Writ Petition No.14096/2010 08.11.2011 In view of the detailed order passed today by this Court in Writ Petition No.14078/2010 (Smt. (Dr.) Sajni Bajaj d/o Shri Dwarkadas Bajaj Vs. Indore Development Authority and others), this writ petition is disposed of in same terms. A copy of the said order be retained in this petition also. (Shantanu Kemkar) (S.K. Seth) Judge Judge rcp 2 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE D.B.: Hon'ble Shri Shantanu Kemkar & Hon'ble Shri S.K. Seth, JJ. Writ Petition No.14078/2010 Smt. (Dr.) Sajni Bajaj d/o Shri Dwarkadas Bajaj Versus Indore Development Authority and others Writ Petition No.14075/2010 Smt. Rajni w/o Harish Shukla and others Versus Indore Development Authority and others Writ Petition No.14096/2010 Pramod s/o Kripa Shankar Dubey and others Versus Indore Development Authority & others Writ Petition No.14152/2010 Smt. Rekha w/o Mukesh Soni and another Versus Indore Development Authority and others Writ Petition No.14077/2010 3 Smt. Manjulata w/o Dinesh Kumar Garg (Agrawal) & another Versus Indore Development Authority and others Writ Petition No.14094/2010 Vinay Kumar Jain s/o Mohanlal Jain and another Versus Indore Development Authority and others * * * * * Shri G.M. Chaphekar, learned Senior Counsel with Ms. Vandana Kasrekar, learned counsel for the petitioner (Dr. Smt. Sajani Bajaj) in WP No.14078/2010. Shri A.K. Sethi, learned Senior Counsel with Shri Harish Joshi, learned counsel for the petitioners in rest of the writ petitions. Shri A.S. Kutumbale, learned Senior Counsel with Shri Sudarshan Joshi, learned counsel for respondents No.1 & 2 Indore Development Authority. None for respondent No.3 Indore Municipal Corporation. Ms. Mini Ravindran, learned Deputy Government Advocate for respondent No.4 (State). * * * * * O R D E R (Passed on this 8th day of November, 2011) Per Shantanu Kemkar, J. This order shall govern disposal of Writ 4 Petition No.14078/2010, Writ Petition No.14075/2010, Writ Petition No.14096/2010, Writ Petition No.14152/2010, Writ Petition No.14077/2010 and Writ Petition No.14094/2010. 2. The Writ Petition No.14078/2010 is at the instance of Dr. Sajni Bajaj, who was allotted a plot in Sector-B, Scheme No.71, Indore by the Indore Development Authority (for short, the IDA) and in whose favour a lease deed was executed by the IDA. Rest of the writ petitions are at the instance of owners/occupants of various shops, which were sold to them by the holder of power of attorney of the lessee of the said plot, after raising construction on it. This is the fourth round of writ petition for the lessee of the said plot and third round for the owners/occupants of the shops. 3. For the sake of convenience, the facts are taken from Writ Petition No.14078/2010. 4. Briefly stated, the writ petitioner was allotted a piece of land ad-measuring approximately 3238.96 sq. 5 meter on lease for 30 years by the IDA in aforesaid scheme framed by the IDA under Section 50 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short, the Adhiniyam). As per allotment order dated 23.06.1995 (Annexure P/3) and the lease deed dated 25.09.1996 (Annexure P/5) executed between the petitioner and the IDA, the allotment was for the use of it, for a Big Hospital with modern facilities. Apart from constructing a Hospital, a condition was imposed in the lease deed, requiring the lessee to provide in the building medical stores, PCO, Canteen and other necessary facilities for the patients and for the hospital in the building. 5. According to the IDA, the petitioner did not construct the hospital on the said piece of land and instead constructed large number of shops for commercial purposes and sold the same. Thus, as per the IDA, by changing the land use from 'Big Hospital' to 'Commercial', the petitioner had breached the condition of 6 lease. In the circumstances, the IDA passed an order dated 05.04.2005 (Annexure P/14), cancelling the allotment order dated 23.06.1995 issued and the lease deed dated 25.09.1996 executed in favour of the petitioner with direction to the petitioner to handover the vacant possession of the land to the Executive Engineer of the IDA, with a further direction to the Executive Engineer to take necessary steps for taking possession of the land from the petitioner. 6. Aggrieved by the said order dated 05.04.2005 (Annexure P/14) passed by the IDA, the petitioner filed a Writ Petition No.531/2005. The learned Single Judge held that since the IDA has passed the impugned order, without following the due procedure of law and in complete violation of the principles of natural justice, as neither the original lessee Dr. Sajni Bajaj nor other occupants were even heard in the matter before passing the impugned order of cancellation of lease, the action of the IDA is illegal. As a result, the learned Single Judge 7 vide order dated 28.11.2007 allowed the writ petition and quashed the order dated 05.04.2005 passed by the IDA. However, the learned Single Judge granted liberty to the IDA to pass a fresh order, if so desired, by issuing a show cause notice, at the first instance, to lessee Dr. Sajni Bajaj and occupants, who are in actual possession of the constructed building, indicating the reasons, on which the lease in question is proposed to be terminated/cancelled. The IDA was also directed to provide an opportunity of hearing to the representatives of the lessee/occupants. 7. In compliance to the said order dated 28.11.2007 passed by this Court in Writ Petition No.531/2005, the IDA issued a notice dated 29.05.2010 (Annexure P/16) to the petitioner and her power of attorney holder. Thereafter, the Chief Executive Officer of the IDA passed an order on 03.07.2010 (Annexure P/18), cancelling the allotment order dated 23.06.1995 and the lease deed dated 25.09.1996 executed in favour of the petitioner with direction to the petitioner and to the 8 occupants of the shops to handover the vacant possession to the IDA. The said order dated 03.07.2010 (Annexure P/18) passed by the Chief Executive Officer of the IDA was challenged by the petitioner by filing Writ Petition No.8792/2010. The learned Single Judge, noticed the fact that while disposing of the Writ Petition No.531/2005 vide order dated 28.11.2007, the IDA was directed to pass fresh order, after granting an opportunity to the petitioner but ignoring the petitioner's prayer for giving breathing time, the order dated 03.07.2010 was passed. In the circumstances, the learned Single Judge vide order dated 23.07.2010 quashed the said order dated 03.07.2010. The learned Single Judge directed the petitioner to file reply positively within fifteen days before the IDA and the IDA was directed to pass a final order. 8. Thereafter, in terms of the order dated 23.07.2010 passed in Writ Petition No.8792/2010, the petitioner submitted a reply to show cause notice issued by the IDA against the proposed cancellation of the 9 allotment and the lease deed. The Chief Executive Officer of the IDA considered the said reply and vide order dated 03.09.2010 (Annexure P/21) cancelled the lease deed and directed the petitioner to handover vacant possession of the land to the IDA. Feeling aggrieved by the said order dated 03.09.2010 passed by the Chief Executive Officer of the IDA, the petitioner, once again, approached this Court by filing Writ Petition No.11362/2010. According to the petitioner, the order dated 03.09.2010 was passed by the Chief Executive Officer of the IDA, who had no jurisdiction to pass the said order. It was the case of the petitioner that under the Adhiniyam and the Rules made thereunder, there is no provision for delegating powers of disposal of the land and building, and the said powers are vested only with the IDA. The learned Single Judge agreeing with the contention of the petitioner vide order dated 12.10.2010 allowed petitioner's Writ Petition No.11362/2010. The learned Single Judge directed to the IDA to pass a fresh 10 order considering the reply filed by the petitioner and reply filed by the persons, who have purchased the shops from the petitioner or those who are occupants. The learned Single Judge, while passing the order dated 12.10.2010, also ordered that till the IDA passes a fresh order, no commercial activities shall be carried out, in the premises, which consists of shops. However, this part of the order was set aside by a Division Bench of this Court vide order dated 17.08.2011 passed in WA No.70/2011 and it was modified by substituting it with the condition that no structural alteration will be made by the appellants in the shops for carrying on normal commercial activity therein. Similar condition, which was incorporated by the learned Single Judge in the order dated 23.07.2010 passed in WP No.8792/2010, was challenged in MCC No.18/2011, which was disposed of by the Division Bench vide order dated 17.08.2011 by stating that the observations, regarding carrying out the other activities from the premises, in the order dated 23.07.2010 will not 11 come in the way of interpreting or implementing any interim or final relief granted in any other proceedings to the applicants before us. The other writ petitions, which were filed by the occupants of the shops challenging the order dated 03.09.2010, were also decided in terms of the order dated 12.10.2010 passed in Writ Petition No.11362/2010. 9. In compliance of the order dated 12.10.2010 passed in Writ Petition No.11362/2010 and the order passed in other connected writ petitions, the IDA considered the matter and vide order dated 23.11.2010 (Annexure P/23) cancelled the allotment of the land made in favour of the petitioner. Consequently, the IDA directed the petitioner and the occupants of the shops to deliver it the vacant possession of the land and the shops. It has been held by the IDA that the land in question was allotted to the petitioner for construction of a Big Hospital and for medical stores, PCO, Canteen and for other necessary facilities for the patients and the hospital, but 12 instead of making use of the land for the said purpose, the petitioner constructed 51 shops and sold it for commercial purposes. The IDA held that the use of the land has been changed to commercial purposes by constructing the shops and selling the same for running commercial activities. The IDA rejected the petitioner's plea that the construction of shops is only on the lower and the upper ground floor and the construction of the hospital, as was proposed in the map, was to be raised but in view of the various hurdles, the same could not be constructed. The IDA also rejected the petitioner's plea that the construction, raised is as per the map sanctioned by the Indore Municipal Corporation according to which, the hospital was to be constructed on the first and the second floor, and the petitioner shall be constructing the hospital on the said floors, and therefore, there was no violation of the terms of allotment and the lease deed. 10. Feeling aggrieved by the aforesaid order dated 23.11.2010 (Annexure P/23) passed by the IDA, by which 13 the petitioner's lease has been cancelled and possession is ordered to be delivered, the petitioner/lessee has filed this writ petition under Article 226 of the Constitution of India. 11. The case of all the writ petitioners is that the IDA has no authority or jurisdiction to interfere with the possession of the petitioners, without following the due process of law. According to the petitioners, the IDA cannot be the Judge of its own cause and possession from the lessee/owner and occupants of the shops cannot be taken without intervention of the Court as there is no provision under the Adhiniyam or the Rules made thereunder for taking over of the possession by the IDA directly, without there being any order from the competent Court of law. It is also the case of the petitioner that there is no violation of the terms of allotment and the lease deed, and the construction on the plot in question, has been raised as per the map sanctioned by the Indore Municipal Corporation. 14 According to the petitioner, the sanctioned map and the raising of the construction according to it was well within the knowledge of the IDA, and therefore, it cannot be said that the construction is illegal and unauthorized. The petitioner has also stated that on the ground floor as also on the upper ground floor, apart from other shops, there are shops used for doctors clinic, STD/PCO and shops of daily need items like laundry, juice shop, barber shop and also for running of the canteen, which is a permissible use of the land. It is also the case of the petitioner that in case there was any violation of the terms of lease, the IDA was required to have issued notice for rectification of such violation and then if within the stipulated time the violation would not be rectified, then only the lease could have been terminated. It is also the case of the petitioner that at various places the IDA has allowed the change of use of land for other purposes, in the circumstances passing of the impugned order clearly shows mala fide action on the part of the authorities of the IDA. In 15 support of the contention, that the IDA cannot take possession by adopting extra judicial method and the possession can be taken only by following due course of law, the petitioners have placed reliance on the judgment of the Supreme Court passed in the case of State of UP and others v. Maharaja Dharmander Prasad Singh [AIR 1989 SC 997]. 12. The respondent/IDA has filed reply, of which rejoinder has been filed by the petitioner. 13. In reply, the IDA has justified their action of cancellation of the allotment order and the lease deed. According to the IDA, instead of constructing a well equipped hospital building, the petitioner had constructed a shopping complex and thereby has violated the conditions of lease. The main purpose for which the plot was allotted to the petitioner on concessional rate was that because the plot was earmarked for its use for construction of a big and well equipped hospital. However, the petitioner constructed a large number of 16 shops and sold the same for commercial use. According to the IDA, the business, which is being carried out by the shop keepers, cannot be said to be a facility for the patients/hospital. In reply to petitioner's contention that they would be raising construction for the hospital on the upper floors it is stated that this plea cannot be accepted firstly because the construction of large number of shops cannot be permitted and secondly because even after a lapse of such a long time, no hospital has been constructed as yet. It is the case of the IDA that the petitioner having grossly violated the terms and conditions of the lease deed by constructing a commercial complex, without there being any permission or sanction from the IDA, the action, which has been taken against the petitioners, is just and proper. It is also the case of the IDA that on being found that the petitioner has violated the conditions of the lease, the lease deed has rightly been cancelled and the possession has rightly been ordered to be taken from the petitioner and the owners/occupants of 17 the shops. The IDA has also placed reliance on the judgment of the Supreme Court in the case of State of UP and others v. Maharaja Dharmander Prasad Singh (supra). It is the case of the IDA that in view of the law laid down by the Supreme Court, such disputed questions cannot be examined in a petition under Article 226 of the Constitution of India, and therefore, according to the IDA, the petition challenging the impugned order, is liable to be dismissed as proper remedy for the petitioners is to challenge the action of the IDA by approaching the Civil Court. 14. We have heard the learned counsel for the parties at length and considered their contentions. 15. Learned counsel for both the parties have placed reliance on the judgment of the Supreme Court in the case of State of UP and others v. Maharaja Dharmander Prasad Singh (supra). The petitioners are relying on the said judgment to contend that on cancellation of the lease deed, the possession cannot be 18 taken by the IDA otherwise than by due process of law. The respondent/IDA is relying on the said judgment to contend that for challenging the impugned action of the IDA, writ petition under Article 226 of the Constitution of India is not a remedy and the remedy lies with the Civil Court. 16. In order to appreciate the controversy, it would be appropriate to extract the relevant portion of the judgment of the Supreme Court in the case of State of UP and others v. Maharaja Dharmander Prasad Singh (supra) on which, as stated above, both the parties have placed strong reliance: “10. The High Court was persuaded to the view that the proceedings initiated and the action taken by the Government and the Vice-Chairman of the LDA in the matter, respectively, of forfeiture of the lease and the cancellation of the permission to build were both infirm in law and required, to be quashed. Accordingly, writ petitions 6819 19 of 1985 and WP 367 of 1986 were allowed and the order dated 19.11.1985 of the Government purporting to cancel the lease was quashed. Likewise, WP 3463 of 1986 filed jointly by the Lessees was allowed and the show cause notice dated 9.1.1986 as well as the order dated 19.4.1986 of the Vice-Chairman cancelling the permission were quashed. 11. We may first take up the appeals of the State Government and of the LDA assailing the order of the High Court quashing the cancellation of the lease. Sri Yogeshwar Prasad for the appellants submitted that the High Court fell into an error in allowing a matter, which should properly have been the subject-matter of a civil-suit, to be agitated in proceedings under Article 226 of the Constitution. Learned counsel submitted that the relationship between the parties was one of the Lessor and Lessee; the dispute between them pertained to the 20 question whether there were breaches and non-performance of the covenants and conditions of the lease justifying the forfeiture of the lease, and that these matters, pertained to a private law situation and were not appropriately matters for enforcement of public law remedies. Learned Counsel further submitted that the question whether there were breaches of covenants on the part of the lessee involved the construction of the terms of the lease-deed and required evidence on the matter. Disputes of this nature, learned counsel submitted, could not be resolved on mere affidavits. Thirdly, Sri Yogeshwar Prasad submitted that on the merits of the contentions, the High Court should have noticed that even on the facts admitted, there were clear violations of the covenants and conditions of the lease. Learned counsel also submitted that the view of the High Court that a reasonable opportunity of 21 being heard had been denied to the respondents was erroneous and that, at all events, no hearing could be contemplated in the context for forfeiture of a lease of this nature. Sri Sorabjee for the respondents contended that the State, even as a lessor, could not act arbitrarily either in the grant or premature termination of the leases of public property and disputes arising in such contexts cannot always be reckoned as private law situations and that, at all events, the threatened exercise of extra-judicial re-entry by the State, being violative both of the limitations of the powers of the State as lessor under the law of landlord and tenant and of its actions as State, is a matter which re- quires to be mandated against. 12. The show-cause notice preceding the cancellation of the lease and the decision dated 19.11.1985 to cancel the lease, refer to and rely upon 10 grounds. 22 Grounds 1 to 7 pertain to what the Government consider to be violations and breaches of the terms and conditions of the lease. They pertain to an alleged change of user, to subletting and sub- division of the leasehold property. The grounds also refer to the alleged non disclosure of the terms and conditions of the Memorandum dated 7.7.1984 between the Lessees on the one hand and Messrs Amar Builders Private Limited on the other. The grounds for forfeiture also refer to the likelihood of fraud being practised on the prospective purchasers of the fiats as to the nature and extent of the lessees' subsisting interest under the lease and the limitations thereon. We do not propose to go into the merits of these grounds and their sufficiency in law to support the purported forfeiture as, in our view, this exercise, having regard to the disputed questions of fact that are required to be gone into in 23 that behalf, are extraneous to proceedings under Article 226 of the Constitution. 13. In regard to the merits of the grounds for forfeiture of the lease, the High Court after an elaborate discussion of the relevance and tenability of each of the grounds, the learned judge held: "From the comments made by me on the above nine grounds it would be seen that some of the grounds are irrelevant or illusory or based on irrelevant material or on non-existent facts and some require serious consideration which has not been given. It has also been seen that while under the lease-deed the right of re- entry could be exercised only for a breach of the term of the lease in presenti, the lease has been cancelled for a breach in future. In this view of the matter the impugned order of the State Government cannot be sustained." Shri Yogeshwar Prasad says that this exercise Was extraneous to a proceeding under Article 226 24 as the question whether the construction with 39 flats would be one unit or multiplicity of units; whether if third party rights were created by the transfer, or use, of the flat, that would amount to sub-letting or assignment; or would, in any other way, violate the terms and conditions of the lease and the like, would not be matters that admit of being satisfactorily resolved on mere affidavits. Learned counsel submitted that even according to the learned judges there were serious questions to be examined. 14. On a consideration of the matter, we think, in the facts and circumstances of this case, the High Court should have abstained from the examination of the legality or correctness of the purported cancellation' of the lease which involved resolution of disputes on questions of fact as well. In Express News Papers v. Union of India, [1985] Supp. 3 SCR 382 Venkataramiah, J. in a 25 somewhat analogous situation observed: "The rest of the questions relate truly to the civil rights of the parties flowing from the lease deed. Those questions cannot be effectively disposed of in this petition under Article 32 of the Constitution. The questions arising out of the lease, such as, whether there has been breach of the convenants under the lease, whether the lease can be forfeited, whether relief against forfeiture can be granted etc. are foreign to the scope of Article 32 of the Constitution. They cannot be decided just on affidavits. These are matters which should be tried in a regular civil proceeding. One should remember that the property belongs to the Union of India and the rights in it cannot be bartered away in accordance with the sweet will of an Officer or a Minister or a Lt. Governor but they should be dealt with in accordance with law. At the same time a person who has acquired rights in such property cannot also be deprived of them 26 except in accordance with law. The stakes in this case are very high for both the parties and neither of them can take law into his own hands." Accordingly, we hold that the question whether the purported forfeiture and cancellation of the lease were valid or not should not