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Judgment
The petitioners have filed the present petition being aggrieved by order dated 22.8.2013 (Annexure P/1) passed by respondent No.4 whereby NOC
issued vide letter No.3114-Bhu-Arjan/2012 dated 24.5.2012 in respect of land bearing Survey Nos. 282 area 0.125 Hect., 328/1 area 0.520 Hect.,
328/2 area 1.130 Hect., 328/3 area 2.242 Hect. and 329/1 area 1.586 Hect., total area 5.603 Hect. of Village Palakhedi (hereinafter, for short, “the
land in questionâ€) has been cancelled.
Facts of the case, in brief, are that the petitioners are the owners and possession of the land 327/1, 328/1, 328/2, 328/3, 329/1 and 282 total area
12.506 Hect. Petitioners also got diverted the said land for residential purpose from the agricultural. They applied for development permission and in
exercise of powers conferred u/s. 30 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (hereinafter, for short, “the Adhiniyamâ€), the Joint
Director, Town & Country Planning, Indore had granted the permission vide order dated 15.5.2009 which was further renewed vide order dated
17.2.2010. Likewise, petitioner No.5 was also granted development permission vide order dated 4.8.2006 and renewed vide order dated 17.2.2010.
In order to introduce new “Super Corridorâ€, the IDA sought approval from the State Government to declare the scheme u/s. 50 of the
Adhiniyam. The State Government did not pass any order, therefore, by virtue of Section 50 of the Adhiniyam, the permission was deemed to have
been granted. Thereafter, the IDA passed Resolution No.198 dated 11.7.2008 proposing Town Development Scheme called “Scheme No.169-Bâ€
as a supplement to Scheme No.139 and 151. The declaration was published on 23.7.2008 as contemplated u/s. 50(2) of the Adhiniyam. In the
aforesaid declaration, the land in question belonging to the petitioners was also included in the draft scheme and the objections were invited. The
petitioner submitted the objections which were dismissed by the IDA vide order dated 16.8.2010. Thereafter, final scheme was published u/s. 50(7) of
the Adhiniyam by way of Gazette Notification dated 15.10.2010.
The petitioners assailed the final scheme by filing revision before the Director, Town & Country Planning. The IDA filed the reply refuting the
stand taken by the petitioners. Vide order dated 26.4.2011, the respondent No.2 allowed the revision on the ground that the petitioners had already
obtained the development permission on 4.8.2006 i.e. prior to the declaration of Notification of formulation of Scheme No.169-B on 23.7.2008.
Respondent No2. Remanded the matter back to the IDA to decide the petitioners' grievance afresh in accordance with the provisions of the
Adhiniyam.
Thereafter, the petitioners filed detailed representation on 3.5.2011 and in compliance of the order of respondent No.2, the respondent No.3 passed
the order in their favour by issuing the notice dated 21.12.2011 directing them to deposit the development charges @ Rs.7,43,700/-per Acre to the tune
of Rs.1,02,96,550/-. The petitioners were further directed to execute the agreement that they shall raise the construction on the land in question in
conformity with Scheme No.169-B. In pursuant to the said notice, the petitioners had deposited the aforesaid amount with the IDA and an agreement
was also executed between them. Thereafter, vide order dated 24.5.2012, the respondent No.4 has declared that the land in question is free from
Scheme No.169-B and the petitioners are free to develop/construct therein and for which, the IDA was not having any objection.
The petitioners got surprised to receive the letter No.2360 by which respondents No.3 and 4 restrained them to proceed with the
development/construction over the land in question on the basis of NOC dated 24.5.2012 on the ground that the matter has again been placed before
the Board. Thereafter, the petitioners were served with the impugned order dated 22.8.2013 by which NOC dated 24.5.2012 has been cancelled and
also ordered for return of the amount of Rs.1,02,96,550/- with interest @ 9% per annum to them. Being aggrieved by the aforesaid order, the
petitioners have approached this Court by way of this petition.
Shri V.K. Jain, learned senior counsel appearing for the petitioners, vehemently argued that in the Adhiniyam, there is no provision of review,
therefore, in absence of any provisions, the IDA has wrongly recalled its earlier order dated 24.5.2012. In support of this contention, learned senior
counsel for the petitioners placed reliance upon the decisions in the case of Haryana State Industrial Corpn. V/s. Mawasi : (2012) 7 SCC 200; Julious
Prasad V/s. State of M.P. : 2010(1) MPLJ 659; Kalabharti V/s. Hemant : AIR 2010 SC 3745; Karpa Mazdoor V/s. Management Birla : AIR 2005
SC 1782; Dr. Kuntesh Gupta V/s. Management of Hindu Kanya : AIR 1987 SC 2186 and Patel Narshi V/s. Pradyumansingh : AIR 1970 SC 1273.
He further argued that the impugned action of the respondents is hit by the principles of promissory estoppel. Once the Board has taken the decision
to release the land in question from the scheme and an agreement has also been executed, then the IDA cannot recall such an order. The impugned
action of the respondents, IDA is not only arbitrary, unfair, unreasonable but unconstitutional also. In support of this contention, he has placed reliance
upon the decision in the case of P.S. Baraskar V/s. Director, Department of Wastelands : 2013 (4) MPLJ 390; and Sushila Chemical v/s. Bharat
Cocking Coal : (2010) 10 SCC 388. Hence, the impugned order dated 22.8.2013 is liable to be quashed and the petitioners be permitted to proceed
with the development/construction on the land in question.
Shri Sunil Jain, learned senior counsel appearing on behalf of the respondents, IDA has argued that the petitioners were granted development
permission in the year 2006 and by virtue of Section 33 of the Adhiniyam and Rule 23 of the Bhoomi Vikas Niyam, 2012, the said permission and
sanction has lapsed. At the time of passing of the order dated 24.5.2012, this fact was not in the knowledge of the IDA. Since there is no development
permission in favour of the petitioners, the IDA has rightly cancelled the order dated 24.5.2012. He further emphasised that the writ petition is not
maintainable in respect of the contractual matters. An agreement was executed between the petitioners and IDA and if the petitioners are seeking
execution of the said agreement or alleging any violation of the terms and conditions of the said agreement, then they have a remedy of filing a civil
suit under the provisions of Specific Relief Act. Hence, he prayed for dismissal of this petition.
Heard the learned counsel for the parties at length and perused the material available on record.
The facts of the case are not in much dispute. The petitioners are the owners of the land in question, which was made part of Scheme No.169-B.
The revision filed by the petitioners u/s. 51 of the Adhiniyam was allowed and thereafter, the Board of the IDA took a decision to release the land in
question from the said Scheme. The petitioners were directed to deposit the development charges to the tune of Rs.1,02,96,550/- which they have also
deposited. Thereafter, an agreement, though not required under the Adhiniyam, was also executed between the petitioners and the respondents IDA.
The issue was again taken up by the IDA in its meeting dated 28.5.2013 by which the Board of IDA has recalled the earlier Resolution No.174 dated
3.11.2011 only on the ground that the term of the development permission granted to the petitioners has come to an end. Vide Resolution dated
3.11.2011, the Board of IDA has resolved that the petitioners were granted permission of development/construction by the Director, Town & Country
Planning on 4.8.2006 which is prior to the publication of Gazette Notification dated 1.8.2008, therefore, they are entitled for the benefit of Section 53
of the Adhiniyam and decided to release the land in favour of the petitioners.
The petitioners were granted development permission by the Director, Town & Country Planning on 4.8.2006 which was further renewed vide
order dated 17.2.2010 from 4.8.2009 to 3.8.2010. The IDA passed the Resolution No.198 on 11.7.2008 for the Scheme No.169-B and published in the
daily newspaper on 25.7.2008. Section 53 of the Adhiniyam puts a restriction on the land-use and the development from the date of publication of the
declaration to prepare a town development scheme. Therefore, from 25.7.2008, despite permission with the petitioners, they had no authority to
proceed with the development or construction over the land in question. The petitioners preferred the objections before the IDA, thereafter revision
was filed and finally, vide order dated 24.5.2012 the land in question was released in their favour from the Scheme and the NOC was granted. From
the year 2008 to 2012, the petitioners could not raise any construction because of the statutory restriction put by Section 53 of the Adhiniyam and
during this period, earlier sanction had lapsed and expired.
The dispute between the petitioners and the IDA was only in respect of inclusion and release of the land in question from the Scheme. Admittedly,
when the land was included in the Scheme, the petitioners had a development permission and this fact has not been dispute by the IDA, therefore,
they rightly took a decision by their resolution dated 3.11.2011 to release the land.
Section 33 provides that every permission granted u/s. 30 or 31 or 32 of the Adhiniyam shall remain in force for a period of three years from the
date of such grant and thereafter it shall lapse. The said period is liable to be extended from year to year, but the total period shall be in no case
exceed 5 years. As per second Proviso to Section 33, if the sanction is lapsed, such lapse shall not bar any subsequent application for fresh
permission. Therefore, there is no bar for the petitioners to apply for fresh sanction after the release of the land in question. The respondents were
required to consider the applicability of Section 53 of the Adhiniyam as on 11.7.2008 or 25.7.2008 and admittedly, at that time, the petitioners had a
permission of development. Because the matter was with the IDA for release of the land, the petitioners could not develop/construct over the land in
question by virtue of bar created u/s. 53 of the Adhiniyam.
Hence, now the IDA cannot recall its own resolution on the ground that the permission has lapsed. Even otherwise, there is no provision under the
Adhiniyam to recall or review such an order.
In view of the foregoing discussion, this petition deserves to be and is hereby allowed. The impugned order dated 22.8.2013 so also the resolution
dated 28.5.2013 are quashed. Since the respondents No.3 and 4 have acted arbitrarily and without authority, therefore, this writ petition is allowed with
costs of Rs.25,000/- (Twenty Five Thousand).
Order accordingly.