Sapna Gandhi vs Indore Development Authority

Learned counsel for the parties have fairly stated before this Court that the controversy involved in the present case stands concluded by the judgment

dated 10.7.2018 passed in the case of Rajesh Gandhi Vs. Indore Development Authority and Another (W.P.No.1469/2017) and the only difference is

in respect of plot and in the present case the plot number involved is Plot No.B 44 admeasuring 173.77 Sq.mt situated in Scheme No.78 Part I

Lohamandi.

The judgment delivered in the case of Rajesh Gandhi (supra) reads as under:-

“ The petitioner has filed the present petition being aggrieved by the order dated 27.04.2015 by which the Indore Development Authority has

cancelled the lease deed and allotment of Plot No. B 36, Scheme No.78 (Part I, Commercial) Lohamandi, Indore, executed in favour of Roop Kumar

and Brothers.

That Plot No.B36, admeasuring 173.77 sq.meter situated in Scheme No.78 Part I, Lohamandi was reserved for Commercial purpose of respondent

No.3 by letter dated 16.03.2006 followed by allotment letter dated 20.06.2006. Thereafter, possession was handed over to the respondent No.2.

Possession was given on 29.12.2006 and lease deed was executed on 20.02.2012. As per Clause 3 of the lease deed, the said plot was not

transferrable for the period of 10 years. The petitioner purchased the said plot from respondent No.2 vide registered sale deed dated 05.03.2014. The

petitioner is also engaged in the business of Transport and running the shop in the name of Sagar Still Suppliers, therefore also eligible to get the plot in

the Loha Mandi.

The Indore Development Authority issued a show cause notice on 13.10.2014 to the respondent No.2 as to why the lease deed be not cancelled for

violation of Clause 3 of the lease deed as he sold the plot within 10 years.

Vide letter dated 28.10.2014 the petitioner sought 15 days' time to submit the reply. According to him the plot is not vacant and there is a Godown

over there and he is busy in Diwali festival.

The Board of Indore Development Authority vide resolution No.14 dated 26.02.2015 has decided to cancel the lease deed. By order dated 27.04.2015,

the CEO has cancelled the lease deed and directed to initiate the process for taking possession. Being aggrieved by the aforesaid order, the petitioner

has filed the present petition.

By order dated 08.03.2014 while issuing notice this Court has stayed the dispossession of the petitioner till the next date of hearing.

After notice, the respondent filed reply alongwith an application for vacating stay. The respondent has raised an objection about the maintainability of

the writ petition in light of the judgement passed by this Court in case of Sajni d/o Dwarkadas Bajaj Vs. Indore Development Authority and others

reported in 2012 (1) MPLJ 53.

The petitioner filed rejoinder to the return by submitting that the case of Sajni (supra) has been distinguished by this Court in case of Sayaji Hotels Vs.

Indore Development Authority in W.P.No.8128/2015, decided on 18.12.2015 while allowing the writ petition.

Shri Vijay Asudani, learned counsel for the petitioner submits that prior to the passing of the impugned order, opportunity of hearing was not granted to

the petitioner, therefore, the writ petition is maintainable as the principles of natural justice were violated by the respondents. In identical situation this

Court has entertained the writ petition and set aside the order of cancellation.

Facts of the case of Sayaji Hotels Vs. Indore Development Authority are distinguishable to the present case. In the said case, the Industrial

Development Authority issued show cause notice to the Sayaji Hotels for appearing before the Board on 26.08.2014. Thereafter, the next date of

hearing i.e. 07.10.2015 was given. The petitioner appeared and submitted an application for adjournment on the ground of ill health supported by

certificate of doctor. On 07.10.2015 the Board has rejected the application and passed the resolution dated 28.10.2015 in this background this Court

held that opportunity of hearing was not granted. But, in the present case, the Board issued a show cause notice to the petitioner as well as to the

respondent No.2 on 13.10.2014. By letter dated 28.10.2014 the  petitioner sought 15 days' time. Thereafter, the petitioner did not submitted any reply

till the Board passed the resolution on 26.02.2015. The petitioner remained silent for 4 months . He had full opportunity to file reply to the show cause

notice, therefore, there is no violation of principles of natural justice, hence, the writ petition is not maintainable in view of the law laid down by the

Sajni Bajaj (supra). In case of Sajni d/o Dwarkadas Bajaj Vs. Indore Development Authority and others the Division Bench had held that the writ

petition is not maintainable in a contractual matter hence, challenged to the cancellation of the lease deed. It has been further held that the petitioner is

entitled for protection and he cannot be evicted forcibly without taking recourse of law. Relevant portion of the aforesaid judgement is reproduced

below:

“19. Having considered the aforesaid submissions of the learned counsel for the parties, we find that both the parties are at one on the point that

this Court, while exercising jurisdiction under Article 226of the Constitution, cannot examine the correctness and validity of the impugned order of

cancellation of lease deed. We are also of the view that the questions, which are involved in the matter, relate truly of the civil right of the parties

flowing from the lease deed. These questions cannot be effectively decided in this petition under Article 226 of the Constitution of India, as has been

held by the Supreme Court in the case of State of U.P. and others vs. Maharaja Dharmander Prasad Singh (supra). The questions arising out of the

lease; such as, whether there has been breach of covenant under the lease, whether there was a valid sanction for the construction, which has been

raised by the petitioner, the stand of the petitioner that there was obstruction in raising the further construction and that the sanction of building map by

the Indore Municipal Corporation was made known to the IDA and at no point of time, the IDA objected for raising of the said construction, are all

questions, which cannot be decided in this writ petition. These are the questions, which require trial either in regular civil proceedings or in aproceeding

for eviction, if initiated by the IDA under the Public Premises Eviction Act. In the circumstances, we refrain ourselves from deciding these disputed

questions of fact in this petition under Article 226 of the Constitution of India.

However, at the same time, in view of the law laid down by the Supreme Court, on cancellation of lease, for taking possession, instead of taking

recourse of law,the IDA cannot be permitted to take possession on thebasis of their own order of cancellation of lease. The IDA has no right to take

back the possession extrajudicially by use of force from the lessee/occupants, even after cancellation of the lease deed. The possession of the lessee

even after cancellation of the lease deed, is juridical possession and the dispossession forcibly cannot be permitted. Lessee/occupants cannot be

dispossessed otherwise than in due course of law. Even if, as in the present case, lessor is the IDA, aninstrumentality of the State, it will not be placed

at any higher or better position. In the circumstances, we repel the contention of the learned Senior Counsel appearing for the IDA that on

cancellation of the lease, the petitioners can be dispossessed without adopting the procedure of law for taking the possession. This argument is not

only specious but highly dangerous by reason of its implications and impact on law and order (See Bishan Das and others vs. State of Punjab and

others, MANU/SC/0348/1961 : AIR 1961 SC 1570).

In the circumstances, we are of the considered view, that there is no question for the IDA to resort toan extra judicial method of taking possession

and in our considered view, the possession has to be taken by the IDA only, in accordance with law. We also find noforce in the contention of the

IDA that Rule 51 of Rules of 1975, empowers the IDA to take the possession directly without resorting the legal method. Rule 51 nowhere empowers

the IDA to take forcible possession after cancellation of the lease.â€​

In view of the aforesaid law laid down by this Court,petition is not maintainable, hence liable to be dismissed.

At this stage, Shri Vijay Kumar Asudani, learned counsel for the petitioner submits that vide order dated 08.03.2017, this Court has already protected

the petitioner from dispossession, therefore, the same protection may be continued for the period of 30 days so that the petitioner can approach the

civil Court by way of civil suit.

The petitioner has made a reasonable prayer.

The petition is hereby dismissed. The respondent No.1 is restrained to dispossess the petitioner for the period of 30 days from today.â€​

The order passed by this Court in the case of Rajesh Gandhi (supra) shall be applicable mutastis mutandis in the present case and the petitioner shall

be free to approach the Civil Court by filing a Civil Suit and for a period of thirty days, the interim protection granted to the petitioner will continue.

With the view of the aforesaid, the writ petition stands disposed of.