Madhya Pradesh High Court
Ramesh Rathore vs The State Of Madhya Pradesh on 20 December, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
Writ Petition No.29427 of 2022
Shivcharan
vs.
State of M.P. & Others
Writ Petition No.1506 of 2023
Kamlesh Sharma
Vs.
State of M.P. & Others
Writ Petition No.2158 of 2023
Ramji Vyas
vs.
State of M.P. & Others
Writ Petition No.2160 of 2023
Laxminarayan Soni
vs.
State of M.P. & Others
Writ Petition No.15110 of 2024
Ramesh Rathore
vs.
State of M.P. & Others
APPERANCE
(Shri Nirmal Sharma, Shri Vishal Singh Bhadoriya and Shri R.K. Goyal -
Advocates for the petitioners in the above cases)
(Shri M.S. Jadon - Government Advocate for the State)
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Reserved on : 22/10/2024
2
Delivered on : 20/12/2024
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This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Hon'ble Shri Justice Milind
Ramesh Phadke pronounced/passed the following:
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ORDER
[Regard being had to the similitude of the controversy, these five
petitions were heard analogously and decided by this common order. For
factual convenience, facts as narrated in W.P. No.1506 of 2023 are taken
into consideration.]
The present petition under Article 226 of the Constitution of India
has been preferred against the order dated 05.01.2023; whereby, while
invoking the provisions of Section 339(C) of Madhya Pradesh
Municipalities Act, 1961 (for short ”Act of 1961”), the Additional
Collector has held the petitioner to be indulged in illegal colonization and
its development without due and requisite permission and the Chief
Municipal Officer, Nagarpalika, Shivpuri has been directed to get an
F.I.R./ criminal case registered against the present petitioner, within a
period of seven days under the provisions of the Act of 1961 and intimate
the same accordingly.
2. Short facts of the case are that the petitioner is owner of a land
bearing Survey No.182/2/Min-1, ad-measuring 0.353 hectares, situated at
Village Fatehpur and for his own personal use, a part of land has been
developed, but to surprise of the petitioner, a show-cause notice dated
11.10.2021 was issued alleging that he had illegally constructed a road and
had divided the land in small plots and is selling the said plots and raising
construction thereon though the land has not been diverted and no
colonizer license has been obtained and neither any lay-out plan has been
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sanctioned by the Town and Country Planning. Thus, by way of the said
show-cause notice, the petitioner was show-caused as to why penal action
be not initiated against him under the provisions of Sections 339 (‘A’ to
‘G’) of Act of 1961 and as to why an F.I.R./criminal case be not registered.
By way of the said show-cause notice, a reply was sought till 25.10.2021.
Vide letter dated 16.12.2021, a reply was submitted by the petitioner and it
was informed that he has not raised any colony nor he has constructed any
road or has done plotting of the area and had sold the plots and the
information, which has been received by the authorities, is false; thus,
prayed for filing of the said show-cause notice.
3. After receiving reply on 28.12.2021, the statements of Patwari
Halka Ramveer Singh Rawat were recorded wherein he stated that on the
land in question, the petitioner had done plotting and had sold the said
plots. He further stated that no colonizer license and no permission from
the Town and Country Planning had been taken nor had got any lay-out
plan sanctioned by the Town and Country Planning and though there was
total absence of any of the requisite permissions, the petitioner was raising
illegal colony and on the spot, two houses have also been constructed. The
said witness was even cross-examined by the counsel for the petitioner in
which the fact of selling of the plots could not be rebutted.
4. On 18.01.2022, the petitioner himself submitted an affidavit
wherein it was stated that he had purchased one plot on the disputed land
and in the present Khasra, the portion of 31002 sq. feet has been recorded
in the name of the present petitioner alongwith other co-owners. He
further stated that he had not made any change on the land after purchase
of the plot and the plot, which has been purchased by him, is lying on the
spot as it is. It was, thus, averred that he has not contravened any of the
provisions of the Act of 1961 and prayed for dismissal of the proceedings.
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But after filing of the affidavit, the petitioner did not remain present for
his cross-examination.
5. On 26.04.2022, the petitioner again submitted an application
alleging therein that since the spot inspection has not been conducted by
the Patwari, therefore, the proceedings are liable to the quashed.
6. On the said application, report was called for from the Patwari, to
which he informed that the report in this regard has already been
submitted and plot has been recorded in the name of the petitioner in the
revenue records.
7. After considering the report and other documents available on
record, the said application of the petitioner was rejected. Thereafter,
written submissions were placed on behalf of the petitioner and it was
averred therein that since he had only purchased an area of 3100 sq. feet.
of the land, on which there is no possibility to develop any colony and the
plot/land which has been purchased by the petitioner is lying as it is,
therefore, the proceedings initiated against him are per se illegal. After
considering the written submissions, from the revenue records for the year
2013-14, it was found that over 38000 sq. ft. of land, i.e. 0.353 hectares,
the name of the petitioner was recorded but in the recent Khasra entries,
the name of the petitioner was only recorded on 31002 sq. ft. and
alongwith his name, on 7000 sq.ft., the names of other persons have been
recorded, who have been sold the plots; thus, holding the said fact to be
sale of plots, the petitioner was found to be guilty under the provisions of
Act of 1961 and the order dated 05.01.2023 was passed whereby the Chief
Municipal Officer, Nagarpalika, Shivpuri was directed to get an F.I.R./
criminal case registered against the present petitioner, with a further
direction restraining the petitioner from sale or purchase of the plots over
the land in dispute till the provisions of Act of 1961 are not complied with.
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Aggrieved by the aforesaid order, the present petition has been filed.
Because without application of mind, the order has been passed.
8. Learned counsel for the petitioner has raised a preliminary argument
that the order passed by the Additional Collector was without jurisdiction,
as he has no powers under the provisions of the Act of 1961 for initiating
prosecution and the said powers only lay with the Chief Municipal Officer
(”CMO”) and in absence of any express sanction, the Additional Collector
could not usurp the jurisdiction available to the CMO, therefore, the
impugned order is unsustainable, which deserves to be quashed.
9. It was further argued that the impugned order is unsustainable, as it
has been passed without due application of mind, when by no stretch of
imagination, it can be presumed that over 0.057 hectare, any colony can be
developed.
10. While referring to Sub-Section (2) of Section 313 of the Act of
1961, it was argued that any prosecution under this Act or under any rule
or bye-law thereunder may, save as therein otherwise provided, is required
to be instituted before any Magistrate and every fine or penalty imposed
under or by virtue of this Act or any rule or bye-law thereunder, and any
compensation expenses, charges or damages for the recovery of which no
special provision is otherwise made in this Act, may be recovered on
application to any Magistrate by the distress or sale of any movable
property within the limits of his jurisdiction belonging to the person from
whom the money is claimed; thus, the only remedy available is to file a
complaint before the concerned Magistrate alleging any offence under the
provisions of this Act and therefore, directions issued by the Additional
Collector for registration of an F.I.R./criminal case through Chief
Municipal Officer is impermissible.
11. To bolster his submissions, he had relied upon the decision of the
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Co-ordinate Bench of this Court in the matter of Municipal Council vs.
Radha Bai reported in 1990 Cri.L.J. 2361 wherein while examining the
provisions of Section 313 of the Act of 1961 and Section 468 of CrPC, it
has been observed 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, thus,
when only the recourse available to the respondents for initiating
prosecution under the Section 339(C) of Act of 1961, is by way of filing a
complaint before the concerned Magistrate, no F.I.R./ criminal case can be
directed to be registered.
12. On the basis of the aforesaid arguments, it was submitted that grave
illegality has been committed by the Additional Collector in directing the
Chief Municipal Officer, Nagarpalika, Shivpuri to get an F.I.R./ criminal
case registered against the petitioner, therefore, the same being illegal and
perverse deserves to be quashed.
13. Per contra, learned Government Advocate for the State had
submitted before this Court that the present petition relates to the order
dated 05.01.2023 passed by the Additional Collector in exercise of powers
under Section 339(C) of the Act of 1961 inter-alia finding the petitioner to
be engaged in illegal development of colony and alienating/selling the
plots without any permission and after affording due opportunity of
hearing had found that the petitioner had committed an offence under
Section 339(C) of the Act of 1961 of illegal colonization, therefore, had
rightly directed the CMO, who is the Officer authorized, to initiate
prosecution by lodging a criminal complaint against the petitioner and on
the basis of which, the CMO vide letter dated 19.01.2023 had made a
complaint to Police Station Physical Shivpuri to register a case under
Section 339(C) of the Act of 1961 against the petitioner and on its basis,
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Crime No.19 of 2023 had been registered and the same is challenged on
the ground that Revenue Authority has no jurisdiction or authority to
direct for registration of an F.I.R. or criminal prosecution against the
petitioner insofar as it pertains to violations which constitute an offence
under the provisions Act of 1961, as the power to prosecute for offences
committed under the said Act is vested with the Municipal Council, Chief
Municipal Officer or any other Officer authorized by the council, which is
wholly misconceived argument, as the F.I.R. has been lodged by CMO
himself, who is an officer authorized to move such complaint and it does
not matter as to how he had received the information, as the source of
information regarding commission of offence is material so long as the
person acting on such information is duly authorized and empowered
under the relevant provisions of the Act.
14. It was further submitted that the ground of lack of authority and
jurisdiction to prosecute available with the respondents is of no
consequence at this stage, as it is a preliminary stage of investigation and
has not yet transformed into a case for prosecution, which would be
arrived only after the police has conducted its investigation and decide to
press charges against the petitioner and this argument appeals to reason as
the police authorities can directly register any cognizable offence under
the Act of 1961 and the question of authority of competent person to
prosecute does not arise at this stage and this aspect will gain significance
only at the stage of taking cognizance by the Magistrate.
15. It was further submitted that the present petition deserves to be
dismissed also on the ground that the letter/complaint written by the CMO
dated 19.01.2023 has not been challenged and the F.I.R. which has been
registered is the consequence of the letter of CMO; hence, in absence of
seeking substantive relief, no consequential relief can be granted.
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16. On the basis of the aforesaid submissions, it was prayed that the
present petition, being no sum and substance, deserves to be dismissed.
17. Heard counsel for the parties and perused the record.
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,
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 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
9
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 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-
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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 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
11action is inconsistent with provisions of these rules, shall be
deemed to have been done or taken under the corresponding
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, 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
12criminal 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 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 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
13canal 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 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
14enforced 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 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.
(Milind Ramesh Phadke)
Digitally signed by PAWAN KUMAR
DN: c=IN, o=HIGH COURT OF
MADHYA PRADESH BENCH
Judge
PAWAN
GWALIOR, ou=HIGH COURT OF
MADHYA PRADESH BENCH
GWALIOR,pwn*
2.5.4.20=b864d1ab4ace2215bfcf3ab
301c34d631287f1b1cdd90b4a49f265KUMAR
f02d9d593f, postalCode=474001,
st=Madhya Pradesh,
serialNumber=61B9D129971D2EA4F
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89153191C56E98CE21, cn=PAWAN
KUMAR
Date: 2024.12.20 17:54:44 +05’30’