MADHYA PRADESH HOUSING AND INFRASTRUCTURE DEVELOPMENT BOARD AND ANOTHER versus VIJAY BODANA AND OTHERS on 4 March 2020

MADHYA PRADESH HOUSING AND INFRASTRUCTUREDEVELOPMENT BOARD AND ANOTHER

v.

VIJAY BODANA AND OTHERS

(Civil Appeal No. 1998 of 2020)

MARCH 04, 2020

[SHARAD A. BOBDE, CJI, S. ABDUL NAZEER ANDSANJIV KHANNA, JJ.]

Madhya Pradesh Housing and Infrastructure DevelopmentBoard Act 1972 – Madhya Pradesh Nagar Tatha Gram NiveshAdhiniyam, 1973 – Modification of the layout plan – The appellant-board had developed a colony as per the layout plan sactioned bythe T&CP in 1981 – Thereafter, the appellant sought for amodification of the layout plan approved by the Town and CountryPlanning (T&CP) and which was permissible under the provisionsof the Adhiniyam – The Deputy Director, T&CP approved themodified layout plan vide order dated 24.09.2008 – The first andsecond respondents filed writ petition to quash and set aside theorder approving the change in the layout plan – The High Courtallowed the writ petition and applying the principle of promissoryestoppel held that the appellant-board must develop the landaccording to the original plan shown to the allottees at the time ofpurchase – On appeal, held: The High Court misconstrued andmisdirected itself by relying upon the principle of promissory estoppelto hold that once the layout plan is prepared the same cannot bemodified or changed – The change or modification is permittedunder the Adhiniyam, provided the modification/ change is inaccordance with law i.e. as per the procedure, and satisfies thedevelopment norms and conditions of the development plans, zonalplans and town planning schemes – The modification cannot bestruck down when the law permits such change which is in terms ofthe statute and the plans that have the force of law – As long as thelayout plans conform to the development control norms, the Courtwould not substitute its own opinion as to what principle or policywould best serve greater Public or private interest – Further, it is

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Anot the case of the first and second respondents that the procedure,parameters and norms prescribed by the Adhiniyam was not followedor the development plan and zonal plan were violated – Therefore,the modification of the layout plan upheld.

Delay/ Laches – The writ petition challenging the ordersBapproving the modification of layout plan was filed nearly sevenyears after the approval for modification was granted– Meanwhile,42 out of 52 plots were sold to third parties for consideration –Held: In the instant case, many of bonafide owner-purchasers hadcompleted construction and some houses were in advanced stagesCof construction – Considerable delay and laches of nearly sevenyears in approaching the Court had resulted in a change in positionas third-party rights were created – In view of delay and laches, theHigh Court should not have entertained the writ petition as 42 plotowners who had paid money would suffer adverse consequencesfor no fault of theirs – Madhya Pradesh Housing and InfrastructureDDevelopment Board Act, 1972 – Madhya Pradesh Nagar TathaGram Nivesh Adhiniyam, 1973.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD:1. It is lucid that the High Court has misconstruedEand misdirected itself by relying upon the principle of promissoryestoppel to hold that once the layout plan is prepared the samecannot be modified or changed. Change or modification ispermitted under the Madhya Pradesh Nagar Tatha Gram NiveshAdhiniyam, 1973, provided the modification/change is inaccordance with law i.e., as per the procedure, and satisfies theFdevelopment norms and conditions of the development plans,zonal plans and town planning schemes. The modification cannotbe struck down when the law permits such change which is interms of the statute and the plans that have the force of law. Aslong as the layout plans conform to the development controlGnorms, the court would not substitute its own opinion as to whatprinciple or policy would best serve greater public or privateinterest. It is not the case of the first and second respondentsthat the procedure prescribed by the Adhiniyam was not followedor the parameters and norms prescribed by the Adhiniyam, thedevelopment plan or the zonal plan have been violated. In thisH

background, this Court fails to understand how the modificationin the layout plan which is in accordance with the Adhiniyam couldhave been struck down. [Para 6][1215-E-H; 1216-A]

2. The writ petition challenging the orders dated 12th May2008 (direction of the Commissioner to re-examine the requestfor modification) and 24th September 2008 (order of the DeputyDirector, T&CP approving the modified layout plan) was filed in2015, nearly seven years after the approval for modification wasgranted. In the meanwhile, 42 out of 52 plots had been sold tothird parties for consideration. The impugned judgment noticesthat many of these bonafide owner-purchasers had completed theconstruction and some houses were in advanced stages ofconstruction. While the High Court has noticed and recordedthese facts, it has failed to give due credence to the delay, thechange in position and creation of third-party rights by wronglyapplying the principle of promissory estoppel and lis pendens.Innocent plot owners on whom the brunt had fallen were not evenheard before they were deprived and denied their rights by theadverse order. Considerable delay and laches of nearly sevenyears in approaching the court had resulted in change in positionas third-party rights had been created. In view of delay and laches,the High Court should not have entertained the writ petition as42 plot owners who had paid money would suffer adverseconsequences for no fault of theirs. [Para 8][1217-E-H]

3. The Ujjain Municipal Corporation was not made a partyand had no opportunity to represent their stand on the change inthe layout plan. If required and felt necessary, the High Courtcould have issued notice to the Ujjain Municipal Corporation andobtained their opinion. Stand of the State Government of MadhyaPradesh and the authorities under the Adhiniyam, supporting themodification, was on record. Normally opposition and prejudiceshould not be presumed, unless there are grounds and reasons.Given the fact that the change in the present case was fromcommercial to residential, there was no ground and reason thatwould suggest objection or opposition from the Ujjain MunicipalCorporation. [Para 9][1217-E-F]

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AChairman, Indore Vikas Pradhikaran v. Pure IndustrialCoke & Chemicals Ltd. and Others. (2007) 8 SCC 705: [2007] 6 SCR 799; Rajendra Shankar Shukla andOthers v. State of Chhattisgarh and Others (2015) 10SCC 400 : [2015] 11 SCR 723 ; Karnataka PowerBCorporation Ltd. and Another v. K. Thangappan andAnother (2006) 4 SCC 322 : [2006] 3 SCR 783– relied on.

State of M.P. and Others v. Nandlal Jaiswal and Others(1986) 4 SCC 566 : [1987] 1 SCR 1 – referred to.

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1998of 2020.

From the Judgment and Order dated 26.07.2017 of the High CourtEof Madhya Pradesh, Bench at Indore in W.P. No. 7666 of 2015.

R.C. Mishra, Sr. Adv., Mahendra Kumar, Ilin Saraswat, Ms. NehaJain, Ms. Swati Jain, Rajnish Kumar Jha, Advs. for the Appellants.

Ms. Pragati Neekhra, AAG, Ms. Amrita Grover, Divyakant Lahoti,Ms. Praveena Bisht, Rahul Kaushik, Advs. for the Respondents.F

The Judgment of the Court was delivered by SANJIV KHANNA, J.

1. Leave granted.2. First appellant, Madhya Pradesh Housing and InfrastructureGDevelopment Board, is a statutory board established under the MadhyaPradesh Housing and Infrastructure Development Board Act, 1972 forthe purpose of taking measures to deal with and for satisfying the needof housing accommodation in the State of Madhya Pradesh and mattersconnected therewith.H

3. Impugned judgment dated 26[th] July 2017 by the Indore Benchof the High Court of Madhya Pradesh allows Writ Petition No. 7666 of2015 preferred by the first and second respondents before us, VijayBodana and Ravindra Bhati, by quashing and setting aside the orderdated 12[th] May 2008 of the Commissioner, Ujjain and the order dated24[th] September 2008 of the Deputy Director, Town and Country Planning,Ujjain (for short “T&CP”) approving the change in the layout plan ofIndira Nagar, Ujjain. The lease deeds executed by the appellant-boardin favour of third-party purchasers were declared null and void and notto be acted upon. The land in question, it was directed, would be used asper the original layout plan.

4. The appellant-board had developed the colony ‘Indira Nagar’over an area of 32 hectares in Ujjain, as per the layout plan sanctionedby the T&CP on 11[th] September 1981. After the colony had been inexistence for about 23 years, in 2004 the appellant-board had made anapplication for changing the land use of 1.52 hectares earmarked forcommercial shopping complex in the original layout plan to residentialaccommodation. However, the request for amendment was rejected bythe Deputy Director, T&CP vide order dated 27.12.2004 and the appealunder Section 31 of the Madhya Pradesh Nagar Tatha Gram NiveshAdhiniyam, 1973 (for short, “the Adhiniyam”) before the Commissioner,Ujjain was also dismissed vide order dated 25[th] July 2005. On the revisionpetition under Section 32 of the Adhiniyam, the State Government videorder dated 28[th] September 2006 clarified the legal position that theappellant-board had not asked for a change in land use and had askedfor a modification of the layout plan approved by the T&CP which waspermissible under the provisions of the Adhiniyam. The appellant-board,it was directed, could submit the proposal for modification before theCommissioner, Ujjain for reconsideration. Thereupon, the Commissioner,Ujjain vide order 12[th] May 2008 had directed the Deputy Director, T&CPto re-examine the request for modification and pass appropriate orders.Pursuant to this order, the Deputy Director, T&CP approved the modifiedlayout plan vide order dated 24[th] September 2008.

5. The impugned judgment allows the writ petition, which waspreferred by the first and second respondents after nearly seven yearsin 2015, inter alia holding that the Adhiniyam stands enacted with theobject to prevent unplanned and haphazard development and that layout AB

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Aplans for residential schemes are prepared to provide for open spacesfor various purposes like roads, gardens, playgrounds and facilities likeschools, hospitals, community centres, shopping complex etc. Developerslike the appellant-board charge extra money for plots at preferentiallocations adjacent to or facing public amenities such as parks, roads,Bwater body, shopping complex, etc. The allottees accordingly pay extra/higher charges at the time of purchase with an expectation to avail andenjoy the advantages of such amenities. Therefore, the developer cannotbe permitted to change the status of land to ‘deceive’ the allottees.Applying the principle of promissory estoppel, it has been held that theappellant-board must develop the land according to the original plan shownCto the allottees at the time of purchase. Further, Ujjain MunicipalCorporation was not heard and had no opportunity to represent the caseas to the change in the layout plan.

6. It is an undisputed position that the State Government videorder dated 28[th ]September 2006, while partly allowing the revisionDpetition, had directed the appellant-board to file a revision applicationbefore the Commissioner, Ujjain observing that the application movedby the appellant-board was not for a change in land use but for a changein the ‘approved’ plan. The appellant-board as permitted had filed therevision application on which the Commissioner, Ujjain vide order datedE12[th] May 2008 had asked the Deputy Director, T&CP to consider therequest for modification of the layout plan. The Deputy Director, T&CPafter examination vide order dated 24[th] September 2008 had allowed theapplication approving the modified layout plan. Modifications, as noticedbelow, are in conformity and in accord with the parameters of thedevelopment control norms. The impugned judgment does not hold thatFthe procedure prescribed by and under the Adhiniyam was violated. Ithas not been held, or even contended before us, that the modification ofthe layout plan as approved by the Deputy Director, T&CP pursuant tothe order of the Commissioner, Ujjain, is contrary to the Adhiniyam. ThisCourt in Chairman, Indore Vikas Pradhikaran v. Pure IndustrialGCoke & Chemicals Ltd and Others[1] delineating the legislative schemeof the Adhiniyam had observed that town and country planning involvingdevelopment of land in towns and cities is achieved through the processof land use, zoning plan and regulating building activities. This is a highlycomplex exercise undertaken by experts on the basis of study, experience H1 (2007) 8 SCC 705

and scientific research, which has to be given due reverence. Urbanplanning often reconciles varied concerns and interests, both public andprivate, and thus ensures better living conditions. A clear distinction wasdrawn amongst the regional development plans, town development orzonal plans and layout plans of a colony. Elucidating the manner in whicheach plan guides the development and use of land, it was held:

“37. When a planning area is defined, the same envisagespreparation of development plan and the manner in which theexisting land use is to be implemented. A development plan insome statutes is also known as a master plan. It lays down thebroad objectives and parameters wherewith the development planis to deal with. It also lays down the geographical splitting givingrise to preparation and finalisation of zonal plans. The zonal planscontain more detailed and specific matters than the master planor the development plan. Town planning scheme or layout plancontains further details on plotwise basis. It may provide for themanner in which each plot shall be dealt with as also the matterrelating to regulations of development.

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72. Land use, development plan and zonal plan provided for theplan at macro-level whereas the town planning scheme is at amicro-level and, thus, would be subject to development plan. It is,therefore, difficult to comprehend that broad based macro-levelplanning may not at all be in place when a town planning schemeis prepared.”

Therefore, the development plan, zonal plan and town planningschemes of the land are distinct and each have a different objective andpurpose. The difference between the three in terms of the Adhiniyamwas highlighted by this Court in Rajendra Shankar Shukla and Othersv. State of Chhattisgarh and Others[2] in the following words:

“67. The town development scheme is always subservient to themaster plan as well as the zonal plan, as provided under Section17 of the 1973 Act, which reads as under:

“17.Contents of development plan. — A development plan shalltake into account any draft five year and annual development 2 (2015) 10 SCC 400

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1214SUPREME COURT REPORTS

Aplan of the district prepared under the Madhya Pradesh ZilaYojana Samiti Adhiniyam, 1995 (19 of 1995) in which theplanning area is situated….”

68. Master plan falls within the category of broad developmentplans and is prepared only after taking into account the AnnualBDevelopment Reports prepared by constitutionally elected bodiesof local panchayats and municipalities, etc. A zonal plan ismandated to be prepared only after the publication of thedevelopment plan. Section 20 of the Act reads thus:

“20. Preparation of zonal plans.—The local authority may onCits own motion at any time after the publication of thedevelopment plan, or thereafter if so required by the StateGovernment shall, within the next six months of such requisition,prepare a zoning plan.”

Further, Section 21 of the Act reads thus:D

“21. Contents of zoning plan.—The zoning plan shall enlargethe details of the land use as indicated in the developmentplan….”

(emphasis supplied)

EThus, it is evident from the language of Sections 20 and 21 of theAct, that a zonal plan can be prepared only in adherence to thedevelopment plan which in the present case is the Raipur MasterPlan of 2021.

69. Next, Section 49 of the Act which provides for the provisionsFfor which a town development scheme can be prepared, has tobe read along with Section 21 of the Act, which clearly mentionsthat the land required for acquisition by the Town and CountryDevelopment Authority for the purpose of any developmentscheme has to be laid down in the zonal plan.

G70. Therefore, a combined reading of Sections 17, 21 and 49 laysdown that the development plan is the umbrella under which azonal plan is made for the city. The zonal plan in turn allocates theland which could be acquired for town development schemes.

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72. The importance of zonal planning lies in its distinguishedcharacteristic which lays down with sufficient particularity theuse to which a particular piece of land could be put. The objectand purpose of the 1973 Act itself foresees that zonal plan isnecessary for implementation of a town development scheme.The preamble of the Act clearly discloses that a town developmentscheme is at best a vehicle to implement the development planand zonal plan. The object and purpose of the Act reads thus:

“An Act to make provision for planning and development anduse of land; to make better provision for the preparation ofdevelopment plans and zoning plans with a view to ensuringtown planning schemes are made in a proper manner andtheir execution is made effective, to….”

(emphasis supplied)

Therefore, the object and purpose of the Act also provides that atown development scheme can be prepared in the presence of azonal plan which in turn has to be prepared for the implementationof the development plan.”

If the aforesaid aspects and the difference amongst the plans arekept in mind, it is lucid that the High Court has misconstrued andmisdirected itself by relying upon the principle of promissory estoppel tohold that once the layout plan is prepared the same cannot be modifiedor changed. Change or modification is permitted under the Adhiniyam,provided the modification/change is in accordance with law i.e., as perthe procedure, and satisfies the development norms and conditions ofthe development plans, zonal plans and town planning schemes. Themodification cannot be struck down when the law permits such changewhich is in terms of the statute and the plans that have the force of law.As long as the layout plans conform to the development control norms,the court would not substitute its own opinion as to what principle orpolicy would best serve greater public or private interest. It is not thecase of the first and second respondents that the procedure prescribedby the Adhiniyam was not followed or the parameters and normsprescribed by the Adhiniyam, the development plan or the zonal planhave been violated. In this background, we fail to understand how the AB

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[2020] 3 S.C.R.

Amodification in the layout plan which is in accordance with the Adhiniyamcould have been struck down.

7. On facts and justification for change of land use fromcommercial to residential, the impugned judgment ignores and glancesover the earlier position that the area was earmarked for developmentBand for construction of a shopping complex with 131 shops and notearmarked as an open area, park or playground. It notices the contentionof the appellant-board that as per Rule 49 of the Madhya Pradesh BhumiVikas Rules, 1984, the area required to be earmarked for commercialpurposes is 0.4 hectares whereas the area reserved in the original layoutCplan was 1.52 hectares. It is an undisputed position the land earmarkedfor the shopping complex had not found demand and takers despite efforts.The area was lying idle for more than 20 years, albeit more than 150shops had already come up in the residential area. As per the appellant-board, construction of 131 shops would have caused congestion andwould have adversely impacted the density of people living and usingDthe area. We have highlighted these aspects and facts which are vastlydistinct, for the courts normally frown upon, adversely comment and dostrike down changes in the land use from residential to commercial orindustrial use for obvious reasons.

8. The writ petition challenging the orders dated 12[th] May 2008Eand 24[th] September 2008 was filed in 2015, nearly seven years after theapproval for modification was granted. In the meanwhile, 42 out of 52plots had been sold to third parties for consideration. The impugnedjudgment notices that many of these bonafide owner-purchasers hadcompleted the construction and some houses were in advanced stagesFof construction. While the High Court has noticed and recorded thesefacts, it has failed to give due credence to the delay, the change in positionand creation of third-party rights by wrongly applying the principle ofpromissory estoppel and lis pendens. Innocent plot owners on whom thebrunt had fallen were not even heard before they were deprived anddenied their rights by the adverse order. Considerable delay and lachesGof nearly seven years in approaching the court had resulted in change inposition as third-party rights had been created. In view of delay andlaches, the High Court should not have entertained the writ petition as42 plot owners who had paid money would suffer adverse consequencesfor no fault of theirs. In Karnataka Power Corporation Ltd. andH

Another v. K. Thangappan and Another,[3]this Court, after citing Stateof M.P. and Others v. Nandlal Jaiswal and Others,[4]had observed:

“9. It was stated in State of M.P. v. Nandlal Jaiswal that theHigh Court in exercise of its discretion does not ordinarily assistthe tardy and the indolent or the acquiescent and the lethargic. Ifthere is inordinate delay on the part of the petitioner and suchdelay is not satisfactorily explained, the High Court may declineto intervene and grant relief in exercise of its writ jurisdiction. Itwas stated that this rule is premised on a number of factors. TheHigh Court does not ordinarily permit a belated resort to theextraordinary remedy because it is likely to cause confusion andpublic inconvenience and bring, in its train new injustices, and ifwrit jurisdiction is exercised after unreasonable delay, it may havethe effect of inflicting not only hardship and inconvenience butalso injustice on third parties. It was pointed out that when writjurisdiction is invoked, unexplained delay coupled with thecreation of third-party rights in the meantime is an important factorwhich also weighs with the High Court in deciding whether or notto exercise such jurisdiction.”

9. The Ujjain Municipal Corporation was not made a party andhad no opportunity to represent their stand on the change in the layoutplan. If required and felt necessary, the High Court could have issuednotice to the Ujjain Municipal Corporation and obtained their opinion.Stand of the State Government of Madhya Pradesh and the authoritiesunder the Adhiniyam, supporting the modification, was on record.Normally opposition and prejudice should not be presumed, unless thereare grounds and reasons. Given the fact that the change in the presentcase was from commercial to residential, there was no ground and reasonthat would suggest objection or opposition from the Ujjain MunicipalCorporation.

10. During the course of hearing before us, the appellant-boardhad produced the original layout plan of Indira Nagar in which the landin question was shown as reserved for a major shopping complex.Adjacent to this land is the land earmarked for a primary school. There 3 (2006) 4 SCC 322. This judgment was later cited in Yunus (Baboobhai) A. HamidPadvekar v. State of Maharashtra and Others, (2009) 3 SCC 281.4 (1986) 4 SCC 566

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Aare areas earmarked for a park/garden. Therefore, while we allow thepresent appeal and uphold the modification of the layout plan, we deemit proper to direct the appellant-board and the authorities to ensure thatthe areas/land earmarked for the primary school and park/garden arenot converted into residential plots. We also direct the appellant-boardBand respondent authorities not to allot and sell any unsold residentialplots. These plots which are yet to be sold would be utilised for generalpublic amenities like park, garden, playground etc. The appellant-boardand the authorities would act accordingly.

11. The appeal is accordingly allowed in the above terms withoutCany order as to costs.

Ankit Gyan

Appeal allowed.

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