Niranjan Kumar vs The State Of Madhya Pradesh
- Court
- Madhya Pradesh High Court
NEUTRAL CITATION NO. 2026:MPHC-IND:30224
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANDEEP N. BHATT
WRIT PETITION No. 24156 of 2022
CNR No.: MPHC020299132022
SHAMBHUDAYAL AGRAWAL (DECEASED) THROUGH LR 1.
KAILASHCHAND AGRAWAL AND ANR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
WITH
WRIT PETITION No. 24159 of 2022
CNR No.: MPHC020299162022
NIRANJAN KUMAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
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Appearance:
Shri Naman Jain - Advocate for the petitioner.
Shri Kushagra Singh - Govt. Advocate for the respondent/State.
Shri Ambar Pare - Advocate for the respondent .
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Reserved on : 15/10/2026
Delivered on : 2810//2026
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Whether approved for reporting ? Yes
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ORDER
1/ This order will govern the disposal of W.P. Nos. 24156 of
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2022 and 24159 of 2022 as it is jointly submitted by counsel for the
parties that both the writ petitions involve the same issue on the
identical facts situation. For the sake of convenience, the facts are
noted from W.P. no. 24156 of 2022
2/ Present petitions have been filed under Article 226 of the
Constitution of India seeking following reliefs :
W.P. no. 24156 of 2022
i) That this petition be allowed with costs and an appropriate writ,
order, direction be issued for directions to respondents to declare the
acquisition proceedings pertaining to Survey no 25/2/7 and 25/2/5
Village Kumedi, Tehsil Sanwer. District Indore lapsed as per
provisions of the Right to Fair Compensation "and Transparency and
Acquisition, Rehabilitation and Resettlement Act, 2013 further prayed
for any direction which this Hon’ble Coun dear thin the facts and
circumstances of the case which is in favor of the petitioners.
W.P. no. 24159 of 2022
i) That this petition be allowed with costs and an appropriate writ,
order, direction be issued for direction to the respondents to declare
the acquisition proceedings pertaining to Survey no 25/2/6 Village
Kumedi, Tehsil Sanwer. District Indore lapsed as per provisions of the
Right to Fair Compensation and Transparency and Acquisition,
Rehabilitation and Resettlement Act, 2013 further prayed for any
direction which this Hon’ble Coun dearthin the facts and
circumstancesof the case which is in favour of the petitioners
3/ The facts of the case in brief are that the petitioners are the
ownerof the land havingits survey number as 25/2/7 admeasuring
67,500 sq. ft. And land having its survey number as 25/2/5 admeasutiig
60, 009.Sq ft. situated at village Kumedi, Tehsil Sanwer, District-
Indore. The petitioners became owners by virtue of saleGspddated
07/10/1997. The Indore Development Authority [ in short “IDA”]
framed Scheme No.139 under the M.P. Nagar Tatha Gram Nivesh
Adhiniyam, 1973 (in short"Adhiniyam of 1973") by Resolution No.78
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dated 21.05.1997, for construction of the Master Plan Road MR-10 and
allied development. Objections of landowners, including the
Petitioners, were invited and decided under Section 50(4) of the
Adhiniyam of 1973 on 27.09.2001 after hearing (Annexure R / 6 ) .
That decision was never challenged and has attained finality. On IDA's
requisition dated 25.09.2002, the Collector initiated acquisition under
the Land Acquisition Act, 1894 ("1894 Act"). Notification under
Section 4(1) read with Section 17(1) (urgency) was issued on
03.10.2002 and published in the Gazette on 11.10.2002; the Section 6
declaration was issued on 29.10.2002 and published on 01.11.2002
(Award, Annexure R / 8 ). Possession of Survey No. 25/2/7 and
Survey No. 25/2/5 was taken under Section 17(1) by panchnama dated
05.06.2003 and 10.10.2005 in the presence of panchas and revenue
officials, and handed over to IDA (Annexure R/7 and R / 2 ). The
Collector passed the award on 23.11.2004 in Case No. 1-A-82/02-03
(Annexure R / 1 full award R / 8 ) The award records that the land-
holders of Survey Nos. 25/2 / 7 and 25/2/5 filed no claim before the
Collector; the land was valued as agricultural land. The IDA deposited
the entire compensation of Rs. 12,67,93,966 with the Land Acquisition
Officer on different dates in installments i.e., on 18.01.2005 and
20.01.2005, and 29.11.2008 (Annexures R/3 to R/5). In W.P. No.
3144/2013, the Petitioners sought release of land on the basis of other
land in Scheme No. 169-A. The petition was disposed of on
24.07.2013 with a direction to consider their representation in light of
Resolution No. 80 dated 29.04.2011. In compliance to the aforesaid
order of the Hon'ble High Court, the CEO, IDA considered the
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representation and rejected it by a reasoned order dated 20.10.2015 and
26.10.2015 (Annexure P/5 and P/7) Scheme No. 139 land use is the
Super Corridor/MR-10, industrial use is not permissible, and no
development permission under the Adhiniyam of 1973 had been
produced. The order dated 20.10.2015 and 26.10.2015 of 2015 was
never challenged by the petitioners. The petitioners then filed W.P.
Nos. 3293/2016, 3294/2016, 8173/2016 and 8174/2016 seeking a
declaration of lapse under Section 24(2) of the 2013 Act. These were
dismissed on 22.02.2022 (Annexure P/9), with a direction that the
petitioners furnish bank details so that the award amount be transferred
to them. Hence, the petitioners filed the present petition in the year
2022 praying that the acquisition be declared lapsed under the 2013
Act.
4/ Learned counsel for the petitioners has submitted that 1.
The present submissions do not seek to reopen the finding under
Section 24(2) of the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013. The
issue is whether the Indore Development Authority ("IDA") could
reject the Petitioner's claim under Scheme No. 139 without dealing
with its own order dated 16 August 2010, Resolution No. 80 dated 29
April 2011, and the pre-scheme official record. Learned counsel further
submitted that the petitioners' lands are Survey Nos. 25/2/7 (67,500 sq.
ft.) and 25/2/5 (60,000 sq. ft.), Village Kumedi, Tehsil Sanwer, District
Indore. The record placed before this Hon'ble Court includes the
diversion order, the Town and Country Planning Sanction, and Gram
Panchayat-approved map. These documents pre-date the acquisition
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notifications and the award dated 23 November 2004. It is further
submitted that in Chief Executive Officer, Indore Vikas Pradhikaran
v. Director, State of M.P. and others, W.P. No. 7871/2013, decided by
this Hon'ble Court, the Joint Director, T&CP sanctioned an industrial
layout on 26 September 2005 for Survey No. 36/1, Village Kumedi.
IDA declared Scheme No. 169-A only in August 2008. This Hon'ble
Court held that Section 53 protected the prior sanction, upheld
exclusion of the land, dismissed IDA's challenge, and directed IDA to
release the land within four weeks. This Hon'ble Court followed Ujjain
Development Authority v. Smt. Geeta Totla, W.P. No. 7732/2016,
where T&CP development permission dated 8 September 2006
preceded the Section 50(2) notification dated 23 January 2011. The
writ appeals were dismissed, and SLP (C) Diary No. 29393/2019 was
dismissed on 6 September 2019 It is further submitted that the order
dated 16 August 2010 identifies the Petitioners as objector Nos. 59 and
60 and identifies Survey Nos. 25/2/7 and 25/2/5. While deciding
objections under Section 50(4), IDA recorded planning approval,
diversion, Gram Panchayat map approval, and construction before
Scheme No. 169-A, and kept the land outside that scheme. This is not a
claim to repeat an illegality. It is reliance on IDA's own statutory
treatment of the same land and permissions. A different result under
Scheme No. 139 requires a clear, record-based distinction. It also
submitted that the Petitioner rely on the complete official record and
IDA's later finding that planning approval, diversion, local approval,
and prior construction existed. IDA should therefore call for and
examine the original files. In Indore Vikas Pradhikaran v. Pure
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Industrial Coke & Chemicals Ltd., (2007) 8 SCC 705 (41, 43, 46, 47,
48, 53, 54, 57, 60, 75 and 77), the Supreme Court explained the
statutory scheme and the relevance of development authorised before a
scheme declaration under Section 53. Article 14 does not permit IDA
to apply lawful release criteria selectively. In Hari Ram v. State of
Haryana, (2010) 3 SCC 621 (para 41-43), the Supreme Court held that
similarly situated landowners cannot be treated differently in the matter
of release without a rational basis. E.P. Royappa v. State of Tamil
Nadu, (1974) 4 SCC 3 (para 85), confirms that arbitrariness is
inconsistent with equality. IDA may retain land genuinely needed for a
road or public utility, but it must identify that need and explain the
distinction. It is further submitted that the orders dated 22 February
2022 decided the separate claim of statutory lapse under Section 24(2)
of the 2013 Act. They did not decide the present Article 14 challenge
based on IDA's 2010 order and Resolution No. 80. The Respondents
have identified no finding on that issue. The judgment delivered by the
Hon'ble Supreme Court in the case of Hope Plantations Ltd. v. Taluk
Land Board, (1999) 5 SCC 590 (para 31-32), explains that res judicata
applies to a matter directly and substantially in issue and finally
decided; it does not convert every earlier proceeding between the
parties into a bar on a distinct issue. In view of the above facts and
circumstances, it is prayed to quash the rejection of the petitioners'
claim and direct the IDA to release of Survey no.25/2/7 and 25/2/5
from Scheme no. 139.
5/ Per-contra, learned counsel for the respondent / IDA, duly
assisted by learned counsel for the respondents / State, has opposed
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the petitions by submitting that No lapse under Section 24(2):
possession was taken and compensation deposited. Lapse requires both
failure to take possession and failure to pay compensation for five
years before 01.01.2014. Here possession was taken by panchnama on
05.06.2003 and on 10.10.2005 and the full award amount was
deposited by 29.11.2008. Either fact alone defeats lapse. The
petitioners also never filed a claim before the Collector and were
directed on 22.02.2022 to collect the amount; they cannot rely on their
own non-collection. Learned counsel further submitted that there is no
discrimination as the Scheme No. 169-A is not comparable. Scheme
No. 169-A and Scheme No. 139 are different schemes at different
locations with different planning purposes; Scheme 139 land use is the
MR-10 Super Corridor, where industrial use is not permitted. It is
further contended that the 169-A land was released because the owners
held a development permission from the Joint Director, Town and
Country Planning under Section 30 of the Adhiniyam of 1973 plus
building permission. For Scheme 139, no Section 30 permission was
produced before IDA in 2001, before the CEO in 2015, or in this
petition. In Scheme no. 169-A, the release was a planning decision
before acquisition. In Scheme 139 possession had already vested in
2003 in the provisions of Land Acquisition Act, 1894, so release is
legally not permissible. It is further contended that the diversion under
the M.P. Land Revenue Code is not development permission.
Diversion under Section 172 of the MPLRC only changes land usage
for the purpose of revenue assessment. Development within planning
area needs permission under Section 30 of the Adhiniyam of 1973. The
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T&CP letter of 04.03.1998 (P/12) itself states that separate permission
under Section 30 of the Adhiniyam of 1973 must be obtained. The
Gram Panchayat maps (P/13) are undated and from a body that is not
the planning authority. Moreover, the award valued the land as
agricultural, and the petitioners filed no claim to the contrary. As per
pleading in para 5.3 of the Petition the diversion in the year 2004 in of
Petrol Pump which contrary to the NOC obtained by the office of
TNCP i.e. godown. It is further contended that the additional
documents (I.A. Nos. 10210/2026, 10584/2026) do not help. They are
illegible with no typed copies, relate to 1998 permissions already
considered and rejected in 2015, and go only to the "discrimination
plea, not to the only relief prayed (lapse under the 2013 Act) . They
neither show section 30 of the Adhiniyam of 1973. permission, nor
does possession and payment. It is further contended that the land
swere acquired under the Central Act i.e. The Land Acquisition Act,
1894. The petitioners have not filed any photographs of the alleged
godown, which the petitioners claim to be on the subject land, rather
the answering respondent submits that the land is vacant as per the
present photographs of the subject land (Photographs Attached
Annexure -A). Under the above facts and circumstances, it is prayed
that the present petitions be dismissed as barred by res-judicata , delay
and laches, and as devoid of merit and hold that the acquisition of
Survey Nos. 25/2/7 and 25/2/5, Village Kumedi stands completed and
vested in the State, and that no lapse arises under Section 24(2) of the
2013 Act.
6/ I have considered the rival submissions made at the bar. I
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have also considered the basic contention raised by counsel for the
respondent/ IDA by way of preliminary objections that present
petitions are barred by res-judicata as in the year 2022, vide order
dated 22.02.2022, W.P. Nos. 3293, 3294, 8173 and 8174 of 2016 were
dismissed as there also, the prayers pertains to declaration of lapse as
per the provision of the 2013 Act and therefore, it is contended that it is
barred by constructive res-judicata. Considering the same as
preliminary objection, counsel for the respondent / IDA has relied upon
the judgment delivered in the case of Radhey Shyam Sodani v. State
of Rajasthan, (2004) 13 SCC 757. Relevant paras nos. 3 to 5, are
reproduced as under :
“3. It appears that a cooperative housing society was formed but its
land was acquired by the State Government under the provisions of the
Rajasthan Urban Improvement Act, 1959 (for short "the Act"). The
acquisition was challenged by the Society and ultimately the proceedings
culminated in this Court. This Court upheld the acquisition by the judgment
and order dated 30-3-1993 in Gandhi Grah Nirman Sahkari Samiti Ltd. v.
State of Rajasthan¹. One of the prayers made in that abovesaid Writ Petition
No. 7226 of 1993 was as follows:
"It is prayed this writ petition may kindly be accepted and
by a proper writ, order or direction the purported auction as covered
by Annexures 2, 3 and 4 may kindly be declared to be illegal and
therefore be quashed and set aside and Respondents 1 and 2 may
kindly be directed by a proper writ, order or direction not to auction
this plot of land and/or any other part of the land so belonging to
Respondent 3 and/or change the shape of land and development by
making any sort of improvement and to allow suitable plots on this
very land to the members of the Society."
4. Another writ petition (Writ Petition No. 3006 of 1994) was filed by
the petitioner in the Rajasthan High Court. One of the prayers in the
subsequent writ petition is as follows:
"(a) Petitioner may kindly be allotted a plot of land in Ram
Bagh or Raj Mahal Palace areas measuring minimum 500 sq yards
within the scheme framed by the respondents at such price which may
be deemed b reasonable by JDA as mandated by Section 60 of the
Urban Improvement Act and further upheld by the Apex Court in the
authorities cited above."
5. Learned counsel for the appellant has vehemently urged that the
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appellant is entitled to allotment of land by virtue of proviso (2) to Section 60
of the Act. We, however, find that such a request already stands rejected in
the earlier writ petition. The petitioner is a member of the Society. In our
view, both questions, namely, pertaining to the acquisition of the land and the
other about allotment of the land to the members of the Society, stand
decided in the earlier writ petition. Such a prayer cannot be entertained
which is obviously barred by the principle of constructive res judicata. We,
therefore, find no merit in the appeal and it is liable to be dismissed.
7/ It is also contended that Section 24(2) of the 2013 Act
gives no fresh cause of action to reopen a concluded acquisition.
Learned counsel has relied upon the judgment delivered by The
Constitution Bench in support of his contention that submitted that the
time-barred claims and concluded proceedings cannot be reopened. He
has further submitted thate there is gross delay and latches in
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approaching this Hon'ble Court as the order passed by C.E.O. on 20
October, 2015. The award is passed on 23/11/2004 and the possession
as per the contention by the respondent, is taken on 05/06/2003 and
10/10/2005 and therefore, he has submitted that the petition is
challenged after delay of seven years, which is not maintainable.
Lastly, he has submitted that the finality of the Scheme and C.E.O.
order under section 50 (4) of the Adhiniyam, 1973, the decision dated
27/09/2001 and the C.E.O's order of 2015 were never assailed. He has
further submitted that by way of oral argument, it can not be agitated in
absence of specific prayer in the petition. In reference to this
contention, it is relevant to note that though it is correct that earlier,
petition was filed essentially by claiming lapse of acquisition under the
land acquisition proceeding in view of section 24(2) of the 2013 Act,
which was rejected , even present petition is also having prayer to this
effect, but also some other prayers regarding discrimination in giving
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treatment. For considering this aspect, it is relevant to note that the
th
IDA on 16 of August. 2010, decided the objections under section 50
(4) for Scheme no. 169-A of the very petitioner and the concerned
land kept outside that Scheme after recording prior permission and
development and therefore, though in para no. 5.21 of the petition,
which is agitated by the petitioner and also the ground nos. (d) and (e) ,
which seems that different than the earlier petition. It is well settled
law that under Article 226 of the Constitution of India, the Hon'ble
High Court can consider the subject matter in appropriate manner, if it
is prima-facie brought to the notice to the Court that by way of
impugned action or inaction of the Authority, great prejudice is caused
to the rights, more particularly, statutory as well as constitutional rights
of the concerned petitioner and also such action or inaction amounts to
colourable exercise of power or by giving differential treatment to the
similarly situated person or similar situateed facts and circumstances of
the two different cases, then such action can be considered arbitrary,
capricious and also violative of principle of natural justice and also
provisions of the Constitution of India and therefore, I found that all
the preliminary objections sought to be raised are sound good, but
ultimately, it cannot be helpful to the present respondent/s, even Article
14 of the Constitution of India provides as under :
“ 14. Equality before law
The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India.”
8/ Considering the judgment of Hon'ble Supreme Court
delivered in the case of Hope Plantations Ltd. v. Taluk Land Board,
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(1999) 5 SCC 590 Relevant para 31-32 reads as under :
31. Law on res judicata and estoppel is well understood in
India and there are ample authoritative pronouncements by various
courts on these subjects. As noted above, the plea of res judicata,
though technical, is based on public policy in order to put an end to
litigation. It is, however, different if an issue which had been decided
in an earlier litigation again arises for determination between the
same parties in a suit based on a fresh cause of action or where there
is continuous cause of action. The parties then may not be bound by
the determination made earlier if in the meanwhile, law has changed
or has been interpreted differently by a higher forum. But that
situation does not exist here. Principles of constructive res judicata
apply with full force. It is the subsequent stage of the same
proceedings. If we refer to Order XLVII of the Code (Explanation to
Rule 1) review is not permissible on the ground
“that the decision on a question of law on which the judgment
of the Court is based has been reversed or modified by the
subsequent decision of a superior court in any other case, shall
not be a ground for the review of such judgment”.
32. Since the appellant never claimed exemption outside the
ceiling area on the ground of cardamom plantation, the question was
never gone into in the earlier proceedings of this Court. This point,
therefore, could not be agitated before the Taluk Land Board dealing
with the matter on remand as finality attached to the areas under the
fuel area and rested tea area for which exemption was not or ( sic )
fully granted. It is, therefore, unnecessary for us to go into the
question if a cardamom plantation existed at the relevant time. We,
therefore, uphold the judgment of the High Court on the extent of
“fuel area” and “rested tea area” as determined finally by this Court
in CA No. 227 of 1978 and would dismiss the appeal limited to this
extent.
9/ The above mentioned judgment clearly explains that res
judicata applies to a matter directly and substantially in issue and
finally decided; it does not convert every earlier proceeding between
the parties into a bar on a distinct issue, therfore, that contention is
required to be negative, which is also having some bearing on merits of
the matter. Therefore, now the matter is required to be considered on
merit by considering the contentions of the parties. It clearly transpires
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that in 1997-98, the Gram Panchayat sanction, Town and Country
Planning sanction, Diversion permission, construction record of
concerning godown is available. It also transpires that there is
subsequently notification under sections 4 and 6 of the Land
Acquisition Act, 1894, for Scheme No. 139 is published in October,
2002 as well as October, 2003. It also transpires from the record that in
the year 2004, the land acquisition award was passed by the concerned
officer. Thereafter, it seems that there are certtain proceedings initiated
as the IDA is constituted and it transpires that the petitioner who is
owning the adjoining land in the Scheme no. 169-A, whereby the IDA
has passed the order to release the land in view of the fact that prior
permissions are obtained and also development permissions are also
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issued and that order was passed on 16 of August, 2010. It is also very
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important to note that on 29 April, 2011, the IDA passed the
Resolution No. 80, which required consideration of the existing
industrial/commercial units in Scheme No. 139 on the Scheme No.
th
169-A approach. It seems that on 24 July 2013, this Hon'ble High
Court directed the IDA to decide the Scheme No. 139 godown claim in
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view of Resolution No. 80. It also transpires from the record that on 7
Oct. 2015, the IDA rejected the representation through Resolution No.
151 and the consequential communication. Thereafter, it also transpires
as recorded above that earlier Writ Petition was disposed of which is
sought to be challenged on the ground of lapse of acquisition under
section 24(2) of the 2013 Act and in October, 2022, present petitoin is
filed, therefore, considering the factual aspect of the present matter, in
view of the above mentioned background, it is relevant to note that the
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petitioners' lands are Survey no.25/2/7 and 25/2/5, Village – Kumedi,
Tehsil – Sanver, District – Indore, whereby all the necesasry
permissions as indicated above are obtained, which is prior to the
rd
notification or acquisition i.e. date of award is 23 November, 2004
and thereafter, it transpires that as discussed above, the IDA has
considered objections qua the Scheme no. 169-A, which is adjouning
to Scheme no. 139 and not for Scheme in present petition. It also
transpires that essentially the challenge in the present petition seems
that from pleading of the parties as well as from the oral arguments
advanced before this Court as also in view of the written submissions
filed by the respective parties pertain to the petitioners' claim under the
Scheme no. 139, which was rejected by the IDA without dealing with
th th
its own order dated 16 August. 2010, Resolution no. 80 dated 29
April, 2011 and also the pre-scheme official record. It also transpires
th
that by order dated 16 August, 2010, identifies the petitioners as
objector nos. 59 and 60, identifies Survey no. 25/2/7 and 25/2/7 while
deciding the objections under section 50(4), the IDA recorded planing
approval, diversion, Gram-Panchayat map approval and construction
before Scheme no. 169-A and kept the land outside that scheme. It also
transpires that it is the case of the petitioners based on the contention
that the IDA has given different treatment for the same land and
permission to the petitioners for the land in question, though the land is
also similar and permissions are also same. Though the representation
is rejected in the year 2015, that result is requiired clear and record-
based distinction regarding the Scheme 139, why such differennt
treatment is required to be given, though the same material is
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consdiered for the Scheme no. 169-A. It also transpires that the IDA in
its order clearly finds that the planning is approved, diversion is also on
record, local approvals are also recorded in the order and prior
construction exiting on the land is also recorded, therefore, the IDA,
having any doubt, then at that point of time, it should have called the
original files from the record of the concerned Authority and therefore,
in view of section 53 of the Adhiniyam 1973 and considering the
judgment delivered by the Hon'ble Supreme Court in the case of
Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd.,
(2007) 8 SCC 705 (41, 43, 46, 47, 48, 53, 54, 57, 60, 75 and 77), the
Supreme Court explained the statutory scheme and the relevance of
development authorised before a scheme declaration under Section 53.
Also the matter is required to be considered by considering the Article
14 of the Constitution of India, it does not permit IDA to apply lawful
release criteria selectively. In Hari Ram v. State of Haryana, (2010) 3
SCC 621 (para 41-43), the Supreme Court held that similarly situated
landowners cannot be treated differently in the matter of release
without a rational basis. The judgment delivered in the case of E.P.
Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 (para 85), confirms
that arbitrariness is inconsistent with equality. The IDA may retain land
genuinely needed for a road or public utility, but it must identify that
need and explain the distinction. Therefore, I found that prima-facie on
facts of the case, though it is resisted that contention raised by the
respondent / Authority is more particularly on the basis of objections
regarding lapse of the Land Acquisition Act, even this Court is of the
opinion that this matter cannot be considered by considering the
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NIVRUTTIRAO MAHANAG
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provision of section 24(2), which is already decided on earlier
occasion, but it is required to be considered by keeping in mind section
53 of the Adhiniyam, 1973. For this purpose, the contentions is raised
that there is development permission is already granted by the Joint
Director, TNCP under section 30 of the Adhiniyam, 1973 and plus
building permission and in the Scheme no. 139, no section 30
permission was produced before the IDA in the year 2001 before CEO
in 2015, even in this petition, therefore, it is contended by the
respondent/ IDA that the facts are not similar of both the cases, but this
contentions are required to be viewed from the record that it transpires
that necessary opinion is sought pursutant to the permission sought for
the development by the present petitioners from the various authorities,
which is already available on record, therefore, it cannot be said that
there is no initiation of procedure for development permission. Neither
anything is brought on record to show that such development
permissions was rejected by any Authority, though the fact that
emerging from the material available on record that the petitioners
have already applied for development permission, much prior to the cut
of date and therefore, I have no hesitation to hold that the respondent
has given differential treatment to the similarly situated persons by
taking hyper technical view of the matter, that the facts are different.
The law regarding the same for the aspect of releasing the land under
section 53 of the Adhiniyam, 1973 is discussed in detailed by this
Hon'ble High Court in Writ Petition no. 7871 of 2013 decided on
03/08/2026. For the sake of reference relevant paragraphs are
reproduced hereunder:
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“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 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.
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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 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.
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,
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
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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 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
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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 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
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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. 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)
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“ 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 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
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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
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.
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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 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
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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 Ayurvedic Sciences and another Vs. Bikartan Das and
othes reported in (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:
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“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:
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“7. The question about the limits of the jurisdiction of
High Courts in issuing a writ of certiorari under Art. 226 has
been frequently 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
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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
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
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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. (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
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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 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
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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)) “
10/ Since the pettiioners have initiated the procedure for
seeking land development and the opinion of the relevant Authorities
are also obtained, therefore, it can be certainly construed that it is
commencement of procedure for land development and therefore, the
case of the petitioners should be considered as similar to the case of
Scheme no. 169-A and merely absence of formalities will not defeat
the right of the present petitioners to get similar treatment.
11/ It is also fruitful to refer to the judgment of Hon'ble Apex
Court reported in the case of Babu Verghese & Ors vs Bar Council Of
Kerala & Ors reported in 1999(3) SCC 422. Relevant para nos. 31 and
32 are reproduced as under :
31. It is the basic principle of law long settled that if the manner
of doing a particular act is prescribed under any statute, the act
must be done in that manner or not at all. The origin of this rule
is traceable to the decision in Taylor v. Taylor [(1875) 1 Ch D
426 : 45 LJCh 373] which was followed by Lord Roche in Nazir
Ahmad v. King Emperor [(1936) 63 IA 372 : AIR 1936 PC 253]
who stated as under:
“[W]here a power is given to do a certain thing in a
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certain way, the thing must be done in that way or not at
all.”
32. This rule has since been approved by this Court in Rao Shiv
Bahadur Singh v. State of V.P. [AIR 1954 SC 322 : 1954 SCR
1098] and again in Deep Chand v. State of Rajasthan [AIR 1961
SC 1527 : (1962) 1 SCR 662] . These cases were considered by a
three-Judge Bench of this Court in State of U.P. v. Singhara
Singh [AIR 1964 SC 358 : (1964) 1 SCWR 57] and the rule laid
down in Nazir Ahmad case [(1936) 63 IA 372 : AIR 1936 PC
253] was again upheld. This rule has since been applied to the
exercise of jurisdiction by courts and has also been recognised as
a salutary principle of administrative law.
12/ It is also relevant to note the judgment delivered in the
case of Zuari Cement Limited Vs. Regional Director, Employees
State Insurance Company, Hydrabad and others reported in 2015(7)
SCC 690. Relevant para 14 is reproduced as under :
“ 14. As per the scheme of the Act, the appropriate
Government alone could grant or refuse exemption. When the
statute prescribed the procedure for grant or refusal of exemption
from the operation of the Act, it is to be done in that manner and
not in any other manner. In State of Jharkhand v. Ambay
Cements [(2005) 1 SCC 368] , it was held that : (SCC p. 378,
para 26)
“ 26. … It is the cardinal rule of interpretation that
where a statute provides that a particular thing should be
done, it should be done in the manner prescribed and not
in any other way.”
13/ In the case of Satyawati Sharma (Dead) by LRs Vs.
Union of India and others reported in 2008(3) Supreme 37, the
Hon'ble Supreme Court has observed as under :
29. It is trite to say that legislation which may be quite
reasonable and rationale at the time of its enactment may with the
lapse of time and/or due to change of circumstances become arbitrary,
unreasonable and violative of the doctrine of equity and even if the
validity of such legislation may have been upheld at a given point of
time, the Court may, in subsequent litigation, strike down the same if
it is found that the rationale of classification has become non-existent.
In State of Madhya Pradesh vs. Bhopal Sugar Industries [AIR 1964
SC 1179], this Court while dealing with a question whether
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geographical classification due to historical reasons could be sustained
for all times and observed :
“Differential treatment arising out of the application of the
laws so continued in different regions of the same reorganised,
State, did not therefore immediately attract the clause of the
Constitution prohibiting discrimination. But by the passage of
time, considerations of necessity and expediency would be
obliterated, and the grounds which justified classification of
geographical regions for historical reason may cease to be
valid. A purely temporary provision which because of
compelling forces justified differential treatment when the
Reorganisation Act was enacted cannot obviously be
permitted to assume permanency, so as to perpetuate that
treatment without a rational basis to support it after the initial
expediency and necessity have disappeared.”
38. In view of the above discussion, we hold that Section 14(1)(e) of
the 1958 Act is violative of the doctrine of equality embodied in
Article 14 of the Constitution of India insofar as it discriminates
between the premises let for residential and nonresidential purposes
when the same are required bona fide by the landlord for occupation
for himself or for any member of his family dependent on him and
restricts the latter’s right to seek eviction of the tenant from the
premises let for residential purposes only.
14/ Thus, in view of above mentioned position of law, in
present case also on facts it can be said that action of IDA is violative
of Article 14 of Constitution of India.
15/ It is also relevant to refer to judgment delivered in P.
Sriramamurthy Vs. Vasantha Raman reported in 1997 Supreme (SC)
228 . Relevant para no. 3 is reproduced as under for the sake of
reference :
“ 3. The question is : whether the appellant has committed
wilful default of payment? In the counter-affidavit filed in this
Court, it is specifically stated that lease for 11 months was
granted with an intention that after the retirement of the
respondent s husband they could come back from the United
States of America and settled down permanently in Madras the
demised premises. It is also stated in paragraph 12 of the
counter-affidavit that wife and the husband sustained injuries in
a car accident and due to the severe back pain, particularly
during winter season, they had decided to come back. In fact,
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her husband retired from service on April 15, 1995. When the
respondent s husband retired from service, they decided to
permanently come back and settle down in Madras. Thus it is
obvious that they needed their house for personal occupation. It
is true that the need for personal occupation was not pleaded. It
is settled law that for moulding the relief, subsequent events can
be taken note of. Under those circumstances, the relief of
eviction could be granted on the ground of personal occupation.
The amount of Rs. 24,000/- deposited by the appellant shall be
adjusted towards the arrears of the rent. If there is any arrears to
be paid, time is given to the appellant to pay the same. Six
months time from today is granted to the appellant to deliver the
vacant possession of the premises on filing usual undertaking
within a period of four weeks from today. The respondent is also
directed to file an affidavit within a period of six weeks from
today that after their coming back from the States, they shall
neither let out the building to the third party nor induct any party
and shall personally stay in the building and shall not leave back
for the United States of America within a period of ten years
from today. In the event of their leaving for the United States
within the said period, the tenant wouldbe at liberty to seek
possession of the premises.”
16/ Also judgment delivered in in the case of J. Ganapatha
and others Vs. M/s N. Selvarajalou Chetty Trust reported in 2025
Supreme )SC) 537. Relevant paras nos.16 and 20 are reproduced as
under :
“16. Shri Dama Seshadri Naidu, learned Senior Counsel
appearing for the first respondent, contends that the moulding of
relief in the peculiar circumstances of the case is available and
no exception in law or fact could be taken against the discretion
exercised by the learned Single Judge and the Division Bench. It
is argued that moulding of relief is available to the Court, and
Defendant Nos.3 to 6, having been confronted with the court
sale order dated 04.05.1962 and sale deed dated 25.09.1963,
cannot raise a ground against the moulding of relief. He
comments to the court to appreciate the legal character of trust
and the role of trustees and executors. In the case on hand,
Plaintiff Nos. 2 to 4 are not only Trustees to the Trust but
executors to the Will of the late Padmini Chandrasekaran. It is
argued that the failure to mould the relief would lead to the
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defeat of the bequeath made by the late Padmini Chandrasekaran
in favour of Vinayagamurthy and his children. Expecting the
beneficiaries to institute a suit would be a third suit with respect
to the same property. Defendant Nos. 3 to 6, having joined the
issue with the plaintiff on the manner of deriving title to the
Plaint Schedule, are estopped from raising an objection to the
relief in the peculiar facts of the case. He lastly contends that, in
the exercise of this Court’s jurisdiction under Article 136 of the
Constitution of India, this Court examines all aspects and would
decide whether the moulding of relief should be interfered with
or not.
20. The concept of moulding of relief refers to the ability
of a court to modify or shape a relief sought by a party in a legal
proceeding based on the circumstances of the case and the facts
established after a full-fledged trial. The principle enables the
court to grant appropriate remedies even if the relief requested in
the pleading is not exact or could not be considered by the court
or changed circumstances have rendered the relief obsolete. The
court aims that justice is served while taking into account the
evolving nature of a case. The above road map is pursued by a
court based on the notion of flexibility in relief, equitable
jurisdiction, and is tempered by judicial discretion. When
moulding the relief, the court considers the issues and
circumstances established during the full-fledged trial, looks at
shortening the litigation, and then in its perspective, renders
complete justice to the issue at hand. The converse of the above
is that the moulded relief should not take the aggrieved party by
surprise or cause prejudice. The relief is moulded as an
exception and not as a matter of course.
17/ Therefore, considering the above mentioned facts, I am of
the view that the IDA has given differential treatment to the claim of
petitioners on the basis of similar documents, for which the Authority
has considered the case relating to Scheme no. 169-A . The difference
is that the proceedings are concluded by issuance of permission under
section 30 of the Adhiniyam of 1973 and in the present case, the
process is going on, but at the time of acquisition and thereafter, at the
time of award, it is undisputed fact that the process of permission is
going on for the purpose of development, therefore, the impugned
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action is squarely considered as arbitrary, unjust, capricious and not in
accordance with law and also violative of Article 14 of the Constitution
of India as differetial treatment is given to the two sets of the
petitioners having almost identical facts by adopting hyper technical
approach and rejected claim of petitioners of both petitions without
considering available documents in appropriate manner, therefore, the
impugned action of the respondent / Authority is required to be
interfered with by considering the action as discriminatory treatment
given by the Authority and the power under Article 226 of the
Constitution of the India, let the concerned respondent / Authority may
consider the case of the petitioners for the land bearing Survey nos.
25/2/5, 25/2/6 and 25/2/7 situated at Village - Kumedi, Tehsil- Sanwer.
District-Indore of Scheme no. 139 for releasing and keeping outside
the Scheme by doing necessary formalities and if required, give
possession back to the petitioners as expeditiously as possible
preferably within six weeks from the date of receipt of certified copy
of this order.
18/ Accordingly, present petitions are allowed and disposed of.
19/ The signed order be kept in the file of W.P. Nos 24156 of
2022 and a copy thereof be kept in the file of connected petition.
CC as per rules.
(SANDEEP N. BHATT)
JUDGE
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