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2016 DIGILAW 8 (MP)

Gagan Kanojiya v. Indore Development Authority

2016-01-04

J.K.JAIN, P.K.JAISWAL

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ORDER 1. Heard on the question of admission. 2. One Shanti Lal Sharma, Rajendra Kumar and Devendra Kumar Khandelwal, purchased plot No.1-A, situated at Anand Nagar ad-measuring 2075 sq.ft jointly, but the said plot was in triangular shape, hence with a view to make it a regular size plot adjoining plot to the said plot viz., plot No.47-A, situated in scheme No.47 of IDA ad-measuring 1694.45 sq.ft was got allotted in the name of Devendra Kumar Khandelwal. A dispute arose between the parties and, therefore, they filed a Civil Suit No.46-A/94, which was dismissed. 3. In first appeal, an application under Order 23 rule 3 was filed without pointing out rule 29 of M.P. Nagar Tatha Gram Nivesh Viksit Bhoomiyo, Griho, Bhavan Tatha Anya Sanrachanao Ka Vyayan Niyam, 1975 and, therefore, the said application was allowed and with the consent of the parties order dated 6.8.2010 was passed. Thereafter, they filed an application on 2.7.2013 (Annexure P-7), for sub-division of the plot and during pendency of the application, a writ petition was filed for issuance of writ of mandamus, directing the respondent – IDA to allow their application. The learned writ Court considering the provision of rule 29 of the Rules of 1975, passed the following order :- “This is second visit of the petitioner before this Court. The petitioner’s contention is that he is the joint owner of the plot no. 47-A situated at Scheme No.47 of Indore Development Authority (IDA). In the earlier round of litigation, following order was passed in First Appeal No.321/1998, which reads as under :- First Appeal No.321/1998 6.8.2010. Shri S.R.Saraf, Advocate for the appellant. Shri Harish Joshi, Advocate for respondents No.1 and 2. Shri Govind Purohit, Advocate for Ms.Vinita Phaye, Advocate for respondent No.3. Viney Mittal, J.(Oral) I.A.No.4591/2010 has been filed by the parties jointly signed by both the contesting parties. It has been stated in the aforesaid application that a civil suit filed by plaintiffs No.1 and 2, Shantilal (since dead, now represented by his LRs) and Rajendra Kumar (since dead, now represented by his mother) and a counter claim filed by Devendra- defendant No.1 had been disposed of by the learned trial Judge through a common judgment and therefore, two first appeals being First Appeal No.321/1998 and First Appeal No.397/1998 are pending in this Court on behalf of both the contesting parties. In the application, it has been stated that the matter has been amicably settled between the parties and it has been decided that the possession of the portions of the disputed property, in the respective possession of each of the parties, would be continued and the claim of the other contesting parties to the aforesaid portion shall be deemed to have been relinquished. The details of the compromise have been given in the application, which is duly signed by all the parties. Most of the parties are present in Court. Learned counsel for the parties state that they have instructions from their respective clients that the matter indeed has been amicably settled between the parties. Along with the application, a copy of the site plan, Schedule-A, has been appended, indicating the various portions of the properties in different colours. As per the application, the red colour portion is to be taken by the Branch of Pushpadevi, portions in green and yellow are to be taken by Shantibai, portions in sky blue and orange are to be taken by Devendra. Hence forth, the parties shall remain in possession of their respective portions, and shall be deemed to have become the absolute owners of the said portions. The controversy in question shall be deemed to have been fully settled in terms of the compromise. I deem it appropriate to accept the terms and conditions of the compromise and accordingly dispose of the two appeals, First Appeal No.321/1998 and First Appeal No.397/1998. The averments made in the application, as per the site plan, shall be deemed to be forming a part of the present Court order, and as such of the decree. Both the appeals First Appeal No.321/1998 and First Appeal No.397/1998 as well as I.A.No.4591/2010 are disposed of accordingly. C.C. as per rules. The petitioner’s contention is that the IDA is not executing the lease-deed in favour of the petitioner in respect of the plot owned by the petitioner. On the other hand, learned counsel appearing for IDA has placed reliance upon the rule 29 of the M.P. Nagar Tatha Gram Nivesh Viksit Bhoomiyo, Griho, Bhavan Tatha Anya Sanrachanao Ka Vyayan Niyam, 1975 framed by the State Government in exercise of the powers conferred under section 85 of M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973. On the other hand, learned counsel appearing for IDA has placed reliance upon the rule 29 of the M.P. Nagar Tatha Gram Nivesh Viksit Bhoomiyo, Griho, Bhavan Tatha Anya Sanrachanao Ka Vyayan Niyam, 1975 framed by the State Government in exercise of the powers conferred under section 85 of M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973. The same reads as under :- “29 No plot or land in any Authority layout shall be of a size less than the minimum size, sanctioned for such layout. No plot shall be sub-divided in a manner by which any of the sub-divided plot becomes lesser in size than the minimum size sanctioned for the layout in that locality.” This Court had also directed the IDA to file an affidavit stating the plot size in respect of the smallest plot under the scheme in question. The IDA has filed an affidavit and it has been stated that the minimum size of the plot sanction is 30 ft. × 40 ft. with open parking space of 10 ft. in front side, 8 ft. on side of the plot and 5 ft. at the rear portion of the plot, meaning thereby, total size is 1200 sq. ft. In respect of minimum size, the area sanctioned is 1200 sq.ft. The contention of the IDA is that they cannot divide the plot and execute the lease-deed. This Court does not have power to frame statute or to ignore a statute, which has been enacted by the legislature and once, a statute and a statutory scheme is in existence, in the considered opinion of this Court, the IDA is justified in not dividing the plot in question in light of the rule 29 and therefore, no order can be passed directing the IDA to divide the plot and to execute separate lease deed in light of the rule 29 of the Rules of 1975. Keeping in view the aforesaid, admission is declined. C.C. as per rules. 4. On due consideration of the aforesaid, we are of the view that the learned writ Court has not committed any legal error in dismissing the writ petition. 5. It is submitted that rule 29 has been substituted w.e.f. 27.5.2013 and this fact was not brought to the knowledge of the learned writ Court at the time of passing of the impugned order. 5. It is submitted that rule 29 has been substituted w.e.f. 27.5.2013 and this fact was not brought to the knowledge of the learned writ Court at the time of passing of the impugned order. As this question was not raised nor pointed out and, therefore, we are of the view that the learned writ Court has not committed any error in passing the impugned order. 6. No question of grant of liberty as prayed is made out. Prayer for grant of liberty is hereby rejected. 7. Writ appeal No.608/2015, has no merit and is, accordingly, dismissed.