Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 1247 (MP)

Ashraf Ali v. State of M. P.

2017-12-11

VANDANA KASREKAR

body2017
ORDER 1. The petitioner has filed the present petition challenging the orders dated 31.5.2013, 1.10.2013 and 25.6.2015 passed by respondents No.1 to 3. 2. Brief facts of the case are that the petitioner, who is a farmer by occupation, has submitted an application in the prescribed form/proforma for grant of permission to develop and construct a Farm House before respondent No.3 over the land bearing survey No.48 Khasra No.60 area 2.468 hectares situated at Badanpur District Jabalpur. The land in question of the petitioner is designated and reserved for plantation and city afforestation. The application filed by the petitioner for permission to develop and construct the Farm House over the land has been rejected by respondent No. 3 vide order 31.5.2013 on the ground that in the Jabalpur Development Plan, 2021; the proposed land is reserved for city afforestation and plantation and, therefore, the construction of Farm House is not permissible over the land in question. The petitioner has submitted an application in prescribed form as given in para 4.10 of the Jabalpur Development Plan 2021 as well as under rule 17 of the M.P. Bhoomi Vikas Rules, 2012 for grant of permission to develop and construct the Farm House over the said land. Respondent No. 3 has refused to accept the application form for grant of permission from the petitioner although the same was accompanied with the requisite fee of Rs.5000/- drawn by Union Bank of India on 19.2.2013 in the name of“ respondent No. 3 which was sent in the office of respondent No.3 by registered post on 26.2.2013. The application was duly received in the office of respondent No. 3 on 27.2.2013. The minimum required land for construction of Farm House is 1 acre or 43560 sq.ft. Which is equivalent to 4045 sq.meters, whereas the land owned by the petitioner for which the petitioner submitted an application for grant of permission is more than 12541 sq.meters i.e. 3.10 acres. Similarly, the maximum FAR (Floor Area Ratio) permissible ratio of constructed area is 0.10 i.e. total 10% of the plot area, is permissible ratio for Farm House, whereas the petitioner applied for construction on 4.93% of the total plot area of the agricultural land of the petitioner. Respondents vide letter dated 22.3.2013 has asked the petitioner to deposit requisite application fee through Bank Challan. On 1.4.2013 the petitioner submitted the Bank Challan receipt of Rs. 5000/- dated 28.3.2013. Respondents vide letter dated 22.3.2013 has asked the petitioner to deposit requisite application fee through Bank Challan. On 1.4.2013 the petitioner submitted the Bank Challan receipt of Rs. 5000/- dated 28.3.2013. Thereafter, on 31.5.2013, respondent No. 3 rejected the application but till 10.6.2013 not informed/ communicated/ intimated its decision through letter or served/supplied the copy of the order dated 31.5.2013 through any mode to the petitioner. The petitioner for the first time came to know about the order dated 31.5.2013 on 10.6.2013. In this way, respondent No. 3 consumed almost 93 days time in deciding the application for grant of permission or in passing the order dated 31.5.2013. The time consumed in correspondence is only 11 days. Hence as the respondents failed to communicate their decision regarding grant or refusal of permission for development of land within 60 days, on expiry of the period of 60 days of the receipt of the application, permission shall deemed to have been granted, as per section 35 of the M.P.Nagar Tatha Gram Nivesh Adhiniyam (herein after referred as ‘the Adhiniyam’). 3. Learned counsel for the petitioner submits that the application preferred by the petitioner has been rejected on the ground that the same land is reserved for plantation and city afforestation under the Jabalpur Development Plan 2021. The petitioner has submitted an application for grant of permission to change the land use under section 61(1)(a) of the Adhiniyam, 1973 for the purpose of agriculture is neither covered under para 1.11 nor para 1.12 of the existing Jabalpur Development Plan, 2021. The development and construction of Farm House is covered under the Rules, 2012 as well as under Clause/ para 4.10 of the Jabalpur Development Plan, 2021. Nowhere it is provided either under the Rules or under the Development Plan, 2021; the construction of Farm House over the land reserved for agriculture or plantation or city afforestation or any other purpose, no Farm House can be constructed. Against the impugned order dated 31.5.2013, the petitioner has preferred an appeal under section 31 of the Adhiniyam of 1973 before respondent No.1. Respondent No.1 vide order dated 8.5.2014 has decided the appeal and remanded the case back to the Joint Director, Town and Country Planning. Against the order dated 8.5.2014 petitioner has approached to this Court by filing a W.P.No.10771/2014. The said writ petition was allowed vide order dated 30.7.2014. Respondent No.1 vide order dated 8.5.2014 has decided the appeal and remanded the case back to the Joint Director, Town and Country Planning. Against the order dated 8.5.2014 petitioner has approached to this Court by filing a W.P.No.10771/2014. The said writ petition was allowed vide order dated 30.7.2014. While allowing the said appeal, this Court pleased to quash the order dated 8.5.2014 and directed the State Government to decide the representation within two months from the date of receipt of certified copy of the order. In pursuance to the direction issued by this Court, respondent No.1 had passed the order dated 25.6.2015 thereby rejecting the representation preferred by the petitioner. Against the said order, the petitioner has filed the present writ petition. 4. Learned counsel appearing on behalf of the petitioner argues that the impugned orders passed by respondents No. 1 to 3 are illegal or contrary to the law. He submits that the petitioner has submitted an application for construction of Farm House under section 30 of the Adhiniyam. On 26.2.2013 the said application was received in the office of respondent No.1 on 27.2.2013. As per section 30(5), if the Director does not communicate his decision whether to grant or refuse permission to the applicant within 60 days from the date of receipt of his application, such permission shall be deemed to have been granted to the applicant on the date immediately following the date on expiry of 60 days. On the basis of such section, he submits that in the present case, respondents have decide the application after 93 days and, therefore, as per this section 30(5) of the Adhiniyam, permission is deemed to have been granted. However, the respondents while rejecting his application for permission has not considered this fact. He further submits that the literal dictionary meaning of “Communicate” is to inform or to intimate or to make known. On the basis of dictionary meaning, the order passed by the respondents should have communicate to the petitioner as per section 30(5) of the Adhiniyam. 5. In the present case, he submits that although the order was passed within 60 days, however the same was communicated to the petitioner after expiry of the period of 60 days, therefore, permission is deemed to be granted as per section 30(5) of the Adhiniyam. 5. In the present case, he submits that although the order was passed within 60 days, however the same was communicated to the petitioner after expiry of the period of 60 days, therefore, permission is deemed to be granted as per section 30(5) of the Adhiniyam. He further relied on a judgment passed by the apex Court in the case of Muktinarayan Jha and others v. State of Bihar, [ AIR 1978 SC 770 ] as well as the judgment passed by this Court in the case of Anupam Shahkari Griha Nirman Samiti Maryadit, Raipur v. State of MP and others, [ AIR 1989 MP 163 ]. He further submits that there is no provision either under the Development Plan or Bhumi Vikash Rules, 2012 which prohibits the construction of Farm House on the agricultural land or in absence of any provision, respondents cannot refuse the permission to the petitioner to develop the Farm House on the land. 6. Respondents have filed their reply and in the said reply, respondents have stated that the petitioner had applied to grant of permission for construction of Farm House under rule 17 of the Rules 2012 and the said application was rejected on the ground that the proposed land is being reserved for city afforestation or city park and since it is not an agricultural land, the permission for construction of Farm House cannot be granted. Against the said order, petitioner has preferred an appeal under section 31 to the appellate authority and the appellate authority has also rejected the said appeal. Against the said order, petitioner has preferred a revision which was also rejected. Learned counsel for the respondents submits that the appellate authority while considering the arguments of the petitioner regarding issue of deemed permission has been observed in its order that the petitioner has not taken into consideration the proviso of section 30(5) of the Adhiniyam which provides for excluding the days in which the requisition of every information or documents from the applicant is made. 7. In the present case, the petitioner admittedly has not deposited the requisite fee along with application dated 22.3.2013 and was directed to submit the challan which was done on 1.4.2014. Thus, by virtue of the proviso of section 30(5) of the Adhiniyam, the period would be counted from the date of submission of challan i.e. from 1.4.2013. 7. In the present case, the petitioner admittedly has not deposited the requisite fee along with application dated 22.3.2013 and was directed to submit the challan which was done on 1.4.2014. Thus, by virtue of the proviso of section 30(5) of the Adhiniyam, the period would be counted from the date of submission of challan i.e. from 1.4.2013. Thus, the appellate authority rejected the arguments of the petitioner regarding deemed permission. The revisional authority has also taken the same view. The revisional authority has specifically considered the fact that the disputed land is not an agricultural land and has upheld the order passed by the appellate authority dated 1.10.2013. The revisional authority further held that the contention with regard to grant of deemed permission has also been rightly dealt with by the authority in reference to the fact that the date for which 60 days counted would be from 1.4.2013 when the challan was submitted by the petitioner making the application under rule 17 complete. Thus, respondents have rightly rejected the application submitted by the petitioner. 8. The petitioner has filed rejoinder and submitted that both the authorities i.e. appellate authority as well as revisional authority have erred in holding that the application became complete on 1.4.2013 in fact on 27.2.2013 when the application was received in the office of respondent No.3 it was complete as requisite fee of Rs.5000/- was paid through demand. This fact is deliberately suppressed by the appellate authority as well as revisional authority. It is further stated that in computing the period of 60 days the period in between the dates are requisitioning any further information or documents from the applicant and the date of receipt of such information or documents from the applicant shall be excluded. It means that counting of 60 days start from 27.2.2013 i.e. the date on which application was received in the office of respondent No.3. Considering the proviso of section 30(5) of the Adhiniyam, the period from 22.3.2013 to 1.4.2013 i.e. when the respondent No.3 asked the petitioner to deposit the requisite fee of Rs. 5000/- through Bank challan till 1.4.2013, when the petitioner deposited the fees through Bank Challan. Hence, considering the above mentioned provision of law, these 11 days period i.e. from 22.3.2013 to 1.4.2013 be excluded. 5000/- through Bank challan till 1.4.2013, when the petitioner deposited the fees through Bank Challan. Hence, considering the above mentioned provision of law, these 11 days period i.e. from 22.3.2013 to 1.4.2013 be excluded. In this way 93 - 11 = 82 days consumed in passing the order dated 31.5.2013 on expiry of 60 days, it deems permission have to be granted. He further relied on the definition of ‘Agriculture’ as provided under section 2 of the Adhiniyam. On the basis of this, he submits that ¼o`{kkjksi.k vkSj m|ku½ are covered under the definition of Agriculture. Considering this aspect and specific definition of Agriculture, the land in question is also covered under the definition of Agricultural land. Hence, the permission to construct the Farm House over the land which is designated from Nagar Van cannot be denied. 9. Heard learned counsel for the parties and perused the record. From perusal of the record, it reveals that the petitioner is the owner of the land bearing Khasra No. 60 area 2.468 hectares situated in Badanpur District Jabalpur. He submitted an application under section 30 of the Adhiniyam for grant of permission to develop and construct the Farm House over the said land. The application was submitted on 26.2.2013. The application was duly received in the office of respondent No.2 on 27.2.2013. The said application was submitted by the petitioner in prescribed form along with requisite fee also. However, respondent No. 3 vide letter dated 22.3.2013 has asked the petitioner to deposit the requisite fee through bank challan. On 1.4.2013 the petitioner submitted receipt of bank challan of Rs. 5000/- of State Bank of India dated 28.3.2013. After depositing the said fee, respondent No.3 had passed the order dated 31.5.2013 thereby rejecting the application submitted by the petitioner for permission to develop the Farm House on the ground that if the Jabalpur Development Plan, 2021 the said land is reserved for city afforestation and city park. The said order was first time communicated to the petitioner on 10.6.2013 i.e. after the period of almost 93 days. Being aggrieved by that order, the petitioner has preferred an appeal before respondent No.2. Respondent No.2 vide order dated 1.10.2013 has dismissed the said appeal. Against which the petitioner has filed a revision before the Commissioner. The Commissioner has remanded the matter to the Joint Director vide order dated 8.5.2014. Being aggrieved by that order, the petitioner has preferred an appeal before respondent No.2. Respondent No.2 vide order dated 1.10.2013 has dismissed the said appeal. Against which the petitioner has filed a revision before the Commissioner. The Commissioner has remanded the matter to the Joint Director vide order dated 8.5.2014. Being aggrieved by that order, the petitioner has filed a W.P.No.10771/2014 before this Court. The said writ petition was allowed vide order dated 30.7.2014. While allowing the said writ petition, this Court has quashed the order dated 8.5.2014 and directed the State Government to decide the representation within two months from the date of receipt of certified copy of the order. Respondent No.1 thereafter vide order dated 25.6.2015 has dismissed the said representation. Against the said order, the petitioner has preferred the present petition. 10. Section 30 of the Adhiniyam provides for grant or refusal of permission. Sub-section 5 of the section 30 reads as under : “(5) If the Director does not communicate his decision whether to grant or refuse permission to the applicant within 60 days from the date of receipt of his application, such permission shall be deemed to have been granted to the applicant on the date immediately following the date of expiry of 60 days. Provided that in computing the period of 60 days the period in between the date of requisitioning any further information or documents from the applicant and date of receipt of such information or documents from the applicant shall be excluded.” As per the said section, the Director has to communicate his decision to grant or refuse the permission to the applicant within 60 days from the date of receipt of certified copy of the application, failing which the permission shall be deemed to have been granted. In the proviso it has been stated that the period in between the date of requisitioning any further information or documents from the applicant and the date of receipt of the such information or documents from the applicant shall be excluded. 11. In the proviso it has been stated that the period in between the date of requisitioning any further information or documents from the applicant and the date of receipt of the such information or documents from the applicant shall be excluded. 11. Section 30(5) of the Adhiniyam has also promulgated in hindi version, which reads as under : ^^5- ;fn lapkyd vuqKk nsus ;k vuqKk nsus ls bUdkj djus ds laca/k esaa viuk fofu'p; vkosnd dks ml rkjh[k ls] ftldks fd mldk vkosnu izkIr gqvk gks] ¼lkB fnu½ ds Hkhrj lalwfpr u djsa rks ;g le>k tk,xk fd ,slh vuqKk vkosnd dks ¼lkB fnu½ dk volku gksus dh rkjh[k ds Bhd i'pkr~ vkus okyh rkjh[k dks ns nh xbZ gS % ijarq ¼lkB fnu½ dh dkykof/k dh lax.kuk djus esa vkosnu ls dksbZ vfrfjDr tkudkjh ;k nLrkost ds fy;s v/;is{k djus dh rkjh[k ds rFkk vkosnd ls ,slh tkudkjh ;k nLrkost izkIr gksus dh rkjh[k ds chp dk dkykof/k vioftZr dj nh tk,xhA^^ As per hindi version, the section 30(5) provides that if the Director does not refuse or grant the permission within a period of 60 days from the date of application then the permission shall be deemed to have been granted. 12. Thus, as per the language used in section 30(5) of the Adhiniyam, for calculating 60 days ^^ml rkjh[k ls] ftldks fd mldk vkosnu izkIr gqvk gks** i.e. counting of 60 days from the date of receipt of the application which is in the present case is from 27.2.2013. 13. In the present case, the petitioner has submitted an application for grant of permission on 27.2.2013 on the same date it was received on 27.2.2013. Considering the proviso of section 30(5) of the Adhiniyam 1973, the period from 22.3.2013 to 1.4.2013 i.e. when the respondent No.3 asked the petitioner to deposit the requisite fee of Rs. 5000/- through Bank Challan to till 1.4.2013 when the petitioner deposited the fee through Bank Challan shall be excluded i.e. period of 11 days from 22.3.2013 to 1.4.2013. The application was pending before the respondents for 93 days and thus if this period of 11 days is excluded from 93 days it comes 82 days which has been consumed by the respondents in passing the order dated 31.5.2013 and, therefore, after expiry of period of 60 days, permission shall be deemed to have been granted. The application was pending before the respondents for 93 days and thus if this period of 11 days is excluded from 93 days it comes 82 days which has been consumed by the respondents in passing the order dated 31.5.2013 and, therefore, after expiry of period of 60 days, permission shall be deemed to have been granted. The findings given by the authorities that the period of 60 days will start from 1.4.2013 i.e. when the petitioner has deposited the Bank Challan cannot be accepted in light of the aforesaid proviso. Section 30(5) of the Adhiniyam provides that the Director is required to communicate the decision within a period of 60 days from the date of receipt of copy of the application. The literal dictionary meaning of word ‘Communicate” is to inform or to intimate or to make known. Thus, as per this dictionary meaning, order is required to inform or to intimate or to make known to the petitioner within 60 days. However, in the present case, admittedly, the order was served on the petitioner on 10.6.2013 i.e. after a period of 60 days. 14. This Court in the case of Anupam Shahakari Griha Nirman Samithi Maryadit (supra), in para 5 has held as under : “5. After having heard the parties, we are of opinion that this petition has to be allowed. The petitioner applied to respondent No. 2 for permission to develop the lands purchased, by registered sale deeds in the year 1985-86, under section 29 of the Adhiniyam, on 2.6.1986.1 Niyam 12 prescribes that the application shall be in Form VII for permission for development of land. Form VII mentions what documents have to accompany the application for permission. There is no mention of enclosing any no-objection certificate from the Town and Country Development Authority, yet respondent No. 2 wrongly filed the application on the ground that the petitioner has not furnished "no, objection certificate" from respondent No. 3. There was also correspondence between the parties and respondent No. 2 was insisting on production of no objection certificate, and ultimately by order dated 20.11.1987, permission has been refused on the pretext that the area comes within the draft scheme of respondent No. 3. There was also correspondence between the parties and respondent No. 2 was insisting on production of no objection certificate, and ultimately by order dated 20.11.1987, permission has been refused on the pretext that the area comes within the draft scheme of respondent No. 3. Under section 30(5) if respondent No. 2 failed to communicate his decision regarding grant or refusal to grant permission for development of the land within 60 days, on the expiry of the period, permission shall be deemed to have been granted. As such, the petitioner got a deemed permission on the failure of respondent No. 2 to communicate his decision within 60 days of the receipt of the application. The period of 60 days is not extended under the proviso to this sub-section, merely because respondent No. 2 was insisting on production of no objection certificate, when no such certificate was required to be produced under the Act and the Rules, nor prescribed in Form No. VII. The petitioner did apply to respondent No. 3 for issue of no objection certificate on 1.1.1987, but the no objection certificate was refused on 16.11.1987, since respondent No. 3 had published the draft scheme and it was said no such certificate could be issued in view of section 53. Respondent No. 3 declared its intention to prepare town development scheme as back as on 30.3.1985, according to the petitioner, and as back as on 6.9.1985, according to respondent No. 3, yet respondent No. 3 issued no objection certificate to one Awaiti Co-operative Housing Society, Raipur, on 20.11.1985 and to one Chhattisgarh Regional Housing Co-operative Housing Society on 30.12.1985; and to an individual, Kewalchand Amalokchand Jain on 14.8.1987. In their cases, respondent No. 3 did not take the plea that no objection certificate could not be issued in view of the declaration of its intention to prepare the town development scheme under section 50(1). It is a clear case of discrimination in refusing such a certificate to the petitioner for the adjoining area in similar circumstances.” 15. Respondents authorities while passing the order has not taken into consideration the legal position of law. In light of the aforesaid judgment, I allow this writ petition. The impugned orders dated 31.5.2013, 1.10.2013 and 25.6.2015 are hereby quashed. Respondents authorities while passing the order has not taken into consideration the legal position of law. In light of the aforesaid judgment, I allow this writ petition. The impugned orders dated 31.5.2013, 1.10.2013 and 25.6.2015 are hereby quashed. It is declared that there was deemed permission granted to the petitioner for development of Farm House on its land in view of section 30(5) of the Adhiniyam. 16. With the aforesaid observation, the petition stands allowed and disposed of, with no order as to costs.