Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 6105 OF 2012
(Arising out of SLP No. 16416 OF 2011)
Mangal Amusement Park (P) Ltd. & Anr. ... Appellants
Versus
State of Madhya Pradesh & Others ... Respondents
J U D G E M E N T
H.L. Gokhale J.
Leave granted.
2. This appeal by special leave seeks to challenge the judgment
and order dated 19.5.2011 rendered by a Division Bench of the Madhya
Pradesh High Court dismissing the Writ Petition bearing No.5698/2008 filed
by the appellants herein. The said petition sought to challenge the change
of land-use from ‘commercial’ to a ‘regional park’ of a parcel of land
which had been allotted to the appellants in the town planning scheme of
Indore, and also the decision of the State Government that the concerned
land be utilized only after inviting fresh tenders.
3. The first appellant herein is a Company registered under the
provisions of the Companies Act, 1956, and the second appellant is its
Managing Director. The respondent No.1 to this appeal is the State of
Madhya Pradesh through its Principal Secretary, Department of Housing and
Environment, Bhopal, whereas the respondent No.2 is the Director of Town
and Country Planning of Madhya Pradesh. The third respondent to this
appeal is Indore Development Authority (“IDA” for short) through its
Chairman, whereas the fourth respondent is the same Authority through its
Chief Executive Officer. Shri Ranjit Kumar, learned senior counsel has
appeared for the appellants. Shri Vikas Singh, learned senior counsel has
appeared for the first two respondents, and Ms. Vibha Datta-Makhija,
learned counsel has appeared for respondent no.3 and 4.
Facts leading to this appeal:-
4. During November 1991 to February 1992, IDA floated tenders through
advertisements for setting up of an amusement park on a parcel of land
owned by it situated in village Bhamori-Dubey. The concerned land
admeasured about seven acres comprising of survey nos. 91 part, 92/1,
93/1, 93/2, 94/1, 94/2, 95/1, 95/2, 96/1, 96/2, 152, 155 part, 157, 159,
160, 162, 163, 164 part, 165 part and 166 part and was situated within
Scheme No.54. There is no dispute that under the then subsisting
Development Plan the designated land-use of these survey nos. was
‘commercial’. It is the case of the appellants that though they applied in
pursuance to the advertisement, and though the appellants were the most
eligible, IDA arbitrarily delayed the acceptance of their tender. This led
the appellants to file an earlier writ petition in the High Court of Madhya
Pradesh bearing M.P. No.313/1992 which was allowed by the High Court.
Consequently, the appellants were allotted this parcel of land for the
establishment of a Children’s amusement park.
5. Accordingly, IDA granted a license to the appellants, the terms
and conditions of which were as follows:-
“ LICENSE
(FOR AMUSEMENT CENTRE)
Dated 6.5.1994
This license is granted to Shri Ramesh Mangal son of Shri
Manikchand Mangal age 48 years, resident of 8/2, New Palasia,
Indore, Managing Director, M/s Mangal Amusement Park Pvt. Ltd.,
Indore, by the Indore Development Authority Indore (M.P.).
Terms and conditions of this license shall be as follows:-
TERMS AND CONDITIONS:-
The land measuring 7 acres is given to M/s Mangal Amusement Park
Pvt. Ltd. (hereinafter called the ‘Licensee vide letter No.4179
dated 4.4.1994 on license by the Indore Development Authority
initially for a period of 15 years. The licensee will have to
develop inside infrastructure such as path-ways, roads, boundary
walls, land installation of rides and games etc. at his own cost
as approved by the Authority. Construction of Food & Beverage’s
Centres, Kiosks, Shops, Administrative building, toilet shall
also be permissible as per requirement.
2. The period of license shall commence from the date of
activation of the park or 18 months from the date of giving
possession, whichever is earlier.
3. The period of completion of the project shall be 24 months
(inclusive of Monsoon season) from the date of handing over the
possession of the said land. Failing which, the license may be
terminated, forfeiting the Earnest Money and other payments, if
any, by the Authority.
4. The advance license fee shall be payable annually before
first of June. In case, the licensee fails to pay the fee on or
before the due date, an interest at the rate of 18% per annum
shall be charged for period defaulted. The interest shall be
calculated on the license fee itself for full calendar month.
5. In addition to the license fee, an amount equal to 25% of
the entry fee will be charged by the I.D.A. and has to be paid
by the licensee by 10th of next month.
6. Earnest Money of Rs.1,00,000/- has been kept with I.D.A.
and no interest shall be given on the amount of Earnest Money.
This amount shall be adjusted towards license fee 1,81,000.00
(Rs. One Lac eighty thousand only) per year on commission of the
project.
7. The Authority or an officer authorized in this behalf
shall have the power to examine the accounts of collection of
entry fee, as and when deemed fit. The Authority may further
regulate the mode of collection of entry fee. The duty of
collection of entry fee will rest on the licensee himself.
8. The license may be renewed for further period of 15 years
by enhancing the license fee, maximum by 40% and thereafter at
such a percentage as may be decided by the Authority.
9. Bank Guarantee of Rs.5,00,000/- (Rs. Five lacs only) given
by the licensee shall be redeemed after three complete years
from the date of activation of the amusement park.
10. The rides, games etc. should be bought from the suppliers
manufacturing these in India indigenously.
11. At least one roller coaster, one ferries wheel and bay
train, one set of merry cups, one Columbus and one telecombat
must be erected with other rides.
12. The complete amusement centre shall be operated and
managed by the licensee himself at his own cost and
responsibilities.
13. In the event of any increase or decrease in the area on
physical measurement, the license fee shall be subject to the
increase or decrease proportionately.
14. In the event of violation of any of the terms and
conditions mentioned hereinabove, on the part of the licensee,
the decision of the Chairman, Indore Development Authority shall
be final.
15. Land for which licnese is granted is marked in green
colour in………. plan.
SIGNATURE OF LICENSEE”
6. It is the case of the appellants that they submitted the plans,
maps and drawings for necessary construction, and thereafter started using
the concerned parcel of land as amusement park.
7. It so transpired that sometime in December 1999, respondent
nos.1 and 2 i.e. the State and the Town Planning Dept. initiated the
process of modification of the Development Plan. In that process it was
proposed to change the user of this parcel of land from ‘commercial’ to
‘regional park’ (i.e. a green area). The Chairman of IDA however, wrote in
that context to the respondent nos.1 and 2 on 7.12.1999 that such a change
was not desirable, since the use of the concerned land was already secured
for a specified purpose in the master plan. The State Govt. however
proceeded to issue a notification on 9.3.2001 under Section 23-A (2) of
Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (M.P. Act for short)
proposing the change of the land-use from ‘commercial’ to ‘regional park’,
and inviting objections thereto. The appellants did raise objections
against the proposed modification which were heard by the Principal
Secretary to the Govt. of Madhya Pradesh on 23.8.2001.
8. It is the case of the appellants that they wanted to put up a
banquet hall and an amusement club on this parcel of land, and therefore
sought the requisite permission from IDA. IDA in fact passed a resolution
bearing No. 133 on 8.5.2003 recommending grant of such permission though
subject to the conditions mentioned therein. The Chief Executive Officer
of IDA accordingly wrote to the Principal Secretary of the Madhya Pradesh
Govt. on 27.5.2003 for grant of this permission, and consequently for the
increase in the license fee. The State Govt. however wrote back on
23.9.2003 declining the request, and asking IDA to invite the tenders
afresh for the re-allotment of the plot (the appellants however contend
that there is a contrary note on the files of the respondents dated
29.9.2003 recommending the proposed use). That apart, ultimately the
Madhya Pradesh Govt. issued the notification approving the change in the
land-use from ‘commercial’ to a ‘regional park’ on 19.11.2003. It is this
letter dated 23.9.2003 and notification dated 19.11.2003 which were
challenged by the appellants by filing Writ Petition No.5698/2008 in the
High Court of Madhya Pradesh.
9. This letter dated 23.9.2003 reads as follows:-
“ M.P. Government
Housing and Environment Department
Ministry
Letter No.H-3-107/3/32 Bhopal Date 23.09.2003
To,
The Chief Executive Officer
Indore Development Authority
Indore, M.P.
Sub: Regarding grant of permission to Mangal Amusement Park
Pvt. Ltd. for the construction of Amusement Club, Banquet
Hall on the land allotted under plan No.54 of the Indore
Development Authority.
Ref: Your letter No.6314 dated 23.05.03.
Please take reference of the letter referred above, by which
Authority had sought permission from Govt. for proposal on land
allotted by Authority on lease 1994.
2. It has been established from the documents made available
by the Authority that proceedings by the Authority have not
been in accordance with the rules and there has been lack
of transparency. Therefore, it is not possible to give
permission on this proposal of Authority.
3. It is directed to Authority that it utilize the land in
question only after issuing fresh notification inviting
tenders.
Sd/-
Illegible
23.09.03
(C.C. Padiyar)
Under Secretary
M.P. Govt.
Housing and Environmental Department”
10. The notification dated 19.11.2003 reads as follows:-
“HOUSING & ENVIRONMENT DEPARTMENT
Vallabh Bhawan, Bhopal.
Bhopal dated 19th November, 2003.
No.F-3-47-0000-32 – The State Government vide its
Notification No.F-3-47-2000-32 dated 9th March, 2001 issued
under Section 23(A) (2) of the Madhya Pradesh Urban and
Rural Act, 1973 (Act No.23/1973) had proposed certain
modifications in public interests. Thereafter notices to
the above effect were also published in 2 leading
newspapers on 15th ad 16th March, 2001. Through said
notice, Objections were invited from the aggrieved persons
and ultimately 4 objections were received jointly and
individually. Thereafter objectors of the said objections
were heard on 3.8.2001 and 23.8.2001 and their objections
were considered and were finally rejected. Thereafter
Department sought an opinion from the Municipal Corporation
of Indore on the proposed modification and the Municipal
Corporation has granted its No Objection vide letter dated
1st June, 2001.
(2) In the premises aforesaid, State Government hereby confirms
modification of the following lands of Village Bhamori Dubey,
Indore, as described in Schedule ‘A’ hereunder, according to
user prescribed in the Indore Development scheme, 1991. It is
further informed that this modification will be an integrated
part of the Approved Indore Development Scheme, 1991 as well as
Draft Development Scheme, 2011.
SCHEDULE ‘A’
Land use modification of 18.222 Hectares and 17.931
Hectares situated in Village Bhamori Dubey under Indore
Development Scheme, 1991-
|Sr. |Survey |Area (In |Land user |Change land|
|No. |No. |Hect). |prescribed |use |
| | | |in the | |
| | | |Indore | |
| | | |Development | |
| | | |Scheme | |
|(1) |(2) |(3) |(4) |(5) |
|1. |257 & 259|9.134 |Regional |Commercial |
| | | |Park | |
|2. |258 part |0.113 |- “ - |“ |
| | | | | |
| |260 |1.000 |- “ - |“ |
|3. |261 |1.295 |- “ - |“ |
|4. |262 |1.474 |- “ - |“ |
|5. |264 |0.522 |- “ - |“ |
|6. |265 |2.429 |- “ - |“ |
|7. |265 part |2.255 |- “ - |“ |
| | |18.222 | | |
|8. |91 part |0.713 |Regional |Commercial |
| | | |Park | |
|9. |92/1 |0.429 |- “ - |“ |
|10. |92/2 |0.425 |- “ - |“ |
|11. |93/1 |1.060 |- “ - |“ |
|12. |93/2 |1.064 |- “ - |“ |
|13. |94/1 |0.235 |- “ - |“ |
|14. |94/2 |0.235 |- “ - |“ |
|15. |95/1 |0.219 |- “ - |“ |
|16. |95/2 |0.223 |- “ - |“ |
|17. |96/1 |0.117 |- “ - |“ |
|18. |96/2 |0.117 |- “ - |“ |
|19. |152 |0.174 |- “ - |“ |
|20. |155 part |0.267 |- “ - |“ |
|21. |157 |0.186 |- “ - |“ |
|22. |159 |0.344 |- “ - |“ |
|23. |160 |0.360 |- “ - |“ |
|24. |161 |0.170 |- “ - |“ |
|25. |162 |8.259 |Commercial |Regional |
| | | | |Park |
|26. |163 |1.967 |- “ - |“ |
|27. |164 part |0.607 |- “ - |“ |
|28. |165 part |0.534 |- “ - |“ |
|29. |166 part |0.226 |- “ - |“ |
| | |17.931 | | |
In the name of and by Order of Governor
Shivanand Dubey,
Deputy Secretary”
11. The appellants point out that thereafter also the stand of IDA
was different from that of the concerned department as reflected in the
Notesheet of IDA dated 3.2.2005. Yet, ultimately it accepted the view-
point of the State Govt., and issued a show cause notice to the appellants
on 8.1.2007 alleging various breaches of the terms and conditions of
allotment. In para 7 and 8 thereof, it was alleged as follows:-
“7. You have not taken action to establish Children’s
Amusement Park on the land allotted violating conditions of
license. Half of the land is still undeveloped, vacant and
without any use given after 12 years of allotment.
8. Application for the construction of Amusement Club,
Banquet Hall on the land allotted, given by you establishes that
you do not want to run activities relating to Children’s
Amusement Park on the land allotted.”
The appellants were, therefore, asked to show cause as to why
the license of land allotted to them should not be cancelled.
12. It is the further case of the appellants that although this
show cause notice was issued on 8.1.2007, the Chairman of IDA once again
wrote to the Govt. on 29.11.2007 asking it to retain the land-use of this
particular parcel of land as commercial. The State Govt. however proceeded
to bring the modification into force with effect from 1.1.2008. It is at
this stage that the above writ petition No. 5698 of 2008 was filed with the
following prayers:-
(a) to strike down Section 23-A of Madhya Pradesh Nagar Tatha Gram
Nivesh Adhiniyam 1973 (which prayer was however not pressed),
(b) to quash the notification dated 19.11.2003, and
(c) to quash Govt.’s letter dated 23.9.2003 (which prayer was added
later on).
13. Contentions of the rival parties
The principle submission of the appellants was three-fold:-
(a) the document of allotment of the concerned parcel of land to
the appellants was a document of lease and not simply a license, and that
the appellants were entitled to the renewal thereof,
(b) the appellants had made good investment onto the concerned
parcel of land, and they had their legitimate expectations. Consequently,
the respondents were bound by the doctrine of promissory estoppel to renew
the allotment,
And
(c) the decision to change the land-use was a malafide one for the
benefit of another party which had its parcel of land in the vicinity,
where the land-use was changed from the previous one which was ‘regional
park’, to ‘commercial’. The change of use of land of the parcel allotted
to the appellants was effected to set off the resultant reduction in green
area, and to justify the change of land-use of the parcel of land allotted
to the other party.
14. The petition was opposed by respondent nos. 1 and 2 on the one
hand, and by respondents no.3 and 4 by filing their replies. They
contended principally as follows:-
(a) the concerned document of allotment was clearly a document of
license, and not that of lease. In any case, by that time the period of
license having expired after the lapse of 15 years, the appellants did not
have any case for renewal particularly when they had not put to use half of
the land for the purpose for which it was allotted, and when in fact they
wanted to use it for another purpose by putting up a banquet hall therein.
(b) Inasmuch as, the document of allotment was a license which was
valid only for 15 years, there was no question of the appellants having a
legitimate expectation for a renewal beyond 15 years. The respondents had
not promised any such renewal to the appellants to enable them to avail of
the doctrine of promissory estoppel.
(c) The modification in the development plan was effected after
considering all relevant factors and not for obliging anybody. No material
in support of their allegation had been produced by the appellants. The
change was effected after following the due process of law, viz. inviting
suggestions and objections, and hearing the concerned parties. The change
cannot be faulted on that count either.
15. The petition was heard by a Division Bench of the Madhya
Pradesh High Court which dismissed the same by its judgment and order dated
19.5.2011, after hearing the counsel for all the parties. This judgment is
under challenge in the present appeal.
16. Consideration of the rival submissions
The principle question to be considered is as to whether the
document of allotment of land dated 6.5.1994 was in any way a lease or a
license. As far as a lease is concerned, Section 105 of the Transfer of
Property Act, 1882, defines it as follows:-
“105. Lease defined.- A lease of immoveable property is a
transfer of a right to enjoy such property, made for a certain time,
express or implied, or in perpetuity, in consideration of a price paid
or promised, or of money, a share of crops, service or any other thing
of value, to be rendered periodically or on specified occasions to the
transferor by the transferee, who accepts the transfer on such terms.
Lessor, lessee, premium and rent defined. – The transferor
is called the lessor, the transferee is called the lessee, the price
is called the premium, and the money, share, service or other thing to
be so rendered is called the rent.”
As far as a license is concerned, the same is defined under Section 52 of
the Indian Easements Act, 1882, as follows:-
“52. “License” defined. - Where one person grants to
another, or to a definite number of other persons, a right to do, in
or upon the immovable property of the grantor, something which would,
in the absence of such right, be unlawful, and such right does not
amount to an easement or an interest in the property, the right is
called a license.”
From these two definitions it is clear that a lease is not a mere
contract but envisages and transfers an interest in the demised property
creating a right in favour of the lessee in rem. As against that a license
only makes an action lawful which without it would be unlawful, but does
not transfer any interest in favour of the licensee in respect of the
property.
17. The issue concerning the distinction between lease and license
came up for consideration before this court in Associated Hotels of India
vs. R.N. Kapoor reported in AIR 1959 SC 1262. In para 27 of his judgment,
Subba Rao,J. (as he then was) observed therein as follows with respect to
lease:-
27. There is a marked distinction between a lease and a
license. Section 105 of the Transfer of Property Act defines a lease of
immovable property as a transfer of a right to enjoy such property made
for a certain time in consideration for a price paid or promised. Under
Section 108 of the said Act, the lessee is entitled to be put in
possession of the property. A lease is therefore a transfer of an
interest in land. The interest transferred is called the leasehold
interest. The lessor parts with his right to enjoy the property during
the term of the lease, and it follows from it that the lessee gets that
right to the exclusion of the lessor…..”
Thereafter, the learned Judge referred to the definition of license, then
observed as follows:-
“Under the aforesaid section, if a document gives only a
right to use the property in a particular way or under certain terms
while it remains in possession and control of the owner thereof, it
will be a license. The legal possession, therefore, continues to be
with the owner of the property, but the licensee is permitted to make
use of the premises for a particular purpose. But for the permission,
his occupation would be unlawful. It does not create in his favour any
estate or interest in the property. There is, therefore, clear
distinction between the two concepts. The dividing line is clear though
sometimes it becomes very thin or even blurred.”
18. Subba Rao, J., thereafter referred to the judgments of Court of
Appeal in Errington V. Errington, 1952-1 All ER 149, and Cobb V. Lane, 1952-
1 All ER 1199, and then observed as follows:-
“The following propositions may, therefore, be taken as
well-established : (1) To ascertain whether a document creates a
license or lease, the substance of the document must be preferred to
the form; (2) the real test is the intention of the parties - whether
they intended to create a lease or a license; (3) if the document
creates an interest in the property, it is a lease; but, if it only
permits another to make use of the property, of which the legal
possession continues with the owner, it is a license; and (4) if under
the document a party gets exclusive possession of the property, prima
facie, he is considered to be a tenant; but circumstances may be
established which negative the intention to create a lease.”
These propositions have been quoted with approval subsequently by a
bench of three Judges in Konchanda Ramamurty Subudhi (dead) V. Gopinath
Naik and Ors. reported in AIR 1968 SC 919, and in Capt. B.V. D’Souza V.
Antonio Fausto Fernandes reported in AIR 1989 SC 1816.
19. (i) Having seen this legal position, we may now examine the
submissions of the rival parties. It was submitted by Shri Ranjit Kumar,
learned senior counsel that, it has to be noted that though the document of
allotment states that the license is granted initially for a period of 15
years, clause 8 thereof adds that it may be renewed for a further period of
15 years by enhancing the license fee maximum by 40%, and thereafter at
such a percentage as may be decided by the authority. This indicated the
permission to the allottee to remain on the concerned parcel of land for a
period of 30 years and more, and should therefore be construed as creating
an interest in the parcel of land. Therefore, in his submission the
document of allotment created a lease, and renewal thereof was a matter of
formality, and the IDA was bound to renew the document. He referred to the
judgment of this Court in Sudhir Kumar & Ors. vs. Baldev Krishna Thapar &
Ors. reported in 1969 (3) SCC 611 to submit that a lessor cannot withhold
his consent for renewal unreasonably.
(ii) Shri Vikas Singh, learned senior counsel appearing for IDA and Ms.
Vibha Datta-Makhija, learned counsel for the State Govt. submitted on the
other hand that the possession of the allottee was merely a permissive one,
and that it was not exclusive to warrant an inference of creation of an
interest. In their view, the document of allotment when read in the
entirety makes it very clear that it was a license and not a lease.
20. In the instant case, if we peruse the document of allotment,
the following facts are noticed:-
(i) The first clause does provide that the land is given on
license initially for a period of 15 years, and clause 8 does lay down that
the license may be renewed for a further period of 15 years by enhancing
the license fee maximum by 40%, and thereafter at such a percentage as may
be decided by the Authority. We must, however, as well note the other
provisions in the document of allotment and their effect.
(ii) In the instant case, the document of allotment is called a ‘license’,
and the allottee is called a ‘licensee’. In the very first clause, it is
stated that the concerned parcel of land is given on license, and clause 4
refers to the amount payable by the licensee as the license fee which is to
be paid annually before the first of June.
(iii) Clause 11 of the document requires the licensee to provide the
specified games and rides in the amusement park. Not only that but clause
10 further requires that the rides, games etc. should be bought from the
suppliers manufacturing them in India indigenously.
(iv) Clause 7 authorises IDA to regulate the mode of collection of entry
fee, and clause 5 provides that the amount equal to 25% of the entry fee
will be charged by the IDA in addition to the license fee. Clause 7
further provides that the Authority (i.e IDA) or the officer authorised by
the Authority will have the power to examine the accounts of collection of
entry fee, as and when deemed fit.
21. It must also be noted that the concerned document has to be
read as a whole, and when we see the above clauses together, it becomes
clear that IDA retained complete control over the concerned parcel of land.
The manner in which the facilities in the amusement park were to be
enjoyed was completely controlled by the IDA. The IDA decided as to what
games and rides were to be provided. It also laid down as to from which
suppliers these games and rides were to be purchased. IDA further
regulated the mode of collection of entry fee, and had the right to examine
the accounts of collection thereof as and when it deemed fit. Over and
above, Clause 14 of the document specifically provided that in the event of
violation of any of these terms and conditions on the part of the licensee,
the decision of the Chairman of IDA will be final, indicating the right of
IDA to terminate the license in the event of such a contingency. Obviously
when all these clauses are seen together, it becomes clear that there was
no exclusive possession handed over to the appellants. Thus, the document
of allotment merely granted a permission to use the concerned parcel of
land in a particular manner, and without creating any interest therein.
Hence, if we apply the tests which have been laid down by this court way
back in the year 1959 (and followed subsequently) the document will have to
read as granting a license, and not a lease.
22. The appellants had challenged the legality of the letter/order
dated 23.9.2003 issued by the State Government to the IDA. That
letter/order while declining the proposal of IDA to permit the amusement
club and Banquet Hall proposed by the appellant, directed the IDA to
utilize the land in question after issuing fresh notification inviting
tenders. It was submitted that the IDA was in fact, favourably inclined to
consider the proposal of the appellants, and the said letter/order
indicated mala fides on the part of the State Govt. It was further
submitted that IDA was a body corporate under Section 39 of the M.P. Act,
and though section 73 empowers the State Government to give directions in
matters of policy, this power cannot be exercised to give the directions of
the kind contained in the letter dated 23.9.2003. In this connection it
was contended that assuming that the letter may not be found to be vitiated
by reason of malice on fact, but still it can be held to be invalid if the
same had been issued for unauthorized purpose as it would amount to malice
in law. Reliance was placed in this behalf on the proposition in paragraph
40 of the judgment of this Court in Punjab State Electricity Board Ltd. Vs.
Zora singh and Ors. Reported in 2005 (6) SCC 776.
23. In our view, the appellants have tried to make much ado about
the stand which the IDA took on earlier occasions in favour of the
appellants. One has to recognise that where different authorities are
dealing with a particular subject, it is quite possible that on some
occasions, they may take a stand different from each other, though
ultimately it is the decision of the competent authority which matters, and
it cannot be tainted with mala fides merely on that count. The following
observations of this Court in para 35 of Jasbir Singh Chhabra & Ors. vs.
State of Punjab reported in 2010 (4) SCC 192 are instructive in this
behalf:-
“35. It must always be remembered that in a democratic polity
like ours, the functions of the Government are carried out by different
individuals at different levels. The issues and policy matters which
are required to be decided by the Government are dealt with by several
functionaries some of whom may record notings on the files favouring a
particular person or group of persons. Someone may suggest a particular
line of action, which may not be conducive to public interest and
others may suggest adoption of a different mode in larger public
interest. However, the final decision is required to be taken by the
designated authority keeping in view the larger public interest. The
notings recorded in the files cannot be made basis for recording a
finding that the ultimate decision taken by the Government is tainted
by malafides or is influenced by extraneous considerations……”
24. The High Court has held in para 23 of the impugned judgment
that in any case admittedly the license had come to an end by efflux of
time in the month of the June 2010, and therefore the validity and legality
of the letter/order dated 23.9.2003 had become academic, and it was no
longer necessary to examine that issue. We cannot find fault with the High
Court on that account, since quashing of this letter cannot in any way lead
to the renewal of the license which had already expired. Besides, the
respondents had valid reasons not to renew the license as indicated in the
show cause notice dated 8.1.2007. The construction of Amusement Club or a
Banquet Hall could certainly not be a part of a Children’s Amusement Park.
The parcel of land was allotted for setting up of a children’s park with
games and rides as indicated in the document of license. Additionally,
what was permitted were the food and beverages centers, kiosks, shops,
administrative building and toilets, which would be in furtherance of this
objective. The Banquet Hall and an amusement club which would be used by
adults would not fit in the purpose of Children’s Amusement Park. As
stated in clause 8 of the show cause notice, it clearly indicated that the
appellants did not want to run the activity related to the Children’s
amusement park on the land allotted.
25. (i) It was submitted on behalf of the appellants that they had
made good investment in the concerned parcel of land with legitimate
expectations, and, therefore, the respondents were estopped from
discontinuing their allotment on the basis of the doctrine of promissory
estoppel. This submission was disputed by Shri Vikas Singh, learned senior
counsel appearing for IDA. He ,firstly, pointed out that more than half of
the land remained un-utilised even 12 years after the allotment, and, in
fact, the park was not functioning for quite sometime. The games and rides
which were placed on this parcel of land were in the nature of fixtures,
and not permanent additions as such, and could be removed therefrom when
the appellants were required to vacate.
(ii) Having noted these submissions we are of the view that since the
document of allotment was a license and not one creating any interest, the
provision of renewal contained therein cannot be read as laying down a
mandatory requirement. Besides, as stated above, clause 14 of the document
of license clearly stated that in the event of violation of any of the
terms and conditions on the part of the licensee, the decision of the
Chairman of IDA was final. Para 7 of the show cause notice in fact stated
that the necessary action to establish the Children’s Amusement Park had
not been taken since half of the land had remained undeveloped, and it
amounted to violating the conditions of license. The doctrine of
promissory estoppel can certainly not be permitted to be invoked on such a
background.
26.(i) The appellants had made one more prayer namely to quash
and set aside the notification dated 19.11.2003. Section 23-A of the M.P.
Act permits the modification of the provisions in the development plan by
following the due procedure of law as laid down therein. In the instant
case, a notification had been issued earlier on 9.3.2001 inviting the
objections to the proposed modification. The appellants were heard with
respect to these objections, and thereafter the notification dated
19.11.2003 had been issued approving the proposed modification. It was
contended on behalf of the appellants that the modification was a motivated
one. The appellants submitted that under the modification, a parcel of
land in nearby vicinity which was earlier reserved for a green area, was
now being permitted for a commercial use, whereas the user of the land
which was marked for the Children’s Amusement Park, was being changed to a
regional park. This was with a view to accommodate the constructions which
had come up on the other parcel of land in the vicinity.
(ii) In this connection we must note that the appellants had not joined
any of those parties for whose benefit this change had been allegedly made.
As held in Girias Investment (P) Ltd. vs. State of Karnataka & Ors.
reported in 2008 (7) SCC 53, in the absence of factual basis, the court is
precluded from going into the plea of malafides. As far as the land meant
for the Children’s amusement park is concerned, the same was hardly put to
the full use. In as much as this entire parcel of land of about 7 acres
was not utilized, and since it was an open parcel of land, there was
nothing wrong in the State Government deciding to retain it as an open
parcel of land, and to change the land-use thereof from commercial to a
regional park. The notification cannot be faulted on that count either.
27. In the circumstances, we do not find any error in the impugned
judgment of the High Court. The appeal is therefore dismissed. Parties
will bear their own costs.
…………..……………………..J.
( Surinder Singh Nijjar )
…………………………………..J.
( H.L. Gokhale )
New Delhi
Dated: 28th August, 2012
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