Preetam Navlani vs Shri Shaswat Sharma & Ors

The present writ petition has been filed against declaration that respondent No.1 is not the competent authority under Sections 3 and 17 of the M.P.

Lokparisar (Bedakhli) Adhiniyam, 1974 (in short ... “the Adhiniyamâ€).. Another declaration has been sought that the post of Competent

Authority of the Central Kotwali Area is vacant. Directions have been sought that respondent No.1 must not exercise powers of competent authority

under the Adhiniyam.

The writ petitioner has prayed for the following reliefs :-

d- izR;FkhZ Øekad&1 e/;izns'k yksd ifjlj csn[kyh vf/kfu;e 1974 dh /kkjk 3@17 ds varxZr l{ke izkf/kdkjh ugh gksus dh ?kks""k.kk dk lekns'k ikfjr djus]

rFkk

[k- lsUVªy dksrokyh {ks= bUnkSj dk e/;izns'k yksd ifjlj csn[kyh vf/kfu;e 1974 dh /kkjk 3@17 ds varxZr l{ke izkf/kdkjh dk in fjDr gksus dh ?kks""k.kk

dk lekns'k ikfjr djus] vkSj

x- izR;FkhZ Øekad&1 dks e/;izns'k yksd ifjlj csn[kyh vf/kfu;e 1+974 esa iznRr l{ke izkf/kdkjh dh 'kfDr;ksa dk mi;ksx ugha djus ds lekns'k ikfjr djus

,oa

?k- vU; U;k;ksfpr lgk;rk tks ekuuh; mPp U;k;ky; izkFkhZ ds fgr esa mfpr le>s] ikfjr djus dh d`ik djsaA

The sole contention of the learned counsel for the petitioner is that respondent No.1 is not a competent authority under Section 3 of the

Adhiniyam, therefore, notice issued by the respondent No.1 is without jurisdiction.

As per Section - 17 of the Adhiniyam the State Government can direct that any power exercisable by it be exercised by an Officer of the State

Government. Accordingly, Gazette Notification dated 5/02/1975 was published and it was declared that the powers exercisable by the State

Government shall be exercisable by all Collectors within their respective jurisdiction. Relevant part of the notification is reproduced below for

ready reference :-

“In exercise of the powers conferred by Section 17 of the Madhya Pradesh Lok Parisar (Bedakhli) Adhiniyam, 1974 (No.46 of 1974), the State

Government hereby directs that the powers excercisable by it under Section 3 of the said Adhiniyam shall also be exercisable by all Collectors with

their respective jurisdictions.â€​

As per Section (3) of the Adhiniyam, the State of Madhya Pradesh by notification may appoint a person not below the rank of Assistant Collector

or Deputy Collector as Competent Authority for the purpose of the Act. Accordingly, Gazette Notification dated 17/07/1981(published on 24.07.1981)

was published whereby the Collector exercising the powers conferred vide the Notification dated 5/02/1975 ordered that any Deputy/Assistant

Collector appointed as Rent Control Authority shall also be the Competent Authority under the M.P. Lok Parisar (Bedakhali) Adhiniyam, 1974.

Section 3 of the Adhiniyam provides for appointment of competent authority. For the sake of convenience, Section 3 0f the said Adhiniyam , 1974 is

reproduced as under :-

Appointment of competent authority. â€"The State Government may, by notification in the Official Gazette,-

(a) appoint such person being an officer not below therank of Assistant Collector or Deputy Collector as competent authority for the purposes of this

Act; and]

(b) define the local limits within which, or the categoriesof public premises in respect of which, the competent authority shall exercise the powers

conferred, and perform the duties imposed on competent authority by or under this Act.

As per Section 3 of the Adhiniyam, the State Government is empowered to appoint any person not below the rank of Assistant Collector orÂ

Deputy Collector as Competent Authority for the purpose of the Adhiniyam.

Section 17 of the Adhiniyam provides delegation of power to the State Government, meaning thereby the State Government by notification in the

Official  Gazette, direct any power exercisable by it under the Act shall, subject to such conditions, if any, as may be specified in the notification

be exercisable also by or under this Adhiniyam to an officer of the State Government. Section 17 of the Adhiniyam reads as under :-

Delegation of powers. - The State Government may, by notification in the Official Gazette, direct that any power exercisable by it under this Act

shall subject to such conditions, if any, as may be specified in the notification, be exercisable also by an officer of the State Government.

On 3/02/1975 the State Government had delegated his power as per Section 17 of the Adhiniyam and authorised the District Collector to appoint

the competent authority.

On 27/07/1981, the District collector had appointed a Deputy Collector being as a rent Controlling Authority. In notification dated 3/02/1975, it

has also been notified that the person who is appointed as a rent Controlling Authority shall be a competent authority under Section 3 of M.P. Lok

Parisar (Bedakhli) Adhiniyam, 1974.On 26/08/2016, the respondent No.3 has issued a distribution order. On 18/07/2017 by Annexure-R/4 the

respondent No.3 issued an order for appointment of rent Controlling Authority.

On 2/02/2018, the respondent No.1 transferred from Khandwa to Indore and has joined as deputy Collector. On the same day he has given the

charge of Sub Divisional Officer of Central Kotwali. By virtue of appointment as a Rent Controlling Authority, the respondent no.1 has also been

handed over the charge under section 3 of the Adhiniyam. On 17/03/2018 again distribution order has been issued and the respondent No.1 has again

appointed as a competent authority under Section 3 of the Adhiniyam.

The appointment of respondent No.1 is per-designeta and not per-persona, therefore, there is no jurisdictional error for appointment of respondent

no.1 as a competent authority of the Adhiniyam.

Learned counsel for the petitioner has drawn our attention to the Section 3 of the Adhiniyam as well as Annexure-R/1, R/2 and R/3 so also the

law laid down in the case of Mancharlal v. Smt. Ratankumar[1987 (2) M.P.W.N. 42, Karan Singh & Ors. v. State of M.P. & Ors.[2008 (4) M.P.L.J.

338] and Para 10 of judgment in the case of Saurabh Kumar Jain vs. State of M.P. & Others [2013 (2) MPLJ 564] and submitted that for

appointment of Rent Controlling Authority approval of State Government is must. The State Government has not followed the procedure prescribed

under the Adhiniyam for appointment of respondent no.1 as competent authority and prayed for quashment of appointment by issuing writ ofÂ

quo warranto. 13. Per Contra, Shri Vivek Patwa and Shri Rishi Tiwari, learned counsel for the respondent/State as well as learned counsel for the

Municipal Corporation, Indore has submitted that in the matter of Indu Gupta vs. State of M.P. [1997(2) MPLJ 146] the notification of of 1981

vide Annexure â€" R/2 was not taken into consideration, therefore, the ratio laid down in the matter of Indu Gupta(supra) are not applicable. He

further submitted that the respondent No.1 is duly empowered to become as a competent authority under the M.P. Lok Parisar (Bedakhli) Adhiniyam,

1974.

The notification dated 5/02/1975 which was published on 19/09/1975 has already been dealt with and decided by this Court in the matter of

Karan Singh & Ors.(supra) . Para 8 to 10 are relevant which reads as under :-

The argument that respondent No.5 was not validly appointed as competent authority requires examination of sections 17 and 3 of the Act which

reads as under :-

“17. Delegation of powers. - The State Government may, by notification in the Official Gazette, direct that any power exercisable by it under this

Act shall subject to such conditions, if any, as may be specified in the notification, be exercisable also by an officer of the State Government.â€​

“3. Appointment of competent authority. â€"The State Government may, by notification in the Official Gazette,-

(a) appoint such person being an officer not below therank of Assistant Collector or Deputy Collector as competent authority for the purposes of this

Act; and]

(b) define the local limits within which, or thecategories of public premises in respect of which, the competent authority shall exercise the powers

conferred, and perform the duties imposed on competent authority by or under this Act.â€​

Section 17 of the Act authorizes the State Government may to delegate its powers whereby theState Government may, by notification in the Official

Gazette, direct that any power exercisable by it under this Act shall, subject to such conditions, if any, as may be specified in the notification, be

exercisable also by an officer of the State Government. According to Section 3, the State Government, by a notification in the Official Gazette, may

appoint certain persons, not below the rank of Assistant Collector or Deputy Collector, as competent authority for the purposes of this Act. Thus,

the powers, which vested in the State Government under Section 3 if delegated to the Collectors by a notification in the Official Gazette, can also be

exercised by the Collectors within their respective jurisdiction.

The State Government, in exercise of the powers conferred by Section 17 of the Act, issued a notification dated 5-2-1975 which was published in

the Official Gazette on 13-2-1976. The notification is as under :-

“ Home Departmentâ€Bhopal, dated 5th February, 1975 No. F. 13-1-75-II-A(3)- In exercise of the powers conferred by Section 17 of the Madhya

pradesh Lok Parisar (Bedakhali) Adhiniyam, 1974(No.46 of 1974), the State Government hereby directs that “the powers excercisable by it under

Section 3 of the said Adhiniyam shall also be exercisable by all Collectors with their respective jurisdictions.â€​

Pursuant to the delegation of powers Collector, Chhatarpur, by a notification dated 26-8-1975 which was published in the Official Gazette on 19-9-

1975, appointed all Sub-Divisional Officers, including respondent No.5, as competent authority of their respective tahsils.

it is to be noted that although the notification under Section 17 was issued on 5-2-1975 it was published in the Official Gazette on 16-41976

whereas the notification dated 26-8-1975 issued by the Collector appointing Sub-Divisional Officers was published in the Official Gazette on 19-9-

1975. The learned Senior Counsel for petitioners has, therefore, argued that delegation of powers by the Stat Government under Section 17 of the

Act became effective from the date 16-4-1976 when the notification was published in the Official Gazette and the Collector, Chhatarpur, had no

authority to appoint Sub-Divisional Officers as competent authority under section 3 before that date. The learned counsel,in support of his argument

that when the requirement of the notification is publication in Official gazette the date of the notification is the date of its publication, has relied upon

the decisions of Supreme Court in Municipal Board, Pushkar v. State Transport Authority, Rajasthan, AIR 1965 SC 458; Union of India v. Ganesh

Das Bhojraj, (2009) 9 SCC 461; AIR 2000 SC 1102 and Subhash Ramkumar Bind @ Vakil v. State of Maharashtra, (2003) 1 SCC 506 : AIR 2003

SC 269. From these cases it can be taken as well settle that when an order is to be mald by notification in the Official Gazette, the order comes into

force and becomes operative from the date of issuance of notification in the Official Gazette. But there was no bar for taking action in anticipation

that the order of delegation made by the State Government in favour of Collectors under Section 17 of the Act would be published in the Official

Gazette and become operative. The Collector, Chhatarpur, issued the order dated 26-8-1975 appointing all Sub-Divisional Officers, including

respondent No.5, as competent authority of their respective tahsils and sent it for publication which was published in the Official Gazette on 19-9-

1975. These actions taken by the Collector were in anticipation of the order of delegation issued under section 17 by the State Government becoming

operative and were not immediately effective but they became effective when the order of the State Government delegating the powers to Collectors

was published in the Official Gazette on 16-4-1976. The order of the Collector, Chhatarpur, appointing all SubDivisional Officers, including

respondent No.5, as competent authority, thus, also became operative from 16-4-1976. respondent No.5 was, therefore, a competent authority

within the meaning of section 3 when he passed the order dated 10-2-2000.

Learned counsel has submitted that the present writ petition is nothing but an after thought to wriggle out of the provisions of the

Adhiniyam. This is the second round of litigation. Earlier W.P. No.16807/2017 was filed by the petitioner No.1) which was disposed of vide order

dated 11/12/2017 with directions to the respondent Corporation not to dispossess the petitioner without following the due process of law.

In the light of the aforementioned directions the respondent Municipal Corporation has made an application under Section 4 of the M.P. Lok

Parisar (Bedakhli) Adhiniyam, 1974. Presently, the subject market is in dilapidated condition and most of the shops (almost 90%) are lying abandoned.

Valuable land in a prime locality which otherwise can be efficiently utilized for development and betterment of people, is being wasted.

The Indore Smart City Development Ltd. Has undertaken the Kahn River Front Development Project between Krishnapura Bridge to Jawahar

Marg Bridge, wherein the under mentioned works are to be executed :-

(a) Construction of vegetable and fruit market (approx. 368 shops).

(b) Construction of basement parking for 450Â two wheelers and 200 four wheelers.

(c) Demolition of existing circular structure (Jyotiba Phule Vegetable market).

(d) Construction of river side walk-way.

(e) Construction of landscaped park.

(f) Construction of roads, pathway, public toilets, etc.Â

The professional agencies have prepared plans/ designs for the aforementioned work. Notice Inviting Tender was issued on 9/08/2017 and the

lowest bidder was awarded the contract work completion period of which is 18 months. A total 368 shops (132 shops with shutter and 236 open

platform shops ) for fruit and vegetable vendors are proposed to be constructed. Thus, the total number of shops which will be constructed under

redevelopment is much more than the existing shops, which will immensely benefit the vegetable and fruit vendors including the petitioners. Since

proper shops will be allotted the problem of traffic congestion due to road side stalls/canopies will also be resolved.

On due consideration of the aforesaid, we are of the view that there is no violation of any of the provisions of Adhiniyam, 1974. The

appointment of respondent No.1 as the competent authority has been made as per Section 3 of the Adhiniyam.(Preetam Navlani v. Shri Shaswat

Sharma & Ors.)

He is duly empowered to become as a competent authority under the M.P. Lokparisar (Bedakhli) Adhiniyam, 1974. As per Clause â€" 7 of Serial No.

8 of Annexure-R/6, which is at page 27 of the reply filed by the respondent.

For the above mentioned reason, the writ petition filed by the petitioner has no merit and is accordingly dismissed.