TaxTMI 
TaxTMI 
2012 (1) TMI 374
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....ief Executive Officer, Gwalior Development Authority (for short " the GDA"), who, by the said order, had terminated the lease of the first Respondent herein and directed it to surrender the possession of the property within seven days, failing which appropriate action to be taken against it in accordance with law, is called in question. 3. The succinct expose' of facts are that the GDA issued an advertisement for allotment of plot No. 1 admeasuring 40160 sq. feet situated in the locality known as Mayur Market for the purpose of construction of a cinema house and, in the public auction, the Respondent- company, the first Respondent herein, became the highest bidder and accordingly, a lease agreement was executed on 27.5.1978 between the GDA and the Respondent company. The said lease agreement was for a period of thirty years with the stipulation of a right of renewal subject to certain conditions. It was asserted in the writ petition that after execution of the lease deed, the Respondent company constructed a cinema hall and commenced the business. As certain disputes arose between the directors of the company, it was eventually resolved that the licence for running t....
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....d question will be decided when the State Government takes any action against the Petitioner by the Respondent GDA. 6. Being dissatisfied with the aforesaid order, the first Respondent preferred a writ appeal and the Division Bench in the intra-court appeal expressed the opinion that no notice of termination of lease was given despite the same being imperative and secondly, there was no commission of breach of the express conditions of the lease deed and hence, the cancellation was totally unsustainable. With regard to taking over possession, the Division Bench opined that the authority cannot assume the jurisdiction of taking possession without taking recourse to law. It is apt to note that on behalf of the State, a stand was vigorously canvassed that when there has been no transfer of the land by the State in favour of the GDA, the grant of lease by the GDA in favour of the first Respondent-company is ab initio void and, therefore, no right flows in favour of the said Respondent to retain the possession. The learned Judges repelled the said stand on the base that when the GDA had granted lease in the auction that was conducted with the knowledge of the State, it is estopped fro....
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....t Respondent to enjoy the benefit of the lease. It is his further submission that when the State Government has become totally oblivious of its right, if any, it cannot rise like a phoenix and put forth its claim to the property. It is highlighted by him that under the M.P. Town Improvement Trust Act, 1960 (for short "the 1960 Act"), and Madhya Pradesh Nagar Tatha Gramin Adhiniyam, 1973 (for brevity "the 1973 Act") the schemes having come into existence, the property had vested in the GDA and, therefore, the State Government has no right to interfere and in that backdrop, the finding recorded in the intra-court appeal that there has been lack of notice prior to the cancellation of the lease and further no violation of any of the postulates of the lease agreement cannot be flawed. 9. Mr. Neeraj Sharma, Learned Counsel appearing for the 2nd Respondent, the GDA, contended that the land was recorded as 'Nazul' meant for the Public Works Department and was never transferred to the GDA and in that background, the question of estoppel or acquiescence by the State Government does not arise. In fact, submits the Learned Counsel, by a total mistaken impression, ....
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....ation contrary to the statutory rules. It was held that it would not amount to estoppel against the Department. 22. Whether a Promissory Estoppel, which is based on a 'promise' contrary to law can be invoked has already been considered by this Court in Kasinka Trading v. Union of India (1995) 1 SCC 274 : (AIR 1995 SCW 680) as also in Shabi Construction Company Ltd. v. City and Industrial Development Corporation (1995) 4 SCC 301 wherein it is laid down that the Rules of "Promissory Estoppel" cannot be invoked for the enforcement of a 'promise' or a 'declaration' which is contrary to law or outside the authority or power of the Government or the person making that promise. In this context, we may profitably refer to the decision of this Court in M/s. Sharma Transport v. Government of A.P. and Ors. AIR 2002 SC 322, wherein a three-Judge Bench opined that it is equally settled law that promissory estoppel cannot be used compelling the Government or a public authority to carry out a representation or promise which is prohibited by law or which is devoid of the authority or power of the officer of the Government or the public authority to make. In th....
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....nt or the State Government shall, subject to such condition as it may impose, vest in the Trust for the purpose of the scheme. (2) The publication of a notification under Sub-section (1) in respect of any scheme shall be conclusive evidence that the scheme has been duly framed and sanctioned." On scanning of the aforesaid provision, it is luminous that Sub-section (2) of Section 52 postulates that publication of a notification under Sub-section (1) in respect of any scheme shall be conclusive evidence that the scheme has been duly framed and sanctioned. 13. Chapter V of the Act deals with acquisition and disposal of land. Section 67 empowers the Trust to acquire by purchase, lease or exchange any land within the area comprised in a sanctioned scheme for many persons under an agreement with such person. Section 68 provides for notice of acquisition of land. As the learned senior counsel for the Respondent has placed heavy reliance on the said provision, the same is reproduced below: 68. Notice acquisition of land- (1) If in the opinion of the Trust any land is required for the purposes of any scheme sanctioned by the State Government under Section 51, the Trust shall by a....
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....possession thereof to the Trust or any person duly authorised by it in this behalf within thirty days of the service of the notice. (4) If any person refuses or fails to comply with an order made under Sub-section (3), the Trust may take possession of the land and may for that purpose cause to be sued such force as may be necessary. 15. On a closer scrutiny of the schematic conception of the Act, especially the provisions contained in Chapter 5 of the 1960 Act dealing with the acquisition of land belonging to private persons, it is demonstrable that the various provisions deal with the acquisition and improvement of the area under the planned schemes. It is seemly to note that the type of improvement schemes being delineated under Section 31 of the 1960 Act are fundamentally general improvement schemes, re-building scheme, re-housing schemes, a street scheme, deferred street scheme, development scheme, housing accommodation scheme, town expansion scheme, drainage or drainage including sewage disposal scheme; and playground, stadium and recreation ground scheme. The aforesaid has nothing to do with the land belonging to the State Government. Any land coming under the scheme or co....
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....ing Act, 1948 (No. 17 of 1948), shall stand repealed in such area; (ii) any land use map, draft development or development plan prepared under the said Act, shall be deemed to have been prepared under this Act and all papers relating thereto shall stand transferred to the Director; (C) the establishment of the Town and Country Development Authority for any area the following consequences shall ensue in relation to that, area, namely - (i) the Madhya Pradesh Town Improvement Trust Act, 1960 (No. 14 of 1961), shall stand repealed in its application to the said area, (ii) the Town Improvement Trust functioning within the jurisdiction of the Town and Country Development Authority so established shall stand dissolved and any Town Improvement Scheme prepared under the said Act, shall in so far as it is not inconsistent with the provisions of this Act be deemed to have been prepared under this Act, (iii) all assets and liabilities of the Town Improvement Trusts shall belong to and be deemed to be the assets and liabilities of the Town and Country Development Authority established in place of such Town Improvement Trust under Section 38; iii-a) grants and contributions payab....
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.... submission of Mr. Mehta, learned senior counsel, he has placed reliance on the said provisions solely for the purpose that the right created in favour of the GDA remained unaffected and, in fact, was protected under the 1973 Act. There is no cavil over the said proposition of law. But, a pregnant one, the crux of the matter is whether the land that was recorded as Nazul land meant for the Public Works Department got transferred to the GDA so that its right got concretized. 18. It is apt to note that the lands belonging to the State Government are dealt with in the Revenue Book Circular and nazul lands are specifically adverted to in Part IV of the said Circular. It deals with management and disposal of nazul lands within the limits of Municipal Corporation, municipal towns and notified areas. Under the heading 'What is Nazul', it has been stated thus: "'Nazul' and 'Milkiyat Sarkar' Land which is the property of Government and which - (a) is not included in a holding in a village; (b) is not recorded as Banjar, scrub jungle, hills and rocks, rivers, village-forest or Government-forest; (c) is not recorded as village roads, Gothan, grazing land ....
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....cial reason, such as their situation near a line of railway or the like, or which in any scheme of development have been set aside as specially valuable or as being required for a public purpose are marked of by the Settlement Officer in consultation with the Collector as reserved and the disposal of all such plots will be subject to the sanction of the State Government upon such special terms as may be decided for each plot. All land within a radius of 100 yards of a railway station and all land within 40 yards of a railway station boundary should be reserved. There will necessarily be exceptions such as for instance where there is a lay out already sanctioned by Government the Collector will maintain a list of these plots and with the approval of the State Government will alter it as the changing circumstances of the town may demand. 19. The Revenue Book Circular also stipulates that the classification of land is done at the time of settlement. The Collector of the district has been bestowed with the power to make alterations in the settlement classifications on the ground that they have been incorrectly made or that the purpose for which the land was used had changed in th....