AI Structured Summary
Not yet generated for this judgment
Judgment
The petitioner has filed the present petition
challenging the orders dated 06.05.2014, 16.09.2014
and 13.01.2015 passed by the respondents No.2
and 1.
The petitioner has entered into
development agreement with one Asha Bai in
respect of the land bearing Khasra No.337/1, 337/2
and 337/3 having an area of 6.69 hectares
situated at village Ghunsor, Tahsil and District-
Jabalpur. The said land was earmarked for
agricultural purposes in the development plan.
The petitioner therefore, submitted an application
under Section 16 of the Madhya Pradesh Nagar
Tatha Gram Nivesh Adhiniyam, 1973 (hereinafter in
short referred to as "the Adhiniyam, 1973") for
changing the land use of the said land from
agricultural to residential. The said application has
been filed under Section 16 of the Adhiniyam, 1973
and not under Section 29 of the Adhiniyam, 1973.
The petitioner has deposited requisite fees of
Rs.35,000/- along with challan and all relevant
documents as per Clause 7.17 of Bhedaghat
Development (Draft) Plan, 2021. The said
application was rejected vide order dated
06.05.2014 on the ground that the land for which
application is moved is earmarked for agricultural
use in Bhedaghat Development (Draft) Plan, 2021.
The petitioner has stated that while passing this
order, no opportunity of hearing was given to the
petitioner and the orders were passed without
assigning any reasons. It has further been stated
that there is no impediment under the Act to deny
such permission. Section 16(2) of the Adhiniyam,
1973 specifically provides that the change in use is
permissible by the order of Director. Against the
said order, the petitioner has preferred an appeal
before the respondent No.1. The respondent No.1
vide order dated 16.09.2014 has rejected the said
appeal. The appeal was dismissed on the ground
that with regard to the land in question, the
provisions of Bhumi Vikas Rules, 2012 (hereinafter
in short referred to as "the Rules, 2012") were
applicable and therefore, no permission for change
of use could have been given. Against the said
order the petitioner has preferred a review petition
before the respondent No.1. The same was also
dismissed vide order dated 13.01.2015 on the
ground that there is no provision of review under
the Adhiniyam, 1973. Being aggrieved by the
aforesaid order, the petitioner has filed the present
petition.
Learned counsel for the petitioner submits
that the impugned orders passed by the
respondents are illegal and arbitrary. It is further
submitted that the petitioner has moved an
application under Section 16 of the Adhiniyam for
converting the use of land from agricultural to
residential and therefore, there was no impediment
in granting the same. However, in single line order,
the said application has been rejected by the
respondents. It is further submitted that the
respondents have treated the said application under
Section 29 of the Adhiniyam, 1973 instead of
Section 16 of the Adhiniyam, 1973. It is also
submitted that the Rules, 2012 are not applicable
to the area falling within Bhedaghat Development
(Draft) Plan, 2021. The Bhedaghat Development
(Draft) Plan was finalised in the year, 2016, while
the application was submitted by the petitioner in
the year, 2014 i.e. prior to finalisation of Bhedaghat
Development (Draft) Plan. The State Government
has issued a Gazette Notification dated 26.12.2012,
which has been published in the Madhya Pradesh
Gazette dated 04.01.2013, according to which the
provisions of the Rules, 2012 have been made
applicable to as many as 145 towns including
Jabalpur Division. There are as many as 15 cities of
Jabalpur Division but the Bhedaghat has not been
included in the said list. Thus, by virtue of the said
notification, the provisions of the Rules, 2012 are
not applicable to the land in question. It is also
submitted that he has obtained a note-sheet under
the Right to Information Act from the Office of Joint
Director, Town and Country Planning and in the
note-sheet, it has also been mentioned that in
Bhedaghat Planning Area the provisions of the
Rules, 2012 are not applicable.
The respondents have filed reply and in
the reply, the respondents have taken a preliminary
objection that the petitioner has no locus even to
apply for land use change on the basis of so called
un-registered agreement to sale the property in
question. The petitioner cannot claim any equity or
any relief on the basis of an unregistered
instrument in terms of section 33 of the Indian
Stamps Act. That apart, the so called sell
agreement executed between the parties, nowhere
reveals any description of the consideration of sell
and therefore, even such a document may not be
construed to be a ''conveyance''. It is further
submitted that one Smt. Ashabai Patel has parallely
moved an application seeking sanction under the
Adhiniyam in respect of the said land, which was
rejected by the Joint Director, Town and Country
Planning, Jabalpur on 09.02.2015. Against the said
order, Smt. Ashabai has preferred an appeal before
the Divisional Commissioner. The Divisional
Commissioner vide order dated 02.06.2015 has
allowed the application and remitted back the
matter for fresh consideration. However, the State
Government by exercising suo-motu power under
revision has stayed the order of Divisional
Commissioner. Smt. Ashabai filed Writ Petition
No.16324/2014 against the order passed by the
State Government wherein this Court vide order
dated 08.12.2015 has stayed the order, however a
liberty was granted to the State Government to
proceed in the matter in accordance with law.
Pursuant to the liberty granted by this Court, the
Joint Director, Town and Country Planning, Jabalpur
took the matter afresh for consideration. The Joint
Director vide order dated 31.05.2016 has rejected
the said application. The State Government has
thereafter passed the order dated 21.03.2017
setting aside the order passed by Divisional
Commissioner and therefore, Smt. Ashabai has
withdrew the petition with liberty to challenge the
order dated 21.03.2017 passed by the State
Government. Thus, in the light of the aforesaid,
learned counsel for the respondents submits that
the issue pertaining to the change in use of land or
development permission with regard to property in
question has already been adjudicated upon for the
respective authorities and the rejection of the same
has attained finality.
The respondents have further submitted
that so far as Bhedaghat Development (Draft) Plan,
2021 is concerned, it is stated that the said was
notified under Section 18 of the Adhiniyam, 1973
and now final development plan has been notified
on 03.09.2016 in terms of provisions under Section
16 of the Adhiniyam, 1973. The land in question
falls within the area specified under agricultural
use and therefore, after publication of the final
draft plan such land use cannot be converted to the
residential. Even statute does not provide any
authority to the State Government to consider any
such change in the land use at the instance of an
individual person. It is also submitted that the
Rules, 1984 stood completely repealed by
enforcement of the Rules, 2012, which do not
permit entertaining any application seeking
change in land use specified under the final
development plan already notified under Section 19
of the Adhiniyam, 1973 at the instance of an
individual person.
The petitioner has filed the rejoinder and
in the rejoinder, the petitioner has stated that so
far as preliminary objection with regard to filing of
the present writ petition on the ground of locus of
the petitioner is concerned, the petitioner has
stated that no such objection has been raised by
the authorities and no such reasons have been
assigned for rejection of the application filed by the
petitioner either by the Joint Director in the order
dated 06.05.2014 or by the Divisional Commissioner
in the order dated 16.09.2014. It is submitted that
while subjecting the orders passed by
administrative authorities to judicial scrutiny, the
reasons assigned in the orders or contained in the
file of the authorities are to be decided and reasons
for the rejection of claim of the petitioner cannot
be supplemented by taking additional ground in the
affidavit filed to the counter affidavit. So far as
filing of earlier writ petition by one Ashabai Patel is
concerned, the petitioner has stated that since Smt.
Ashabai Patel has independently made an
application under Section 16 of the Adhiniyam,
1973 for development of the land while the
petitioner has separately entered into an agreement
as colonizer of development of the land and after
agreement of that land since moved an application
under Section 16 of the Adhiniyam, 1973 seeking
permission for development. Smt. Ashabai Patel
has filed separate petition before this Court, which
is pending.
Heard learned counsel for the parties and
perused the record. The petitioner has entered into
an agreement of the property of Khasra No.337/1,
337/2 and 337/3 situated at Village-Ghunsour,
Tahsil and District-Jabalpur. Thereafter, the
petitioner has submitted an application under
Section 16 of the Adhiniyam for change of land use
of the said land from agricultural to residential.
The said application was rejected by respondent
No.2 vide order dated 06.05.2014 on the ground
that as per Clause 17.1 of the Bhedaghat
Development Plan, 2021, the change of land use is
not permissible. Being aggrieved by that order, the
petitioner has preferred an appeal before the
respondent No.1. The respondent No.1 vide order
dated 16.09.2014 has dismissed the said appeal.
The petitioner thereafter filed an application for
reviewing/recalling of the order dated 16.09.2014.
The said application was also rejected vide order
dated 13.01.2015. Being aggrieved by that order,
the petitioner has filed the present petition.
Section 16 of the Adhiniyam, 1973
provides for freezing of land use. As per Section
16(1)(a) no person shall institute or change the
use of any land or carry out any development of
land for purpose other than that indicated in the
existing land use map without the permission in
writing of the Director. Thus, as per this section,
the use of the land can be changed after submitting
an application before the Director. Section 16(2) of
the Adhiniyam, 1973 provides that the permission
under sub-section (1) may be granted in such cases
and subject to such conditions as may be
prescribed. Section 19 provides for sanction of
development plans. 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 and after hearing the
objections, the development plan shall come into
operation from the date of publication of the said
notice in the Gazette. Chapter-VI of the Adhiniyam,
1973 provides for control of development and use
of land and Section 29 thereof provides for
application for permission for development by the
person other than local authority or any other
authority constituted under the Adhiniyam, 1973.
Section 16 of the Adhiniyam,1973 provides for
change in use of the land by the Director whereas
Section 29 of the Adhiniyam, 1973 provides for
permission for development of land falling within
planning area.
In exercise of powers conferred by Section
85(1) read with Section 24 (3 of the Adhiniyam,
1973, the State Government has framed the Rules
known as Madhya Pradesh Bhumi Vikas Rules, 2012.
By enforcement of the said Rules, the earlier Rules,
1984 have been repealed. The Bhedaghat
Development Plan has been declared as notified
area as per Section 13 of the Adhiniyam, 1973
under the final Gazette on 12.12.1973 and
amended from time to time. Accordingly, Bhedaghat
Development (Draft) Plan, 2021 was published
under Clause 7.2.1 of the Bhumi Vikas Rules, 1984
and the same were not applicable to the Bhedaghat
Development (Draft) Plan. Thereafter, Chapter-VII
of the Bhedaghat Development (Draft) Plan was
amended vide Gazette notification dated
29.05.2013. In the said amendment, it has been
stated that the provisions of Bhumi Vikas Rules,
2012 are not applicable to Bhedaghat Development
(Draft) Plan. While rejecting the application, the
respondents have not taken into consideration the
said notification. The petitioner has also filed a
copy of note-sheet in which it is specifically
mentioned that in the Bhedaghat Development
(Draft) Plan, Bhumi Vikas Rules, 2012 are not
applicable. Rule 14 of the Rules, 2012 provides for
application for development or building permission.
Rule 5 provides that the development permission
under Section 16 of the Adhiniyam,1973 shall not
be granted, if the land is situated in such area
where sufficient means of access have not yet been
developed or proposed or the activity proposed in
the application is not proposed in the published
draft development plan. In the present case, in the
proposed development plan, the land is earmarked
for agricultural use and therefore, in the light of
the Rule 14/5 of the Rules, 2012, the respondents
have rejected the application submitted by the
petitioner. However, the State Government has
issued a notification dated 14.01.2013, in which it
has been stated that the Bhum Vikas Rules, 2012
are applicable to 145 cities, in which the Jabalpur
Division has also been included and it does not
includes the name of Bhedaghat, which shows that
the Rules, 2012 are not applicable to the
Bhedaghat Development Plan and therefore, the
respondents have erred in rejecting the application
submitted by the petitioner in light of Bhumi Vikas
Rules, 2012.
So far as the preliminary objections raised
by the respondents regarding the locus of the
petitioner to file the present petition as well as the
petition filed by Smt. Ashabai Patel is concerned,
the respondents have not rejected the application
of the petitioner on the same grounds. The validity
of the order has to be tested on the basis of the
reasons in the orders.
The Apex Court in the case of Union of
India and another Vs. GTC Industries Ltd.,
Bombay, (2003) 5 SCC 106 in paragraph-13 has
held that a quasi-judicial order has to be judged on
the basis of reasoning contained therein and not
on the basis of pleas put forward by the person
seeking to sustain the order in its counter-affidavit
or oral arguments before the Court. Similarly in the
case of Nandkishore Ganesh Joshi Vs.
Commissioner, Municipal Corporation of
Kalyan & Dombivali and Others , (2004) 11 SCC
417 in paragraph-21 has held that a statutory
authority, as is well known, when it acts in terms
of a statute, is bound by its action. It cannot
supplement or supplant the reason later on by way
of affidavit. Thus, in the light of aforesaid decisions
passed by the Apex Court, the respondents cannot
raise the grounds which they have not taken in
their orders while rejecting the application
submitted by petitioner. So far as application
submitted by Smt. Ashabai Patel is concerned, the
same has been filed by her in her personal capacity
for development of the land as a land owner and
the petitioner has submitted an application being a
registered colonizer and therefore, the application
submitted by the petitioner is maintainable.
However, the application submitted by the
petitioner has also not been rejected on this
ground.
In the light of aforesaid reasons, the writ
petition is allowed. The impugned orders dated
06.05.2014, 16.09.2014 and 13.01.2015 are hereby
set aside and the respondents are directed to allow
the application submitted by the petitioner on
17.02.2015 with no order as to costs.