Madhya Pradesh High Court
Kedarnath Sharma vs State Of M.P. on 28 January, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 28th OF JANUARY, 2025
WRIT PETITION No. 8237 of 2011
KEDARNATH SHARMA
Versus
STATE OF M.P. AND OTHERS
Appearance:
Shri Jitendra Kumar Sharma - Senior Advocate with Ms. Smrati
Sharma - Advocate for the petitioner [P-1].
Shri Deepak Khot - G.A. for the respondent No.1/State
Shri Raj Shrivastava - Advocate for the respondent [R-3].
ORDER
This petition under Article 226/227 of the Constitution of India has
been preferred by the petitioner against the order dated 10.12.2010 by which
learned SDO and Competent Authority, Shivpuri had held that the colony
developed by the petitioner over piece No.1 situated over survey Nos.262,
264 min 1, 272 min 5 total admeasuring 1.415 hectare to be illegal as it was
being developed in violation of Section 339A and 339 B, thus was
punishable under Section 339 C of M.P. Municipalities Act, 1961 and all the
transactions of sale as regards the plots over the land were null as per Section
339E. Further it was directed that the S.D.O Shivpuri be appointed as
administrator of the plots and he shall obtain possession of the plots and
further had directed Chief Municipal Officer, Nagar Palika Parishad Shivpuri
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to registered an FIR against the petitioner at concerned Police Station. The
petitioner is further aggrieved by the order dated 10.10.2011 passed by
Collector, District Shivpuri by which appeal preferred against the order dated
10.12.2010 passed by the SDO was rejected while upholding the order dated
10.12.2010.
2. In brief, the facts of the case are that the petitioner is bhumiswami
of 1/2 share in the lands survey no 262, 264-min, 266, 267, 271, 272, 273,
263 and 274 situated in Shivpuri Tukda No 1, Tahsil and District Shivpuri
and remaining 1/2 share land is held by Smt. Prakash Kumari Sharma. Out of
said survey numbers, the land of survey no. 262 (area 3 bigha 7 biswa), 264-
min (area 2 bigha 8 biswa) and 272 (area 1 bigha 12 biswa) total area 1.415
hectare is in dispute. The petitioner along with Smt Prakash Kumari Sharma
applied for diversion of area l bigha of survey No. 262 and 1 bigha of survey
No. 272 before SDO, Guna. After getting completed all the formalities, the
SDO passed order of diversion of said 2 bigha on 28.6.2001. Thereafter the
petitiorer along with Smt, Prakash Kumari Sharma sold 16 pieces of land in
the shape of plots. The transferees have already constructed houses and are
residing in the houses constructed by them. These 16 plots have been sold
out of diverted area of 2 bigha and the other remaining agriculture land has
not been transferred to anybody. Only 5 plots are remaining out of diverted
area of the land. Over two plots, the petitioner and said Smt. Prakash Kumari
Sharma have constructed their houses and are residing therein. The petitioner
had not entered into any agreement of transfer with respect to the aforesaid
remaining plots or the agriculture land owned and possessed by him except
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the 16 plots. On a complaint made by some persons, S.D.O. Shivpuri
directed the Chief Municipal Officer, Shivpuri to intimate after getting
information through Village-Patwari as to whether the bhumiswami of land
Kedarnath Sharma had sold the plots and development has been made or not
? Thereupon, Chief Municipal Officer Shivpuri intimated to the SDO that
Smt. Prakash Kumari Sharma and Kedarnath Sharma are selling the plots
from 2 bigha land of survey No. 262 and 272, accordingly action be taken
against the concerned persons. Patwari also gave the information that
bhumiswami of the lands are selling the lands in shape of plots. Thereafter,
the SDO on the report of Chief Municipal Officer and Patwari initiated
proceedings and vide order dated 10.12.2010 had declared all the transfers
null in view of section 339-E (1) of the Madhya Pradesh Municipalities Act
1961 and has directed to take possession of the land after recording the land
in the name of SDO Shivpuri and also to lodge FIR against the petitioner.
Petitioner-Kedarnath Sharma challenged the order dated 10.12.2010 in
appeal before Collector which was dismissed on 10.10.2011. Hence,
aggrieved by both the orders dated 10.12.2010 and 10.10.2011, present
petition has been filed.
3. It is submitted by learned counsel for the petitioner that the
impugned orders dated 10.12.2010 and 10.10.2011 are illegal and contrary
to law, hence, deserve to be quashed.
4. It is further submitted that the impugned order has been passed
under section 339 of the Municipalities Act but procedure provided under
Section 339-E of the Municipalities Act has not been followed.
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5. It is further submitted that in view of the provision as provided
under Section 339-E of Municipalities Act, the land which is not under
colonization the authority cannot take over the management of such land. It
is not the case of respondents that petitioner has also made some
agreement/transfer with respect to remaining area of the land, without which
the rule cannot be made applicable to the land owned and possessed by the
petitioner.
6. It is submitted that only after getting diverted the 2 bigha of land,
the petitioner transferred said 2 bighas to different persons to fulfill his need
for which the petitioner cannot be punished by taking over management of
other entire land owned and possessed by the petitioner which is under
cultivation of him.
7. It is further submitted that the respondents have not followed the
procedure prescribed contained in section 339-E of the Municipalities Act.
As such the impugned orders are not sustainable. Even notices (three times)
had not been published in the newspaper.
8. Learned counsel for the petitioner has raised a preliminary argument
that the order passed by the S.D.O and Competent Authority, Shivpuri dated
10.12.2010 was without jurisdiction, as he has no powers under the
provisions of the Act of 1961 for initiating prosecution and the said powers
only lay with the Chief Municipal Officer (''CMO'') and in absence of any
express sanction, the S.D.O and Competent Authority could not usurp the
jurisdiction available to the CMO, therefore, the impugned order is
unsustainable, which deserves to be quashed.
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9. 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
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 Sub-Divisional Officer for
registration of an F.I.R./criminal case through Chief Municipal Officer is
impermissible.
10. To bolster his submissions, he had relied upon the decision of the 6
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, is by way of filing a complaint before the
concerned Magistrate, no F.I.R./ criminal case can be directed to be
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registered.
11. On the basis of the aforesaid arguments, it was submitted that
grave illegality has been committed by the S.D.O. 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
12. Per contra, learned counsel for the respondent No.3 submits that
the petitioner had been found to be engaged in illegal development of plots
which was situated within Municipal Limits of Shivpuri, on the land of
village Shivpuri Tukda No.1 bearing survey No.262, 264 Min 1 and 272 Min
total area 1.415 hectare in violation of Section 339-A and 339-B of the M.P.
Municipality Act, 1961 (amended by the Act of 1977) and according to
Section 339-E (1) of the M.P. Municipality Act, all transactions of disputed
land was declared null and the order dated 10.12.2010 was passed by the
SDO to take over management of land in possession and to lodge FIR
against the petitioner for illegal colonization.
13. It is further submitted that it is not disputed that respondent No.2
by order dated 28.06.2011 had granted permission for diversion of 2 bigha
land of survey No.262 and 272 for residential purposes but since the
petitioner had transferred the land in favour of beneficiaries without
providing essential amenities to inhabitants and without fulfilling the
conditions as mentioned in the order dated 28.06.2001 and obtaining
colonization licence and getting layout plan approved from Town and
Country Planning, thus, a report was submitted by the Patwari, respondent
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No.2/SDO by letter dated 09.09.2009 had called for a report from Chief
Municipal Officer as to whether essential amenities had been made available
by the petitioners on agricultural land to the inhabitants which had been sold
as a plot. In response to the said letter, the Chief Municipal Officer, vide
letter dated 25.07.2009 had informed that illegal plotting had been done by
the petitioner, therefore, the said action has been taken against the petitioner.
The impugned order dated 10.12.2010 had been passed after providing due
opportunity of hearing to the petitioner. Hence, no illegality has been
committed by the learned SDO in passing the order dated 10.12.2010 and by
the learned Collector in upholding the said order dated 10.12.2010 while
rejecting the appeal filed by the petitioner vide order dated 10.10.2011.
14. Heard learned counsel for the parties and perused the record.
15. That provisions of section 339-E of the Municipalities Act are
reproduced as under :-
339-E CompetentAuthority to taike over the management of the
land of the illegal colonization :- Notwithstanding anything
contained in Madhya Pradesh Land Revenue Code 1959 (No.20 of
1959), the transfer or agreement to transfer of plots made by a
colonizer ln an area of illegal diversion or illegal colonization
shall be void.
(2) That competent authority, as may be appointed by the State
Government shall cause to be published a public notice three
times in the local newspapers for the purpose of taking over the
management of land of illegal colonization. After publication of
such notice, if any objection received from the colonizer or the
plot holder, it shall be considered by the competent authority and
if no objection is received then the competent authority shall take
over the management of such land and cause the area to be
planned and developed in such manner as may be prescribed and
allot the plots in such manner and subject to such conditions as
may be prescribed.
(3) The allottee shall on fulfillment of the conditions be deemed to
be a valid transferee of the plot and the power of the competent
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authority as manager of the plot shall come to an end.
(4) Once the competent authority takes up the management of any
colony it shall be deemed that the diversion of land of such colony
has been done and its use in accordance with the master plan of
the city.
16. Section 339-E(2) of the M.P. Municipalities Act, 1961 speaks
that the competent authority appointed by the State Government shall cause
to be published a public notice three times in the local newspapers for the
purpose of taking over the management of land of illegal colonization. After
publication of such notice, if any objection is received from the colonizer or
the plot holder, it shall be considered by the competent authority and if no
objection is received then the competent authority shall take over the
management of such land and cause the area to be planned and developed in
such manner as may be prescribed and allot the plots in such manner and
subject to such conditions as may be prescribed.
17. From perusal of the record especially the orders dated 10.12.2010
and 10.10.2011 and the return filed by the respondent No.3 Municipal
Council Shivipuri, it appears that public notice (three times) had not been
issued in the local newspaper for the purpose of taking over the management
of land of illegal colonization. Without complying with the mandatory
provision as prescribed under Section 339-E(2) of M.P. Municipalities Act,
1961, the action has been taken against the petitioner by the S.D.O. declaring
the transfers of the disputed land as null and void and taking over the
management of the land in question.
18. Initially, the action had been initiated on the basis of report
submitted by the Patwari, dated 25.05.2009 and at that time, Madhya Pradesh
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Nagarpalika (Colony Development) Rules, 2021 though were not notified
but vide its Notification dated 13.01.2022 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.
19. Part-3 of the said Rules provides for provisions related to
'Unauthorised Colonies' contained in Rules 22 to 25. As per Rule 22, 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 area 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 unauthorised 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
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Act.
20. 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.
21. 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
Part1, 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 relation to such Municipal area
which comes within the limit of any Municipal Council or Nagar
Parishad, the Collector."
22. 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.
23. Further, Rule 26, 27 and 28 of the Rules of 2021 which falls in
Part- 10 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
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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 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 11 action is inconsistent with provisions of
these rules, shall be deemed to have been done or taken under the
corresponding provisions of these rules."
23. 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.
24. Now, the entire gamut lay with the provisions of Section 313 of
the Act of 1961 read with Section 22 of the Rules of 2021. As per Section
313, the Municipal Council, Chief Municipal Officer or any other Officer
authorized by the Council may direct any prosecution under this Act or under
any rule or bye-law thereunder with the stipulations as provided in the
Proviso. Further, Sub-Section (2) of Section 313 of the Act of 1961 provides
that any prosecution under this Act or under any rule or bye-law thereunder
may, save as therein otherwise provided, be instituted before any Magistrate,
which goes to show that the Municipalities Act does not provide any forum
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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 by way of filing a
complaint.
25. This proposition has been considered by the Coordinate Bench of
this Court in the matter of Municipal Council vs. Radha Bai (supra).
26. If the dictionary definition of the ''prosecution'' is seen as provided
in Merriam-Webster Dictionary, the prosecution means 'the act or process of
prosecuting, specifically the institution and continuance of a criminal case
involving the process of pursuing formal charges against an offender to final
judgment'.
27. From the aforesaid discussion, it could be said that if any
prosecution is to be launched against any person for any offence under the
Municipalities Act or under any rule or bye-law thereunder then it has to be
by way of filing private complaint before the concerned Magistrate by either
Municipal Council, Chief Municipal Officer or any other Officer authorized
by the Council.
28. So far as action as proposed under Sub-rule (4) of Rule 22 for
filing a complaint against the developer and landowner before the concerned
Magistrate for taking necessary penal action under the relevant provisions of
the Act is concerned, firstly, it could be at the stage when even after giving
notice to the developer or the colonizer who had developed illegal colony,
the development/construction is not removed in the unauthorized colony
within the period specified in the show-cause notice and secondly, in the
light of the judgment of the Hon'ble Supreme Court in the matter
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Bharathidasan University & Another vs. All India Council For Technical
Education & Others reported in AIR 2001 SC 2861 , the said provision is
required to be concluded as it patently lack sanctity or the authority which is
shown.
29. For reference, relevant para of the aforesaid judgment is quoted
hereinbelow:
"The fact that the regulations may have the force of law or when
made have to be laid down before the legislature concerned do not
confer any more sanctity or immunity as though they are statutory
provisions themselves. Consequently, when the power to make
regulations are confined to certain limits and made to flow in a
well defined 13 canal within stipulated banks, those actually made
or shown and found to be not made within its confines but outside
them, the courts are bound to ignore them when the question of
their enforcement arise and the mere fact that there was no
specific relief sought for to strike down or declare them ultra
vires, particularly when the party in sufferance is a respondent to
the lis or proceedings cannot confer any further sanctity or
authority and validity which it is shown and found to obviously
and patently lack. It would, therefore, be a myth to state that
regulations made under Section 23 of the Act have Constitutional
and legal status, even unmindful of the fact that anyone or more of
them are found to be not consistent with specific provisions of the
Act itself. Thus, the regulations in question, which the AICTE
could not have made so as to bind universities/UGC within the
confines of the powers conferred upon it, cannot be enforced
against or bind an University in the matter of any necessity to seek
prior approval to commence a new department or course and
programme in technical education in any university or any of its
departments and constituent institutions."
30. The Hon'ble Supreme Court in the aforesaid matter was dealing
with the the stand of the appellant-University that the appellant-University
will not fall under the definition of Technical Institution as defined under
Section 2(h) of the AICTE Act and consequently, the regulations made for
seeking prior approval of the AICTE even by the Universities to commence
a course or programme in technical education or a new department for the
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purpose, were in excess of the regulation-making powers of the AICTE and
consequently, are null and void and cannot be enforced against the appellant-
University to the extent it obligates even Universities to seek and secure such
prior approval from the AICTE.
31. In light of the aforesaid, this Court finds that though the Collector
was competent to issue show-cause notice and thereafter, call for the
response and after considering the said response, was of the opinion that the
petitioner was involved in unauthorized colonization, he was required to
issue a notice of 15 days' time for removal of development/construction and
thereafter, to send intimation to the concerned Sub-Registrar to stop
registration of sale/agreement to sale in the said colony and S.D.O. but the
Competent Authority Shivpuri was not authorized to directly ask the Chief
Municipal Officer to register a criminal case against the petitioner. Thus,
when the authority at whose directions, F.I.R. was registered was not
competent to issue such directions and secondly, registration of F.I.R. itself
was not maintainable under the provisions of Act of 1961 and proper
recourse would have been for filing of a complaint before the concerned
Magistrate, the order impugned herein is found to be per se illegal and
perverse. Accordingly, the same is hereby quashed. In consequence thereof,
the F.I.R. registered against the petitioner is also hereby quashed.
32. Since the mandatory provision as prescribed under Section 339-
E(2) of M.P. Municipalities Act, the Authorities have not followed 1961,
therefore, the action taken against the petitioner by the learned S.D.O and
Comptent Authority by which the transfer of land has been declared as null
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and void under Section 339-E(1) and taking over the management of the land
in question by order dated 10.12.2010 is also bad in law.
33. Accordingly, the order dated 10.12.2010 passed by the SDO and
Competent Authority, Shivpuri and the order dated 10.10.2011 passed by the
Collector Shivpuri are hereby set-aside.
34. With the aforesaid, this petition stands allowed and disposed of.
(MILIND RAMESH PHADKE)
JUDGE
ojha
