ORDER

1. By this petition preferred under Article 226 of the Constitution of India the petitioners have challenged the order dated 24.12.2019 passed by the Additional Commissioner, Ujjain Division, Ujjain.

2. As per the petitioners, their predecessor Sitaram Prajapati applied under section 59 read with section 172(1) of M.P. Land Revenue Code, 1959 (hereinafter referred to as 'the Code') for diversion of his agricultural land situated at Neemuch city to purpose other than agriculture i.e. commercial. He died on 18.2.2019 after which they have been substituted. The Sub-Divisional Officer, Neemuch by order dated 18.4.2017 assessed the land revenue of the land to the tune of Rs.28,671/- per annum liable to be paid from the year 2011- 2012. The premium of land for commercial purpose was fixed at Rs.1,43,352/- in terms of section 59(5) of the Code and penalty amounting to Rs.1,43,352/- was also imposed under section 172(4) thereof.

3. Being aggrieved by the order aforesaid, Sitaram preferred an application before the Sub Divisional Officer for review which was dismissed by order dated 18.8.2017. Being aggrieved, Sitaram preferred an appeal under section 44(1) of the Code before the Additional Collector which was only partly allowed by order dated 10.1.2018 to the extent that the land revenue was held liable to be paid from the year 2016-2017 instead of 2011-2012. Being aggrieved by the said order Sitaram preferred Second Appeal under section 44(2) of the Code before the Additional Commissioner which has been dismissed by him by the impugned order dated 24.12.2019.

4. Learned counsel for the petitioners has submitted that section 172 of the Code stood deleted by M.P. Act No.23 of 2018 with effect from 25.9.2018 and now the issue of diversion is required to be dealt with under newly amended section 59 of the Code. Sub section (12) thereof provides that all proceedings pending before any revenue authority including Board of Revenue as on date of coming into force of aforesaid Amendment Act, 2018 shall stand abated and the Sub Divisional Officer shall deal with the issue of diversion as provided under the newly substituted section 59. The Second appeal preferred by the petitioners was pending on the date of coming into force of the newly substituted section 59 hence in view of sub section (12) thereof the proceedings stood abated and the Sub Divisional Officer could have imposed premium and assessed land revenue only in accordance with newly substituted section 59.

5. Per contra, learned counsel for the respondents/State has submitted that order was passed by the Sub Divisional Officer on 18.4.2017 i.e. prior to deletion of section 172 and substitution of section 59 of the Code. The proceedings hence stood decided much prior to coming into force of M.P. Act No.23 of 2018. They would hence not abate due to deletion of section 172 of the Code. Section 59(12) cannot be made applicable to appeals filed by the assessee. Since penalty had already been imposed prior to deletion of section 172 the said order would not automatically stand abated for the reason that during pendency of second appeal, section 172 was deleted. Reliance has been placed by him on the decision of the Gwalior Bench of this Court in W.P. No.39 of 2020 [Rajendra Kumar Kushwaha v. State of M.P. and others] decided by order dated 10.1.2020 which was affirmed in W.A. No.639 of 2020 by order dated 21.11.2022.

6. I have considered the submissions of the learned counsel for the parties and have perused the record.

7. Section 59 of the Code as it stood prior to its amendment was as under:

"59. Variation of land revenue according to purpose for which land is used — (1) The assessment of land revenue on any land '[shall be made] with reference to the use of land—

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(2) Where land assessed for use for any one purpose is diverted to any other purpose, the land revenue payable upon such land shall, notwithstanding that the term for which the assessment may have been fixed ha