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Supreme Court of India
Madhya Pradesh Housing And … vs Vijay Bodana on 4 March, 2020Author: Sanjiv Khanna
Bench: N.V. Ramana, Sanjiv Khanna, Krishna Murari
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1998 OF 2020
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 26834 OF 2017)
MADHYA PRADESH HOUSING
AND INFRASTRUCTURE DEVELOPMENT
BOARD AND ANOTHER ….. APPELLANT(S)
VERSUS
VIJAY BODANA AND OTHERS ….. RESPONDENT(S)
JUDGMENT
SANJIV KHANNA, J.
Leave granted.
2. First appellant, Madhya Pradesh Housing and Infrastructure
Development Board, is a statutory board established under the
Madhya Pradesh Housing and Infrastructure Development Board
Act, 1972 for the purpose of taking measures to deal with and for
satisfying the need of housing accommodation in the State of
Madhya Pradesh and matters connected therewith.
Signature Not Verified
Digitally signed by
GEETA AHUJA
3. Impugned judgment dated 26th July 2017 by the Indore Bench of
Date: 2020.03.04
17:04:19 IST
Reason:
the High Court of Madhya Pradesh allows Writ Petition No. 7666
of 2015 preferred by the first and second respondents before us,
Civil Appeal arising out of S.L.P.(C) No.26834 of 2017 Page 1 of 13
Vijay Bodana and Ravindra Bhati, by quashing and setting aside
the order dated 12th May 2008 of the Commissioner, Ujjain and the
order dated 24th September 2008 of the Deputy Director, Town
and Country Planning, Ujjain (for short “T&CP”) approving the
change in the layout plan of Indira Nagar, Ujjain. The lease deeds
executed by the appellant-board in favour of third-party
purchasers were declared null and void and not to be acted upon.
The land in question, it was directed, would be used as per 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 sanctioned
by the T&CP on 11th September 1981. After the colony had been
in existence for about 23 years, in 2004 the appellant-board had
made an application for changing the land use of 1.52 hectares
earmarked for commercial shopping complex in the original layout
plan to residential accommodation. However, the request for
amendment was rejected by the Deputy Director, T&CP vide order
dated 27.12.2004 and the appeal under Section 31 of the Madhya
Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short,
“the Adhiniyam”) before the Commissioner, Ujjain was also
dismissed vide order dated 25th July 2005. On the revision petition
under Section 32 of the Adhiniyam, the State Government vide
Civil Appeal arising out of S.L.P.(C) No.26834 of 2017 Page 2 of 13
order dated 28th September 2006 clarified the legal position that
the appellant-board had not asked for a change in land use and
had asked for a modification of the layout plan approved by the
T&CP which was permissible under the provisions of the
Adhiniyam. The appellant-board, it was directed, could submit the
proposal for modification before the Commissioner, Ujjain for
reconsideration. Thereupon, the Commissioner, Ujjain vide order
12th May 2008 had directed the Deputy Director, T&CP to re-
examine the request for modification and pass appropriate orders.
Pursuant to this order, the Deputy Director, T&CP approved the
modified layout plan vide order dated 24th September 2008.
5. The impugned judgment allows the writ petition, which was
preferred by the first and second respondents after nearly seven
years in 2015, inter alia holding that the Adhiniyam stands enacted
with the object to prevent unplanned and haphazard development
and that layout plans for residential schemes are prepared to
provide for open spaces for various purposes like roads, gardens,
playgrounds and facilities like schools, hospitals, community
centres, shopping complex etc. Developers like the appellant-
board charge extra money for plots at preferential locations
adjacent to or facing public amenities such as parks, roads, water
body, shopping complex, etc. The allottees accordingly pay
Civil Appeal arising out of S.L.P.(C) No.26834 of 2017 Page 3 of 13
extra/higher charges at the time of purchase with an expectation
to avail and enjoy the advantages of such amenities. Therefore,
the developer cannot be permitted to change the status of land to
‘deceive’ the allottees. Applying the principle of promissory
estoppel, it has been held that the appellant-board must develop
the land according to the original plan shown to the allottees at the
time of purchase. Further, Ujjain Municipal Corporation was not
heard and had no opportunity to represent the case as to the
change in the layout plan.
6. It is an undisputed position that the State Government vide order
dated 28th September 2006, while partly allowing the revision
petition, had directed the appellant-board to file a revision
application before the Commissioner, Ujjain observing that the
application moved by the appellant-board was not for a change in
land use but for a change in the ‘approved’ plan. The appellant-
board as permitted had filed the revision application on which the
Commissioner, Ujjain vide order dated 12th May 2008 had asked
the Deputy Director, T&CP to consider the request for modification
of the layout plan. The Deputy Director, T&CP after examination
vide order dated 24th September 2008 had allowed the application
approving the modified layout plan. Modifications, as noticed
below, are in conformity and in accord with the parameters of the
Civil Appeal arising out of S.L.P.(C) No.26834 of 2017 Page 4 of 13
development control norms. The impugned judgment does not
hold that the procedure prescribed by and under the Adhiniyam
was violated. It has not been held, or even contended before us,
that the modification of the layout plan as approved by the Deputy
Director, T&CP pursuant to the order of the Commissioner, Ujjain,
is contrary to the Adhiniyam. This Court in Chairman, Indore
Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd
and Others1 delineating the legislative scheme of the Adhiniyam
had observed that town and country planning involving
development of land in towns and cities is achieved through the
process of land use, zoning plan and regulating building activities.
This is a highly complex exercise undertaken by experts on the
basis of study, experience and scientific research, which has to be
given due reverence. Urban planning often reconciles varied
concerns and interests, both public and private, and thus ensures
better living conditions. A clear distinction was drawn amongst the
regional development plans, town development or zonal plans and
layout plans of a colony. Elucidating the manner in which each
plan guides the development and use of land, it was held:
“37. When a planning area is defined, the same
envisages preparation of development plan and the
manner in which the existing land use is to be
implemented. A development plan in some statutes is
also known as a master plan. It lays down the broad
objectives and parameters wherewith the development
1
(2007) 8 SCC 705
Civil Appeal arising out of S.L.P.(C) No.26834 of 2017 Page 5 of 13
plan is to deal with. It also lays down the geographical
splitting giving rise to preparation and finalisation of
zonal plans. The zonal plans contain more detailed and
specific matters than the master plan or the
development plan. Town planning scheme or layout
plan contains further details on plotwise basis. It may
provide for the manner in which each plot shall be dealt
with as also the matter relating to regulations of
development.
xxx xxx Xxx
72. Land use, development plan and zonal plan
provided for the plan at macro-level whereas the town
planning scheme is at a micro-level and, thus, would
be subject to development plan. It is, therefore, difficult
to comprehend that broad based macro-level planning
may not at all be in place when a town planning
scheme is prepared.”
Therefore, the development plan, zonal plan and town
planning schemes of the land are distinct and each have a
different objective and purpose. The difference between the three
in terms of the Adhiniyam was highlighted by this Court in
Rajendra Shankar Shukla and Others v. State of Chhattisgarh
and Others2 in the following words:
“67. The town development scheme is always
subservient to the master plan as well as the zonal
plan, as provided under Section 17 of the 1973 Act,
which reads as under:
“17.Contents of development plan. — A
development plan shall take into account any
draft five year and annual development plan of
the district prepared under the Madhya Pradesh
Zila Yojana Samiti Adhiniyam, 1995 (19 of 1995)
in which the planning area is situated….”
2
(2015) 10 SCC 400
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68. Master plan falls within the category of broad
development plans and is prepared only after taking
into account the Annual Development Reports
prepared by constitutionally elected bodies of local
panchayats and municipalities, etc. A zonal plan is
mandated to be prepared only after the publication of
the development plan. Section 20 of the Act reads thus:
“20. Preparation of zonal plans.—The local
authority may on its own motion at any time
after the publication of the development plan,
or thereafter if so required by the State
Government shall, within the next six months
of such requisition, prepare a zoning plan.”
Further, Section 21 of the Act reads thus:
“21. Contents of zoning plan.—The zoning
plan shall enlarge the details of the land use
as indicated in the development plan….”
(emphasis supplied)
Thus, it is evident from the language of Sections 20
and 21 of the Act, that a zonal plan can be prepared
only in adherence to the development plan which in the
present case is the Raipur Master Plan of 2021.
69. Next, Section 49 of the Act which provides for the
provisions for which a town development scheme can
be prepared, has to be read along with Section 21 of
the Act, which clearly mentions that the land required
for acquisition by the Town and Country Development
Authority for the purpose of any development scheme
has to be laid down in the zonal plan.
70. Therefore, a combined reading of Sections 17, 21
and 49 lays down that the development plan is the
umbrella under which a zonal plan is made for the city.
The zonal plan in turn allocates the land which could
be acquired for town development schemes.
xxx xxx xxx
72. The importance of zonal planning lies in its
distinguished characteristic which lays down with
sufficient particularity the use to which a particular
Civil Appeal arising out of S.L.P.(C) No.26834 of 2017 Page 7 of 13
piece of land could be put. The object and purpose of
the 1973 Act itself foresees that zonal plan is
necessary for implementation of a town development
scheme. The preamble of the Act clearly discloses that
a town development scheme is at best a vehicle to
implement the development plan and zonal plan. The
object and purpose of the Act reads thus:
“An Act to make provision for planning and
development and use of land; to make better
provision for the preparation of development
plans and zoning plans with a view to
ensuring town planning schemes are made
in a proper manner and their execution is
made effective, to….”
(emphasis supplied)
Therefore, the object and purpose of the Act also
provides that a town development scheme can be
prepared in the presence of a zonal plan which in turn
has to be prepared for the implementation of the
development plan.”
If the aforesaid aspects and the difference amongst the
plans are kept in mind, it is lucid that the High Court has
misconstrued and misdirected itself by relying upon the principle
of promissory estoppel to hold that once the layout plan is
prepared the same cannot be modified or changed. Change or
modification is permitted under the Adhiniyam, provided the
modification/change is in accordance with law i.e., as per the
procedure, and satisfies the development norms and conditions of
the development plans, zonal plans and town planning schemes.
The modification cannot be struck down when the law permits
such change which is in terms of the statute and the plans that
Civil Appeal arising out of S.L.P.(C) No.26834 of 2017 Page 8 of 13
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 or policy would best serve greater
public or private interest. It is not the case of the first and second
respondents that the procedure prescribed by the Adhiniyam was
not followed or the parameters and norms prescribed by the
Adhiniyam, the development plan or the zonal plan have been
violated. In this background, we fail to understand how the
modification in the layout plan which is in accordance with the
Adhiniyam could have been struck down.
7. On facts and justification for change of land use from commercial
to residential, the impugned judgment ignores and glances over
the earlier position that the area was earmarked for development
and for construction of a shopping complex with 131 shops and
not earmarked as an open area, park or playground. It notices the
contention of the appellant-board that as per Rule 49 of the
Madhya Pradesh Bhumi Vikas Rules, 1984, the area required to
be earmarked for commercial purposes is 0.4 hectares whereas
the area reserved in the original layout plan was 1.52 hectares. It
is an undisputed position the land earmarked for the shopping
complex had not found demand and takers despite efforts. The
area was lying idle for more than 20 years, albeit more than 150
Civil Appeal arising out of S.L.P.(C) No.26834 of 2017 Page 9 of 13
shops had already come up in the residential area. As per the
appellant-board, construction of 131 shops would have caused
congestion and would have adversely impacted the density of
people living and using the area. We have highlighted these
aspects and facts which are vastly distinct, for the courts normally
frown upon, adversely comment and do strike down changes in
the land use from residential to commercial or industrial use for
obvious reasons.
8. The writ petition challenging the orders dated 12 th May 2008 and
24th September 2008 was filed in 2015, nearly seven years after
the approval for modification was granted. In the meanwhile, 42
out of 52 plots had been sold to third parties for consideration. The
impugned judgment notices that many of these bonafide owner-
purchasers had completed the construction and some houses
were in advanced stages of construction. While the High Court
has noticed and recorded these facts, it has failed to give due
credence to the delay, the change in position and creation of third-
party rights by wrongly applying the principle of promissory
estoppel and lis pendens. Innocent plot owners on whom the brunt
had fallen were not even heard before they were deprived and
denied their rights by the adverse order. Considerable delay and
laches of nearly seven years in approaching the court had
Civil Appeal arising out of S.L.P.(C) No.26834 of 2017 Page 10 of 13
resulted in change in position as third-party rights had been
created. In view of delay and laches, the High Court should not
have entertained the writ petition as 42 plot owners who had paid
money would suffer adverse consequences for no fault of theirs.
In Karnataka Power Corporation Ltd. and Another v. K.
Thangappan and Another,3 this Court, after citing State of
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 the
High Court in exercise of its discretion does not ordinarily
assist the tardy and the indolent or the acquiescent and
the lethargic. If there is inordinate delay on the part of the
petitioner and such delay is not satisfactorily explained,
the High Court may decline to intervene and grant relief in
exercise of its writ jurisdiction. It was stated that this rule is
premised on a number of factors. The High Court does not
ordinarily permit a belated resort to the extraordinary
remedy because it is likely to cause confusion and public
inconvenience and bring, in its train new injustices, and if
writ jurisdiction is exercised after unreasonable delay, it
may have the effect of inflicting not only hardship and
inconvenience but also injustice on third parties. It was
pointed out that when writ jurisdiction is invoked,
unexplained delay coupled with the creation of third-party
rights in the meantime is an important factor which also
weighs with the High Court in deciding whether or not to
exercise such jurisdiction.”
9. The Ujjain Municipal Corporation was not made a party and had
no opportunity to represent their stand on the change in the layout
plan. If required and felt necessary, the High Court could have
issued notice to the Ujjain Municipal Corporation and obtained
their opinion. Stand of the State Government of Madhya Pradesh
3
(2006) 4 SCC 322. This judgment was later cited in Yunus (Baboobhai) A. Hamid Padvekar v.
State of Maharashtra and Others, (2009) 3 SCC 281.
4
(1986) 4 SCC 566
Civil Appeal arising out of S.L.P.(C) No.26834 of 2017 Page 11 of 13
and the authorities under the Adhiniyam, supporting the
modification, was on record. Normally opposition and prejudice
should not be presumed, unless there are grounds and reasons.
Given the fact that the change in the present case was from
commercial to residential, there was no ground and reason that
would suggest objection or opposition from the Ujjain Municipal
Corporation.
10. During the course of hearing before us, the appellant-board had
produced the original layout plan of Indira Nagar in which the land
in question was shown as reserved for a major shopping complex.
Adjacent to this land is the land earmarked for a primary school.
There are areas earmarked for a park/garden. Therefore, while we
allow the present appeal and uphold the modification of the layout
plan, we deem it proper to direct the appellant-board and the
authorities to ensure that the areas/land earmarked for the primary
school and park/garden are not converted into residential plots.
We also direct the appellant-board and respondent authorities not
to allot and sell any unsold residential plots. These plots which are
yet to be sold would be utilised for general public amenities like
park, garden, playground etc. The appellant-board and the
authorities would act accordingly.
Civil Appeal arising out of S.L.P.(C) No.26834 of 2017 Page 12 of 13
11. The appeal is accordingly allowed in the above terms without any
order as to costs.
………………………………..CJI.
(SHARAD A. BOBDE)
………………………………..J.
(S. ABDUL NAZEER)
………………………………..J.
(SANJIV KHANNA)
NEW DELHI;
MARCH 04, 2020.
Civil Appeal arising out of S.L.P.(C) No.26834 of 2017 Page 13 of 13
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