Madhya Pradesh High Court
Ankit Shrivastava vs Collector on 8 September, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
W.P. No.15954/2021
Ankit Shrivastava Vs. The Collector Guna and Others
Gwalior, Dated : 08-09-2021
Shri Ajay Raghuvanshi, Advocate for petitioner.
Shri Deepak Khot, Counsel for the State.
Shri Dharmendra Dwivedi, Counsel for respondent No.3.
This petition under Article 226 of the Constitution of India has been filed seeking following reliefs :
"(i) Impugned order dtd: 31.03.2021 (Annexure P/1), be quashed, or
(ii) Any other relief which this Hon'ble court, in facts and circumstance of the present case, deems fit."
The Collector, Guna by order dated 31.03.2021 has directed for filing of private complaint against the petitioner and also to make recovery of the expenses incurred in completing development works on the ground that the petitioner is involved in illegal colonization. It is submitted that the said order of respondent No.1 has been passed without conducting any enquiry and is based on the report of revenue authorities. The reply filed by the petitioner has not been considered. The petitioner has not developed any colony and bifurcation of land into small plots and sale of same is incorrect. However the copy of the reply has not been filed. It is further submitted that since the petitioner is not the registered colonizer, therefore, provisions of Rule 12 (v), 15-C of Madhya Pradesh Nagar Palika (Registration of Colonizer, Terms and Conditions) Rules 1998 (for brevity, "1998 Rules") will not apply.
Per contra, the Counsel for State submits that the provisions of 2 THE HIGH COURT OF MADHYA PRADESH W.P. No.15954/2021 Ankit Shrivastava Vs. The Collector Guna and Others Section 339 of the Madhya Pradesh Municipalities Act, 1961 and the provisions of Rule 12 (v) of 1998 Rules are applicable. This Court by a detailed order dated 18/8/2021 passed in Writ Petition No.7126/2021 in the case of Ashish Agarwal vs. State of M.P. & Ors. has held that any interpretation of law which gives undue advantage to a wrongdoer should be avoided and while interpreting the word "colonizer" as mentioned in Rule 12 (v) of 1998 Rules, this Court has held that the word "colonizer" cannot be restricted to the registered colonizer and any colonizer who is intending to develop a colony whether registered or not would be covered under rule 12 (v) of 1998 Rules.
Heard learned counsel for the parties.
The solitary question which is involved in the present case is that "as to whether the word "colonizer" used in Rule 12 (v) of 1998 Rules would include registered colonizer only or would also include all the colonizers?"
The word "colonizer" has been defined under Section 61-A (c) of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993, which reads as under :-
"61-A(c) "colonizer" means any person, society, institution or entity, excluding those that may be so notified by the State Government, who intends to take up the work of developing a colony in accordance with the provisions of this Act and rules made thereunder for the purpose of transfer by sale or otherwise all or some of the plots or the building of part thereof and is registered as a colonizer by the Competent Authority under this 3 THE HIGH COURT OF MADHYA PRADESH W.P. No.15954/2021 Ankit Shrivastava Vs. The Collector Guna and Others Act."
This Court in the case of Ashish Agarwal (supra) has held as under :
"40. Thus, if the provisions of Rule 12 of Rules 1998 is considered in the light of provisions of Section 339-A(a) of Municipalities Act, it is clear that any Colonizer who intends to undertake the establishment of a Colony or Colonies for the purpose of dividing the land into plots, with or without developing the area, transfers or agrees to transfer gradually or at a time, to persons desirous of settling down on those plots by constructing residential or non-residential or composite accommodation, will have to obtain registration under Rules, 1998. If it is held that Rule 12 of Rules 1998 would be applicable to only Registered Colonizers who were working after obtaining due permission and not to all other Colonizers who have acted in complete disregard to the provisions of law, by not obtaining Registration under the Rules, then such interpretation would put the wrongdoer in a more advantageous position in comparison to those who had obtained registration certificate after reserving some of the Plots/houses/flats for weaker section of society as well as by mortgaging some of plots/houses/flats with Municipal Council. Such an interpretation would run contrary to the law laid down by the Supreme Court in the case of Saraswati Abharansala (Supra)."
Therefore, any interpretation which gives any undue advantage to the wrongdoers should be avoided and in case if it is held that the word "colonizer" mentioned in Rule 12 (v) of 1998 Rules is restricted/confined to the registered colonizer only, then it would frustrate the very purpose of the Act. Accordingly, it is held that the word "colonizer" would include registered as well as unregistered 4 THE HIGH COURT OF MADHYA PRADESH W.P. No.15954/2021 Ankit Shrivastava Vs. The Collector Guna and Others colonizer. Therefore, it cannot be said that any action taken under Section 339 of M.P. Municipalities Act and under Rule 12 (v) & 15-C of 1998 Rules is bad or without jurisdiction.
So far as the contention of petitioner that the petitioner has already handed over the colony to Municipality is concerned, the same is the disputed question of fact which cannot be adjudicated by this Court while exercising the powers under Article 226 of the Constitution of India.
Accordingly, it is directed that, if so advised, the petitioner can assail the impugned order dated 31.03.2021 passed by the Collector, District Guna on merits before the appropriate/appellate forum.
With aforesaid observations, the petition is dismissed.
(G.S. Ahluwalia) Judge Aman AMAN TIWARI 2021.09.09 17:50:47 +05'30'