Ajay Kumar Chauhan And Anr vs The State Of Chhattisgarh And Ors on 26 November, 2024

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Chattisgarh High Court

Ajay Kumar Chauhan And Anr vs The State Of Chhattisgarh And Ors on 26 November, 2024

1. The intervention application has been filed by one Ashok Arya. Since the lis is between the petitioners, Corporation and the State, the intervenor has no locus standi, therefore, the intervention application filed by Mr. Ashok Arya is rejected.

2. The petitioner has filed this writ petition assailing the notice dated 08.09.2000, order dated 16.02.2001 and communication dated 03.03.2001 whereby by way of impugned notice dated 08.09.2000, the Commissioner of the Municipal Corporation sent proposal for cancellation of the building permission to the State Government which was granted to the petitioner on 23.10.1996 and 19.08.199, vide impugned order dated 16.02.2001 the State Government canceled the building permission and vide communication dated 03.03.2001, a notice under Section 307 of the Municipal Corporation Act, 1956 has been issued to the petitioner for removing the construction.

3. The brief facts as reflected from the record are as under :-

A. the present Municipal Corporation, Bhilai earlier known as Special Area Development Authority, Bhilai (hereinafter referred to as SADA, Bhilai) which was constituted in pursuance of Section 64 of M.P. Nagar Tatha Gram Nivesh Adhinium, 1975 vide registered Lease dated 5.11.95 allotted 363.15 sq.ft. to one Sanjay Kumar Chauhan, who subsequently gifted the same to the petitioner Ajay Kumar Chauhan vide gift-deed dated 6.8.1999 valued at Rs.3,15,450.00. Similarly, SADA, Bhilai vide registered Lease dated 9.6.95 allotted 363.15 sq.ft. of plot for a period of 30 years to one Arun Kumar Chauhan, who also subsequently gifted the same to the Page 3 of 24 petitioner Ajay Kumar Chauhan vide gift-deed dated 6.8.1999 valued at Rs.2,82,800.00. Likewise, SADA, Bhilai also vide registered Lease deed dated 9.6.95 allotted 363.15 sq.ft. of plot for a period of 30 years to one Vijay Kumar Chauhan, who in a similar manner gifted the same to the petitioner Ajay Kumar Chauhan vide gift-deed dated 7.9.1999 for Rs.3, 15,450.00. The petitioner Ajay Kumar Chauhan also purchased the rights of one Narhar Prasad Tiwari vide registered sale deed dated 6 th August, 1999 for Rs.2, 63,800/-, area 363.15 sq.ft. Similarly, the rights of one Chhotelal son of Sevak Ram Patel were also purchased by the petitioner Ajay Kumar Chauhan for consideration of Rs. 2,18,650.00 regarding plot area 363.15 sq.ft.. Sanjay Kumar Chauhan, Arun Kumar Chauhan and Vijay Kumar Chauhan also were granted due permission by SADA, Bhilai in relation to transfer of lease for mutation etc. The petitioner No.2 Smt. Durga Bai was also granted lease by SADA, Bhilai with regard to plot area 2250 sq.ft. for Rs.1.54.688.00 and lease for area 8170 sq.ft. for Rs.1,47,060.00 vide registered agreement dated 03.08.1995 and lease for area 6351 sq.ft. for Rs.1,90,530.00 vide registered agreement dated 02.09.1996 and a further lease was granted for area 1680 sq.ft. for Rs.63,000/- in favour of petitioner No.2 vide registered agreement dated 13.11.1998. Copy of the gift-deeds, sale deeds have been filed as Aneexure P/1 to P/5.

B. Thereafter, the SADA, Bhilai vide its order No. VII/2/185/140/35/ 4195 dated 23.10.1996 (Annexure P/11) granted building permission to the petitioners for all the aforementioned 10 plots situated at Shastrinagar Supela for professional utilisation. The said permission was renewed on 09.10.1997 and made effective upto 23.10.1998 and again renewed upto Page 4 of 24 08.10.1999. It is also the case of the petitioners that in pursuance of the permission granted by the SADA, the petitioners had constructed the building in ground floor in about 11,900 Sq.ft. Area as evident from the certificate dated 04.01.1999 issued by the Municipality Durg. C. Thereafter, one Triloknath made a complaint against the petitioners to the Municipal Corporation alleging conversion of residential premises into commercial premises. The Nazul Officer taking cognizance of the complaint issued notice to the petitioner for appearance and submission of reply on 27.03.1999 vide memo dated 23.3.1999. The petitioners have not filed any documents to demonstrate that any decision has been taken by the competent authority with regard to the complaint made by the complainant only report submitted by the Nazul Officer dated 01/07.07.1999 has been submitted along with the petition. The Deputy Director, Town and Planning has sought information from the Corporation on the complaint made with regard to construction of Chauhan Plaza alleging that the permission was granted for 72% of the total area for construction whereas as per the Development Scheme construction at 50% is permissible whereas on spot inspection only 52% area has been constructed therefore, it should be regularised. It has also been sought under which provision the orientation of constructed area has been changed to commercial purposes be explained. The Municipal Corporation has submitted its reply referring to the various provisions of SADA specifically mentioning that the provisions of Section 50(1) to Section 50(7) of the Act, 1975 are not applicable to SADA. It has also been informed as per the page 221 of Development Scheme Bhilai paragraph 104(7) the Rules for commercial development have been Page 5 of 24 mentioned wherein there is a provision of construction of 80% of the plots therefore, 72% plot area has been allowed to be constructed. The Dy. Director vide its memo dated 25.11.1999 has given concurrence with the reply.

D. The Deputy Director, Town and Country Planning also sought explanation on 18.10.1999 from the Municipal Corporation with regard to construction of the Chauhan Plaza which has been replied on 13.11.1999 by the Corporation that the Assistant Director S.K. Telang was authorised by the SADA to exercise the power under the Act, 1975 who has granted permission as per the proposal number 06 dated 13.01.1995 and it has been also mentioned that the commercial area has been extended and the construction is as per the modified map and there is no violation of any order of the State Government or any authority. Thereafter, the State of M.P. Secretary Town and Urban Development Department vide memo dated 12.05.2000 has issued notice informing that the trees are illegally been fell down as such why the permission granted on 28.10.1996 and 23.10.1999 be not withdrawn. The petitioners submitted their reply on 27.05.2000 (Annexure P/22) mentioning the factual matrix and also stated that permission has been granted after following due process and the then SADA has allotted the land to the petitioners wherein after getting permission he has done construction, as such prayed for closure of the proceedings.

E. The Commissioner on 08.09.2000 (Annexure P24) recommended to respondent No. 1 that the Building Permission granted to the petitioners may be cancelled under Section 299(A) of the Act of 1956. Mayor of the Corporation after getting information of the matter requested respondent Page 6 of 24 No. 1 on 20.09.2000 to stay the proceeding the proposed against the petitioners as the Mayor in Council is considering the matter, but no action has been taken on the request made by the Mayor of the Corporation. F. Being aggrieved with the continuous harassment the petitioners preferred writ petition No. 5820/2000. Hon'ble High Court of M.P. passed interim-order in favour of the petitioner on 13.10.2000. Thereafter the case was again listed before the Hon'ble Court on 19.10.2000 on which date again interim order was extended and the matter was directed to be listed on 9.11.2000. During the pendency of the writ petition, respondent No.1 issued notice to the petitioner on 23.12.2000. The petitioners submitted reply on 10.01.2001. The respondent No. 1 vide impugned order dated 16.02.2001 cancelled the permission granted to the petitioners on 23.10.1996 and 19.08.1999. Pursuant to the said order, the respondent-Corporation issued demolition notice dated 03.03.2001 to the petitioners to demolish the construction by 10.03.2001, failing which the same shall be demolished by the Corporation. Being aggrieved with the same the present writ petition has been filed by the petitioners wherein this Court vide order dated 03.02.2001 stayed the impugned orders dated 16.02.2001 and 03.03.2001. At present, as per the Master Plan the 'Chauhan Plaza' has been shown as land reserved for 'commercial' purpose.

4. The petitioners have filed present petition contending that in the past the department of Housing and Environment of erstwhile Government of Madhya Pradesh (hereinafter "GoMP") vide order dated 28/10/1986 has delegated the powers under Section 28 of the Nagar Tatha Gram Nivesh Adhiniyam, 1973 to Assistant Director, Town & Country Planning and Page 7 of 24 further vide circular dated 10/08/1987 prescribes that the power to grant building permission in a property situated within the Special Area Development Authority area, constituted under Section 65 of the Nagar Tatha Gram Nivesh Adhiniyam, 1973 would lie with the SADA only. The Deputy Director, T&CP, Durg has approved the layout of the Shastri Nagar Project which was a rapidly growing commercial area at that point of time, wherein, the plots of petitioner are situated. The petitioners also had obtained some adjacent plots by way of lease deed and gift deed, thus in total the petitioners had 09 adjacent plots (Plot No. 1,2,3,4,5,274,275,344,552) upon which the petitioner planned to develop the building for commercial purposes. The SADA committee in its meeting dated 13/1/1995 and vide its resolution No. 6, has authorized the Asst. Director T&CP and also posted as Chairman in SADA to exercise the powers u/s 69 (b) read with Section 29 and 16 of the Act of 1973. Later SADA Bhilai on 09/06/1995, 03/08/1995 and 15/11/1995 have executed various registered lease deeds in favor of Arun Kumar Chauhan, Vijay Kumar Chauhan, Smt. Durga Bai, Sanjay Kumar Chauhan, Narhar Prasad Tiwari and Chotelal Patel as well as the petitioners herein, plots for a period of 30 years for commercial purpose and further the aforesaid lessee's have also executed Power of Attorney in favour of Petitioner No. 1 Ajay Kumar Chauhan in respect of leased plot for various purposes, i.e. raising commercial structure, signing etc.

5. Later on, after approval of the layout plan of Shastri Nagar Scheme vide dated 12/07/1991 and allotment of various plots in pursuance thereof and further looking into the heavy commercial activity and commercial establishment near the plots adjacent to the GE Road, the SADA in Page 8 of 24 exercise of its power u/section 25, 28 read with 69 (b) of the Act of 1973 proposed for the amendment of the layout plan of Shastri Nagar Scheme and the same was approved by the Asst. Director, T&CP u/s 25, 28 read with 69 (b) of the Act of 1973 and the proposed amendments dated 11/06/1996 for conversion of some of the residence into commercial purpose which was later approved by T&CP . Accordingly, 57 different development schemes have been amended and approved u/s 69 (b) of Act of 1973, including the plots in question at Shastri Nagar Market Scheme. Further, the SADA communicated vide letter dated 11/12/1997 the amendment and approval of the layout plan in exercising power u/ Section 69 (b) to Secretary, Dept. of Environment and Urban Development. After the permission of change in land use by the amendment in the layout by the SADA, the petitioners moved an application for grant of building permission which has been duly granted by the SADA on 23/10/1996 further renewed on 23/12/1998, in pursuance of which the petitioner duly raised construction of the commercial building and after complying with the provisions of the law. The authorities of respondent corporation/SADA have granted building completion certificate (BCC) to the petitioner on 04/01/1999 and allowed the mutation application of the petitioner on 05/08/1999 with respect to the subject plots and have also permitted transfer of rights of remaining plots in name of the petitioner.

6. It has been further contended that the respondent corporation also granted building permission for 1st floor of the building to the petitioner vide dated 19/08/1999. The Respondent Corporation has also informed the factual matrix with regard to the property occupied by the petitioners Page 9 of 24 and their commercial use in details to the Dy. Director T&CP. The respondent Corporation have also conducted an enquiry on query of Dy. Director regarding the commercial construction of the petitioner over the subject plots and vide report-cum-letter dated 13/11/1999 which have been accepted by the Dy. Director on 25.11.1999. The Commissioner of the Respondent Corporation, vide its earlier letter dated 17/11/1999 reiterated that this amendment in the layout of the Shastri Nagar Project was under Section 69 (b) of the Act of 1973 and the aforesaid amendment was within the permissible limits under the law. thus, Chauhan Plaza was constructed according to the provisions of the law. The petitioners later on after the completion of the construction of 1st floor as per the building permission, applied for the building completion certificate on 13/03/2000. However, instead thereof the respondent corporation issued a show- cause notice to the petitioner on 12/05/2000 on the same alleged grounds, which was duly replied by the petitioners on 27/05/2000, petitioners requested for grant of building permission vide dated 12/07/2000.

7. It has been further contended that the Dy. Director has also conducted a spot inspection of the entire commercial construction besides the G.E. Road including the petitioner's Chauhan Plaza and have submitted in his report to the Director T&CP on 24/08/2000 that various other commercial complexes namely Ethiraj Tower, Sahdev Complex, Dalmia Parisar and Raymond Showroom etc. are being permitted for construction and are functioning besides the Chauhan Plaza in the same line and depth as of the Chauhan Plaza situated facing the G.E. Road. Inspite of the aforesaid, the Respondent Corporation, have written a letter vide dated 08/09/2000 Page 10 of 24 to the Respondent State wherein it has been proposed to cancel the building permission dated 23/10/1996 & 19/08/1999 granted to the petitioners under purported exercise of power under section 299(A) of the Municipal Corporation Act, 1956. Surprisingly, on 16.02.2001 Respondent State proceeded to cancel the building permission dated 23.10.1996 and 19.08.1999, therefore, the same is arbitrary, illegal and suffers from malafides and deserves to be quashed by this Court.

8. The State has filed its return contending that permission was granted for commercial purpose by the SADA which is against the norms to be maintained for opening of the shop in a residential area. As per circular dated 02.08.1992 of the Erstwhile State of Madhya Pradesh, Department of Housing and Environment, the SADA has no authority to change the land use. The permission of commercial plot is violation of Clause 9.4(1) Sub Clause (2) and (3) of the Development Plan. The circular dated 02.08.1992 has been withdrawn on 05.10.2000 as such it was applicable in the present case. It has also been contended that commercial allotment in a residential area without layout approval is a violation of Section 29 of the Chhattisgarh Nagar Tatha Gram Nivesh Adhinium, 1973, therefore, Respondent State has rightly cancelled the building permission dated 23.10.1996 and 19.08.1999 and would pray for dismissal of the writ petition. It has been further contended that on the date of passing of the impugned order dated 16.02.2001, the Circular dated 02.08.1992 was withdrawn, the powers in respect of amendment in the approved layout is vested to the appellate authority as per Section 31 and 32 of the Act of 1973 and the Revisional Page 11 of 24 Authority has the power to consider the application for amendment of the approved layout, therefore, the State has not committed any illegality or perversity in quashing the building permission granted to the petitioners for Chauhan Plaza.

9. Respondent No. 4 has filed return contending that the petitioners were illegally allotted the residential lands as commercial lands contrary to the master plan of Bhilai adjoining GE Road, National Highway. The building permission of the ground floor was granted treating the different pieces of land as one unit. When the petitioners have applied for construction of the first floor, the said permission was granted taking into consideration the first permission dated 23/10/1996, the building permission for first floor was granted on 19/10/1999. It has also been contended that when the complaints were made and inquiry was conducted, certain irregularities were found and noticed. It was found that the construction of building by way of encroachment in the area of drainage and land kept for green belt. It was also observed that the land which was reserved for residential purpose under the Master Plan of Bhilai was leased out to the petitioners for commercial purposes contrary to the Master Plan and Building permissions were also granted. The original lease was granted for construction of individual shops but subsequently it was used for construction of shopping complex which is violation of Section 108(O) of the Transfer of Property Act, 1882 and Rule 36 of the Chhattisgarh Nagar Thatha Gram Nivesh Viksit Bhoomiyo, Griho Bhavano Thatha Anya Sanrachnao ka Vyayan Niyam, 1975. The Municipal Corporation has no authority to change the use of the land as per circular dated 02.08.1992. The commercial allotment in residential area without layout approval is Page 12 of 24 violation of Section 29 of the Act of 1973. The State government has passed the order and assigned certain reasons, therefore, no interference is called for with the impugned order by this Court and would pray for dismissal of the writ petition.

10.Learned counsel for the petitioners would submit that the Respondent State has duly authorized the SADA to exercise powers to grant building permission within its area and the committee of the SADA have also duly authorized its Chairman, who was also the Dy. Director of the Town & Country Planning Department, to exercise powers u/Section 69(b) of the Nagar Tatha Gram Nivesh Adhiniam of 1973. Furthermore, in exercise of power u/section 69(b) of the Act of 1973 his land been declared as commercial by the then SADA and has never been rejected by the State. Therefore, the impugned order deserves to be quashed. Even otherwise, the impugned order dated 16/02/2001 shows that some report of Deputy Director was also considered by the Secretary, however, that report was never shown nor the copy of the same was ever supplied to the petitioner therefore it is violation of the principles of natural justice and deserves to be quashed in view of the law laid down by the Hon'ble Supreme Court in case of T. Takano vs. SEBI {(2022) 8 SCC 162}. He would further submit that Sections 31 and 32 deal with the provisions of appeal and revision but these sections do not deal with amendment in the approved layout plan. He would further submit that the respondent authorities cannot improve the stand once taken. The permission for Page 13 of 24 commercial plot was granted by the Town and Country Planning Department in exercise of power under Section 69(B) read with Sections 25 and 28 of the Act of 1973. He would further submit that the conjoint reading of Sections 27, 28, 29 read with Section 69(b) of the Act of 1973 would reveal that the area falling within the jurisdiction of Town & Country Planning Department is governed by powers exercised by the Director, however, the Chapter VIII of the Act of 1973 carves out a special situation wherein the law provides for special areas apart from the T&CP areas which are specifically governed by the law as provided in Chapter VIII, thus meaning thereby that the territorial jurisdiction of an area falling within the limits of Town & Country Development is different from the territorial jurisdiction of SADA and this intention of law further finds its strength by virtue of Section 69 of the Act of 1973 which very specifically empowers the SADA to exercise the powers of Director with respect to the area falling within its jurisdiction. This fact also finds strength from the letter dated 05/12/1995 issued by the Director T&CP, wherein it is specifically specified that the control of planning area lies within the jurisdiction of the Director, however, the control of Planning of special area lies within the exclusive domain of the SADA, therefore, the impugned order dated 16.02.2001 is bad in law.

11.Learned counsel for the respondents would reiterate the stand taken by them in the return and would submit that the circular dated 02.08.1992 has been withdrawn before passing of the Page 14 of 24 order, therefore, the power in respect of amendment in the approved layout is vested with the appellate and revisional authority, as such, the permission to change the approved lay out by the Dy. Director and SADA is without jurisdiction, non-est and would pray for dismissal of the writ petition.

12. I have heard learned counsel for the parties and perused the record.

13. From the pleading made by the parties, the points emerged for determination are:-

a. whether the amendment in the approved lay out made by the Assistant Director S.K. Telang who was authorised by the SADA on 13.01.1995 is legal and justified in view of the amendment made in Section 64 and 69 of the Act of 1973 when theses sections have been amended by Amendment Act of 14/1994 or not?

b. whether the petitioners were subjected to hostile discrimination as others neighbouring properties of Shastri Nagar GE Road have been converted in commercial property except the petitioners and considering the fact that in the Bhilai Durg Develop Scheme (Review) 2031 the area is earmarked as commercial?

14. To appreciate the issue raised in this writ petition, it is expedient for this Court to get survey of relevant provisions of the Act of 1973 which stood prior to amendment are as under :-

29. Application for permission for development by others.

- [(1) Any person, not being the Union Government, State Government, a local authority or a special authority constituted under this Act, intending to carry out any development on any land, shall make an application in Page 15 of 24 writing to the Director for permission, in such form and containing such particulars and accompanied by such documents complying with the provisions of Acts, rules and bye-laws relating to development, control of the natural hazard prone area as may be prescribed.] (2)Such application shall also be accompanied by such fee as may be prescribed.

30. Grant or refusal of permission.

(1)On receipt of an application under Section 29 the Director may, subject to the provisions of this Act, by order in writing,-

(a)grant the permission unconditionally;

(b)grant the permission, subject to such conditions as may, be deemed necessary under the circumstances;

(c)refuse the permission.

(2)Every order granting permission subject to conditions, or refusing permission shall state the grounds for imposing such conditions or for such refusal.

(3)Any permission granted under sub-section (2) with or without conditions shall be in such manner as may be prescribed.

(4)Every order under sub-section (2) shall be communicated to the applicant in such manner as may be prescribed.

(5)If the Director does not communicate his decision whether to grant or refuse permission to the applicant within six months from the date of receipt of his application, such permission shall be deemed to have been granted to the applicant on the date immediately following the date of expiry of six months :

Provided that in computing the period of six months the period in between the date of requisitioning any further information or documents from the applicant and date of receipt of such information or documents from the applicant shall be excluded.

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 foes as may be prescribed.

Page 16 of 24

(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.

32. Revision.

The State Government may, at any time, but not later than twelve months of the passing of the order, on its own motion or on an application filed by the person aggrieved by any order of the appellate authority under Section 31 within thirty days of the date of communication of such order to him, call for and examine the record of any case disposed of by Director under Section 30 or appellate authority under Section 31 for the purpose of satisfying itself as to the correctness of the order and as to the regularity of any proceeding of the Director or the Appellate Authority and may, when calling such record direct that the execution of the order be suspended. The State Government may, after examining the record, pass such order as it thinks fit and its order shall be final and no further application for revision or review thereof shall lie;

Provided that no order shall be passed unless the person affected thereby and the Director have been given a reasonable opportunity of being heard.

64. Constitution of special areas.

(1)If any area, town or township, is designated as a special area in the regional plan, or if the State Government is otherwise satisfied that it is expedient in the public interest that any area, town or township should be developed as a special area. It may, by notification, designate the area as a special area, which shall be known by such name as may be specified therein.

(2)Such notification shall define the limits of special area. (3)The State Government may, by notification,-

(a) alter the limits of the special area so as to include therein or exclude therefrom such area as may be specified in the notification;

(b)declare that the special area shall cease to be so. (4) [Omitted by M.P. Act No. 14 of 1994.] Notwithstanding anything contained in the M.P. Municipal Corporation Act, 1956 (No.23 of 1956), the M.P. Municipalities Act, 1961 (No. 37 of 1961) or the Madhya Pradesh Panchayats Act, 1962 (No. 7 of 1962), the Municipal Corporation, Municipal Council, notified Area Committee or a Panchayat, as the case may be, shall, in relation to the special area and as Page 17 of 24 from the date the Special Area Development Authority undertakes the functions under clause (v) or clause (vi) of section 68 cease to exercise the powers and perform the functions and duties which the Special Area Development Authority is competent to exercise and perform under this and and Act.

68 . Function :-

The functions of the Special Area Development Authority shall be,-

(i)to prepare, if required to do so, inc development plan for the special area;

(ii)to implement; the development plan after its approval by the State Government;

(iii)for the purpose of implementation of the plan, to acquire, hold, develop, manage and dispose of land and other property.

(iv) [Omitted by M.P. Act No. 14 of 1994.] to carry out construction activity and to provide such utilies and amenities as water, electricity drainage and the like;

(v) [Omitted by M.P. Act No. 14 of 1994.] to provide for the Municipal services as specified in sections 123 and 124 of the Madhya Pradesh Municipalities Act, 1961 (No. 37 of 1961)

(vi) [Omitted by M.P. Act No. 14 of 1994.] to provide for the Municipal management of the special area in the same manner as is done by a Municipal Council of the first class constituted under Section 4 of the Madhya Pradesh Municipalities Act, 1961 (No. 37 of 1961)

(vii) to otherwise perform all such functions with regard to the special area as the State Government may, from time to time, direct ;

Provided that functions specified in clauses (v) and

(vi) shall not be performed unless so required by the State Government.

69. Powers.

- The Special Area Development Authority shall,-

(a)for the purpose of acquisition of land, exercise the powers and follow the procedure which a Town and Country Development Authority have or follows under this Act;

(b)for the purpose of planning, exercise the powers which the Director has under this Act;

(c) [Omitted by M.P. Act No. 14 of 1994.] for the purpose of municipal administration, have the powers which a municipal council has under the Madhya Pradesh Page 18 of 24 Municipalities Act, 1961 (No. 37 of 1961)

15. The petitioners have filed additional documents along with the affidavit wherein they have annexed the letter dated 12.07.1991 written by the Assistant Director, Town and Planning Durg by which development permission has been granted on the condition that the entire land was owned by SADA and for area described in red colour separate permission for development should be obtained. The permission of construction of house is also required from Building Officer, SADA. The petitioners have also filed the notesheets and minutes of meeting held on 13.01.1995 of the authority committee wherein the proposal No. 6 was as under :-

"It is resolved that in exercise of power under 69(b) of the Act of 1973 the Authority is empowered to exercise power of directors as such, the Assistant Director Mr. S.K. Telang of Town and Country Department who is on deputation with SADA is authorized to exercise power under Section 29 read with Section 16 of the Act of 1973 to approve the master plan for carrying out Town Development Scheme.

16. The petitioners have also annexed the notesheet dated 13.01.1995 wherein a proposal was made with regard to change of master plan under Section 25 and 28 of the Act of 1973. By the said proposal it has been proposed in the GE Road that there was pressure of traffic on account of business activities therefore, the depth of the area 7.5 meter towards North and 30 Page 19 of 24 meter was proposed for commercial purposes. The same was approved by the Assistant Director, Town and Planning Department Durg. The petitioners have also filed documents dated 15.01.2024 wherein under the Durg Bhilai Development Scheme (Review) 2031 the said land has been declared as commercial land. The petitioners have also annexed the circular dated 02.06.1992 which provides that, if any, master plan is accepted by the State Government then without the permission of the State Government no permission for vacant plots can be granted. The petitioners have also annexed the additional documents dated 05.10.2000 which provides that the Director Town and Planning and their sub-ordinate officers are not authorized to amend / change in the master plan and master plan can be amended by the Appellate Authority or revisional authority within the stipulated time period or under the provisions of law. The petitioners have contended that the amendment in the layout or plan of the special planning area has been duly forwarded by the SADA on 11.12.1997 to the Secretary of the concerned department and the same has never been rejected by the State and it has been further contended that 16 different projects have been amended in exercise of power conferred under Section 69(b) of the Act, 1973 by the SADA and the petitioners cannot be treated differently when 100s of other projects have been amended and currently functioning as commercial projects after amendment in the layout.

17. The State has taken specific stand in their return that the SADA Page 20 of 24 has no authority to change the layout plan or amend it as per the Section 69(a) of the Act, 1973 and letter dated 23.05.2000 has also been filed as Annexure R/2 wherein it has been clearly held that the power conferred under Section 69(b) lies with SADA with regard to acquisition of land, exercise of power and follow the procedure which a Town And Country Authority have or follow under this Act, amendment rights lie with the State Government, therefore, the matter should be taken up in the revision. Thereafter, they have also filed additional affidavit on 25.06.2024 wherein they have reiterated the stand that the permission was granted for use of the land as commercial purposes by the SADA is against the norms to be maintained for opening of the Shops and in view of Circular dated 02.08.1992 the SADA has no authority to change the land use. It has also been contended that commercial allotment in a residential area without layout approval is also in violation of the provisions of the Act. It has also been contended that the circular dated 02.08.1992 has been withdrawn by the State 05.10.2000 before passing of the order. It has also been contended that power in respect of amendment in the approved layout has been vested with the appellate and revisional authority as per Section 31 and 32 of the Act of 1973.

18. From the above factual matrix and also considering the provisions of Act 1973 before amendment, it is quite vivid that the SADA as per subsection (4) of the Act can function as power conferred to the Municipal Corporation under the M.P. Page 21 of 24 Corporation Act, 1956, M.P. Municipality Act, 1961 and M.P. Panchayat Act, 1962 as Municipal Corporation, Municipal council, notified area committee or a Panchyat, this Section has been deleted and Clause 4 has been omitted vide the Amendment Act of 14/1994, as such, after amendment the said power does not exist with SADA as evident from amended Section 64. Similarly, the Section 68 defines the function of the SADA and this Section before amendment gives power to carryout various activities and also to perform all such functions with regard to the special area as the State Government may from time to time direct. This Clause further provides that this power cannot be exercised unless so required by the State Government. After amendment the said functioning of the SADA has been deleted. Section 69 gives various powers to SADA including the power which municipal corporation authorities enjoys under the M.P. Municipality Act, 1961, this provisions have been deleted vide Amendment Act 14/1994. The provisions of amended Act and preexisting Act has come up for consideration before the High Court of Madhya Pradesh in case of Bhilai Steel Plant vs. SADA, Bhilai and Others {AIR 1991 M.P. 332} wherein the High Court has held as under :-

10. The ultimate attack to the assessment and demand of property tax is based upon the agreement Annexure-F, contention being that the SADA is, estopped from demanding property-tax contrary to and in derogation of the terms of that agreement. Before considering this plea, we wish to make it clear that Clauses (3) and (5) of the agreement do not exempt the petitioner from payment of property tax. Indeed, while Section 69 of the Nivesh Adhiniyam empowers the SADA to exercise same powers Page 22 of 24 which the Municipal Corporation may have for the purpose of municipal administration, it does not permit SADA to exempt any property from payment of property tax.

Sections 162 and 163 of the Municipal Corporation Act alone permit exemption from payment of property tax for certain duration. We, however, find it difficult to agree that Section 69 of the Nivesh Adhiniyam also entitles the SADA to exercise functions and jurisdiction as the Municipal Corporation and the Government may exercise under Sections 162 and 163 of the Corporation Act.

19. Now coming to the facts of the case it is quite vivid that the decision to delegate the power to Mr. S.K. Telang, the then Assistant Director to function as authority on 13.01.1995 was admittedly after the withdrawal of the provisions which have been effected on 16.05.1994 as such the delegation without authority is non-est, therefore, the approval so granted by the SADA in exercise of power conferred by Section 69 of the Act is after deletion is nothing but illegality and deserves to struck down by this Court. The said amendments were incorporated by the State Legislature as consequence of Constitution (73rd Amendment), 1992 and the Constitution (74th Amendment), 1992. Only Panchayat, Nagar Panchayat, Muncipal Council or Municipal Corporation shall exercise power of Municipal functions. Hence, the powers given to the SADA were withdrawn. On above factual foundation and legal provisions referred to above and also considering the order impugned dated 16.02.2001 (Annexure P/35) it is quite vivid that respondent No. 1 has recorded it finding that power to amend the master plan lies with the State Government and SADA has no authority, therefore, the subsequent permission for construction of commercial premises is violation of Development Page 23 of 24 Scheme and accordingly the permission was cancelled, cannot be found faulty.

20. But considering the other submission made by the petitioners with regard to hostile discrimination alleging that other persons have been granted permission to construct commercial premises in the vicinity and in the revised master plan of Bhilai Durg (Review) 2031 the area where the property in question is situated has been declared as commercial area, therefore, the notice dated 08.09.2000, order dated 16.02.2001 and communication dated 03.03.2001 are quashed. The matter is remitted back to the Secretary, Town and Country Planning Department to decide the matter afresh keeping in view the contentions of the petitioners whether other similarly situated persons have been granted permission to use their property as commercial property and the land in question has been declared as commercial property in master plan of Bhilai Durg (Review) 2031. The petitioners are also at liberty to produce additional documents or additional pleadings to substantiate their case with regard to discrimination and plea of review Master Plan 2031. This Court has stayed the effect and operation of the notice vide order dated 07.03.2001 and impugned order is continued till today. Since, this Court has remitted the matter to the Secretary for fresh adjudication the interim order passed by this Court shall continue for six months. The petitioners are directed to submit application for hearing of the matter within four weeks from the date of copy of the order and in turn the same shall be decided by the respondents within an outer limit of 4 months from the date of submission of the application.

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21. Consequently, the writ petition is allowed in part with aforesaid directions.

Sd/-

(Narendra Kumar Vyas) Judge Deshmukh

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Chattisgarh High Court