Thirteen years of litigation by a development authority ends with a four-week order to release the land it wanted

Justice Sandeep N. Bhatt dismisses eight writ petitions by the Indore Development Authority against its own department's order, finding no perversity in the release of land from Town Planning Scheme 169-A.

A landowner near Indore had her layout sanctioned in September 2005 and a factory running on the plot by 2007. In August 2008 the Indore Development Authority published its intention to bring the same land into Town Planning Scheme 169-A. She objected, the authority rejected her objection, and in 2011 the Director of Town and Country Planning allowed her revision and took her land out of the scheme. The authority then went to the High Court against its own department — and stayed there for thirteen years. Justice Sandeep N. Bhatt has dismissed that petition and seven others like it, and directed the authority to release the lands from the scheme, preferably within four weeks.

A scheme that arrived after the factory

The eight petitions raised broadly common questions on almost identical facts and were heard together. Seven, filed in 2013, sought quashing of the same category of order; the eighth, of 2014, attacked an order of the Commissioner, Ujjain Division, and asked that the disputed land be ordered back into the scheme.

The dates are what decide the case, and the judgment lays them out. On 26 September 2005 the Joint Director, Town and Country Planning, sanctioned a layout plan over 1.368 hectares of Survey No. 36/1 for industrial purposes. In January 2008 the landowner applied for diversion under Section 172 of the Madhya Pradesh Land Revenue Code; the Sub-Divisional Officer wrote to the Indore Development Authority, to the Town and Country Planning department and to the Nazul Officer for their opinions, and the Gram Panchayat of Kumedi had already granted a no-objection certificate for diversion.

Only then did the scheme begin. On 11 July 2008 the authority passed a resolution under Section 50(1) of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam for framing Scheme 169-A. Its intention was published in the newspapers on 25 July 2008 and in the gazette on 1 August 2008. The draft scheme was published in October 2009 inviting objections, the landowner filed hers that month, and the authority rejected it in August 2010. The final scheme followed.

She took the matter in revision to the Director, Town and Country Planning, at Bhopal. On 30 August 2011 her revision was allowed. Applying the principles flowing from Section 53 of the Adhiniyam, the Director directed that her land in village Kumedi be excluded from Scheme 169-A, because its layout had been sanctioned in September 2005 — well before the authority declared any intention to frame the scheme.

The logic of that order is worth spelling out, because it is the whole dispute in miniature. A town planning scheme reorganises land — it pools plots, carves out roads and open spaces and reconstitutes holdings — and the Adhiniyam therefore has to decide what happens to development that is already lawfully in place when a scheme arrives. A layout sanctioned by the planning department three years before the authority had so much as resolved to frame a scheme is not an encroachment the scheme is meant to cure; it is a permission the department itself granted. The Director's view was that such land falls outside the scheme rather than inside it, and the respondents' position was that by the time the intention was published there was a functioning factory on the plot, built on a permission that Rule 23(3) protects from lapsing once work has begun.

The authority sought the State's permission to litigate in April 2013. In May 2013 the Housing and Environment Department issued a clarification whose clause 7.3 said the opposite of what the Director had done: that on the ground of a previous sanction of layout before a declaration of intention under Section 50(2), land should not be released. That clarification became the authority's main plank.

Can an authority sue its own superior?

The landowners' first answer was that the petition was not maintainable at all, and it is the more interesting of the two.

Section 51 of the Adhiniyam gives the Director revisional power over a final town development scheme, on his own motion or on an application by an aggrieved person, to examine the record and satisfy himself as to the correctness of the order passed by the development authority or the regularity of its proceedings. It ends with four words that matter: “his order shall be final”. A proviso requires both the affected person and the authority to be heard first.

On that footing, counsel argued, the authority has no locus to challenge an order passed by its superior authority in revision, and is duty-bound to implement it. The support offered was Mohtesham Mohd. Ismail v. Special Director, Enforcement Directorate, where the Supreme Court held that an adjudicating authority exercising quasi-judicial power cannot ordinarily appeal against the appellate body that set its own order aside; it must act as an impartial tribunal, and an officer needs specific authorisation to act for the government rather than a general power inferred from his appointment. The Madras and Punjab and Haryana High Courts had taken the same view of a Director of Enforcement appealing against the Appellate Board.

The second answer was factual, and it is the one with teeth. The respondents said they had commenced and completed substantial factory development on the strength of a permission of August 2006, years before the authority published its intention. They had taken a term loan of Rs 25 lakh from the Madhya Pradesh Finance Corporation in March 2007 and bought machinery worth Rs 13,83,350 in August 2007, and had a fully operational factory before the Section 50 publication. Even if the development were incomplete, they relied on Rule 23(3) of the Madhya Pradesh Bhumi Vikas Niyam, 2012, under which a permission does not lapse at any time once execution of the project begins during its validity, and no revalidation is required.

What a writ court can and cannot do with a revisional order

The Court resolved the case on the scope of its own jurisdiction rather than on the planning merits, and set out the certiorari doctrine at length to do it.

It worked through the classical statement of the writ — that certiorari brings up the decision of an inferior tribunal so that it may be investigated, and quashes it if it does not pass the test, the underlying policy being that inferior authorities have limited powers and must be kept within their legal bounds. It quoted the Privy Council in Ryots of Garabandho v. Zamindar of Parlakimedi for the proposition that the writ does not issue to correct purely executive acts but will lie where the act of the inferior body is judicial rather than ministerial.

The operative test came from the four propositions in the seven-Judge Bench decision in Hari Vishnu Kamath v. Ahmad Ishaque, as summarised by a Constitution Bench in Custodian of Evacuee Property, Bangalore v. Khan Saheb Abdul Shukoor: certiorari issues to correct errors of jurisdiction; it issues where a tribunal acts illegally within its jurisdiction, as by denying a hearing or violating natural justice; the court acts in supervisory and not appellate jurisdiction, and so will not review findings of fact even if erroneous; and an error in the decision itself is amenable only if it is a manifest error apparent on the face of the proceedings, based on clear ignorance or disregard of law. A patent error can be corrected; a mere wrong decision cannot.

To that the judgment added the Supreme Court's recent decision in Shri Digant v. M/s P.D.T. Trading Co., which restates the limits of Articles 226 and 227 by reference to Radhey Shyam v. Chhabi Nath: the supervisory power is to be used sparingly, to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors, and is available where a tribunal assumed a jurisdiction it does not have, failed to exercise one it does, or exercised an available jurisdiction in a manner amounting to overstepping its limits.

Order

Measured against that standard, the Court found no valid reason to interfere with the order passed by the Director in revision under Section 51. No case was made out for the exercise of power under Article 226; and although the petitions were not filed under Article 227, no case was made out under that provision either, because no arbitrariness, perversity or illegality was found in the impugned order. All the petitions were dismissed.

The judgment then did not stop at dismissal. Noting that the matters had been pending since 2013 and 2014, and referring to a direction given earlier in one of the connected petitions, the Court directed that the necessary procedure be followed and that the authority do the needful to release the lands in question from the Town Planning Scheme as early as possible, preferably within four weeks.

What makes the outcome instructive is how little of it turns on town planning. The authority's case on the merits — that a departmental clarification of 2013 said land should not be released on the ground of a prior layout sanction — was never reached, because a writ court exercising supervisory jurisdiction does not sit over a revisional authority's view of its own statute unless that view is patently illegal. Section 51 says the Director's order is final, and a finality clause plus a narrow writ standard leaves very little room for the body whose order was revised.

The thirteen years are the other lesson. The landowners' factory was financed, equipped and operating before the scheme was announced, and the Director took their land out of it in 2011. The dismissal restores a position that has been correct since then, and the four-week direction exists because nothing had moved in the interval. For planning authorities elsewhere, the practical point is the one the maintainability argument raised and the Court did not need to decide: when a departmental superior reverses you in revision, the ordinary course is to implement the order, not to litigate it for over a decade and be told at the end to implement it in a month.