INDORE DEVELOPMENT AUTHORITY Vs. SHRI RAM BUILDERS

JUDGEMENT

(1.) QUESTIONING the defensibility and substantiality of the order dated 14.8.2007 passed by the learned Single Judge in Writ Petition No. 14605/2006, the present intra -Court appeal has been preferred under section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005. The writ appeal was heard. by a Division Bench which referred to the facts in issue the provision contained in the M.P. Nagar Tatha Gram Nivesh. Adhiniyam, 1973 (for short "the Act") especially section 50 of the said enactment, the stand and stance taken by the contesting parties and the interveners, the view expressed by the learned Single Judge and the interpretation placed by him on the proviso added to sub -section (4) of section 50 of the Act by the M.P. Nagar Tatha Gram Nivesh (Sanshodhan) Adhiniyam, 2004 on 29.12.2004, the interpretation sought to be placed by the learned senior counsel appearing for the Indore. Development Authority (in short "the Authority") and the proponement advanced by the learned counsel for the respondents in support of the order of the learned Single Judge and also to substantiate and justify how the scheme No. 132 that was prepared under section 50 of the Act had lapsed as a consquence of which the land owners acquired the right to get their plans approved for development of the land and thereafter expressed the opinion thus: 1979 JLJ 745=AIR 1980 MP 43]." Because of the aforesaid development, the matter has been placed before the Full Bench.

(2.) THE expose of facts are that the respondent No.1 invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India prayed for issue of a writ of certiorari for quashment of the orders dated 5.10.2006 and Annexure P -11, P -11A and P -11B passed by the State Government in exercise of suo motu power of revision whereby it set aside the orders dated 7.7.2006 contained in Annexures P -5, P -6 and P -7 to the writ petition passed by the third respondent therein, the Joint Director, Town and Country Planning, Indore by which the said authority approved the layout of the proposed development sought by the petitioner in respect of the land in question. It was contended in the writ petition that the petitioner, a partnership firm, is involved in construction business. He is the owner in possession of the land bearing survey Nos.73/4/2, 74, 75/3 admeasuring 1.237 hectares, survey Nos. 83/2, 84/2 admeasuring an area of 1.237 hectares and survey No.66/2 admeasuring an area of 0.720 hectare situated at village Khajrana, District Indore. On 14.5.1993, the authority had passed a resolution under section 50(1) of the Act declaring its intention to prepare a town development scheme which came to be numbered as scheme No.132. The scheme included the lands of the petitioner. On 28.5.1993, the authority issued a communique/announcement for publication of its declaration of intention of the scheme as contemplated under section 50(2) of the Act. The authority, as set forth, took steps for publication and eventually, the scheme was published in the gazette on 18.6.1993. The survey of the lands comprised in the scheme was carried out and the development of the scheme in a draft form was prepared. The draft form of the scheme was published in the official gazette on 26.5.1995 is envisaged under section 50(3) of the Act inviting objections and suggestions from the public at large as regards the draft development scheme. After considering the objections and suggestions and also hearing the objectors, the authority passed an order on 15.2.2005. There was correspondence between the authority and the Department of Madhya Pradesh Housing and Environment and as the facts would unfold, a resolution dated 29.7.2006 was passed to the effect that no clarification was required from the department concerned. Ultimately, a final order was passed by the authority on 1.8.2006 regarding approval of the draft scheme which was published in the gazette dated 4.8.2006 under section 50(7) of the Act. After the said scheme was published, the State Government, on the basis of the request made by the authority, issued a notification dated 8.8.2006 which was published in the Gazette dated 18.8.2006 under section 4 of the Land Acquisition Act for acquisition of land.

(3.) THE learned Single Judge also opined that no opportunity of hearing was afforded to the writ petitioner before passing of the impugned order contained in Annexure P -11, P -11A and P -11B despite the proviso to section 32 which clearly stipulates that the State Government is required to pass an order after giving a reasonable opportunity of hearing to the persons affected. The learned Single Judge, analyzing the material brought on record, came to hold that the writ petitioner was not extended the opportunity of hearing in total disregard of the proviso to section 32 of the Act and, therefore, the same is vulnerable in law. Be it noted, the learned Single Judge scanned the order passed by the State Government which had pointed out certain irregularities committed by the Joint Director, the fourth respondent herein, and enumerated the irregularities and expressed the opinion that the application for approval of the development plan of the writ petitioner was placed before the competent authority in June, 2006 and notices were issued to the authority which, in its reply, stated that since the lands had already been included in the scheme No.132, no permission could be granted. The said objection was rejected on 22.6.2006 by the fourth respondent holding that the said scheme had already lapsed on 29.12.2005 in view of the proviso to sub -section (4) of section 50 of the Act. The learned Single Judge opined that the approval of the -development plan was done in utter haste and without examining the matter. As is demonstrable from the order of the learned Single Judge, he has adverted to the facts in detail which also related to the authority and jurisdiction of the respondent No.3 (the fourth respondent herein) and concluded that he had not committed any illegality. Being of this view, he allowed the writ petition and quashed the orders passed by the State Government and as a sequitur, he also quashed the Gazette Notification dated 18.8.2006 contained in Annexure P -21 issued by the State Government.