Arun Kumar Sood vs State of M.P.

Sujoy Paul, J.—In Writ Petition No. 8399/2011, the petitioner has called in question the legality, validity and propriety of the order dated 24/11/2011 (Annexure-P/1) whereby the Sub Divisional Officer/Competent Authority, Raghogarh, district Ashok Nagar opined that the petitioner has indulged in making illegal construction of colony which runs contrary to the various provisions of M.P. Municipalities Act, 1961 (for short the Act) and M.P. Nagar Palika (Registration of Colonizer, Terms and Condition), Rules 1998. This order is called in question on various grounds. Shri Bharadwaj, learned Sr. Advocate submitted that the order suffers from various infirmities as under:-

(i) The SDO has given a finding on the basis of statements of certain concerned persons but the petitioner was not given permission to cross-examine those persons;

(ii) The petitioner during proceedings before the SDO filed affidavits of some concerned persons stating that they have not made such statements and these affidavits were not considered while passing the final order;

(iii) As per the relevant provisions of the Act and definition of (Colony), it cannot be said that the petitioner''s activity falls within the ambit of "making Colony";

(iv) In addition, by placing reliance on the order passed in MCC No. 8316/12 (Atul Jaggi Vs. State of M.P.), dated 7/11/12, it is urged that aforesaid action or FIR can be registered only as per Section 313 of the Act and therefore, the SDO has no authority.

(v) The petitioner, in fact, owns a hotel and to cater the need of customer in the hotel, he started some construction and therefore his activities cannot be treated as an activity within the definition of "Colony

Per contra, Shri MPS Raghuvanshi, learned Additional Advocate General for the official respondents supported the order. He submits that there are highly disputed questions of fact involved in this matter. Whether or not the petitioner was involved in the activity of constructing illegal colony is highly disputed question of fact, which cannot be gone into writ jurisdiction. He further submits that the competence of the authority which has passed the impugned order is not under challenge. In addition, it is submitted that the power u/s 313 of the Act is a special power and it does not preclude any other person or an officer to lodge an FIR or take action.

No other point is raised by the learned counsel for the parties. I have heard the learned counsel for the parties and perused the impugned order.

The order (Annexure-P/1) dated 24/11/11 shows that the SDO has given a specific finding against the petitioner by taking into account the statements of S/shri Vinod Kumar Chaubey, Nandu Sahriya, Satish Brahamin, Jainarayan Kushwaha and Harinarayan Jatav etc. The petitioner in para 5.5 of the petition pleaded that the statements recorded by the authority stood discarded by the affidavits filed by these persons. Those affidavits are filed as Annexure-P/4. It is further averred in para 5.5 that initially statements were recorded by the Administrative Authority and subsequent were filed before the authority of the same persons. The affidavit of S/shri Satish, Jainarayan, Vinod Kumar Chaubey and Nandu are placed on record. The learned SDO concluded that the statements of Vinod Kumar Chaubey, Satish, Nandu, Harinarayan, Kundanlal and Jainarayan shows that the road was constructed in the aid of constructing an illegal colony. However, it is relevant to note here that in the affidavit of the said persons they have taken "U" turn. They have stated in favour of the petitioner. The impugned order does not show that the petitioner was ever permitted to cross-examine those persons. Thus, it is clear that the decision making process adopted by the SDO is arbitrary and vitiated. If the petitioner had filed his reply and alongwith reply he enclosed affidavits of concerned persons before the SDO, it was the minimum expectation that those affidavit should have been considered and discussed/analysed. In absence thereof, the decision making process cannot be said to be fair. In view of the aforesaid, in the opinion of this court, the impugned order clearly indicates lack of fairness. By way of impugned order, the SDO has exercised almost quasi judicial power. He recorded the statements of the persons and then given his finding on the basis of those statements. In this view of the matter, it was obligatory on his part to discuss the defence of the petitioner and analyze as to why the affidavits filed by concerned persons are trustworthy or not. In absence thereof, the impugned order has become vulnerable. Since the decision making process itself is found to be vitiated, at this stage, I am not inclined to deal with other aspects of the matter. On the basis of the aforesaid analysis, the impugned order dated 24/1/11 is set aside. The matter is remitted back to the SDO to decide it in accordance with law after following the relevant provisions of the Act and Rules. It is expected that the competent authority will deal with the matter and decide it in accordance with law at an early date.

The parties are free to raise their legal points before the authority concerned.

So far as W.P. No. 5855/13 is concerned, the petitioner''s application u/s 171 of the M.P. Land Revenue Code was kept in abeyance on the ground that W.P. No. 8399/11 is pending. Since W.P. No. 8399/11 is decided, the said impediment is no more available and therefore the said authority is free to decide the application preferred u/s 171 of the Code.

Accordingly, the petitions are disposed of in terms of the directions mentioned above.