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2017 Supreme(MP) 567
IN THE HIGH COURT OF MADHYA PRADESH
Vivek Agarwal, J.
Sunil Mudgal v. State of M.P. and others
Writ Petition No.7945 of 2016 with Writ Petitions No.7928/2016, 7944/2016, 8359/2016, 8382/2016, 8799/2016, 85/2017, 285/2017, 335/2017, 338/2017, 377/2017, 389/2017, 407/2017, 427/2017,
436/2017, 437/2017, 460/2017, 925/2017, 3192/2017, 3240/2017
and 3401/2017 (Gwalior); Decided on 17.7.2017.
N.K. Gupta with Prashant Sharma, R.S. Bansal, Himanshu Sharma,
Raja Sharma and Sanjay Sharma for petitioners;
Harish Dixit, Government Advocate for respondents/State;
Prakash Braru for respondent No.5 in Writ Petition No.335/2017.
Headnote:¼1½ Hkw&jktLo lafgrk] 1959 ¼eŒizŒ½ & /kkjk 172¼1½] ¼4½] ¼5½ rFkk ¼6½ & micaèk ds v/khu vf/kdkfjrk & Hkwfe dkyksfu;ksa ds fodkl ds fy, iz;qDr & mi[kaM vf/kdkjh dk 'kkfLr vf/kjksfir djus laca/kh vkns'k & lwpuk i= esa eŒizŒ uxjikfydk vf/kfu;e] 1961 dh /kkjk 339 rFkk 339&x dk mYys[k gksus ek= ls & vkns'k vf/kdkfjrk jfgr ugha & ,sls vkns'k ds fo#) mipkj vihy gS vkSj u fd fjV ;kfpdk & vihy izLrqr djus dh Lora=rk iznku dh xbZA ¼iSjk 2] 4] 8 ,oa 10½
¼2½ Hkkjr dk lafo/kku & vuqPNsn 226 rFkk 227 & eŒizŒ Hkw&jktLo lafgrk] 1959 & /kkjk 172 & mica/k ds v/khu 'kkfLr vf/kjksi.k laca/kh vkns'k & vihy dk vuqdYih mipkj miyH; & fjV ;kfpdk pykus ;ksX; ugha & vihy izLrqr djus dh Lora=rk iznku dh xbZA ¼iSjk 2] 4] 8 ,oa 10½
¼3½ uxjikfydk vf/kfu;e] 1961 ¼eŒizŒ½ & /kkjk 339 rFkk 339&x & eŒizŒ
Hkw&jktLo lafgrk] 1959 & /kkjk 172 & 1961 ds vf/kfu;e vkSj 1959 dh lafgrk ds ;s nks mica/k & iwjd gSa vkSj u fd ijLij vuqiwjdA ¼iSjk 8½
(1) Land Revenue Code, 1959 (M.P.) -- S.172(1), (4), (5) and (6) -- jurisdiction under -- land used for development of colonies -- order of SDO regarding imposition of penalty -- mere mentioning of sections 339 and 339-C of M.P. Municipalities Act, 1961 in notice -- order not without jurisdiction -- remedy against such order is appeal and not writ petition -- liberty granted for filing appeal. [Paras 2, 4, 8 & 10
(2) Constitution of India -- Arts.226 and 227 -- M.P. Land Revenue Code, 1959 -- S.172 -- order regarding imposition of penalty under -- alternative remedy of appeal available -- writ petition not maintainable -- liberty granted for filing appeal. [Paras 2, 4, 8 & 10
(3) Municipalities Act, 1961 (M.P.) -- Ss.339 and 339-C -- M.P. Land Revenue Code, 1959 -- S.172 -- these two provisions of Act of 1961 and Code of 1959 -- are complementary and not supplementary to each other. [Para 8
1. As identical issue is involved in all these writ petitions, therefore, they are heard together and decided by this common order. For the purpose of disposal of these petitions, the facts have been taken from Writ Petition No.7945/2016.
2. Petitioners have filed this bunch of writ petitions being aggrieved by the order passed by the SDO Dabra, whereby the SDO Dabra, has held the petitioners to be guilty of carrying out illegal development of colonies and, therefore, violating the provisions of the M.P. Land Revenue Code, 1959 (hereinafter shall be referred to as the Code) and, therefore, directed for recovery of penalty and also directed the petitioners to comply with the order within a period of seven days, failing which further direction was issued that the order may be passed in compliance of the provisions of section 172(5) of the Code to bring the land back to its original shape.
3. The basic contention of the learned counsel for the petitioners is that a show cause notice was issued on 17.6.2016 pointing out that without getting proper diversion, plots are being developed in the shape of a colony. It is also mentioned that the petitioner was not registered under the provisions of Colonies Act and as per the report of the Revenue Inspector, it was revealed to the SDO that not only the diversion was not carried out but also no lay out was approved by the Town and Country Planning Department and, therefore, the petitioners were guilty of illegal colonization.
4. It is petitioners' contention that in this very notice there is mention of violation of the provisions contained in section 339 of the Madhya Pradesh Municipalities Adhiniyam, 1961 (hereinafter shall be referred to as the Adhiniyam of 1961) and since the SDO is not competent authority to take action for violation of any of the provisions contained in section 339 of the Adhiniyam of 1961, the impugned order suffers from infirmity and is liable to be quashed. It is also submitted that the show cause notice only talked of registration of criminal case under the provisions of section 339-C of the Adhiniyam of 1961 and, therefore, order under section 172 of the Code has been passed after realizing the shortcomings in the show cause notice and to cover the lapses of the SDO.
5. It is also the contention of the learned counsel for the petitioners that Dabra has been included within the Municipality area through a recent notification dated 23.7.2014, whereby the villages in question have been included within the limits of Municipal Council Dabra, District Gwalior and, therefore, there was no need for any permission to seek diversion under the provisions of section 172 of the Code and no action could have been taken by the respondent SDO. It is further contended that the notice is defective and the land is still used for agricultural purpose but it has wrongly been construed being used for other purpose than agriculture. Therefore, the order is wholly unjustified, without jurisdiction and in violation of principle of natural justice, therefore, it deserves to be quashed.
6. On the other hand, learned counsel for the respondents submits that the order passed by the SDO under section 172 of the Code is very much within his authority and there is no infringement of any of the rights of the petitioner inasmuch as they were given opportunity of hearing and the onus was on the petitioners to submit the documents to the effect that they had not diverted the land for any other purpose than the agriculture for which it was notified. It is also submitted that in fact, there exists an alternative statutory remedy of filing an appeal against the impugned order to the Collector under the provisions of section 44 of the Code and, therefore, the petitions are premature and the petitioners are required to be relegated to avail the alternative remedy by dismissing the petitions.
7. Section 339-A of the Adhiniyam of 1961 deals with the Registration of Colonizer or Builder, whereas sect
