Madhya Pradesh High Court
Mayurvan Vikas ... vs The State Of Madhya Pradesh on 14 February, 2018
Bench: Sanjay Yadav, Ashok Kumar Joshi
1 WP.5198/2011 (PIL)
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
Hon'ble Shri Justice Sanjay Yadav
&
Hon'ble Shri Justice Ashok Kumar Joshi
WRIT PETITION NO.5198 OF 2011
Mayurvan Vikas Samiti, Morena (M.P.)
through the President Keshav Singh Tomar
Vs.
The State of M.P. and others
******************
Shri K.S. Tomar, learned Senior Counsel with
Shri A.S. Rathore, learned counsel for the
petitioner.
Shri Raghvendra Dixit, learned Government
Advocate, for respondent/State.
Shri Vivek Khedkar, learned counsel for
Housing Board.
Shri Prashant Sharma, learned counsel for
respondents No.7 and 8.
********************
Whether approved for reporting: Yes/No
ORDER
(14/02/2018) Per Justice Sanjay Yadav:
Petitioner, a society registered under the Madhya Pradesh Societies Registrikaran Adhiniyam, 1973, has filed this petition as Public Interest Litigation questioning the Act of the Madhya Pradesh Housing and Infrastructural Development Board (erstwhile
2 WP.5198/2011 (PIL) it was Madhya Pradesh Housing Board:
hereafter referred as Board) in carving out the commercial plots by changing the layout plan without getting prior sanction from the Town and Country Planning Department and without legally incorporating the changes in the layout plan and auctioning the same on lease in favour of respondents No. 7 and 8. (2) Contention on behalf of the petitioner is that in the year 1995 the Board was allotted 26.146 hectares of land at village Jaura-Khurd for the development of a residential colony, viz, Mayurvan Colony. That the plan was approved by the competent authority, Town and Country Planning Department on 24/02/1996. That later on, on 19/11/1997, the Board got additional land admeasuring 0.65 hectares (55845 sq.mtr) from the State Fisheries Department. It is contended that on 23/09/1998, the Board sent a letter to the Joint Director, Town and Country Planning, Gwalior for revising the earlier approved layout plan.
It is contended that respondent No. 7 who was having his land adjoining the Mayurvan Colony had tried to encroach upon the land of the Board and the Board to prevent the same had constructed the boundary wall and developed the same as green belt and park to prevent the same from encroachment. It is contended that the permission sought by the Board for revising the layout plan was not granted, yet the Board in order to oblige 3 WP.5198/2011 (PIL) respondents No. 7 and 8 who happen to be real brothers, went on to carve out the commercial plots and auctioned the same by keeping low upset price. It is urged that the advertisement was also published in the newspaper Hindustan Express which does not have prominent circulation. It is contended that in furtherance to the auction notice, both the plots are leased out in favour of respondents for 67 lakhs; against the market price of over Rupees Seven Crores at the rate of Rs. 82,300/- per sq.mtr. Further contention on behalf of the petitioner is that the action of respondent Board in carving out commercial plots without getting it incorporated in the sanctioned layout plan is contrary to the provisions of Section 16, 23 and 23-A(1)(a) of Nagar Tatha Gram Nivesh Adhiniyam 1973 (hereafter shall be referred as "Adhiniyam, 1973"), inasmuch as the land which was left out as vacant open utilized as park has been changed to commercial use.
(3) To substantiate the contention that the provisions of Adhiniyam have been violated, petitioner submits that plot No. 1 which is allotted to respondent No. 7 is having width of 20 feet towards Agra Bombay Road (known as AB road) and 30 feet towards the western side i.e. towards house No. 15 and is situated on the main approach road of the colony from the AB road and as per the norms of the M.P. Bhumi Vikas Rules, 2012 30% of the land has 4 WP.5198/2011 (PIL) to be kept as open. It is urged that with diverting the land for commercial purpose, the 30% norms have been violated as a result whereof the entire residents of the Mayurvan colony are deprived of the open land. Petitioner has placed reliance on the decision in "Bangalore Medical Trust Vs. B.S. Muddappa and others [(1991) 4 SCC 54] & Machavarapu Srinivasa Rao and another Vs. The Vijayawada, Guntur, Tenali, Mangalagiri Urban Development Authority and others [(2011) 12 SCC 154]" to establish that the society has no personal interest, but has raised the grievance for the collective against illegal act of the respondent Board. The petitioner accordingly seeks quashment of the allotment of land in favour of respondent No. 7 and 8 and restoration of land in question to its original status.
(4) State of Madhya Pradesh and its functionaries have filed the return supported by an affidavit of one Shri V.K. Sharma, Joint Director, Town and Country Planning, Gwalior. While questioning the antecedents of the petitioner Society in filing the Public Interest Litigation that the members of the Society are themselves the encroachers of the Board land, it is urged that Section 30 of Adhiniyam makes a provision regarding grant or refusal of permission. That Sections 31 and 32 respectively provide for Appeal and Revision.
5 WP.5198/2011 (PIL) While adverting to the powers conferred in the Director, Town and Country Planning under Section 29, it is contended that the State is empowered to modify or to cancel or vary any order or layout plan approved by the Director.
(5) In regard to controversy raised in the present case, it is urged that the Director, Town and Country Planning had approved the layout plan of the land comprising 26.146 hectares on 24/02/1996 wherein no area was earmarked as green belt. It is contended that the Board later on obtained 0.65 hectare of land from Fisheries Department and submitted an additional plan to amend entire layout plan. It is contended that in the amended proposed layout plan in the colony there was a proposed 30mtr wide road than AB road and looking to the said amendment in the approved plan, the position of road, park, residential flats, commercial plots were proposed to be changed in the north side towards 30mtr road, commercial development was proposed. But due to non-furnishing of seven point information sought vide communication dated 22/01/1998 the amended layout plan has not been approved. It is further stated in the return by the State functionary that until unless amended layout plan has been approved, neither any lease deed can be executed with respect to the plots in question nor any right accrues in favour of 6 WP.5198/2011 (PIL) any person to make any construction over the proposed plot. It is further contended that the application for amendment in layout plan with respect to the additional land comprising 0.656 hectare was not submitted to the State Government which empowered under Section 31 and 32 of the Adhiniyam. It is further contended that the Board did not furnish seven point information. It is urged that vide order dated 05/10/2000, the exercise of powers by the Director of modification of development plan after its sanction were withdrawn as the same were implicit in the State under Section 31 or 32 of Adhiniyam, 1973.
(6) Pertinent it is to take note of the text of the order dated 05/10/2000 issued in the name of Governor:-
e/;izns'k 'kklu vkokl ,oa i;kZoj.k foHkkx ¼ea=ky;½ Øekad ,Q&3@15@32@97 Hkksiky] fnukad 05 vDVwcj] 2000 izfr] lapkyd] uxj rFkk xzke fuos'k] Hkksiky ¼e-iz-½ fo"k; %& vuqeksfnr vfHkU;kl esa la'kks/ku djus ckorA lanHkZ %& 1- 'kklu dk ifji= Øekad ,Q&3@39@85@32 fnukad 2&6&92 2- vkns'k Øekad ,Q&3@102@32@97 fnukad 20&1&98 3- 'kklu dk i= Øekad ,Q&3@15@32@97 fnukad 13&10&98 'kklu ds lanfHkZr i=ksa }kjk vuqeksfnr vfHkU;kl esa la'kks/ku ds ckjsa esa fn'kk funsZ'k ,oa izfØ;k fu/kkZfjr dh xbZ FkhA fofo/k ;kfpdk Øekad 1480@96 esa ekuuh; mPPk U;k;ky;] csap bankSj }kjk fnukad 6&2&98 dks ikfjr vkns'k rFkk ,l-,y-ih- Øekad 15193@96 ds lanHkZ esa 'kklu ds lanfHkZr i=ksa ij fof/k foHkkx dk vfHker izkIr gqvk gS ftlesa ;g Li"V fd;k x;k gS 7 WP.5198/2011 (PIL) fd e/;izns'k uxj rFkk xzke fuos'k vf/kfu;e] 1973 ds izko/kkuksa ds varxZr lapkyd uxj rFkk xzke fuos'k }kjk vfHkU;kl Loh--r gksus ds ckn vf/kfu;e ds varxZr Loh--r vfHkU;kl esa la'kks/ku dsoy /kkjk 31 ,oa 32 esa fn;s x;s oS/kkfud izko/kkuksa ds varxZr gh fd;k tk&ldrk gSA vr% mDr lanHkZ esa fof/k foHkkx }kjk O;Dr vfHker dks n`f"Vxr j[krs gq;s vkokl ,oa i;kZoj.k foHkkx }kjk vfHkU;kl la'kks/ku laca/kh tkjh ifji= ¼1½ ,Q&3@39@85@32 fnukad 2&6&92 ¼2½ vkns'k Øekad ,Q&3@102@32@97 fnukad 20&1&98 ¼3½ ,Q&3@15@32@97 fnukad 13&10&98 dks ,rn }kjk rRdky izHkko ls fujLFk fd;k tkrk gSA ;g Hkh funsZf'kr fd;k tkrk gS fd lapkyd] uxj rFkk xzke fuos'k rFkk muds v/khuLFk vf/kdkfj;ksa }kjk vfHkU;kl Loh--r djus ds i'pkr mlesa fdlh Hkh izdkj dk la'kks/ku@ifjorZu laca/kh vkosnu ij dk;Zokgh ugha dh tk;sxhA e/;izns'k uxj rFkk xzke fuos'k vf/kfu;e dh /kkjk 31 ;k 32 ds varxZr fn;s x;s oS/kkfud izko/kkuksa ds vuqlkj ,oa le; lhek ds varxZr vfHkU;kl esa la'kks/ku laca/kh vkosnu dsoy vihy izkf/kdkjh ;k iqujh{k.k izkf/kdkjh dks izLrqr fd;s tk;sxsaA e/;izns'k ds jkT;iky ds uke ls rFkk vkns'kkuqlkj gLRkk-@& ¼,l-ds- nqcs½ vij lfpo e/; izns'k 'kklu vkokl ,oa i;kZoj.k foHkkx (7) Apparently, with the issuance of the order dated 05/10/2000, the Director/ Joint Director, Town and Country Planning were denuded of the powers to cause any alteration or amendment in the sanctioned layout plan.
The power stood restored to the State Government alone. No such application for modification of development plan is shown to have been moved to the State Government by the Board after 05/10/2000. Be that as it may. Later on the Joint Director, Town and Country Planning, Gwalior vide its letter dated 06/04/2010 informed Executive Engineer of the Board of rejecting the proposed amendment in the approved plan. (8) Respondents No. 4, 5 and 6 i.e. the Board and its functionaries have filed the return and additional return. Preliminary objection is 8 WP.5198/2011 (PIL) raised as to the maintainability of the petition at the instance of the Society, the members whereof having personal interest, reliance is placed on the decision in "Kansing Kalusing Thakore and others Vs. Rabari Maganbhai Vashrambhai and others [(2006) 12 SCC 360]". It is contended that the Secretary of the petitioner Society Ram Naresh Sikarwar had initially raised construction over park and in furtherance to order passed in a public interest litigation: W.P. No. 10801/1999 his possession was regularized. It is further contended that against respondent No. 7 one civil suit was filed: C.S. NO. 6A/2011 by one of the members of Society challenging the validity of the sale deed which was dismissed on 07/07/2011. It is however borne out from the said order which is on record that the suit was dismissed on an application under Order 7 Rule 11 Code of Civil Procedure 1908, as not maintainable.
(9) As regard to the factum of the case, it is urged that in the year 1996, layout plan was sanctioned by Town and Country Planning and the entire colony was developed thereover as per the plan. It is contended that later on additional land admeasuring 55845 sq.mtr. came in possession of Board; and as the additional land was facing AB road it was proposed to revise the plan to utilize the land for commercial purpose. For that application was filed on 05/01/1998 and in response to 7 9 WP.5198/2011 (PIL) point queries sought by the Town and Country Planning Department vide letter dated 22/01/1998, revised layout plan alongwith fees Rs. 4,000/- and revised map of layout was duly submitted in the office of Joint Director, Town and Country Planning on 09/03/1998. It is contended that said plan was required to be sanctioned within 60 days from the date of receipt of application; and as no decision was taken by the Town and Country Planning Department, the layout plan was deemed to have been sanctioned & approved. Accordingly, it is urged that, the process for development and construction of the colony was carried out. Whereafter, the Board has sold out about 1200 plots and houses to various persons as per the revised layout plan submitted in the year 1998. It is urged that the plots in question were part of the revised plan, the Board had sold it out as per the statute and policy through auction. Furthermore, while denying the allegation that the plots in question have been sold dearth cheap, it is urged that Section 50 of The Madhya Pradesh Griha Nirman Evam Adhosanrachna Vikas Mandal Adhiniyam, 1972 the Board is empowered either to retain, lease, sale, exchange or otherwise dispose of the land, building or any property vested in it. It is urged that as per the procedure, a Committee was constituted for disposal of the plots in question at Bhopal and the decision 10 WP.5198/2011 (PIL) was taken by the Board in its meeting on 02/12/2010. It is urged that as the valuation of the property as assessed by the Sub-Engineer, as per the Collector's Guidelines was more than Rs. 30 lacs, the matter was sent for approval to the Board whereon decision was taken to fix the price above Collector's guidelines at Rs. 32 lacs and Rs. 28 lacs respectively. It is contended that the land being situated in a Gram Panchayat the rate of commercial plots as applicable for the year 2010-2011 at Rs. 5,500/- per sq.mtr was determined. As regard to allegation that the adequate publicity was not given; it is urged that, the newspaper Hindustan Express had an expected circulation of 69200 in the year 2010 (however it is not disclosed as to the circulation exclusively in Morena). As regard to the revised plan it is contended that even with the revision of plan, the Board is left with 46.39% of open land. By way of additional return it is urged on behalf of Board and its functionaries that the provision of Section 30 of Adhiniyam, 1973 is not attracted as the same apply to private developer whereas as per proviso to Section 27 of the Adhiniyam where no modification is proposed by the Director within 60 days on receipt of the plan of the proposed development, the plan will be presumed to have been approved. It is further contended that on 20/09/2001 again a letter was issued for slight change in layout plan on 11 WP.5198/2011 (PIL) account of receiving additional land whereas revised layout plan was again submitted on 25/03/2010 which was however turned down on 06/04/2010.
(10) It is further contended that because in the office of the Board the amended layout plan which was proposed and submitted in the office of Town and Country Planning in the year 1998 was misplaced, therefore an application for obtaining certified copy was filed by the Housing Board and Town and Country Planning has given the certified copy of the layout plan which is amended layout plan meaning thereby the Town and Country Planning has accepted the revised layout plan as proposed in the year 1998. In other words, the contention on behalf of respondent Board is that because the Town and Country Planning had provided a certified copy of proposed plan, it is to be treated as approved. (11) These contentions on behalf of Board, thus, establish the fact that the proposed amendment in the layout plan was not approved by the Town and Country Planning Department.
(12) Private respondents No. 7 and 8 have also filed the return. While adopting the stand taken by the Board as regard to maintainability of the petition, locus of the petitioner, and the justification of carving out the commercial plots and auction of it; it is urged that, the original layout plan did not 12 WP.5198/2011 (PIL) earmark any park or green area. Nor the additional land received from the Fisheries Department was reserved for the park or green belt. It is urged that a commercial transaction between the Board and the respondents No. 7 and 8 cannot be subjected to challenge in the public interest litigation. It is further contended that if the amended layout plan is treated as illegal than the entire development done by the Board which includes the property of the petitioner will have to be cleared which besides causing great loss to respective owners/ lessees will be detrimental to the development. It is further contended that the entire petition is misconceived, because the refusal which has been shown to be by order dated 06/04/2010 has no nexus with the development which is carried over the land received from the Fisheries Department, but is in respect of certain encroachments, the regularization whereof was sought by the Board and was turned down by the State vide its communication dated 06/04/2010. It is urged that the area in question falls within the approved plan. It is further contended that having purchased the plots in question through auction, lease deed for a period of thirty years has been executed. Thus an irreversible right is created in favour of respondents No. 7 and 8. It is contended that the civil suit filed against the auction and 13 WP.5198/2011 (PIL) execution of lease deed has been dismissed. It is further submitted that with the proposed amended layout plan more open area is available. As regard to the auction on less price, it is urged that the property has been auctioned for more than Rs. 12 lacs above Collector's guidelines. It is contended that as none of the provisions of law has been violated and since no public interest is involved, the petition deserves to be dismissed with costs. (13) Few more facts deserve a mention. The Board vide I.A. No. 2454/2016 filed on 23/04/2016, sought leave to take certain documents on record. In paragraph 5, it is stated that "without going to the controversy involved in the petition, the M.P. Housing Board has proceeded with the revised lay out plan. Accordingly, under the Nagar Tatha Gram Nivesh Adhinyam the process was issued and the objections were called for by the Joint Director, Town and Country Planning. A copy of the document to that effect, which was published in the news paper on 30.07.2015 is annexed herewith and marked as Annexure A/1. Accordingly as per the directions given by the Joint Director, Town and Country Planning, the amount to the tune of Rs.1,35,000/- has also been deposited as additional fees for reconsideration of revised lay out plan and ultimately after calling the objections and after deciding the objections, the matter has been referred to the State 14 WP.5198/2011 (PIL) Government on 09.10.2015 and a reminder was also sent on 3.12.2015. A copy of the letters dt.3.12.2015, 17.11.2015 and 9.10.2015 are annexed herewith and marked collectively as Annexure A/2. Accordingly the matter is pending as far as the revised lay out plant is concerned and it is to be accepted or decided by the State Government". This statement on affidavit by the Executive Engineer establishes the fact that the Board's proposed amendment was not approved by the State Government. And the Board diverted the use of land without approval.
(14) Considered rival submissions. (15) At the outset, we make it clear that in the present PIL we are concerned only with the diversion of 0.65 hectare of land which was given to the Board by the fisheries department.
(16) Nagar Tatha Gram Nivesh Adhiniyam 1973, was enacted to make provision for planning and development and use of land; to make better provision for the preparation of development plans and zoning plans with a view to ensuring town planning schemes are made in a proper manner and their execution is made effective, to constitute Town and Country Planning Authority for Proper implementation of town and country development plan, to provide for the development and administration of special areas through Special Area Development 15 WP.5198/2011 (PIL) Authority, to make provision for the compulsory acquisition of land required for the purpose of development plans and for purposes connected with the said matters. (17) Chapter II of Adhiniyam, 1973 makes a provision of Director of Town and country planning and other officers. Chapter III deals with regional planning. Chapter IV lays provision regarding planning areas and development plans. Chapter V envisages zoning plan whereas Chapter VI dwells upon the control of development and use of land. Chapters VII and VIII respectively make provisions for Town and Country Development Authority and Special Areas. Chapter IX makes provision regarding State Government's power of supervision and control and to give directions to review plans for ensuring conformity.
(18) Section 15 of Adhiniyam, 1973, envisages that the Director shall carry out the survey and prepare an existing land use map indicating the natural hazard prone areas and forthwith publish the same in such manner as may be prescribed together with public notice of the preparation of the map and of place or 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 publication of such notice.
(19) Section 16 of Adhiniyam, 1973, provides 16 WP.5198/2011 (PIL) for that on publication of the existing land use map under Section 15, no person shall institute or change the use of any land or carry out any development of land for any purpose other than that indicated in the existing land use map without the permission of writing of the Director. Clause (b) of sub- section (1) of Section 16 further provides for that no local authority or any officer or other authority shall, notwithstanding anything contained in any other law for the time being in force, grant permission for the change in use of land otherwise than as indicated in the existing land use map without the permission in writing of the Director.
(20) Sub-section (4) of Section 16 of Adhiniyam, 1973 mandates that the provisions of Section 30 for the grant or refusal of permission to an application under Section 29 shall mutatis mutandis apply on application for permission under sub-section (1). Furthermore, sub-section (5) of Section 16 stipulates that the provision of modification, appeal, revision and lapse of permission under sub-section (3) of Section 29, Section 31, Section 32 and Section 33 respectively, which are applicable to an order granting or refusing permission under Section 30 shall mutatis mutandis apply to an order made under sub- section (1) [prior to substitution of sub-section (5) w.e.f. 20.04.2017, the provision was "(5) The provision of appeal, revision and lapse of 17 WP.5198/2011 (PIL) permission under Section 31, Section 32 and Section 33, respectively, which are applicable to an order granting on refusing permission under Section 30, shall mutatis mutandis apply to an order made under sub-section (1)"].
(21) Section 26 of Adhiniyam, 1973 prohibits development without permission. It stipulates that after coming into operation of development plan, no person shall change the use of any land or carry out any development of land without permission in writing of the Director. The exception, however, is carved out vide Proviso (a) to (g) i.e. (a) for carrying out works for the maintenance, repair or alteration of any building which does not materially alter the external appearance of the building; (b) (or carrying out of work for the improvement or maintenance of a highway, road or public street by the Union or State Government or an authority established under this Act or by a local authority having jurisdiction, provided that such maintenance or improvement does not change the road alignment contrary' to the provisions of the development plan; (c) for the purpose of inspecting, repairing or renewing any drains, sewers, mains, pipes, cables, telephone or other apparatus including the breaking open of any street or other land for that purpose;
(d) for the excavation or soil-shaping in the interest of agriculture; (e) for restoration of 18 WP.5198/2011 (PIL) land to its normal use where land has been used temporarily for any other purposes; (f) for use, for any purpose incidental to the use of building for human habitation, or any other building or land attached to such building; (g) for the construction of a road intended to give access to land solely for agricultural purposes. In other words. barring these exceptions imperative it is that before causing change in land use or carry out any development prior permission in writing of the Director is mandatory.
(22) Furthermore, Section 29 of Adhiniyam, 1973, mandates that any person not being the Union Government, State Government, a local authority or a special authority constituted under the Adhiniyam, 1973 intending to carry out any development on any land, shall make an application in 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. (23) That Section 30 of Adhiniyam, 1973 provides for:
"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-
19 WP.5198/2011 (PIL)
(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:
Provided that in case of an application under sub-section (3) of Section 29, the Director shall not pass any order under clause (a) or
(b) hereinabove unless he has heard such persons as may have interest in the proposed modification and considered encumbrances, if any, created in the land or building. The interests and encumbrances that may be considered, procedure for such consideration, manner in which encumbrances, if any, may be remedied and the form or order shall be such as may be prescribed.
(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 [sixty days] from the date of receipt of his application, such permission shall be deemed to
20 WP.5198/2011 (PIL) have been granted to the applicant on the date immediately following the date of expiry of [sixty days] :
Provided that in computing the period of [sixty days] 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.
(24) Before dwelling on the issue as to the act of the Board in changing the land use without permission, the preliminary objections raised on behalf of the respondents as to the locus of the petitioner and the maintainability of present writ petition is taken up first, suffice it to say that even if what has been alleged by the respondents against the petitioner are taken to be true then also in view of the law laid down by the Supreme Court in "Shivajirao Nilangekar Patil Vs. Dr. Mahesh Madhav Gosavi and others [(1987) 1 SCC 227]" wherein it is held:
"36. The allegations made in the petition disclose a lamentable state of affairs in one of the premier universities of India. The petitioner might have moved in his private interest but enquiry into the conduct of the examiners of the Bombay University in one Of the highest medical degrees was a matter of public interest. Such state Of affairs having been brought to the notice of the court, it was the duty of the court to the public that the truth and the validity of the allegations made be inquired into. It
21 WP.5198/2011 (PIL) was in furtherance of public interest that an enquiry into the state of affairs of public institution becomes necessary and private litigation assumes the character of public interest litigation and such an enquiry cannot be avoided if it is necessary and essential for the administration of justice."
in "Bangalore Medical Trust Vs. B.S. Muddappa and others [(1991) 4 SCC 54]", wherein it is held:
"35. Locus standi to approach by way of writ petition and refusal to grant relief in equity jurisdiction are two different aspects, may be with same result. One relates to maintainability of the petition and other to exercise of discretion. Law on the former has marched much ahead. Many milestones have been covered. The restricted meaning of aggrieved person and narrow outlook of specific injury has yielded in favour of broad and wide construction in wake of public interest litigation. Even in private challenge to executive or administrative action having extensive fall out the dividing line between personal injury or loss and injury of a public nature is fast vanishing. Law has veered round from genuine grievance against order affecting prejudicially to sufficient interest in the matter. The rise in exercise of power by the executive and comparative decline in proper and effective administrative guidance is forcing citizens to espouse challenges with public interest flavour. It is too late in the day, therefore, to claim that petition filed by inhabitants of a locality whose park was converted
22 WP.5198/2011 (PIL) into a nursing home had no cause to invoke equity jurisdiction of the High Court. In fact public spirited citizens having faith in rule of law are rendering great social and legal service by espousing cause of public nature. They cannot be ignored or overlooked on technical or conservative yardstick of the rule of locus standi or absence of personal loss or injury. Present day development of this branch of jurisprudence is towards freer movement both in nature of litigation and approach of the courts. Residents of locality seeking protection and maintenance of environment of their locality cannot be said to be busy bodies or interlopers S.P. Gupta v. Union of India, [1982] 2 SCR 365--AIR 1982 SC 149; Akhil Bhartiya Soshit Karmchari Sangh (Rly.) v. U.O.I., [1981] 1 SCC 246--AIR 1981 SC 298 and Fertilizer Corporation Kamgar Union v.U.O.I., AIR 1981 SC 344. Even otherwise physical or personal or economic injury may give rise to civil or criminal action but violation of rule of law either by ignoring or affronting individual or action of the executive in disregard of the provisions of law raises substantial issue of accountability of those entrusted with responsibility of the administration. It furnishes enough cause of action either for individual or community in general to approach by way of writ petition and the authorities cannot be permitted to seek shelter under cover of technicalities of locus standi nor they can be heard to plead for restraint in exercise of discretion as grave issues of public concern outweigh such considerations."
23 WP.5198/2011 (PIL) in "Akhil Bhartiya Upbhokta Congress Vs. State of Madhya Pradesh and others [(2011) 5 SCC 29]" wherein it is held:
"80. The challenge to the locus standi of the appellant merits rejection because it has not been disputed that the appellant is a public spirited organization and has challenged other similar allotment made in favour of Punjabi Samaj, Bhopal, That apart, as held in Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi (1987) 1 SCC 227 even if a person files a writ petition for vindication of his private interest but raises question of public importance involving exercise of power by men in authority then it is the duty of the court to enquire into the matter."
in "Machavarapu Srinivasa Rao and another Vs. Vijayawada, Guntur, Tenali, Mangalagiri Urban Development Authority and others [(2011) 12 SCC 154]"wherein it is held:
"13. We shall first consider whether the High Court was justified in declining relief to the appellants on the premise that respondent No.1 had merely allotted land to respondent No.3. In this context, it is apposite to observe that none of the documents produced before the High Court and this Court show that respondent No.3 had applied for allotment of land for construction of temple and respondent No.1 had allotted the site after following some procedure consistent with the doctrine of equality enshrined in Article 14 of the Constitution. Not only this, a bare reading of order
24 WP.5198/2011 (PIL) dated 30.3.2010 leaves no manner of doubt that respondent No.1 had granted permission to respondent No.3 for construction of temple at the site in question. There is nothing in the language of that order or the conditions enshrined therein from which it can be inferred that respondent No.1 had allotted land to respondent No.3. Therefore, the High Court was clearly in error in deciding the writ petition by assuming that it was only a case of allotment of land.
20. An analysis of the above noted provisions shows that once the Master Plan or the Zonal Development Plan is approved by the State Government, no one including the State Government/Development Authority can use land for any purpose other than the one specified therein. There is no provision in the Act under which the Development Authority can sanction construction of a building etc. or use of land for a purpose other than the one specified in the Master Plan/Zonal Development Plan. The power vested in the Development Authority to make modification in the development plan is also not unlimited. It cannot make important alterations in the character of the plan. Such modification can be made only by the State Government and that too after following the procedure prescribed under Section 12(3).
21. In the pleadings filed before the High Court, the respondents had not controverted the assertion made by the appellants that in the approved Zonal Development Plan, land comprised in Town Survey No.2/3 25 WP.5198/2011 (PIL) was earmarked for recreational use. Therefore, in the absence of change of land use which could have been sanctioned only by the State Government, respondent No.1 had no jurisdiction to grant permission to respondent No.3 to construct temple at the site. Respondent No.1 was very much alive to this legal position and this is the reason why its Vice Chairman had written letter dated 15.6.2010 to the Principal Secretary to the Government for change of land use by stating that a mistake had been committed at the time of preparation of Zonal Development Plan. It is a different thing that the State Government has not sanctioned change of land use by modifying the Zonal Development Plan in accordance with the procedure prescribed under Sections 12(3) and (4). In this scenario, there is no escape from the conclusion that respondent No.1 could not have entertained the application made by respondent No.3 and granted permission for construction of temple at the site reserved for recreational use and that too by ignoring that the same had not been allotted to respondent No.3 by any public authority. As a corollary, it must be held that the High Court committed serious error by refusing to quash order dated 30.3.2010 by assuming that it was merely a case of allotment of land."
and in "Manohar Joshi Vs. State of Maharashtra and others [(2012) 3 SCC 619]" wherein it is held:
"185. Public interest litigation is not in the nature of adversarial litigation, but it is a challenge and an opportunity to the Government 26 WP.5198/2011 (PIL) and its officers to make basic human rights meaningful as observed by this Court in para 9 of Bandhua Mukti Morcha v. Union of India [(1984) 3 SCC 161]. By its very nature PIL is inquisitorial in character. Access to justice being a fundamental right and citizen's participatory role in the democratic process itself being a constitutional value, accessing the court will not be readily discouraged.
Consequently, when the cause or issue, relates to matters of good governance in the constitutional sense, and there are no particular individuals or class of persons who can be said to be injured persons, groups of persons who may be drawn from different walks of life, may be granted standing for canvassing the PIL. A civil court acts only when the dispute is of a civil nature, and the action is adversarial. The civil court is bound by its rules of procedure. As against that the position of a writ court when called upon to act in protection of the rights of the citizens can be stated to be distinct."
this Court, in a petition under Article 226 of the Constitution, can embark upon the aspect having public importance where the statutory authority, in the case at hand the Board, has been blamed of not following the statutory provisions and acting contrary to law. The preliminary objections raised against maintainability of this petition is, thus, overruled.
(25) Now, coming to the issue; apparent it is from the combined reading of various 27 WP.5198/2011 (PIL) provisions of Adhiniyam, 1973, adverted at supra that the Board is as much bound by the stipulations contained in the Adhiniyam, 1973 as any other person. Therefore, imperative it was for the Board to have strictly adhered to the stipulations seeking modification of approved plan which as borne out from record, in gross violation of the statutory stipulations and without prior written approval by the Director Town & Country Planning under Section 29 of Adhiniyam 1973 or the State Government under Sections 31 and 32 of Adhiniyam, 1973, changed the land use to commercial and auctioned the commercial plots. The Board may be within their right while adhering to the norms contained in 1972 Act; however, unless the very act of change in land use is valid, the subsequent act, even if they are in consonance with the provisions of 1972 Act will not validate such invalid act. In other words, when the action since inception is void, the super- structure thereon cannot be held to be valid. (26) In the case at hand, the development plan submitted by the Board for development of Mayurvan Colony was approved by the Competent Authority under Adhiniyam 1973. Subsequently thereafter, additional land came to be possessed by the Board in the year 1997 whereon, the Board filed an application on 05/01/1998 for change of land use. As there were shortcomings the Board was called upon 28 WP.5198/2011 (PIL) to fulfill the same vide communication dated 22.01.1998. Though a part fulfillment is shown, however, the entire shortcomings were not shown to have been meted out which virtually led to filing of case which was got reopened in the year 2010 whereon the Competent Authority by passing an order rejected and turned down the proposal for amendment in the development plan. This would be evident from the communication dated 06.04.2010. In view of these facts, the contention that the proposed amendment was deemed to have been sanctioned has no legal force.
(27) In "Raipur Development Authority Vs. Anupam Sahkari Griha Nirman Samiti and others [(2000) 4 SCC 357]", it is held:
"5. The first contention raised for the appellant is, whether on the facts and circumstances of this case, in view of sub-section (5) of Section 30 of the Act, could it be said it to be a case of deemed permission. For the ready reference Section 30 is quoted hereunder:
"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.
29 WP.5198/2011 (PIL) (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 to the permission applicant within sixty days 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 sixty days:
Provided that in computing the period of sixty days the period in between the date of requisitioning any further information or documents from the applicant and the date receipt of such information or documents form the applicant shall be excluded.
6. Under sub-section (5), if the Director does not communicate his decision either granting unconditionally or conditionally or refusing the permission then within 60 days from the date of the receipt of such application, the permission would be deemed to have been granted. But significantly proviso to it extends this period by excluding the period during which any further information or
30 WP.5198/2011 (PIL) document is requisitioned from the applicant to the date of its receipt. It is not in dispute that respondent no.1 applied for the development of the land under Section 29 on 2.6.1986. The 60 days expires on 2.8.1986. The respondent case is till this date the Director has neither refused nor granted the permission hence it would be deemed to have been granted. On the other hand, appellant strongly relies on the five communications sent by the Joint Director, Town and Country Planning, to Respondent 1 seeking certain information with regard to the development permission which was not forthcoming, for this reason, the case of the respondent was closed, which is evidenced from the letter dated 6.10.1986. Thus question of deemed permission would not arise in view of the said proviso. This letter refers to the said five earlier communications, namely, letters dated 18.6.1986, 1.7.1986, 21.7.1986, 31.7.1986 and 9.9.1986. The letter records:
"Refer to the above letters with reference to the above subject. The information asked from you is still not received. Therefore the case is closed and filed."
Thus for full more than four months, since making of the said application the information was not forthcoming.
21. So far the 1st application dated 2.6.1986 is concerned, we have already recorded that there is no deemed permission under sub-section (5) of Section 30. In fact, proceeding in pursuance to the same was closed for the lack of response from the respondent in respect of information sought....... ."
(28) In the case at hand also as the 31 WP.5198/2011 (PIL) information sought for on 22.01.1998 was not forthcoming it cannot be presumed that there was deemed sanction of proposed amendment. This aspect was duly understood by the authorities of the Board at the helm at relevant time i.e. in 1998-1999; therefore, no further action was taken by the Board in carving out the commercial plots and auction them de hors the development plan. (29) The said state of affairs continued till 2010 when revised layout plan was again submitted on 25/03/2010 which was turned down on 06/04/2010. However, very strange contentions are made by the Board in the return to justify their action, it is contended that: "because in the office of the Housing Board, the amended layout plan which was proposed and submitted in the office of the Town and Country Planning in the year 1998 was misplaced, therefore an application for obtaining the certified copy was filed by the Housing Board and the Town and Country Planning has given the certified copy of the layout plan which is amended layout plan, meaning thereby the Town and Country Planning has accepted the revised layout plan as proposed in the year 1998."
(30) Thus, despite express refusal by the Competent Authority, the Board on the basis of the certified copy of the proposed amendment, treated it to have been sanctioned and proceeded to carve out the 32 WP.5198/2011 (PIL) commercial plots and auction the same. This action of Board since had no sanction of law, in our considered opinion, cannot be permitted to survive being void ab initio. (31) When an action is void ab initio, further action thereon must also fall.
(32) In the present case, as there was no sanction of revised plan, the carving of the commercial plots and the auction thereof and the execution of lease deed has no authoritative sanction of law, therefore, cannot be allowed to sustain. In other words, no right accrues in favour of respondents on the basis of lease deed dated 18.01.2011 (Annexure P/2 and P/4) executed by the Board. (33) Consequently, the diversion of use of 0.65 hectare received from Fisheries Department by the Board and the auction of the plots carved out for commercial use contrary to development plan and the execution of lease deed dated 18.01.2011 (Annexure P/2 and P/4) in favour of respondents No.7 and 8 respectively are set aside. Interim order dated 12.08.2011 is made absolute. The respondents No.7 and 8 would be entitled to refund of amount deposited by them in lieu of land in question purchased on auction.
(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
(14/02/2018) (14/02/2018)
pd
Digitally signed by
PAWAN DHARKAR
Date: 2018.02.15
11:27:52 -08'00'