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2025 DIGILAW 323 (MP)

Prahlad v. State of M. P.

2025-05-17

PRANAY VERMA

body2025
ORDER 1. By this petition preferred under Article 226 of the Constitution of India the petitioners have challenged the order dated 24.12.2019 passed by the Additional Commissioner, Ujjain Division, Ujjain. 2. As per the petitioners, their predecessor Sitaram Prajapati applied under section 59 read with section 172(1) of M.P. Land Revenue Code, 1959 (hereinafter referred to as 'the Code') for diversion of his agricultural land situated at Neemuch city to purpose other than agriculture i.e. commercial. He died on 18.2.2019 after which they have been substituted. The Sub-Divisional Officer, Neemuch by order dated 18.4.2017 assessed the land revenue of the land to the tune of Rs.28,671/- per annum liable to be paid from the year 2011- 2012. The premium of land for commercial purpose was fixed at Rs.1,43,352/- in terms of section 59(5) of the Code and penalty amounting to Rs.1,43,352/- was also imposed under section 172(4) thereof. 3. Being aggrieved by the order aforesaid, Sitaram preferred an application before the Sub Divisional Officer for review which was dismissed by order dated 18.8.2017. Being aggrieved, Sitaram preferred an appeal under section 44(1) of the Code before the Additional Collector which was only partly allowed by order dated 10.1.2018 to the extent that the land revenue was held liable to be paid from the year 2016-2017 instead of 2011-2012. Being aggrieved by the said order Sitaram preferred Second Appeal under section 44(2) of the Code before the Additional Commissioner which has been dismissed by him by the impugned order dated 24.12.2019. 4. Learned counsel for the petitioners has submitted that section 172 of the Code stood deleted by M.P. Act No.23 of 2018 with effect from 25.9.2018 and now the issue of diversion is required to be dealt with under newly amended section 59 of the Code. Sub section (12) thereof provides that all proceedings pending before any revenue authority including Board of Revenue as on date of coming into force of aforesaid Amendment Act, 2018 shall stand abated and the Sub Divisional Officer shall deal with the issue of diversion as provided under the newly substituted section 59. Sub section (12) thereof provides that all proceedings pending before any revenue authority including Board of Revenue as on date of coming into force of aforesaid Amendment Act, 2018 shall stand abated and the Sub Divisional Officer shall deal with the issue of diversion as provided under the newly substituted section 59. The Second appeal preferred by the petitioners was pending on the date of coming into force of the newly substituted section 59 hence in view of sub section (12) thereof the proceedings stood abated and the Sub Divisional Officer could have imposed premium and assessed land revenue only in accordance with newly substituted section 59. 5. Per contra, learned counsel for the respondents/State has submitted that order was passed by the Sub Divisional Officer on 18.4.2017 i.e. prior to deletion of section 172 and substitution of section 59 of the Code. The proceedings hence stood decided much prior to coming into force of M.P. Act No.23 of 2018. They would hence not abate due to deletion of section 172 of the Code. Section 59(12) cannot be made applicable to appeals filed by the assessee. Since penalty had already been imposed prior to deletion of section 172 the said order would not automatically stand abated for the reason that during pendency of second appeal, section 172 was deleted. Reliance has been placed by him on the decision of the Gwalior Bench of this Court in W.P. No.39 of 2020 [Rajendra Kumar Kushwaha v. State of M.P. and others] decided by order dated 10.1.2020 which was affirmed in W.A. No.639 of 2020 by order dated 21.11.2022. 6. I have considered the submissions of the learned counsel for the parties and have perused the record. 7. Section 59 of the Code as it stood prior to its amendment was as under: "59. Variation of land revenue according to purpose for which land is used — (1) The assessment of land revenue on any land '[shall be made] with reference to the use of land— ****** (2) Where land assessed for use for any one purpose is diverted to any other purpose, the land revenue payable upon such land shall, notwithstanding that the term for which the assessment may have been fixed has not expired, be liable to be altered and assessed in accordance with the purpose to which it has been diverted. (3) Where the land held free from the payment of land revenue on condition of being used for any purpose is diverted to any other purpose it shall become liable to the payment of land revenue and assessed in accordance with the purpose to which it has been diverted. (4) The assessment made under sub-sections (2) and (3) shall be in accordance with the rules made by State Government in this behalf and such rules shall be in accordance with the principles contained in Chapter VII or VIII, as the case may be. (5) Where land for use for any one purpose is diverted to any other purpose, and land revenue is assessed thereon under the provisions of this section, the '[Sub-Divisional Officer] shall also have power to impose a premium on the diversion in accordance with rules made under this Code : (6) ******" 8. The relevant part of section 172 of the Code as it stood prior to its deletion by M.P. Act No.23 of 2018 was as under : "172. The relevant part of section 172 of the Code as it stood prior to its deletion by M.P. Act No.23 of 2018 was as under : "172. Diversion of land.- (1)[If a bhumiswami 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 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 : Provided that should the Sub-Divisional Officer neglect or omit for three months after the receipt of an application under sub-section (1) to make and deliver to the applicant an order of permission or refusal in respect thereof, and the applicant has by written communication called the attention of the Sub-Divisional Officer to the omission or neglect, and such omission or neglect continues for a further period of[one month, the Sub-Divisional Officer shall be deemed to have granted the permission without any condition : ****** (2) ****** (3) ****** (4) ****** (5) ****** (6) ****** [(6-a) ****** [Explanation I.] Diversion in this section means using land assessed to one purpose under section 59 to any other purpose mentioned therein but using land for the purpose of agriculture where it is assessed with reference to any other purpose shall not be deemed to be diversion. [Explanation II.-For the purposes of this section the words 'development plan' shall have the same meaning as assigned to it in the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (No. 23 of 1973).] 9. By way of M.P. Act No.23 of 2018, which came into force with effect from 25.9.2018 aforesaid Section 172 of the Code was deleted and the substantive provision for assessment of land revenue was incorporated in section 59 of the Code which was substituted. The relevant part of it is as under: "59. [ Land revenue according to purpose for which land is used. The relevant part of it is as under: "59. [ Land revenue according to purpose for which land is used. (1) The assessment of land revenue shall be made with reference to the following use of land at such rates as may be prescribed : (a) for the purpose of agriculture including any improvement made thereon; (b) for the purpose of dwelling houses; (c) for educational purpose; (d) for commercial purpose; (e) for industrial purpose including the purpose of mines and minerals; (f) for purpose other than those specified in items (a) to (e) above as may be notified by the State Government. (2) Where land assessed for use for any one purpose is diverted to any other purpose, the land revenue payable upon such land shall, notwithstanding that the term for which the assessment may have been fixed has not expired, be liable to assessment at the rates prescribed for the purpose to which it has been diverted. (3) Where the land held free from the payment of land revenue on condition of being used for any purpose is diverted to any other purpose it shall become liable to the payment of land revenue and assessed at the rates prescribed for purpose for which it has been diverted. (4) Where land assessed for use for any one purpose is diverted to any other purpose, and land revenue is assessed thereon under the provisions of this section, the premium on such diversion shall be payable at such rates as may be prescribed. (5) Whenever land assessed for one purpose is diverted to another purpose, the Bhumiswami shall compute the premium and reassessed land revenue payable and deposit the amount so computed in the manner prescribed. (6) ****** (7) ****** (8) ****** (9) ****** (10) ****** (11) ****** (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.]" 10. Sub section (12) of section 59 provides that all proceedings under this section pending before the Board or any revenue officer prior to commencement of the Amendment Act, 2018 shall stand abated and the Sub Divisional Officer shall impose penalty and assess land revenue on account of diversion in accordance with the provisions of this Section. The word 'proceedings' would necessarily contemplate proceedings before the original revenue officer or before the higher revenue officer in challenge having been made to the order of the original revenue officer. If they are pending before any revenue officer meaning at any stage, same would stand abated and would be required to be proceeded with as per newly substituted section 59. 11. In Rajendra Prasad Kushwaha (Supra) reliance has been placed by the learned Single Judge upon section 10 of M.P. General Clauses Act relevant part of which 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) **** (b) **** (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. (Underlining supplied) 12. While under section 10 of M.P. General Clauses Act any repeal by any Madhya Pradesh Act does not affect any legal proceeding or remedy undertaken under the repealed Act and such legal proceeding or remedy may be instituted, continued or enforced as if the repealing Madhya Pradesh Act had not been passed but the same is subject to condition 'unless a different intention appears in the Repeal Act.' These are the specific words used in section 10. It would hence have effect only if a different intention does not appear in the Repeal Act. 13. It would hence have effect only if a different intention does not appear in the Repeal Act. 13. When sub section (12) of section 59 of the Code is examined it is apparent that there is an express different intention appearing therein in as much as it has specifically provided that all proceedings under this section pending before any revenue officer prior to commencement of the Amendment Act, 2018 shall stand abated and the Sub Divisional Officer shall impose premium and assess land revenue on account of diversion in accordance with provisions of this Section. The effect of this sub section is that proceedings which were pending at any stage before any revenue officer would stand abated. It does not contemplate abatement of only those proceedings which were pending before the original revenue officer. Merely because order had been passed by the original revenue officer, it cannot be said that proceedings had attained finality. If they were pending before any higher revenue officer, they would stand abated. 14. The expression "unless a different intention appears" has been considered in a number of cases. In Piare Dusadh and others v. King Emperor, AIR 1944 FC 1 it was held while considering General Clauses Act, 1897 section 6(e) that effect of repeal of an enactment on cases pending at the time of repeal would be that they would continue as if the enactment had not been repealed. But this is subject to the qualification that repealing enactment contains no provision or indication of the contrary. In Hans Muller of Nurenburg v. Superintendent, Presidency Jail and Others, AIR 1955 MP 367 (DB) the said principle was reiterated. In M.P. Electricity Board, Jabalpur and others v. Employees' State Insurance Corporation, Indore, 1981 MPLJ 490 it was held that even when a saving clause reserving the rights and liabilities under repealed act is absent in a new enactment, the same will neither be material nor decisive of the question of different intention because in such cases section 6 of the General Clauses Act will be attracted and rights and liabilities acquired and accrued under the repealed law will remain saved unless there was something to infer that the Legislature intended to destroy the rights and liabilities already accrued. 15. In New India Assurance Co. Ltd. v. C. Padma and Another, (2003) 7 SCC 713 the apex Court held as under: "10. 15. In New India Assurance Co. Ltd. v. C. Padma and Another, (2003) 7 SCC 713 the apex Court held as under: "10. The ratio laid down in Dhannalal case [ (1996) 4 SCC 652 ] applies with full force to the facts of the present case. When the claim petition was filed sub-section (3) of section 166 had been omitted. Thus, the Tribunal was bound to entertain the claim petition without taking note of the date on which the accident took place. Faced with this situation, Mr Kapoor submitted that Dhannalal case does not consider section 6-A of the General Clauses Act and therefore, needs to be reconsidered. We are unable to accept the submission. Section 6-A of the General Clauses Act, undoubtedly, provides that the repeal of a provision will not affect the continuance of the enactment so repealed and in operation at the time of repeal. However, this is subject to “unless a different intention appears”. In Dhannalal case the reason for the deletion of sub-section (3) of Section 166 has been set out. It is noted that Parliament realized the grave injustice and injury caused to heirs and legal representatives of the victims of accidents if the claim petition was rejected only on the ground of limitation. Thus “the different intention” clearly appears and section 6-A of the General Clauses Act would not apply. 16. The decision in the case of Rajendra Singh Kushwaha (supra) has missed the fact that section 10 of M.P. General Clauses Act provides an exception for its applicability i.e. appearance of a different intention in the Repeal Act hence cannot be treated to be a binding precedent. Though the said order has been affirmed by the Division Bench in Writ Appeal but the same was merely by observing that the entire gamut of matter is in the realm of facts. In my opinion the effect of deletion of section 172 of the Code and substitution of section 59 particularly sub section (12) thereof would have the effect of abatement of proceedings if they were pending before any revenue officer at any stage on the date of coming into force of M.P. Amendment Act No.23 of 2018. In my opinion the effect of deletion of section 172 of the Code and substitution of section 59 particularly sub section (12) thereof would have the effect of abatement of proceedings if they were pending before any revenue officer at any stage on the date of coming into force of M.P. Amendment Act No.23 of 2018. Section 59(12) of the Code would be applicable also to appeals filed by the assesses and even if order had been passed by the subordinate revenue officer prior to omission of section 172, the entire proceedings would stand abated. 17. At the time when M.P. Act No.23 of 2018 came into force with effect from 25.9.2018 the appeal preferred by Sitaram was pending before the Additional Commissioner. As per newly substituted section 59 of the Code, the issue of diversion is now required to be dealt with thereunder. The proceedings pending before the Additional Commissioner stood abated. He hence ought to have declared the same as abated but has on the contrary decided them on merits which was illegal. 18. Consequently, the orders passed by the authorities below are hereby quashed and the parties are granted liberty to institute fresh proceedings for diversion under the amended provisions of the Code. The petition is accordingly allowed and disposed off.