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1. This is a petition under Article 226 of the Constn.

2. Petitioners purchased agricultural lands bearing survey Nos. 98/1/2 98/1/3 and 98/1/4 area 3.10 acres situate at village Lasudia Mori, Tehsil and District Indore. Petitioners applied under the Madhya Pra-desh Land Revenue Code for permission to divert these lands for non-agricultural purposes. Permission was granted by the Sub-Divisional Officer Indore-Sanwer on 15-4-1981 (Annex. A). Petitioners intended to construct a shopping complex on these lands and submitted the plan for the proposed construction for approval to the Gram Panchayat of village Lasudia Mori. The Gram Panchayat approved the plan and on the basis of the approved plan cement and other building material was allotted to the petitioners by the Civil Supplies Department of the State Government, petitioners started construction of a marketing complex and spent a considerable amount on it. When they were half-way-through, petitioners approached the Madhya Pradesh Electricity Board for electricity connection for the proposed marketing complex. The Board advised the petitioners to obtain a No Objection Certificate from the Town and Country Planning Department. Petitioner applied to the Joint Director, Town and Country Planning Department on 12-8-1981. The Joint Director refused permission on the ground that according to the Master Plan the lands could be used only for agricultural purposes. This letter dated 28-8-1981 is Annexure-C. The petitioners preferred an appeal under Section 31 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (the Adhiniyam hereafter) which according to the petitioners is pending before the Commissioner, Indore. On 1-9-1981 a notice purporting to be under Section 37 (1) of the Adhiniyam issued by the Joint Director, Town and Country Planning, Indore was served on the petitioners to remove the construction within a period of one month from the date of the notice. The notice is Annexure-E. Peti-tioners then applied to the Director, Town and Country Planning for permission to retain the construction on the lands in question in accordance with the provisions contained in Sub-section (3) of Section 37 of the Adhiniyam. Petitioners apprehended that the Town & Country Planning Department might take action for demolition of the construction and, therefore, they filed a suit for injunction before the Civil Judge Class II, Indore on 8-10-1981 and an ex parte ad interim injunction was issued on the same day restraining the Director and Joint Director, Town and Country Planning Department from demolishing the construction until further orders. Copy of the Court's order is Annexure-F. On 10th Oct. 1931 in the early hours of the morning at about 4.30 a.m. the Joint Director, Town & Country Planning went to the spot along with Additional Collector, Indore, Sub-Divisional Officer Indore City Superintendent of Police Indore, a posse of constables and a big gang of labourers equipped with Bulldozers, Dynamites and Cranes etc. The demolition work was started under the supervision of the officers mentioned above. A substantial portion of the construction was demolished before the petitioners came to know about it and they rushed to the spot and on the basis of the injunction issued by the Civil Court got the demolition work stopped.

3. On 12-10-1981 Sub-Divisional Officer, Indore-Sanwer served a notice purporting to be under Section 172 (5) of the M. P. Land Revenue Code on the petitioners asking them to remove the construction and to restore the land to its original state within two days. This notice is Annexure-G. 4- Petitioners challenge the validity of the notices dated 1-9-1981 (Annexure-E) issued by the Joint Director, Town & Country Planning, Indore and dated 12-10-1981 (Annexure-G) issued by the Sub-Divisional Officer, Indore under Section 172(5) of the Land Revenue Code and the action taken in pursuance thereof. The grounds on which the notices and the action or proposed action by the Joint Director, Town and Country Planning, Indore and Sub-Divisional Officer, Indore are challenged are as follows. According to the petitioners the Madhya Pradesh Nagar Talha Gram Nivesh Adhiniyam, 1973 was not extended to village Lasudia Mori where the petitioners had constructed the shopping complex in question. Respondents 3 and 4, therefore, had no right to take any action in respect of the said construction. Similarly the S. D. O. Indore had no jurisdiction to issue the impugned notice Annexure-G because the conditions imposed while granting permission for diversion of land wt're illegal and were not in accordance with the provisions of Section 172 of the Land Revenue Code and, therefore, the petitioners could not be compelled to comply with them. Further, since the Adhiniyam had not been extended to village Lasudia Mori, the condition imposed by the S. D. O. while granting permission was impossible of performance and for that reason also no action could be taken for non-compliance with the said condition. Lastly, it was averred that the petitioners had filed an application before the Director, Town & Country Planning, Bhopal (respondent No. 4) under Section 37 (3) of the Adhiniyam challenging the notice under Section 37 (1) of the Adhiniyam and in accordance with the provisions of S- 37 (3) of the Adhiniyam the notice stood automatically withdrawn till the decision of the Director on the application. Thus the action for demolition of construction was illegal. On these grounds petitioners sought that the notices Annexure-E and Annexure-G supra be quashed and respondents 1 to 4 be restrained from demolishing the construction in question.

5. Separate returns were filed by re-spondents 1-2 and respondents 3-4. Respondents 1 and 2 admitted that the petitioners had purchased the lands and obtained an order for diversion of the said lands at village Lasudia Mori for non-agricultural purposes. The proposed action by respondent No. 2 was sought to be justified on the ground that the Adhi-niyam was in force in village Lasudia Mori and, therefore, it was incumbent on the petitioners to comply with the provisions of Section 25 of the Adhinivam read with Section 172 of the M. P. Land Revenue Code. The approval of the Director, Town and Country Planning was, therefore, mandatory and petitioners' action in constructing the marketing complex was contrary to the provisions of the Adhiniyam and also contrary to the conditions imposed by the S. D. O. while passing the order permitting diversion of the lands for non-agricultural purposes. Thus the main ground on which respondents 1 and 2 resisted petitioners' claim was that the act of the petitioners in constructing the said complex without the permission of the Director, Town & Country Planning was a breach of law as well as the breach of the condition imposed under Section 172 of the Land Revenue Code. The notice issued by the S. D. O. was, therefore, within the authority of law.

21. Before closing we must refer to one more point made by the learned counsel for the petitioners. It was urged that the petitioners had made an appropriate application to the Director under Section 37 (3) of the Adhiniyam for permission for retention of their building on the land and till that application was disposed of the notice automatically stood withdrawn. No action, therefore, could be taken by the respondents particularly respondents 1, 3 and 4 for demolition of the building constructed by the petitioners. We have already observed that in their first return respondents 3 and 4 had flatly denied that any such application was made under Section 37 (3) of the Adhiniyam. Faced with the further clinching proof made in the rejoinder by the petitioners, respondents 3 and 4 tried to hedge the issue by pleading that the application was not in the prescribed manner before the authority i.e. the Regional Joint Director, Town Planning, Indore. It was fully established that an application under Section 37 (3) was made to the Director and a copy thereof was also delivered to the Joint Director Town & Country Planning Department, Indore. An acknowledgment (Annenure-H) from the office of the Joint Director has been filed by the petitioners. Thus in view of the, clear and mandatory provisions of Section 37 (3) of the Adhiniyam, the notice under which the action for demolition was taken at about 4.30 a.m. stood automatically withdrawn till the decision of the said application and for this reason also the notice and the subsequent action in pursuance thereof was invalid and without the authority of law. No action under the said notice could be taken.