TMI Blog2012 (1) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 9.8.2002 passed by the Chief 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the same on the foundation that the said 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stretch of imagination, the same cannot create any kind of concavity or dent in the right of the first 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 Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer was recruited as Assistant Commandant on temporary basis and was called upon to exercise his option for regularisation 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may order that any street, square, park, open space or other land, or any other part thereof, which is the property of the Government and managed by the Central Government 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. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely in the Trust free from all encumbrance. (3) Where any land is vested in the Trust under Sub-section (2), the Trust may by notice in writing, order any person who may be in possession of the land to surrender or deliver 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) the coming into force of the provisions of Chapter II the reference to Chief Town Planner in any enactment for the time being in force, shall be construed as a reference to the Director; (b) the Constitution of a planning area, the following consequences shall ensue, namely - (i) The Madhya Pradesh Town Planning 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 inconsisten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rict Judge; (iv) the High Court; As the case may be, in accordance with the provisions of the repealed Act, as if this Act had not been passed; (b) the Town and Country Development Authority, the Tribunal, the Court of the District Judge or the High Court, as the case may be, may proceed to deal with and disposed of the same from the stage at which such cases were left over at the time of repeal. 17. If we have correctly understood the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the encroacher on permanent lease. (3) When the land in question will be used for religious charitable, educational, co-operative, public or social purposes. (4) Plots given to very poor persons in a locality where only poor persons live. (5) Any other land for which there are adequate reasons for foregoing auction, e.g., land required by the Madhya Pradesh Electricity Board, State Road Transport Corporation, etc. 14. Reservation of special plots. - At regular settlement all Government plots or sites which are likely to be valuable for any special 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transferring it in favour of any authority, corporation or municipality, it maintains its own character, i.e., nazul land. In the case at hand, the land is recorded as nazul land for the Public Works Department. Nothing has been brought on record that it had ever been notified for transfer in favour of the GDA. Thus analysed, the GDA never became the owner of the land or had the authority to deal with the land and, therefore, it could not have put the land to auction for any purpose whatsoever. Ergo, the first Respondent cannot assert any right or advance any claim to remain in possession and run the cinema hall and that too after cancellation of the licence, solely on the basis of a lease granted by its lessor, a statutory authority, who had no right on the land for the simon pure reason that the ownership still remained with the State Government. When no right lies with the GDA in respect of the land in view of the conditions precedent as stipulated in the Revenue Book Circular not having been satisfied and the nature of the land has remained in a sustained state, no legal sanctity can be attached to the lease executed by it in favour of the 1st Respondent. The grant is fundament ..... 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