{"id":35522,"date":"1982-02-16T00:00:00","date_gmt":"1982-02-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-chameli-devi-agarwal-and-ors-vs-state-of-madhya-pradesh-and-ors-on-16-february-1982"},"modified":"2018-08-29T14:47:14","modified_gmt":"2018-08-29T09:17:14","slug":"smt-chameli-devi-agarwal-and-ors-vs-state-of-madhya-pradesh-and-ors-on-16-february-1982","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-chameli-devi-agarwal-and-ors-vs-state-of-madhya-pradesh-and-ors-on-16-february-1982","title":{"rendered":"Smt. Chameli Devi Agarwal And Ors. vs State Of Madhya Pradesh And Ors. on 16 February, 1982"},"content":{"rendered":"
Madhya Pradesh High Court<\/div>\n
Smt. Chameli Devi Agarwal And Ors. vs State Of Madhya Pradesh And Ors. on 16 February, 1982<\/div>\n
Equivalent citations: AIR 1982 MP 125<\/div>\n
Author: Shukla<\/div>\n
Bench: G Sohani, K Shukla<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
  Shukla, J.  <\/p>\n
 1. This is a petition under Article 226 of the Constn.\n<\/p>\n
 2.    Petitioners    purchased    agricultural lands      bearing      survey      Nos.        98\/1\/2 98\/1\/3      and      98\/1\/4      area      3.10        acres situate     at     village       Lasudia       Mori, Tehsil      and      District        Indore.      Petitioners    applied under the  Madhya Pra-desh Land Revenue Code for permission to divert these lands for non-agricultural purposes. Permission was granted by the Sub-Divisional Officer Indore-Sanwer   on 15-4-1981   (Annex.   A).  Petitioners intended   to   construct  a shopping  complex    on these lands  and submitted the plan    for the proposed construction for approval to the Gram  Panchayat of     village Lasudia Mori.  The Gram Panchayat approved the plan    and    on the basis of the approved plan  cement and other building material was   allotted  to  the  petitioners    by    the Civil   Supplies   Department    of the   State Government, petitioners started construction of a marketing complex and spent a considerable amount on it.    When    they were half-way-through,     petitioners   approached the Madhya Pradesh Electricity Board for electricity connection for    the proposed marketing complex.  The Board advised the petitioners to obtain    a    No Objection Certificate from the Town and Country Planning Department. Petitioner applied to the Joint Director, Town and Country Planning Department   on    12-8-1981.  The Joint Director refused permission on the ground that according to the Master Plan the lands could be used only for    agricultural     purposes.    This    letter dated 28-8-1981 is Annexure-C. The petitioners  preferred  an   appeal  under  Section   31 of    the    Madhya    Pradesh    Nagar Tatha Gram    Nivesh    Adhiniyam,      1973      (the Adhiniyam hereafter) which according to the    petitioners    is    pending    before  the Commissioner,   Indore.     On     1-9-1981     a notice   purporting   to  be  under  Section   37   (1) of the Adhiniyam  issued  by    the    Joint Director, Town    and    Country   Planning, Indore  was  served   on the   petitioners   to remove the   construction within   a period of one month    from    the    date    of    the notice.   The notice is  Annexure-E.     Peti-tioners    then     applied    to    the Director, Town and Country  Planning for permission  to retain  the  construction    on    the lands  in   question     in     accordance    with the  provisions  contained    in Sub-section   (3) of   Section   37   of the Adhiniyam.     Petitioners apprehended     that the  Town  &  Country Planning   Department    might   take   action for  demolition  of   the   construction    and, therefore, they filed a suit for injunction before  the Civil  Judge Class II,    Indore on 8-10-1981 and an ex parte ad interim injunction    was issued on the same day restraining      the     Director     and     Joint Director,    Town    and    Country  Planning Department  from demolishing    the    construction   until  further orders.     Copy    of the Court’s order is Annexure-F. On 10th Oct. 1931 in the early hours of the morning at about 4.30 a.m. the Joint Director, Town & Country Planning     went to the spot    along    with    Additional    Collector, Indore, Sub-Divisional Officer Indore City Superintendent of Police Indore, a posse of constables    and a big gang of labourers equipped with Bulldozers, Dynamites and Cranes   etc.     The   demolition   work   was started under the supervision of the officers mentioned above. A substantial portion   of   the   construction was demolished before    the    petitioners    came    to    know about it and they rushed to the spot and on  the basis of the injunction issued  by the Civil Court got the demolition work stopped.\n<\/p>\n
 3. On 12-10-1981 Sub-Divisional Officer, Indore-Sanwer served a notice purporting to be under Section 172 (5) of the M. P. Land Revenue Code on the petitioners asking them to remove the construction and to restore the land to its original state within two days. This notice is Annexure-G.\n<\/p>\n
 4- Petitioners challenge the validity of the notices dated 1-9-1981 (Annexure-E)<\/p>\n
issued    by    the Joint Director, Town & Country    Planning,    Indore    and     dated 12-10-1981   (Annexure-G)     issued   by  the Sub-Divisional Officer, Indore under Section  172(5)  of the Land Revenue Code and the action taken in pursuance thereof. The grounds on which the notices and the     action    or    proposed   action by   the Joint  Director,  Town and Country  Planning,     Indore  and Sub-Divisional Officer, Indore are challenged are as follows. According to the  petitioners    the    Madhya Pradesh Nagar Talha Gram Nivesh Adhiniyam,   1973 was not extended to village Lasudia  Mori   where  the  petitioners   had constructed    the    shopping    complex    in question.  Respondents 3 and 4, therefore, had no  right to take  any action in respect  of  the  said construction.  Similarly the   S.   D.   O.   Indore   had no jurisdiction to issue the impugned notice Annexure-G because    the    conditions    imposed    while granting    permission    for    diversion     of land wt’re illegal and were not in accordance with the provisions of Section 172 of the Land   Revenue   Code   and,   therefore,   the petitioners could not    be    compelled    to comply  with them.     Further,     since   the Adhiniyam    had    not    been  extended to village Lasudia  Mori,    the condition  imposed   by   the   S. D. O.     while    granting permission    was    impossible of performance and for that reason   also no action could  be  taken  for non-compliance  with the said condition. Lastly, it was averred that the petitioners had filed an application before the Director, Town & Country Planning,   Bhopal  (respondent No.  4)   under Section 37 (3) of the Adhiniyam challenging    the    notice    under Section 37 (1) of the Adhiniyam and in accordance   with    the provisions of S- 37 (3) of the Adhiniyam the notice stood automatically withdrawn till   the   decision  of  the   Director on   the application.   Thus the  action  for demolition of construction was illegal. On these grounds    petitioners    sought     that     the notices    Annexure-E    and    Annexure-G supra be quashed and respondents 1 to 4 be  restrained from demolishing the construction in question.\n<\/p>\n
 5. Separate returns were filed by re-spondents 1-2 and respondents 3-4. Respondents 1 and 2 admitted that the petitioners had purchased the lands and obtained an order for diversion of the said lands at village Lasudia Mori for non-agricultural purposes. The proposed action by respondent No. 2 was sought to be justified on the ground that the Adhi-niyam was in force in village Lasudia Mori and, therefore, it was incumbent<\/p>\n
on the petitioners to comply with the provisions of Section 25 of the Adhinivam read with Section 172 of the M. P. Land Revenue Code. The approval of the Director, Town and Country Planning was, therefore, mandatory and petitioners’ action in constructing the marketing complex was contrary to the provisions of the Adhiniyam and also contrary to the conditions imposed by the S. D. O. while passing the order permitting diversion of the lands for non-agricultural purposes. Thus the main ground on which respondents 1 and 2 resisted petitioners’ claim was that the act of the petitioners in constructing the said complex without the permission of the Director, Town & Country Planning was a breach of law as well as the breach of the condition imposed under Section 172 of the Land Revenue Code. The notice issued by the S. D. O. was, therefore, within the authority of law.\n<\/p>\n
 6. Respondents 3 and 4 took up an identical stand as regards the application Of the Adhiniyam to village Lasudia Mori and the validity of the notice Annexure-E issued by the Joint Director, Town and Country Planning. The main plank of resistance to the petition is that the Adhiniyam extended to village Lasudia Mori and all its provisions were applicable to that area. Construction by the petitioners in contravention of the provisions of the Adhiniyam and without the approval of respondents 3 and 4 was illegal and the same was liable to be removed under the provisions of the Adhiniyam. As regards the ground taken by the petitioners about the operation of Section 37. (3) of the Adhiniyam, respondents 3 and 4 categorically stated that “no petition for retention under Section 37 (3) of the Adhiniyam has been presented before respondent No. 4.” (see ground No. III. This denial raised a further controversy and petitioners filed rejoinder giving all the particulars about the said application filed before the Director (respondent No. 4) at Bhopal with a copy for information to respondent No. 3 Joint Director, Indore. Documents and affidavits were also filed in that behalf. In their reply to this rejoinder these respondents had to back out from the original stand taken in the return and they sought to take shelter under a technical plea that no application under Section 37 (3) was presented “in the prescribed manner before the authority which has been conferred with the powers to entertain and dispose of the application under Section 37 (3).” It was further pleaded that presentation of ap-\n<\/p>\n
plication at Bhopal was improper. Im-pliedly these respondents had to admit in view of the documents and affidavits filed in the rejoinder that an application to the Director had actually been filed under Section 37 (3) of the Adhiniyam.\n<\/p>\n
 7. From the pleadings it is apparent that respondents did not dispute the fact that petitioners had purchased the lands in question in village Lasudia Mori and had started construction of a marketing complex at substantial expense. It was also not disputed that the Officers of the Town and Country Planning Department accompanied with the officers of the Revenue Department and an impressive police force went to the spot and partly demolished the construction with the help of bulldozers etc. and this act was done in the early hours of the morning around between 4 to 5 a.m. <\/p>\n
 8. The main question which falls for consideration is whether the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 was in force in the area of village Lasudia Mori where the said building had been constructed by the petitioner. If the Adhiniyam was not in force, then the notice Annexure-E and Annexure-G will be without the authority of law and liable to be quashed. Counsel for the parties agree that this is the fundamental issue to be decided in this case.\n<\/p>\n
 9. The said Adhiniyam (Act No. 23 of 1973) was published in the Madhya Pradesh Gazette (Extraordinary) dated 26th April, 1973, Section 1 relates to short title, extent, commencement and application of the Adhiniyam. Section 1 (2) & (3) are relevant for our purpose and they are reproduced hereunder:–\n<\/p>\n
 “(2) It extends to the whole of Madhya Pradesh.\n<\/p>\n
 (3) It shall come into force on such date as the State Government may, by notification, appoint and different dates may be appointed for different areas and for different provisions of this Act,”\n<\/p>\n
 10. A notification in exercise of the powers conferred by Sub-section (3) of Section 1 of the Adhiniyam was issued on 1-6-1973 (Notification No. 1219-XXXIII dated 1-6-1973). Under this notification it was provided as under:–\n<\/p>\n
  “… the State Government hereby appoints the date of publication of this notification in the “Government Gazette” as the date on which all the provisions of the said Adhiniyam shall come into force in the areas specified in the Schedule below:–\n<\/p>\n
 Schedule “A”. Areas comprised within the limits of the following Municipal Corporations, namely :\n<\/p>\n
 8. Indore.\n<\/p>\n
 It was an admitted fact that village Lasudia Mori did not fall within the limits of the Indore Municipal Corporation. Learned counsel for the petitioners rested their case on Section 1 (3) of the Adhiniyam read to the light of the notification dated 1-6-\n<\/p>\n
1973 published in the Madhya Pradesh Gazette dated 22-6-1973 referred to above. The contention of the learned counsel for the petitioners was that since the Act itself was never extended to the area outside Municipal Corporation Indore, other provisions of the Act could not be applied to any area outside the limits of the Municipal Corporation.\n<\/p>\n
 11. In reply learned Government Advocate appearing for the respondents contended that Section 2 (o) of the Adhiniyam defined a Planning Area under the Act and Section 13 empowers the State Government by notification to constitute Planning Areas for the purposes of this Act. He invited our attention to the Schedule appended to the notification dated 13-2-\n<\/p>\n
1974 issued under Section 13 of the Adhiniyam wherein village Lasudia Mori has been included within the limits of the Indore Planning Area. It was not disputed by petitioners’ learned counsel that village Lasudia Mori fell within the Indore Planning Area as notified by the State Government in notification dated 13-2-1874.\n<\/p>\n
 12.    The effect of Section 1 (2) was that the
\nAdhiniyam was extended to whole of Madhya Pradesh. But the effect of Sub-section (3) was that the operation of the Act to the different areas on different dates and for different provisions had to be made by notifications to be issued by the State Government. Until a notification in that behalf was issued bringing the Adhiniyam into force for a particular area, the same could not become opera-tire in that area. In State of Bombay v. Salat Pragji Karanisi, (AIR<\/a> 1957 SC 517) while dealing with the provisions of Adaptation of Laws Order and extension of Bombay Act to Kutch, an argument was raised that by the mere application of the Bombay Act to Kutch it became operative and came into force in the whole of the Kutch. The Court repelled the argument and held that a notification as envisaged under Section 1 of the Adaptation of Laws Order was necessary before it<\/p>\n
could be brought into force in any part of Kutch. The following extract may be usefully noted (at p. 521) :–\n<\/p>\n
  “It was applied to Kutch, but its provisions were not in operation before the notification; and in our opinion, the judgment of Baxi, J. C. in Agaria Osman Alarakhya v. Kutch State, AIR 1951 Kutch 9 (A) which has been followed in the case now before us, to the extent that it dealt with the necessity of the notification under Section 1 of the Bombay Act, was correctly decided; and therefore, the first contention raised by counsel for the appellant is unsustainable and we hold that without a notification, the Bombay Act could not be held to have been validly applied to the State of Kutch.”\n<\/p>\n
 13. In State of Orissa v. Chandrasekhar Singh Bhoi (AIR<\/a> 1970 SC 398) the following observations are relevant (Paras 5, 6) :–\n<\/p>\n
 “A law cannot be said to be in force unless it is brought into operation by legislative enactment, or by the exercise of authority by a delegate empowered to bring it into operation. The theory of a statute being “in operation in a constitutional sense” though it is not ill fact in operation has no validity.” Again :\n<\/p>\n
 “In the present case the law relating to the ceiling limit viz., Ch. IV of the principal Act was never made operative by a notification, and was repealed by Act 15 of the 1965. The ceiling limit under Section 47 of the principal Act was on that account inapplicable to the landholders who challenge the validity of Section 45 of the amending Act.”\n<\/p>\n
 14. It will also be useful to reproduce the comments in Maxwell on the Interpretation of Statutes, 12th Edition on the question. Dealing with the matter under the heading ‘Commencement’ the author makes the following comments :–\n<\/p>\n
  “Where an Act is not to come into effect immediately after it is passed and it confers power to make appointments, issue instruments, give notices, prescribe forms or do any other thing for the purposes of the Act, that power may, in the absence of a contrary intention, be exercised at any time after the passing of the Act, so far as may be necessary or expedient for the purpose of bringing the Act into operation at the date of the commencement thereof, subject to this restriction, that any instrument made<\/p>\n
under the power shall not, unless the contrary intention appears in the Act, or the contrary is necessary for bringing the Act into operation, come into operation until the Act comes into operation.”\n<\/p>\n
 15. Thus when we interpret Sub-sec-tion (3) of Section 1 of the Adhiniyam in the light nf the observations made above, we come to the conclusion that the Adhiniyam came inlo force in the area comprised within the limits of the Indore Municipal Corporation only by virtue of notification No. 1219-XXXIII dated 1-6-1973. As admittedly village Lasudia Mori fell outside the limits of the Indore Municipal Corporation, the Adhiniyam did not come into force at all so far as the area of village Lasudia Mori was concerned.\n<\/p>\n
 16. Learned Government Advocate, however, contended that the State Government had issued a notification under Section 13 of the Adhiniyam defining the limits of the ‘Planning Area’ whereby village Lasudia Mori was included within the limits of the Indore Planning Area. He further urged that under Sections 24 and 25 of the Adhiniyam the overall control of development and use of the land in the Planning Area vested in the Director and use and development of land had to conform to the provisions of the development plan. He referred to Sub-section (2) of S- 25 of the Adhiniyam and stated that the provisions of Section 172 of the Land Revenue Code were subject to the provisions of this Adhiniyam.\n<\/p>\n
 17. The argument at the first flush appears to be attractive. But the flaw in this argument is that declaration of a Planning Area and notification about land use etc. can be implemented only within the four corners of the Adhiniyam. If when the statute itself is not in force in any area, any further notification even if made in respect of the areas where the statute is not operative will not make the Adhiniyam enforceable in that area. There appears to be some lacuna in issuing an appropriate notification under Sub-section (3) of Section 1 of the Adhiniyam but we are of the view that all the provisions of the Adhiniyam will be subjected to this principal section about its operation and enforcement in any particular area. If the Adhiniyam is not in force in any area, notwithstanding any notification under other sections of the Adhiniyam, provisions of the Adhiniyam will not be operative in the area outside the one notified under Sub-section (3) of Section 1. In this view of the matter we are of the opinion that respondents 3 and 4 had no jurisdiction to issue any notice or take any action under the Adhiniyam for removal of the building or the structure constructed by the petitioners. Notice dated 1-9-1981 (Annexure-E) is, therefore, without the authority of law and liable to be quashed.\n<\/p>\n
 18. Learned Government Advocate then took shelter under the provisions of Section 172 of the M. P. Land Revenue Code to justify the action taken or proposed to be taken for removal of the construction made by the petitioners. Petitioners’ application for diversion was allowed by the S. D. O. by order dated 15-4-1981 (Annexure-A). Two conditions were attached to this order First was that the proposed construction will be made subject to the approved plans and conditions imposed by the Joint Director, Town & Country Planning, Indore. Second condition was that a No Objection Certificate should be obtained about the urban ceiling. We are not here concerned with the second condition because any breach of this condition was not pressed into service to support the notice issued by the S. D. O. on 12-10-1981 (Annexure-G). Moreover it was not shown that such a No Objection Certificate was the requirement of any law or rule framed under any Act.\n<\/p>\n
 19. Learned Government Advocate, however, urged that in view of Section 25 (2) of the Adhiniyam a condition of this nature had to be imposed and even if not expressly imposed it was a statutory condition and inherent in every order passed under Section 172 of the Land Revenue Code. This argument has to be rejected because as already observed the Madhya Pradesh Nagar Tatha Gram Ni-vesh Adhiniyam, 1973 was not in operation in village Lasudia Mori and, therefore, no condition under Sub-section (2) of Section 25 of the Adhiniyam read with Section 172 (3) of the Land Revenue Code could be legally imposed. So far as village Lasudia Mori was concerned the Director of the Town & Country Planning had no power to grant or refuse land use under the Adhiniyam and, therefore, the question of obtaining his sanction or the sanction of the Joint Director could not arise. The condition was obviously impossible of performance and could be ignored. When an invalid condition is not so inextricably mixed up that it cannot be separated from the valid order, then such a condition can be severed from the<\/p>\n
rest of the order. (Sewpujanrai Indra-sanarai Ltd. v. Collector of Customs, AIR 1958 SC 845); Y. Mahaboob Sheriff and Sons v. Mysore State Transport Authority (AIR<\/a> 1960 SC 321) and State of Mysore v. K Chendrasckhara (AIR 1976 SC 853)).\n<\/p>\n
 20. If Section 172 of the M. P. Land Revenue Code is not treated as subject to Section 25 (2) of the Adhiniyam, as held by us, then the conditions imposed by the S. D. O. could not be imposed within the framework of Sub-section (3) of Section 172 of the Land Revenue Code. Sub-section (3) of Section 172 of the Land Revenue Code is as follows :–\n<\/p>\n
  “Conditions may be imposed on diversion for the following objects and no others, namely in order to secure the public health, safety and convenience, and in the case of land which is to be used as building sites, in order to secure in addition that the dimensions, arrangement and accessibility of the sites are adequate for the health and convenience of occupiers or are suitable to the locality.”\n<\/p>\n
 The conditions in the order permitting diversion do not fall within the different heads mentioned in Sub-section (3) of Section 172 and, therefore, they were invalid and without jurisdiction. Construction of the building without complying with those conditions, therefore, did not warrant any action under Sub-section (5) of Section 172 of the M. P. Land Revenue Code. Thus the notice issued by the S. D. O. (Annexure-G) is invalid, without jurisdiction and without the authority of law and the same is liable to be quashed.\n<\/p>\n
 21. Before closing we must refer to one more point made by the learned counsel for the petitioners. It was urged that the petitioners had made an appropriate application to the Director under Section 37 (3) of the Adhiniyam for permission for retention of their building on the land and till that application was disposed of the notice automatically stood withdrawn. No action, therefore, could be taken by the respondents particularly respondents 1, 3 and 4 for demolition of the building constructed by the petitioners. We have already observed that in their first return respondents 3 and 4 had flatly denied that any such application was made under Section 37 (3) of the Adhiniyam. Faced with the further clinching proof made in the rejoinder by the petitioners, respondents 3 and 4 tried to hedge the issue by pleading that the application was not in the prescribed manner before<\/p>\n
the authority i.e. the Regional Joint Director, Town Planning, Indore. It was fully established that an application under Section 37 (3) was made to the Director and a copy thereof was also delivered to the Joint Director Town & Country Planning Department, Indore. An acknowledgment (Annenure-H) from the office of the Joint Director has been filed by the petitioners. Thus in view of the, clear and mandatory provisions of Section 37 (3) of the Adhiniyam, the notice under which the action for demolition was taken at about 4.30 a.m. stood automatically withdrawn till the decision of the said application and for this reason also the notice and the subsequent action in pursuance thereof was invalid and without the authority of law. No action under the said notice could be taken.\n<\/p>\n
 22. We find that the Officer-in-charge of the case on behalf of respondents 3 and 4 had filed an affidavit to the effect that paragraphs 1 to 8 and grounds 1 to 9 were true to his personal knowledge. Ground No. II of the first return was to the effect that no petition for retention under Section 37 (3) of the Adhiniyam, 1973 had been presented before respondent No. 4 i.e. the Director, Town and Country Planning, Bhopal. Subsequently after the petitioners filed a rejoinder and furnished proof of such a petition having been made to respondent No. 4, the Authorised Officer pleaded that the said application was not presented in the prescribed manner before the Regional Joint Director, Indore and the presentation of application at Bhopal was improper. It is clear that the statement on affidavit made along with the first return was not true to the knowledge of the said officer. To maintain the sanctity of an affidavit in writ petitions, we consider it expedient in the interest of justice that an enquiry should be made against the said officer for taking action for filing a false affidavit.\n<\/p>\n
 23. Separate proceedings may be initiated for the purpose.\n<\/p>\n
 24. In the result the petition is allowed, the notices Annexures F and G dated 1-9-1981 and 12-10-1981 respectively are quashed and the respondents are restrained from taking any action in pursuance of the said notices in respect of the construction made by the petitioners on Survey Nos. 98\/1\/2, 98\/1\/3 and 98\/1\/4 of village Lasudia Mori, Tehsil and District Indore. Costs of this petition will be borne by the respondents. Advocate’s fee Rs. 250\/-. The outstanding amount of<\/p>\n
security deposit be refunded to the petitioners.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madhya Pradesh High Court Smt. Chameli Devi Agarwal And Ors. vs State Of Madhya Pradesh And Ors. on 16 February, 1982 Equivalent citations: AIR 1982 MP 125 Author: Shukla Bench: G Sohani, K Shukla JUDGMENT Shukla, J. 1. This is a petition under Article 226 of the Constn. 2. Petitioners purchased agricultural lands bearing survey […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,24],"tags":[],"class_list":["post-35522","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madhya-pradesh-high-court"],"yoast_head":"\nSmt. 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