Pradeep Jailswal vs State Of Madhya Pradesh And Others

Petitioner has filed the present petition being aggrieved by the order dated 06.11.2018 passed under section 51 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short 'the Adhiniyam of 1973') by the Commissioner whereby the revision filed by the petitioner has been dismissed.

The Ujjain Development Authority (UDA) has finalized the scheme No.19/11 by notification dated 01.03.2013. Being aggrieved by the publication of the scheme, the petitioner being the owner of land bearing survey No.59/5, Meen-2, Village Lalpur, Tehsil & District Ujjain filed a revision before the Commissioner under section 51 of the Adhiniyam of 1973. By order dated 06.11.2018 the Commissioner has dismissed the revision, hence the present petition.

Shri Rishi Tiwari, learned counsel appearing for the respondent/Ujjain Development Authority has raised a preliminary objection regarding the maintainability of the writ petition for want of the remedy available to the petitioner under section 52 of the Adhiniyam of 1973. Shri Tiwari submits that under section 52 of the Adhiniyam the State Govt. is competent to modify the town development scheme during its execution. He further submits that number of writ petitions filed before this Court pertaining to the same scheme have been dismissed by relegating to the petitioner to approach the State Govt. under section 52 of the Adhiniyam of 1973. One of the orders passed in W.P.No.2472/2019 is reproduced below:

WP-2472-2019

(M/S VIPPY INDUSTRIES LTD. THROUGH SHRI PRAKASH CHAKRAWARTI Vs HOUSING AND ENVIRONMENT DEPARTMENT)

Indore, Dated : 30-07-2019

Parties through their counsel.

The present petition has been filed by the petitioner against the order dated 06.11.2018 passed by the Commissioner Ujjain Division Ujjain. The facts of the case reveals that the petitioner was aggrieved with a notification issued under Section 50(7) of the M.P.Nagar Tatha Gram Nivesh Adhiniyam, 1973 and the revision preferred by the petitioner has been dismissed.

Learned counsel for the respondents have placed reliance upon Section 52 of the Adhiniyam of 1973 and their contention is that the petitioner is having a remedy to approach the State Government.

Section 52 of the Act of 1973 reads as under:-

"52. Powers of State Government to give directions. -

(1) The State Government may, if it considers it necessary in public interest so to do, give directions to the Town and Country' Development Authority [or Housing and Urban Development Authority of Chhattisgarh]:-

(a) to frame a town development scheme;

(b) to modify a town development scheme during execution;

(c) to revoke a town development scheme, for reasons to be specified in such direction : Provided that no direction to modify or revoke a town development scheme shall be given unless the Town and Country Development Authority [or Housing and Urban Development Authority of Chhattisgarh] is given an opportunity to present its case.

(2) The directions given by the State Government under this section shall be binding on the Town and Country Development Authority [or Housing and Urban Development Authority of Chhattisgarh]"

In the light of the aforesaid as the petitioner wants the scheme to be revoked, the petitioner does have a remedy to approach the State Government.

The Apex Court in the case of State of M.P. and others Vs. Kewal Yadav reported in (2004) 11 SCC 317 has held that the State Government is empowered to quash a Scheme. In another case Navlakha Shramik Avas Grah Nirman Shahakari Sanstha Maryadit Vs. State of M.P. And others reported in 2010 SCC Online MP 26 it has been held that the State Government is empowered to pass appropriate orders under Section 52 of the Act including modification of a particular Scheme.

In the present case the petitioner wants the Scheme to be revoked. Section 52(c) empowers the State Government to revoke a Scheme and therefore the present petition is disposed of with a liberty to the petitioner to approach the State Government.

It is needless to mention that the State Government shall decide the issue on merits after hearing the petitioner as well as the Ujjain Development Authority and the Director, Town and Country Planning Department.

Shri Pathak, learned counsel for the petitioner submits that under Section 52 of the Adhiniyam of 1973 the State Govt. may frame town development scheme, modify or revoke the scheme if it considers it necessary in public interest, therefore, the individuals have no remedy to approach the State Govt. under section 52. He further submits that the petitioner has filed the present petition challenging the order passed by the Commissioner and the said order cannot be challenged before the State Govt. under Section 52.

Sections 51 & 52 of the Adhiniyam of 1973 are two independent provisions in which the town development scheme framed by the development authorities can be examined. Under section 51, the State Govt. or an officer not below the rank of a Commissioner so authorized by it may, at any time, but not later than two years from the date of publication of the final town development scheme under section 50, either on own motion or on an application filed within thirty days of such publication of the final scheme by any person aggrieved by the final scheme, call for and examine the record of any scheme or after examining the record pass such order as it or he thinks fit. In parallel to the aforesaid provision general power has been given to the State Govt. under section 52 to frame the town development scheme or to modify the scheme during its execution or to revoke the scheme subject to opportunity of hearing to the development authorities or the Housing Board, as the case may be, therefore, sections 51 & 52 are two independent provisions in which the State Govt. is competent to interfere with the scheme, hence it cannot be construed that the order passed under section 51 is not appealable under section 52.

So far the contention of the learned counsel for the petitioner that only in the public interest the State Govt. can modify the scheme. The petitioner being a member of the public and affected by the scheme can also approach the State Govt. Even otherwise, this Court in W.P.No.2472/2019 has held that the State Govt. is empowered to revoke the scheme under section 52 of the Adhiniyam of 1973 and directed the State Govt. to decide the issue on merit after hearing the petitioner as well as the general public. In view of the above discussion, I have no reason to take a different view, hence the petition is dismissed with liberty to approach the State Govt. The order passed in W.P.No.2472/2019 shall apply mutatis mutandis in the present case also.