1. This is a petition under Article 226 of the Constitution of India.
2. The material facts giving rise to this petition, briefly, are as follows :
The open land appurtenant to Bungalow No. 58 situated in Neemuch Cantonment was divided into plots by petitioner No. 1, the owner thereof, after obtaining sanction in that behalf from the Neemuch Municipal Council in the year 1969. Thereafter, petitioner No. 1 sold some plots and entered into agreements with petitioners Nos. 2 to 15 for sale of the other plots but before sale deeds could be executed and registered, the Madhya Pradesh Vinirdist Bhrast Acharan Niwaran Adhiniyam, 1982 (hereinafter referred to as "the Act") came into force. On 24-2-85, the Collector District Mandsaur, published a notice in a daily newspaper stating that as petitioner No. 1 had violated the provisions of Section 24(a) of the Act, the proposed sale of plots in favour of petitioners Nos. 2 to 15 was void under Section 31(1) of the Act. The petitioners were called upon to show cause why the management of the land in question , be not taken up by the Collector. Petitioner No. 1 filed reply showing cause but the Collector, by his order dated 2-9-85, took over the management of the land under the provisions of Section 31(1)(b) of the Act by holding that sales in favour of petitioners Nos. 2 to 15 were void under Section 31(1) of the Act. Aggrieved by that order, the petitioners have filed this petition.
3. Shri Chaphekar, the learned counsel for the petitioners, contended that before passing an order under Section 31(1) of the Act and proceeding to take over the management of the land, the Collector should have found that in respect of the land in question, petitioner No. 1 was guilty of illegal diversion or illegal colonisation; that no such finding could be given because at the time when the land was colonised by petitioner No. 1, all that was necessary was to obtain sanction of the Neemuch Municipal Council and that such sanction having been obtained, it could not be held that petitioner No. 1 was guilty of illegal colonisation. The learned Counsel, therefore, contended that the impugned order passed by the Collector deserved to be quashed. In reply, Shri Joshi, the learned Government Advocate, contended that petitioner No. 1 did not produce any material before the Collector to prove that she was not guilty of illegal colonisation; that petitioner No. 1 had herself applied for a licence of colonisation from the Collector, which was refused and that the Collector, therefore, was justified in passing the impugned order.
4. To appreciate the contentions advanced on behalf of the parties, it would be useful to refer to the relevant provisions of the Act, Section 24(a) of the Act defines a colonizer and illegal colonizer as follows :
"(a) 'a colonizer' means a person, who, in a local area, after taking no objection certificate or prior permission in writing, as the case may be -
(i) under Section 172 of the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959),
(ii) under the Urban Land (Ceiling and Regulation) Act, 1976 (No. 33 of 1976),
(iii) under the Madhya Pradesh Municipalities Act, 1961 (No. 37 of 1961),
(iv) under the Madhya Pradesh Municipal Corporation Act, 1956 (No. 23 of 1956),
(v) under the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (No. 23 of 1973).
from the respective authority competent to grant the same or from a Nazul authority in case the land is situated in a Nazul area, divides the land into plots, with or without developing the area, transfers or agrees to transfer them gradually or all at a time, to persons desirous of setting down on those plots by constructing residential or non-residential or composite accommodation and the expression "establishment of colony", "colonization", "illegal colonizer" and "illegal colonization" shall be construed accordingly :
Provided that no person shall undertake the establishment of colony unless he, on payment of such fee, as may be prescribed for registration of colonizers, obtains a licence of colonization from the Collector of revenue district, in which the land is situate :
Provided further that, notwithstanding anything contained in Section 172 of Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959), mere omission to grant sanction for diversion of land within the period specified therein shall not amount to grant of sanction for diversion for the purpose of this chapter.
... ... ... ..."
It is thus clear that illegal colonization would mean under the Act colonization without obtaining prior permission from the authorities, as required by the provisions of the various Acts referred to in Clause (a) of Section 24 of the Act.
5. Now the case of the petitioners is that sanction of the Municipal Council, Neemuch under the provisions of Section 182 of the M.P. Municipalities Act, 1961 for developing the land in question into a colony, was duly obtained in the year 1969, when the Urban Land (Ceiling and Regulation) Act, 1976 and the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 had not come into force. It is not disputed that the provisions of the M.P. Land Revenue Code, 1959 and the M.P. Municipal Corporation Act, 1956 are not attracted in the instant case. It is also not disputed that sanction, as required by Section 182 of the M.P. Municipalities Act, 1961 had been obtained by petitioner No. 1 in the year 1969. It is thus clear that petitioner No. 1 had "divided" the land in question "into plots" in the year 1969; that such division was with the prior permission of the Municipal Council and it did not, therefore, amount to illegal colonization, as contemplated by Clause (a) of Section 24 of the Act. The provisions of the M.P. Land Revenue Code, 1959 being inapplicable in the instant case, the question of illegal diversion does not arise. Therefore, the land in question could not be held to be an "area of illegal diversion or 'colonization". Unless the land, the respect of which action is proposed to be taken under Section 31(1)(b) of the Act is an area of illegal diversion or illegal colonization, the Collector has no jurisdiction to take action under Section 31(1)(b) of the Act.
6. It was contended by the learned Government Advocate that Petitioner No. 1 had herself applied for licence under Section 24 of the Act, But merely on the ground that an application was made for obtaining licence under the Act, though such application was not necessary according to law in the case of petitioner No. 1, as she had already developed the land in the year 1969; petitioner No. 1 could not be held guilty of illegal colonization. The main question, that should have been considered by the Collector, was whether the development of land undertaken by petitioner No. 1 was in violation of the provisions of the laws in force referred to in Clause (a) of Section 24 of the Act, at the time when the land was being developed. The Collector failed to appreciate that division of land into plots and the sale of all these plots need not be simultaneous and that if after division of land into plots after obtaining permission for such division from the authorities, certain plots were being sold by petitioner No. 1, she could not be held guilty of illegal colonization. The action taken by the Collector under Section 31(1)(b) of the Act, cannot be, therefore, sustained in law in the circumstances of this case.
7. The learned Government Advocate brought to our notice the provisions of Section 31(2) of the Act and contended that the Act had retrospective operation. Now, Section 31(2) of the Act is as follows :
"31. Transfer of plots in an area of illegal diversion or illegal colonisation to be void--
(2) The provisions of this section shall have retrospective effect on all transactions, where constructions on the area of illegal diversion or illegal colonisation had not commenced on the 8th Sept. 1982."
From a perusal of the aforesaid provisions it is clear that the Act is made applicable to transactions relating to land comprised in the area of illegal diversion or illegal colonisation where construction had not commenced on 8th Sept., 1982. But, before it could be held that the provisions of the Act are applicable to the transactions in question on the ground that construction had not commenced on 8th Sept., 1982, it has got to be shown that the transactions pertain to land forming part of an area of illegal diversion or colonisation. As already observed, the colonisation of the land in question having taken place in the year 1969, it could not be held that petitioner No. 1 was transferring plots to petitioners No. 2 to 15 situated in an area of illegal colonisation. The order (Annexure 'D') dated 2-9-1985 passed by the Collector, District Mandsaur, cannot be sustained in law.
8. For all these reasons, this petition is allowed. The order Annexure 'D' dated 2-9-1985 passed by respondent No. 2, is quashed and the respondents are restrained from taking any action in pursuance of that order. In the circumstances of the case, parties shall bear their own costs of this petition. Security amount, if any, be refunded to the petitioners.