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Madhya Pradesh High Court · body

2017 DIGILAW 831 (MP)

Sunil Mudgal v. State of M. P.

2017-07-17

VIVEK AGARWAL

body2017
ORDER 1. As identical issue is involved in all these writ petitions, therefore, they are heard together and decided by this common order. For the purpose of disposal of these petitions, the facts have been taken from Writ Petition No.7945/2016. 2. Petitioners have filed this bunch of writ petitions being aggrieved by the order passed by the SDO Dabra, whereby the SDO Dabra, has held the petitioners to be guilty of carrying out illegal development of colonies and, therefore, violating the provisions of the M.P. Land Revenue Code, 1959 (hereinafter shall be referred to as the Code) and, therefore, directed for recovery of penalty and also directed the petitioners to comply with the order within a period of seven days, failing which further direction was issued that the order may be passed in compliance of the provisions of section 172(5) of the Code to bring the land back to its original shape. 3. The basic contention of the learned counsel for the petitioners is that a show cause notice was issued on 17.6.2016 pointing out that without getting proper diversion, plots are being developed in the shape of a colony. It is also mentioned that the petitioner was not registered under the provisions of Colonies Act and as per the report of the Revenue Inspector, it was revealed to the SDO that not only the diversion was not carried out but also no lay out was approved by the Town and Country Planning Department and, therefore, the petitioners were guilty of illegal colonization. 4. It is petitioners' contention that in this very notice there is mention of violation of the provisions contained in section 339 of the Madhya Pradesh Municipalities Adhiniyam, 1961 (hereinafter shall be referred to as the Adhiniyam of 1961) and since the SDO is not competent authority to take action for violation of any of the provisions contained in section 339 of the Adhiniyam of 1961, the impugned order suffers from infirmity and is liable to be quashed. It is also submitted that the show cause notice only talked of registration of criminal case under the provisions of section 339-C of the Adhiniyam of 1961 and, therefore, order under section 172 of the Code has been passed after realizing the shortcomings in the show cause notice and to cover the lapses of the SDO. 5. It is also submitted that the show cause notice only talked of registration of criminal case under the provisions of section 339-C of the Adhiniyam of 1961 and, therefore, order under section 172 of the Code has been passed after realizing the shortcomings in the show cause notice and to cover the lapses of the SDO. 5. It is also the contention of the learned counsel for the petitioners that Dabra has been included within the Municipality area through a recent notification dated 23.7.2014, whereby the villages in question have been included within the limits of Municipal Council Dabra, District Gwalior and, therefore, there was no need for any permission to seek diversion under the provisions of section 172 of the Code and no action could have been taken by the respondent SDO. It is further contended that the notice is defective and the land is still used for agricultural purpose but it has wrongly been construed being used for other purpose than agriculture. Therefore, the order is wholly unjustified, without jurisdiction and in violation of principle of natural justice, therefore, it deserves to be quashed. 6. On the other hand, learned counsel for the respondents submits that the order passed by the SDO under section 172 of the Code is very much within his authority and there is no infringement of any of the rights of the petitioner inasmuch as they were given opportunity of hearing and the onus was on the petitioners to submit the documents to the effect that they had not diverted the land for any other purpose than the agriculture for which it was notified. It is also submitted that in fact, there exists an alternative statutory remedy of filing an appeal against the impugned order to the Collector under the provisions of section 44 of the Code and, therefore, the petitions are premature and the petitioners are required to be relegated to avail the alternative remedy by dismissing the petitions. 7. It is also submitted that in fact, there exists an alternative statutory remedy of filing an appeal against the impugned order to the Collector under the provisions of section 44 of the Code and, therefore, the petitions are premature and the petitioners are required to be relegated to avail the alternative remedy by dismissing the petitions. 7. Section 339-A of the Adhiniyam of 1961 deals with the Registration of Colonizer or Builder, whereas section 339-C (1) of the Adhiniyam 1961 provides that - “A Colonizer who, in contravention of the provisions of section 172 of the Madhya Pradesh Land Revenue Code 1959 and the Rules made there under, diverts the land or part thereof, commits an offence of illegal diversion of land, shall be punished for illegal colonization.” Sub-section (2) of section 339-C of the Adhiniyam of 1961 provides as under :- “(2) A colonizer who divides his lands into plots or the land of any other person with the object of establishing a colony in breach of the requirements contemplated in this Act or the Rules made in this behalf, commits an offence of illegal colonization.” Whereas section 172 of the Code deals with the diversion of land and it provides that - “(1) if a Bhuswami of land held for any purpose in - (i) urban area or within a radius of five miles from the outer limits of such area; (ii) a village with a population of two thousand or above according to last census; or (iii) in such other areas as the State Government may, by notification specify; wishes to divert his holding or any part thereof to any other purpose except agriculture, he shall apply for permission to the Sub-Divisional Officer/competent authority who may, subject to the provisions of this section and to Rules made under this Code, refuse permission or grant it on such conditions as he may think fit:” Sub-sections (4), (5) and (6) of section 172 of the Code read as under:- “(4) If any land has been diverted without permission by the Bhumiswami or by any other person with or without the consent of the Bhumiswami the Sub-Divisional Officer/competent authority on receiving information thereof, may impose on the person responsible for the diversion a penalty not exceeding twenty per centum of the market value of such diverted land/one thousand rupees and may proceed in accordance with the provisions of sub-section (1) as if an application for permission to diver had been made. (5) If any land has been diverted in contravention of an order passed or of a condition imposed under any of the foregoing sub-sections, the Sub-Divisional Officer/competent authority may serve a notice on the person responsible for such contravention, directing him, within a reasonable period to be stated in the notice, to use the land for its original purpose or to observe the condition; and such notice may require such person to remove any structure, to fill up any excavation, or to take such other steps as may be required in order that the land may be used for its original purpose, or that the condition may be satisfied. The Sub-Divisional Officer may also impose on such person a penalty not exceeding twenty per centum of the market value of such diverted land/one thousand rupees for such contravention, and a further penalty not exceeding one thousand rupees for each day during which such contravention is persisted in. (6) If any person served with the notice under sub-section (5) fails within the period stated in the notice to take the steps ordered by the Sub-Divisional Officer/competent authority under that sub-section, the Sub-Divisional Officer/competent authority may himself take such steps or cause them to be taken; and any cost incurred in so doing shall be recoverable from such person as if it were an arrear of land revenue.” 8. After hearing learned counsel for the parties, this Court is of the opinion that there is no conflict in the provisions contained under section 172 of the Code and section 339-C of the Adhiniyam of 1961. Section 172 of the Code is a substantive provision requiring diversion of agricultural land if the land is intended to be used for any other purpose than agriculture. Section 172(5) of the Code itself authorises the SDO to take action by imposing penalty and also section 172(6) authorises him to pass orders for restoring the land to its original condition and if any cost is incurred in doing so, the same be made recoverable from such person as if it were an arrear of land revenue. Section 339 of the Adhiniyam of 1961 prescribe punishment for illegal colonization. Thus, two provisions are complementary and not supplementary to each others. Section 339 of the Adhiniyam of 1961 prescribe punishment for illegal colonization. Thus, two provisions are complementary and not supplementary to each others. Therefore, if there is mention of violation of any provision contained in section 339-C of the Adhiniyam of 1961, but none of the penalties as mentioned in section 339-C has been imposed, then it cannot be said that the SDO exceeded its jurisdiction and encroached upon the authority of the Municipality or its officers, who are authorized under section 339-C to take action. In fact, section 339-E of the Adhiniyam of 1961 deals with the competent authority to take over the management of the land of illegal colonization and it starts with the words “Notwithstanding anything contained in Madhya Pradesh Land Revenue Code, 1959, the transfer or agreement to transfer of plots made by a colonizer, in an area of illegal colonization shall be void.” Thus, the remedy under sections 339-C, 339-D, 339-E, 339-F and 339-G of the Adhiniyam of 1961 are in addition to that provided under section 172 of the Code, one being to do with the land use and land revenue and another with urban development. Since the SDO has not passed any order in terms of the provisions contained in section 339-C, it cannot be said that he has encroached on the authority vested in Municipal Officer. Thus, the impugned order being an appealable order does not call for any interference in the summary writ jurisdiction of this Court. 9. So far as the contention of the petitioners that the notice is defective and the land is still being used for agricultural purpose and, therefore, it has wrongly been construed being used for other purpose than agriculture is concerned, this is the matter of fact not inquiry for which the petitioners are required to adduce evidence and all these issues can be raised before the appellate authority. In fact, there is difference in land being used for agriculture and plots being sold or developed without diversion. 10. In fact, there is difference in land being used for agriculture and plots being sold or developed without diversion. 10. Consequently, all the writ petitions are disposed of with the directions that in case petitioners so deem it proper, they may prefer an appeal within fifteen days from today to the competent authority and if such appeal is accompanied by proper application for condonation of delay, then the appellate authority may condon the period of delay so consumed by the petitioners in pursuing the remedy of writ petition. 11. With the aforesaid directions, these petitions are disposed of.