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Madhya Pradesh High Court · body

2020 DIGILAW 73 (MP)

Rajendra Singh Kushwah v. State of M. P.

2020-01-10

G.S.AHLUWALIA

body2020
ORDER 1. This petition under Article 226 of the Constitution of India has been filed against the order dated 13.4.2016 passed by the SDO (Revenue) Lashkar, District Gwalior in Case No.10/2015-16/172 (4), order dated 16.4.2018 passed by the Collector, District Gwalior in case No.4/2017-18/Appeal, order dated 21.5.2019 passed by the Commissioner, Gwalior Division, Gwalior in Case No.409/2017- 18/Appeal as well as the order dated 3.12.2019 passed by the Commissioner, Gwalior Division, Gwalior in Case No.17/Review/19-20. 2. The necessary facts for disposal of the present petition in short are that a show-cause notice dated 21.12.2015 was issued to the petitioner on the ground that he is running a marriage garden on survey Nos.222, 223, 224, total area 0.209 hectares without getting the land diverted as well as without taking permissions and thus, the petitioner was called upon to show-cause under section 172 (1) of M.P. Land Revenue Code (in short “the Code”) as to why the proceedings under section 172 (4) of the Code be not initiated against him. The petitioner filed his reply. Paragraphs 6 and 9 of the reply submitted by the petitioner reads as under :- 6& ;gfd eq> izfrizkFkhZ ds vU; HkkbZ;ksa us vius fgLls dh Hkwfe eas edku cuk fy;s gSa bl izdkj eq> izfrizkFkhZ dh mDr Hkwfe vkoknh {ks= ds vUnj gS [kkyh Hkwfe gksus ds dkj.k ekSgYys ds yksx 'kknh ,oa vU; mRlo gsrq eq> izfrizkFkhZ dh [kqyh Hkwfe dk mi;ksx dj ysrs gSa tcfd izfrizkFkhZ muls dksbZ fdjkuk ugha ysrk gSA 9& ;g fd ;fn fudV Hkfo"; eas izfrizkFkhZ }kjk fuekZ.k vFkok vU; fdlh dk;Z gsrq mi;ksx ds fy, ifjofrZr fd;k tkrk gS rks izfrizkFkhZ mDr dk;Z gsrq Mk;olZu Lor% djk;sxk ;fn Jheku th pkgs rks Lo;a ekSdk fujh{k.k dj ldrs gSaA ftlls Hkwfe dh okLrfodrk dk irk py ldsA 3. The statements of the witnesses including that of the petitioner were recorded. The statements of the witnesses including that of the petitioner were recorded. The statement made by the petitioner is repropduced as under :- 14- eSa 'kiFk iwoZd dFku djrk gwa fd xzke xq<+k eas esjs Hkwfe Lokeh LoRo dh Hkwfe losZ Ø- 222 feu&2 jdok 6 foLok] losZ Ø- 225 feu&3 jdok 0-005 vkjs bl izdkj dqy fdrk&3 dqy jdok 0-073 gSDVs;j dk eSa Hkwfe Lokeh gw¡A mijksDr Hkwfe eq>dks caVokjs esa izkIr gqbZ gSA esjs vU; HkkbZ;ksa esa caVokjs esa izkIr Hkwfe ij Hkou cuk fy;s gSa esjh Hkwfe [kqyh iM+h gSA losZ Ø- 222] 223] 224] dqy jdok 0-209 gSDVs;j esjs LoRo LokfeRo o vkfèkiR; dk ugha gSA eSaus viuh Hkwfe dh lqj{kk gsrq rkj QSaflax yxk yh gS ikuh ds vHkko ls ekSds ij i<+r iM+h gqbZ gSA eSaus mDr Hkwfe dk eSfjt xkMZu ds :i eas dHkh mi;ksx ugha fd;k gSA ekSgYys esa tc dksbZ dk;ZØe gksrs gSa rks ekSgYys okys esjs ls iwNdj mi;ksx dj ysrs gsaA eSa muls fdjk;k ugha ysrk gw¡ dFku i<+k] lquk] Lohdkj 4. Considering the material available on record as well as considering the admissions made by the petitioner, the SDO (Revenue) Lashkar, District Gwalior by its order dated 13.4.2016 passed in case No.10/2015-16/172 (4) came to the conclusion that the petitioner is running the marriage garden on survey No.222 min-2 admeasuring 0.063 hectares without getting the land diverted and without obtaining due permissions under the law and since the marriage garden is being run contrary to the provisions of law, therefore, the penalty of Rs.13,23,000/- was imposed and the petitioner was also directed to restore the land to its original condition as per the provisions of section 172 (5) of the Code. 5. Being aggrieved by the order of the SDO (Revenue), Lashkar, District Gwalior, the petitioner filed an appeal before the Collector, which too was dismissed by order dated 16.4.2018. The order of the appellate authority was challenged by the petitioner by filing an appeal before the Commissioner, Gwalior Division, Gwalior and the appeal too was dismissed by order dated 21.5.2019. Thereafter, the petitioner filed a review against the order of the Commissioner and the review has also been dismissed by order dated 3.12.2019 by the Commissioner, Gwalior Division, Gwalior. 6. Thereafter, the petitioner filed a review against the order of the Commissioner and the review has also been dismissed by order dated 3.12.2019 by the Commissioner, Gwalior Division, Gwalior. 6. Challenging the orders passed by the Tribunals below, it is submitted by the counsel for the petitioner that the order under section 172 of the Code has been passed without there being any evidence that the petitioner is running a marriage garden on the land in dispute. Initially the show-cause notice was issued in respect of three survey numbers, but thereafter the order was passed in survey No.222 min-2 only and, therefore, it appears that the show-cause notice was issued on incorrect facts. Further, section 172 of the Code was omitted from the Code and as per the provisions of section 59 of the Code, all the proceedings have stood abated. 7. Heard learned counsel for the petitioner. 8. It is the case of the respondents that the petitioner is running a marriage garden on survey No.222 min-2 without obtaining due permission as well as without getting the land diverted and the marriage garden is being run contrary to the provisions of law. The petitioner in his reply to the show-cause notice as well as in his statement has admitted that the marriage functions and other functions are being organized, however, the only dispute which the petitioner has raised is that for allowing the persons to organize the function, he has never charged any rent, therefore, the land is not being used for commercial purposes. When the petitioner has admitted that the marriage and other functions are being organized on the land in question, then the burden was on the petitioner to prove that the petitioner was allowing the persons to organize the functions without charging rent. Since the petitioner has failed to prove the same, therefore, this Court is of the considered opinion that the respondents did not commit any mistake in holding that the petitioner is running a marriage garden without getting the land diverted as well as without obtaining permissions and the marriage garden is also being run contrary to the provisions of law. 9. So far as the contention of the petitioner regarding abatement of the proceedings is concerned, the show-cause notice under section 172 of the Code was issued on 21.12.2015, whereas section 172 of the Code has been omitted by MP Act No.23/2018. 9. So far as the contention of the petitioner regarding abatement of the proceedings is concerned, the show-cause notice under section 172 of the Code was issued on 21.12.2015, whereas section 172 of the Code has been omitted by MP Act No.23/2018. Thus, it is clear that the show-cause notice was rightly issued under section 172 of the Code. 10. Now the next question for consideration is that- “Whether the proceedings which were initiated in the year 2015 under section 172 of the Code stood abated due to the omission of section 172 of the Code or not?” 11. Section 59 (12) of the Code reads as under:- “59 (12) All proceedings under this section pending before the Board or any Revenue Officer prior to commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 2018 shall stand abated and the Sub-Divisional Officer shall impose premium and assess the land revenue on account of diversion in accordance with the provisions of this section.” 12. It appears that the petitioner had not raised any objection with regard to the abatement of the proceedings, but the said objection was raised before the Commissioner in a review filed by him. The Commissioner has considered the submissions made by the petitioner and has relied upon the circular dated 25.1.2019 passed by Revenue Department, State of MP and has held that the appeals which were pending against the order passed under section 172 of the Code shall be considered in the same manner as if section 172 of the Code has not been omitted. 13. Section 10 of the M.P. General Clauses Act reads as under:- “10. 13. Section 10 of the M.P. General Clauses Act reads as under:- “10. Effect of repeal.- Where any Madhya Pradesh Act repeals any enactment then, unless a different intention appears, the repeal shall not- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability, acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Madhya Pradesh Act had not been passed.” 14. If section 59 (12) of the Code is read in the light of section 10 of M.P. General Clauses Act, then it is clear that section 59 (12) of the Code cannot be made applicable to the appeals filed by the assessee. Where the penalty has already been imposed prior to omission of section 172 of the Code, then the said order would not automatically stand abated on the ground that during pendency of the appeal, section 172 of the Code has been repealed. Under these circumstances, this Court is of the considered opinion that the Tribunals below after considering the evidence available on record have rightly held that the petitioner is running the marriage garden contrary to the provisions of law and accordingly, has rightly imposed the penalty to the extent of 20% of the market value of the said land and has rightly directed that the petitioner must restore the land in its original condition. 15. Under these circumstances, the petition is dismissed with a direction to the respondents to ensure that the land is not permitted to be used as a marriage garden and the respondents shall ensure that in case if the penalty imposed by the SDO (Revenue) Lashkar, Gwalior is not deposited, then the proceedings be initiated for the recovery of the same. 16. Accordingly, the petition fails and is hereby dismissed.