Madhya Pradesh High Court
Bhaskar Eiscal Infrastructure Ltd. ... vs Shri Manish Singh on 25 July, 2019
W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
W.P. No.368/2005
Jalindhar Bhamre & Another v/s The State of Madhya Pradesh & Others
W.P. No.1400/2004
Dilip Kshirsagar & Another v/s The State of Madhya Pradesh & Others
Conc No.138/2017
Bhaskar Fiscal Infrastructure Limited v/s Manish Singh & Another
Indore, dated 25.07.2019
Shri Anand Mohan Mathur, learned senior counsel
along with Shri V. Asawa, learned counsel for the
petitioners.
Shri S.K. Purohit, learned Government Advocate for
the respondent / State.
Shri A.K. Sethi, learned senior counsel along with Shri Harish Joshi, learned counsel for respondent No.4.
Regard being had to the similitude in the controversy involved in the present cases, the petitions were analogously heard and by a common order, they are being disposed of by this Court. Facts of the Writ Petition No.368/2005 are narrated hereunder.
The petitioners before this Court have filed this present petition by way of Public Interest Litigation being aggrieved by Resolution No.184 dated 06.10.2004 passed by the Indore Municipal Corporation, by which, the open land, which is meant for parking as well as for establishment of a garden in Scheme No.54, has been allotted / transfer / sold in favour of respondent No.4 - M/s Bhaskar Fiscal Infrastructure Limited.
02. The Mayor-in-Council vide Resolution No.655 dated 22.09.2004 has taken a decision to transfer 61,000 sq.ft. of land for construction of an exhibition building (commercial W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 2 complex) of seven storeys and later on the height to be raised up to ten storeys.
03. The petitioner's contention is that the resolution passed by the Indore Municipal Corporation dated 06.10.2004 and 22.09.2004 are contrary to the Zoning Plan No.3 (Residential), which is a part of Scheme No.54, a residential scheme.
04. It has been stated by the petitioner that the Zoning Plan was published under Section 22 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (hereinafter referred as the Act of 1973) vide notification dated 19.01.1980. It has been further stated that the notification dated 19.01.1980 was issued under Section 22 of the Act of 1973 after following the procedure prescribed under Sections 18, 19 and 22 of the Act of 1973 by respondents No.6 and 7.
05. It has been further stated that the land in question has been reserved as per the Zoning Plan. There was a septic tank existing on the land and now the septic tank is being removed for construction of a multi-storey building. It has also been stated that being a residential area, park and playground are necessary and the Indore Municipal Corporation has got no right to change the land use without following the prescribed procedure under the Act of 1973.
06. Reliance has been placed upon a judgment delivered by the Hon'ble Supreme Court in the case of Banglore Medical Trust v/s B. Mudappa & Others reported in AIR 1991 SC 1902 and it has been stated that by no stretch of imagination, the land use can be changed by the Indore W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 3 Municipal Corporation by passing the impugned resolution.
07. A further ground has been raised stating that a ten storey building is being constructed. More than 10,000 people shall be visiting the ten storey building and there will be a complete chaos on account of parking in the residential scheme. It has been further stated that the land use cannot be changed and it should continue to remain as a park / playground and the concrete jungle cannot be created over the land, which is meant for playground / parking.
08. The petitioner has prayed for following relief:-
(i) Issue suitable writ, order or direction to quash and set asie the resolution No.184 dated 06.10.2004 (Annexure-P/1) passed by the MIC and resolution No.655 dated 22.09.2004 (Annexure-P/2) passed by the MIC.
(ii) Issue suitable writ, order or direction to respondents No.2, 6 and 7 to stop the respondents No.4 and 5 from making any construction o this open land of Scheme No.54 in fron of Anand Mohan Mathur Sabhagrih.
(iii) To restrain the respondents No.4 and 5 from making any construction on the open land in Scheme No.54 in front of Anand Mohan Mathur Sabhagrih.
(iv) To direct the respondents No.4 and 5 as well as respondents No.1 and 2 to fill up the land dug by them on this open land and to make this open land suitable for construction of a prak over this open land.
(v) To direct respondents No.6 and 7 to take action against respondents No.4 and 5 and to direct respondents No.1 and 2 to restore land ot its original W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 4 under Section 36 and 37 of the Act of 1973.
(v) Any other relief, this Hon'ble Court thinks fit.
09. Various Interlocutory Applications were filed from time to time in the matter either for summoning the record or for grant of interim relief and this Court has granted interim relief on 25.04.2005 and 04.05.2005. Order dated 04.05.2005 is very clear and by the aforesaid order, the parties have been directed to maintain status quo. The net result is that no construction of any kind has taken place over the land in question.
10. A reply has been filed by respondents Nos.4 and 5 / Bhaskar Fiscal Infrastructure Limited and it has been stated that the Indore Municipal Corporation has taken a policy decision in order to promote the small scale and cottage industries in the area and for the same purpose a building was to be constructed in Scheme No.54. Tenders were issued by the Indore Municipal Corporation on Built, Operate and Transfer basis and the first advertisement was issued on 06.06.2002 in Nai dunia, Dainik Bhaskar and in other newspapers.
11. It has been further stated that no response was received, and therefore, a second advertisement was published on 29.03.2003, and thereafter, a third advertisement was published on 03.04.2004 in Dainik Bhaskar and Garha Chronicle. It has been further stated that in response to the advertisement dated 03.04.2002, six tender documents were issued and the respondent No.4 offered a sum of Rs.81,00,000/- and being the highest bidder, the bid was accepted on 08.12.2004. A performance W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 5 guarantee of Rs.10,00,000/- was also submitted and a copy of the agreement was forwarded to the Indore Municipal Corporation vide letter dated 14.12.2004. The area was to be handed over by the Corporation to start the work. A demand draft of Rs.13.25 lakh towards premium was also forwarded to the Corporation.
12. It has been further stated by respondents No.4 and 5 that the project in question was a Built, Operate and Transfer project. It is not a case of sale nor a case of lease and the land remains with the Corporation, and therefore, Transfer Rules of 1994 and the provisions of Madhya Pradesh Municipal Corporation Act for transfer of property are not applicable and no permission was required from the State Government.
13. It has also been stated that the area behind the disputed land has been allotted to Anand Mohan Mathur Charitable Trust and in case, the land in question is reserved for park or playground, no construction could have taken place over the land by Anand Mohan Mathur Charitable Trust. Respondents No.4 and 5 have stated that the petitioner and Anand Mohan Mathur Charitable Trust are sailing in the same boat and the same analogy applies to Anand Mohan Mathur Charitable Trust. Respondents No.4 and 5 have also stated that the Zoning Plan is the same for everyone and different yardstick cannot be applied to two different persons. The respondents have denied the existence and validity of any such Zoning Plan.
14. It has also been stated by respondents No.4 and 5 that on opposite side of the road there is a "Meghdoot Garden", W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 6 which is a large garden frequently visited by number of persons everyday. There is "Mangal Meriland" and it is also an open entertainment centre and by no stretch of imagination, it can be said that the land, which is earmarked for parking, is being encroached by the Indore Municipal Corporation as well as by respondents No.4 and 5.
15. A reply has been filed by respondent No.6 / Indore Development Authority duly supported by an affidavit and it has been categorically stated on the affidavit that the land use in respect of the land in question in the layout plan Scheme No.54 Sector - E is shown as site for a septic tank. It has been further sated that the Scheme No.54 has been handed over to the Indore Municipal Corporation vide agreement dated 22.07.1999 and now the land vests with respondents No.2 and 3 i.e. Indore Municipal Corporation w.e.f. 22.07.1999.
16. It has been further stated by the Indore Development Authority that vide letter dated 26.03.2001, the Joint Director, Town and Country Planning Department enquired about the proposed information technology building from the Indore Municipal Corporation over the land in question and vide letter dated 19.04.2001, the respondent No.7 was informed that Scheme No.54 has been transferred to Indore Municipal Corporation and as per the agreement executed between the parties, the land in question vests with Indore Municipal Corporation. It was also stated in the aforesaid letter that the land in question has been shown as site of septic tank in the layout of Scheme No.54, Sector - E and the land falls in the category of open land only. W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 7
17. It has been further stated by the Indore Development Authority that a joint inspection was carried out along with the Joint Director, Town and Country Planning Department as well as by Superintending Engineer, Public Health Engineering and vide letter dated 24.07.2001, the Indore Municipal Corporation was informed that the land in question is reserved for septic tank. As some levelling work was going on, the Indore Municipal Corporation was informed that no permission of construction, other than the purpose for which the land is reserved, can be given.
18. It has also been stated that the Joint Director vide letter dated 01.05.2001 sought a clarification regarding the basis of counting the land in question in the calculation of open land and park and in response to the aforesaid letter vide letter dated 18.05.2001, the respondent No.7 was informed that the land in question is an open land.
19. It has also been stated by the Indore Development Authority that the Joint Director vide letter dated 08.05.2001 issued a 'No Objection Certificate' for construction of information technology building over an area admeasuring 9712 sq.mt., which was reclaimed out of existing nala under Section 28 of the Act of 1973.
20. The Indore Development Authority again vide letter dated 21.06.2001 requested the Joint Director, Town and Country Planning Department / respondent No.7 to furnish approved layout in respect of the land in question and in response to the aforesaid, the respondent No.7 has informed vide letter dated 18.07.2001 that 'No Objection Certificate' has already been issued in the matter and it is not possible W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 8 to furnish approved layout.
21. The Indore Development Authority has also stated that the land use as per sanctioned layout is a septic tank and no construction can be made except for the septic tank and the land has to be kept as open land only. The Indore Development has also stated that respondent No.2 / Indore Municipal Corporation vide letter dated 04.04.2005 has informed the Indore Development Authority that over a small portion, Anand Mohan Mathur Sabhagrah has been constructed and on rest of the land, exhibition building is being constructed on Built, Operate and Transfer basis.
22. The Indore Development Authority, in response to the aforesaid letter, once again informed the Indore Municipal Corporation that the land in question is reserved for septic tank. A prayer has been made for dismissal of the writ petition.
23. Reply has also been filed on behalf of respondents No.2 and 3 i.e. Indore Municipal Corporation and Mayor- in-Council and it has been stated that for the purpose of establishing an exhibition centre, steps were taken by the Indore Municipal Corporation and after issuing Notice Inviting Tender (hereinafter referred as N.I.T.), the bidder has been allotted the work.
24. It has also been stated that the earlier on 20.03.2001, Anand Mohan Mathur Charitable Trust also submitted an application for construction of a community hall and they were also granted permission for construction of the community hall. It has also been stated that after constructing the Anand Mohan Mathur Auditorium, W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 9 hindrance are being created in respect of the construction of building in question and the Indore Municipal Corporation has not violated any statutory provisions of law while passing the impugned resolution.
25. A reply has also been filed on behalf of respondent No.7 / Joint Director, Town and Country Planning Department and on an affidavit, the Joint Director, Town and Country Planning Department has categorically stated that the land in dispute of Zoning Plan - 3, is earmarked for septic tank of the zone for the public utility and facility. It has also been stated that as per Clause-2.7 of the Booklet of Zoning Plan - 3 it is mentioned categorically that the land shall be used temporarily as a septic tank and finally, it shall be connected with the underground channels for disposal to fields, and thereafter, the land shall be reserved for park and playground.
26. It has been reiterated by the Joint Director that as per the layout of Scheme No.54, which was sanctioned on the basis of application made by the Indore Development Authority to the then Director, Town and Country Planning Department on 09.02.1979, the land-use is exclusively for septic tank. It has been stated that after grant of approval on 09.02.1979, the Indore Development Authority has implemented the Scheme No.54 and the land has been handed over to the Indore Municipal Corporation.
27. Thus, the reply filed by the Town and Country Panel Department makes it very clear that the land-use in the scheme is for utilizing it for the purposes of septic tank and after for construction of the underground channels to be W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 10 connected to the disposal fields, the land shall be reserved for park and playground.
28. Heard learned counsel for the parties at length and perused the record.
29. The undisputed facts of the case reveal that the petitioner has filed the present writ petition by way of Public Interest Litigation challenging the resolution dated 06.10.2004 and 22.09.2004 passed by the Indore Municipal Corporation as well as for allotment of land to respondents No.4 and 5 for construction of a multi-storeyed building. The undisputed facts also reveal that the land in question is a part of Scheme No.54. A Development Scheme was published under the provisions of the Act of 1973 and the Town and Country Planning Department has approved the layout of the scheme on 09.02.1979.
30. The undisputed facts also reveal that the land-use, as per the reply filed by the Town and Country Planning Department and by the Indore Development, establishes that the land is exclusively meant to be used for the purpose of septic tank and later on after construction of the underground drainage, the land has to be used as an open land and park as per the approved layout plan.
31. The undisputed facts also make it very clear that Scheme No.54 was handed over to the Indore Municipal Corporation vide agreement dated 22.07.1999, and now, the land vests with the Indore Municipal Corporation w.e.f. 22.07.1999. The Indore Municipal Corporation has issued an N.I.T. for development of the land on Build, Operate and Transfer basis and a ten storeyed building was to be W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 11 constructed over the open land and in those circumstances, the Public Interest Litigation has been filed.
32. The basic question in the present case is that the land, which is earmarked for septic tank and which has to be developed as a park and open space later on, can be converted for commercial use and can a building be constructed of ten storey over the land, which is earmarked under the layout plan and for some other specific purpose.
33. The Act of 1973 provides for development plans and sanction of development plans. Sections 19, 20, 21, 22 and 23 of the Act of 1973 reads as under:-
"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 W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 12 from such date shall be binding on all Development Authorities constituted under this Act and all local authorities functioning with the planning area.
20. Preparation of Zoning Plans. - The local authority may on its own motion at any lime after the publication of the development plan, or thereafter if so required by the State Government shall, within six months of such requisition, prepare a Zoning Plan.]
21. Contents of zoning plan. - (1) The zoning plan shall enlarge the details of land use as indicated in the development plan and shall,-
(a) indicate the land liable to acquisition for public purpose for the purposes of the Union Government, the State Government, a Town and Country Development Authority, a, Special Areas Development Authority, a local authority, a public utility or any other authority established by or under any enactment for the lime being in force :
Provided that no land shall be so designated unless the acquisition proceedings are likely to be completed within ten years of the preparation of the plan;
(b) define in detail and provide for areas reserved for agriculture, public and semi public open spaces, parks, playground, gardens, recreational areas, green-belts and nature reserves;
(c) allocate in detail areas or zones for residential, commercial, industrial, agricultural and other purposes;
(d) define and provide for the complete road and street pattern for the present and in the future and indicate the traffic circulation;
(e) lay down in detail the projected road and street improvements;
(f) indicate and provide for areas reserved for public buildings, institutions, and civic developments;
(g) assess, make projections for and provide for the future requirements of amenities, services, and utilities such as municipal transport, electricity, water and drainage;
(h) prescribe in detail the zoning regulations for each zone; with a view to facilitating an W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 13 individual lay out and regulating the location, height number of storeys and the size of buildings and other structures, the size of the courtyards, Courts and other open spaces and the use of the buildings, structures and land; (I) define areas which have been badly laid out or areas which have developed so as to form slums, and provide for their proper development and/or relocation;
(j) designate areas for future development and expansion;
(k) indicate the phasing of the programme of development.
(2) The zoning plan may, and, if possible, shall, indicate,-
(a) control over architectural features elevation and frontage of buildings and structures; and
(b) the details of development of specific areas for housing, shopping centres, industrial areas, educational and cultural institutions and civic centres.
22. Provisions of Sections 18 and 19 to apply to zoning plan. - The provisions of Sections IS and 19 shall apply for the preparation, publication approval and operation of zoning plan as they apply in respect of the development plan.
23. Review and modifications of development plan or zoning plan. - (1) The Director may, on his own motion or if so required by. the State Government shall undertake a review and evaluations of the development plan.
(2) The Director may if necessary propose modification of the plan under sub-section (1). (3) The Director shall, if so required by the State Government proceed to review and propose modifications of any planning unit of a development plan.
(4) The Local Authority shall on its own motion or if so required by the State Government or the Director undertake review and evaluation of the Zoning Plan. (5) The provisions of Sections 8 and 19 shall, so far as may be, apply to the modifications under sub- section (2), review and modification under sub-section W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 14 (3) and review and evaluation under sub-section 14 as these provisions apply in relation to the preparation, publication and approval of a development plan. Explanation. - For the purposes of this section "Planning Unit" means the area shown as planning unit in the development plan.] [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, [or the Director] 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 Development Authority [or the Director] 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 made to the Director] 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 Director] 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 W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 15 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 of being heard, the Director shall submit all the documents related to the proposed modification along with his opinion to the State Government and, the State Government may modify the plan as it deems appropriate.] (3) The provisions of Sections 18, 19 and 22 shall not apply for modification made by the State Government.
[Explanation.- For the purpose of Section 23-A and 23-B "floor area ratio" means the ratio of built up area in a building on all floors, excluding such areas of the building as may be prescribed, to the total plot area of the land in qeustion. ] [23C. Additional buildable floor space in the form of DRC. - Where any land is part of generating area, the Government or its undertaking which is the implementing agency of a public project may apply to the authority for issue of Development Right Certificates to the owner of the land.
23D. Additional buildable floor space in the project area. - Where any land is part of any project influence area notified by the Government, first fifty percent of maximum permissible additional buildable area can only be purchased from the project authority and remaining additional buildable area may be purchased through DRCs. "
The aforesaid statutory provisions of law makes it very clear that the State Government is competent to approve development plan and zoning plan, classifying a land-use in a particular zone has to be approved by the Town and Country Planning Department i.e. by the Director. Rule - 23 and 23A certainly provides for modification of development plans or zoning plans either by the Director or by the State Government.
34. In the present case, it is not in dispute that the land W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 16 in question was exclusively reserved for septic tank and the Indore Municipal Corporation does not have any right to change the land-use without following the prescribed procedure as contained under the Act of 1973. The reply filed by the Town and Country Planning Department and reply of the Indore Development Authority makes it very clear that at no point of time, the land-use was changed and without modification of the layout plan, the Indore Municipal Corporation wanted to establish an exhibition centre that too a ten storied multi storeyed building. Such an action on the part of the Indore Municipal Corporation is per se illegal, as it is contrary to the statutory provision contained under the Act of the 1973.
35. The zoning plan as per Clause - 2.7 of the Booklet of Zoning Plan - 3, makes things crystal clear and it provides that the land can be used temporarily as a septic tank, and finally, the septic tank has to be connected with the underground channels for disposal to the fields, and thereafter, the land shall be reserved for park and playground, and therefore, resolutions passed by Indore Municipal Corporation dated 06.10.2004 and 22.09.2004 are per se illegal and deserves to be quashed.
36. The Indore Development Authority, during the pendency of the present writ petition, preferred an application i.e. I.A. No.6711/2016 and the title of the application reveals that it was an application under Section 56 of the Contract Act, to declare the contract executed between the Indore Municipal Corporation and respondents No.4 and 5 as a nullity and a detailed reply on an affidavit W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 17 has been filed by the Indore Municipal Corporation. On 16.01.2017, this Court has directed the Indore Municipal Corporation to point out whether the Indore Municipal Corporation is continuing with the old contract of the year 2004 or not. An affidavit has been filed by the Commissioner, Indore Municipal Corporation and the same reads as under:-
"Affadivit In compliance of order dated 16.01.2017 Name : Manish Singh Father's Name : Shri Moti Singh Age : 48 years Occupation : Service Address : Indore Municipal Corporation, Indore I state on oath that:-
1. That, I am the Commissioner, Indore Municipal Corporation and have been briefed with the facts of the present case by the officer-in-charge.
2. That, this Hon'ble Court was pleased to direct the Commissioner, Indore Municipal Corporation to file a specific affidavit vide order dated 16.01.20017. In compliance, present affidavit is being filed.
3. That, it is humbly submitted by the deponent that the Mayor-in-Council vide resolution No.185 dated
24.03.2001 has approved the proposal No.9 dated 03.02.2001 forwarded by the Indore Municipal Corporation whereby a scheme for construction of information technology park has been approved.
4. That, after due approval for above said usage from the office of Joint Director, Town and Country Planning, Indore vide letter No.1826 dated 18.05.2001, W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 18 the Mayor-In-Council vide resolution No.178 dated 04.05.2002 has sanctioned the permission for construction of Exhibition on B.O.T. (Build Operate and Transfer) basis. Accordingly, on 09.07.2002, a tender has been floated for aforesaid wherein three tenders have been received. The highest offer at the rat of Rs.81 lacs has been submitted by the respondent No.4.
5. That, in the year 2004, as per the prevailing rates in the market, the negotiation committee has negotiated the rat with the respondent No.4 and finalised the offer at Rs.95 Lacs, which has further been approved by the tender committee as well as Mayor-in-Council vide resolution No.655 dated 22.09.2004. In furtherance, an agreement dated 14.12.2004 was executed between the successful bidder and the Indore Municipal Corporation with 36 months time period for completion of the project. At that point of time, an amount of Rs.95 Lacs was the best received offer by the Indore Municipal Corporation safeguarding the public exchequer to the best possible extent.
6. That, thereafter, present petition has been preferred wherein this Hon'ble Court by way of interim measure, has directed to maintain status quo which has been informed by the respondent No.4 vide letter dated 09.04.2005. Since then, the construction at subject site has not taken place.
7. That, it is humbly submitted that in totality of the above said circumstances, without commenting upon the rights and liabilities of the respondent No.4, due to passage of considerable time and considering the appreciation immovable property, ti can be inferred that currency of agreement dated 14.12.2004 may amount to aloss of State Exchequer on account of lapse of W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 19 significant period. More so, after lapse of 36 months period from the agreement, neither any new contract has been executed nor any extension has been granted. However, the Indore Municipal Corporation has made every effort to project the loss of State Exchequer.
8. That, the present affidavit has been drafted and prepared on the basis of record and briefing of the officer-in-charge.
9. That, the factual contents of the affidavit are true and correct on the basis of record and briefing of officer-in-charge.
Date : 27.01.2017 Deponent
37. The Indore Municipal Corporation has categorically stated that in the year 2004, an offer of Rs.95,00,000/- has been received, however, due to passage of time the price of the land has gone up and the execution of the agreement dated 14.12.2004 shall result into loss to the State Exchequer.
38. It has also been stated that after lapse of 36 months, no new contract has been executed nor extension has been granted in the matter. Thus, the Indore Municipal Corporation has admitted in the affidavit that the State Exchequer is going to suffer a heavy loss, in case, the respondents No.4 and 5 are permitted to execute the work.
39. It is true that the State Exchequer shall be subjected to heavy loss, as the agreement was executed in the year 2004 but the fact remains that the resolutions passed by the Indore Municipal Corporation dated 06.10.2004 and 22.09.2004 as well as the agreement executed between the Indore Municipal Corporation and respondents No.4 and 5 are a nullity.
W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 20
40. The Division Bench of this Court in the case of Municipal Corporation, Gwalior & Another v/s Anil Sharma & Others reported in 2002 (2) M.P.L.J. 595 has dealt with similar controversy, as the land which was reserved for park, school and open place, was being converted to be for some other purposes and in those circumstances, it was held by the Division Bench that the land, which is earmarked for public amenities, the change of land-use is not permissible, while revising the layout plan. Paragraphs - 14 to 22 of the aforesaid judgment reads as under:-
"14. Counsel for petitioner in writ petition referred to the judgment in the case of Om Kumar and Ors. v. Union of India, reported in AIR 2000 SC 3689, and invited attention to the Wednesbury Principle and principle of proportionality and submitted that when a statute confers discretion to an Administrator to take a decision, scope of judicial review would remain limited. Interference is not permissible unless one or other of the following conditions were satisfied, namely, the order was contrary to law, or relevant factors were not considered; or the decision was one which no reasonable person could have taken. These principles are known as Wednesbury Principles. In this case, it is further held that the principle of proportionality originated in Purssia in the nineteenth century and has since been adopted in Germany, France and other European countries. 'Proportionality' means the question whether, while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the Legislature or the Administrator so as to achieve the object of the legislation or the purpose of the administrative order. Under the principle, the Court will see that the Legislature and the administrative authority, maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of person keeping in mind the purpose which they were intended to serve.
15. Counsel for the petitioner in the writ petition W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 21 submitted that as per Notification Nos. 24 and 75 power has not been conferred upon Joint Director. He invited attention to Section 65 of M.P. Town Improvement Trust and submitted that colony was constructed under the old Act and, therefore, under the provisions of Section 65 the layout plan under the said Act has attained finality and cannot be subjected to revision. Reference was made to the judgment in the case of Virender Gaur and Ors. v. State of Haryana and Ors., reported in (1995) 2 SCC 577, wherein it is held that the land earmarked for open space has to be used and permission is granted for construction of Dharmashala and starting construction it was held that the Government is not bound to sanction lease of the land which is vested with the Municipality. The Government as well as Municipality is obliged to maintain and protect environment, manmade as well as natural. He invited attention to Section 2 (n) of the Adhiniyam, wherein definition of word "owner" is defined.
16. Respondents in the petition submitted that the petition is not maintainable. There are unexplained delay and laches. Petition suffers from delay and laches. Respondents relied upon the judgment in the case of Rabindrq Nath Base and Ors. v. Union of India and Ors., reported in AIR 1970 SC 470; and Aflatoon and Ors. v. Lt. Governor of Delhi and Ors., reported in AIR 1974 SC 2077, in support of their contention.
17. After giving anxious thought to the entire case, it is apparent that Shriram Colony came into existence before Act of 1973 came into force. Layout plans were accepted and certain lands were left open for park and school and certain open space was left in the said layout plan. After new Act came into force, certain applications have been filed by the coloniser for changing the user of land. Such change will not be permissible unless all the affected parties, namely, Municipal Corporation and the residents of colony, who have purchased the plots keeping in mind the open space and land reserved for park and open space arc heard. Some revision in plan was submitted to the Joint Director, Town & Country Planning, Gwalior. It was the duty of Joint Director to notice Municipal Corporation and persons affected and after hearing them should pass orders regarding change in plan. However, as held by the Apex Court in the cases of W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 22 Bangalore Medical Trust and G.N. Khajuria (supra), it is the duty of the authority to maintain ecological balance, as such, permission could not be granted. The coloniser could not point out any rule at the relevant time to reduce the area earmarked as park. The coloniser cannot take advantage of revised layout plan or can claim any right under the will unless it is established that the deceased has left behind certain open lands. If the intention was to keep open space and reserve the area for school and park in the colony then it wilt not be appropriate to change the user of land.
18. It is also surprising that when the parties, who had filed the civil suit, were not before the Writ Court, Writ Court could not have interfered with the orders passed by the Civil Court. However, in the facts and circumstances of the case, we hold that nature of land cannot be changed and land reserved for school and park in the original plan cannot be changed and any order of the Joint Director changing the layout plan is without jurisdiction and is quashed.
19. It is more surprising that the State Government and Joint Director, Town & Country Planning were not impleaded in the petition, against which Letters Patent Appeal is filed. However, they are parties in Writ Petition No. 849/2001. Therefore, action of Joint Director, Town & Country Planning in revising the layout plan is quashed. It is further directed that the area of park and school shall not be reduced. Since appellant/Corporation has stated that the park is under its management, Municipal Corporation is directed to maintain the park and ensure that there should not be any encroachment over the said park.
20. As regards inordinate delay is concerned, it was for the coloniser to point out that the authority allowed revision of layout plan after affording opportunity of hearing to the residents of the colony; therefore, as and when they learnt about revised layout plan and construction was started on the open space, some of them have filed civil suit and then writ petitions have been filed.
21. In view of the judgment in the case of V.K. Bansal (supra) and other judgments of the Apex Court, nature of land which is earmarked for public amenity cannot be changed. As far as open space is concerned, which, according to the coloniser, was not W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 23 left as open space for public amenity, should be held to be in the ownership of coloniser. This question is a disputed question of fact and in our opinion, this question shall be examined by the Municipal Corporation and Director, Town & Country Planning jointly after examining the original layout plan and considering whether permission to convert the open land into plots can he granted. It may be mentioned that any mutation in municipal record is not a mutation of title, as such, no right is conferred upon coloniser to claim himself to be the owner of the plots. It may be mentioned that if some application is filed by coloniser for converting open space other than the land earmarked for park or septic tank, the application shall be considered jointly by the Director, Town & Country Planning and Municipal Corporation after inviting objections from the local residents. While examining the left out open space, both the authorities shall consider the intention of original layout plan and shall record reasons for allowing carving out of plots or refusing carving out of plots upon open space.
22. In the result, appeal succeeds and is allowed. Order of Single Bench is set aside and the parties arc directed to act in the manner stated above. There shall be no orders as to costs."
In light of the aforesaid judgment, the land-use could not have been changed in the manner and method it has been done in the present case by the Indore Municipal Corporation by passing resolutions dated 06.10.2004 and 22.09.2004. No activity contrary to the zoning plan is permissible in respect of the land, which is subject matter of the present writ petition and which forms part of Scheme No.54, which is totally residential scheme.
41. The respondent No.4 has stated before this Court that the land was allotted to Anand Mohan Mathur Sabhagrah out of the same land which is reserved for the park and open place, and therefore, the land can be allotted to respondent No.4 also.
W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 24
42. In the considered opinion of this Court, if the land, which is reserved for park, has been allotted to Anand Mohan Mathur Sabhagrah, it does not create any right in favour of the petitioner. This Court is not commenting upon the allotment of land to Anand Mohan Mathur Sabhagrah, as it is not the subject matter of dispute before this Court, however, the respondent No.4 shall not be entitled for any relief on the ground of negative equality.
43. The State Government and Indore Development Authority have in fact supported the petitioner by stating the correct facts before this Court that the land-use, in the present case, is a septic tank, which shall be connected later on to underground channel for disposal of sewage into the field, and thereafter, the land shall be reserved for park and playground.
44. The net result is that the present writ petition stands allowed. The resolutions dated 06.10.2004 and 22.09.2004 are hereby quashed and the agreement executed between the Indore Municipal Corporation and respondents No.4 and 5 is also quashed. The Indore Municipal Corporation is directed to develop the land as per its land-use, meaning thereby, to use it temporarily as a septic tank and finally to convert it into a park and playground strictly in consonance with land in use as per Clause - 2.7 of the Booklet of Zoning Plan - 3 Scheme No.54.
The order passed by this Court in the present case shall govern the connected petitions also i.e. W.P. No.1400/2004 and Conc No.138/2017 and the same also stand disposed of.
W.P. Nos.368/2005, 1400/2004 and Conc No.138/2017 25 Let a copy of this order be kept in the connected petitions also i.e. W.P. No.1400/2004 and Conc No.138/2017.
Certified copy, as per rules.
(S.C. SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Ravi
Digitally signed by Ravi Prakash
Date: 2019.08.01 11:55:21 +05'30'