Madhya Pradesh High Court
Chief Executive Officer Indore Vikas … vs Director State Of M.P. And Anr. on 3 August, 2026
NEUTRAL CITATION NO. 2026:MPHC-IND:21186
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SANDEEP N. BHATT
WRIT PETITOIN NO. 7871 OF 2013
(CHIEF EXECUTIVE OFFICER
INDORE VIKAS PRADHIKARAN
Vs
DIRECTOR STATE OF M.P. AND OTHERS
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Appearance:
Ms. Mini Ravindra Advocate for the petitioner
Shri Amit Agrawal, Sr. Advocate along with Shri Arjun Agrawal
and Shri Abhimanyu Sanap Advocate for respondent No.2.
Shri Sudeep Bhargava Dy.A.G. for State.
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Reserved on : 29/07/2026.
Delivered on : 03/08/2026.
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ORDER
1. Present petition has been filed under Article 226 of the
Constitution of India seeking following reliefs :
a) A writ direction order in the nature of mandamus or certiorari
as deem fit be issued quashing the order Annexure Pl3
b) This petition be allowed with costs
c) Any other relief which this Honble Court deems fit be also
granted
2. Pursuant to the earlier order dated 19/12/2023 passed by
co=ordinate Bench of this High Court in W.P. no. 7871/2013, para
nos. 4 to 7 are reproduced as under :
4. In view of the said order, the Principal Secretary of the State
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Government passed the order dated 01.09.2023 and clarified the position
and stated that the land should be released from the concerned scheme.
It was further direted to the petitioner IDA that the concerned petition be
reconsidered and appropriate action should be taken in the pending writ
petition. The petitioner has also filed IA No.7329/2023 for early hearing
of the petition alongwith the said application they have filed copy of the
order passed by the State Government dated 01.09.2023 as Anncxure
EI2.
5. Learned counsel for the respondent no.2 submits that as per the
provision of section 73 and 52 of the Adhiniyam, 1973, the State
Government has been conferred power to give directions and under
section 74 of the Adhiniyam, 1973, the power is conferred to the
Government to review, plan etc. tor ensuring conformity. It is argued
that as per the aforesaid provisions of Adhiniyam, 1973, the order passed
by the State Government dated 01.09.2023 is binding on the petitioners-
Indore Development Authority.
6. Learned counsel for the petitioner submits that the petitioner
was not party in the said writ petition, which was decided by this court.
However, he could not dispute the legal provisions and the order passed
by the State Government which is binding on the petitioner.
7. In the light of the order passed by the State Government dated
01.09.2023, the order passed by the Director, Town and Country
Planning
stands affirmed and therefore nothing remains in the petition to examine
the validity of the order of the Director. The present petition is dismissed
by directing the petitioner to release the land of the respondent no.2 and
declaring it free from all kinds of encumbrances of the said scheme no.
l69-A.
3. Thereafter the said order was challenged by way of W.A no.
3094/2024 along with other writ appeals, which was decided by
order, which is delivered on 16/06/2025 by the Division Bench, For
the sake of reference, the relevant paragraph nos. 30 to 32 are
reproduced as under :
“30. It is clear from the aforesaid order that the Principal
Secretary, State Government has not decided the application filed under
Section 52 of the Adhiniyam of 1973 on merit, therefore, the Writ Court
has wrongly held that because of the order dated 01.09.2023, nothing
remains to be decided in this writ petition. The Principal Secretary has
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only directed the IDA to examine the subject matter of W.P. No.7871 of
2013, legal grounds, and current circumstances and do the necessary
proceedings before the High Court. There is nothing adverse in the
order dated 01.09.2023 against the IDA to challenge the order in the
pending writ petition by way of amendment. Pushpa Bai, virtually
committed contempt of Court by filing an application under Section 52
of the Adhiniyam of 1973 during the pendency of all these writ
petitions. She also committed contempt of Court by suppressing
important facts of pendency of the writ petition and order of status quo
and obtained the order that the application under Section 52 of the
Adhiniyam of 1973 be decided expeditiously. Because of this direction,
the Principal Secretary has decided the application under Section 52 of
the Adhiniyam of 1973, on the basis of which W.P. No.7871 of 2013 has
been dismissed and relying on the said order other writ petitions have
also been dismissed without adjudication on merit
31. The validity of the order dated 30.08.2011 has not been
decided by the Writ Court on merit, therefore, we have no reason to
entertain these writ appeals on merit. Relying on the order passed in the
case of Pushpa Bai (supra), the Writ Court has dismissed all other writ
petitions treating them to be identical in facts and grounds, whereas in
other writ petitions, there is no such order passed under Section 52 of
the Adhiniyam of 1973 by the State Government.
32. In view of the foregoing discussions, the order dated
19.12.2023 passed by the Writ Court in W.P. No.7871 of 2023 is hereby
set aside. Relying on this order all the writ petitions have been
dismissed, hence, all the writ appeals are allowed and impugned orders
passed by the writ court are also set aside. All the writ petitions are
hereby restored to their original number. These writ petitions are
remitted back to the Writ Court for adjudication on merit/”
4. Thereafter, the order passed by the Divison Bench was
challenged by present petitioner by way of Special Leave Petition
(Civil) Diary no. 62446/2025. For the sake of reference, the relevant
paragraph nos. 8 to 13 are reproduced as under :
8. Para 32 reads thus.
“32. In view of the foregoing discussions, the order dated
19.12.2023 passed by the Writ Court in W.P. No.7871 of 2013 is
hereby set aside. Relying on this order all the writ petitions have
been dismissed, hence, all the writ appeals are allowed and
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NIVRUTTIRAO MAHANAG
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impugned orders passed by the writ court are also set aside. All
the writ petitions are hereby restored, to their original number.
These writ petitions are remitted back to the Writ Court for
adjudication on merit.”
9. As such we find no good ground to interfere with the
impugned judgment and order passed by the High Court because the
High Court thought fit to direct that the Writ Petition No.7871 of 2013
be heard afresh.
10. The original writ petition was filed by the Indore
Development
Authority.
11. The petitioner is an 80 year old lady.
12. In such circumstances, we request the High Court to take up
the Writ Petition No.7871 of 2013 for final hearing at the earliest and
see to it that the same is disposed of with appropriate judgment within a
period of two months from today.
13. It is needless to clarify that the writ petition shall be decided
by the High Court without being influenced in any manner by any of the
observations made in the impugned order.
5. Considering the same and the prayers made in the petition, a
requrest is made by counsel for the petitioner that in view of the
direction of the Hon’ble Supreme Court, the matter is required to be
heard as expeditiously as possible, therefore, the matter is segregated
from other matters, wherein there is no such direction and this matter
was taken up for consideration by fixing date of hearing. Today, the
matter is called out.
6. Learned counsel for the petitioner is heard at length. Learned
counsel for the private respondent and the State are heard at length.
They have also filed brief written synopsis in support of their say.
7. It is also pointed out by counsel for the petitioner / Indore
Development Authority that an application for grant of interim relief
filed under Order 6 Rule 17 of the CPC for carrying out the
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amendment in the petition as there are several orders passed, prior to
filing of this petition as well as after filing of this petition by various
Courts and the some documents, which are relevant for the purpose
of consideration, are sought to be placed on record by way of filing
amendment application, which was opposed by counsel for the
respondent by submitting that the impugned order under challenge is
of the concerned Authority / Reviewing Authority passed under
section 52 of the Nagar Tatha Gram Nivesh Adhiniyam (in short ”
the Adhiniyam”) and the documents, which are now sought to be
relied, are either part of the record by way of various proceedings
and the order passed by the Competent Court, which can be
otherwise looked into during the course of argument and other
documents, which are not part of the record at the relevant point of
time, though the petitioner has filed petition at that point of time,
now with a view to delay the hearing of the matter and even though
there is specific direction of Hon’ble Supreme Court to conclude the
hearing within two months looking to the age of present petitioner
and therefore, he has objected that neither such documents are
relevant for the consideration of the issue involved in the present
petition, nor it can be said that many of the documents like the
orders passed by the Courts can also be considered by citing during
the course of argument, therefore, he has submitted that such
application is not required to be heard and the main matter can be
heard
8 I have considered the rival submissions made by both the
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parties and also the fact that looking to the nature of the amendment
application, which is filed, is consisting pages more than the original
petition by way of seeking amendments, which are certainly in the
nature of producing some documents, sale-deed, photographs and
also some orders passed by the Authority. Those documents can be
certainly referred at the time of argument to understand the case of
the parties in proper manner, but not required to be produced at such
belated stage, which is as not necessary pleadings for constitution of
this petition also, can change the colour of the litigation to some
extent, moreover, looking to the nature of prayers made in the
present petition is essentially by challenging the order passed by the
concerned Authority of the M.P. State Government under section 52
of the Adhiniyam and therefore, I found it not require to consider by
allowing such application at the belated stage, which as such not
direct bearing with subject of the present petition,Therefore, the
matter is heard at length.
9. The fact of the case in brief is that the IDA had preferred writ
petition before this Court on the ground that the respondent no. 2 has
failed to carry out development as per sanctioned layout dated
26/09/2005, hence the land could not have been directed to be
released. The Writ Petition was disposed of on the ground that since
the government has issued an order dated 01/09/2023 the petition
does not survive. Thereafter, the IDA preferred Writ Appeal before
Division Bench of this Court and the same were disposed of by
remanding the matter back to the Writ Court, essentially on the
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ground that since scheme no. 169-A has been substantially
implemented and the Respondent No. 2 had obtained the order of
government dated 01/09/2023 based on an order passed in Writ
Petition 18970/2020 behind the basis of IDA, Against the order
passed in Writ Appeal no. 3094/2024, respondent No. 2 preferred
SLP (C) Diary No. 624469/2025, which was disposed of vide order
dated 17/11/2025 by requesting the High Court to take up Writ
Petition no. 7871/2013 i.e. present petition for final hearing at the
earliest and the same be disposed of with appropriate judgment
within two months, as also by observing that the Writ Petition shall
be decided by the High Court without being influenced in any
manner by any of the observation made in the impugned order.
Hence present petition is placed before this Court.
10. Learned counsel for the petitioner / IDA has submitted that if
the land in question is released, it will frustrate the planning of the
scheme no. 169-A and 169-B as the huge chunk of is land involved
in the present scheme i.e. 14,575 hectors. She has further submitted
that from bare reading of section 25 of the Adhiniyam, it is quite
clear that any development should be in conformity with
development plan Admittedly till today no such development
activity has been undertaken or completed by the land owners,
therefore even the layout sanctioned lapses as being not in
conformity with the master plan.
11. Learned counsel has further submitted that it is quite clear
from the bare reading of section 53 of the Adhiniyam that after the
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declaration of the scheme what is saved is only the development
undertaken instituted authorized by the Director. Section 53 does not
contemplates release of land from the scheme merely on the ground
of there being a layout sanctioned prior to the declaration of the
scheme but what is saved is the development undertaken on the land
in question in accordance to the development authorized by the
Director in accordance to the provisions of the act. Thus the land
owner’s land could not have been released from the scheme only on
account of the fact that the layout was sanctioned prior to the
declaration of the scheme as section 53 of the Adhiniyam does not
contemplate this exigency. Section 53 does not contemplate release
of land but contemplates restrictions on actual use and development
of land merely having sanction on paper will not be enough to attract
the saving as contemplated in section 53 of the Adhiniyam..
12. She further submitted that there is no averment or pleading in
the objection filed by the land owner or even in the revision filed
before the Revisional authority U/s. 51 of the Adhiniyam, therefore
the layout sanctioned proposing a land use contrary to the master
plan is nonest in the eyes of law and such development permission
cannot be a ground to release the land from the scheme no. 169-A. In
view of the aforestated, it is prayed that the present petition be
allowed.
13. Per-contra, learned counsel for respondent no. 2 has submitted
that the respondent No. 2 preferred SLP (C) Diary No. 624469/2025,
which was disposed of vide order dated 17/11/2025, by observing
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that it is needless to clarify that Writ Petition shall be decided by the
High Court without being influenced in any manner by any of the
observation made in the impugned order. Thus, in effect the
observation of Division Bench in remand order dated 16/06/2025 in
Writ Appeal 3094/2024 IDA Vs Pushpa Bai are not required to be
considered, rather the validity of the order of Director in revision
(Annexure P/3) is to be examined on merits.
14. Learned counsel has further submitted that a true objective and
purposive reading of section 53 of the Adhiniyam shows that no
sooner a development authority publishes its intention to frame and
prepare a TDS, the land use of every land covered including private
lands, stands freezed and even an individual person cannot change
the land used thereby prohibiting development due to freezing of the
land use. He has also submitted that the last part of quoted section
53 of the Adhiniyam clearly shows that notwithstanding, the freezing
of such land use, development of any land included in proposed
scheme is not prohibited, provided it is covered by a sanction
granted by the Director, “prior to publishing of such declaration”.
He further submitted that even in a situation, where land use of a
land, likely to be included in the scheme to be prepared, is freezed
even then such land can be developed if it is covered by sanction of
a layout granted by the Director prior to declaration of intention to
frame scheme u/s 50 (2) of the Adhiniyam . He has further submitted
that this principle has been appreciated by this court in Writ Petition
7732/2016 [UDA Vs Geeta Totla ] by judgment dated 11/07/2018
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and land covered by previous layout sanctioned has been directed to
be excluded from the scheme. This judgment has been affirmed in
Writ Appeal 1481/2018 [UDA VS. Geeta Totla] by judgment dated
22/04/2019 and SLP preferred by UDA being SLP (C) Diary No.
29393/2019 has been dismissed on 06/09/2019. Learned counsel has
further submitted that section 53 of the Adhiniyam has been
interpreted by the Apex Court in the same. fashion in judgment of
Hon’ble Supreme Court delivered in the case of Chairman, IDA Vs.
Pure Industrial Coke and Chemical Limited reported in (2007) 8
SCC 705. Therefore, learned counsel prays for dismissal of present
petiton.
15. Learned counsel for the respondent / State has submitted that
from bare perusal of the said sanctioned map, it clearly transpires
that the land belonging to the answering respondents forms part of
the land specifically shown as exempted land by the IDA itself. Once
the petitioner has itself acknowledged the respondents’ land as
exempted in the sanctioned map, the petitioner cannot now be
permitted to take a contrary stand before this Court. It is further
submitted that the present review petition is wholly misconceived
and is, in fact, an attempt to seek a rehearing of the matter on merits.
The scope of review jurisdiction is extremely limited. A review can
be entertained only when there is an error apparent on the face of the
record. The petitioner has failed to point out any such apparent error
in the judgment under review. On the contrary, the petitioner has
sought to re-agitate the factual matrix of the case and invite this
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Court to undertake a fresh appreciation of facts and evidence, which
is impermissible in review jurisdiction. Learned counsel has further
submitted that the competent authority acted strictly within the four
corners of its statutory jurisdiction while passing the impugned
order. The order is well-reasoned, legal, and fully sustainable in the
eyes of law. No jurisdictional error, perversity, or patent illegality
has been demonstrated so as to warrant interference by this Court.
In these circumstances, the petition, being devoid of merit, be
dismissed with exemplary costs.
16. I have considered the rival submissions made at the bar. The
main contentions of the petitioner
17. The main contention of the petitioner is about the applicability
of the Section 53 of the Adhiniyam. It is relevant to note that on
26/09/2005, the JD, TNCP sanctioned a layout plan of Survey No.
36/1 for an area. 1.368 Hec. for industrial purpose. On 16/01/2008,
the Respondent No. 2 applied for diversion u/s 172 of the Madhya
Pradesh Land Revenue Code and the SDO sent a letter to the Indore
Development Authority (in short “IDA”) and the Town and Country
Planning (in short “TNCP”) department seeking their opinion. On
16/01/2008, the SDO sent a letter to Nazul Officer seeking his
opinion. On 10/01/2008, the Gram Panchayat, Kumedi granted
NOC for Diversion. On 11/07/2008, the IDA passed resolution no.
198 u/s 50 (1) of Adhiniyam for framing scheme no. 169-A. On
25/07/2008, under section 50 (2) of the Adhiniyam, the intention to
frame scheme no. 169-A was published in the newspaper. On
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01/08/2008, the same was published in the gazette. On 15/10/2009,
the draft scheme no. 169-A was published in newspaper inviting
objection. On 23/10/2009, the draft scheme no. 169-A was published
in gazette inviting objection. On 23/10/2009, the Respondent No. 2
pushpa bai submitted her objection to draft scheme no. 169-A. On
16/08/2010, the objection of Respondent No. 2 was rejected by the
IDA. It also transpires that the final scheme no. 169-A was published
in newspaper u/s 50 (1). The Respondent No. 2 filed an revision no.
3 of 2011 before Director, TNCP, Bhopal. On 07/05/2011, the IDA
filed a reply in the revision. On 30/08/2011, the Revision of
Respondent No. 2 was allowed by the Director and based on the
principles flowing from section 53 of the Adhiniyam. The land of
Respondent No. 2 of survey no. 36/1, village Kumedi was directed
to be excluded from scheme 169-A as its layout was sanctioned on
26/09/2005 much before the IDA declared, its intention to frame the
scheme 169-A on 01/08/2008. The IDA submitted representation to
the PS, Housing & Environment Department, Bhopal seeking
permission to file Writ Petition on 17/04/2013. On 08/05/2013, the
Housing and Environment of Department issued a clarification in
clause 7.3 stating that on the ground of previous sanction of layout
before declaration of intention under section 50 (2) scheme, the land
should not be released.
18. Considering these aspects and the factual background, now it
is relevant to consider the submissions made by rival parties by
referring to the various judgments as under :
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a) Central Coal Fields Vs. State of MP and others
[ 1995(2) SCC 11 (para nos. 7 and 8 )
b) Indore Development Authority Vbs. Burhani
Grah Nirman Sahakari Sanstha Maryadit [ 2023 SCC
Online SC 3123]. Para nos. 53 and 67.
c) Kalicharan and others Vs. State of UP and others [
2024 SCC Online SC 3472] Para nos 38 and 41.
d) Ikkisvi Sadi Grah Nirman Samiti Vs. State of MP
and othes [ WA no. 69/2020] Para nos. 19, 22, 26 and 27.
e) Gauradevi Vs. State of MP and othes [ WP no.
5827/2021] Para no. 9.
f) Bhondu Ramaswami and others Vs. Banglore
Development Authority and others [ 2010 (7) SCC 129]
Para nos. 103 and 140.
g) Raipur Development Authority Vs. Anupam
Sahakari Grah Nirman Samiti and others [ 2000(4) SCC
357] Page nos. 16 and 17.
h) Anand Buttons Ltd Vs. State of Haryana and
others [ 2005(9) SCC 164].
i) Mumbai International Airport Vs. Regency
Convention Centre and others [ 2010(7) SCC 417].
j) State of Orisa Vs. Titaghur Paper Mill Company
Ltd and another [ AIR 1988 SC 1293]
19. The above mentioned judgments are cited by learned counsel
for the petitioner / I.D.A., but on the facts of the case, the above
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judgments are not helpful to the case of petitioner, though there is no
quarrel about the ratio of those judgments delivered by Hon’ble
Supreme Courts as well as the High Courts.
20. In the present case, in the factual background and also
considering the position of law, it is also relevant to note the
judgment cited by learned counsel for the respondent/s, which is in
similar facts of the present case. [Writ Petition no. 7732 of 2016
[ UDA Vs. Geeta Totia decided on 11/07/2018]. For the sake of
reference, relevant part of which is reproduced as under :
Facts of the case are not in much dispute. The respondent No.1
was granted permission of development on 08.09.2006. Thereafter, she
has constructed one room and fencing. The petitioner has published the
notification under Section 50(2) on 23.01.2011 and before that the
respondent has already obtained a permission of development. The
moment notification under Section 50(2) issued, section 53 comes into
operation. Thereafter the respondent No.1 was not in a position to carry
out any development over the land. This fact was well within the
knowledge of petitioner that the permission had already been granted to
the respondent No.1, therefore, the said land ought not to have been
included in the scheme.
Even otherwise, as per the departmental note placed before the
committee constituted under Section 50(3) and (4), total area of Survey
No.142 is 2.341 hectare and out of 6 which only 1.714 has been
included in the scheme and there is no sanction for area 0.627 hectare
and as per the spot inspection report, the land owners have constructed
their house over Survey No.142 and almost all the land has been
developed. The aforesaid note is reproduced below:
rglhy fjdkMZ vuqlkj xzke ‘kDdjoklk Hkwfe losZ ua- 142 dk dqYk
jdck 2-341 gS0A uxj rFkk xzke fuos’k }kjk dk;kZy;hu i= dza-
954@th;w@35@09@uxzkfu fnukad 19-08-09 }kjk ;kstuk ysrs le; 0-494
gS0 Hkwfe ds vfHkU;kl dh Lohd“fr dh lwpuk nh xbZ FkhaA mDr
jdcs dks NksMdj izkf/kdj.k }kjk ;kstukUrxZr 1-951 gS0 ;kstuk esa
lfEefyr fd;k x;k FkkA rn~~le; vkosnd dh Hkwfe jdck 0-418 gS0
ds vfHkU;kl dh Lohd`fr dh lwpuk uxj fuos’k foHkkx }kjk ugha nh
xbZ FkhA uxj rFkk xzke fuos’k foHkkx }kjk fofHkUu Hkwfe Lokfe;ksa ds
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NEUTRAL CITATION NO. 2026:MPHC-IND:2118615
tks vfHkU;kl tks Lohd“r fd;s x;s Fks mlds la’kksf/kr vfHkU;kl dh
lwph i= dza- 1036@th;w @38@09@uxzkfu fnukad 30-04-2011 ls iqu%
tkudkjh izkf/kdj.k dks nh xbZ FkhA ftlesa vkifRrdrkZ Jherh fofurk
tSu ds vfHkU;kl dh Lohd`fr dh lwpuk lfEefyr gSA vkifRRkdrkZ
}kjk fn;s x;s nLrkost ,oa uxj rFkk xzke fuos’k foHkkx }kjk nh xbZ
lwph vuqlkj vkifRrdrkZ Hkwfe Lokeh Jherh fofurk tSu dh Hkwfe
xzke ‘kDdjoklk losZ dza- 142 esa ls jdck 0-418 gS0 Lo;a ds
vkokl gsrq milapkyd uxj rFkk xzke fuos’k mTtSu ds i= dza-
1105@uxzkfu@06 fnukad 08-09-2016 }kjk nh xbZ gSA uxj rFkk xzke
fuos’k foHkkx }kjk nh xbZ lwph fnukad 30-04-11 vuqlkj xzke
‘kDdjoklk ds losZ dza-a142 dqy jdck 2-341 gS0 esa ls 1-714 gS0
Hkwfe ds vfHkU;kl dh Lohd`fr fn;s tkus dk mYYks[k gSA bl izdkj
ek= 0- 627 gS0 Hkwfe ij uxj rFkk xzke fuos’k dh dksbZ Lohd`fr
ugha gS LFky fufj{k.k vuqlkj losZ dza-a 142 dh lEiw.kZ Hkwfe ij
vyx&vyx HkwfeLokfe;ksa ds ,d&,d edku cus gS ,oa vkl&ikl
Hkwfe [kkyh gSA HkwfeLokfe;ksa }kjk viuh&viuh Hkwfe ij ok;j Qsflax
dh xbZ gSA tks fofHkUu HkwLokfe;ksa dh vyx&vyx VwdMksa esa fLFkr
gSA losZ dza- 142 dh vf/kdka’k Hkwfe LFky ij fodlhr gks pqdh gSA
By order dated 30.12.2015, the commissioner Bhopal has
granted one month’s time to the petitioner to prepare an amended
scheme. The petitioner took 11 months to file present petition and there
is no material available in the writ petition to show that since 2013 any
development work has been started by the petitioner. After the lapse of
4 years, no steps have been taken by the petitioner to 7 implement the
scheme. Even, the lands included in the scheme have not been acquired
by way of mutual agreement or acquisition, therefore, no interference is
called for, hence, petition is hereby dismissed.
21. The aforesaid order was challenged by the Authority by way of
Writ Appeal nos. 1480 of 2018 and 1481 of 2018, which is like
identical to facts of the present petition. For the said of reference,
relevant paragraph nos. 11 to 16 are reproduced as under :
11- The another important aspect of the case is that after
issuance of notification under Section 50(2), Section 53 comes into
play. Section 53 of the Act of 1973 reads as under:-
“Restrictions on land use and land development.-As from
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the date of publication of the declaration to prepare a town
development scheme, no person shall, within the area included
in the scheme, institute or change the use of any land or
building or carry out any development, save in accordance with
the development authorised by the Director in accordance with
the provisions of this Act prior to the publication of such
declaration.”
In light of the aforesaid statutory provision the respondent No.1
was not in a position to carry out any further development activity
over the land and the factum of development permission granted in
favour of espondent No.1 was well within the knowledge of Ujjain
Development Authority and therefore, by no stretch of imagination
the land could have been included under the development scheme.
12- It is also an undisputed fact that the application for
diversion of land of respondent No.1 was allowed, which was
preferred under Section 172 of the M. P. Land Revenue Code, 1959
and thereafter, the Town and Country Planning Department has
granted development permission on 08/09/2006.
13- The another important aspect of the case is that large
number of area included in the scheme has already been excluded
from the scheme and the land belonging to the other identically placed
land owners has already been excluded by the Ujjain Development
Authority. A list was submitted by Town and Country Planning
Department in respect of persons, who were granted development
permission, however, the respondent No.1 has been discriminated in
the matter and in those circumstances, the Revisional Authority has
allowed the revision.
14- The order passed by the Revisional Authority is a well
reasoned order and the learned Single Judge has rightly declined to
interfere with the order passed by the Revisional Authority.
15- The present case reflects a hostile discrimination shown by
the Ujjain Development Authority. The land belonging to other
persons who were having development permissions, have been
excluded from the development scheme and the land belonging to
respondent No.1 was not excluded and therefore, as it was a case of
hostile discrimination, there is a clear violation of Article 14, 16 and
21 of the Constitution of India. The Revisional Authority was justified
in allowing the revision preferred by respondent No.1.
16- Learned Single Judge has also given a finding of fact that
after lapse of four years, the Ujjain Development Authority has not
taken any steps to implement the scheme. The lands which form part
of the scheme has not been acquired by way of mutual agreement or
by way of acquisition and therefore, in the considered opinion of this
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Court, as there was a sanctioned development plan in respect of land
belonging to the respondent No.1 sanctioned way back in the year
2006, the land of the respondent No.1 could not have been included in
the scheme as held by the Revisional Authority and as held by the
learned Single Judge. This Court does not find any reason to interfere
with the order passed by the learned Single Judge. Accordingly, the
admission is declined in both the appeals and the appeals are
dismissed.
22. It also further transpires that there being aggrieved by that
order, the Ujjain Development Authority i.e. UDA had challenged
that order by way of filing Special Leave Petition (Civil) Diary no.
29393 of 2019 and by order dated 06/09/2019, passed the following
order by dismissing the S.L.P. :
“Delay condoned.
We are not inclined to interfere with the impugned order. The
special leave petitions are, accordingly, dismissed.
Pending applications shall also stand disposed of.”
23. Therefore, in these factual background and the position of law,
which is coming on record, the section 53 of the Adhiniyam is
required to be quoted as under :
53. Restrictions on land use and land development.- As from the
date of publication of the declaration to prepare a town development
scheme, no person shall, within the area included in the scheme, institute
or change the use of any land or building or carry out any development,
‘save in accordance with the development authorized by the
Director in accordance with the provisions of this Act prior to the
publication of such declaration’
24. From the bare reading of the Adhiniyam, later part, which
clearly stipulates that ” ‘save in accordance with the development
authorized by the Director in accordance with the provisions of
this Act prior to the publication of such declaration” therefore,
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considering the objective and purposive reading of section 53 of the
Adhiniyam shows that no sooner a development authority publishes
its intention to frame and prepare a TDS, the land use of every land
covered including private lands, stands freezed and even an
individual person cannot change the land use thereby prohibiting
development due to freezing of the land use. However, the last
highlighted and underlined part of quoted section 53 of the
Adhiniyam clearly shows that notwithstanding, the freezing of such
land use, development of any land included in proposed scheme is
not prohibited, provided it is covered by a sanction granted by the
Director, “prior to publishing of such declaration”. Therefore, in
view of the aforesaid exception created in second part of section 53
clearly spells out the legislative intent that even in a situation where
land use of a land, likely to be included in the scheme to be
prepared, is freezed even then such land can be developed if it is
covered by sanction of a layout granted by the Director prior to
declaration of intention to frame scheme u/s 50 (2). It is also
revevant to note the judgment of Hon’ble Supreme Court delivered
in the case of Chairman, IDA Vs. Pure Industrial Coke and
Chemical Limited reported in (2007) 8 SCC 705, which is cited by
counsel for the respondent in support of his contention. For the sake
of reference, relevant paragraph nos. 41, 43, 46, 47, 48, 53, 54, 57,
60, 75 and 77 are reproduced as under :
41. When a draft development plan is prepared, the same is
subject to grant of approval and/or modification thereof. We will deal
with the matter in some detail a little later but at this stage, we may
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notice that end use of the land is not frozen until a final sanction plan
comes into being. A town planning scheme, as would appear from its
definition contained in Section 2(4) of the Act, is prepared only for the
purpose of implementation of a development plan. Yet again, we would
deal with the question as to whether the same would bring within its
sweep the draft development plan or only final development plan a little
later, but it may be noticed that once a valid town planning scheme
comes into force, indisputably, there may be freezing of land use as also
freezing of development and, thus, a total embargo is placed except in
such cases where the Director had granted permission. Section 53 of the
Act, however, in the event a valid town planning scheme is made,
places a total embargo both on land use as also the development. Even
the Director is denuded of its power to issue any further permission.
Existing land use, draft development plan and final development plan
envisage two-stage exercise. In drafting or finalising a zonal plan, a
similar exercise is undertaken. In making a town development scheme,
however, the process undertaken is a three-stage one inasmuch as an
intention therefor is declared which entails serious consequences and,
as noticed hereinbefore, by reason thereof, a total embargo is imposed
both on land use as also the development. For the said purpose, a time-
limit within which a draft town planning scheme has to be finalised is
provided but the same can be subject to modification by the State which
ordinarily should be with a view to deal with the same in line with the
final development plan.
43. There are two competing interests viz. one, the interest of the
State vis-à-vis the general public and, two, to have better living
conditions and the right of property of an individual which although is
not a fundamental right but is a constitutional and human righ
46. Where, however, a scheme comes into force, although it may
cause hardship to the individual owners as they may be prevented from
making the most profitable use of their rights over property, having
regard to the drastic consequences envisaged thereunder, the statute
should be considered in such a manner as a result whereof greater
hardship is not caused to the citizens than actually contemplated
thereby. Whereas an attempt should be made to prevent unplanned and
haphazard development but the same would not mean that the court
would close its eyes to the blatant illegalities committed by the State
and/or the statutory authorities in implementation thereof.
Implementation of such land development as also building laws should
be in consonance with public welfare and convenience. In United States
of America zoning ordinances are enacted pursuant to the police power
delegated by the State. Although in India the source of such power is
not police power but if a zoning classification imposes unreasonable
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restrictions, it cannot be sustained. The public authority may have
general considerations, safety or general welfare in mind, but the same
would become irrelevant, as thereby statutory rights of a party cannot
be taken away. The courts must make an endeavour to strike a balance
between public interest on the one hand and protection of a
constitutional right to hold property, on the other.
47. For the aforementioned purpose, an endeavour should be
made to find out as to whether the statute takes care of public interest in
the matter vis-à-vis the private interest, on the one hand, and the effect
of lapse and/or positive inaction on the part of the State and other
planning authorities, on the other.
48. The courts cannot also be oblivious of the fact that the
owners who are subject to the embargos placed under the statute are
deprived of their valuable rightful use of the property for a long time.
Although ordinarily when a public authority is asked to perform
statutory duties within the time stipulated it is directory in nature but
when it involves valuable rights of the citizens and provides for the
consequences therefor it would be construed to be mandatory in
character.
53. The right to property is now considered to be not only a
constitutional right but also a human right.
54. The Declaration of Human and Civic Rights of 26-8-1789
[Ed.: This historic declaration also known as the Declaration of the
Rights of Man and the Citizen, 1789 was adopted by the French
National Assembly after the French Revolution.] enunciates under
Article 17:
“17. Since the right to property is inviolable and sacred,
no one may be deprived thereof, unless public necessity, legally
ascertained, obviously requires it and just and prior indemnity
has been paid”.
Further under Article 17 of the Universal Declaration of
Human Rights, 1948 dated 10-12-1948, adopted in the United
Nations General Assembly Resolution it is stated that: (i)
Everyone has the right to own property alone as well as in
association with others. (ii) No one shall be arbitrarily deprived
of his property.”
57. The Act being regulatory in nature as by reason thereof the
right of an owner of property to use and develop stands restricted,
requires strict construction. An owner of land ordinarily would be
entitled to use or develop the same for any purpose unless there exists
certain regulation in a statute or statutory rules. Regulations contained
in such statute must be interpreted in such a manner so as to least
interfere with the right to property of the owner of such land.
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Restrictions are made in larger public interest. Such restrictions,
indisputably must be reasonable ones. (See Balram Kumawat v. Union
of India [(2003) 7 SCC 628] ; Krishi Utpadan Mandi Samiti v. Pilibhit
Pantnagar Beej Ltd. [(2004) 1 SCC 391] and Union of India v. West
Coast Paper Mills Ltd. [(2004) 2 SCC 747] ) The statutory scheme
contemplates that a person and owner of land should not ordinarily be
deprived from the user thereof by way of reservation or designation.
60. The question has also been addressed by a decision of the
Division Bench of this Court in Pt. Chet Ram Vashist v. Municipal
Corpn. of Delhi [(1995) 1 SCC 47] , wherein R.M. Sahai, J., speaking
for the Bench opined: (SCC p. 54, para 6)
“6. Reserving any site for any street, open space, park,
school, etc. in a layout plan is normally a public purpose as it is
inherent in such reservation that it shall be used by the public in
general. The effect of such reservation is that the owner ceases to
be a legal owner of the land in dispute and he holds the land for
the benefit of the society or the public in general. It may result in
creating an obligation in nature of trust and may preclude the
owner from transferring or selling his interest in it. It may be
true as held by the High Court that the interest which is left in
the owner is a residuary interest which may be nothing more
than a right to hold this land in trust for the specific purpose
specified by the coloniser in the sanctioned layout plan. But the
question is, does it entitle the Corporation to claim that the land
so specified should be transferred to the authority free of cost.
That is not made out from any provision in the Act or on any
principle of law. The Corporation by virtue of the land specified
as open space may get a right as a custodian of public interest to
manage it in the interest of the society in general. But the right to
manage as a local body is not the same thing as to claim transfer
of the property to itself. The effect of transfer of the property is
that the transferor ceases to be owner of it and the ownership
stands transferred to the person in whose favour it is transferred.
The resolution of the Committee to transfer land in the colony
for park and school was an order for transfer without there being
any sanction for the same in law.” (See also Raju S. Jethmalani
v. State of Maharashtra [(2005) 11 SCC 222 : (2005) 4 Scale
688] .)
75. The purpose of declaring the intent under Section 50(1) of
the Act is to implement a development plan. Section 53 of the Act
freezing any other development is an incidence arising consequent to
the purpose, which purpose is to implement a development plan. If the
purpose of declaring such an intention is merely to bring into play
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Section 53, and thereby freeze all development, it would amount to
exercise of the power of Section 50(1) for a collateral purpose i.e.
freezing of development rather than implementation of a development
plan. The collateral purpose also will be to indirectly get over the fact
that an owner of land pending finalisation of a development plan has all
attendant rights of ownership subject to the restraints under Section 16.
If the declaration of intent to formulate a town development scheme is
to get over Section 16 and freeze development activities under Section
53, it would amount to exercise of power for a collateral purpose.
78. The essence of planning in the Act is the existence of a
development plan. It is a development plan, which under Section 17
will indicate the areas and zones, the users, the open spaces, the
institutions and offices, the special purposes, etc. Town planning would
be based on the contents of the development plan. It is only when the
development plan is in existence, can a town planning scheme be
framed. In fact, unless it is known as to what the contents of a possible
town planning scheme would be, or alternatively, whether in terms of
the development plan such a scheme at all is required, the intention to
frame the scheme cannot be notified.
25. It is also relevant to note that this Court has also found similar
issue and is dealt in some other matters also as in Writ Petition no.
3658 of 2026 by order dated 19/06/2017 has observed as under :
” This Court has carefully gone through the order passed by the
respondent No.1. The undisputed facts of the case further reveal that
prior to declaration of Scheme No. 171, the respondent No.2 got
sanctioned the layout plan of his land from the Joint Director, Town &
Country Planning Department, Indore. It is also an admitted fact that
against the sanction of layout play of respondent No.2, the Indore
Development Authority filed a revision before the State Government
though the said revision was not entertained, but the State Government
in exercise of its suo-motu powers initiated revisional proceedings and
stayed / suspended operation and effect of the sanction granted to
respondent No.2 and such stay / suspension order has not been revoked,
as reflected from the return. Finally the revision was allowed and the
sanction granted in favour of respondent No.2 was cancelled.
Thereafter the order passed by the State Government was challenged by
filing Writ Petitions and the Writ Petitions were alowed and the order of
the State Government was set aside by directing the State Government
to afford an opportunity of hearing to respondent No.2 and other
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persons and to pass a fresh order in accordance with law. The said
revision is still pending.
It is also an undisputed fact that the sanction / development
permission granted to respondent No.2 is still in operation. The
undisputed facts also reveal that Scheme No. 171 was declared on
19/6/2009 and the Notification of the final Scheme was published after
more than 3 years on 12/10/2012. The Indore Development Authority
took no steps to implement the said Scheme even after expiry of 8 years
from the date of declaration of the Scheme and 5 years from the final
publication of the Scheme.
Sec. 53 of the Adhiniyam of 1973 reads as under :
53. Restrictions on land use and land development.- As
from the date of publication of the declaration to prepare a town
development scheme, no person shall, within the area included in
the scheme, institute or change the use of any land or building or
carry out any development, save in accordance with the
development authorised by the Director in accordance with the
provisions of this Act prior to the publication of such declaration.
The aforesaid statutory provision of law makes it very clear that
in respect of the land for which development permission has already
been granted, cannot be included in a Scheme declared by a
Development Authority like the present petitioner. The respondent has
brought enough material on record to establish that in more than 100 of
cases under various Schemes, the Indore Development Authority itself
has excluded such lands for which development permission was
already granted. Not only this, the revisional Authority has also
excluded various lands from various Schemes on the ground that
development permission for such lands was already granted prior to
declaration of Schemes. The Indore Development Authority in all the
aforesaid cases has accepted the revisional order and the respondent
No.2 has filed Annexure R/2-B which is on record in respect of such
orders which have been implemented by the Indore Development
Authority. There is no denial on behalf of the Indore Development
Authority in respect of the aforesaid contention. Not only this,
Annexure R/2-C is again a document which includes a list of cases
where the Indore Development Authority itself has excluded lands from
various Schemes where development permission was granted prior to
issuance of Notification about the Development Schemes. Thus, the
aforesaid action of the Indore Development Authority establishes that
the Indore Development Authority has adopted a pick and choose
method and is not having a uniform policy in respect of land owners in
whose case the development permissions were already granted prior to
Notification of the Schemes under the Adhiniyam of 1973. The
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Revisional Authority, in the light of the fact that the development
permission was already granted in case of the petitioner, has simply
observed that the land of respondent No.2 should be excluded from the
Scheme and a revised plan after excluding the land of respondent No.2,
be notified.
Another important aspect of the case is that the earlier Scheme
ie., Scheme No. 132 was declared as illegal by this Court in a judgment
delivered in Writ Petition No. 1455/2007 (supra) and a liberty was
granted to declare another Scheme in accordance with law. The
Revisional Authority was justified in holding that the land of the
petitioner could not have been included in the subsequent Scheme ie.,
Scheme No. 171. The most shocking aspect of the case is that similar
order was passed in case of one Shriram Builders, an identically placed
person, excluding the land from Scheme No. 171 on the same ground
on the basis of which the impugned order has been passed in case of
respondent No.2. The Indore Development Authority has filed an
identical Writ Petition in case of M/s. Shriram Builders ie., W.P.No.
3656/2016, however, for the reasons best known to the Indore
Development Authority, the petition in respect of Shriram Builders was
withdrawn on 3/10/2017.
The Indore Development Authority cannot be permitted to adopt
a pick and choose policy and being a statutory body has to follow a
uniform policy in all identical cases and once the benefit has been
extended to Shriram Builders and the petition against identical order
has been withdrawn, there cannot be any justification on the part of the
Indore Development Authority in contesting the present matters.
However, otherwise also the order passed by the learned Commissioner,
which is based upon the statutory provisions f law, does not warrant
any interference. The learned Commissioner has rightly arrived at a
conclusion that the land of the petitioner cannot be included in the
development as the development permission was granted prior to
issuance of notifications notifying the Scheme in question. The net
result is that the present Writ Petition deserves to be dismissed and is
accordingly hereby dismissed. The other connected Writ Petitions are
also dismissed.
26. It is also relevant to note that looking to the prayer of the present
petitioner, it is essentially in the nature of writ of certiorari asked under
Article 226 of the Constitution of India. For this purpose, it is required to
be considered two judgments, i.e. Central Counsel for Research in
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(2023) 16 SCC 462, of which, Paragraph no. 48 to 63 and 76 to 78 are
reproduced as under :
“48. Before we close this matter, we would like to observe
something important in the aforesaid context:
“Two cardinal principles of law governing exercise of
extraordinary jurisdiction under Article 226 of the Constitution
more particularly when it comes to issue of writ of certiorari.”
49. The first cardinal principle of law that governs the exercise of
extraordinary jurisdiction under Article 226 of the Constitution, more
particularly when it comes to the issue of a writ of certiorari is that in
granting such a writ, the High Court does not exercise the powers of
Appellate Tribunal. It does not review or reweigh the evidence upon
which the determination of the inferior tribunal purports to be based. It
demolishes the order which it considers to be without jurisdiction or
palpably erroneous but does not substitute its own views for those of the
inferior tribunal. The writ of certiorari can be issued if an error of law is
apparent on the face of the record. A writ of certiorari, being a high
prerogative writ, should not be issued on mere asking.
50. The second cardinal principle of exercise of extraordinary
jurisdiction under Article 226 of the Constitution is that in a given case,
even if some action or order challenged in the writ petition is found to
be illegal and invalid, the High Court while exercising its extraordinary
jurisdiction thereunder can refuse to upset it with a view to doing
substantial justice between the parties. Article 226 of the Constitution
grants an extraordinary remedy, which is essentially discretionary,
although founded on legal injury. It is perfectly open for the writ court,
exercising this flexible power to pass such orders as public interest
dictates & equity projects. The legal formulations cannot be enforced
divorced from the realities of the fact situation of the case. While
administering law, it is to be tempered with equity and if the equitable
situation demands after setting right the legal formulations, not to take it
to the logical end, the High Court would be failing in its duty if it does
not notice equitable consideration and mould the final order in exercise
of its extraordinary jurisdiction. Any other approach would render the
High Court a normal court of appeal which it is not.
51. The essential features of a writ of certiorari, including a brief
history, have been very exhaustively explained by B.K. Mukherjea, J. in
T.C. Basappa v. T. Nagappa and Another, reported in AIR 1954 SC 440.
The Court held that a writ in the nature of certiorari could be issued in
‘all appropriate cases and in appropriate manner’ so long as the broad
and fundamental principles were kept in mind. Those principles were
delineated as follows:
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“7. … In granting a writ of ‘certiorari’, the superior court
does not exercise the powers of an appellate tribunal. It does not
review or reweigh the evidence upon which the determination of
the inferior tribunal purports to be based. It demolishes the order
which it considers to be without jurisdiction or palpably
erroneous, but does not substitute its own views for those of the
inferior tribunal …..
8. The supervision of the superior court exercised through
writs of certiorari goes on two points, as has been expressed by
Lord Summer in King v. Nat Bell Liquors Limited [(1922) 2 AC
128, 156]. One is the area of inferior jurisdiction and the
qualifications and conditions of its exercise; the other is the
observance of law in the course of its exercise. ….
9. Certiorari may lie and is generally granted when a court
has acted without or in excess of its jurisdiction.”
52. Relying on T.C. Basappa (supra), the Constitution Bench of
this Court in the case of Hari Vishnu Kamath (supra), laid down the
following propositions as well established:
“24…..24.1. Certiorari will be issued for correcting errors
of jurisdiction, as when an inferior court or tribunal acts without
jurisdiction or in excess of it, or fails to exercise it.
24.2. Certiorari will also be issued when the court or
tribunal acts illegally in the exercise of its undoubted
jurisdiction, as when it decides without giving an opportunity to
the parties to be heard, or violates the principles of natural
justice. (3) The court issuing a writ of certiorari acts in exercise
of a supervisory and not appellate jurisdiction. One consequence
of this is that the court will not review findings of fact reached
by the inferior court or tribunal, even if they be erroneous.”
53. This Court explained that a court which has jurisdiction over
a subject matter has jurisdiction to decide wrong as well as right, and
when the Legislature does not choose to confer a right of appeal against
that decision, it would be defeating its purpose and policy if a superior
court were to rehear the case on the evidence and substitute its own
finding in certiorari.
54. In Syed Yakoob v. K.S. Radhakrishnan and Others, reported
in AIR 1964 SC 477, P.B. Gajendragadkar, CJ., speaking for the
Constitution Bench, placed the matter beyond any position of doubt by
holding that a writ of certiorari can be issued for correcting errors of
jurisdiction committed by inferior courts or tribunals. The observations
of this Court in para 7 are worth taking note of:
“7. The question about the limits of the jurisdiction of High
Courts in issuing a writ of certiorari under Art. 226 has been frequently
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considered by this Court and the true legal position in that behalf is no
longer in doubt. A writ of certiorari can be issued for correcting errors
of jurisdiction committed by inferior courts or tribunals: these are cases
where orders are passed by inferior courts or tribunals without
jurisdiction, or is in excess of it, or as a result of failure to exercise
jurisdiction. A writ can similarly be issued where in exercise of
jurisdiction conferred on it, the Court or Tribunal acts illegally or
improperly, as for instance, it decides a question without giving an
opportunity to be heard to the party affected by the order, or where the
procedure adopted in dealing with the dispute is opposed to principles
of natural justice. There is, however, no doubt that the jurisdiction to
issue a writ of certiorari is a supervisory jurisdiction and the Court
exercising it is not entitled to act as an appellate Court. This limitation
necessarily means that findings of fact reached by the inferior Court or
Tribunal as result of the appreciation of evidence cannot be reopened or
questioned in writ proceedings. An error of law which is apparent on the
face of the record can be corrected by a writ, but not an error of fact,
however grave it may appear to be. In regard to a finding of fact
recorded by the Tribunal, a writ of certiorari can be issued if it is shown
that in recording the said finding, the Tribunal had erroneously refused
to admit admissible and material evidence, or had erroneously admitted
inadmissible evidence which has influenced the impugned finding.
Similarly, if a finding of fact is based on no evidence, that would be
regarded as an error of law which can be corrected by a writ of
certiorari. In dealing with this category of cases, however, we must
always bear in mind that a finding of fact recorded by the Tribunal
cannot be challenged in proceedings for a writ of certiorari on the
ground that the relevant and material evidence adduced before the
Tribunal was insufficient or inadequate to sustain the impugned finding.
The adequacy or sufficiency of evidence led on a point and the
inference of fact to be drawn from the said finding are within the
exclusive jurisdiction of the Tribunal, and the said points cannot be
agitated before a writ Court. It is within these limits that the jurisdiction
conferred on the High Courts under Art. 226 to issue a writ of certiorari
can be legitimately exercised…..”
55. . In Surya Dev Rai v. Ram Chandra Rai and Others, reported
in 2003 (6) SCC 675, a Bench of two Judges held that the certiorari
jurisdiction though available, should not be exercised as a matter of
course. The High Court would be justified in refusing the writ of
certiorari if no failure of justice had been occasioned. In exercising the
certiorari jurisdiction, the procedure ordinarily followed by the High
Court is to command the inferior court or tribunal to certify its record or
proceedings to the High Court for its inspection so as to enable the High
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Court to determine, whether on the face of the record the inferior court
has committed any of the errors as explained by this Court in Hari
Vishnu Kamath v. Ahmad Ishaque and Others, AIR 1955 SC 233
occasioning failure of justice.
56. From the aforesaid, it could be said in terms of a
jurisdictional error that want of jurisdiction may arise from the nature of
the subject matter so that the inferior court or tribunal might not have
the authority to enter on the inquiry. It may also arise from the absence
of some essential preliminary or jurisdictional fact. Where the
jurisdiction of a body depends upon a preliminary finding of fact in a
proceeding for a writ of certiorari, the court may determine, whether or
not that finding of fact is correct. The reason is that by wrongly
deciding such a fact, the court or tribunal cannot give itself jurisdiction.
57. . In Anisminic Ltd. v. Foreign Compensation Commission
and Another, reported in (1969) 2 AC 147, the House of Lords has given
a very broad connotation to the concept of ‘jurisdictional error’. It has
been laid down that a tribunal exceeds jurisdiction not only at the
threshold when it enters into an inquiry which it is not entitled to
undertake, but it may enter into an enquiry within its jurisdiction in the
first instance and then do something which would deprive it of its
jurisdiction and render its decision a nullity. In the words of Lord Reid:
“But there are many cases where, although the tribunal had
jurisdiction to enter on the enquiry, it has done or failed to do something
in the course of the enquiry which is of such a nature that its decision is
a nullity. It may have given its decision in bad faith. It may have made a
decision which it had no power to make. It may have failed in the
course of the enquiry to comply with the requirements of natural justice.
It may in perfect good faith have misconstrued the provisions giving it
power to act so that it failed to deal with the question remitted to it and
decided some question which was not remitted to it. It may have refused
to take into account something which it was required to take into
account. Or it may have based its decision on some matter which, under
the provisions setting it up, it had no right to take into account. I do not
intend this list to be exhaustive.”
58. So far as the errors of law are concerned, a writ of certiorari
could be issued if an error of law is apparent on the face of the record.
To attract the writ of certiorari, a mere error of law is not sufficient. It
must be one which is manifest or patent on the face of the record. Mere
formal or technical errors, even of law, are not sufficient, so as to attract
a writ of certiorari. As reminded by this Court time and again, this
concept is indefinite and cannot be defined precisely or exhaustively
and so it has to be determined judiciously on the facts of each case. The
concept, according to this Court in K.M. Shanmugam v. The S.R.V.S.
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(P) Ltd. and Others, reported in AIR 1963 SC 1626, ‘is comprised of
many imponderables… it is not capable of precise definition, as no
objective criterion could be laid down, the apparent nature of the error,
to a large extent, being dependent upon the subjective element.’ A
general test to apply, however, is that no error could be said to be
apparent on the face of the record if it is not ‘self-evident’ or
‘manifest’. If it requires an examination or argument to establish it, if it
has to be established by a long drawn out process of reasoning, or
lengthy or complicated arguments, on points where there may
considerably be two opinions, then such an error would cease to be an
error of law. (See : Satyanarayan Laxminarayan Hegde and Others v.
Mallikarjun Bhavanappa Tirumale, reported in AIR 1960 SC 137.)
59. However, in our opinion, such a test should not be applied in
a straitjacket formula and may fail because what might be considered by
one Judge as an error self-evident, might not be considered so by
another Judge.
60. At this stage, it may not be out of place to remind ourselves
of the observations of this Court in Syed Yakoob (supra) on this point,
which are as follows:
“Where it is manifest or clear that the conclusion of law recorded
by an inferior court or tribunal is based on an obvious misinterpretation
of the relevant statutory provision, or something in ignorance of it, or
may be even in disregard of it, or is expressly founded on reasons which
are wrong in law, the said conclusion can be corrected by a writ of
certiorari. Certiorari would also not lie to correct mere errors of fact
even though such errors may be apparent on the face of the record. The
writ jurisdiction is supervisory and the court exercising it is not to act as
an appellate court. It is well settled that the writ court would not re-
appreciate the evidence and substitute its own conclusion of fact for that
recorded by the adjudicating body, be it a court or a tribunal. A finding
of fact, howsoever erroneous, recorded by a court or a tribunal cannot
be challenged in proceedings for certiorari on the ground that the
relevant and material evidence adduced before the court or the tribunal
was insufficient or inadequate to sustain the impugned finding. It is
also well settled that adequacy or sufficiency of evidence led on a point
and the inference of fact to be drawn from the said finding are within
the exclusive jurisdiction of the tribunal and these points cannot be
agitated before the writ court.”
61. In the aforesaid context, it will be profitable for us to refer to
the decision of this Court in the case of Indian Overseas Bank v. I.O.B.
Staff Canteen Workers’ Union and Another, reported in AIR 2000 SC
1508. This Court observed as under:
“… The findings of fact recorded by a fact-finding authority duly
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constituted for the purpose and which ordinarily should be considered to
have become final, cannot be disturbed for the mere reason of having
been based on materials or evidence not sufficient or credible in the
opinion of the writ Court to warrant those findings at any rate, as long
as they are based upon such materials which are relevant for the purpose
or even on the ground that there is yet another view which can be
reasonably and possibly undertaken. …”
62. However, we may clarify that findings of fact based on ‘no
evidence’ or purely on surmises and conjectures or which are perverse
points could be challenged by way of a certiorari as such findings could
be regarded as an error of law.
63. Thus, from the various decisions referred to above, we have
no hesitation in reaching to the conclusion that a writ of certiorari is a
high prerogative writ and should not be issued on mere asking. For the
issue of a writ of certiorari, the party concerned has to make out a
definite case for the same and is not a matter of course. To put it pithily,
certiorari shall issue to correct errors of jurisdiction, that is to say,
absence, excess or failure to exercise and also when in the exercise of
undoubted jurisdiction, there has been illegality. It shall also issue to
correct an error in the decision or determination itself, if it is an error
manifest on the face of the proceedings. By its exercise, only a patent
error can be corrected but not also a wrong decision. It should be well
remembered at the cost of repetition that certiorari is not appellate but
only supervisory.
64. A writ of certiorari, being a high prerogative writ, is issued by
a superior court in respect of the exercise of judicial or quasi-judicial
functions by another authority when the contention is that the exercising
authority had no jurisdiction or exceeded the jurisdiction. It cannot be
denied that the tribunals or the authorities concerned in this batch of
appeals had the jurisdiction to deal with the matter. However, the
argument would be that the tribunals had acted arbitrarily and illegally
and that they had failed to give proper findings on the facts and
circumstances of the case. We may only say that while adjudicating a
writ-application for a writ of certiorari, the court is not sitting as a court
of appeal against the order of the tribunals to test the legality thereof
with a view to reach a different conclusion. If there is any evidence, the
court will not examine whether the right conclusion is drawn from it or
not. It is a well-established principle of law that a writ of certiorari will
not lie where the order or decision of a tribunal or authority is wrong in
matter of facts or on merits. (See: King v. Nat Bell Liquors Ltd., (1922)
2 AC 128 (PC)) ”
27. Whereby the Hon’ble Supreme Court has discussed the earlier
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law laid down and has come to the conclusion that writ of certiorari
is required to be considered in given case, however, there cannot a
straitjacket formula, but considering the ratio of the above judgment,
the present case does not warrant any interference under Article 226
of the Constitution of India by issueing writ of certiorari. One more
recent judgment of Hon’ble Supreme Court delivered in Civil Appeal
no. 13801/2025 [ Shri Digant Vs. M/s. P.D.T. Trading C. and
others,] of which paragraph nos. 22 and 23 are relevant, which
indicates about the restrictions of the interference under Article 226
of the Constitution of India for the consideration of writ of certiorari
22. The scope of High Court’s jurisdiction under Articles
226/227 fell for consideration before a three-Judge Bench of this Court
in Radhey Shyam & another v. Chhabi Nath & Ors.1 This Court held
that judicial orders of civil courts are not amenable to a writ of certiorari
under Article 226, though they may be questioned in the supervisory
jurisdiction of the High Court under Article 227 of the Constitution. The
power under Article 227 is intended to be used sparingly and only in
appropriate cases for the purpose of keeping the subordinate courts and
tribunals within the bounds of their authority and not for correcting
mere errors. The power may be exercised in cases occasioning grave
injustice or failure of justice such as when (i) the court or tribunal has
assumed a jurisdiction which it does not have, (ii) has failed to exercise
a jurisdiction which it does have, such failure occasioning a failure of
justice, and (iii) the jurisdiction though available is being exercised in a
manner which tantamounts to overstepping the limits of jurisdiction.
23. In the case on hand, the appellate court had considered in
detail the issue as to whether the trial court was justified in proceeding
with the case, without further notice to the defendants, after submission
of pursis (Exh.42) by defendants’ counsel, claiming no instructions.
After a threadbare analysis and taking into consideration the
surrounding circumstances, the appellate court held that the trial court
committed no wrong in proceeding with the matter. The appellate court
noticed that the advocate representing the defendants had claimed no
instructions but not sought withdrawal of his Vakalatnama and the
matter thereafter remained pending for over three months till it was
decided in March 2015. In between no effort was made by the
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defendants to engage another lawyer. Moreover, the defendants did not
come up with a case that their lawyer’s notice was not served on them
therefore, they could not engage another counsel. Besides that, the
record also indicated that the intention of the defendants was to delay
the proceedings because earlier also the suit had proceeded ex parte
against them though, later, those orders were recalled. Therefore, in our
view, once the appellate court took into consideration all relevant
aspects including the fact that pursis (Exh.42) did not seek withdrawal
of the Vakalatnama, and withdrawal was not even permitted, there was
no such jurisdictional error which warranted exercise of powers under
Article 227 of the Constitution of India. The High Court without any
justification went on to consider the procedure prescribed for
withdrawal of Vakalatnama when neither withdrawal of Vakalatnama
was permitted by the Trial Court nor the pursis prayed for its
withdrawal. In such circumstances, the entire exercise of the High Court
was misconceived. More so, when the view taken by the appellate court
that defendant cannot take advantage of his own wrong was a plausible
view based on materials available on record. Hence, in our view,
appellate court’s order was not amenable to interference in exercise of
jurisdiction under Articles 226/227 of the Constitution of India. The
High Court clearly exceeded its jurisdiction under Article 227 of the
Constitution in interfering with a well reasoned order of the appellate
court.
28. In the present case, on this count as well as on merit also, I am
of the opinion that no reason is made out to interfere by issuing writ
of certiorari by exercising my powers under Article 226 of the
Constitution of India.
29. Considering the settled position of law and also the facts of the
present case, I found no valid reason for interfering with the order
passed by the concerned Authority of the M.P. State Government.
therefore, no case is made out to exercise my jurisdiction
contemplated under Article 226 of the Constitution of India, as the
order passed by the concerned respondent / Authority is found in
accordance with law and after appreciating all the relevant facts of
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the present case in appropriate manner and there is no perversity or
arbitrariness found in the saido order.
30. With the aforesaid observations, present petition is dismissed.
31. Let the necessary procedure may be followed. As the matter is
pending since the year 2013 and the petitioner is more than 81 years
old lady, while dismissing the present petition of the petitioner, it is
appropriate to direct the petitioner / IDA to do the needful to release
the land in question from the Town Planning Scheme as early as
possible and implement the order accordingly, preferably within a
period of four weeks from today.
C.C as per rules.
(SANDEEP N. BHATT)
JUDGEamol
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