Bhopal Medical College Trust v. State Of M.P.

Vandana Kasrekar, J. - The petitioner has filed the present petition challenging the order dated 25.07.2013 passed by respondent no.3.

2. The petitioner is a Public Trust, registered under the provisions of Public Trust Act. One Shri Pradeep Dixit who is the member of the trust is duly authorized to file the present petition on behalf of the petitioner trust. The State Government executed a lease deed on 17.06.2010 in favour of the petitioner for opening a Medical College. As per Clause 14 of the lease deed the petitioner is not allowed to undertake construction activity without taking prior permission from all the local authorities including the Town & Country Planning Authority. The petitioner has to undertake the construction activity for the Medical College in line with the land use prescribed by the State Government in the Master Plan and due permissions in that regard had to be taken by the petitioner. Furthermore, Clause 6 of the said lease deed, casts an obligation on the petitioner to complete the construction activity within a period of three years from the date of grant of possession of the leased area to the petitioner. The possession of the said land was handed over to the petitioner on 05.08.2010 before that the petitioner vide letter dated 21.08.2009 had made request to the Director, Medical Education to issue no objection for establishing the Medical College. No objection was granted by all the authorities and thereafter a lease deed was executed in favour of the petitioner on 17.06.2010. The land use which is allotted to the petitioner under the Master Plan of 2005 for the City of Bhopal is agriculture. The Director, Town & Country planning, vide letter dated 11.09.2008 requested the Principal Secretary, Ministry of Housing & Environment for change of land use from agricultural to public and semi public in terms of Section 23-A of the Nagar Tatha Gram Nivesh Adhiniyam. The Deputy Secretary Ministry of Housing & Environment has issued a letter dated 18.12.2008 stating that the land which is allotted to the petitioner was reserved for establishment of Medical College with the condition of change of land use. The Ministry of Environment & Forest also vide its decision dated 13.10.2008 had reserved the area for establishment of Medical College subject to the change of land use from agricultural to public and semi public. The petitioner, therefore, submitted number of representations to the State Government to change the land use of the leased area in terms of Section 23-A of the Nagar Tatha Gram Nivesh Adhiniyam. Thus, the petitioner could not undertaken the construction activity without prior approval and change of land use under Section 23-A of the Nagar Tatha Gram Nivesh Adhiniyam, as the area in question is reserved for agricultural purpose. The State Government thereafter issued a show cause notice to the petitioner on 22.06.2013 whereby the petitioner was asked to show cause, as to why the lease deed dated 17.06.2010 should not be cancelled in terms of violation of condition 6 of the lease deed. The petitioner has filed a detailed reply to the said show cause notice and also filed a writ petition no.13019/2013 challenging the said show cause notice. The said writ petition was allowed vide order dated 02.08.2013 and show cause notice dated 22.06.2013 was kept in abeyance with a direction to the State Government to disposed off the application for change of land use in terms of Section 23-A of the Adhiniyam within a period of two months in order to facilitate the process of diversion of land under Section 172 of the M.P.L.R.C.. In compliance of the directions issued by this Court, the petitioner has submitted an application for change of land use along with order dated 02.08.2013. However, as this order was not complied with the petitioner, therefore, was constrained to file Conc. Petition No.2255/2013. In compliance of the order dated 02.08.2013, the State Government has issued a notification dated 18.07.2014 for changing the land use. The order passed in a writ petition was challenged by the respondents by filing a Review Petition i.e. R.P. No.594/2014 on the ground that the leased issued in favour of the petitioner has already been cancelled vide order dated 25.07.2013. The said review petition was allowed and the W.P. No.13019/2013 was restored to its original number. Learned counsel for the petitioner submits that the order dated 25.07.2013 was never served on him. The petitioner was never informed about the issuance of impugned order dated 25.07.2013. Being aggrieved by that order, the petitioner has filed the present writ petition.

3. Learned counsel for the petitioner argues that the order dated 25.07.2013 by which the lease of the petitioner has been cancelled by the Collector is illegal and arbitrary. He submits that the lease of the petitioner has been cancelled on the ground that the petitioner has not undertake the construction activity in compliance of Clause 6 of the lease deed. Learned counsel for the petitioner submits that the petitioner has made number of applications to the authority for change of the land use from agricultural to public and semi public use in terms of Section 23-A of the Nagar Tatha Gram Nivesh Adhiniyam, however, no action has been taken by the respondents in that matter. In absence of any such change of land use, the petitioner was not in a possession to carry out the construction activity. He further submits that the Collector has no power to cancelled the lease in terms of Section 182(2) of the Land Revenue Code, 1959. He further submits that there is no clause in the lease deed which provides that due to non compliance of any clause the lease deed will be cancelled and in absence of any expressed provision provided in the lease deed dated 17.06.2010 for cancellation of lease deed, the lease cannot be cancelled. He further submits that due to the delay on the part of the respondents authorities, the petitioner was not able to carry out the construction activity and, therefore, in such circumstances, the lease of the petitioner could not have been cancelled by the respondents.

4. The respondents have filed their reply and in the reply they have stated that the petitioner was allotted a piece of land on 17.06.2010 on lease and possession of the said piece of land was given on 05.08.2010. The Collector has examined the case of the petitioner and noted that the said land was allotted without any consideration and as per Clause 6 of the lease deed, the lessee was required to complete the construction of the Educational Institute within a period of three years of grant of permission. Thus, by 05.08.2013, the construction should have been completed. The Collector also noted that as per Clause 14 of the lease deed, the lessee was obliged to obtain necessary permission and no objections from the concerned authorities, but the petitioner had not started the construction and the land was lying vacant and without diversion. It is also mentioned in the order that the petitioner has not produced any documentary evidence to show that any steps were taken by them for diversion of the said land. Therefore, the Collector, Bhopal has passed the said order, cancelling the lease executed in favour of the petitioner and directed the SDO (Revenue) to record the said land in the name of the State Government. The respondents have further submitted that as per the land use of the land which is allotted to the petitioner is agriculture as per Bhopal Development Scheme, 2005. There is no encroachment on the said land, Under the provisions of Section 23(A) Nagar Tatha Gram Nivesh Adhiniyam change of the land use to public and semi public is essential before constructing a Medical College on the land. The petitioner had also requested the Under Secretary to the Government of Madhya Pradesh, Housing and Environment Department for change of land use, but it is apparent that this application has been made to an inappropriate authority in as much as the land use is changed by the Town and Country Planning Department. The letter dated 02.03.2009 also does not mention the Khasra number and change of land use has been sought for which land. Neither it bears any signatures nor has any seal of acknowledgment from the addressee. The circular dated 17.08.1998 on which the petitioner is relying is not applicable in the present case as the petitioner has failed to obtain necessary permission from the Medical Council of India(MCI) within a period of two years. The Collector has passed the impugned order after considering the reply submitted by the petitioner. Thus, no ground is made out by the petitioner for setting aside the order dated 25.07.2013 passed by the Collector. Learned counsel for the respondents further relied on the judgment passed by the Apex Court in the case of Rajasthan State Industrial Development and Investment Corporation reported in 2013(5)SSC, 470, as well as the judgment passed by the Division Bench of this Court in the case of Chaman Fabrication v. State of Madhya Pradesh & Ors. passed in W.A. No.688/2016 on 03.02.2017 and the judgment passed by the Single Bench of this Court in the case of M/s. Suvidha Law House Pvt. Ltd v. The M.P. Audhyogik Kendra Vikas Nigam (Bhopal) Limited and Others passed in W.P. No.9944/2013 on 20.06.2017.

5. Heard learned counsel for the parties and perused the record. In the present case, the petitioner is a Public Trust, registered under the Public Trust Act. A lease deed was executed in favour of the petitioner on 17.06.2010 by the State Government for opening the Medical College. As per the Clause 14 of the lease deed, before raising the construction, the petitioner is required to take permission from all the local authorities including the town and country planning authority. The Clause 6 of the said lease deed also provides that the construction shall be completed within a period of three years from the date of possession. In the present case, the land in question was reserved for agriculture purposes in the master plan by the State Government and therefore, before constructing a Medical College, the land use of the land is required to change. The possession of the property was given to the petitioner on 05.08.2010, prior to that, the petitioner vide letter dated 21.08.2009 had requested the Director Medical Education to issue no objection for establishing the Medical College. It has stated that after getting no objection from all the departments, the lease deed was executed in favour of the petitioner on 17.06.2010. The Director town and country planning vide letter dated 11.09.2008 has requested the Principal Secretary Ministry of Housing and Environment for change of land use from agricultural to public and semi public in terms of Section 23-A of Nagar Tatha Gram Nivesh Adhiniyam. The Ministry of Environment and Forest also vide its decision dated 13.10.2008 had reserved the area for establishment of Medical College subject to change of land use from agricultural to public and semi public. The petitioner, thereafter, requested the State Government to change the land use of the land area in terms of Section 23-A of the Adhiniyam. However, no action has been taken by the respondents thereafter a show cause notice was issued to the petitioner on 22.06.2013 where by he was asked to show cause as to why the lease deed dated 17.06.2010 should not be cancelled in terms of violation of condition no.6 of the lease deed. The petitioner has filed a writ petition no.13019/2013 challenging the said show cause notice. This Court vide order dated 02.08.2013 has allowed the said writ petition and directed the State Government to disposed off the application of the petitioner for change of land use in terms of Section 23-A of the Adhiniyam within a period of two years, however, as the lease deed of the petitioner was already cancelled by the Collector, therefore vide order dated 25.07.2013, therefore, the State Government has filed a Review Petition No.594/2014 before this Court which was allowed and the writ petition no.13019/2013 was restored to its original number. As the order dated 25.07.2013 was communicated to the petitioner later on he, therefore, filed the present petition challenging the said order. The lease deed has been executed between the petitioner and the State Government on 17.06.2010. The Clause 6, 13 and 14 are relevant for the present case which are reproduced as under-

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6. As per the Clause-6, the petitioner is required to complete the construction within a period of three months. The Clause 14 further provides that before raising the construction, the petitioner is required to take no objection from all authorities and the Clause 13 further provides that if the land is not use for the purpose for which it was allotted then the said land will be vested in the State Government and the lessee will not entitled to get compensation. In the present case a lease deed was executed on 17.06.2010 and the land in dispute was reserved for agriculture purposes in the Master Plan of Bhopal City and, therefore, as per Section 23-A of the Adhiniyam it is for the petitioner to take steps for changing the land use from the agricultural to semi public and public purpose as per Clause 14 of the lease deed. The Collector has passed the impugned order thereby cancelling the lease of the petitioner on the ground that the petitioner has failed to make the construction within a period of three years. He further observed that the petitioner has not filed any document to show that the petitioner has submitted any application for diversion before the competent authority and as per Clause 14 of the lease deed it is the duty of the lessee to get appropriate sanctions from all the authorities. On these grounds, the Collector has cancelled the lease issued in favour of the petitioner. While cancelling the lease of the petitioner, the Collector has failed to consider that the petitioner vide letters dated 02.03.2009 and 09.08.2010 has requested the Secretary of Housing and Environment Department who is the competent authority to change the land use, however, no action has been taken by the State Government for changing the said land use. Therefore, the delay cannot be attributed to the petitioner for not raising the construction within a period of three years. Thus, the order passed by the Collector is deserves to be set aside. So far as, the judgment relied on by learned counsel for the respondents is concerned in that case the petitioners themselves have failed to raise the construction within prescribed time as given in the lease deed and, therefore, the said judgments would not be applicable in the present case.

7. Consequently, the writ petition is allowed and the impugned order passed by the Collector dated 25.07.2013 is hereby set aside.