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1980 Supreme(MP) 39
High Court Of Madhya Pradesh
G. G. SOHANI, R. K. VARMA
KHURSHIDBAI - Appellant
Versus
STATE OF M.P. - Respondents
MISC. PETN. 974 Of 1985
Decided On : 02/12/1980
The provisions of the Madhya Pradesh Vinirdist Bhrast Acharan Niwaran Adhiniyam, 1982 cannot be applied retrospectively to transactions relating to land comprised in the area of illegal diversion or illegal colonization where construction had not commenced on 8th September, 1982, unless it is shown that the transactions pertained to land forming part of an area of illegal diversion or colonisation.
Headnote:
ILLEGAL COLONIZATION - MADHYA PRADESH VINIRDIST BHRASHT ACHARAN NIRWARAN ADHINIYAM, 1982 - SECTION 24(A), 31(1)(B), 31(2) - COLONIZATION WITHOUT PRIOR PERMISSION FROM AUTHORITIES - RETROSPECTIVE EFFECT - APPLICABILITY TO TRANSACTIONS RELATING TO LAND COMPRISED IN AREA OF ILLEGAL DIVERSION OR COLONIZATION - CONSTRUCTION NOT COMMENCED ON 8TH SEPTEMBER, 1982.
Fact of the Case:
Petitioners challenged an order passed by the Collector under Section 31(1)(b) of the Madhya Pradesh Vinirdist Bhrast Acharan Niwaran Adhiniyam, 1982 (the Act), taking over the management of land on the ground that the proposed sale of plots in favor of petitioners was void under Section 31(1) of the Act. The petitioners contended that they had obtained prior permission from the Neemuch Municipal Council under Section 182 of the M. P. Municipalities Act, 1961, for developing the land into a colony in 1969, before the Urban Land (Ceiling and Regulation) Act, 1976 and the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 came into force.
Finding of the Court:
The court held that the Collector had no jurisdiction to take action under Section 31(1)(b) of the Act since the land in question was not an area of illegal diversion or illegal colonization. The court observed that the division of land into plots and the sale of all these plots need not be simultaneous and that if after division of land into plots after obtaining permission for such division from the authorities, certain plots were being sold by the petitioner, she could not be held guilty of illegal colonization.
Issues: 1. Whether the Collector had jurisdiction to take action under Section 31(1)(b) of the Act when the land in question was not an area of illegal diversion or illegal colonization? 2. Whether the provisions of the Act could be applied retrospectively to transactions relating to land comprised in the area of illegal diversion or illegal colonization where construction had not commenced on 8th September, 1982?
Ratio Decidendi: 1. The court held that the Collector had no jurisdiction to take action under Section 31(1)(b) of the Act since the land in question was not an area of illegal diversion or illegal colonization. The court observed that the division of land into plots and the sale of all these plots need not be simultaneous and that if after division of land into plots after obtaining permission for such division from the authorities, certain plots were being sold by the petitioner, she could not be held guilty of illegal colonization. 2. The court held that the provisions of the Act could be applied retrospectively to transactions relating to land comprised in the area of illegal diversion or illegal colonization where construction had not commenced on 8th September, 1982, but only if it was shown that the transactions pertained to land forming part of an area of illegal diversion or colonisation.
Final Decision: The court allowed the petition, quashed the order passed by the Collector, and restrained the respondents from taking any action in pursuance of that order.
( 1 ) THIS is a petition under Art. 226 of the Constitution of India.
( 2 ) THE material facts giving rise to this petition, briefly, are as follows the open land appurtenant to Bungalow No. 58 situated in Neemuch Cantonment was divided into plots by petitioner No. 1, the owner thereof, after obtaining sanction in that behalf from the Neemuch Municipal Council in the year 1969. Thereafter, petitioner No. 1 sold some plots and entered into agreements with petitioners Nos. 2 to 15 for sale of the other plots but before sale deeds could be executed and registered, the Madhya Pradesh Vinirdist Bhrast Acharan Niwaran Adhiniyam, 1982 (hereinafter referred to as "the Act") came into force. On 24-2-85, the Collector District Mandsaur, published a notice in a daily newspaper stating that as petitioner No. 1 had violated the provisions of S. 24 (a) of the Act, the proposed sale of plots in favour of petitioners Nos. 2 to 15 was void under S. 31 (1) of the Act. The petitioners were called upon to show cause why the management of the land in question be not taken up by the Collector. Petitioner No. 1 filed reply showing cause but the Collector, by his order dated 2-9-85, took over the management of the land under the provisions of S. 31 (1) (b) of the Act by holding that sales in favour of petitioners Nos. 2 to 15 were void under S. 31 (1) of the Ad. Aggrieved by that order, the petitioners have filed this petition.
( 3 ) SHRI Chaphekar, the learned counsel for the petitioners, contended that before passing an order under S. 31 (1) of the Act and proceeding to take over the management of the land, the Collector should have found that in respect of the land in question, petitioner No. 1 was guilty of illegal diversion or illegal colonisation; that no such finding could be given because at the time when the land was colonised by petitioner No. 1, all that was necessary was to obtain sanction of the Neemuch Municipal Council and that such sanction having been obtained, it could not be held that petitioner No. 1 was guilty of illegal colonisation. The learned Counsel, therefore, contended that the impugned order passed by the Collector deserved to be quashed. In reply, Shri Joshi, the learned Government Advocate, contended that petitioner No. 1 did not produce any material before the Collector to prove that she was not guilty of illegal colonisation; that petitioner No. 1 had herself applied for a licence of colonisation from the Collector, which was refused and that the Collector, therefore, was justified in passing the impugned order.
( 4 ) TO appreciate the contentions advanced on behalf of the parties, it would be useful to refer to the relevant provisions of the Act, S. 24 (a) of the Act defines a colonizer and illegal colonizer as follows" (A) 'a colonizer' means a person, who, in a local area, after taking no objection certificate or prior permission in writing, as the case may be- (i) under S. 172 of the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959), (ii) under the Urban Land (Ceiling and Regulation) Act, 1976 (No. 33 of 1976), (iii) under the Madhya Pradesh Municipalities Act, 1961 (No. 37 of 1961) (iv) under the Madhya a Pradesh Municipal Corporation Act, 1956 (No. 23 of 1956), (v) under the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (No. 23 of 1973 ). from the respective authority competent to grant the same or from a Nazul authority in case the land is situated in a Nazul area, divides the land into plots, with or without developing the area, transfers or agrees to transfer them gradually or all at a time, to persons desirous of setting down on those plots by constructing residential or non-residential or composite accommodation and the expression "establishment of colony", "colonization", "illegal colonizer" and "illegal colonization" shall be construed accordingly provided that no person shall undertake the establishment of colony unless he, on payment of such fee, as may be prescribed for regist
