JUDGMENT
P.D. Mulye, J.
1. The petitioners, who are residents of Ratlam and some of the holders of the plots situated in the Colony known as Lal Bahadur Shastri Nagar have filed this petition in their individual capacity as also on behalf of the plot holders of the said colony in a representative capacity under Arts. 226 and 227 of the Constitution of India, to quash part 2 of the Resolution dated 18-4-1983 (Annexure-M) passed by respondent No. 1 and that the lease granted on 1-7-1983 by Respondent No. 1 in favour of Respondent No. 3 in pursuance of the said Resolution be quashed being void and thus the Res. No. 1 be directed not to act upon it, in the matter of M.P, Town Improvement Trust Act, 1960.
2. The facts giving rise to this petition, which are no longer in dispute, may be stated, in brief, thus: the plot holders of Shastri Nagar Colony, Ratlam have an Association named ‘Nagar Vikas Samiti, Shastri Nagar, Ratlam’ of which the plot holders and the residents in the said colony are its members. Res. No. 1 under the M.P. Town Improvement Trust Act, 1960 prepared a Housing accommodation scheme known as Scheme No. 20 which was duly sanctioned by the State Government for the town of Ratlam. The lay out plan of the said scheme No. 20 is Annexure-A. In pursuance of this scheme the Res. No. 1 started granting lease for the open plots of land in the said scheme for the purpose of construction of houses, in the year 1968, at the rate of Rs. 2 per sq.ft. Accordingly the petitioners were also granted lease patta in respect of the plots purchased by them, each measuring 30 ft. X 50 ft. as mentioned in para 5 of the petition. A copy of the lease deed has been filed as Annexure-B along with an extract of the map Annexure-C in which also the open land has been shown. Thus, all the open plots in scheme No. 20 have been given on lease by Res. No. 1 and houses have been constructed on most of them, after obtaining the permission from
respondent No. 2, the Municipal Corporation, Ratlam to whom they have been paying property taxes and other taxes.
3. In the said scheme, as per the map Annexure-A, open land measuring 56,539 sq.ft. has been set a part as an open land as per Annexure-Rl filed by respondent No. 1. The petitioners have got their plots in front of the said open land.
4. According to the petitioners this open land has been set apart for a garden for the residents in the said locality as provided in Section 30 of the M.P. Town Improvement Trust Act, 1960 and consequently this land having been reserved for the purpose of garden only, it has to be kept as an open land for ever. That the Nagar Vikas Samiti, Shastri Nagar, Ratlam by their letter dt. 16-3-1982 Annexure-D sought permission from respondent No. 1 to install a statue of late Shri Lal Bahadur Shastri in the said open land enclosing therewith the map Annexure-E showing where the statue was to be installed. Respondent No. 1 by their reply dt. 30-4-1982 Annexure-F informed the Samiti that the respondent No. 1 has transferred the entire scheme No. 20, Shastri Nagar to Respondent No. 2 in accordance with the Town Improvement Trust Act and by a subsequent letter dt. 21-5-1983 Annexure-G, the respondent No. 1 sanctioned permission for the installation of the statue of Shastriji in the said open place as requested by them. Thus, in short, according to the petitioners the entire scheme No. 20, after it was sanctioned by the State Government, was transferred to Respondent No. 2 in which it vested and thereafter the respondent No. 1 had no authority or jurisdiction to upset the scheme in any way.
5. The grievance of the petitioners has been that in July, 1983 they learnt that the respondent No. 1 was selling the open land reserved for garden in the said scheme to respondent No. 3. They, therefore, applied for a certified copy of the resolution, if any, passed by respondent No. 1 in this connection, but surprisingly a copy of the entire resolution No. 152 dt. 18-4-1983 was not sent to the petitioners, but only a part of it was communicated granting sanction for installation of the statue of Shastriji in the said open land known as Shastri Udyan by keeping
back the other part of the resolution regarding the granting of lease to Sindhi Samaj for the ‘ construction of a Dharamashala on the said open land. The petitioners, there fore. by their application dt. 29-7-1983 (Annexure-I) applied for a certified copy of the entire resolution which was supplied on 17-8-1983 as per annexure-M from which the petitioner learnt that the respondent No. 1 have passed a Resolution to give on lease the open land to Sindhi Samaj for the construction of a Dharamashala, at the rate of Rs. 3/- per sq.ft. without specifying the total area of the land which was to be granted to the Sindhi Samaj. The petitioners thereafter sent a telegraphic notice Annexure-J calling upon the Respondent not to dispose of the open land reserved for the purpose of garden.
6. Further grievance of the petitioners has been that though the market rate in Shastri . Nagar at the relevant time was Rs. 50/- per sq.ft. the deal to lease out the land at the rate of Rs. 3A per sq.ft. was fishy. The Vikas Samiti, therefore, by their letter dt. 16-8-1983 (Annexure-L) again called upon respondent No. 1 not to grant any lease for construction in the open land. It is also the grievance of the petitioners that at the relevant time the Chairman of the Town Improvement Trust, Ratlam was the same person who was also working as Administrator of the Municipal Corporation, Ratlam and in that capacity in the local daily ‘Alokan’ the respondent No. 2 had published a Notification dt. 12-10-1983 Annexure-P, stating therein that the entire scheme No. 20, Shastri Nagar Colony having already been transferred to respondent No. 2 seven or eight years before, the respondent No. 1 had no right or authority to grant any lease in respect of the open land left out for a garden. It is also the grievance of the petitioners that even though the lease is said to have been given for construction of a Dharmashala, a board installed near the open land as per the photograph Annexure-O would indicate that the Sindhi Samaj, Ratlam, in addition to the Dharmashala also wanted to construct a Hospital, Community Hall as also a High School for which no sanction was granted as per resolution No. 152. Thus, the entire conduct and action of respondent No. 1 in distributing the open land and trying to give it on lease to respondent No. 3 is illegal, void and fishy especially when this open land was
kept as an open land from the health and ventilation point of view for the residents of this colony.
7. The contention of Res. No. 1 has been that the petitioners have no locus standi to file this petition; that Scheme No. 20 has not yet been completed though no details have been given regarding the incomplete part of the said scheme; that the scheme has been transferred to Res. No. 2 in part only and that a portion of the open land, the details of which have also not been given, has been given on lease to Res. No. 3 at the rate of Rs. 3/- per sq.ft. according to the directives issued by the State Government, though no such directive has been placed on record that under Section 65 of the M.P Town Improvement Trust Act no resolution having been passed regarding the transfer of the open land, the respondent No. 1 has every right to lease out the open land.
8. Respondent No. 2, the Municipal Corporation, Ratlam, has supported the petitioner’s case in toto as according to them the entire scheme No. 20 was transferred to them long back and in support they have also placed on record Annexure-R/2/1 dt. 18-9-1975 which is written by Res. No. 1 to the President, Municipal Corporation, Ratlam, stating therein clearly that the trust has already transferred the scheme to the Corporation.
9. The Res. No. 3 have only stated that as they wanted to construct a Dharmashala they applied for it and that is how some land is granted to them on lease even though neither a copy of the lease deed has been filed nor it is made clear how much open land and in that portion of the open land the same has been given to them on lease.
9-A. Res. No. 4, the State of M.P. has not filed any returns at all.
9-B. After hearing the learned counsel, we are of opinion that this petition deserves to be allowed for reasons stated hereinafter. From the correspondents entered into between the parties, it is explicitly clear that the entire scheme No. 20 was handed over to the Municipal Corporation, Ratlam, long back. The contention of respondent No. 1 that by Annexure-R2, which is a letter dt. 22-5-1971 addressed by the Chief Municipal Officer, Ratlam, only charge of metalled road and
street lights were handed over to the Corporation cannot be accepted because this letter is sent in reply to the two letters sent by respondent No. 1, which have not been placed on record by respondent No. 1, but on going through the same from the record produced by Respondent No. 1 it is apparent that it cannot be inferred that the entire scheme No. 20 was not transferred to Municipal Corporation. This fact is further clear from the fact that in scheme No. 20 there is a big Nala regarding which a litigation was filed in the Court and in the decision reported in 1980 Jab LJ 135 as also in the Supreme Court decision reported in AIR 1980 SC 1622 (Municipal Council, Ratlam v. Vardhichand) which arose out of the same case that the Nala flowing through scheme No. 20 was also in actual possession of Res. No. 2 who were directed to do the needful. The learned counsel for Res. No. 1 was unable to point out that the possession of the Nala flowing through scheme No. 20 was transferred in piecemeal to Res. No. 2. It is, therefore, difficult to agree with the contention of the learned counsel for Res. No. 1 that the open land in scheme No. 20 continues still to be in possession of Res. No. 1.
10. Even from the resolution passed by respondent No. l, No. 152, it is clear that even they considered the open land as reserved for a garden and on that basis only permission was granted to the petitioners to install a statue on the open land, of late Shri Lal Bahadur Shastri. It is somewhat strange that when the petitioners had applied for a copy of the resolution No. 152, at first only a part of it was supplied to them and it is only after they applied for a certified copy that the entire copy of the resolution passed was given to them, which clearly indicates that respondent No. 1 deliberately wanted to keep back from the knowledge of the petitioners that the open land or a portion thereof has been decided to be given on lease to respondent No. 3. Though the Res. No. 1 has admitted that the market rate of the open land in scheme No. 20 at the relevant time when it was decided to give the lease to Res. No. 3 was Rs. 50/- per sq.ft. the same was given to Res. No. 3 at the rate of Rs. 3/- per sq.ft. as per the directives of the State Government. But as stated above no material has been placed, on record to that effect nor the State has filed any returns in support of the contention raised by Res. No. 1
11. A scheme of the M.P. Town Improvement Trust Act would indicate that even according to the various provisions of the said Act whenever a residential housing scheme is prepared according to Section 30 some open land has to be kept apart as open land for different purposes including garden, school, playground, etc., as mentioned in that section. It is, therefore, necessary also that whenever such a development scheme is undertaken for development of a colony it is always necessary to keep some open land for the benefit of the residents of the colony so that they can enjoy the facility of ventilation, light as also several amenities, which the Res. No. 1 was expected to provide. It is, therefore, quite clear that the said open land was purposely kept open for a garden on which no structure was even to come up. It is also clear that when the Res. No. 1 decided to lease out the open land to Res. No. 3, Res. No. 2 immediately by a public notice published in the local daily pointed out that the scheme having already been transferred to the Corporation, Res. No. 1 had no right or authority to lease out the open land or disturb it in any way.
12. It is also now in dispute that many houses have been constructed in the said scheme in which sanction was granted by Res. No. 2 and that property and other taxes are being paid to Res. No. 2. Therefore, in our opinion, the Res. No. 1 has failed to prove or convince us that in fact, according to Section 65 of the said Act the open land still vests in them and that the same has not yet been transferred to respondent No. 2.
13. After all a residential scheme is prepared with certain object from the view point of health, sanitation, light, air and other amenities to the people of the colony and in a proper Town Development Scheme it is also necessary to provide open space of land for roads, open spaces, gardens, playgrounds, stadia, recreation grounds, schools, markets, motor vehicle stands, theatres, public urinals and latrines, patrol service station, and public purposes of all other kinds depending upon the area of the scheme. From the map annexure-A it is clear that the open land has been kept with that purpose only. The Res. No. 1 in their returns have nowhere stated for what purpose, according to them, this land was kept open. Obviously this open land,
therefore, could not be leased out for purpose of a Dharamshala as has been done in the present case. In that case the Res. No. 1 should have given plots of land laid out in the said scheme for this purpose, but in no case the open land, which is kept reserved for the beneficial enjoyment of the residents of the colony and the plot holders, would be leased out in this manner.
14. It is also not the case of Res. No. 1 that when the scheme No. 20 was finalised and sanctioned by the State Government it was made clear to the persons who purchased these plots, including those plot holders whose plots are situated round about the open land, that the Res. No. 1 would be at liberty to change that purpose. In fact it is also not their case that regarding the said scheme they have proposed any modification in respect of the open land or that the same was sanctioned by the State Government. Therefore, it is clear that when the plots in the said scheme were offered to the public on the basis of the map Annexure-A, there was an implied promise given to the intending purchaser that the open land would be kept as an open land and, therefore, even on the principles of promissory estoppel the Res. No. 1 could not lease out any portion of the open land in the manner it has been done in the present case.
15. The M.P. Town Improvement Trust Act has been repealed by Section 87 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam (Act No. 23 of 1973). However, the learned counsel for Res. No. 1 was unable to pojnt out whether under Section 38 of the said Adhiniyam the State Government has by notification established a Town and Country Development Authority for the area of Ratlam. Therefore, even after considering the provisions of the M.P. Town Improvement Trust Act we are of opinion that the Res, No. 1 had no right or authority to lease out the open land to Res. No. 3. Thus, the entire action of Res. No. 1 is illegal.
16. In the result this petition succeeds and is allowed. Resolution No. 2 passed by Res. No. 1, No. 152 dated 18-4-1983 (Annexure-M) resolving to give a portion of the open land to Sindhi Samaj, i.e. Res. No. 3 at the rate of Rs. 3/- per sq.ft. is quashed and set aside. Consequently the lease deed executed by Res. No. 1 on 1-7-1983, in favour of Res. No. 3
in pursuance of the said Resolution is also quashed, being void and Res. No. 1 is directed not to act upon it and keep the open land shown in the map Annexure-A as an open land. However, considering the facts and circumstances of the case the parties are directed to bear their respective costs. The amount of security deposit, if any, after verification be returned to the petitioners.