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IN THE HIGH COURT OF MADHYA PRADESH
Ms. Vandana Kasrekar, J.
Shailendra Chowdhary v. Commissioner, Jabalpur Division, Jabalpur and another
Writ Petition No. 1083 of 2015 (Jabalpur); Decided on 15.12.2017.
mDr vkosnu vkns'k fnukad 6-5-2014 }kjk bl vk/kkj ij [kkfjt fd;k x;k fd ftl Hkwfe ds fy, vkosnu fd;k x;k gS og HksM+k?kkV fodkl ¼izk:i½ ;kstuk 2021 esa Ñf"k mi;ksx ds fy, fpfàr gSA ¼iSjk 2
vfHkfu/kkZfjr % bl izdj.k esa] izLrkfor fodkl ;kstuk esa] Hkwfe Ñf”k mi;ksx ds fy, fpfàr gS vkSj blfy,] 2012 ds fu;eksa ds fu;e 14@5 dks /;ku esa j[krs gq, izR;FkhZx.k us ;kph }kjk izLrqr vkosnu [kkfjt fd;k gSA rFkkfi] jkT; ljdkj us vf/klwpuk fnukad 14-1-2013 tkjh dh gS] ftlesa dgk x;k gS fd Hkwfe fodkl fu;e] 2012 ds 145 uxjksa dks ykxw gSa] ftuesa tcyiqj laHkkx Hkh lfEefyr fd;k x;k gS vkSj mlesa HksM+k?kkV dk uke lfEefyr ugha gS ftlls nf'kZr gksrk gS fd 2012 ds fu;e HksM+k?kkV fodkl ;kstuk dks ykxw ugha gksrs vkSj blfy,] izR;FkhZx.k us ;kph }kjk izLrqr vkosnu 2012 ds fu;eksa dks /;ku esa j[krs gq, [kkfjt djus esa =qfV dh gSA ¼iSjk 9
tgk¡ rd Jherh vk'kkckbZ iVsy }kjk izLrqr vkosnu dk laca/k gS] og mlus HkwfeLokeh ds :i esa viuh O;fDrxr gSfl;r ls Hkwfe fodkl ds fy, izLrqr fd;k x;k gS vkSj ;kph us jftLVªhÑr dkyksukbtj ds :i esa vkosnu fd;k Fkk vkSj blfy,] ;kph }kjk izLrqr vkosnu pykus ;ksX; gSA ¼iSjk 11
¼2½ Hkkjr dk lafo/kku & vuq-226 rFkk 227 & e-iz- uxj rFkk xzke fuos'k vfèkfu;e] 1973 & /kkjk 16 & dkyksukbtj ds lkFk&lkFk HkwfeLokeh }kjk Hkwfe dks Ñf"k mi;ksx ls vkoklh; esa ifjofrZr djkus ds fy, vkosnu & vf/kdkj ds vk/kkj ij [kkfjt ugha fd, x, & ;kph }kjk izLrqr ;kfpdk ds lkFk&lkFk Jherh vk'kkckbZ iVsy@ HkwfeLokeh }kjk izLrqr ;kfpdk ds vf/kdkj ds laca/k esa izR;FkhZx.k dh vkifÙk;k¡ & ,slh vkifÙk;k¡ fupys izkf/kdkfj;ksa ds le{k ugha mBkbZ xbZa & izR;FkhZx.k ,sls vk/kkj ugha mBk ldrs tks mUgksaus vkosnu [kkfjt djrs le; vius vkns'kksa esa ugha fy,A ¼2003½5 ,l lh lh 106 rFkk ¼2004½11 ,l lh lh 417 vuqlfjrA ¼iSjk 10 ,oa 11
(1) Nagar Tatha Gram Nivesh Adhiniyam, 1973 (M.P.) -- Ss.16(1), 16(2) and 29 -- M.P. Bhumi Vikas Rules, 2012 -- R.14(5) -- application by colonizer for changing use of land from agricultural to residential under section 16 and not under section 29 -- rejected on ground that land is earmarked for agricultural use in Bhedaghat Development (Draft) Plan 2021 -- Bhedaghat is not included in specified area under Rules of 2012 -- provisions of rule 14(5) not applicable -- application cannot be rejected on this ground -- application is maintainable -- petition allowed.
The said application was rejected vide order dated 6.5.2014 on the ground that the land for which application is moved is earmarked for agricultural use in Bhedaghat Development (Draft) Plan, 2021.
[Para 2
Held : In the present case, in the proposed development plan, the land is earmarked for agricultural use and, therefore, in the light of the rule 14/5 of the Rules, 2012, the respondents have rejected the application submitted by the petitioner. However, the State Government has issued a notification dated 14.1.2013, in which it has been stated that the Bhum Vikas Rules, 2012 are applicable to 145 cities, in which the Jabalpur Division has also been included and it does not includes the name of Bhedaghat, which shows that the Rules, 2012 are not applicable to the Bhedaghat Development Plan and therefore, the respondents have erred in rejecting the application submitted by the
petitioner in light of Bhumi Vikas Rules, 2012. [Para 9
So far as application submitted by Smt. Ashabai Patel is concerned, the same has been filed by her in her personal capacity for development of the land as a land owner and the petitioner has submitted an application being a registered colonizer and, therefore, the application
submitted by the petitioner is maintainable. [Para 11
(2) Constitution of India -- Arts.226 and 227 -- M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 -- S.16 -- application for changing use of land from agricultural to residential by colonizer as well as Bhumiswami -- not rejected on ground of locus -- objections of respondents regarding locus of petitioner to file petition as well as petition filed by Smt. Ashabai Patel/Bhumiswami -- such objections raised before lower authorities -- respondents cannot raise such grounds which they have not taken in their orders while rejecting application. (2003)5 SCC 106 and (2004)11 SCC 417 followed. [Paras 10 & 11
1. The petitioner has filed the present petition challenging the orders dated 6.5.2014, 16.9.2014 and 13.1.2015 passed by the respondents No.2 and 1.
2. The petitioner has entered into development agreement with one Asha Bai in respect of the land bearing Khasra Nos.337/1, 337/2 and 337/3 having an area of 6.69 hectares situated at village Ghunsor, Tahsil and District Jabalpur. The said land was earmarked for agricultural purposes in the development plan. The petitioner, therefore, submitted an application under section 16 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (hereinafter in short referred to as “the Adhiniyam, 1973”) for changing the land use of the said land from agricultural to residential. The said application has been filed under section 16 of the Adhiniyam, 1973 and not under section 29 of the Adhiniyam, 1973. The petitioner has deposited requisite fees of Rs.35,000/- along with challan and all relevant documents as per Clause 7.17 of Bhedaghat Development (Draft) Plan, 2021. The said application was rejected vide order dated 6.5.2014 on the ground that the land for which application is moved is earmarked for agricultural use in Bhedaghat Development (Draft) Plan, 2021. The petitioner has stated that while passing this order, no opportunity of hearing was given to the petitioner and the orders were passed without assigning any reasons. It has further been stated that there is no impediment under the Act to deny such permission. section 16(2) of the Adhiniyam, 1973 specifically provides that the change in use is permissible by the order of Director. Against the said order, the petitioner has preferred an appeal before the respondent No. 1. The respondent No. 1 vide order dated 16.9.2014 has rejected the said appeal. The appeal was dismissed on the ground that with regard to the land in question, the provisions of Bhumi Vikas Rules, 2012 (hereinafter in short referred to as “the Rules, 2012”) were applicable and therefore, no permission for change of use could have been given. Against the said order the petitioner has preferred a review petition before the respondent No. 1. The same was also dismissed vide order dated 13.1.2015 on the ground that there is no provision of review under the Adhiniyam, 1973. Being aggrieved by the aforesaid order, the petitioner has filed the present petition.
3. Learned counsel for the petitioner submits that the impugned orders passed by the respondents are illegal and arbitrary. It is further submitted that the petitioner has moved an application under section 16 of the Adhiniyam for converting the use of land from agricultural to residential and, therefore, there was no impediment in granting the same. However, in single line order, the said application has been rejected by the respondents. It is further submitted that the respondents have treated the said application under section 29 of the Adhiniyam, 1973 instead of section 16 of the Adhiniyam, 1973. It is also submitted that the Rules, 2012 are not applicable to the area falling within Bhedaghat Development (Draft) Plan, 2021. The Bhedaghat Development (Draft) Plan was finalised in the year, 2016, while the application was submitted by the petitioner in the year, 2014 i.e. prior to finalisation of Bhedaghat Development (Draft) Plan. The State Government has issued a Gazette Notification dated 26.12.2012, which has been published in the Madhya Pradesh Gazette dated 4.1.2013, according to which the provisions of the Rules, 2012 have been made applicable to as many as 145 towns including Jabalpur Division. There are as many as 15 cities of Jabalpur Division but the Bhedaghat has not been included in the said list. Thus, by virtue of the said notification, the provisions of the Rules, 2012 are not applicable to the land in question. It is also submitted that he has obtained a note-sheet under the Right to Information Act from the Office of Joint Director, Town and Country Planning and in the note-sheet, it has
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