Kamlesh Sharma vs The State Of Madhya Pradesh

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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR

BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
th
ON THE 7 OF MAY, 2026
WRIT PETITION No. 14958 of 2022
KAMLESH SHARMA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Nirmal Sharma - Advocate for the petitioner.
Shri Sohit Mishra - Govt. Advocate for the State.
ORDER
The present petition, under Article 226 of the Constitution of India,
has been filed by the petitioner seeking following reliefs:-
(i) That the order Annexure P/1 dated 23.06.2022 may
kindly be quashed.
(ii) To grant any relief deemed just and proper in the
facts and circumstances of the case.
Short facts of the case are that the petitioner is the owner and in
possession of land bearing Survey No.814 ad-measuring 0.77 hectare
situated at Village Rataur, Tehsil and District Shivpuri. The said land is
situated within the revenue limits of the village area and is primarily
agricultural in nature. A portion of the said land was being utilized by the
petitioner for his personal use and development activities. Out of the total
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area of 0.77 hectare, only an area admeasuring 0.10 hectare was alleged by

the respondents to have been subjected to plotting, while the remaining 0.67
hectare was admittedly lying open and undeveloped. The respondent
authorities initiated proceedings against the petitioner alleging that he had
undertaken illegal colony development over the aforesaid land without
obtaining diversion under Section 172 of the Madhya Pradesh Land Revenue
Code, 1959 and without obtaining permission or registration under the
provisions of Section 61 of the Madhya Pradesh Panchayati Raj and Gram
Swaraj Adhiniyam and the Madhya Pradesh Gram Panchayat (Registration
of Colonizers Terms and Conditions) Rules, 1999. It was alleged in the
report submitted by the Patwari, Village Rataur, that the petitioner had
demarcated small plots by marking white lime lines and had constructed a
kutcha road over a portion of the land for the purpose of selling plots. It was
further alleged that no basic amenities such as roads, drainage, electricity or
water supply were available on the site and no layout plan had been approved
from the competent authority. On the basis of the aforesaid report submitted
by the Patwari and the report of the Tehsildar, Shivpuri, proceedings were
initiated before the Sub-Divisional Officer, Shivpuri. The respondents
alleged that notices were issued to the petitioner and the petitioner had
refused to accept the same, whereafter ex parte proceedings were conducted
against him. Statements of the Patwari and Secretary, Gram Panchayat
Rataur, were recorded wherein they reiterated that no NOC or permission
had been granted by the Gram Panchayat for development of any colony
over the disputed land and the petitioner had not obtained any colonizer
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license or approval from the Town and Country Planning Department.

Thereafter, by order dated 23.06.2022, the learned Sub Divisional Officer,
Shivpuri, concluded that the petitioner had violated the provisions of Section
61 of the Madhya Pradesh Panchayati Raj and Gram Swaraj Adhiniyam and
the Rules of 1999, as also the provisions relating to diversion under Section
172 of the Madhya Pradesh Land Revenue Code. The learned SDO further
held that the petitioner was guilty of illegal colony development and directed
registration of an FIR against him. The management of the alleged colony
was also directed to be taken over by the Government and consequential
directions were issued to the Tehsildar and Chief Executive Officer, Janpad
Panchayat, Shivpuri. Aggrived by the aforesaid, the present petition has been
filed.
Learned counsel for the petitioner submits that the impugned order
dated 23.06.2022 passed by the Sub Divisional Officer, Shivpuri, is wholly
arbitrary, illegal, without jurisdiction and has been passed in complete
violation of the principles of natural justice, as the petitioner was never
afforded any adequate or effective opportunity of hearing before passing of
the impugned order and the entire proceedings have been conducted ex parte
on the basis of incorrect and manipulated allegations regarding service of
notice.
It is further submitted that although the respondents have alleged that
the petitioner refused to accept the show cause notice, however, the record
itself does not contain any material to substantiate such allegation and there
is no report of the process server, no endorsement regarding refusal and no
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independent witness to establish that any attempt was ever made to serve

notice upon the petitioner.
Learned counsel further submits that the finding recorded by the
authority regarding refusal of notice is therefore perverse and contrary to the
record. The petitioner came to know about the impugned order only on
27.06.2022 when he visited the office of the Sub Divisional Officer,
Shivpuri, and immediately thereafter applied for certified copies of the order
and the complete case record.
Learned counsel further submits that the proceedings conducted by the
respondents suffer from serious procedural irregularities and discrepancies
which clearly indicate that the proceedings were conducted mechanically and
in a predetermined manner. Attention of this Court has been invited to the
notice dated 26.07.2021 wherein the date of appearance was mentioned as
02.08.2021, whereas no proceedings are reflected on the said date in the
order sheet. It is further pointed out that although the next date was allegedly
fixed as 05.08.2021, no proceedings were conducted on that date and the
matter was directly taken up on 18.08.2021. Such inconsistencies in the
official record create serious doubt regarding the genuineness and fairness of
the proceedings undertaken by the authority.
Learned counsel further submits that even otherwise the provisions of
the Madhya Pradesh Gram Panchayat (Registration of Colonizers Terms and
Conditions) Rules, 1999 are not applicable to the facts of the present case, as
Rule 2(b) of the said Rules defines a “Colonizer” as a person intending to
develop residential or non-residential plots over a minimum area of 5,000
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square meters. In the present case, as per the respondents’ own allegations,

plotting is said to have been carried out only over an area admeasuring 0.10
hectare, i.e., 1,000 square meters, whereas the remaining area admeasuring
0.67 hectare is admittedly lying open and undeveloped. Therefore, the
alleged activity does not satisfy the statutory requirement prescribed under
the Rules of 1999 and the petitioner does not fall within the definition of
“Colonizer”.
It is further contended that the competent authority completely failed
to consider this material aspect while invoking the provisions of the Rules of
1999 against the petitioner. Once the petitioner does not fall within the ambit
of the definition of “Colonizer”, the entire proceedings initiated under the
said Rules become without authority of law and the impugned order passed
pursuant thereto deserves to be set aside.
Learned counsel while placing reliance upon Section 61-D of the
Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993
further submits that the provision contemplates punishment in cases where
there is contravention of Section 172 of the Madhya Pradesh Land Revenue
Code, 1959 and the Rules framed thereunder. However, Section 172 of the
Madhya Pradesh Land Revenue Code, which dealt with diversion of land,
already stands deleted by virtue of M.P. Act No. 23 of 2018 with effect from
25.09.2018. Therefore, the very foundation on which the proceedings were
initiated and punishment imposed no longer survives in the eyes of law.
It is further argued that the respondent authority has also placed
reliance upon the Madhya Pradesh Gram Panchayat (Development of
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Colonies) Rules, 1999, though the said Rules themselves stood

repealed/deleted with effect from the year 2014. Thus, both the statutory
provisions which formed the basis of the impugned action, namely Section
172 of the M.P. Land Revenue Code and the Rules of 1999, were not in
existence on the date of passing of the impugned order. Despite
repeal/deletion of the aforesaid provisions, no corresponding amendment has
been carried out in Section 61-D of the Madhya Pradesh Panchayat Raj
Avam Gram Swaraj Adhiniyam, 1993 and therefore the respondent authority
acted wholly without jurisdiction in proceeding against the petitioner under
non-existent provisions of law.
It is also submitted that the allegations regarding illegal colony
development are baseless and unsupported by cogent evidence. The land in
question is situated within the village area and there was no commercial
development undertaken by the petitioner. Merely because white lime
markings were found over a small portion of the land, the respondents could
not have presumed that the petitioner was carrying out colony development
activities so as to attract penal consequences under the statutory provisions.
Learned counsel further submits that even assuming, though not
admitting, that there was any violation relating to diversion of land use, the
statutory scheme itself provides for imposition of penalty or fine. However,
without considering the scope and applicability of the relevant provisions,
the respondent authority mechanically directed registration of FIR against the
petitioner. Such drastic action has been taken without any legal basis and in
excess of the jurisdiction vested in the authority.
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It is therefore submitted that the impugned order suffers from non-

application of mind, procedural impropriety, violation of statutory provisions
and breach of principles of natural justice. The order having been passed
under repealed and non-existent provisions of law, and without affording
proper opportunity of hearing to the petitioner, is patently unsustainable in
law and deserves to be quashed by this Hon’ble Court in exercise of powers
under Article 226 of the Constitution of India. On the strength of the above
arguments, it was submitted that the impugned order Annexure P/1 is perse
illegal and deserves to be set aside.
Per contra, learned Govt. Advocate for the State opposed the petition
and supported the impugned order dated 23.06.2022 passed by the Sub
Divisional Officer, Shivpuri. It is submitted that the proceedings were
initiated on the basis of reports submitted by the Patwari and Tehsildar,
Shivpuri, wherein it was specifically found that the petitioner had undertaken
plotting activity over land bearing Survey No. 814 admeasuring 0.77 hectare
by demarcating plots and developing kutcha roads for sale of plots without
obtaining any permission from the competent authority. It is further
submitted that the petitioner had neither obtained diversion of land for non-
agricultural purposes nor secured any approval, colonizer license or layout
sanction from the concerned authorities. The statements of the Patwari and
Secretary of Gram Panchayat, Rataur, clearly established that unauthorized
colony development activities were being carried out by the petitioner
without providing basic amenities such as roads, drainage, electricity and
water supply. Learned counsel further submits that notices were duly issued
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to the petitioner, however, he deliberately avoided participation in the

proceedings and refused to accept the notices, and therefore, the competent
authority rightly proceeded ex parte and passed the impugned order after
considering the material available on record.
Learned counsel further submits that merely because the petitioner
disputes service of notice or raises technical objections regarding
applicability of statutory provisions, the same would not invalidate the
proceedings when the material on record clearly demonstrates unauthorized
plotting and development activity. It is further argued that the competent
authority acted within its jurisdiction to prevent illegal colonization and
unauthorized use of agricultural land. The petitioner cannot escape liability
merely on the ground that only a part of the land was developed, as the
substance of the activity undertaken by him clearly revealed an intention to
develop and sell plots in violation of law. It is further contended that disputed
questions of fact relating to service of notice and extent of development
cannot be adjudicated in exercise of writ jurisdiction under Article 226 of the
Constitution of India. The impugned order having been passed after due
inquiry and upon consideration of the available evidence does not suffer
from any illegality, perversity or jurisdictional error warranting interference
by this Court, and therefore, the writ petition deserves to be dismissed.
Having heard learned counsel for the parties at length and upon
perusal of the record, this Court finds that the foundation of the impugned
order rests upon the allegation that the petitioner had undertaken illegal
colony development in contravention of Section 61-D of the Madhya
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Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 read with

Section 172 of the Madhya Pradesh Land Revenue Code, 1959 and the
provisions of the Madhya Pradesh Gram Panchayat (Registration of
Colonizers Terms and Conditions) Rules, 1999. However, this Court finds
substantial force in the submissions advanced on behalf of the petitioner that
Section 172 of the Madhya Pradesh Land Revenue Code, 1959, which dealt
with diversion of land, already stood deleted by M.P. Act No. 23 of 2018
with effect from 25.09.2018. Likewise, the Madhya Pradesh Gram Panchayat
(Development/Registration of Colonizers) Rules, 1999 had also ceased to
operate after their repeal/deletion. Thus, the very statutory provisions which
formed the basis of initiation of proceedings against the petitioner were not
in existence on the date when the impugned order came to be passed.
In the considered opinion of this Court, once the substantive
provisions under which action has been initiated are no longer in force, the
authority could not have exercised jurisdiction on the basis of such repealed
or non-existent provisions. It is a settled principle of law that penal
consequences cannot be imposed unless the authority derives clear
jurisdiction from an existing statutory provision. In the present case, despite
the repeal/deletion of the aforesaid provisions, no corresponding amendment
appears to have been incorporated in Section 61-D of the Adhiniyam of
1993 so as to sustain the action undertaken by the respondent authorities.
Therefore, the impugned order suffers from inherent lack of jurisdiction.
This Court further finds that though the respondents have sought to
justify the ex parte proceedings on the ground that the petitioner refused to
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accept the show cause notice, however, except for a bald recital in the order

sheet, there is no material available on record to substantiate such allegation.
No report of the process server, no endorsement regarding refusal and no
independent evidence has been placed on record to establish that any genuine
effort was made to serve notice upon the petitioner. On the contrary, the
record reveals several inconsistencies in the proceedings. The notice dated
26.07.2021 mentioned the date of appearance as 02.08.2021, whereas no
proceedings were conducted on the said date. Similarly, although the next
date was allegedly fixed for 05.08.2021, no proceedings are reflected for that
date and the matter appears to have been abruptly taken up on 18.08.2021.
Such discrepancies create serious doubt regarding the fairness and
genuineness of the proceedings undertaken by the authority.
The direction issued by the respondent authority for registration of FIR
against the petitioner also appears to have been passed in a routine and
mechanical manner without examining whether the statutory ingredients
necessary for invoking penal action were satisfied. Administrative and quasi-
judicial authorities exercising statutory powers are expected to act with due
care, fairness and application of mind, particularly when their orders entail
serious civil and penal consequences. The impugned order, however, reflects
complete non-application of mind and mechanical reproduction of
allegations contained in the reports submitted by subordinate officials.
In view of the aforesaid discussion, this Court is of the considered
opinion that the impugned order dated 23.06.2022 passed by the Sub
Divisional Officer, Shivpuri, is unsustainable in law being violative of
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principles of natural justice, founded upon non-existent/repealed statutory

provisions and passed without proper jurisdiction and application of mind.
Consequently, the writ petition deserves to be and is hereby allowed.
Accordingly, the impugned order dated 23.06.2022 (Annexure P/1) is
hereby quashed. Consequential actions, including the direction for
registration of FIR against the petitioner pursuant to the impugned order,
shall also stand quashed.
However, looking to the nature of allegations levelled against the
petitioner, the respondent authorities shall be at liberty to initiate appropriate
proceedings afresh against the petitioner, strictly in accordance with law,
after affording proper opportunity of hearing and due opportunity to place his
defence.
With the aforesaid observations, the present writ petition stands
allowed and disposed of. No order as to costs.
(MILIND RAMESH PHADKE)
JUDGE
pwn*

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Signed by: PAWAN KUMAR
Signing time: 5/8/2026
10:43:26 AM