Case: Mangal Amusement Park(P) Ltd Vs. State Of M.P

4. During November 1991 to February 1992, IDA floated tenders through advertisements for setting up of an amusement park on a parcel of land owned by it situated in village Bhamori-Dubey. The concerned land admeasured about seven acres comprising of survey nos. 91 part, 92/1, 93/1, 93/2, 94/1, 94/2, 95/1, 95/2, 96/1, 96/2, 152, 155 part, 157, 159, 160, 162, 163, 164 part, 165 part and 166 part and was situated within Scheme No.54. There is no dispute that under the then subsisting Development Plan the designated land-use of these survey nos. wasIt is the case of the appellants that though they applied in pursuance to the advertisement, and though the appellants were the most eligible, IDA arbitrarily delayed the acceptance of their tender. This led the appellants to file an earlier writ petition in the High Court of Madhya Pradesh bearing M.P. No.313/1992 which was allowed by the High Court. Consequently, the appellants were allotted this parcel of land for the establishment of aamusement park.5. Accordingly, IDA granted a license to the appellants, the terms and conditions of which were asLICENSE (FOR AMUSEMENT CENTRE)Dated 6.5.1994This license is granted to Shri Ramesh Mangal son of Shri Manikchand Mangal age 48 years, resident of 8/2, New Palasia, Indore, Managing Director, M/s Mangal Amusement Park Pvt. Ltd., Indore, by the Indore Development Authority Indore (M.P.). Terms and conditions of this license shall be as follows:-TERMS AND CONDITIONS:-The land measuring 7 acres is given to M/s Mangal Amusement Park Pvt. Ltd. (hereinafter called the ‘Licensee vide letter No.4179 dated 4.4.1994 on license by the Indore Development Authority initially for a period of 15 years. The licensee will have to develop inside infrastructure such as path-ways, roads, boundary walls, land installation of rides and games etc. at his own cost as approved by the Authority. Construction of Food &Centres, Kiosks, Shops, Administrative building, toilet shall also be permissible as per requirement.2. The period of license shall commence from the date of activation of the park or 18 months from the date of giving possession, whichever is earlier.3. The period of completion of the project shall be 24 months (inclusive of Monsoon season) from the date of handing over the possession of the said land. Failing which, the license may be terminated, forfeiting the Earnest Money and other payments, if any, by the Authority.4. The advance license fee shall be payable annually before first of June. In case, the licensee fails to pay the fee on or before the due date, an interest at the rate of 18% per annum shall be charged for period defaulted. The interest shall be calculated on the license fee itself for full calendar month.5. In addition to the license fee, an amount equal to 25% of the entry fee will be charged by the I.D.A. and has to be paid by the licensee by 10th of next month.6. Earnest Money of Rs.1,00,000/- has been kept with I.D.A. and no interest shall be given on the amount of Earnest Money. This amount shall be adjusted towards license fee 1,81,000.00 (Rs. One Lac eighty thousand only) per year on commission of the project.7. The Authority or an officer authorized in this behalf shall have the power to examine the accounts of collection of entry fee, as and when deemed fit. The Authority may further regulate the mode of collection of entry fee. The duty of collection of entry fee will rest on the licensee himself.8. The license may be renewed for further period of 15 years by enhancing the license fee, maximum by 40% and thereafter at such a percentage as may be decided by the Authority.9. Bank Guarantee of Rs.5,00,000/- (Rs. Five lacs only) given by the licensee shall be redeemed after three complete years from the date of activation of the amusement park.10. The rides, games etc. should be bought from the suppliers manufacturing these in India indigenously.11. At least one roller coaster, one ferries wheel and bay train, one set of merry cups, one Columbus and one telecombat must be erected with other rides.12. The complete amusement centre shall be operated and managed by the licensee himself at his own cost and responsibilities.13. In the event of any increase or decrease in the area on physical measurement, the license fee shall be subject to the increase or decrease proportionately.14. In the event of violation of any of the terms and conditions mentioned hereinabove, on the part of the licensee, the decision of the Chairman, Indore Development Authority shall be final.15. Land for which licnese is granted is marked in green colour in………. plan.SIGNATURE OFIt is the case of the appellants that they submitted the plans, maps and drawings for necessary construction, and thereafter started using the concerned parcel of land as amusement park.7. It so transpired that sometime in December 1999, respondent nos.1 and 2 i.e. the State and the Town Planning Dept. initiated the process of modification of the Development Plan. In that process it was proposed to change the user of this parcel of land from(i.e. a green area). The Chairman of IDA however, wrote in that context to the respondent nos.1 and 2 on 7.12.1999 that such a change was not desirable, since the use of the concerned land was already secured for a specified purpose in the master plan. The State Govt. however proceeded to issue a notification on 9.3.2001 under Section 23-A (2) of Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (M.P. Act for short) proposing the change of the land-use fromand inviting objections thereto. The appellants did raise objections against the proposed modification which were heard by the Principal Secretary to the Govt. of Madhya Pradesh on 23.8.2001.8. It is the case of the appellants that they wanted to put up a banquet hall and an amusement club on this parcel of land, and therefore sought the requisite permission from IDA. IDA in fact passed a resolution bearing No. 133 on 8.5.2003 recommending grant of such permission though subject to the conditions mentioned therein. The Chief Executive Officer of IDA accordingly wrote to the Principal Secretary of the Madhya Pradesh Govt. on 27.5.2003 for grant of this permission, and consequently for the increase in the license fee. The State Govt. however wrote back on 23.9.2003 declining the request, and asking IDA to invite the tenders afresh for the re-allotment of the plot (the appellants however contend that there is a contrary note on the files of the respondents dated 29.9.2003 recommending the proposed use). That apart, ultimately the Madhya Pradesh Govt. issued the notification approving the change in the land-use fromto a ‘regionalon 19.11.2003. It is this letter dated 23.9.2003 and notification dated 19.11.2003 which were challenged by the appellants by filing Writ Petition No.5698/2008 in the High Court of Madhya Pradesh.9. This letter dated 23.9.2003 reads as follows:-M.P. GovernmentHousing and Environment Department MinistryLetter No.H-3-107/3/32 Bhopal Date 23.09.2003To,The Chief Executive OfficerIndoreDevelopment AuthorityIndore, M.P.Sub: Regarding grant of permission to Mangal Amusement Park Pvt. Ltd. for the construction of Amusement Club, Banquet Hall on the land allotted under plan No.54 of the Indore Development Authority.Ref: Your letter No.6314 dated 23.05.03.Please take reference of the letter referred above, by which Authority had sought permission from Govt. for proposal on land allotted by Authority on lease 1994.2. It has been established from the documents made available by the Authority that proceedings by the Authority have not been in accordance with the rules and there has been lack of transparency. Therefore, it is not possible to give permission on this proposal of Authority.3. It is directed to Authority that it utilize the land in question only after issuing fresh notification inviting tenders.Sd/-Illegible23.09.03(C.C. Padiyar)Under SecretaryM.P. Govt.Housing and EnvironmentalThe notification dated 19.11.2003 reads as& ENVIRONMENT DEPARTMENTVallabh Bhawan, Bhopal.Bhopaldated 19th November, 2003.No.F-3-47-0000-32 – The State Government vide its Notification No.F-3-47-2000-32 dated 9th March, 2001 issued under Section 23(A) (2) of the Madhya Pradesh Urban and Rural Act, 1973 (Act No.23/1973) had proposed certain modifications in public interests. Thereafter notices to the above effect were also published in 2 leading newspapers on 15th ad 16th March, 2001. Through said notice, Objections were invited from the aggrieved persons and ultimately 4 objections were received jointly and individually. Thereafter objectors of the said objections were heard on 3.8.2001 and 23.8.2001 and their objections were considered and were finally rejected. Thereafter Department sought an opinion from the Municipal Corporation of Indore on the proposed modification and the Municipal Corporation has granted its No Objection vide letter dated 1st June, 2001.(2) In the premises aforesaid, State Government hereby confirms modification of the following lands of Village Bhamori Dubey, Indore, as described in Schedulehereunder, according to user prescribed in the Indore Development scheme, 1991. It is further informed that this modification will be an integrated part of the Approved Indore Development Scheme, 1991 as well as Draft Development Scheme, 2011.SCHEDULEuse modification of 18.222 Hectares and 17.931 Hectares situated in Village Bhamori Dubey under Indore Development Scheme, 1991-Sr.SurveyArea (InLand userChange landNo.No.Hect).prescribed inusethe IndoreDevelopmentScheme(1)(2)(3)(4)(5)1.257 & 2599.134Regional ParkCommercial2.258 part0.113-5 part2.255-1 part0.713Regional ParkCommercial9.92/10.429-5 part0.267-l Park26.1631.967-65 part0.534-In the name of and by Order of GovernorShivanand Dubey, Deputythe name of and by Order of GovernorShivanand Dubey,DeputyThe appellants point out that thereafter also the stand of IDA was different from that of the concerned department as reflected in the Notesheet of IDA dated 3.2.2005. Yet, ultimately it accepted the view- point of the State Govt., and issued a show cause notice to the appellants on 8.1.2007 alleging various breaches of the terms and conditions of allotment. In para 7 and 8 thereof, it was alleged asYou have not taken action to establishAmusement Park on the land allotted violating conditions of license. Half of the land is still undeveloped, vacant and without any use given after 12 years of allotment.8. Application for the construction of Amusement Club, Banquet Hall on the land allotted, given by you establishes that you do not want to run activities relating toAmusement Park on the landappellants were, therefore, asked to show cause as to why the license of land allotted to them should not be cancelled.12. It is the further case of the appellants that although this show cause notice was issued on 8.1.2007, the Chairman of IDA once again wrote to the Govt. on 29.11.2007 asking it to retain the land-use of this particular parcel of land as commercial. The State Govt. however proceeded to bring the modification into force with effect from 1.1.2008. It is at this stage that the above writ petition No. 5698 of 2008 was filed with the following prayers:-(a) to strike down Section 23-A of Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam 1973 (which prayer was however not pressed),(b) to quash the notification dated 19.11.2003, and(c) to quashletter dated 23.9.2003 (which prayer was added laterthe document of allotment of the concerned parcel of land to the appellants was a document of lease and not simply a license, and that the appellants were entitled to the renewal thereof,(b) the appellants had made good investment onto the concerned parcel of land, and they had their legitimate expectations. Consequently, the respondents were bound by the doctrine of promissory estoppel to renew the allotment,And(c) the decision to change the land-use was a malafide one for the benefit of another party which had its parcel of land in the vicinity, where the land-use was changed from the previous one which was ‘regionalThe change of use of land of the parcel allotted to the appellants was effected to set off the resultant reduction in green area, and to justify the change of land-use of the parcel of land allotted to the other party.14. The petition was opposed by respondent nos. 1 and 2 on the one hand, and by respondents no.3 and 4 by filing their replies. They contended principally as follows:-(a) the concerned document of allotment was clearly a document of license, and not that of lease. In any case, by that time the period of license having expired after the lapse of 15 years, the appellants did not have any case for renewal particularly when they had not put to use half of the land for the purpose for which it was allotted, and when in fact they wanted to use it for another purpose by putting up a banquet hall therein.(b) Inasmuch as, the document of allotment was a license which was valid only for 15 years, there was no question of the appellants having a legitimate expectation for a renewal beyond 15 years. The respondents had not promised any such renewal to the appellants to enable them to avail of the doctrine of promissory estoppel.(c) The modification in the development plan was effected after considering all relevant factors and not for obliging anybody. No material in support of their allegation had been produced by the appellants. The change was effected after following the due process of law, viz. inviting suggestions and objections, and hearing the concerned parties. The change cannot be faulted on that count either.15. The petition was heard by a Division Bench of the Madhya Pradesh High Court which dismissed the same by its judgment and order dated 19.5.2011, after hearing the counsel for all the parties. This judgment is under challenge in the present appeal.

Reasoning:
23. In our view, the appellants have tried to make much ado about the stand which the IDA took on earlier occasions in favour of the appellants. One has to recognise that where different authorities are dealing with a particular subject, it is quite possible that on some occasions, they may take a stand different from each other, though ultimately it is the decision of the competent authority which matters, and it cannot be tainted with mala fides merely on thatnoted these submissions we are of the view that since the document of allotment was a license and not one creating any interest, the provision of renewal contained therein cannot be read as laying down a mandatory requirement. Besides, as stated above, clause 14 of the document of license clearly stated that in the event of violation of any of the terms and conditions on the part of the licensee, the decision of the Chairman of IDA was final. Para 7 of the show cause notice in fact stated that the necessary action to establish theAmusement Park had not been taken since half of the land had remained undeveloped, and it amounted to violating the conditions of license. The doctrine of promissory estoppel can certainly not be permitted to be invoked on such awas with a view to accommodate the constructions which had come up on the other parcel of land in the vicinity.In this connection we must note that the appellants had not joined any of those parties for whose benefit this change had been allegedly made. As held in Girias Investment (P) Ltd. vs. State of Karnataka & Ors. reported in 2008 (7) SCC 53 , in the absence of factual basis, the court is precluded from going into the plea of malafides. As far as the land meant for theamusement park is concerned, the same was hardly put to the full use. In as much as this entire parcel of land of about 7 acres was not utilized, and since it was an open parcel of land, there was nothing wrong in the State Government deciding to retain it as an open parcel of land, and to change the land-use thereof from commercial to a regional park. The notification cannot be faulted on that count