Sadhna Education And Research vs The State Of Madhya Pradesh & Ors.

The present petition has been filed under Article 226/227 of the Constitution of India seeking the following reliefs :-

It is the case of the petitioner that the petitioner, which is a company registered under the Companies Act with an object to deliver better research and education, moved an application on 29.4.2015 under section 23-A(1) of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973, (hereinafter referred to as 'the 1973 Act) for diversion of a pool of land bearing separate Khasra Nos. (16 in total), having total area ad measuring 11.670 hectares situated at village Tewar, H.C. No.18, R.N.M. Jabalpur, for change of land use from agriculture to public/semi public (health) usage. The respondent no.4 vide letter dated 15.9.2015, annexure P/4, had granted permission for diversion of land from agricultural use to public/semi public (health). In furtherance of the same, the respondent no.4 vide letter dated 11.3.2016, annexure P/6, informed respondent no.2 that in absence of any opposition and clarification against the proceedings of diversion of land of the petitioner and in view of the Collector guidelines for the year 2015-16, the levy to be imposed on diversion of land as proposed by the respondent no.5 was calculated as Rs.2,10,06,000/-. Thereafter, vide letter dated 21.4.2016, annexure P/7, the respondent no.2 directed the respondent no.4 to calculate the levy afresh in view of the prevalent rate of 2016-17.

It is submitted by learned counsel for the petitioner that post revision of levy rate for the year 2016-17, the respondents in utmost unjust, arbitrary and illegal manner imposed different levy rates. It is submitted that rule 15(13)(b) of M.P. Nagar Tatha Gram Nivesh Niyam, 2012, provides that if use of land is modified to residential, commercial/mixed or public and semi public then market value of the land shall be calculated by multiplying the total area of land with value of floor area ratio factor with prevailing Collector guideline rates. It is further provided that in case guideline rates for developed residential plots are not available for the area in which the land in question is located, then guideline rate of the "nearest residential area shall be taken". It is submitted that in view of clear language of rule 15(13)(b), the market rate of land ought to have been decided by collector guideline rate for village Tewar where the land of the petitioner is situated and if the collector guideline rate for the said area does not exists, then in view of rule 15(13)(b), the collector guideline rate as applicable to nearest residential area shall be taken, which in the present case is Chaitanya Narmada View Colony falling at a distance of 2.84 kms. from the land of the petitioner having market value @ Rs.3200 sqmt. only. However, the respondent no.2 by adopting a wholly incorrect, and wrong interpretation of rule 15(13)(b) of the 2012 Rules held that nearest residential area to village Tewar is village Kungwa, Jasuja City, which is situated at a distance of 3.20 kms. having market rate of land at Rs.11,000/- sqmt. It is further submitted that the petitioner vide letter dated 5.5.2016, annexure P/9, raised objections over the said calculation of rate of diversion fees as per the market rate of land at Jasuja city. It is submitted that the respondent no.5 vide letter dated 27.6.2016, annexure P/10, has observed that Chaitanya Narmada View Colony falls within Bhedaghat Development Plan while Jasuja city falls under Jabalpur Development Plan and as the land of the petitioner falls under Jabalpur Development Plan, it would be appropriate to impose collector guidelines rate which are applicable to Jasuja city. It is further submitted that the petitioner again made a detailed representation dated 1.7.2016, annexure P/11, to the respondent no.2 broadly explaining the application of rule 15(13)

of the Rules in view of the given set of facts and also provided web generated copy of Google maps to show the actual difference in distance of both Chaitanya Narmada view colony and Jasuja city from the land of the petitioner. However, the respondent no.4 vide letter dated 26.9.2016, annexure P/12, approved and imposed the collector guidelines rate as was applicable upon Jasuja city under Jabalpur Development Plan and thereby directed the petitioner to deposit levy of Rs.3,85,11,000/- and rejected the objections/proposal made by the petitioner vide letter dated 28.11.2016, annexure P/13. In consequence thereof, the respondent no.2 vide letter dated 8.2.2017, annexure P/14, directed the petitioner to deposit a levy of Rs.3,85,11,000/- against the diversion proceedings of the land, which is unjustified, irrational, arbitrary and contrary to spirit of rule 15(13)(b) of the Rules.

Per contra, learned Govt. Advocate has filed reply to the petition and contended that village Tewar is a part of Jabalpur Development Plan, 2021 as notified under section 19(4) of the 1973 Act. After notification issued under section 13 of the Act, constituting Jabalpur Planning Area and its limits, objections were invited in terms of Section 15(1) for the purpose of, finalizing the maps to freeze the land use. Thereafter, the Draft Development Plan as required U/s 18 was published in the year 2006 and thereafter the final publication of Development Plan Jabalpur-2021 was notified in terms of Section 19(4) in the year 2008. It is further submitted that developed Plan of a town duly drawn and notified U/s 19(4) bears the statutory force and the land use prescribed therein is not permitted to be changed, except as provided in the Act itself. It is submitted that the area which is being referred to by the petitioner for the purpose of computation of charges for the change of land use i.e., Chetanya Narmada View Colony, is not the part of Jabalpur Development Plan but is the part of Bhedaghat Planning Area. The petitioner persuaded its claim for applying the rates applicable in the land located within the Bhedaghat Planning Area with the plea of ‘aerial distance’, whereas, such a proposition was not relevant for the legal position projected herein above in the present case. The nearest area in respect of which the change in land use was already permitted, was found to be Jasuja City and accordingly, the Collector’s Guidelines of year 2016-17 for that area got attracted. The State Government on consideration of such factual and statutory aspects has rightly accepted the proposal sent on behalf of Directorate of Town & Country Planning vide letter dated 26/9/2016 and has rejected the representation of the petitioner vide letter dated 28/11 /2016 (Annexure P/13). The State Government has also rightly approved the calculation of rates in terms of Rule 15(13)(a) and the petitioner was directed to deposit the charges accordingly vide order dated 8/2/2017 (Annexure P/14).

Heard learned counsel for the parties and perused the record.

From perusal of record, it is evident that the entire controversy involved in the present petition pertains to rate of levy imposed by the respondent/State for change of land use of the petitioner land, for which Collector guidelines are not available. Admittedly, the petitioner's land is situated at village Tewar, H.C.No.18, R.N.M. Jabalpur ad measuring 11.670 hectares. As per the contention of the petitioner, by taking aerial distance, the nearest residential area from the land of the petitioner is Chaitanya Narmada View Colony which is falling at a distance of 2.84 kms. The petitioner has filed photocopy of location of land in question from google earth in order to demonstrate the aerial distance of land in question from Chaitanya Narmada View Colony as well as the Jasuja City as Annexure IA/1. However, the contention of the respondents is that the Jasuja city is the nearest residential area from the land of the petitioner, which is situated at a distance of 3.2 kms.

The State Government in exercise of Section 85(1) of the 1973 Act has legislated M.P. Nagar Tatha Gram Nivesh Niyam, 2012 (hereinafter referred to as 'the 2012 Rules'), Rule 15 thereof corresponds to Section 23-A and contains enabling provisions. Clause (b) of sub rule (13) of Rule 15 of the 2012 Rules has been deleted by Notification No. F-3-44-2017-XVIII-5 dated 07.09.2017. However, the said clause was available at the time when case of the petitioner for change of land use was considered and impugned order was passed. Hence, Clause (b) of sub rule (13) of rule 15 of the 2012 Rules would be applicable in the facts and circumstances of the present case. Clause (b) of sub rule (13) of rule 15 of the 2012 Rules reads as under :-

Thus, sub rule 13(a) of rule 15 of the Rules of 2012 provides that in case the modified land use is such as mentioned in column (2) of the table, the applicant shall have to pay a levy calculated as mentioned in corresponding column (3) and (4) or (5) as the case may be, therein. As per clause (b) of sub rule 13 of rule 15 of the 2012 Rules, where the guideline rates for developed residential plots are not available for the area in which the land in question is located, the guidelines rate of the nearest residential area shall be considered. It further provides that nearest residential area shall be such as may be decided by the Director. Thus, location for which the guideline rates for developed plots are not available, the decision of the Director with regard to the nearest residential area shall be final.

Clause (b) of sub rule (13) of rule 15 of the 2012 Rules clearly provides that where the guideline rates for developed residential plots are not available for the area in which the land in question is located, the guideline rates of the nearest residential area shall be considered. In the present case, admittedly the collector guidelines for the location in which land of the petitioner is situated is not available. Thus, the question arose as to which residential area is nearest to the land of the petitioner. Although the petitioner has pointed out that Chaitanya Narmada View Colony is located at a aerial distance of 2.84 kms. from the land of the petitioner whereas Jasuja city is situated at a distance of 3.2 kms; but, apparently, the land of the petitioner is situated in village Chowkital, which is part of Bhedaghat Planning Area, which is evident from the notification dated 13.3.2002, annexure R/4 and notification dated 3.9.2016, annexure R/5. Thus, as the land of the petitioner is situated within Jabalpur Master Plan, the rates for change of land use are to be determined in accordance with the Collector guidelines applicable in the nearest residential developed land within the said plan, which in the instant case is Jasuja City and as per clause (b) the decision of the Director shall be final for determination of nearest residential area. Thus, the respondent Authorities have rightly found that the levy of rates for change of land use for the land belonging to the petitioner would be applicable as per the nearest residential developed area, i.e. Jasuja city and has accordingly levy the rates for diversion of the land.

This court does not find any irregularity, illegality or infirmity in the impugned order passed by the respondent authorities in the matter of determination of levy rates for the change of land use of the petitioner's land.

Accordingly, the petition sans merit and is hereby dismissed.