj.k dks yht fujLr djus dk vf/kdkj gksxkA
17& fdlh Hkh 'krZ dk mYya?ku djus ;k ikyu ugh djus dh n'kk esa
mDr 'krksZa ds vykok Hkh izkf/kdj.k dks Hkq[k.M ij iqu% izos'k dk
vf/kdkj gksxkA izkf/kdj.k dks iqu% izos'k dh frfFk ls 3 ekg ds
i'pkr Hkw[k.M ij ds leLr vifBr ,oa fuekZ.k dk;Z gVokus@gVkus
dk vf/kdkj gksxkA**
(emphasis supplied)
11] From the aforesaid Clause-4, it is apparent that the lease could
not be transferred without the permission of the respondents,
however, despite this condition, the original lessee Chandraparakash
Malhotra executed a registered sale deed dated 21/02/2002 in favour
of Mohd. Kadir S/o Abdul Rehman Khan. Thereafter, on 21/11/2003
and 01/11/2004, Mohd. Kadir Khan executed two registered sale
deeds in favour of Smt. Tanveer and Sharif Khan respectively. And
Smt. Tanveer and Sharif Khan again executed a registered sale deed
in favour of mother and father of the petitioner on 31/03/2011, and it
is only on 16/08/2023 that the respondent No.3 has issued a show
cause notice in the name of the original lessee Chandraparakash
Malhotra informing that his lease has already expired way back on
23/01/2014, and he has still not applied for renewal of the lease and
other lapses were also indicated, including that the plot has been
divided and a hotel is being run, which is also in violation of the
lease conditions. In all, Clauses 1, 3, 14, 15 and 16 were said to be
violated, and while referring to Clause 17, it is stated that in case of
violation of the terms of the lease, it is liable to be cancelled.
12] Apparently, at the time when the aforesaid show cause notice
dated 16/08/2023 was issued to the original lease holder
Chandraparakash Malhotra, the respondents were not aware that the
transfer of the lease has already happened without their permission,
and thus, Clause-4 as aforesaid was not invoked, and subsequently,
taking note of the fact that the lease has been transferred by
Chandraprakash Malhotra without the consent of the respondent
UDA, the lease has been cancelled by the UDA vide their order dated
13/10/2023, holding the same is against the lease conditions. Against
the aforesaid order of cancellation of the lease deed, one of the
neighbour of the petitioner Azizuddin Sheikh also filed W.P.
No.28375/2023 before this Court, which was dismissed vide its order
dated 08/11/2023, with the observations that the petitioner can avail
the remedy of civil suit against the said cancellation, and admittedly,
the petitioner has already filed a civil suit in the District Court at
Ujjain, in which his application for temporary injunction has already
been rejected vide order dated 22/02/2024, and its appeal has also
been rejected by the Additional District Judge, Ujjain vide its order
dated 12/07/2024.
13] Thereafter another notice has also been issued by the
respondents under Section 248 of the M.P. Land Revenue Code,
which deals with the rejection of persons unlawfully in possession of
government or public land, and its reply has also been filed by the
petitioner, which has been rejected by the respondents vide order
dated 19/06/2024, against which, another WP No.16783/2024 was
filed by the petitioner, which was again dismissed by this Court
directing the petitioner to file the reply to the show cause notice, and
it was also directed that till the petitioner's reply is decided, the
operation of the show cause notice shall be kept in abeyance for a
period of seven days to enable him to assail the same in accordance
with law. Thus, the petitioner again filed the reply to the said show
cause notice, which has again been rejected vide impugned order
dated 25/09/2024.
14] In the considered opinion of this Court, the petitioner has not
been able to demonstrate any prima-facie case in his favour for the
reason that it is not his case that the transfer of the lease from the
original lessee Chandraprakash Malhotra was in accordance with the
conditions of the lease deed, especially the Clause 4, that the lease
shall not be transferred without the permission of the lessor i.e.
Ujjain Development Authority. Thus, this court is of the considered
opinion that it was necessary for the original lessee Chandraprakash
Malhotra to obtain permission from the Ujjain Development
Authority before executing the sale deed in favour of the purchaser
Mohd. Kadir, and subsequently also, the same transaction has been
carried forward and the property has changed hands without there
being any permission taken by Chandraprakash Malhotra, oblivious
of the aforesaid mandatory condition, could not have been brushed
aside lightly.
15] In such facts and circumstances of the case, this Court is of the
considered opinion that the petitioner cannot claim himself to be the
lessee of the land when the initial lessee Chandraprakash Malhotra
had not obtained any permission from the Ujjain Development
Authority to transfer the lease to Mohd. Kadir from whom the
parents of the petitioner purchased the land.
16] So far as the reliance placed on Rule 22 of Rules 2018 is
concerned, the same is of no avail to the petitioner as it cannot be
applied in the given set of facts, as even Clause-7 of Rule 22, which
has been amended, refers to the word,'lease holder'and not the
possessor. For the ready reference, Clause-7 of Rule 22 is reproduced
as under:-
"(vii) If the lease holder submits an application in writing during the
process of cancellation of lease deed for mitigation of lease terms,
then by taking actions as mentioned herein below the process of
cancellation and reentry can be stayed/cancelled but the process of
mitigation will not be possible after the re-entry in the property."
(emphasis supplied)
17] Thus, it is the lease holder only who can submit an application
for mitigation of lease terms and not the possessor of the property
who has been sold the property by the original lease holder without
the permission of the lessor UDA.
18] So far as the decision relied upon by learned counsel for the
petitioners in the case of R.K. Mittal and others (supra) is
concerned, the same is distinguishable on facts as in the aforesaid
case, the question before the Supreme Court was whether the action
of the development authority in permitting mixed user was in
violation of the statutory provisions in the Master Plan, whereas, in
the present case, the lease was transferred through a registered sale
deed without obtaining the prior permission from the Ujjain
Development Authority, which was a condition precedent for such
transfer.
19] In such circumstances, this Court does not find any substance
in these petitions, as no illegality or error is found to have been
committed by the UDA in passing the impugned order. Accordingly,
the petition stands dismissed and disposed of.
20] Original copy of the order be kept in WP No.30278/2024 and a
copy whereof be placed in connected petitions.
Sd/-
(SUBODH ABHYANKAR)
JUDGE
krjoshi
