MADHYA PRADESH HOUSING AND INFRASTRUCTURE DEVELOPMENT BOARD AND ANOTHERversusVIJAY BODANA AND OTHERS

                        [2020] 3 S.C.R. 1207                              1207


  MADHYA PRADESH HOUSING AND INFRASTRUCTURE                               A
       DEVELOPMENT BOARD AND ANOTHER
                                  v.
                 VIJAY BODANA AND OTHERS
                   (Civil Appeal No. 1998 of 2020)                        B
                          MARCH 04, 2020
    [SHARAD A. BOBDE, CJI, S. ABDUL NAZEER AND
                SANJIV KHANNA, JJ.]
       Madhya Pradesh Housing and Infrastructure Development              C
Board Act 1972 – Madhya Pradesh Nagar Tatha Gram Nivesh
Adhiniyam, 1973 – Modification of the layout plan – The appellant-
board had developed a colony as per the layout plan sactioned by
the T&CP in 1981 – Thereafter, the appellant sought for a
modification of the layout plan approved by the Town and Country
Planning (T&CP) and which was permissible under the provisions            D
of the Adhiniyam – The Deputy Director, T&CP approved the
modified layout plan vide order dated 24.09.2008 – The first and
second respondents filed writ petition to quash and set aside the
order approving the change in the layout plan – The High Court
allowed the writ petition and applying the principle of promissory        E
estoppel held that the appellant-board must develop the land
according to the original plan shown to the allottees at the time of
purchase – On appeal, held: The High Court 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          F
modified or changed – The 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         G
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 – Further, it is
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                                1207
1208            SUPREME COURT REPORTS                      [2020] 3 S.C.R.


 A     not the case of the first and second respondents that the procedure,
       parameters and norms prescribed by the Adhiniyam was not followed
       or the development plan and zonal plan were violated – Therefore,
       the modification of the layout plan upheld.
              Delay/ Laches – The writ petition challenging the orders
 B     approving the modification of layout plan was filed nearly seven
       years after the approval for modification was granted– Meanwhile,
       42 out of 52 plots were sold to third parties for consideration –
       Held: In the instant case, many of bonafide owner-purchasers had
       completed construction and some houses were in advanced stages
 C     of construction – Considerable delay and laches of nearly seven
       years in approaching the Court had resulted in a change in position
       as third-party rights were 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 theirs – Madhya Pradesh Housing and Infrastructure
 D     Development Board Act, 1972 – Madhya Pradesh Nagar Tatha
       Gram Nivesh Adhiniyam, 1973.
             Allowing the appeal, the Court
             HELD:1. It is lucid that the High Court has misconstrued
 E     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 Madhya Pradesh Nagar Tatha Gram Nivesh
       Adhiniyam, 1973, provided the modification/change is in
       accordance with law i.e., as per the procedure, and satisfies the
 F     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
 G     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
 H
     MADHYA PRADESH HOUSING AND INFRASTRUCTURE                         1209
         DEVELOPMENT BOARD v. VIJAY BODANA

background, this Court fails to understand how the modification        A
in the layout plan which is in accordance with the Adhiniyam could
have been struck down. [Para 6][1215-E-H; 1216-A]
       2. The writ petition challenging the orders dated 12th May
2008 (direction of the Commissioner to re-examine the request
for modification) and 24th September 2008 (order of the Deputy         B
Director, T&CP approving the modified layout plan) 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         C
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        D
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        E
42 plot owners who had paid money would suffer adverse
consequences for no fault of theirs. [Para 8][1217-E-H]
      3. 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        F
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.
                                                                       G
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
Corporation. [Para 9][1217-E-F]

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1210            SUPREME COURT REPORTS                        [2020] 3 S.C.R.


 A           Chairman, Indore Vikas Pradhikaran v. Pure Industrial
             Coke & Chemicals Ltd. and Others. (2007) 8 SCC 705
             : [2007] 6 SCR 799; Rajendra Shankar Shukla and
             Others v. State of Chhattisgarh and Others (2015) 10
             SCC 400 : [2015] 11 SCR 723 ; Karnataka Power
 B           Corporation Ltd. and Another v. K. Thangappan and
             Another (2006) 4 SCC 322 : [2006] 3 SCR 783
             – relied on.
             State of M.P. and Others v. Nandlal Jaiswal and Others
             (1986) 4 SCC 566 : [1987] 1 SCR 1 – referred to.
 C                            Case Law Reference
       [2007] 6 SCR 799                    relied on          Para 6
       [2015] 11 SCR 723                   relied on          Para 6
       [2006] 3 SCR 783                    relied on          Para 8
 D     [1987] 1 SCR 1                      referred to        Para 8
             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1998
       of 2020.
            From the Judgment and Order dated 26.07.2017 of the High Court
 E     of Madhya Pradesh, Bench at Indore in W.P. No. 7666 of 2015.
              R.C. Mishra, Sr. Adv., Mahendra Kumar, Ilin Saraswat, Ms. Neha
       Jain, Ms. Swati Jain, Rajnish Kumar Jha, Advs. for the Appellants.
             Ms. Pragati Neekhra, AAG, Ms. Amrita Grover, Divyakant Lahoti,
       Ms. Praveena Bisht, Rahul Kaushik, Advs. for the Respondents.
 F
             The Judgment of the Court was delivered by
             SANJIV KHANNA, J.
             1. Leave granted.

 G           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.
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    MADHYA PRADESH HOUSING AND INFRASTRUCTURE                                1211
 DEVELOPMENT BOARD v. VIJAY BODANA [SANJIV KHANNA, J.]

       3. Impugned judgment dated 26th July 2017 by the Indore Bench         A
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 12th May 2008 of the Commissioner, Ujjain and the order dated
24th September 2008 of the Deputy Director, Town and Country Planning,       B
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.
                                                                             C
       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 11th 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       D
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 25th July 2005. On the revision   E
petition under Section 32 of the Adhiniyam, the State Government vide
order dated 28th 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,
                                                                             F
it was directed, could submit the proposal for modification before the
Commissioner, Ujjain for reconsideration. Thereupon, the Commissioner,
Ujjain vide order 12th 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 24th September 2008.                            G
       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
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1212               SUPREME COURT REPORTS                          [2020] 3 S.C.R.


 A     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,
 B     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
 C     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.
              6. It is an undisputed position that the State Government vide
       order dated 28th September 2006, while partly allowing the revision
 D     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
 E     12th 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 24th 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
 F
       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 Adhiniyam. This
       Court in Chairman, Indore Vikas Pradhikaran v. Pure Industrial
 G     Coke & Chemicals Ltd and Others1 delineating the legislative scheme
       of the Adhiniyam had observed that town and country planning involving
       development of land in towns and cities is achieved through the process
       of land use, zoning plan and regulating building activities. This is a highly
       complex exercise undertaken by experts on the basis of study, experience
 H     1
           (2007) 8 SCC 705
       MADHYA PRADESH HOUSING AND INFRASTRUCTURE                                1213
    DEVELOPMENT BOARD v. VIJAY BODANA [SANJIV KHANNA, J.]

and scientific research, which has to be given due reverence. Urban             A
planning often reconciles varied concerns and interests, both public and
private, and thus ensures better living conditions. A clear distinction was
drawn amongst the regional development plans, town development or
zonal plans and layout plans of a colony. Elucidating the manner in which
each plan guides the development and use of land, it was held:                  B
         “37. When a planning area is defined, the same envisages
         preparation of development plan and the manner in which the
         existing land use is to be implemented. A development plan in
         some statutes is also known as a master plan. It lays down the
         broad objectives and parameters wherewith the development plan         C
         is to deal with. It also lays down the geographical splitting giving
         rise to preparation and finalisation of zonal plans. The zonal plans
         contain more detailed and specific matters than the master plan
         or the development plan. Town planning scheme or layout plan
         contains further details on plotwise basis. It may provide for the
         manner in which each plot shall be dealt with as also the matter       D
         relating to regulations of development.
                    xxx              xxx                xxx
         72. Land use, development plan and zonal plan provided for the
         plan at macro-level whereas the town planning scheme is at a           E
         micro-level and, thus, would be subject to development plan. It is,
         therefore, difficult to comprehend that broad based macro-level
         planning may not at all be in place when a town planning scheme
         is prepared.”
       Therefore, the development plan, zonal plan and town planning            F
schemes of the land are distinct and each have a different objective and
purpose. The difference between the three in terms of the Adhiniyam
was highlighted by this Court in Rajendra Shankar Shukla and Others
v. State of Chhattisgarh and Others2 in the following words:
         “67. The town development scheme is always subservient to the          G
         master plan as well as the zonal plan, as provided under Section
         17 of the 1973 Act, which reads as under:
            “17.Contents of development plan. — A development plan shall
            take into account any draft five year and annual development
2
    (2015) 10 SCC 400                                                           H
1214      SUPREME COURT REPORTS                           [2020] 3 S.C.R.


 A        plan of the district prepared under the Madhya Pradesh Zila
          Yojana Samiti Adhiniyam, 1995 (19 of 1995) in which the
          planning area is situated….”
       68. Master plan falls within the category of broad development
       plans and is prepared only after taking into account the Annual
 B     Development Reports prepared by constitutionally elected bodies
       of local panchayats and municipalities, etc. A zonal plan is
       mandated to be prepared only after the publication of the
       development plan. Section 20 of the Act reads thus:
          “20. Preparation of zonal plans.—The local authority may on
 C        its own motion at any time after the publication of the
          development plan, or thereafter if so required by the State
          Government shall, within the next six months of such requisition,
          prepare a zoning plan.”
          Further, Section 21 of the Act reads thus:
 D
          “21. Contents of zoning plan.—The zoning plan shall enlarge
          the details of the land use as indicated in the development
          plan….”
                                                       (emphasis supplied)
 E     Thus, it is evident from the language of Sections 20 and 21 of the
       Act, that a zonal plan can be prepared only in adherence to the
       development plan which in the present case is the Raipur Master
       Plan of 2021.
       69. Next, Section 49 of the Act which provides for the provisions
 F     for which a town development scheme can be prepared, has to
       be read along with Section 21 of the Act, which clearly mentions
       that the land required for acquisition by the Town and Country
       Development Authority for the purpose of any development
       scheme has to be laid down in the zonal plan.
 G     70. Therefore, a combined reading of Sections 17, 21 and 49 lays
       down that the development plan is the umbrella under which a
       zonal plan is made for the city. The zonal plan in turn allocates the
       land which could be acquired for town development schemes.
            xxx                    xxx                 xxx
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    MADHYA PRADESH HOUSING AND INFRASTRUCTURE                                1215
 DEVELOPMENT BOARD v. VIJAY BODANA [SANJIV KHANNA, J.]

      72. The importance of zonal planning lies in its distinguished         A
      characteristic which lays down with sufficient particularity the
      use to which a particular piece of land could be put. The object
      and purpose of the 1973 Act itself foresees that zonal plan is
      necessary for implementation of a town development scheme.
      The preamble of the Act clearly discloses that a town development      B
      scheme is at best a vehicle to implement the development plan
      and zonal plan. The object and purpose of the Act reads thus:
          “An Act to make provision for planning and development and
          use of land; to make better provision for the preparation of
          development plans and zoning plans with a view to ensuring         C
          town planning schemes are made in a proper manner and
          their execution is made effective, to….”

                                                     (emphasis supplied)

      Therefore, the object and purpose of the Act also provides that a      D
      town development scheme can be prepared in the presence of a
      zonal plan which in turn has to be prepared for the implementation
      of the development plan.”
       If the aforesaid aspects and the difference amongst the plans are
kept in mind, it is lucid that the High Court has misconstrued and           E
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         F
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
                                                                             G
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
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1216             SUPREME COURT REPORTS                            [2020] 3 S.C.R.


 A     modification in the layout plan which is in accordance with the Adhiniyam
       could have been struck down.
              7. 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
 B     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
 C     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
 D     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 reasons.
               8. The writ petition challenging the orders dated 12th May 2008
 E     and 24th 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
 F     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
 G
       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 theirs. In Karnataka Power Corporation Ltd. and
 H
       MADHYA PRADESH HOUSING AND INFRASTRUCTURE                                  1217
    DEVELOPMENT BOARD v. VIJAY BODANA [SANJIV KHANNA, J.]

Another v. K. Thangappan and Another,3 this Court, after citing State             A
of M.P. and Others v. Nandlal Jaiswal and Others,4 had observed:
        “9. It was stated in State of M.P. v. Nandlal Jaiswal that the
        High Court in exercise of its discretion does not ordinarily assist
        the tardy and the indolent or the acquiescent and the lethargic. If
        there is inordinate delay on the part of the petitioner and such          B
        delay is not satisfactorily explained, the High Court may decline
        to intervene and grant relief in exercise of its writ jurisdiction. It
        was stated that this rule is premised on a number of factors. The
        High Court does not ordinarily permit a belated resort to the
        extraordinary remedy because it is likely to cause confusion and          C
        public inconvenience and bring, in its train new injustices, and if
        writ jurisdiction is exercised after unreasonable delay, it may have
        the effect of inflicting not only hardship and inconvenience but
        also injustice on third parties. It was pointed out that when writ
        jurisdiction is invoked, unexplained delay coupled with the
        creation of third-party rights in the meantime is an important factor     D
        which also weighs with the High Court in deciding whether or not
        to exercise such jurisdiction.”
       9. 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            E
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            F
case was from commercial to residential, there was no ground and reason
that would suggest objection or opposition from the Ujjain Municipal
Corporation.
      10. During the course of hearing before us, the appellant-board
had produced the original layout plan of Indira Nagar in which the land           G
in question was shown as reserved for a major shopping complex.
Adjacent to this land is the land earmarked for a primary school. There
3
  (2006) 4 SCC 322. This judgment was later cited in Yunus (Baboobhai) A. Hamid
Padvekar v. State of Maharashtra and Others, (2009) 3 SCC 281.
4
  (1986) 4 SCC 566                                                                H
1218                SUPREME COURT REPORTS                      [2020] 3 S.C.R.


 A     are areas earmarked for a park/garden. Therefore, while we allow the
       present appeal and uphold the modification of the layout plan, we deem
       it proper to direct the appellant-board and the authorities to ensure that
       the areas/land earmarked for the primary school and park/garden are
       not converted into residential plots. We also direct the appellant-board
 B     and respondent authorities not to allot and sell any unsold residential
       plots. These plots which are yet to be sold would be utilised for general
       public amenities like park, garden, playground etc. The appellant-board
       and the authorities would act accordingly.
             11. The appeal is accordingly allowed in the above terms without
 C     any order as to costs.


       Ankit Gyan                                                  Appeal allowed.



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