IMPORTANT POINT
In the absence of factual basis, the court is precluded from going into the plea of malafides.

Headnote:Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 - Section 23-A(2) -Writ Petition filed by appellants challenging the change of land-use from commercial to a regional park of a parcel of land which had been allotted to the appellants in the town planning scheme of Indore, and also the decision of the State Government that the concerned land be utilized only after inviting fresh tenders- Dismissed by High Court -Appeal-Instantly document of allotment was called a license, and the allottee was called a licensee- IDA retained complete control over the concerned parcel of land- The manner in which the facilities in the amusement park were to be enjoyed was completely controlled by the IDA. -Clause 14 of document specifically provided that in the event of violation of any of these terms and conditions on the part of the licensee, decision of Chairman of IDA would be final, indicating the right of IDA to terminate the license in the event of such a contingency- All these clauses proved that there was no exclusive possession handed over to appellants- Since document of allotment merely granted a permission to use the concerned parcel of land in a particular manner, and without creating any interest therein, document would have to read as granting a license, and not a lease- In as much as this entire parcel of land of about 7 acres was not utilized, and since it was an open parcel of land, there was nothing wrong in State Government deciding to retain it as an open parcel of land, and to change the land-use thereof from commercial to a regional park, notification could not be faulted on that count either- No error found in impugned judgment of High Court-Appeal dismissed (Paras 20 to 27)
        Lease and Licence-Distinction between-A lease is not a mere contract but envisages and transfers an interest in the demised property creating a right in favour of the lessee in rem- As against that a license only makes an action lawful which without it would be unlawful, but does not transfer any interest in favour of the licensee in respect of the property (Para 16)
       Facts of the Case :
        Writ Petition was filed by appellants herein in the instant case challenging the change of land-use from commercial to a regional park of a parcel of land which had been allotted to the appellants in the town planning scheme of Indore, and also the decision of the State Government that the concerned land be utilized only after inviting fresh tenders. Said Writ petition was Dismissed by High Court.
        B.Present appeal has been filed against said order of High Court.
       Findings of the Court :
        There was no exclusive possession handed over to appellants. Since document of allotment merely granted a permission to use the concerned parcel of land in a particular manner, and without creating any interest therein, document would have to read as granting a license, and not a lease. In as much as this entire parcel of land of about 7 acres was not utilized, and since it was an open parcel of land, there was nothing wrong in State Government deciding to retain it as an open parcel of land, and to change the land-use thereof from commercial to a regional park, notification could not be faulted on that count either. No error found in impugned judgment of High Court. Appeal was dismissed.
       Result : Appeal dismissed

JUDGMENT

H.L. Gokhale J.-Leave granted.

2. This appeal by special leave seeks to challenge the judgment and order dated 19.5.2011 rendered by a Division Bench of the Madhya Pradesh High Court dismissing the Writ Petition bearing No.5698/2008 filed by the appellants herein. The said petition sought to challenge the change of land-use from ‘commercial’ to a ‘regional park’ of a parcel of land which had been allotted to the appellants in the town planning scheme of Indore, and also the decision of the State Government that the concerned land be utilized only after inviting fresh tenders.

3. The first appellant herein is a Company registered under the provisions of the Companies Act, 1956, and the second appellant is its Managing Director. The respondent No.1 to this appeal is the State of Madhya Pradesh through its Principal Secretary, Department of Housing and Environment, Bhopal, whereas the respondent No.2 is the Director of Town and Country Planning of Madhya Pradesh. The third respondent to this appeal is Indore Development Authority (“IDA” for short) through its Chairman, whereas the fourth respondent is the same Authority through its Chief Executive Officer. Shri Ranjit Kumar, learned senior counsel has appeared for the appellants. Shri Vikas Singh, learned senior counsel has appeared for the first two respondents, and Ms. Vibha Datta-Makhija, learned counsel has appeared for respondent no.3 and

4. Facts leading to this appeal:- 4. During November 1991 to February 1992, IDA floated tenders through advertisements for setting up of an amusement park on a parcel of land owned by it situated in village Bhamori-Dubey. The concerned land admeasured about seven acres comprising of survey nos. 91 part, 92/1, 93/1, 93/2, 94/1, 94/2, 95/1, 95/2, 96/1, 96/2, 152, 155 part, 157, 159, 160, 162, 163, 164 part, 165 part and 166 part and was situated within Scheme No.54. There is no dispute that under the then subsisting Development Plan the designated land-use of these survey nos. was ‘commercial’. It is the case of the appellants that though they applied in pursuance to the advertisement, and though the appellants were the most eligible, IDA arbitrarily delayed the acceptance of their tender. This led the appellants to file an earlier writ petition in the High Court of Madhya Pradesh bearing M.P. No.313/1992 which was allowed by the High Court. Consequently, the appellants were allotted this parcel of land for the establishment of a Children’s amusement park.

5. Accordingly, IDA granted a license to the appellants, the terms and conditions of which were as follows:-

“LICENSE (FOR AMUSEMENT CENTRE)

Dated 6.5.1994

This license is granted to Shri Ramesh Mangal son of Shri Manikchand Mangal age 48 years, resident of 8/2, New Palasia, Indore, Managing Director, M/s Mangal Amusement Park Pvt. Ltd., Indore, by the Indore Development Authority Indore (M.P.). Terms and conditions of this license shall be as follows:-

TERMS AND CONDITIONS:-

The land measuring 7 acres is given to M/s Mangal Amusement Park Pvt. Ltd. (hereinafter called the ‘Licensee vide letter No.4179 dated 4.4.1994 on license by the Indore Development Authority initially for a period of 15 years. The licensee will have to develop inside infrastructure such as path-ways, roads, boundary walls, land installation of rides and games etc. at his own cost as approved by the Authority. Construction of Food & Beverage’s Centres, Kiosks, Shops, Administrative building, toilet shall also be permissible as per requirement.

2. The period of license shall commence from the date of activation of the park or 18 months from the date of giving possession, whichever is earlier.

3. The period of completion of the project shall be 24 months (inclusive of Monsoon season) from the date of handing over the possession of the said land. Failing which, the license may be terminated, forfeiting the Earnest Money and other payments, if any, by the Authority.

4. The advance license fee shall be payable

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2012 Supreme(SC) 564

SUPREME COURT OF INDIA SURINDER SINGH NIJJAR & H.L. GOKHALE, JJ.MANGAL AMUSEMENT PARK (P) LTD. & ANR. - Appellants VERSUS STATE OF MADHYA PRADESH & OTHERS - Respondents Civil Appeal No. 6105 of 2012 (Arising out of SLP No. 16416 of 2011)Decided on : 28-08-2012.

IMPORTANT POINT In the absence of factual basis, the court is precluded from going into the plea of malafides.

Cases Referred (6)

SUPREME COURT OF INDIA
SURINDER SINGH NIJJAR & H.L. GOKHALE, JJ.
MANGAL AMUSEMENT PARK (P) LTD. & ANR. - Appellants
VERSUS
STATE OF MADHYA PRADESH & OTHERS - Respondents
Civil Appeal No. 6105 of 2012 (Arising out of SLP No. 16416 of 2011)
Decided on : 28-08-2012.

IMPORTANT POINT
In the absence of factual basis, the court is precluded from going into the plea of malafides.