Madhya Pradesh High Court
Yogesh Agrawal vs The State Of Madhya Pradesh on 13 March, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
Writ Petition No.2492 of 2023
Yogesh Agrawal
vs.
State of M.P. & Others
APPERANCE
(Shri Nirmal Sharma - Advocate for the petitioner)
(Shri M.S. Jadon - Government Advocate for the State)
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Reserved on : 22/10/2024
Delivered on : 13/3/2025
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This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Hon'ble Shri Justice Milind
Ramesh Phadke pronounced/passed the following:
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ORDER
The present petition, under Article 226 of the Constitution of India, has been preferred against the order dated 19.01.2023; whereby, while invoking the provisions of Rules of the M.P. Gram Panchayat (Registration of Colonizer Terms and Conditions) Rules, 1999 (for short ''Rules of 1999'') which stood repealed in the year 2013, the Sub- Divisional Officer, Shivpuri holding the petitioner to be indulged in illegal colonization had directed to get an F.I.R./criminal case registered against him and intimate the same accordingly.
2. Short facts of the case are that the petitioner is owner of a land 2 bearing Survey No.2598/2/Min-4, ad-measuring 0.460 hectares, situated at Village Singhniwas and for his own personal use, a part of land has been developed, but a show-cause notice dated 01.02.2021 was issued by the Additional Collector, Shivpuri alleging that he had illegally constructed a road on the aforesaid land and had divided the land in small plots and is selling the said plots and raising construction thereon though the land has not been diverted and no colonizers license has been obtained and neither any lay-out plan has been sanctioned by the Town and Country Planning. Thus, by way of the said show-cause notice, the petitioner was show- caused as to why penal action be not taken against him under the provisions of Madhya Pradesh Nagarpalika (Registration of Colonizer, Terms and conditions) Rules, 1998 and Sections 339 ('A' to 'G') of the Madhya Pradesh Municipalities Act, 1961 and as to why an F.I.R./criminal case be not registered. By way of the said show-cause notice, a reply was sought till 11.02.2021. Vide letter dated 18.02.2021, a reply was submitted by the petitioner and it was informed that he has purchased only 0.46 hectares of land by way of sale deed dated 30.12.2009. He has neither constructed any illegal colony nor has diverted the land rather the land has been diverted on the basis of order dated 08.10.2013 passed by the Sub-Divisional Officer, Shivpuri and the information, which has been received by the authorities, is false; thus, prayed for taking back of the said show-cause notice.
3. After receiving reply on 18.02.2021, the statements of Patwari Halka Girjesh Shrivastava and Secretary, Gram Panchayat, Singhniwas, Janpad Panchyata, Shivpuri were recorded wherein they stated that on the land in question, the petitioner had done plotting and had sold the said plots. He further stated that no colonizer license and no permission from the Town and Country Planning had been taken nor he had got any lay-out 3 plan sanctioned by the Town and Country Planning and though there was total absence of any of the requisite permissions, the petitioner was raising illegal colony. The said witnesses were even cross-examined by the counsel for the petitioner in which the fact of selling of the plots could not be rebutted.
4. After considering the report and other documents available on record as well as the statements of Patwari Halka Girjesh Shrivastava and Secretary, Gram Panchayat, Singhniwas, Janpad Panchyata, Shipvuri, the petitioner was found to be guilty under the provisions of the Rules of 1998 and the Act of 1961 and the impugned order dated 19.01.2023 was passed whereby the Chief Municipal Officer, Janpad Panchayat, Shivpuri was directed to get an F.I.R./criminal case registered against the present petitioner, with a further direction to take over the land in question and record it in the revenue records as Government land. Aggrieved by the aforesaid order, the present petition has been filed.
5. Learned counsel for the petitioner has argued that the order passed by the Sub-Divisional Officer, Shivpuri was without jurisdiction, as he has no powers under the provisions of the Rules of 1999 for initiating prosecution and the said powers only lay with the Chief Municipal Officer (''CMO'') and in absence of any express sanction, the SDO could not usurp the jurisdiction available to the CMO, therefore, the impugned order is unsustainable, which deserves to be quashed.
6. While referring to Sub-Section (2) of Section 313 of the Act of 1961, it was argued that any prosecution under this Act or under any rule or bye-law thereunder may, save as therein otherwise provided, is required to be instituted before any Magistrate and every fine or penalty imposed under or by virtue of this Act or any rule or bye-law thereunder, and any compensation expenses, charges or damages for the recovery of which no 4 special provision is otherwise made in this Act, may be recovered on application to any Magistrate by the distress or sale of any movable property within the limits of his jurisdiction belonging to the person from whom the money is claimed; thus, the only remedy available is to file a complaint before the concerned Magistrate alleging any offence under the provisions of this Act and therefore, directions issued by the SDO for registration of an F.I.R./criminal case.
7. To bolster his submissions, he had relied upon the decision of the Co-ordinate Bench of this Court in the matter of Municipal Council vs. Radha Bai reported in 1990 Cri.L.J. 2361 wherein while examining the provisions of Section 313 of the Act of 1961 and Section 468 of CrPC, it has been observed that the Municipalities Act does not provide any forum of its own for trial of criminal cases and by virtue of Sub-section (2) thereof, the prosecution has to be before ordinary criminal courts, thus, when only the recourse available to the respondents for initiating prosecution under the Section 339(C) of Act of 1961, it can only be by way of filing a complaint before the concerned Magistrate and no F.I.R./ criminal case can be directed to be registered.
8. On the basis of the aforesaid arguments, it was submitted that grave illegality has been committed by the SDO (Revenue) in directing the Chief Municipal Officer, Nagarpalika, Shivpuri to get an F.I.R./ criminal case registered against the petitioner, therefore, the same being illegal and perverse deserves to be quashed.
9. Per contra, learned Government Advocate for the State had submitted before this Court that the present petition relates to the order dated 19.01.2023 passed by the SDO in exercise of powers under the provisions of the Rules of 1998 and the Act of 1961 inter-alia finding the petitioner to be engaged in illegal development of colony and 5 alienating/selling the plots without any permission and after affording due opportunity of hearing had found that the petitioner had committed an offence under the provisions of the Rules of 1998 and the Act of 1961 of illegal colonization, therefore, had rightly directed the CMO, who is the Officer authorized, to initiate prosecution by lodging a criminal complaint against the petitioner and on the basis of which, the CMO vide letter dated 19.01.2023 had made a complaint to Police Station Physical Shivpuri to register a case under Section 339(C) of the Act of 1961 against the petitioner and on its basis Crime No.19 of 2023 had been registered and the same is challenged on the ground that Revenue Authority has no jurisdiction or authority to direct for registration of an F.I.R. or criminal prosecution against the petitioner insofar as it pertains to violations which constitute an offence under the provisions Act of 1961, as the power to prosecute for offences committed under the said Act is vested with the Municipal Council, Chief Municipal Officer or any other Officer authorized by the council, which is wholly misconceived argument, as the F.I.R. has been lodged by CMO himself, who is an officer authorized to move such complaint and it does not matter as to how he had received the information, as the source of information regarding commission of offence is material so long as the person acting on such information is duly authorized and empowered under the relevant provisions of the Act.
10. It was further submitted that the ground of lack of authority and jurisdiction to prosecute available with the respondents is of no consequence at this stage, as it is a preliminary stage of investigation and has not yet transformed into a case for prosecution, which would be arrived only after the police has conducted its investigation and decide to press charges against the petitioner and this argument appeals to reason as the police authorities can directly register any cognizable offence under 6 the Act of 1961 and the question of authority of competent person to prosecute does not arise at this stage and this aspect will gain significance only at the stage of taking cognizance by the Magistrate. It was further submitted that the present petition deserves to be dismissed also on the ground that the letter/complaint written by the CMO dated 19.01.2023 has not been challenged and the F.I.R. which has been registered is the consequence of the letter of CMO; hence, in absence of seeking substantive relief, no consequential relief can be granted.
11. On the basis of the aforesaid submissions, it was prayed that the present petition, being no sum and substance, deserves to be dismissed.
12. The first contention which has been raised by the petitioner is that the Additional Collector who had issued the show-cause notice dated 01.02.2021 to the petitioner was not a competent authority under the provisions of Act of 1961 and since no notice as such was given by the authority who is competent i.e. SDO (Revenue), therefore, the entire proceedings are bad in law, accordinlgy, the impugned order is liable to be set aside.
13. Initially, the action has been initiated on the basis of report submitted by the Additional Collector, dated 15.01.2021 and at that time, Madhya Pradesh Nagarpalika (Colony Development) Rules, 2021 though were not notified but its Notification dated 13.01.2022 provides that as per Proviso to Rule 28 which deals with the Repeal Clause, anything done or any action taken under the rules or bye-laws so repealed shall be deemed to have been done or taken under the corresponding provisions of the Rules of 2021. Thus, the provisions of Section 2021 are required to be seen.
14. As per Part-3 of the said Rules which provides for provisions related to 'Unauthorized Colonies' contains Rules 22 to 25. As per Rule 22, 7 it is duty of the competent authority, in exercise of the powers conferred to him under Madhya Pradesh Municipal Corporation Act, 1956 and Madhya Pradesh Municipalities Act, 1961, to ensure that unauthorized colonies are not developed in the municipal areas and if such information of unauthorized development is received then he shall issue a show-cause notice to the developer and landowner by giving a time period of 15 days, showing cause as to why action should not be taken against him under these rules and thereafter, if no satisfactory reply is received within the prescribed time period, the competent authority may issue final notice, giving 15 days' time for removal of development/construction and also send intimation to the concerned Sub-Registrar to stop registration of sale/agreement to sale in the said colony and only in case, the development/construction is not removed in the unauthorized colony within the period specified, the competent authority shall take action for removal of the development/construction and also file complaint against the developer and landowner in the concerned police station for taking necessary penal action under the relevant provisions of the Act.
15. Thus, it is evident from the aforesaid provisions that in case even after giving time to remove the unauthorized construction it is not removed then the competent authority can file a complaint against the developer and landowner in the concerned police station for taking necessary penal action under the relevant provisions of the Act.
16. The 'Competent Authority' for exercising the powers under Rule 22 of the Rules of 2021 has been defined under Section 2(c) of Rules of Part- 1, General, which reads as under:
2(c) "Competent Authority" means in relation to such Municipal area which comes within the limit of any Municipal Corporation, Municipal Commissioner and in 8 relation to such Municipal area which comes within the limit of any Municipal Council or Nagar Parishad, the Collector."
17. The said definition of 'Competent Authority' as provided under Section 2(c) mentions 'the Collector' as an authority so far as Municipal area which comes within the limit of any Municipal Council or Nagar Parishad and as Shivpuri is the municipal council, therefore, the 'Collector' would be the Competent Authority to take any action under the provisions of Rules of 2021.
18. Further, Rule 26, 27 and 28 of the Rules of 2021 which falls in Part- 4 and deals with ''Offences and Punishment, interpretation and repeal'' are also profitable to quote which is as under:
26. Offences and Punishment.-
(1) Any person who undertakes the development of a colony without obtaining permission, under the provisions of this Act and rules made thereunder, commits the offence of development of Unauthorized Colony.
(2) Any colonizer who transfers any land by sale or otherwise, or undertakes construction work, other than that stipulated in the permission, on the land earmarked for development of internal works under rule 14 and civic infrastructure like roads, open spaces, water supply, electricity, sewerage and entertainment areas, he commits the offence of violation of permission.
(3) The persons who commits offence under sub-rule (1) and (2) shall be liable for punishment under the provisions of section 292-C of the Madhya Pradesh Municipal Corporation Act, 1956 or 339-C of the Madhya Pradesh 9 Municipalities Act, 1961.
27. Interpretation. If any question arises on interpretation of these rules, the same shall be referred to the State Government. The decision of the State Government shall be final.
28. Repeal. As from the date of commencement of these rules, all rules and bye-laws corresponding to these rules, if in force immediately shall stand repealed:
Provided that anything done or any action taken under the rules and bye-laws so repealed, shall, unless such thing or action is inconsistent with provisions of these rules, shall be deemed to have been done or taken under the corresponding provisions of these rules."
19. As per Sub-Rule (3) of Rule 26, the person who commits offence under Sub-Rule (1) and (2) shall be liable for punishment under the provisions of Section 292-C of the Madhya Pradesh Municipal Corporation Act, 1956 or 339-C of the Madhya Pradesh Municipalities Act, 1961. Thus, so far as issuance of any show-cause notice, calling for reply and thereafter, passing any order, if the reply is found to be unsatisfactory lay with the Collector.
20. Looking to the overall facts and circumstances of the case, this Court finds that the matter was transferred to the SDO (Revenue) by the Additional Collector on 15.01.2021, thereafter, a show-cause was issued to the petitioner to which no reply was submitted and this fact would be reflected from para 2 of the impugned order, even though reply was not filed by the petitioner to the show-case notice sent by the SDO, the reply sent to the notice issued by the Additional Collector dated 01.02.2021 and considering the aforesaid reply, the impugned order dated 19.01.2023 was 10 passed which according to this Court is bad in law, as he was not competent to pass the order and it is accordingly set aside. Since it has been held that the SDO was not competent to pass the order, therefore, this Court without going further into the merits of the matter, remits it back to the Collector/Additional Collector to pass appropriate order in accordance with law.
21. With the aforesaid observation, the present petition is allowed and disposed of.
(Milind Ramesh Phadke) PAWADigitally signed by PAWAN KUMAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH Judge N pwn* COURT OF MADHYA PRADESH BENCH GWALIOR, 2.5.4.20=b864d1ab4ace2215bfcf3ab301c34 d631287f1b1cdd90b4a49f265f02d9d593f, postalCode=474001, st=Madhya Pradesh, serialNumber=61B9D129971D2EA4FD4455E KUMAR D49EA436EA65E26164BEEED89153191C56E 98CE21, cn=PAWAN KUMAR Date: 2025.03.17 11:56:29 +05'30'