Case: MADHYA PRADESH HOUSING AND INFRASTRUCTURE DEVELOPMENT BOARD AND ANOTHER  Vs. VIJAY BODANA AND OTHERS

2. First appellant, Madhya Pradesh Housing and Infrastructure Development Board, is a statutory board established under the Madhya Pradesh Housing and Infrastructure Development Board Act, 1972 for the purpose of taking measures to deal with and for satisfying the need of housing accommodation in the State of Madhya Pradesh and matters connected therewith.      3. Impugned judgment dated 26 th July 2017 by the Indore Bench of the High Court of Madhya Pradesh allows Writ Petition No. 7666 of 2015 preferred by the first and second respondents before us, Vijay Bodana and Ravindra Bhati, by quashing and setting aside the order dated 12 th May 2008 of the Commissioner, Ujjain and the order dated 24 th September 2008 of the Deputy Director, Town and Country Planning, Ujjain (for short T&CP) approving the change in the layout plan of Indira Nagar, Ujjain. The lease deeds executed by the appellant-board in favour of third-party purchasers were declared null and void and not to be acted upon. The land in question, it was directed, would be used as per the original layout plan.      4. The appellant-board had developed the colony Indira Nagar over an area of 32 hectares in Ujjain, as per the layout plan sanctioned by the T&CP on 11 th September 1981. After the colony had been in existence for about 23 years, in 2004 the appellant-board had made an application for changing the land use of 1.52 hectares earmarked for commercial shopping complex in the original layout plan to residential accommodation. However, the request for amendment was rejected by the Deputy Director, T&CP vide order dated 27.12.2004 and the appeal under Section 31 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short, the Adhiniyam) before the Commissioner, Ujjain was also dismissed vide order dated 25 th July 2005. On the revision petition under Section 32 of the Adhiniyam, the State Government vide order dated 28 th September 2006 clarified the legal position that the appellant-board had not asked for a change in land use and had asked for a modification of the layout plan approved by the T&CP which was permissible under the provisions of the Adhiniyam. The appellant-board, it was directed, could submit the proposal for modification before the Commissioner, Ujjain for reconsideration. Thereupon, the Commissioner, Ujjain vide order 12 th May 2008 had directed the Deputy Director, T&CP to re- examine the request for modification and pass appropriate orders. Pursuant to this order, the Deputy Director, T&CP approved the modified layout plan vide order dated 24 th September 2008.      5. The impugned judgment allows the writ petition, which was preferred by the first and second respondents after nearly seven years in 2015, inter alia holding that the Adhiniyam stands enacted with the object to prevent unplanned and haphazard development and that layout plans for residential schemes are prepared to provide for open spaces for various purposes like roads, gardens, playgrounds and facilities like schools, hospitals, community centres, shopping complex etc. Developers like the appellant- board charge extra money for plots at preferential locations adjacent to or facing public amenities such as parks, roads, water body, shopping complex, etc. The allottees accordingly pay extra/higher charges at the time of purchase with an expectation to avail and enjoy the advantages of such amenities. Therefore, the developer cannot be permitted to change the status of land to deceive the allottees. Applying the principle of promissory estoppel, it has been held that the appellant-board must develop the land according to the original plan shown to the allottees at the time of purchase. Further, Ujjain Municipal Corporation was not heard and had no opportunity to represent the case as to the change in the layout plan.

Reasoning:
6. It is an undisputed position that the State Government vide order dated 28 th September 2006, while partly allowing the revision petition, had directed the appellant-board to file a revision application before the Commissioner, Ujjain observing that the application moved by the appellant-board was not for a change in land use but for a change in the approved plan. The appellant- board as permitted had filed the revision application on which the Commissioner, Ujjain vide order dated 12 th May 2008 had asked the Deputy Director, T&CP to consider the request for modification of the layout plan. The Deputy Director, T&CP after examination vide order dated 24 th September 2008 had allowed the application approving the modified layout plan. Modifications, as noticed below, are in conformity and in accord with the parameters of the development control norms. The impugned judgment does not hold that the procedure prescribed by and under the Adhiniyam was violated. It has not been held, or even contended before us, that the modification of the layout plan as approved by the Deputy Director, T&CP pursuant to the order of the Commissioner, Ujjain, is contrary to the AdhiniyamIf the aforesaid aspects and the difference amongst the plans are kept in mind, it is lucid that the High Court has misconstrued and misdirected itself by relying upon the principle of promissory estoppel to hold that once the layout plan is prepared the same cannot be modified or changed. Change or modification is permitted under the Adhiniyam, provided the modification/change is in accordance with law i.e., as per the procedure, and satisfies the development norms and conditions of the development plans, zonal plans and town planning schemes. The modification cannot be struck down when the law permits such change which is in terms of the statute and the plans that have the force of law. As long as the layout plans conform to the development control norms, the court would not substitute its own opinion as to what principle or policy would best serve greater public or private interest. It is not the case of the first and second respondents that the procedure prescribed by the Adhiniyam was not followed or the parameters and norms prescribed by the Adhiniyam, the development plan or the zonal plan have been violated. In this background, we fail to understand how the modification in the layout plan which is in accordance with the Adhiniyam could have been struck down7. On facts and justification for change of land use from commercial to residential, the impugned judgment ignores and glances over the earlier position that the area was earmarked for development and for construction of a shopping complex with 131 shops and not earmarked as an open area, park or playground. It notices the contention of the appellant-board that as per Rule 49 of the Madhya Pradesh Bhumi Vikas Rules, 1984, the area required to be earmarked for commercial purposes is 0.4 hectares whereas the area reserved in the original layout plan was 1.52 hectares. It is an undisputed position the land earmarked for the shopping complex had not found demand and takers despite efforts. The area was lying idle for more than 20 years, albeit more than 150 shops had already come up in the residential area. As per the appellant-board, construction of 131 shops would have caused congestion and would have adversely impacted the density of people living and using the area. We have highlighted these aspects and facts which are vastly distinct, for the courts normally frown upon, adversely comment and do strike down changes in the land use from residential to commercial or industrial use for obvious reasons8. The writ petition challenging the orders dated 12 th May 2008 and 24 th September 2008 was filed in 2015, nearly seven years after the approval for modification was granted. In the meanwhile, 42 out of 52 plots had been sold to third parties for consideration. The impugned judgment notices that many of these bonafide owner- purchasers had completed the construction and some houses were in advanced stages of construction. While the High Court has noticed and recorded these facts, it has failed to give due credence to the delay, the change in position and creation of third- party rights by wrongly applying the principle of promissory estoppel and lis pendens. Innocent plot owners on whom the brunt had fallen were not even heard before they were deprived and denied their rights by the adverse order. Considerable delay and laches of nearly seven years in approaching the court had resulted in change in position as third-party rights had been created. In view of delay and laches, the High Court should not have entertained the writ petition as 42 plot owners who had paid money would suffer adverse consequences for no fault of theirs9. The Ujjain Municipal Corporation was not made a party and had no opportunity to represent their stand on the change in the layout plan. If required and felt necessary, the High Court could have issued notice to the Ujjain Municipal Corporation and obtained their opinion. Stand of the State Government of Madhya Pradesh and the authorities under the Adhiniyam, supporting the modification, was on record. Normally opposition and prejudice should not be presumed, unless there are grounds and reasons. Given the fact that the change in the present case was from commercial to residential, there was no ground and reason that would suggest objection or opposition from the Ujjain Municipal Corporation10. During the course of hearing before us, the appellant-board had produced the original layout plan of Indira Nagar in which the land in question was shown as reserved for a major shopping complex. Adjacent to this land is the land earmarked for a primary school. There are areas earmarked for a park/garden.