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The extension modification cannot be struck down when the law permits such change which is in terms

MADHYA PRADESH HOUSING AND INFRASTRUCTURE DEVELOPMENT BOARD AND ANOTHER VERSUS VIJAY BODANA AND OTHERS, CIVIL APPEAL NO. 1998 OF 2020 ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 26834 OF 2017.

“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 thedevelopment control norms, the court would not substitute its ownopinion as to what principle or policy would best serve greaterpublic or private interest. The High Court 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.” Learned counsel for the Respondent submits that the colony was only handed over to the UMC only for the purposes of maintenance with regard to the sewage, street light, water supply, electricity supply etc. but ownership always remained with the Respondent. But in a LPA while reversing the judgement of the Single Bench; the Division Bench of this court in Municipal Corporation, Gwalior Vs. Anil Sharma and other AIR 2003 Madhya Pradesh 32 has held that: After giving anxious thought to the entire case, it is apparent that Shriram Colony came into existence before Act of 1973 came into force. 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 down. The writ petition challenging the orders dated 12th May 2008 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 ownerpurchasers 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 thirdparty 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 theirs. In Karnataka Power Corporation Ltd. and Another v. K. Thangappan and Another, this Court, after citing State of M.P. and Others v. Nandlal Jaiswal and Others, had observed: “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. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and 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. Unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.” 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 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 Civil Appeal arising out of S.L.P.(C) No.26834 of 2017 Page 11 of 13 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 Corporation. 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. “Therefore, while the court allows the present appeal and uphold the modification of the layout plan, the court deems 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. The court directs the appellant-board 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.”

Thus, the hon’ble court allows the appeal accordingly in the above terms without any order as to costs.

– Karthik K.P

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