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Judgment
R.J. Bhave, J.—The petitioner applied u/s 172 of the Madhya Pradesh Land Revenue Code, 1959, for permission to divert certain agricultural lands situate in villages Hathi-Kher and Khajoori-Khurd at a distance of about 10 miles from Bhopal. The petitioner proposed to develop the land into a modern residential colony. It is alleged that the Sub-Divisional Officer, by an order dated 16th June 1962, granted the necessary permission but referred the case to the Collector, Sehore, for fixation of a premium to be paid by the petitioner as a result of diversion of the land. The Collector, by his order dated 4th January 1963, fixed the premium at Re. 500 per acre. By this petition under Article 226 of the Constitution the petitioner seeks a writ of certiorari for quashing the said order passed by the Collector, Sehore. The petitioner also prays for quashing the appellate orders passed by the respondents 1 and 2.
The only question that arises for our consideration is as to whether the Collector had jurisdiction to impose premium consequent on diversion. That depends on the interpretation of section 59 and rule 14 framed there under. The relevant provisions are:
"S.59 (1)..........................
(2)..........................
(3)..........................
(4)..........................
(5) Where land for use for any one purpose is diverted to any other purpose, and land revenue is assessed thereon under the provisions of this section, the Sub-Divisional Officer shall also have power to impose a premium on the diversion in accordance with rules made under this Code:
Provided that no premium shall be imposed for the diversion of any land for charitable purposes".
"Rule 14. (1) For the purpose of the levy of premium on agricultural land other than the land specified in the proviso to sub-section (5) of section 59 of the Code diverted to non-agricultural purposes, towns and villages in the State of Madhya Pradesh shall be divided into the following classes:-
Class I. - Municipalities and towns with a population of 10.000 or more.
Class II.- Villages with a population of 5,000 or more but leas than 10,000.
Class III.-Villages with a population of 2,000 or more, but less than 5,000.
Class IV.-Villages with a population of less than 2,000:
Provided that with the sanction of the State Government, the Collector may include any particular village in higher or lower class than that prescribed in this rule.
Explanation.-When the abadis of two or more villages adjoin, the population shall be taken as the population of the combined villages.
(2) When the land held for purposes of agriculture is diverted with permission to any non-agricultural purpose, premium shall be imposed as follows:
In place of class I-Rs. 500 per acre.
In place of class II- Rs. 300 per acre.
In place of class III-Rs. 150 per acre.
In place of place IV-Nil,
(3) The Collector may for reasons to be recorded in writing in any special case require-
(a) the payment of premium not exceeding the rate prescribed for municipalities and towns of class I in any village or towns of any other class, or
(b) with the sanction of the State Government the premium in excess of the maximum prescribed for municipalities and towns of Class I".
Clause (5) of section 59 was amended by Act No. 24 of 1961. By this amendment the words "Sub-Divisional Officer" were substituted for "Collector". After the amendment of clause (5) the appropriate authority to impose the premium is the Sub. Divisional Officer and not the Collector. Rule 14 was framed before the amendment of clause (5). Naturally, sub-rule (3) of rule 14 prescribes Collector as the authority to impose the premium at a higher rate under special circumstances. On amendment of clause (5) of section 59 it appears that consequent amendment in rule 14 was not effected with the result that the Collector cannot exercise the authority of imposing the premium at a higher rate as that authority is now vested in the Sub-Divisional Officer. The order in question was passed by the Collector after the amendment of clause (5) of section 69 and as such the order passed thereunder cannot be sustained.
Learned Government Advocate appearing for the State urged before us that the rules are framed by the State Government in exercise of powers conferred u/s 258 of the M. P. Land Revenue Code, 1959. u/s 258(4) the sales are required to be placed on the table of the Legislative Assembly for a specified period and the Assembly is authorised to modify the rules, if necessary. Once that is done, the rules become part of the main statute and the statute and the rules should be read together; and unless there is conflict between the main enactment and the rules, effect should be given to the main enactment and the rules as well. The contention is that clause (5) of section 59 does not prescribe the quantum of the premium that is to be fixed; that is left to rule-making authority. Sub-rule (1) of rule 14 divides the towns and villages into four categories. Sub-rule (2) then prescribes the rate of premium that should be charged with reference to the four classes. Thai is the ordinary mode of imposing the premium and the Sub-Divisional Officer may impose the premium accordingly. The purpose of sub-rule (3) is to prescribe a higher rate of premium under special circumstances and when that occasion arises, the rule prescribes a special authority, namely, the Collector, who alone can impose the premium at a higher rate. It is, therefore, submitted that there is no conflict between clause (5) of section 59 and sub-rule (3) of rule 14. It is submitted that though the rules framed under a statute cannot oar tail the field of operation of the main enactment, nor can any rights conferred under the statute be taken away under the rules, there is nothing wrong in adding something to the main enactment in exercise of rule-making authority. It is, therefore, submitted that sub-rule (3) of rule 14 can be read an additional clause u/s 59. On these submissions it is urged that there is no conflict between clause (5) of section 69 and sub-rule (3) of rule 14 and that the imposition of the premium by the Collector is not open to any challenge.
We find it difficult to accept this contention. The only authority prescribed under clause (5) of section 59 is the Sub-Divisional Officer; that officer alone can impose the premium. In case the Sub-Divisional Officer thinks that in any particular case a higher rate of premium should be imposed, he may resort to sub-rule (3) of rule 14 and may refer the matter for the decision of the Collector. But here, again, the imposition must be by the Sub-Divisional Officer and by no other authority. On the question whether the Sub-Divisional Officer would be right in making a reference to the Collector or not, we do not propose to give any final opinion. The order, as it stands, cannot be sustained, as it has been passed by an authority not empowered under the M. P. Land Revenue Code.
For these reasons stated above, the petition is allowed. The order of the Collector, dated 4th January 1963, is quashed. For the same reasons, the appellate orders of the respondents 1 and 2 are also quashed. The respondents shall pay the costs of the petitioner. Hearing fee Rs. 100. The security amount shall be refunded to the petitioner.