Madhya Pradesh High Court
Indore Treasure Town Pvt. Ltd. Thru. Mr. ... vs Housing And Environment Department on 24 April, 2018
W.P. No.19670/2017 1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
W.P. No.19670/2017
Indore Treasue Town Pvt. Ltd. & Ors v/s State of M.P. & Ors
Indore, dated 24.04.2018
Shri Sumit Nema, learned senior counsel with Shri
Vishal Baheti, learned counsel for the petitioners.
Shri Aditya Garg, learned Government Advocate for
the respondent/State.
The petitioners before this Court have filed the present
petition being aggrieved by the order dated 20.03.2014
(Annexure-P/24) passed by the Principal Secretary, State of
Madhya Pradesh, Housing & Environment Department in
respect of development plan 2021.
The petitioners' contention is that the petitioners are the
companies registered under the Companies Act, 1956 and the
owner of land admeasuring about 130 acres in Bijalpur area,
which the petitioner companies have purchased from time to
time mostly in the year 2006-08.
The petitioners/companies have further stated that the
petitioners intended to develop a residential township with
various facilities like sport complex, club house, hospital,
school, shopping center etc., therefore, purchased the land
measuring more than 130 acres in village-Bijalpur and
village-Pipiliyarao.
It has further been stated that out of total land, 15.864
hectares of land equaling to 39.200 acres was earlier
demarcated as 'Residential' in the Indore Draft Development
Plan, 2021 and it was unilaterally changed to 'Public and
Semi Public' in the Indore Development Plan, 2021 published
by the State Government. The dispute is only in respect of the
aforesaid piece of the land.
The facts further reveal that the Draft Development
W.P. No.19670/2017 2
Plan was published under Section 18 of the Adhiniyam on
13.07.2006 showing the proposed use of subject land and the
same is on record as Annexure-P/3. The land use was shown
as residential and the petitioners in order to use the land for
the residential purposes, as reflected in the Draft Residential
Land with an intention of development of integrated
residential township, collectively bought the land and they
were able to attract Foreign Direct Investment (FDI). The
total consideration paid by the company was approximately
Rupees 36 crores.
The undisputed facts reveal that the Draft Development
Plan was published under Section 18 (1) of the Madhya
Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973, on
13.07.2006 and under Section 18 (2) of the Adhiniyam, a
committee was constituted under Section 17 (2) to consider the
objections, if any, filed in the matter. As the land use was
shown as 'Residential', there was no occasion on part of the
petitioners/companies to file any objection and the companies
were satisfied with land use reflected in the development plan.
It has further been stated that to the petitioners' surprise,
final development plan was sanctioned by the State
Government on 01.01.2008 under Section 19 (1) of the
Adhiniyam and the land use in respect of 15.864 hectares
(39.20 acres) was shown as 'Public and Semi Public'. The
Indore Development Plan, 2021 is on record (Annexure-P/4).
The petitioners' contention is that the respondents have given a
complete go by to statutory provisions as contained under
Section 19 (1) and (2) of the Adhiniyam while approving the
final development plan and no opportunity of any kind was
given to the petitioners while publishing the final plan.
It has further been stated that under the Draft
W.P. No.19670/2017 3
Development Plan of the year 2006, the land use was
'Resdential', however, by way of abundant caution, in terms
of Section 23 (A) of the Adhiniyam, the petitioners have also
filed an application seeking modification of the land use from
Agricultural to Residential, as under the 1991 Development
Plan, the land use was agricultural.
It has also been stated that the Government of Madhya
Pradesh has formed a Trade and Investment facilitation
Corporation Limited (hereinafter referred as 'TRIFAC'),
which is single window of Secretariat for investment
facilitation for granting in-principle approvals to the
investment proposals having outlay of Rs.25 crores and above
in the sectors other than industry through Project Clearance
and Implementation constituted on 18.04.2006 and the
petitioners/company on 29.08.2007, submitted an investment
plan of Rupees 2,000 crores of Residential Township,
Multiplex, IT Park etc etc.
The proposal given by the petitioner was in-principle
approved by the TRIFAC and a letter was also issued by the
TRIFAC on 12.11.2007. The petitioners have further stated
that a large number of writ petitions were preferred by
identically placed persons, meaning thereby, in those cases,
where the land use was shown to be 'Residential' under the
Draft Development Plan and it was changed while publishing
a final development plan and this Court has passed an order in
W.P. No.1153/2007 on 17.06.2008 directing the respondents
to hear all the objections and to pass a reasoned order within
three months.
The petitioners have also submitted their objections on
03.07.2008 to the Principal Secretary, Housing and
W.P. No.19670/2017 4
Environment Department and also prayed for personal
hearing. It has also been brought to the notice of this Court
that the State Government being aggrieved by the order
passed by learned Single Judge, preferred an appeal i.e. W.A.
No.180/2009 and the Division Bench of this Court has
dismissed the writ appeal preferred by the State Government
on 18.02.2010.
Not only this, in the writ appeal, the Division has
directed the respondents to constitute a committee under
Section 17 (A) of the Adhiniyam and to decide the objections
raised by the land owners. The order was passed on
18.02.2010 and the same was subjected to judicial scrutiny
before the Hon'ble Supreme Court and the Hon'ble Supreme
Court has dismissed the SLP on 20.08.2010 i.e. SLP
No.22768/2010. After dismissal of the SLP, a committee was
constituted and the objections were forwarded to the
committee.
The respondents sought various information about the
ownership of the land from the petitioners and a date was
fixed i.e. 12.10.2010. The petitioners appeared on 12.10.2010
and submitted a written objection, however, the time frame
work, as fixed by the Court came to an end. As nothing was
done, another writ petition was preferred i.e. W.P.
No.7801/2011 and this Court by an order dated 26.09.2011
directed the respondents to pass an order as expeditiously as
possible. Thereafter, a contempt petition was preferred i.e.
Conc No.856/2011 and the objections of the petitioner were
rejected without assigning any reasons by passing an order on
27.08.2012. The order dated 27.08.2012 passed by the
respondents was again subjected to judicial scrutiny by filing
W.P. No.19670/2017 5
a writ petition i.e. W.P. No.7577/2012 and this Court on
29.09.2012 has set aside the order passed by the respondents
directing them to pass a speaking order afresh.
After the order was passed on 27.08.2012, the petitioner
has preferred an application under Section 23 (A) of the
Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam and
prayed alternatively to change the land use as 'Residential'.
However, in respect of the objections, which were filed before
the committee constituted under Section 17 (A) of the
Adhiniyam, the respondents have finally passed an order on
26.06.2013 rejecting the claim of the petitioner.
Shri Sumit Nema, learned senior counsel along with
Shri Baheti has vehemently argued before this Court that in
the present case, first committee was constituted as per the
directions of this Court keeping in view Section 17 (A) (1) of
the Adhiniyam and a second committee was constituted
keeping in view Section 23 (A) of the Adhiniyam, which
provides for a change of land use. His contention is that the
committee so constituted has held that the land use be
changed, however, the learned Deputy Secretary, who was
dealing with the file has rejected the claim of the petitioner.
A prayer has been made for issuance of appropriate writ
order or direction to declare the land use as 'Residential' in
light of two judgments of this Court delivered in the case of
Ghanshyamdas Sanghi Memorial Charitable Trust v/s State
of Madhya Pradesh & Another (W.P. No.2857/2016)
decided on 19.04.2017 and in the case of Nilesh Jain &
Others v/s State of M.P. & Others (W.P. No.4896/2013)
decided on 13.04.2018.
On the other hand, Shri Aditya Garg, learned
W.P. No.19670/2017 6
Government Advocate has filed the reply and has argued the
matter and his contention is that there is delay in filing the
present writ petition and in the land use, as reflected from the
Development Plan, 2021, is 'Public and Semi Public'. It has
been stated that after the judgment was delivered by the
Division Bench of this Court, a committee was constituted
under Section 17 (1)(A) of the Adhiniyam and the
committee, after hearing the petitioners, has rejected the claim
of the petitioners. In the reply, it has also been stated that the
petitioners were given opportunity of hearing and the orders
have been passed after taking into account all the grounds
raised by the petitioners, and therefore, the question of
interference by this Court doesn't arise. He has also argued
that the land use cannot be changed. It has attained finality
and no case for interference is made out in the matter on the
basis of Section 23 (A) of the Madhya Pradesh Nagar Tatha
Gram Nivesh Adhiniyam.
It has also been stated that the order passed by the
TRIFAC relied upon by the petitioners is of no use. The order
was passed based upon the presentation given by the
petitioners for investment of Rupees 2,000 crores subject to a
condition that the petitioners have requested for change of land
use under Section 23 (A) of the Madhya Pradesh Nagar Tatha
Gram Nivesh Adhiniyam, and therefore, no relief can be
granted to the petitioners.
Heard learned counsel for the parties and perused the
record. The matter is being disposed of with the consent of the
parties at admission stage itself.
In the present case, the undisputed facts reveal that a
draft master-plan was notified on 13.07.2006 and the entire
W.P. No.19670/2017 7
land i.e. 130 acres were shown to be a 'Residential'. As the
land was shown to be 'Residential", there was no occasion for
the petitioners to submit any objection, however, to the utter
surprise of the petitioners on 01.01.2008 under Section 19 (1)
of the Adhiniyam, Final Development Plan was published and
out of 130 acres, 39.20 acres was shown to 'Public and Semi
Public'.
The relevant statutory provisions which are necessary
for adjudicating the present controversy, as contained under
Sections 17, 18, 19 and 23 (A) the Madhya Pradesh Nagar
Tatha Gram Nivesh Adniniyam read as under:-
17. Contents of development plan. - A
development plan shall take into account any draft five-
year and Annual Development plan of the district
prepared under the Madhya Pradesh Zila Yojana Samiti
Adhiniyam, 1995 (No. 19 of 1995) in which the
planning area is situated and shall.
(a) indicate broadly the land use proposed in the
planning area;
(b) [allocate broadly areas or zones of land, keeping in
view the regulations for natural hazard prone areas, for-]
(i) residential, industrial, commercial or agricultural,
purpose;
(ii) open spaces, parks and gardens, green-belts,
zoological gardens and playgrounds;
(iii) public institutions and offices;
(iv) such special purposes as the Director may deem fit;
(c) lay down the pattern of National and State Highways
connecting the planning area with the rest of the region,
ring roads, arterial roads and the major roads within the
planning area;
(d) provide for the location of air-ports, railway stations,
but terminus and indicate the proposed extension and
development of railways and canals;
(e) make proposals for general landscaping and
preservation of natural areas;
(f) project the requirement of the planning area of such
amenities and utilities as water, drainage, electricity and
suggest their fulfilment;
W.P. No.19670/2017 8
(g) propose broad based regulations for zoning, by way
of guide lines, within each zone or sector of the location,
height, size of buildings and structures, open spaces,
court yards and the use to which such buildings and
structures and land may be put;
(h) lay down the broad-based traffic circulation patterns
in a city;
(i) suggest architectural control features; elevation and
frontages of buildings and structures;
(j) indicate measures for flood control, prevention of air
and water pollution, disposal of garbage and general
environmental control.
18. Publication of draft development plan. - (1)
[The Director shall publish the draft development plan
prepared under Section 14 in such manner as may be
prescribed together with a notice of the preparation of the
draft development plan and the place or the places where
the copies may be inspected, inviting objections and
suggestions in writing from any person with respect
thereto, within thirty days from the date of
communication of such notice, such notice shall specify
in regard to the draft development plan, the following
particulars, namely,-]
(i) the existing land use maps;
[(i-a) the natural hazard prone areas with the description
of natural hazards;
(ii) a narrative report, supported by maps and charts,
explaining the provisions of the draft development plan;
(iii) the phasing of implementation of the draft
development plan as suggested by the Director;
(iv) the provisions for enforcing the draft development
plan and stating the manner in which permission for
development may be obtained;
(v) approximate cost of land acquisition for public
purposes and the cost of works involved in the
implementation of the plan.
(2) The committee constituted under sub-section (1) of
Section 17-A shall not later than ninety days after the
publication of the notice under sub-section (1), consider
all the objections and suggestions as may be received
within the period specified in the notice under sub-section
(1) and shall, after giving reasonable opportunity to all
persons affected thereby of being heard, suggest such
modifications in the draft development plan as it may
consider necessary, and submit, not later than six months
W.P. No.19670/2017 9
after the publication of the draft development plan, the
plan as so modified, to the Director together with all
connected documents plans, maps and charts.
(3) The Director shall, within 30 days of the receipt of the
plan and other documents from the committee submit all
the documents and plans so received alongwith his
comments, to the State Government.]
19. Sanction of development plans. - (1) As soon
as may be after the submission of the development plan
under Section 18 the State Government may either
approve the development plan or may approve it with
such modifications as it may consider necessary or may
return it to the Director to modify the same or to prepare
a. fresh plan in accordance with such directions as the
State Government may deem appropriate.
(2) Where the State Government approves the
development plan with modifications, the State
Government shall, by a notice published in the Gazette,
invite objections and suggestions in respect of such
modifications within a period of not less than thirty days
from the date of publication of the notice in the Gazette.
(3) After considering objections and suggestions and after
giving a hearing to the persons desirous of being heard,
the State Government may confirm the modification in
the development plan.
[(4) The State Government shall publish a public notice in
the Gazette and in such other manner as may be
prescribed of the approval of the development plan
approved under the foregoing provisions and the place or
places where the copies of the approved development
plan may be inspected.
(5) The development plan shall come into operation from
the date of publication of the said notice in the Gazette
under sub- section (4) and as from such date shall be
binding on all Development Authorities constituted under
this Act and all local authorities functioning with the
planning area.
23A. Modification of Development Plan or
Zoning Plan by State Government in certain
circumstances. - [(1) (a) The State Government may, on
its own motion or on the request of a Town and Country
Development Authority, make modification in the
development plan or the zoning plan for any proposed
project of the Government of India or the State
Government and its enterprises or for any proposed
project related to development of the State or for
implementing a scheme of a Town and Country
W.P. No.19670/2017 10
Development Authority and the modification so made in
the development plan or zoning plan shall be an integral
part of the revised development plan or zoning plan.
(b) The State Government may, on an application from
any person or an association of persons for modification
of development plan or zoning plan for the purpose of
undertaking an activity or scheme which is considered by
the State Government or the Director, on the advice of the
Committee constituted by the State Government for this
purpose, to be beneficial to the society, make such
modification in the development plan or zoning plan as
may he deemed necessary in the circumstances of the case
and the modification so made in the development plan or
zoning plan shall be an integral part of the revised
development plan or zoning plan.]
(2) The State Government shall publish the draft of
modified plan together with a notice of the preparation of
the draft modified plan and the place or places where the
copies may he inspected, continuously for two days in
such two daily newspapers which arc in the approved list
of Government for advertisement purpose having
circulation in the area to which if relates and a copy
thereof shall be affixed in a conspicuous place in the
office of the Collector, inviting objections and
suggestions in writing from any person with respect
thereto within fifteen days from the date of publication of
such notice.
After considering all the objections and suggestions as
may be received within the period specified in the notice
and shall, after giving reasonable opportunity to all
persons affected thereby or being heard, the State
Government shall confirm the modified plan.
(3) The provisions of Sections 18, 19 and 22 shall not
apply for modification made by the State Government."
The dispute in the present case is only in respect of 39
acres of land, which is part and parcel of the total 130 acres of
land. Undisputedly, after various writ petitions filed before
this Court, the respondents were under an obligation to
constitute a committee under Section 17 (A) of the
Adhiniyam and a committee was constituted. The committee
has observed that in Bijalpur, over 130 acres land, a township
is being established on account of assistance of Foreign Direct
Investment (FDI) and out of the 130 acres, 39 acres of land is
W.P. No.19670/2017 11
reserve for public use, and therefore, the development of the
township is not possible.
It is true that the committee has not changed the land
use, however, the facts remains that the petitioners, keeping in
view Section 23-A of the Adhiniyam, which permits for
change of land use, have submitted an application for change
of land use. The application was submitted on 01.02.2013 and
a committee was constituted under the provisions of 23 d (1)
([k). The committee was having as many as 17 members.
Details of constitution of the High Power Committee are at
page 110 (Annexure-P/16). The committee in its meeting held
on 07.05.2013 has has held as under:-
"Ekiz- uxj rFkk xzke fuos'k vf/kfu;e ---------------------------------------23 d
¼1½ [k ds varxZr mikarj.k ds vkosnuksa ds fujkdj.k djus gsrq xfBr lfefr
dh nloha cSBd fnukad 07-05-2013 dks e-iz- fodkl izkf/kdj.k la?k ds
lHkkd{k esa lapkyd] uxj rFkk xzke fuos'k Hkksiky dh v/;{krk esa vk;ksftr
dh x;h%&
cSBd esa mifLFkr vf/kdkjhx.k@lnL;
1- Jh xqy'ku ckejk] lapkyd] uxj rFkk xake fuos'k] Hkksiky ¼v/;{k lfefr½
2- la;qDr lapkyd] uxj rFkk xzke fuos'k] lapkyukys;] ¼Vh-lh½ HkksikyA
3- la;qDr lapkyd] uxj rFkk xzke fuos'k] ftyk dk;kZy;] tcyiqj ,oa
lkxjA
4- lgk;d lapkyd] uxj rFkk xake fuos'k] ftyk dk;kZy;] NrjiqjA
5- dk;Zikyu ;a=h ¼izfrfuf/k eq[; dk;Zikyu vf/kdkjh½ tcyiqj fodkl
izkf/kdj.k] tcyiqjA
6- dk;Zikyu ;a=h ¼vk;qDr ds izfrfuf/k½ uxj fuxe] tcyiqjA
7- mi;a=h] ¼la;qDr lapkyd ds izfrfuf/k½ uxj fuxe] rFkk xzke fuos'k ftyk
dk;kZy;] lkxjA
8- Jh Mh- ds- 'kekZ] lfefr dh cSBd gsrq p;fur uxj fuos'kdA
9- Jh ch-,u- f=ikBh] izkstsDV Mk;jsDVj] e-iz- fodkl izkf/kdj.k la?k] Hkksiky]
lnL; lfpo lfefrA
cSBd esa mifLFkr vf/kdkjhx.k@lnL;
1- vk;qDr] uxj fuxe] bankSjA
2- eq[; dk;Zikyu vf/kdkjh] ftyk iapk;r] lkxjA
3- la;qDr lapkyd] uxj rFkk xzke fuos'k ftyk dk;kZy;] bankSjA
4- eq[; dk;Zikyu vf/kdkjh] bankSj fodkl izkf/kdj.k] bankSjA
5- eq[; dk;Zikyu vf/kdkjh] [ktqjkgks fodkl izkf/kdj.k] [ktqjkgksA
ftyk NrjiqjA
6- eq[; uxj ikfydk vf/kdkjh] uxj ikfydk] [ktqjkgks ftyk NrjiqjA
lfefr ds le{k fuEu pkj izdj.k j[ks x;s%&
cSBd esa izR;sd izdj.k esa vkosnd ls izkIr nLrkost ftyk dk;kZy; dk
vfHker ,oa e-iz-fodkl izkf/kdj.k la?k dk rF;kRed izfrosnu j[kk x;kA
W.P. No.19670/2017 12
izdj.k Øekad&1
1-1 fo"k;%& Jh lat; O;kl bankSj Vsªtj Vkmu izk-fy- }kjk xzke chtyiqj]
rglhy o ftyk bankSj [kljk Øekad 878@1] 878@2] 919@1@2]] 919@2]
921@1] 921@1 III 888] 877@2] 877@1] 921@1] 887@1@1] 887@2]
920 dqy jdck 10-513 gsDV- dk orZeku Hkw&mi;ksx **lkoZtfud ,oa v/kZ
lkoZtfud ls vkoklh;** rFkk xzke chtyiqj ,oa fiIy;kjko [kljk Øekad
921@3@1] 921@3@2] 921@3@3] 921@3@4] 921@3@5] 922@2]
213@1] 213@2 dqy jdck 3-809 gsDVs;j dk Hkw&mi;ksx **lkoZtfud ,oa
v/kZ lkoZtfud ls O;olkf;d** mikUrj.k ckcr~A
1-2 izdj.k dk laf{kIr fooj.k %&
iz'uk/khu Lfky bankSj uxj fuxe lhek ds vanj xzke chtyiqj ,oa
fiiY;kjko esa fLFkr gSA ;g bankSj fodkl ;kstuk esa izLrkfor 45 ehVj
pkSM+s ,e-vkj-&3 ekxZ ds lehi gS rFkk bl hkwfe ds if'pe fn'kk esa vkosnd
dh vU; Hkwfe ij vkoklh; vfHkU;kl Lohd`r gSA
1-3 vkosnd ds [email protected] esa mBk, x, eq[; eqn~ns %&
vkosnd }kjk voxr djk;k x;k gS fd bankSj fodkl ;kstuk izk:i esa ;g
Hkwfe vkoklh; Fkh ijUrq yxw dh xbZ bankSj fodkl ;kstuk 2021 esa bldk
lkoZtfud ,oa v/kZ lkoZtfud Hkwfe mi;ksx dj fn;k x;k gSA nkos vkifRr
cqyk, tkus ij vkosnd }kjk vkifRr yh xbZ ftls lquk ugh x;k ,oa bls
lkoZtfud ,oa v/kZ lkoZtfud gh j[kk x;k gSa
1-4 fofHkUu foHkkxksa dh vukifRr dk fooj.k%&
iz'uk/khu izdj.k esa jktLo foHkkx ,oa uxj fuxe dk vfhker 21 fnol esa
izkIr ugha gqvk gS ,oa bankSj fodkl izkf/kdj.k }kjk izkf/kdkjh dh izLrkfor
;kstuk esa hkwfe vkus ds dkj.k vukifRr ugh nh xbZ gSA e-iz-fo-fod--fy- }kjk
hkwfe ij ,d 33@11 ds-oh-fxzM lc Lvs'ku gsrq 30X40 ehVj txg vkjf{kr
djuk vko';d gS] dk er fn;k x;k gSA
1-5 lfefr ds lnL;ksa dk vfhker%&
I- uxj fuos'kd & tc nkos vkifRr cqykbZ xbZ rc bl Hkwfe dks vkoklh; ls
ih-,l-ih- D;ksa fd;k x;k ,oa ih-,l-ih dks gVkus dk dksbZ rdZ ugh gSA
IIlapkyd & fodkl ;kstuk 1991 esa bl Hkwfe dk mi;ksx D;k FkkA izk:i
fodkl ;kstuk 2021 esa blsa vkoklh; fd;k x;k ,oa fQj bls lkoZtfud ,oa
v/kZ lkoZtfud esa D;ksa ifjofrZr fd;k x;kA ,e-vkj&3 dk fuekZ.k dkZu
djsxk ,oa ,l-Vh-ih dk f<LpktZ fd/kj tkosxkA
III- izkstsDV Mk;jsDVj& ,e-vkj-&3 ij o"kZ 2010 ls vkt fnukad rd
izkf/kdj.k dh izLrkfor ;kstuk esa vf/kfu;e dh /kkjk 30 ds varxZr fdruh
vuqefr;kW iznku dh tk pqdh gSA
1-6 lfefr dk lkewfgd fu"d"kZ%&
iz'uk/khu LFky ds lehi vkosnd dh vkoklh; dkWyksuh gSA uxj fuxe }kjk
dksbZ vkifRr ugh yh xbZ gS ,oa izdj.k esa la;qDr lapkyd] uxj rFkk xzke
fuos'k dk;kZy; bankSj dh mikarj.k gsrq vuq'kalk ,oa bankSj fodkl
izkf/kdj.k }kjk yh xbZ vkifRr ds ifjisz{; esa fuEu fu.kZ; fy;s x;s%&
1- bankSj fodkl izkff/kdj.k dh ,e-vkj-&3 ds lehi izLrkfor ;kstuk
ij ¼'kklu ds le{k yafcr ;kstuk½ ij ''kklu fu.kZ; vuqlkj fu.kZ; fy;k
tkosA
2- ,e-vkj-&3 ds fuekZ.k esa vkus okyh ykxr dk vkosnd ls 50 izfr'kr
rd dk va'knku fy;k tkosA
3- Hkwfe ij dk;Zikyu@v/kh{k.k ;a=h e-iz-fo?kqr forj.k daiuh ds er
vuqlkj 33@11 ds-oh-xzsM lc Lvs'ku gsrq 30X40 oxZ ehVj dh txg j[kh
tkosA
mijksDr ''krksZ ds lkFk 10-513 gsDV- Hkwfe dk lkoZtfud ,oa v/kZ
lkoZtfud ls vkoklh; ,oa 3-809 gsDVs;j Hkwfe dk O;olkf;d mi;ksx gsrq
miUrj.kdh vuq'kalk dh tkrh gSA
izdj.k Øekad &2
2-1 fo"k;%& Jh latho jkBkSj Jherh deys'k jkBksj] f'k{kk ,oa lekt
W.P. No.19670/2017 13
mRFkku lfefr] xzke cjk:] ftyk lkxj }kjk ][kljk Ø- 188@1] 190@5]
190@4 dqy jdck 2-69 gsDVs;j dk va'k Hkkx jdck 1-214 gsDVs;j ds
orZeku Hkw&mi;ksx ** O;olkf;d d`f"k ,oa d`f"k ls lkoZtfud ,oa v/kZ
lkoZtfud** ¼'kS{kf.kd½ miakrj.k ckcr~ izdj.kA
2-2 izdj.k dk laf{kIr fooj.k%&
iz'uk/khu Lfky uxj fuxe lhek ds ckgj lkxj dsUV jksM dks >kalh
Nrjiqj Qksj ysu tksM+us okys iz/kkuea=h lM+d ;kstuk ij iVdqbZ xzke ds
frjkgs ls mRrj fn'kk dh vksj iVdqbZ cjk: iz/kkuea=h lM+d ij 400 ehVj
dh nwjh ij fLFkr gSA iVdqbZ cjk: ekxZ vUrr% iz'uk/khu Lfy ds le{k tkrk
gqvk yxHkx 1-4 fd-eh- dh nwjh ij ¼mRrj fn'kk½ Qksj ysu ls tqM+rk gSA "
At item No.1.6, a decision has been taken by the
committee in respect of land of the petitioners. It has been
held that 10.513 hectares land can be used for residential
purposes and 3.809 hectares can be used for commercial
purposes. It is also pertinent to note that the applications was
submitted by the petitioners on prescribed format by paying
proper fees and Section 23-A of the Madhya Pradesh Nagar
Tatha Gram Nivesh Adhiniyam provides for change of plan
on payment or levy of charge, as mentioned in the statute.
After the recommendation of the committee, the matter
went before the State Government and again noting of the file
obtained through Right to Information Act are on record. At
Page 74 and 75, the Deputy Secretary has observed that the
recommendations of the committee are not binding upon the
State Government because they have earlier passed an order
in the matter under Section 17 (A) of the Adhiniyam.
This Court has carefully gone through the Section 23
(A) of the Adhiniyam of 1973. Section 23 (A) provides for
change of land use and for this purpose, a committee was
constituted and the committee has given a positive report in
favour of the petitioners.
In the considered opinion of this Court, the
recommendations of the committee cannot be brushed aside in
W.P. No.19670/2017 14
the manner and method it has been done in the present case.
This Court in the case of Ghanshyam Das Sanghi Memorial
Charitable Trust (supra) has also considered the change of
land use and the writ petition i.e. W.P. No.2785/2016 has
been allowed based upon the recommendations of the Expert
Committee.
In another case i.e. W.P. No.4846/2013 decided by co-
ordinate Bench of this Court Nilesh Jain & Another v/s State
of M.P. & Others again a similar controversy has been looked
into. Paragraphs 18 to 26 of the same reads as under:-
"18. It is not in dispute that in
proposed development plan of Town and Country
Planning, the land use of the land in question was for
'Residential' purpose. In 2008, final development
plan was published in which the land use is changed
from 'Residential' to 'Recreational' use. The Division
Bench of this Court in Writ Appeal No.818 of 2009,
vide order dated 18.2.2010, directed for constitution
of the committee under Section 17A of the
Adhiniyam, who shall submit its opinion to the
Director and the Director to submit it to the State
Government in accordance with law, thereafter, the
State Government has to take steps in accordance
with law. The committee after considering the
objection and hearing of the parties have suggested
to change the land use to 'Residential'. The same has
been reproduced in the preceding paragraph. The
Director and the State Government without
assigning any reason passed the impugned order
whereas, in some of the matters on identical
circumstances, the report of the committee
constituted under Section 17-A was accepted and
passed an appropriate order.
19. It is true that the State Government is
not bound by such opinion and entitled to take its
own decision in the matter provided there is material
available on record to form opinion that substantial
modifications in the draft development plan was
necessary. Formation of opinion is a condition
precedent for setting the law in motion proposing
substantial modifications in the draft development
plan.
20. The formation of the opinion by the
W.P. No.19670/2017 15
State Government should reflect intense application
of mind. In the case in hand, there was no material
before the State Government for its consideration
that it has become necessary not to accept the
recommendation of the committee when in identical
circumstances, the same was accepted and the
permission was granted, I am of the view that there
has been no formation of the opinion by the State
Government to reject the recommendation of the
committee constituted under Section 17A of the
Adhiniyam.
21. I have also considered the return filed
by the State Government. There has been no
material available with the State Government, in
rejecting the proposal of the committee. There is
nothing on record suggesting as to what public
interest parameter weighed with the State
Government.
22. On due consideration of the fact and
material available on record, it is established that the
State Government took the action proposing to reject
the proposal of the committee constituted under
Section 17A of the Adhiniyam without formulating
any opinion.
23. The writ petitioners are deprived of
their right to use the land for 'Residential' purpose
for a period of more than 32 years. The authority
included the land in residential zone and in adjoining
area, the plan has been revised by the State
Government from time to time. In some of the cases,
the State Government accepted the report of the
same committee constituted under Section 17A
whereas in the present case, the constituted
committee has given a report in favour of the
petitioner as no one raised any objection and
members of the committee unanimously decided to
accept the proposal and recommended the writ
petitioners to change the land use from 'Recreational'
to 'Residential', but the State Government without
any reason turned down the aforesaid proposal
knowing well that the adjoining land owners are
utilizing their land for residential purpose. The
reasons for the formation of the belief must be held
in good faith and should not be a mere pretence
24. The respondent No.4 in his reply very
categorically admitted that, Scheme No.95 was
dropped. It is not disputed by the State that the
adjoining area has been declared as residential.
25. In the reply filed on behalf of the State
Government, it was averred that the action as per
W.P. No.19670/2017 16
Section 18 and 19 of the Adhiniyam. The State
Government though it fit to classify the land in
question for recreational use, park area, without
considering the fact that there is a specific pocket for
recreational and park has been developed by them.
There is nothing on record suggesting as to what
public interest parameter weighed with the State
Government. The State Government took the action
proposing to make substantial modifications to the
plan without forming any opinion, which is a
condition precedent for the use of power under the
provision of the Adhiniyam. The impugned action
has been taken by the State Government without
applying its mind to the aspect of necessity or
without forming honest opinion on that aspect, it
will, I have no doubt, be void. In identical
circumstances, the coordinate Bench of this Court
considering the question involved in this writ
petition in great detail passed the following order in
W.P.No.2785 of 2016 (Ghanshyamdas Sanghi
Memorial Charitable Trust V/s. State of Madhya
Pradesh & Anr.) :-
"The undisputed fact of the case reveals
that the petitioner is a registered trust
registered under the M.P. Public
Registration Act, 1951 and the
respondents are State of Madhya
Pradesh and the authorities under the
Madhya Pradesh Nagar Tatha Gram
Nivesh Adhiniyam, 1973. It is also an
undisputed fact that in light of the
provisions as contained under the the
Act, 1973, in the year 1975,
development plan 1991 was introduced
and the land of the petitioner-trust was
designated as regional park. The total
land owned by the petitioner trust is 7.78
Acres and the other portion of the land
which was designated as regional park is
4.5 Acres owned by Ms. Seema Sanghi.
Facts further establish that the land
could not be used nor was required for regional park and the petitioner applied to the State Government under Section 35 of the Act, 1973 and requested to delete the designation of the said land as regional park and permit the petitioner to use the said land for residential purpose and the State Government in exercise of powers conferred under W.P. No.19670/2017 17 Section 35 of the Act, 1973, deleted the said land use and pass an order on 16.12.1980 permitting the petitioner to use the land for residential purpose. The aforesaid order was passed by the State Government in exercise of powers under Section 35 of the Act, 1973. Section 35 of the Act, 1973 reads as under:-"
"35. Deletion of reservation of designated land from draft or final development plan. - (1) The appropriate authority, if it is satisfied that the land is not or is no longer required for the public purpose for which it is plan, or the final development plan or zoning plan may request -
(a) the Director to sanction the deletion of such designation or reservation or allocation from the draft development plan or zoning plan; or
(b) the State Government to sanction the deletion of such designation or reservation or allocation from the final development plan or zoning plan.
(2) On receipt of such request from the appropriate authority, the Director or, as the case may be, the State Government may make an order sanctioning the deletion of such designation or reservation or allocation from the relevant plans :
Provided that, the Director or, as the case may be, the State Government may, before making any order, make such enquiry as he it may consider necessary and satisfy himself/itself that such reservation or designation or allocation is no longer necessary in the public interest.
(3) Upon an order under sub-section (2) being made, the land shall be deemed to be released from such designation, reservation or, as the case may W.P. No.19670/2017 18 be, allocation and shall become available to the owner for the purpose of development as otherwise permissible in the case of adjacent land under the relevant plan."
It is pertinent to note that the aforesaid order was passed in respect of the land owned by the trust as well as Ms. Seema Sanghi and Ms. Seema Sanghi has already developed her land for residential purpose. Petitioner also applied for diversion of the land to be used for residential purpose and notices were issued in respect of diversion tax and the same are also on record. The petitioner has filed photographs as Annexure P-4 in order to establish that the petitioner's land is surrounded by residential colony and Ms. Seema Sanghi has already developed her land and now, residential houses are existing.
It is again pertinent to note that draft development plan 2011 was published in the year 2005 and the land use of the petitioner was again mentioned as regional park. The petitioner has immediately protested in the matter by issuing a notice and requested the authorities to change the designated land use in respect of his land as residential, however, while the objection of the petitioner was pending the draft development plant was dropped.
It is also pertinent to note that on 13.07.2006, modified/fresh development plan known as development plan 2021 was published. Objections were invited by the respondents. Another important aspect of the case is that before preparing development plan, Director, Town & Country Planning as required under Section 15 of the Act has to prepare the existing land use maps and while preparing existing land use maps, the Director has shown existing land use of the petitioner's land as regional park ignoring the fact that the land use of the said land was already changed to W.P. No.19670/2017 19 residential by the State Government vide order dated 16.12.1980.
In fact, this is a mistake committed by the respondent, which has finally resulted in passing of the impugned order. Thus, it is evident that the respondent and Director committed a mistake while preparing the existing land maps. Another important aspect of the case is that respondent No.2 while preparing the existing land use maps has wrongly included the petitioner's land as regional park whereas in respect of all other lands wherein the State Government has changed the land use under Section 23 and 35 of the Act, 1973 were included in schedule 5 appended in development plan 2021. It was only the petitioner's land, which was not included in Schedule 5 and in the draft development plan. In fact, the respondent should have included the petitioner's land in Schedule 5 as in case of the petitioner, petitioner's land use was already changed by the State Government Annexure P-7 includes as many as 23 cases where land use was changed like the case of the petitioner and for the reasons best known to respondent No.1 and 2, the petitioner's case was not included in schedule 5. Petitioner immediately protested in the matter and filed a detailed objection bringing all the facts on record before the committee constituted under Section 17-K(1) and the committee after hearing the petitioner and after verifying the record recommended that the Government has previously changed the land use as residential, hence, it would be proper to keep it residential and also because it is surrounded by residential development. The recommendation is on record as Annexure P-9. Recommendations made by the committee is as under:-
;ks- dz- lq>ko@ Xkzke , vkifRr@lq>ko dk vaxh izk:i dk;kZy;hu Lfef lapky fnukad oa lkjka'k d`r fodkl Vhi r d dk 122 vkifRrdrkZ dk [kljk fodk ;kstuk dk vfHke Vhi uke o irk dza- l esa Hkwfe lq>k r mi;ks o ;W.P. No.19670/2017 20
kstuk x
esa
Hkwfe
mi;ks
x
04/08/08 3 4 5 6 7 8 9 10 11
VªLVh ?ku';kenkl bUnkSj izk:i ;kstuk esa Hkwfe vkok m|ku ekf.k ckx Pwafd 'kklu ds }kjk Hkwfe
lka?kh eseksfj;y dLck izk:i ;kstuk esa Hkwfe l isysl ds dk mi;ksx igys gh
1555 mi;ksx xzhu csYV fudV gksus ds vkoklh; fd;k tk pqdk
psfjVoy VªLV 25] ls m?kku izLrkfor fd;k dkj.k Hkwfe gS vr% mls vkoklh;
iykfl;k esu jksM] 1578 x;k gSA bl Hkwfe ds dk mi;ksx j[kk tkuk mfpr gksxk
,oa vkl ikl ds {ks= esa izLrkfor gS A D;ksafd mlls yx dj
bUnkSj 1580 vf/kdk'ka vkoklh; vkoklh; fuokl fLFkr
jdck dkWyksfu;k fodflr gSa A
7- gksdj Hkou cus gS
72 rFkk iwoZ esa
,dM vkokl ,oa i;kZoj.k
foHkkx ds vkns'k dza-
6154@32 fnukad 16-
12-80 }kjk
vf/kfu;e&73 dh
/kkjk 35¼2½ ds varxZr
{ksf=; m?kku dh
ifjf/k ls gVkdj
vkoklh; mi;ksx esa
ifjorZu fd;k x;k
gSA mDr vkns'k
izkesljh Lvkiy dh
Js.kh esa vkrk gSA
iwoZ esa Hkh fodkl
;kstuk ds izdk'ku ds
le;] VªLV }kjk
vkifRr;ka izLrqr dh
x;h FkhA ijUrq
izk:i ;kstuk;s
fujLr gksus ls
fujkdj.k ugh gksA
The State Government in exercise of powers conferred under Section 19 (1) of the Act, 1973, issued a notification under Section 19(4) of the Act thereby approving the development plan 2021 with certain modification and the recommendation of the committee were totally ignored by the State Government. The petitioner preferred a writ petition before this Court and the same was registered as W.P. No.2023/2008 and this Court vide order dated 17.06.2008 disposed of the writ petition with a direction to the State Government to hear the petitioner and reconsider the objections and re-decide the matter.
The petitioner in compliance of the order passed by this court submitted a detailed representation on 01.06.2009 to the respondent No.1, respondent No.2 as well as Joint Director, Town & Country Planning and a report was sought by the respondents from the Joint Director, Town & Country Planning, Indore in the matter and the Joint Director in his detailed explanation to the Director has categorically stated that the petitioner's land should be designated as W.P. No.19670/2017 21 residential as in the matter, an order was passed by the State Government on 16.12.1980.
The letter of the Joint Director dated 04.07.2009 recommending for designation of the land as residential is reproduced as under:-
dk;kZy; la;qDr lapkyd] uxj rFkk xzke fuos'k] ftyk dk;kZy; bUnkSj e-iz-
dzekad@ 3783 uxzkfu@09 bUnkSj fnukad 04&7&09 izfr] lapkyd] uxj rFkk xzke fuos'k] Hkksiky e0iz0 fo"k;%& dLck bUnkSj ds ekf.kd ckx jksM ij fLFkr [kljk dzekad 1555] 1556] 1557] 1558@1] 1558@2] 1559] 1560] 1561] 1562] 1563] 1564] 1565] 1566] 1567] 1567] 1569] 1570] 1571] 1572] 1573] 1574 iSdh] 1575 iSdh] 1576 iSdh ,oa 1578 dqy jdck 7- 79 ,dM Hkwfe dk Hkwfe mi;ksx fodkl ;kstuk& 2021 esa e-iz- 'kklu ds vkns'k dzekad 6154@6552@32@80 Hkksiky fnuakd 16-12-80 ds lanHkZ esa Hkwfe mi;ksx esa vkeksn&izeksn ls vkoklh; fd, tkus ds laca/k esaA lanHkZ%& vkosnd dk vkosnu fnukad 2-6-2009 ,oa nwjHkk"k ij fnukad 1-7-2009 dks fn, x, funsZ'kA ¼1½ mijksDr fo"k;kUrxZr lanHkZ esa mYys[k gS fd fo"k;kUrxZr Hkwfe ds Hkwfe mi;ksx ifjorZu ckcr~ lqJh jkfxuh lka?kh&VªLVh ';ke nkl lka?kh eseksfj;y psjsVhcy VªLV dh vkSj ls ekuuh; ea=hth ds le{k izLrqr vkosnu dh izfrfyfi bl dk;kZy; esa izLrqr dh gSA ¼2½ iz'uk/khu Hkwfe] izLrqr nLrkostksa vuqlkj VªLV dh gSA ¼3½ iz'uk/khu Hkwfe dk bUnkSj fodkl ;kstuk&1991 esa Hkwfe mi;ksx vkeksn&izeksn vUrxZr ikdZ gsrw izLrkfor FkkA ¼4½ iz'uk/khu Hkwfe dk Hkwfe mi;ksx vkokl ,oa i;kZoj.k foHkkx ds vkns'k dzekad 6154@6552@32@80 fnukad 16-12-80 }kjk e-iz- uxj rFkk xzke fuos'k vf/kfu;e&1973 dh /kkjk 35¼2½ vUrxZr yksdfgr esa vkeksn&izeksn ¼ikdZ½ ls fudkydj vkoklh; ifjofrZr fd;k x;k FkkA ¼5½bUnkSj fodkl ;kstuk izk:iksa esa iz'uk/khu Hkwfe dk Hkwfe mi;ksx vkeksn&izeksn gsrw gh izLrkfor fd;k x;k FkkA ¼6½ bUnkSj fodkl ;kstuk&2021 esa Hkh bl Hkwfe dk Hkwfe mi;ksx vkeksn&izeksn vUrxZr {ks=h; m/kku izLrkfor fd;k x;k FkkA iz'uk/khu Hkwfe ds bl izLrkfor mi;ksx ds fo:) VªLV }kjk mls vkoklh; fd;s tkus gsrw vkifRr izLrqr dh xbZ FkhA izLrqr vkifRr dh Nk;k izfr layXu izsf"kr gS ¼ifjf'k"V&1½A vkifRr ds lkFk vkns'k fnukad 16-12-80 dh Nk;k izfr Hkh izLrqr dh xbZ FkhA bl vkifRr ij vf/kfu;e dh /kkjk&17&d¼1½ vUrxZr xfBr lfefr dh lquokbZ esa iz'uk/khu Hkwfe dk Hkwfe mi;ksx vkeksn&izeksn ls vkoklh; fd, tkus dh vuq'kalk dh xbZ FkhA lfefr dh vuq'kalk lEcU/kh i`"B dh Nk;k izfr laayXu izsf"kr gS ¼ifjf'k"V&2½ jkT; 'kklu }kjk fnukad 1-1-2008 dks tks bUnkSj fodkl ;kstuk&2021 ykxw dh xbZ gS mlesa iqu% iz'uk/khu Hkwfe dk Hkwfe mi;ksx vkeksn&izeksn vUrxZr {ks=h; m/kku izLrkfor gSA;g Hkh lgh gS fd bUnkSj fodkl ;kstuk&2021 esa bl ;kstuk ds ykxw gksus ds iwoZ tks Hkwfe mi;ksx [email protected] fd;s x;s Fks mUgs ekU; fd;k x;k gSA vr% mijksDr fLFkfr dks n`f"Vxr j[krs gq, jkT; 'kklu }kjk tufgr esa ikfjr vkns'k fnukad 16-12- 80 }kjk Hkw&mi;ksx ifjorZu dks ekU; djus ij jkT; 'kklu leqfpr fopkj dj ldrk gSA iz'uk/khu Hkwfe dks bUnkSj fodkl ;kstuk&2021 esa fLFkfr n'kkZus okys ekufp=¼ifjf'k"V&3½ rFkk iz'uk/khu Hkwfe dk izLrkfor Hkwfe n'kkZus okyk [kljk ekufp= ¼ifjf'k"V&4½ layXu izsf"kr gSA W.P. No.19670/2017 22 layXu%& la;qDr lapkyd uxj rFkk xzke fuos'k dzekad@ uxzkfu@09] bUnkSj e0iz0 fyfi%& izeq[k lfpo] e-iz- 'kklu vkokl ,oa i;kZoj.k foHkkx Hkksiky dh vkSj lwpukFkZ iszf"krA la;qDr lapkyd uxj rFkk xzke fuos'k bUnkSj e0iz0 It is pertinent to note that while matter was being considered by the respondents, the respondents in their wisdom preferred a writ appeal i.e. W.A. No.808/2009 and the same was dismissed vide order dated 18.02.2010.
The matter relating to the petitioner's land use was looked into by the committee constituted for the purpose and the committee opined that since the land use of the petitioner's land has already been changed by the State Government, the land use of the petitioner's land should be designated as residential. Report of the committee accepting the objection of the petitioner is on record (Annexure P-17) and the Director, Town & Country Planning also agreed with the recommendation of the committee and forwarded the matter for decision to the State Government. The recommendations of the Director are also on record as Annexure P-18.
The State of Madhya Pradesh while considering the opinion of the committee and the Director, Town & Country Planning has divided the various cases in two different categories i.e. Schedule -A, Schedule- B, Schedule-C and Schedule-D. We consider Category/Schedule-A and Category/Schedule- B Category- A:-
The cases where committee and respondent No.2 have rejected the objection and the respondent No.1 has also rejected the same.
Category- B:-
The cases where recommendations for land use were accepted to be made in final plan after hearing the parties under Section 19 (2) of the Act, 1973.
The respondents again committed a mistake by placing the petitioner's case in Category-A. In fact, in case of the petitioner, committee as well as respondent No.2- Director, Town & Country Planning had allowed the objections of the petitioner and recommended to keep W.P. No.19670/2017 23 the land use of the petitioner as residential, meaning thereby, the case of the petitioner was to be included in category B not in category-A. The petitioner immediately protested in the matter and submitted a representation to the respondents, however, nothing was done and, therefore, petitioner was again forced to file a writ petition i.e. W.P. No.8134/13. This Court vide order dated 07.8.2014 has directed the State Government to decide the representation of the petitioner within 45 days. A committee was constituted by the State Government with Senior Officers of the Town and Country Planning Department as there were mistakes and irregularities in the final development plan, the committee on 28.09.2013 after going through the entire record once again held that the petitioner's land use should be designated as residential.
However, to the utter surprise to the petitioner, the impugned order has been passed by the respondents on 28.10.2015 rejecting the representation of the petitioner. In the considered opinion of this Court, first mistake which has been committed in the matter is that the respondents have ignored the recommendations of the Joint Director, Town & Country Planning and the Committee constituted in the matter have decided the objections raised by the petitioner. Petitioner's objections were looked into by the committee and the committee categorically directed for change of land use, hence, by placing the petitioner in wrong category i.e. Category -A, all further proceedings have taken place.
First committee constituted in the matter as well as the Director, Town & Country Planning have recommended for change of land use after hearing under Section 19(2) of the Act and, therefore, matter relating to the petitioner should have been included in Category-B not in Category-A, therefore, in considered opinion of this Court, all further proceedings, which have taken place are pursuant to wrong inclusion of the petitioner's case in Category-A are bad in law and the impugned order deserves to be quashed. Another important aspect of the case is that before preparing the development plan, the Director, Town & Country Planning as required under Section 15 is required to prepare the existing land use map. The W.P. No.19670/2017 24 development plan 2021 was published in official gazette on 13.07.2006 and the Director while preparing the existing land use map has wrongly prepared the map ignoring the fact that the petitioner's land use has been changed to residential vide order dated 16.12.1980 passed by the State Government and in all fairness the Director, Town & Country Planning while preparing the development plan should have reflected the land use as residential and, therefore, on account of mistake committed by the Director, Town & Country Planning while preparing the existing land use maps, the petitioner is still suffering in the matter. Not only this, prior to development plan 2021, development plan 1991, which was declared in the year 1975 was in force. After the development plan, 1975, at least in 22 cases, land uses were changed like it was done in the case of the petitioner. Petitioner has given examples of Anjuman Saiff Daudi bohra School, Maharana Pratap Grih Nirman Sahkari Sanstha, IDA and Bhawalkar CAT karmchari Abhiyant Sangh and in all these cases the land use was park and the same was changed to residential.
In case of the petitioner again land use was changed in respect of development plan 1991 and the Director submitted the report as required under Section 50 of the Act incorrectly reflecting the land use as regional park as the same reflects in the order passed by the State Government.
Another important aspect of the case is that after an order passed by this Court in W.P. No.2023/2008, the Joint Director, Town and Country Planning has opined that the petitioner's land should be designated a residential as the subsequent committee has recommended the land use as residential and only because the petitioner's case was placed in wrong category, the petitioner is still suffering.
There appears to be total non-appearance of the mind in the case of the petitioner in not treating the petitioner's land use as residential whereas the land use had already been changed by the State Government vide order dated 16.12.1980 and the same has been safely ignored by the State Government. In the considered opinion of this Court, the impugned order passed by the State Government/State has to pave the path of W.P. No.19670/2017 25 extinction. The surrounding areas including the area of Ms. Seema Sanghi has been developed as residential and the area, which is surround by residential colony owned by the petitioner cannot be treated as regional park in the development plan 2021 ignoring the report of the committee, which was a committee constituted for specific purpose by the State Government.
Resultantly, in light of the aforesaid, this Court is of the considered opinion that the impugned order passed by the respondents dated 28.10.2015 deserves to be quashed and is, accordingly, quashed.
It is pertinent to note that out of total area 7.78 Acres and 4.5 Acres of which the land use was deleted in 1980, a colony has been established over 4.5 Acres of land and it has been fully developed for residential purpose. Thus, now, total 12.12 Acres land is not available to be developed as regional park. Not only this, the order of the State Government passed in 1980 has been given a complete go bye and in case of identically placed persons, respondents have already changed the land use based upon the recommendations of the Joint Director, Town and Country Planning and the committee constituted for the purpose, therefore, the writ petition stands allowed by modifying the land use of the petitioner by treating it as residential.
The impugned order orders Annexure P-19 and P-20 are quashed. The Stat Government is directed to pass an appropriate order designating the land use of the petitioner as residential within a period of three months from the date of receipt of certified copy of this order.
With the aforesaid directions, another writ petition i.e. W.P. No.1606/2016 also stands disposed of. Respondents are directed to issue an appropriate order in respect of the land use of the petitioner as aforesaid.
26. On due consideration of the aforesaid, so also the fact that the surrounding area has been developed as Residential and the area which is surrounded by residential colony owned by the petitioners cannot be treated as Regional Park in the development plan, 2021, ignoring the report of the committee , which was a committee constituted for the specific purpose by the State Government in W.P. No.19670/2017 26 pursuance to the order passed by the Division Bench. Thus, the impugned order (Annexure P/1), passed by the respondents dated 27.8.2012, deserves to the quashed and is, accordingly, quashed. The State Government is directed to pass an appropriate order designating the land use of the petitioners as 'Residential', within a period of three months from the date of receipt of the certified copy of the order.
The co-ordinate Bench of this Court, based upon the recommendations to the committee constituted for specific purpose by the State Government, has directed the respondents to pass appropriate order designating the land use of the petitioners as 'Residential'.
In the present case also, an expert committee was constituted by the State Government and the minutes of the committee could not have been overlooked, as has been done by the State Government keeping in view Section 23 (A) of the Adhiniyam. Not only this, the entire area is surrounded by residential township and the petitioners were developing the entire area as residential township and permission was also granted by TRIFAC based upon the Foreign Direct Investment. Another important aspect of the case as brought to the notice of this Court by learned counsel for the petitioners is that the petitioners in their plan for developing residential township has already kept a provision for using the land for Public and Semi Public use also, and therefore, it appears to be no justification in marking an additional area for Public and Semi Public use.
Resultantly, keeping in view the recommendations of the committee, this Court is of the opinion that the present writ petition deserves to be allowed and is accordingly allowed. The State Government is directed to pass a necessary order for declaring the land use as 'Residential' keeping in W.P. No.19670/2017 27 view the minutes of the committee dated 07.05.2013, which have been quoted by this Court, by passing an appropriate order within a period of three months from the date of receipt of certified copy of this order.
It is needless to mention that the State Government shall be free to levy the fees, which is required in terms of Section 23 (A) of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam. The appropriate order shall be subject to payment of fee, as provided under Section 23 (A) of the Adhiniyam of 1973.
Certified copy as per rules.
(S.C. Sharma) Judge Ravi Digitally signed by Ravi Prakash Date: 2018.04.28 15:58:51 +05'30'