[Cites 13, Cited by 0]
Madhya Pradesh High Court
Parvez Khan vs The State Of Madhya Pradesh on 16 April, 2026
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2026:MPHC-GWL:12312
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 16th OF APRIL, 2026
WRIT PETITION No. 2483 of 2023
PARVEZ KHAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Nirmal Sharma - Advocate for the petitioner.
Shri Manish Saxena - Govt. Advocate for the State.
ORDER
The present petition, under Article 226 of the Constitution of
India, has been filed by the petitioner seeking following reliefs:-
"(i) That the impugned order Annexure-P/1 dated
11.01.2023 may kindly be quashed.
(ii) That the impugned FIR at crime no 42/2023 at
police station Bairad District Shivpuri Annexure-P/2
may kindly be quashed.
(iii) To grant any relief deemed just and proper in
the facts and circumstances of the case."
At the outset, learned counsel for the petitioner submits that the
controversy involved in the present case is no longer res integra and
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stands squarely covered by the judgment rendered by this Court in
Shivcharan vs. State of M.P. & Others decided on 20.12.2024 in Writ
Petition No. 29427 of 2022. It is contended that the facts, circumstances
and legal issues involved in the present case are identical to those
adjudicated in the aforesaid case, wherein this Court has categorically
held that although the Collector is competent to initiate proceedings
under the provisions of the Madhya Pradesh Municipalities Act, 1961
and the Rules of 2021 by issuing show-cause notice and taking
appropriate administrative action, he has no authority to direct
registration of an FIR. It has further been held that for offences under the
said Act, the proper course is to institute prosecution by way of filing a
complaint before the competent Magistrate in terms of Section 313 of the
Act of 1961 and not by lodging an FIR. The relevant extract of the
aforesaid order reads as under:-
"18. The first contention which has been
raised by the petitioner is that the Additional
Collector, who had passed the impugned order
05.01.2023, had no authority under the provisions
of Act of 1961 to pass such order, therefore, the
impugned order is liable to be set aside.
19. Initially, the action has been initiated on
the basis of report submitted by the SDO
(Revenue), dated 14.07.2021 and at that time,
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Madhya Pradesh 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.
20. As per Part-3 of the said Rules which
provides for provisions related to 'Unauthorised
Colonies' contains 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
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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 Act.
21. 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.
22. The 'Competent Authority' for
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exercising the powers under Rule 22 of the Rules of
2021 has been defined under Section 2(c) of Rules
of Part-1, General, which reads as under:
2(c) "Competent Authority" means in
relation to such Municipal area which comes
within the limit of any Municipal Corporation,
Municipal Commissioner and in relation to
such Municipal area which comes within the
limit of any Municipal Council or Nagar
Parishad, the Collector."
23. 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.
24. Further, Rule 26, 27 and 28 of the Rules
of 2021 which falls in Part-4 and deals with
''Offences and Punishment, interpretation and
repeal'' are also profitable to quote which is as
under:
26. Offences and Punishment.-
(1) Any person who undertakes the
development of a colony without obtaining
permission, under the provisions of this Act
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and rules made thereunder, commits the
offence of development of Unauthorized
Colony.
(2) Any colonizer who transfers any land by
sale or otherwise, or undertakes construction
work, other than that stipulated in the
permission, on the land earmarked for
development of internal works under rule 14
and civic infrastructure like roads, open
spaces, water supply, electricity, sewerage and
entertainment areas, he commits the offence of
violation of permission.
(3) The persons who commits offence under
sub-rule (1) and (2) shall be liable for
punishment under the provisions of section
292-C of the Madhya Pradesh Municipal
Corporation Act, 1956 or 339-C of the
Madhya Pradesh Municipalities Act, 1961.
27. Interpretation. If any question arises on
interpretation of these rules, the same shall be
referred to the State Government. The decision of
the State Government shall be final.
28. Repeal. As from the date of
commencement of these rules, all rules and bye-
laws corresponding to these rules, if in force
immediately shall stand repealed:
Provided that anything done or any action
taken under the rules and bye-laws so repealed,
shall, unless such thing or action is inconsistent
with provisions of these rules, shall be deemed to
have been done or taken under the corresponding
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provisions of these rules."
25. As per Sub-Rule (3) of Rule 26, the
person who commits offence under Sub-Rule (1)
and (2) shall be liable for punishment under the
provisions of Section 292-C of the Madhya Pradesh
Municipal Corporation Act, 1956 or 339-C of the
Madhya Pradesh Municipalities Act, 1961. Thus, so
far as issuance of any show-cause notice, calling for
reply and thereafter, passing any order, if the reply
is found to be unsatisfactory lay with the Collector.
To this extent, the order impugned cannot be said to
be bad in law.
26. 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,
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save as therein otherwise provided, be instituted
before any Magistrate, which goes to show 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 by way of filing a
complaint.
27. This proposition has been considered
by the Coordinate Bench of this Court in the matter
of Municipal Council vs. Radha Bai (supra).
28. If from 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 suit
involving the process of pursuing formal charges
against an offender to final judgment'.
29. 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
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Municipal Council, Chief Municipal Officer or any
other Officer authorized by the Council.
30. So far as action as proposed under Sub-
rule (4) of Rule 22 for filing a complaint against the
developer and landowner in 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 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.
31. 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
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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 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.
32. 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
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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 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.
33. In light of the aforesaid, this Court finds
that though the Additional 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 he was not authorized to
directly ask the Chief Municipal Officer to register
a criminal case against the petitioner, which in the
case has already been registered. Thus, when the
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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."
Learned Government Advocate appearing for the State has not
been able to dispute the applicability of the aforesaid judgment to the
facts of the present case.
Having heard learned counsel for the parties and on perusal of the
record, this Court finds that the issue involved in the present petition is
identical to the one already decided by this Court in the case of
Shivcharan (supra). In the said case, this Court has clearly held that the
direction issued by the Additional Collector for registration of FIR is
without jurisdiction and contrary to the statutory scheme governing the
field, and consequently, both the order and the FIR were quashed.
In view of the aforesaid and in the absence of any distinguishing
feature pointed out by the State, this petition deserves to be and is
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accordingly allowed in terms of the judgment passed in Shivcharan vs.
State of M.P. & Others (supra).
Consequently, the impugned order dated 11.01.2023 is hereby
quashed. As a necessary corollary, the FIR bearing Crime No. 42/2023
registered at Police Station Bairad, District Shivpuri and all
consequential proceedings arising therefrom also stand quashed.
The writ petition stands disposed of accordingly.
(MILIND RAMESH PHADKE)
JUDGE
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