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Madhya Pradesh High Court · body

2006 DIGILAW 1258 (MP)

Niraj Desai v. State of M. P.

2006-11-08

N.K.MODY

body2006
ORDER 1. Short facts of the case as stated in the petition are that petitioner is owner of land bearing survey Nos. 211, 212, 213, 214, 215, 226, 228, 45/5, 45/6 and 45/7 situated at Village Bicholi Hapsi, Tehsil and District Indore. It is alleged that the petitioner moved an application for grant of colonization licence under the provisions of section 60-B of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (in short "Act, 1993") for development of the colony over the land in question. Pursuant to the said application, SDO Revenue, Indore directed the petitioner to deposit a fee of Rs. 3,000/- and also to produce bank guarantee of Rs. 50,000/- which was complied with by the petitioner by depositing requisite amount and also by furnishing the bank guarantee on 19.8.2004. It is submitted that thereafter Gram Panchayat directed the petitioner to deposit amount of Rs. 5,000/- for grant of NOC for carrying on colonization within the area of Gram Panchayat Bicholi Hapsi. Pursuant to the said direction, petitioner deposited Rs. 5,000/- with the concerned Gram Panchyaat on 20.8.2004. It is alleged that after depositing the requisite amount SDO Revenue, Indore granted colonization licence under section 61- B of the Act, 1993. Further case of the petitioner is that petitioner moved an application for grant of development permission dated 20.8.2004, which was forwarded by SDO Indore to respondent No.2 on 20.8.2004 itself. Vide letter dated 10.9.2004, the petitioner was asked by respondent No.2 to submit further information mentioning in the said letter. It is alleged that apart from other informations it was also asked to submit NOC from Indore Development Authority. It is submitted that reply was submitted by the petitioner on 22.12.2004, wherein all the queries raised by respondent No.2 in the letter dated 10.9.2004 as furnished except the submission of NOC of Indore Development Authority. For which·it was mentioned that it is not required: It is submitted that inspite of lapse of substantial time, no permission has been granted by the respondent No.2. It is submitted that under section 30 (5) of MP Nagar Tatha Gram NIvesh Adhiniyam, 1973, which shall be referred (hereinafter as "Nivesh Adhiniyam"), petitioner is holding the deemed permission. For which·it was mentioned that it is not required: It is submitted that inspite of lapse of substantial time, no permission has been granted by the respondent No.2. It is submitted that under section 30 (5) of MP Nagar Tatha Gram NIvesh Adhiniyam, 1973, which shall be referred (hereinafter as "Nivesh Adhiniyam"), petitioner is holding the deemed permission. The other ground which was taken in the petition was to the effect that the land in question has been incorporated in Scheme No. 164 of the respondent No. 3, which is illegal. So far as this ground is concerned, learned counsel submits that this point has been decided by this Court in WP NO. 04/ 2005 vide order dated 17.5.2006, whereby it has been observed by this Court that the resolution passed by respondent No.3 under section 50 (1) of the Act is valid. Learned counsel submits that in view of this the petitioner is not challenging the validity of the declaration under section 50 (2) of the Act. 2. Shri Asudhani submits that the respondent No.2 again compelled the petitioner to submit the NOC from the Indore Development Authority, while it is not the legal requirement. For this contention reliance is placed on a decision in the matter of Anupam Sahkari Griha Nirman Samiti Maryadit, Raipur v. State of M.P. and others [ AIR 1989 MP 163 ], wherein Division Bench of this Court has held that "There is no mention of enclosing any No Objection Certificate from the Town and Country Development Authority, yet respondent No.2 wrongly dismissed the application on the ground that the petitioner has not furnished "No Objection Certificate." 3. Since, the application for grant of permission is pending with the respondent No.2 from 20.8.2004 and vide letter dated 10.9.2004, queries has been made which has been duly received vide letter dated 22.12.2004, therefore, the respondent No.2 was duty bound to pass the order on the application either to grant or refuse the permission. So far as demanding of NOC from respondent No.3 is concerned, and withholding the dispose of the application is concerned was not proper on the part of respondent No.2 as the same was not required in view of the law laid down by Division Bench of this Court in the case of Anupam Sahkari Griha Nirman Samiti Maryadit (supra). So far as demanding of NOC from respondent No.3 is concerned, and withholding the dispose of the application is concerned was not proper on the part of respondent No.2 as the same was not required in view of the law laid down by Division Bench of this Court in the case of Anupam Sahkari Griha Nirman Samiti Maryadit (supra). However, since the land in question is already a part of Scheme No. 136 of IDA, and the validity of declaration of intention in this regard was challenged by the petitioner in which the petitioner was not successful, therefore, it is not a fit case in which it can be held that petitioner is entitled to claim deemed permission on account of failure of respondent No.3 in not entertaining the application in time. Facts of this case are not identical to the case of Anupam Sahkari Grah Nirman (supra), as in this case the publication of intention under section 50 (l) was found valid, which was not the position in that case. 4. In the facts and circumstances of the case, this petition is disposed of with the following directions: (a) that the petitioner shall submit the certified copy of the order of this Court along with the application before the respondent No.3 for consideration of application dated 20.8.2004. (b) After receipt of such an application the respondent No.3 shall dispose of the same by passing a reasoned order within 60 days. Respondent No.3 shall also give an opportunity of hearing to the petitioner. Respondent No.3 shall also visit the site before passing order on the application, if required. (c) Respondent No.3 is further directed to dispose of all the pending applications filed under section 30 of the Act, wherein permission for development is prayed within a period of 60 days, which is the statutory limit fixed under the law. No order as to costs.