Madhya Pradesh High Court
Ashish Agarwal vs The State Of Madhya Pradesh on 18 August, 2021
Author: Gurpal Singh Ahluwalia
1 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
W.P.No. 7126/2021
Ashish Agarwal vs. State of M.P. & Ors.
W.P.No.5569/2021
Mahendra Singh vs. State of M.P. & Ors.
W.P.No. 5571/2021
Smt. Amarkaur W/o Shri Bahadur Singh through Power of
Attorney Holder Shri Mahendra Singh vs. State of M.P. & Ors.
W.P.No.7023/2021
Sunil Chaurasiya vs. State of M.P. & Ors.
W.P.No.7025/2021
Nitendra Shukla vs. State of M.P. & Ors.
W.P.No. 7027/2021
Kuldeep Saluja vs. State of M.P. & Ors.
W.P.No.7051/2021
Sanjay Chaurasiya vs. State of M.P. & Ors.
W.P.No. 7130/2021
Vinay Shastri vs. State of M.P. & Ors.
W.P.No.7285/2021
Mahaveer Jain & Ors. vs. State of M.P. & Ors.
W.P.No.7406/2021
Shailesh vs. State of M.P. & Ors.
W.P.No.7410/2021
Shailesh & Ors. vs. State of M.P. & Ors.
W.P.No. 7417/2021
Shailesh & Ors. vs. State of M.P. & Ors.
W.P.No. 7483/2021
Shubhnarayan Solanki vs. State of M.P. & Ors.
W.P.No.7600/2021
Vinay Singh Sengar vs. State of M.P. & Ors.
2 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
W.P.No.7856/2021
Mukesh Rathore vs. State of M.P. & Ors.
W.P.No.7857/2021
Amit Raghuwansi vs. State of M.P. & Ors.
W.P.No.7859/2021
Preetam Singh Yadav vs. State of M.P. & Ors.
W.P.No.7873/2021
Trilokchand vs. State of M.P. & Ors.
W.P.No.7960/2021
Praful Chaurasiya & Anr. vs. State of M.P. & Ors.
W.P.No.7964/2021
Jaspal Gill vs. State of M.P. & Ors.
W.P.No.8324/2021
Omprakash Rathore & Ors. vs. State of M.P. & Ors.
W.P.No.8325/2021
Bhagwati Prasad Sharma vs. State of M.P. & Ors.
W.P.No.8376/2021
Shankarlal, Bhagwanlal vs. State of M.P. & Ors.
W.P.No.8464/2021
Champalal Chaurasiya vs. State of M.P. & Ors.
W.P.No.8738/2021
Balveer Singh Sikh vs. State of M.P. & Ors.
W.P.No.8745/2021
Riyaz Hussain & Anr. vs. State of M.P. & Ors.
W.P.No.9073/2021
Brajesh Singh Raghuvanshi vs. State of M.P. & Ors.
W.P.No.10496/2021
Jarnail Singh vs. State of M.P. & Ors.
W.P.No.10815/2021
3 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
Noorul Hassan Noor vs. State of M.P. & Ors.
W.P.No.10818/2021
Munshi Lal Yadav vs. State of M.P. & Ors.
W.P.No.10901/2021
Yashwant Kumar vs. State of M.P. & Ors.
W.P.No.12285/2021
Rani vs. State of M.P. & Ors.
W.P.No.12500/2021
Gaurav Shrivastava vs. Collector Guna & Ors.
W.P.No.12993/2021
Pradeep Jain & Anr. vs. State of M.P. & Ors.
W.P.No.13156/2021
Deewan Singh vs. State of M.P. & Ors.
Gwalior, dated 18-8-2021
Shri D.K. Agrawal, Counsel for the petitioner in W.P.
No.7126/2021 and W.P. No.7130/2021.
Shri S.K. Shrivastava, Counsel for the petitioner in W.P.
Nos.7960/2021, 7964/2021, 12285/2021 and 8745/2021.
Shri Yogesh Singhal, Counsel for the petitioner in W.P.
Nos.7285/2021, 7406/2021, 12993/2021, 7417/2021 and 7410/2021.
Shri Vijay Sundaram, Counsel for the petitioner in W.P.
No.8376/2021.
Shri Anil Kumar Shrivastava, Counsel for the petitioner in W.P.
No.9073/2021.
Shri Ajay Raghuvanshi, Counsel for the petitioner in W.P.
4 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
No.12500/2021.
Shri Rajnish Sharma, Counsel for the petitioner in W.P.
No.10901/2021.
Shri Avadhesh Parashar, Counsel for the petitioner in W.P. No.
10496/2021.
Shri A.S. Jadon, Counsel for the petitioner in W.P.
No.13156/2021.
Shri Prashant Sharma, Counsel for the petitioner in all
remaining petitions.
Shri Jitesh Sharma, Counsel for the respondents/State.
Shri Pawan Kumar Dwivedi, Counsel for respondents/Nagar
Palika Parishad/Municipal Council.
By this Common order, W.P. Nos.7126/2021 5569/2021,
5571/2021, 7023/2021, 7025/2021, 7027/2021, 7051/2021,
7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021,
7873/2021, 7960/2021, 7964/2021, 8324/2021, 8325/2021,
8376/2021, 8464/2021, 8738/2021, 8745/2021, 9073/2021,
10496/2021, 10815/2021, 10818/2021, 10901/2021, 12285/2021,
12500/2021, 12993/2021, 13156/2021 shall be disposed of.
2. For the sake of convenience, the facts of W.P. No.7126 of 2021
shall be referred.
5 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
3. This petition under Article 226 of the Constitution of India has
been filed seeking the following relief(s) :-
(i) The order dated 10-2-2021 (Annexure P/1) passed by
the Collector and District Magistrate, Guna/respondent no.2
may kindly be quashed.
(ii) It may kindly be held that any action taken or proposed
to be taken by the respondents in pursuance of the
impugned order dated 10-2-2021 (Annexure P/1) would be
void-ab-initio and cannot be given effect and/or;
(iii) It may kindly be held that the order dated 10-2-2021
(Annexure P/1) is without jurisdiction, illegal and arbitrary,
therefore, void-ab-initio and no coercive action against the
petitioner alleging illegal colonization can be taken by the
Respondents under the/in pursuance of the order dated 10-
2-2021 (Annexure P/1) passed by the Collector and District
Magistrate, Guna/Respondent no.2, and,
(iv) to allow the cost of this petition with any other
appropriate relief(s) may kindly be granted to the petitioner
and,
(v) To pass any other or further order(s) deemed fit and
necessary in the facts and circumstances of the matter.
4. It is the case of the petitioner, that he and one Sunil Chaurasiya
jointly purchased 0.523 hectares of land situated in Patwari Halka No.
77, village Kusmoda, within the limits of Municipal Council, Guna.
The land was purchased by registered sale deed dated 27-3-1993.
After getting their names mutated, the petitioner also got the land
diverted. It is submitted that in the year 1996, the S.D.O., Guna
issued a notice dated 6-7-1996 regarding colonization on the land
purchased by the petitioner. As the petitioner was not intending to
construct a colony, therefore, no license under M.P. Nagar Palika
(Registration of Colonizer, Terms and conditions) Rules, 1998 (In
6 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
short Rules, 1998) was obtained. On 7-1-2019, the Tahsildar/
respondent no.4, initiated an action against the petitioner under the
Municipalities Act, 1961 and Rules, 1998, alleging illegal
colonization over the land in dispute. Thereafter, the S.D.O., Guna by
its recommendation dated 9-1-2019, recommended to the Collector ,
to initiate proceedings under the Municipalities Act as well as under
the Rules, 1998. Accordingly, the Collector, issued notice dated 24-6-
2019, which was not served on the petitioner, on account of
incomplete address. Again a revised notice was issued which was
duly served on the petitioner, however, the copy of annexures were
not supplied. The petitioner submitted his reply on 19-7-2019.
Another Show Cause Notice dated 2-6-2020 was issued alleging
illegal colonization, which was duly replied by the petitioner, taking a
specific stand that the idea of colonization was never executed.
Inspite of verbal objections with regard to the competence of the
Collector, the impugned order has been passed. It is submitted that
as per Section 313 of Municipalities Act, the action can be taken
within 12 months, however, in the present case, the prosecution is
barred by time, as in the year 1996 itself, the respondents were
already aware of the fact that the petitioner is developing a colony.
Although the order has been passed under Section 339 of
Municipalities Act, but Section 339 of Municipalities Act, deals with
7 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
Requisition of Services in cases of emergencies and has nothing to do
with illegal colonization. Further, the Collector/District Magistrate
has no power under Section 313 of Municipalities Act. The Rules,
1998 do not give any authority to District Magistrate/ SDO /Tahsildar
to initiate any coercive action alleging illegal colonization. The
C.M.O., cannot carry out valuation of the unfinished work and the
said amount cannot be recovered from the petitioner. The petitioner
is not involved in colonization, therefore, doesnot require any license.
It is submitted that once something is required to be done in a
particular manner, then it should be done in that way only.
5. The respondents no. 3 & 5 have filed their reply. The State
Govt. adopted the reply submitted by the respondents no. 3 & 5.
6. It is the stand of the respondents no. 3 and 5 that under Section
339-A (2) of Municipalities Act, "Competent Authority" means as
may be appointed by the State Govt. It is submitted that "Competent
Authority" has been defined in Rule 2(h) of Rules, 1998 which reads
as under :
2(h) "Competent Authority" means in relation to such
Municipal area which comes within the limit of any
Municipal Corporation, Municipal Commissioner and in
relation to such Municipal Area which comes within the
limit of any Municipal Council or Nagar Panchayat, the
Collector, Sub-Divisional Officer (Revenue)
Thus, it is submitted that Collector, is competent to exercise its
8 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
power under Chapter XII-A of Municipalities Act. It is further
submitted that the petitioner has not claimed that he had not sold even
a single plot. On the contrary, the S.D.O. has provided the details of
the land sold by petitioners. Even the petitioner has admitted this fact
in his reply filed before the Collector. The petitioner is involved in
illegal colonization without having any colonizer license and without
any approved map from Town and Country Planning Department and
is also not having any permission for development of Colony. Public
Facilities, amenities and basic infrastructure have not been provided.
Further, the Municipal Council has been superseded and the
Collectors have been appointed as Administrators for the purpose of
exercise of duties and powers of the Council. It is further submitted
that under Rule 12 and 15-C of Rules, 1998, the Collector can issue
necessary directions.
7. In reply, it is submitted by the Counsel for the petitioner, that
Rule 12 of Rules, 1998 applies to registered Colonizers only and not
to Colonizers having no registration.
8. Heard the learned Counsel for the parties.
9. The Counsel for the petitioner has not disputed the fact that the
Municipal Council has been superseded and the Collector, Guna has
been appointed as an Administrator. Thus, it is clear that the
Collector, Guna can exercise the powers of Council. However, it is
9 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
observed that in order to remove any doubt, the Collector, Guna,
while exercising its powers under M.P. Municipalities Act, should
have mentioned his designation as Administrator, Municipal Council,
Guna and not as Collector/District Magistrate, Guna. Be that as it
may.
10. Section 328 of M.P. Municipalities Act provides for dissolution
of Municipal Council. Section 328(3)(b) of Municipalities Act deals
with powers of an Administrator, which says that all powers and
duties of the Council, the President-in-Council, Appeal
Committee,Advisory Committee and President under this Act may,
until the Council is reconstituted, be exercised and performed by such
person as may be appointed as Administrator by the State
Government in this behalf. Thus, as the Collector, Guna has been
appointed at Administrator, therefore, in the said capacity, he can
exercise the powers of Council.
11. Even otherwise, Rule 12 and 15 of Rules, 1998 provides for
"Competent Authority" which means "Collector". Thus, it is held that
the impugned order dated 10-2-2021 is within the competence of
Collector/Administrator and therefore, it cannot be said that it has
been issued by transgressing the jurisdiction.
12. By referring to Section 313 of Municipalities Act, the Counsel
for the petitioner submitted that the Council, the Chief Municipal
10 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
Officer or any other officer authorised by the Council in this behalf in
the case of Municipal Council and the Council or any other officer
authorised by the Council in this behalf in the case of other classes of
Municipality may direct prosecution for any offence under this Act or
under any rule bye-law made thereunder. However, as per Proviso (i)
to Section 313(1)(iii), the prosecution shall be instituted within 12
months next after the date of commission of such offence. In the
present case, a notice dated 6-7-1996 was issued to the petitioner in
respect of development of colony, therefore, it is clear that the
Municipality was already aware of the development of colony by the
Petitioner, therefore, the prosecution should have been launched
within 12 months from 6-7-1996 and having failed to do so, the
Collector, Guna has committed mistake by directing prosecution of
the petitioner.
13. Considered the submissions made by the Counsel for the
petitioner.
14. Notice dated 6-7-1996 merely provides that if the petitioner is
intending to develop a colony, then he may do so after obtaining due
license by making an application in this regard. In this notice, it is no
where mentioned that the petitioner has committed any act, which
invites his prosecution under Section 339-C of Municipalities Act. It
merely informs the petitioner, that he must obtain a license if he is
11 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
intending to develop a colony. Thus, it cannot be said that the period
of 12 months had already started to run from 6-7-1996. Further, no
period of limitation applies to the impugned order. The period of
limitation is a mixed question of fact and law, and it would come into
picture only when the prosecution is launched. As no complaint has
been filed so far, therefore, the question of limitation has not come
into picture so far.
15. It is next contended by the Counsel for the petitioner, that as
per the provisions of Section 339-C of Municipalities Act, it is for the
Court to assess the compensation amount, and by directing the
C.M.O. to assess the value of incomplete development work as well
as to forward the said estimate to Tahsildar Guna, who shall recover
the said amount by issuing RRC against the petitioner, the Collector
Guna has exceeded his jurisdiction.
16. In reply it is submitted by the Counsel for the respondents no. 3
& 5 that under Rule 15-C of Rules, 1998, the Collector / Competent
Authority has jurisdiction to recover the amount.
17. Considered the submissions made by the Counsel for the
parties.
18. Rule 15-C of Rules, 1998 reads as under :
15-C. Action be taken against the person for
construction of illegal colony - Action for punishment
shall be taken in accordance with the law against the person
12 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
for construction of illegal colony and action for recovery
of the amount which is to be recovered from such person
shall also be taken by the competent authority.
19. From the plain reading of Rule 15-C of Rules, 1998, it is clear
that it merely speaks about recovery of amount and doesnot provide
for assessment of cost of incomplete development work. There is a
difference between "Levy" and "Recovery". The Supreme Court in
the case of Somaiya Organics (India) Ltd. And another Vs. State
of U.P. And another reported in (2001) 5 SCC 519 has held as
under:
29....... "Levy" would mean the assessment or charging or
imposing tax, "collect" in Article 265 would mean the
physical realisation of the tax which is levied or imposed.
Collector of tax is normally a stage subsequent to the levy
of the same. The enforcement of levy could only mean
realisation of the tax imposed or demanded.....
20. "Levy" or "Assessment" are quite different from "Recovery".
"Levy" or "Assessment" requires adjudication of rights or liabilities,
whereas "Recovery" doesnot require adjudication of any right or
liability. "Recovery" is an execution of decree or order. Rule 15-C of
Rules, 1998 doesnot speak about adjudication or Assessment or Levy
but it merely speaks about Recovery. Therefore, in the considered
opinion of this Court, the Administrator/Council/CMO/Competent
Authority cannot make assessment of cost of unfinished development
work under Rule 15-C of Rules, 1998. Hence, the submission made
13 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
by the Counsel for the respondents no. 3 & 5 in this regard is
misconceived. However, before rejecting the submissions of the
Counsel for the respondents no. 3 & 5, it would be appropriate to find
out as to whether there is any other provision of law, which permits
the Council to assess the valuation of unfinished internal
development work or not?
21. It is contended by Shri Dwivedi, Counsel for respondents no. 3
& 5 that the Competent Authority can make assessment under Rule
12 of Rules 1998. The said submission of Counsel for respondents
No. 3 & 5 is refuted by the Counsel for the Petitioner by submitting
that Rule 12 of Rules 1998 is applicable to "Registered Colonizers"
only and not to those "Colonizers" who have constructed the Colony
in an illegal manner.
22. Considered the submissions made by the Counsel for the
parties.
23. Rule 12 of Rules 1998 reads as under :
12. Permission for the development works of the
colony.- On receipt of the application under Rule 8,
subject to the provisions mentioned in Rules 9, 10 and
11, after fulfilment of the following conditions, the
permission for the development of the colony in Form-
Five shall be given by the Competent Authority,-
(i) In order to ensure complete internal
development in a colony, out of the plots or
houses or flats, as the case may be, to be
developed by the colonizer, leaving the plots or
houses or flats reserved for the economically
14 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
weaker sections and the lower income group,
the plots or houses or flats in the following
proportion shall have to be mortgaged by the
colonizer with concerned Municipality -
(a) in case of plotted development such
number of plots, cost of which under the
prevailing collector guideline rates for that
area for plotted development, excluding
the cost of construction on such plots if
any, is equal to one hundred and twenty
five percent of the cost of internal
development.
(b) in case of group housing such number of
flats, cost of which under the prevailing
collector guidelines rates for that area for
group housing is equal to one hundred and
twenty five percent of the cost of internal
development.
(ii) The Competent Authority shall publish a
notice for information of the general public
regarding the number, location and direction of
plots or houses or flats, as the case may be,
which have been mortgaged. A copy of such
notice shall also be sent to the Sub Registrar.
(iii) Colonizer may be allowed to construct a
building on the mortgaged plots and such
mortgaged plot/house of colonizer shall be
released in following ratio of executed
construction and internal development:-
(a) On 50% completion of work (as per Rera
certification) - 33% plot/house;
(b) On 75% completion of work (as per Rera
certification) - 33% plot/house;
(c) On 100% completion of work (after
completion certificate is issued) - 34%
plot/house.
(iv) A colonizer may opt for submitting bank
guarantee of an amount equivalent to one
hundred and twenty five per cent of the cost of
internal development calculated under rule 7A,
15 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
in favor of the municipality, in lieu of
mortgaging the plots under clause (i). The bank
guarantee so submitted by the colonizer should
be valid till six months after expiry of the
period approved by the competent authority for
development of such colony.
(v) In case the colonizer has not carried out
internal development of the colony within the
approved period, the Competent Authority
shall proceed forthwith to forfeit the mortgaged
plots or the bank guarantee as the case may be.
In such case the Competent Authority shall
immediately make assessment of the internal
development carried out by the colonizer, if
any, and shall calculate the amount that would
be required to complete internal development
in such colony. An amount at the rate of one
hundred and twenty five percent of such cost
shall be recovered from open auction of the
mortgaged plots or by realizing the bank
guarantee. Thereafter the Competent Authority
shall carry out the internal development in the
colony.
(vi) The Colonizer shall have to deposit an
amount equal to two percent of the cost to be
incurred on the internal development of the
colony, estimated under rule 7A, as supervision
fee in the treasury of the concerned
Municipality.
(vii) The coloniser shall have to comply with
the criteria prescribed by the municipality in
respect of the handing over of the colony to the
municipality for maintenance.
(viii) After completion of the development
work of the colony, information of completion
of development work will be given to the
competent authority in Form-Five-A. The
competent authority within a period of 15 days
after receipt of information, get inspected the
development work of the respective colony by
the competent technical officer and in case
development work is found complete, the work
16 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
completion certificate will be issued in Form-
Five-B. On the date of the issue of the
completion certificate the concerned colony
shall be deemed to have been transferred to the
resident welfare committee (RWA) for
maintenance.
(ix) On the basis of the total area of the colony,
the amount at the rate of Rupees fifty per
square metre for external development cost,
shall be deposited by the coloniser in the
treasury of the municipality in cash or by Bank
Draft. The State Government may revise this
rate from time to time:
[Provided that if the coloniser himself
completes the external development of the
colony as per the prescribed specification then
it shall not be necessary to deposit the said
amount by the coloniser:
Provided further that in the planning area
declared by the Director of Town and Country
Planning which is adjacent to the Municipal
Limits, the coloniser shall have to undertake
external development works as per the
prescribed norms, in such cases the concerned
coloniser shall not be required to deposit the
amount prescribed for the external
development.]
[(x)] The municipality shall complete the
development works within a period of one year
from the date of deposit of the amount under
clause (v) and shall inform the coloniser
accordingly,
[(xi)] The coloniser shall have to manage the
minimum necessary facilities such as drinking
water, shelter, toilets etc. for the laborers
engaged in the development and construction
work of colony and permission for
development of colony shall only be given
after making such arrangement.
[(xii)] The amount deposited for external
development under clause (v) shall be kept in a
17 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
separate Bank Account by the Competent
Authority. The withdrawal from this account
shall only be made for the purpose of external
development works of that colony, through
joint signature of the Competent Authority and
Collector or a subordinate officer authorised by
him for this purpose.]
[12-A. Permission for building construction in
any colony.- The permission for building construction
in any colony may be granted after the permission for
development in such colony has been given. However,
building permission in a colony where plots are sold by
the colonizer, under, plotted development, shall only be
given when the Competent Authority is satisfied that
internal development in the colony has been completed
as per prescribed norms.]
24. It is true that any person who is intending to develop a colony
has to obtain a license under Rules, 1998 and the permission can be
granted subject to the terms and conditions mentioned in Rules,
1998, but the pivotal question for consideration is that whether the
word "Colonizer" used in Rule 12 of Rules, 1998 is confined to
"Colonizers having permission to develop colony" or would also
include any "Colonizer" who has developed colony without getting
himself registered and without having obtained permission under
Rules, 1998?
25. In Rule 12(v), the word "Colonizer" has been used and not the
word "Registered Colonizer".
26. The provisions for Development of Colony is a provision
beneficial for the residents of the Colony developed by a Colonizer,
18 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
so that they may get all facilities and amenities. The object is to
regularize indiscreet colonization to ensure sustained urbanization.
Chapter XII-A of Municipalities Act and Rules framed there under,
are for providing facilities and amenities to the purchasers and have
not been made solely with an intention to punish the Colonizers. Only
when a colonizer fails in providing basic amenities and facilities to
the occupants of plots/houses/flats developed by the Colonizer, then
coercive action can be taken against the Colonizer. Further, As per
Section 339-E and 339-F of Municipalities Act, the Competent
Authority can also take over the Management of the land of illegal
colonization and the right, title and interest of the colonizer in the
land under illegal colonization shall stand forfeited and shall vest in
the Council free from all encumbrances. Further "Internal
Development Work" has been defined in Rule 2(i) of Rules, 1998
which reads as under :
"(I) "Internal Development Work" means the following
development works to be done within the limits of the
colony under the prescribed standards:-
(one) Levelling;
(two) Demarcation of the proposed roads and
plots sanctioned in the layout;
(three) Construction of proposed
bitumineous/cement concrete road (as per
P.W.D. Standards);
(four) If in the land of the colony, the road
exists at present, in that case the construction
19 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
or widening of the road on the basis of
sanctioned layout (as per IRC standards);
(five) Construction of culverts (as per IRC
standards);
(six) Construction of proposed drain, if
existing them the cabalisation of existing drain
(as per PHE standards);
(seven) Implementation of internal water supply
system (as per PHE standards);
(eight) Construction of Internal sewage line /
sewerage treatment plant (as per P.H.E.D.
standards);
(nine) Construction of septic tank (if proposed)
(as per PHE standards);
(ten) Fixation of electric polls under the
internal electricity system (as per the standards
prescribed by the MPEB);
(eleven) Construction of overhead tank/sump
well/pressure pump;
(twelve) As per rule 47 (two) of the Madhya
Pradesh Bhumi Vikas Niyam, 2012, the
Development of proposed open area in the
colony, in which infrastructure related service
shall not be acceptable;
(xiii) Plantation on road side;"
From the plain reading of definition of "Internal Development
Work" it is clear that every colonizer has to provide the facilities and
amenities mentioned therein.
Section 339-C of the Municipalities Act reads as under :
339-C. Punishment for illegal colonization.--- (1) A
colonizer who, in contravention of the provisions of
Section 172 of Madhya Pradesh Land Revenue Code,
1959 (No. 20 of 1959) and the rules made thereunder,
diverts the land or part thereof, commits an offence of
illegal diversion of land.
20 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
(2) A colonizer who diverts his lands into plots or the
land of any other person with the object of establishing
a colony in branch of the requirements contemplated in
this Act or the rules made in this behalf, commits an
offence of illegal colonization.
(3) Whoever commits or abets the commission of an
offence of illegal diversion or illegal colonization shall
be punished with imprisonment of not less than three
years and not more than seven years or with minimum
fine of ten thousand rupees or with both. Such offence
shall be a cognizable offence.
(4) Whoever constructs a building in an area of illegal
diversion or illegal colonization commits an offence of
illegal construction.
(5) Whoever commits an offence of illegal construction
shall be punished with imprisonment of not less than
three years and not more than seven years or with
minimum fine of ten thousand rupees or with both.
Such offence shall be a cognizable offence.
27. From the plain reading of Section 339-C(3) of Municipalities
Act, it is clear that apart from imposing the jail sentence of not less
than three years and not more than 7 years with a minimum fine of
ten thousand rupees, the Court, while passing the judgment in respect
of any such offence, may order the accused to pay to the Council,
such amount of compensation as specified in the judgment, after
taking into consideration the amount required to be incurred towards
the development of such illegal colony, and such offence shall be a
cognizable offence. Thus, it is clear that the Court while passing a
judgment of conviction may also award compensation to the
Council. A guideline has been provided under Section 339-C(3) of
Municipalities Act, that while assessing the compensation, the Court
21 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
can take into consideration the amount required to be incurred
towards development of such illegal colony, and the compensation
so awarded under Section 339-C of Municipalities Act, can be also
recovered by exercising power under Rule 15-C of Rules, 1998.
28. If the contention of the Counsel for the petitioner, that unless
and until compensation is adjudicated by the Court, the Municipal
Council cannot assess the value of unfinished work is accepted, then
it would mean, that unless and until the liability of the Colonizer is
finally adjudicated by the Court, the residents of the locality will be
deprived of the minimum facilities and amenities as defined in Rule
2(i) of the Rules.
29. In Black's Law Dictionary, "Compensation" has been defined
as Money given to compensate loss or injury. The Supreme Court in
the case of Executive Engineer, Dhankanal Minor Irrigation
Division, Orissa v. N.C. Budhiraj, reported in (1999) 9 SCC 514
has held as under :
8.....Mr Anil Divan, the learned Senior Counsel could not
dispute that in Jena case the claim for award of interest for
the pre-reference period under the Interest Act, 1839 has
been rejected. He, however, strongly relied upon the
observations/findings recorded by the Constitution Bench
in G.C. Roy case in para 43, which read as under: (SCC pp.
532-33)
"43. The question still remains whether arbitrator has
the power to award interest pendente lite, and if so on
what principle. We must reiterate that we are dealing
with the situation where the agreement does not
22 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
provide for grant of such interest nor does it prohibit
such grant. In other words, we are dealing with a case
where the agreement is silent as to award of interest.
On a conspectus of aforementioned decisions, the
following principles emerge:
(i) A person deprived of the use of money to which he
is legitimately entitled has a right to be compensated
for the deprivation, call it by any name. It may be
called interest, compensation or damages........
Thus, compensation is something which is awarded to a
person, or institution in recognition of loss, injury, suffering etc.
Section 339-C of Municipalities Act, doesnot provide for award of
compensation to the occupants of the Colony. They are only entitled
for facilities and amenities and in case the Colonizer fails to provide
the same, then it can be done by the Municipality.
30. Thus, it is held that assessment of Compensation payable to the
Municipal Council under Section 339-C of Municipalities Act, would
not curtail the powers of the Municipal Council to develop the under-
developed colony left by the Colonizer.
31. Rule 12 of Rules, 1998, empowers the Municipal Council to
recover the amount required to complete internal development in
such colony and can be recovered from open auction of the
mortgaged plots or by realizing the bank guarantee. Rule 12(i)
requires that on receipt of application under Rule 8 of the Rules,
1998, the Colonizer is required to mortgage the plots or houses or
flats in the proportion mentioned in Rule 12(i)(a) and (b) of Rules,
23 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
1998. It is true that Rule 12(v) of Rules, provides mode of recovery
of cost of unfinished internal development work from the Colonizer
after auctioning the mortgaged plots/houses/flats, but keeping in
mind, the purpose of such provision, if Rule 12 of Rules, 1998 is
confined to "Registered Colonizer", then it would lead to absurdity
i.e., if any work is left unfinished by a "Registered Owner" then the
amount of unfinished work can be recovered from 'Registered
Owner" and if an illegal colony is developed by a person without
getting a license under Rules, 1998, then the Municipal Council will
have to develop the colony on its own expenses which shall be later
on compensated by the Court after adjudicating the guilt of the
Colonizer. It is well established principle of law that any
interpretation which leads to absurdity should be avoided.
32. The Supreme Court in the case of Eera Vs.State (NCT of
Delhi) reported in (2017) 15 SCC 131 has held as under :
64. I have referred to the aforesaid authorities to
highlight that legislative intention and the purpose of the
legislation regard being had to the fact that context has to
be appositely appreciated. It is the foremost duty of the
Court while construing a provision to ascertain the intention
of the legislature, for it is an accepted principle that the
legislature expresses itself with use of correct words and in
the absence of any ambiguity or the resultant consequence
does not lead to any absurdity, there is no room to look for
any other aid in the name of creativity. There is no quarrel
over the proposition that the method of purposive
construction has been adopted keeping in view the text and
the context of the legislation, the mischief it intends to
24 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
obliterate and the fundamental intention of the legislature
when it comes to social welfare legislations. If the purpose
is defeated, absurd result is arrived at. The Court need not
be miserly and should have the broad attitude to take
recourse to in supplying a word wherever necessary.
Authorities referred to hereinabove encompass various
legislations wherein the legislature intended to cover
various fields and address the issues. While interpreting a
social welfare or beneficent legislation one has to be guided
by the "colour", "content" and the "context of statutes" and
if it involves human rights, the conceptions of Procrustean
justice and Lilliputian hollowness approach should be
abandoned. The Judge has to release himself from the
chains of strict linguistic interpretation and pave the path
that serves the soul of the legislative intention and in that
event, he becomes a real creative constructionist Judge.
However, it has also been observed as under :
65. I have perceived the approach in Hindustan Lever Ltd.
and Deepak Mahajan, Pratap Singh and many others. I
have also analysed where the Court has declined to follow
the said approach as in R.M.D. Chamarbaugwalla and other
decisions. The Court has evolved the principle that the
legislative intention must be gatherable from the text,
content and context of the statute and the purposive
approach should help and enhance the functional principle
of the enactment. That apart, if an interpretation is likely to
cause inconvenience, it should be avoided, and further
personal notion or belief of the Judge as regards the
intention of the makers of the statute should not be thought
of. And, needless to say, for adopting the purposive
approach there must exist the necessity. The Judge,
assuming the role of creatively constructionist personality,
should not wear any hat of any colour to suit his thought
and idea and drive his thinking process to wrestle with
words stretching beyond a permissible or acceptable limit.
That has the potentiality to cause violence to the language
used by the legislature. Quite apart from, the Court can take
aid of casus omissus, only in a case of clear necessity and
further it should be discerned from the four corners of the
statute. If the meaning is intelligible, the said principle has
25 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
no entry. It cannot be a ready tool in the hands of a Judge to
introduce as and what he desires.
33. The Supreme Court in the case of Abhay Singh Chautala v.
CBI, reported in (2011) 7 SCC 141 has held as under :
44. It was also urged that a literal interpretation is a must,
particularly, to sub-section (1) of Section 19. That argument
also must fall as sub-section (1) of Section 19 has to be read
with in tune with and in light of clauses (a), (b) and (c)
thereof. We, therefore, reject the theory of litera regis while
interpreting Section 19(1). On the same lines, we reject the
argument based on the word "is" in clauses (a), (b) and (c).
It is true that the section operates in praesenti; however, the
section contemplates a person who continues to be a public
servant on the date of taking cognizance. However, as per
the interpretation, it excludes a person who has abused some
other office than the one which he is holding on the date of
taking cognizance, by necessary implication. Once that is
clear, the necessity of the literal interpretation would not be
there in the present case. Therefore, while we agree with the
principles laid down in Robert Wigram Crawford v. Richard
Spooner, Bidie, In re, Bidie v. General Accident Fire and
Life Assurance Corpn. Ltd. and Bourne (Inspector of Taxes)
v. Norwich Crematorium Ltd., we specifically hold that
giving the literal interpretation to the section would lead to
absurdity and some unwanted results, as had already been
pointed out in Antulay case (see the emphasis supplied to
para 24 of Antulay judgment).
34. Rule 12 of Rules, 1998 is neither a taxing provision nor a
penal provision. Therefore, the principle of Strict Interpretation of
Law would not apply. The Supreme Court in the case of Commr. of
Customs v. Dilip Kumar & Co., reported in (2018) 9 SCC 1 has
held as under :
23. In applying rule of plain meaning any hardship and
inconvenience cannot be the basis to alter the meaning to
26 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
the language employed by the legislation. This is especially
so in fiscal statutes and penal statutes. Nevertheless, if the
plain language results in absurdity, the court is entitled to
determine the meaning of the word in the context in which
it is used keeping in view the legislative purpose. Not only
that, if the plain construction leads to anomaly and
absurdity, the court having regard to the hardship and
consequences that flow from such a provision can even
explain the true intention of the legislation. Having
observed general principles applicable to statutory
interpretation, it is now time to consider rules of
interpretation with respect to taxation.
24. In construing penal statutes and taxation statutes, the
Court has to apply strict rule of interpretation. The penal
statute which tends to deprive a person of right to life and
liberty has to be given strict interpretation or else many
innocents might become victims of discretionary decision-
making. Insofar as taxation statutes are concerned, Article
265 of the Constitution prohibits the State from extracting
tax from the citizens without authority of law. It is
axiomatic that taxation statute has to be interpreted strictly
because the State cannot at their whims and fancies burden
the citizens without authority of law. In other words, when
the competent Legislature mandates taxing certain
persons/certain objects in certain circumstances, it cannot
be expanded/interpreted to include those, which were not
intended by the legislature.
35. The Supreme Court in the case of Dhenkanal Minor
Irrigation Division v. N.C. Budharaj, reported in (2001) 2 SCC 721
has held as under :
23......In our view, any such restricted and literal
construction which is bound to create numerous anomalies
and ultimately defeat the ends of justice should be
scrupulously avoided. On the other hand, that interpretation
which makes the text not only match the context but also
make a reading of the provisions of an Act, just, meaningful
and purposeful and help to further and advance the ends of
justice must alone commend for the acceptance of courts of
law. Adopting a different construction to deny a claimant
27 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
who opts for adjudication of disputes by arbitral process
alone and that too when recourse to such process is made
without the intervention of court would amount to applying
different and discriminatory norms and standards to
situations which admit of no such difference and that too
where there is no real distinction based upon any acceptable
or tangible reason.
36. Further, interpretation of law, which puts wrongdoer in a more
advantageous position, should be avoided. The Supreme Court in the
case of Corporation Bank v. Saraswati Abharansala, reported in
(2009) 1 SCC 540 has held as under :
24. The statute furthermore, it is trite, should be read in a
manner so as to do justice to the parties. If it is to be held,
without there being any statutory provision that those who
have deposited the amount in time would be put to a
disadvantageous position and those who were defaulters
would be better placed, the same would give rise to an
absurdity. Construction of the statute which leads to
confusion must be avoided.
37. It is well established principle of law that while interpreting a
provision of law, the Court must give purposive interpretation and
any interpretation which leads to absurdity should be avoided. The
Supreme Court in the case of New India Assurance Co. Ltd. Vs.
Nusli Nveille Wadia reported in (2008) 3 SCC 279 has held as
under:
51.....For proper interpretation not only the basic principles
of natural justice have to be borne in mind, but also
principles of constitutionalism involved therein. With a
view to read the provisions of the Act in a proper and
effective manner, we are of the opinion that literal
interpretation, if given, may give rise to an anomaly or
28 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
absurdity which must be avoided. So as to enable a superior
court to interpret a statute in a reasonable manner, the court
must place itself in the chair of a reasonable
legislator/author. So done, the rules of purposive
construction have to be resorted to which would require the
construction of the Act in such a manner so as to see that
the object of the Act is fulfilled, which in turn would lead
the beneficiary under the statutory scheme to fulfil its
constitutional obligations as held by the Court inter alia in
Ashoka Marketing Ltd.
* * * *
54. The provisions of the Act and the Rules in this case, are,
thus required to be construed in the light of the action of the
State as envisaged under Article 14 of the Constitution of
India. With a view to give effect thereto, the doctrine of
purposive construction may have to be taken recourse to.
(See Oriental Insurance Co. Ltd. v. Brij Mohan.)
38. The Supreme Court in the case of Commr. of Customs v.
Dilip Kumar & Co., reported in (2018) 9 SCC 1, has held as under :
20. It is well accepted that a statute must be construed
according to the intention of the legislature and the courts
should act upon the true intention of the legislation while
applying law and while interpreting law. If a statutory
provision is open to more than one meaning, the Court has
to choose the interpretation which represents the intention
of the legislature. In this connection, the following
observations made by this Court in District Mining Officer
v. TISCO, may be noticed: (SCC pp. 382-83, para 18)
"18. ... A statute is an edict of the legislature and in
construing a statute, it is necessary, to seek the
intention of its maker. A statute has to be construed
according to the intent of them that make it and the
duty of the court is to act upon the true intention of the
legislature. If a statutory provision is open to more
than one interpretation the court has to choose that
interpretation which represents the true intention of the
legislature. This task very often raises difficulties
because of various reasons, inasmuch as the words
used may not be scientific symbols having any precise
or definite meaning and the language may be an
29 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
imperfect medium to convey one's thought or that the
assembly of legislatures consisting of persons of
various shades of opinion purport to convey a meaning
which may be obscure. It is impossible even for the
most imaginative legislature to forestall exhaustively
situations and circumstances that may emerge after
enacting a statute where its application may be called
for. Nonetheless, the function of the courts is only to
expound and not to legislate. Legislation in a modern
State is actuated with some policy to curb some public
evil or to effectuate some public benefit. The
legislation is primarily directed to the problems before
the legislature based on information derived from past
and present experience. It may also be designed by use
of general words to cover similar problems arising in
future. But, from the very nature of things, it is
impossible to anticipate fully the varied situations
arising in future in which the application of the
legislation in hand may be called for, and, words
chosen to communicate such indefinite referents are
bound to be in many cases lacking in clarity and
precision and thus giving rise to controversial
questions of construction. The process of construction
combines both literal and purposive approaches. In
other words, the legislative intention i.e. the true or
legal meaning of an enactment is derived by
considering the meaning of the words used in the
enactment in the light of any discernible purpose or
object which comprehends the mischief and its remedy
to which the enactment is directed."
21. The well-settled principle is that when the words in a
statute are clear, plain and unambiguous and only one
meaning can be inferred, the courts are bound to give effect
to the said meaning irrespective of consequences. If the
words in the statute are plain and unambiguous, it becomes
necessary to expound those words in their natural and
ordinary sense. The words used declare the intention of the
legislature.
22. In Kanai Lal Sur v. Paramnidhi Sadhukhan, it was held
that if the words used are capable of one construction only
then it would not be open to the courts to adopt any other
hypothetical construction on the ground that such
construction is more consistent with the alleged object and
30 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
policy of the Act.
23. In applying rule of plain meaning any hardship and
inconvenience cannot be the basis to alter the meaning to
the language employed by the legislation. This is especially
so in fiscal statutes and penal statutes. Nevertheless, if the
plain language results in absurdity, the court is entitled to
determine the meaning of the word in the context in which
it is used keeping in view the legislative purpose. Not only
that, if the plain construction leads to anomaly and
absurdity, the court having regard to the hardship and
consequences that flow from such a provision can even
explain the true intention of the legislation.
39. It is also a well established principle of law that while
interpreting any provision of law, the Court can supply the lacuna to
achieve the object of law. The Supreme Court in the case of K.B.
Nagur Vs. Union of India reported in (2012) 4 SCC 483 has held as
under :
40.....The courts can always supply such lacuna in the
interpretation of provisions of a law so as to achieve the
object of the Act particularly when such interpretation
would be in consonance with the legislative object of the
statute.
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-
31 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
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).
41. Thus, it can be held that Rule 12(v) of Rules, 1998 authorizes
the Council to make assessment of the internal development carried
out by any colonizer, whether registered or not and can calculate the
amount that would be required to complete internal development in
such colony and the Municipal Council may recover the amount
required to complete internal development by auctioning the
mortgaged Plots/houses/flats and no civil suit for the said purpose
would be required. However, after giving purposive interpretation to
Rule 12(v) of Rules, 1998, it is held that the mode of recovery of
32 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
amount by public auction of mortgaged plots/houses/flats is only one
mode of recovery, and doesnot debar the Municipal Council to adopt
any other legally permissible mode like Rule 15-C of Rules, 1998.
Thus, it is held that after calculating the amount that would be
required to carry out Internal Development Work, the said amount
can be recovered by taking recourse to Rule 15-C of Rules, 1998.
42. However, power under Rule 12 (v) of Rules, 1998 is subject to
principle of Natural Justice. Therefore, before proceeding further
under Rule 12(v) of Rules, 1998, the Competent Authority has to give
full opportunity of hearing to the Colonizer, as well as persons
intending to (Who have already entered into an agreement to
purchase with the Colonizer) or have settled down on those
plots/houses/flats. An ex parte assessment of amount of unfinished
work cannot be done. Therefore, it is held that the direction given by
the Collector, Guna to C.M.O., Guna to assess the unfinished
development work is subject to the principle of Natural Justice.
Therefore, it is directed that the C.M.O., Guna shall assess the
amount of unfinished work after giving opportunity of hearing to the
Colonizer as well as to the persons who have already settled down or
are intending to settle down on the plots/houses/flats. After the
assessment is completed the said amount shall be deposited by the
Colonizer and in case if he fails to do so then the same can be
33 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
recovered in a manner as directed by the Competent
Authority/Administrator in the impugned order.
43. An apprehension was also expressed by the Counsel for some
of the petitioners in the connected petitions that since, the Collector,
Guna has already given a finding that the petitioner(s) has/have
developed an illegal colony, therefore, such finding would prejudice
the case of the petitioners before the Court of competent jurisdiction.
44. Considered the submissions made by the Counsel for the
petitioners. So far as the findings given by the Collector, Guna in the
impugned order is concerned, they are preliminary findings for the
purposes of prosecution of the petitioners. The said findings will not
have any binding effect on the Court, nor they will influence the
Court in any manner. The petitioner(s) shall be well within their right
to plead and prove before the Court of competent jurisdiction that
they had developed the Colony after obtaining due permission under
the Rules, 1998 after following all mandatory requirements as
provided under Rules, 1998. The Petitioner(s) shall also place the
details of all the sale deeds or agreement(s) to sell entered into with
the persons who were intending to or have settled down on the
plots/houses/flats. The Municipal Council may also produce the
record of the Registrar/Sub-Registrar to prove the sale transactions or
agreements to sell. The Court shall decide the case on the basis of the
34 HIGH COURT OF MADHYA PRADESH
W.P.Nos. 7126/2021, 5569/2021, 5571/2021, 7023/2021, 7025/2021, 7027/2021,
7051/2021, 7130/2021, 7285/2021, 7406/2021, 7410/2021, 7417/2021,
7483/2021, 7600/2021, 7856/2021, 7857/2021, 7859/2021, 7873/2021,
7960/2021, 7964/2021, 8324/2021, 8325/2021, 8376/2021, 8464/2021,
8738/2021, 8745/2021, 9073/2021, 10496/2021, 10815/2021, 10818/2021,
10901/2021, 12285/2021, 12500/2021, 12993/2021, 13156/2021
evidence which would come on record, without getting influenced or
prejudiced by any of the preliminary findings recorded by Collector,
Guna/Administrator.
45. The Counsel for some of the petitioners have submitted that an
order of assessment has already been issued.
46. Accordingly, it is directed that in case the order of assessment
has been issued without giving any opportunity of hearing to the
petitioner(s), then those assessment order(s) shall not be given effect
to, and the respondents shall pass fresh assessment orders after giving
full opportunity to the Colonizer, as well as the purchasers. If the
assessment orders have been passed after giving due opportunity of
hearing or even in those cases, where the colonizers did not avail the
opportunity of hearing inspite of service of notice, then those
petitioners shall have a right to challenge the assessment order before
the competent forum.
47. With aforesaid observations, all the writ petitions are
Dismissed.
48. Interim orders, if any, are hereby Vacated.
(G.S. Ahluwalia)
Judge
ARUN KUMAR MISHRA
2021.08.26 18:20:59 +05'30'
