Sanjay Yadav, J.:— Petitioner, an Advocate by profession, claiming to be a public activist, vide this writ petition under Article 226 of the Constitution, styled as Public Interest Litigation, questions the constitutional and legal validity of Rule 15A of the Madhya Pradesh Nagar Palika (Registration of Coloniser, Terms and Conditions) Rules, 1998 (for brevity “1998 Rules”).
2. That 1998 Rules are framed by the State Government in exercise of the powers conferred by Sections 292-A, 292-B, 292-C and 292-E read with Section 433 of the Madhya Pradesh Municipal Corporation Act, 1956 (for short “1956 Act”) and Sections 339-A, 339-B, 339-C and 339-E of Madhya Pradesh Municipalities Act 1961 (for short “1961 Act”).
3. The issue, as apparent from the pleadings, relates to regularization of illegal colonies.
4. The power to frame Rule regarding management of the land of illegal colonization is drawn from Section 292-E of 1956 Act and Section 339-E of 1961 Act.
5. Precise contention of the petitioner is that though Section 292-E of 1956 Act and 339-E of 1961 Act empower the Commissioner in case of Municipal Corporation and Competent Authority in case of Municipality to take over the management of land of illegal colonization and take steps accordingly as provided therein. But it does not empower the State Government, a delegatee of the State legislature to frame Rule, such as Rule 15A, which aims at curing the illegality in the hands of those who committed the illegality. With that, it is urged, the mischief mongers not only escape the penal clause under Section 292-C of 1956 Act and Section 339-C of 1961 Act; but the same is de hors the object with which Chapter XXIII in 1956 Act and Chapter XII in 1961 Act have been introduced to curb illegal colonization. It is urged that, incorporation of provision like Rule 15A is a colourable exercise of powers and is de hors the statutory provisions.
6. Before we dwell upon the issue raised in the Writ Petition, certain preliminary objections raised by the State and its functionaries are taken up for consideration. The foremost objection is that the challenge is highly belated. It is urged that Rule 15A was first brought in vogue vide Notification 13/18-3/2000, dated 3-7-2000, published in Madhya Pradesh Rajpatra (Asadharan), dated 3/7/2000; wherein, vide Notification No. 61-F-1-30-2011-XVIII-3, dated 03.09.2013, published in Madhya Pradesh Rajpatra (Asadharan), dated 3/9/2013, page 800, vide Notification No. 31-F-1-30-2011-XVIII-3 dated 26.11.2016 published in Madhya Pradesh Rajpatra (Asadharan), dated 26.11.2016 page 944 and vide Notification No. 68-F-1-30-2011-XVIII-3 dated 19.05.2017 published in Madhya Pradesh Rajpatra (Asadharan), dated 19.05.2017, amendments are incorporated. It is urged that it is only when fifth amendment in the year 2017 is effected, the petitioner has awaken and for personal publicity has filed this petition; which, it is urged, deserves to be thrown out on laches and delay. It is also urged that the petition is also liable to be dismissed as the same has been filed without proper research and only on the basis of the newspaper reports. Decisions in “Janata Dal v. H.S Chowdhary [(1992) 4 SCC 305]” and in “Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra [(2007) 14 SCC 281 : AIR 2008 SC 913]” are relied upon to bring home the submissions. The dismissal of the petition is also sought on the ground that the affected persons are not made parties. It is further contended that in furtherance to powers conferred under Rule 15A public notice was issued inviting objections. Since the petitioner did not raise any objection, he has now no locus standi to question the validity. Respondent-Municipal Corporation joins the State in these preliminary objections.
7. The petitioner refutes the contentions raised by the State and supported by Municipal Corporation, Gwalior as preliminary objections.
8. As regard to the contention regarding delay and laches, trite it is that no definite time limit can be provided to challenge the validity of law. For an authority please see “Express Publications (Madurai) Ltd. v. Union of India [2004 (3) SLR 315]”; wherein, it is held:
“23. We may also notice the aspect of long delay in laying challenge to the validity of the impugned provisions. No hard and fast principle can be laid down that under no circumstances delay would be a relevant consideration in judging constitutional validity of a provision. …..”
9. Thus, no time limit can be fixed to challenge the validity of law. The objection that there is a delay in challenging the validity of Rule 15A of 1998 Rules, therefore, fails.
10. As regard to the contention that the petition deserves to be dismissed as it is filed without any research and that the persons who will be affected, in case the provision under challenge is declared invalid, are not made parties, are taken note of and rejected at the outset. If there is an illegality from very inception leading to a provision to be null and void, no right accrues therefrom in favour of those who are conferred benefits vide such provision, because in that event the persons benefited are the partners in illegality, having no legal right including the right of hearing. Trite it is that there can be no vested right in illegality.
11. It must be remembered that in a Public Interest Litigation two things are necessary. Firstly, the problem highlighted therein must have nexus with the public at large by the action or omission by the authority invested with public duty. Secondly, the individual or group raising the grievance, it must be shown, is helpless to get the wrong rectified because of their helplessness or predicament. In the case at hand, evidently, both these preliminary conditions are satisfied. The incorporation of Rule 15A in the 1998 Rules is alleged to be not in public interest and is de hors the substantive provisions which empower the delegatee to frame rules for regulation of colonies to prevent illegal colonization. And, it is beyond the reproach of the petitioner to get the same rectified.
12. In view whereof, the preliminary objections raised on behalf of the respondents are negatived. It is held that the petition is tenable and the petitioner has locus to maintain the same.
13. Now, coming to the merit of the matter.
14. Rule 15A of 1998 Rules which is under challenge is in following terms:
2[“15-A Regularisation of Unauthorised colonies that came into existence up to 3[31st December 2012]-(1) Notwithstanding anything contained in these rules the unauthorised colonies that came into existence up to 4[31 December 2012] on other than government land and such land of the Development Authority which is in its Ownership shall be regularised subject to the following conditions
(i) Such colony shall be deemed to be in the category of unauthorised colony which has been constructed by the colonizer without obtaining the legal permission or no-objection certificate from the department of Town and Country Planning, Urban land ceiling, Land Diversion, Nazul and Municipality. (ii) Unauthorised colonies situated on Development plan roads parks, playgrounds, areas to cultural heritage, river tank or area of drains, green belt or recreation shall not be regularized. (iii) Only such unauthorised colonies shall be regularized where 1[at least 10% houses have been constructed.] Where only the plots are in existence, action for regularisation taken in accordance with Rule 15 of these rules. [(iii-a) In regularizing the Unauthorised colonies, the special planning norms as specified in Appendix-j attached to the Madhya Pradesh Bhoomi Vikas Niyam, 2012 as amended from time to time for low income housing shall be followed. However, in case of non-availability of open land the charges shall be recovered in accordance with the provisions of clause (vi) of this rule.] (iv) Once the competent authority takes up the work of regularisation of any colony in his hand, it shall be deemed that the diversion of land of that colony has been done and its use is in accordance with the Master Plan of the City. The competent authority shall cause to be prepared the estimate and layout for the development work, including for the basic amenities of the illegal colonies on which the competent authority shall organize a meeting and discuss with the inhabitants concerned and the colonizer if available, and after considering their suggestions if any, finalise the estimate and lay out. The amount of expenditure to be incurred for preparing the layout shall be fixed not exceeding ten per cent of the development charges and the same shall be included in the development charges. [(vi) For the development works, the development fees at the rate of Rupees one hundred and fifty per square meter shall be recovered from the owners/occupants of the house/plots of the colony concerned in proportion of the area of house/plot which is in their occupation. If in the layout prepared by the competent authority for the total area of the colony, open land for public amenities as per law, is not available then the competent authority shall estimate the cost of such requisite open land and recover double amount of such estimated cost from the colonizer. Provided that action to regularize the house/plot shall not be effected in case the requisite amount is not recovered from the Colonizer or there is delay in recovery.] [(vii) In case the development fees or the cost of requisite open land, as the case may be, is not deposited by the occupants/colonizer of the house/plot, such amount shall be recovered in accordance with the provisions of the Act for the recovery of municipal claims.] (viii) The competent authority shall deposit the amount of development fees in a separate bank account received from the occupiers of houses/plots. Similarly the amount which is recovered as arrears of land revenue shall also be deposited in the same account. The drawal from such account shall be made only for the expenditure relating to the development works of the concerned colony with the joint signature of the competent authority and the Collector or his subordinate officer authorised by the Collector in this behalf. [The sanction of the Development Works shall be given by the concerned authorities of the municipality within their powers as vested in them.] [(viii-a) If the plot or house holder wants to mortgage his plot or house, as the case may be, for taking loan to pay the development charges, then he may do so. The municipality may assist the colonizer/residents of such colonies in obtaining loan under group financing schemes from financial institutions by mortgaging the respective land/houses to meet the cost of internal development. The Municipality shall proceed in arranging such loan if consent of atleast seventy five percent residents has been received. The cost of internal development shall be recovered from the remaining residents as municipal dues in accordance with the provisions of the Act.]
(viii-b) If the house holders and the plot holders of the unauthorised colony wants to execute the development works by forming any society, the competent authority may permit for the same: Provided that the amount of development fees shall be deposited in the joint account of competent authority and the society and the development works shall be executed subject to the provisions of these rules in the supervision of the competent authority. (ix) The competent authority may allow to make payment of the development fees in instalments. (x) In the case of regularisation of the unauthorised colony the provisions of clause (j) of Rule 2 and clause (v) of Rule 12 shall apply in respect of the External Development Work. (xi) In such unauthorised colony in which the houses have been constructed, the concerned urban body shall after compromise with the house owners regularise such unauthorised construction of the house. The building permission fee and the compounding charges shall be recovered from such house owner according to law. (xii) Where the colonizer after making different layout sold the plots more than one time and there is a dispute of ownership then the settlement of such dispute can only be made in a civil court according to law. Registered sale deed and commutation shall only be treated as the basis of ownership. [(xiii) After finalisation of the estimate and layout by the competent authority, the development work shall be completed within a period of three years, when all the plot holder deposits the development fees, from the date on which last plot holder deposits the development fees. If development work is not completed within the said period, then the concerned body shall hear the extra expenditure to he incurred for the development work. The competent authority shall have the right to take decision as to from which date the development work he started: Provided that the development work shall be executed in such order so that the development work relating to basis services be executed first of all.] [(xiv) When the competent authority has determined the development fees and published the notice in the local newspapers informing that up to certain date the house/plot holder of the colony should deposit the development fees, otherwise after expiry of the period, the competent authority shall take over the management of such house/plot of which the person concerned has failed to deposit the development fees then the competent authority shall be competent to take the management of such house/plot and take action for execution of the development works of the colony in accordance with the procedure as laid down in Rule 15. (xv) In the unauthorised colony when any house or plot has been regularised then such house/plot shall be deemed to have been exempted ipso facto from penal proceeding.] (2) If any unauthorised colony is constructed after [31 December 2012] action to remove the same shall be taken by the competent authority by treating it as the unauthorised construction.”
15. That by amendment vide notification dated 19.05.2017 the following is substituted in Rule 15-A:
“In Rule 15-A,-
(1) for the figure and word “31 December, 2012”, the figures and word “31 December, 2016” shall be substituted.
(2) for the word “unauthorized” wherever it occurs in this rule, the word “illegal” shall be substituted.
(3) for sub-rule (1), the following sub-rule shall be substituted, namely:—
(1) Notwithstanding anything contained in these rules, the illegal colonies that came in to existence up 31 December, 2016 on other than Government land and such land of Development Authority which is in its ownership, shall be registered subject to the following conditions”.
(4) in sub-rule (1),-(a) for clause (iii), the following clause shall be substituted, namely:—
(iii) such illegal colonies where at least 10% houses have been constructed, identifying them, action of regularization shall be taken within 30 days notifying publicly, and management of remaining unsold land shall be done in accordance with rule 15 of these rules.
On the date of publication of these amendments in the Gazette, land(s) of illegal colonies being regularized should be in private ownership as per the revenue department and a copy of notification should be availed to the concerning Revenue Officer/Development Officer/Town and Country Planning Department to give necessary opinion/objections within prescribed time limit, further action of regularization of illegal colonies shall not be obstructed.
(b) in clause (iv), for the words “master plan”, the words “development plan” shall be substituted.
(c) for clause (v), the following clause shall be substituted, namely:—
“(v)(1) After issuance of Notification under clause (iii), the competent authority shall be cause to be prepared the estimate and layout within 30 days for the development work including for the basic amenities of illegal colonies, on which the competent authority shall be invite a meeting within 15 days and discuss with the inhabitants concerned and colonizer providing them an opportunity, after considering their suggestion, if any, finalize the estimate and layout as per rule 7A within 15 days. The amount of expenditure to be incurred for preparing the layout shall be fixed not exceeding 10% of the development charges and the same shall be included in the development charges.
(2) For the purpose of this work, the Departmental ISSR, the Madhya Pradesh Land Development Rules, 2012, Development Plan, standard and rates of the Madhya Pradesh State Electricity Supply Company (MPSESC) and Collector Guide lines rules effective on the date of publication of amendments with upto date shall be recognized.
(3) Amount of property tax, building permission fees and composition fees etc. received from the inhabitants of the illegal colonies for the purpose of regularization shall be utilized in the development works of concerning colonies.
(4) The urban bodies, if necessary may receive the amount from the scheme financed by the Central or State Government under the terms and conditions mentioned in the schemes, development of these notified colonies and issuance or permission of the plot holder shall not be stopped because of incomplete development work and even the regularization work particularly the building permission work shall be executed by organizing the camps in zone/ward levels.
(d) for sub-clause (vi), the following sub-clause shall be substituted, namely:—
“(vi) (1) Public facilities such as water, electricity and sewage shall be regularized after receiving the service charge from the inhabitants of colonies notified under clause (iii), like other legal colonies. No additional charges shall be charged for these.
(2) Such colonies where more than 70% inhabitants of lower income group reside, 20% of development amount shall be charged from inhabitants of the colony and remaining 80% amount shall be borne by the body concerned and other than these colonies, 50% development amount shall be taken from inhabitants of the colonies and 50% amount shall be borne by the concerned body. The amount of the public participation scheme/fund of parliamentarian/legislature fund shall be deemed to be the amount in the amount deposited by the inhabitant and the cost of the water, sewage and electricity shall not be included in the amount received from the inhabitants.
(3) As per the law, if there is no open land for public amenities in the lay out prepared for the total area of the colony, the competent authority shall make an estimate of the cost of such required open land and recover one and half times from the colonizer.
Provided that action of regularization of building/plot shall not be affected if required amount is not recovered from colonizer or delay in recovery.
(4) The competent authority shall ensure necessary action under rule 15(c) and subclause (vi) of clause (iii) against the persons constructing illegal colonies.
(e) sub-clause (viii B) shall be omitted.
(f) in sub-clause (x) for brackets and letter the brackets and letter shall be substituted.
(5) For sub-rule (2), the following sub-rule shall be substituted, namely:—
“(2) If any illegal colony is constructed after 31 December, 2016 the competent authority shall take action to remove it considering it as illegal construction.”
16. Evidently, 1998 Rules are framed by the State Government in exercise of its powers under Sections 292-A, 292-B, 292-C and 292-E of 1956 Act and under Sections 339-A, 339-B, 339-C and 339-E of 1961 Act.
17. That Chapter XXIII and Chapter XII were inserted by the legislature in 1956 Act and 1961 Act respectively by MP Act 18 of 1997, w.e.f 21.04.1997 with the object to regularize indiscreet colonization to ensure sustained urbanization.
18. Section 292A (339A of 1961 Act) of 1956 Act envisages that any person who as a colonizer intends to undertake the establishment of a colony or colonies in the area of Municipal Corporation or Municipal Council, as the case may be, for the purpose of dividing the land into plots, with or without developing the area, transfers or agrees to transfer gradually or at a time, to person desirous of settling down on those plots by constructing residential or non-residential or composite accommodation; or as a builder constructs or causes to be constructed on any land in a municipal area, whether held by him or any other person, independent buildings or a single building with apartments; or converts or causes to be converted an existing building or any part of such building into apartments, for the purpose of transfer by sale or otherwise all or some of them to persons other than members of his family and includes his assignees shall apply to the Commissioner (or the Competent Authority appointed by the State Government in case of Municipality).
19. Sub-section (4) of Section 292A of 1956 Act and Section 339A of 1961 Act stipulate that:
(4) Every person who has been issued the Registration Certificate under sub-section (2) shall become eligible to establish one or more colonies in the area of Municipal Corporation and shall not be required to apply for Registration Certificate in respect of every colony separately but it shall be mandatory for such person to obtain approval of layout plans and all other approvals separately from the competent authority in respect of each colony.
20. In case of breach of the stipulations contained in 1956 Act and 1961 Act as to colonization on contravention of provisions contained under Section 172 of Madhya Pradesh Land Revenue Code, Section 292-C and 292-DA of 1956 Act and Section 339C and 339DA of 1961 Act contemplates punishment. It envisages:
292-C. Punishment for illegal colonization.-
(1) A Colonizer who, in contravention of he provisions of Section 172 of the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959) and the Rules made thereunder, diverts the land or part thereof, commits an offence of illegal diversion of land.
(2) A colonizer who divides his lands into plots or the land of any other person with the object of establishing a colony in breach of the requirements contemplated in this Act or the rules made in this behalf, commits an offence of illegal colonization.
(3) Whoever commits or abets the commission of an offence of illegal diversion or illegal colonization shall be punished with an imprisonment of not less than three years and not more than seven years or with a minimum fine of ten thousand rupees, and the Court may in passing the judgment in respect of any such offence order the accused to pay to the corporation, such amount of compensation as specified in the judgment, taking into consideration the amount required to be incurred towards the development of such illegal colony, and such offence shall be a cognizable offence.
(4) Whoever constructs a building in an area of illegal diversion or illegal colonization commits an offence of illegal construction.
(5) Whoever commits an offence of illegal construction shall be punished with imprisonment of not less than three years and not more than seven years and with a minimum fine of ten thousand rupees, and such offence shall be a cognizable offence.
(6) It shall be incumbent upon every colonizer to display correct information about the area (including the carpet area) of the housing units proposed for construction and facilities to be provided in a colony in all its advertisements published in the form of pamphlets, brochures, hoardings and in all communications to customers and shall explicitly mention the number and date of his Registration Certificate over it, and any violation of these provisions shall make such colonizer liable for punishment under sub-section (3) and sub-section (5).
292-DA. Responsibility of persons associated in the Act of illegal colonization or illegal diversion of land. - All the directors, promoters and financers associated in the act of illegal colonization or illegal diversion of land along with the person who commits or abets the commission of an offence of such illegal colonization of illegal diversion shall be held equally liable of committing such an offence and shall be punished under the provisions of Section 292-C.
21. That, Section 292E (339E of 1961 Act) of 1956 Act stipulates:
292-E. Commissioner to take over the management of the land of illegal Colonization.- (1) The Registrars and Sub-Registrars appointed under section 6 of the Registration Act, 1908 (No. 16 of 1908) shall, at the end of every month, communicate details of all transfers or agreements to transfer of plots or houses in the municipal area, to the Commissioner in such manner as may be prescribed.
(2) Notwithstanding anything contained in the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959), the transfer or agreement to transfer of plots made by a colonizer, in an area of illegal diversion or illegal colonization shall be void.
(3) The Commissioner shall cause to be published a public notice three times in the local newspapers for the purpose of taking over the management of land of illegal colonization. After the publication of such notice if any objection is received from the colonizer or the plot holder it shall be considered by the Commissioner and if no objection is received then the Commissioner shall take over the management of such land and cause the area to be planned and developed in such manner as may be prescribed and allot the plots in such manner and subject to such conditions as may be prescribed.
(4) The allottee shall on fulfillment of the conditions be deemed to be a valid transfers of the plot, and the power of the Commissioner as manager of the plot shall come to an end.
(5) Once the Commissioner takes up the management of any colony it shall be deemed that the diversion of land of such colony has been done and its use is in accordance with the master plan of the city.
22. Furthermore, Section 292 F of 1956 Act and Section 339F of 1961 Act envisage forfeiture of land involved in illegal colonization. It stipulates:
292-F. Forfeiture of the land involved in illegal colonization.- The right, title and interest of the colonizer in the land under illegal colonization, shall upon and from the date of taking over management of the land under subsection (2) of Section 292-E stand forfeited and vested in the Corporation free from all encumbrances.
23. For the purpose of carrying out the goal and object set out vide Section 292E (339E of 1961 Act) of 1956 Act and Section 292F (339F of 1961 Act) of 1956 Act, the State Government incorporated Rule 15 in the Rules of 1998 which provides:
“15. Management of the colony.-(1) If the fact of transfer or agreement to transfer of plots made by the Colonizer in an area of illegal diversion or illegal colonization comes to the notice of competent Authority and if he considers it desirable to takeover management of such land, he shall issue a notice and [publish it three times] in atleast two daily local newspapers of which one must be of Hindi language and call upon all the persons interested in the said land to show cause within such period as may be specified therein, why the management of the said land should not be taken over by him. (2) On the expiry of the period specified in the notice, the Competent Authority shall consider the objections or suggestions, if any received with reference to the notice or otherwise, and if considers necessary, require any such person who has raised any objection, to present himself or through authorised representative with all the relevant documents for oral hearing. [(3) After having published the notice under sub-rule (1), if the Colonizer or the plot holder within the time specified in the notice published do not turn up or the development fees is not deposited by them, the competent authority by forfeiting the concerned land/house shall take over its management:
Provided that if he is satisfied that the land/house is not subject to illegal diversion or illegal colonization, he may drop the proceedings.]
(4) In the discharge of his duty for management of land, the Competent Authority may confer upon one or more officers subordinate to him, such powers as he may think necessary for proper management, protection and preservation of the property and wherever necessary, for the collection of rents and profits, for any suit or prosecution or any other legal proceedings for management, protection and preservation of the property.
[(5) If the competent authority has taken over the management of land under sub-rule (3), he shall draw up a scheme for the development of such land and its allotment in which the following points shall necessarily be included-
(a) the criterion for the allotment to such plot holders of the colony concerned who have deposited the development fees;
(b) criterion for sale of the remaining plots;
(c) time for the completion of the development work: Explanation. -In the said scheme, the procedure of allotment shall have to be completely transparent.
(d) the scheme, as prepared above shall be published for the Information of the general public by the competent authority in the manner as he may deem fit.]
(6) The expenses incurred by the Competent Authority on the management of the land shall be included in the development charges of the land and shall be recoverable on pro-rata or on any reasonable basis from persons to whom the plots have been allotted under the scheme.”
24. Thus, an elaborate procedure is laid down to carry out the object stipulated under Section 292E of 1956 Act or 339E of 1961 Act Act, as the case may be.
25. Thus, collective and cumulative reading of these statutory provisions leaves no manner of doubt that an illegal colonization is totally barred and in case anyone is found indulged in illegal colonization, by virtue of provisions contained under Section 292E (339E of 1961 Act) of 1956 Act and Section 292DA (339DA of 1961 Act) of 1956 Act such monger loses the land which when taken over under Section 292E (339E of 1961 Act) of 1956 Act vests with the Municipal Corporation or the Municipality as the case may be. The legislature has not provided any inroad or lenient action when such violation is established.
26. The State Government in exercise of its delegated powers incorporated Rule 15A, 15B and 15C in the Rules of 1998 in the year 2000 vide notification stated supra. Rule 15A makes provision by ordering regularization of unauthorized colonies which came into existence on 30th June, 1998. Thereafter, it was extended upto 30.06.2002 vide Notification No. 5 dt. 31.01.2003, and by Notification No. 15 dt.03.09.2013 till 31.12.2012 and that by latest Notification No. 61-F-1-30-2011-XVIII-3.dated 19.05.2017 till 31.12.2016
27. That by Notification No. 13/18-3/2000, dated 3-7-2000, published in Madhya Pradesh Rajpatra (Asadharan), dated 3/7/2000, Rule 15B and 15C were also incorporated in 1998 Rules which respectively deal with providing electricity and water supply in the illegal colonies and the action to be taken against the person for construction of the illegal colony; however, presently it is Rule 15A of 1998 Rules which is taken exception of.
28. It is urged that the Rule besides being contrary to the stipulations contained under Section 292E (339E of 1961 Act) of 1956 Act and Section 292DA (339DA of 1961 Act) of 1956 Act is framed in colourable exercise of power. As the State Government, a delegatee of the legislature, is not empowered to make Rules regarding regularization of illegal colonies in any manner. It is urged that the essential feature of Chapters XXIIIA and XIIA of 1956 Act and 1961 Act being total prohibition of illegal colonies with the further stipulations of taking over of the management of land by the Commissioner/Competent Authority in case of violation of any of the statutory provisions and the vesting of such property in the Corporation or Municipality, as the case may be; it is beyond the powers of the delagatee to change the essential feature of the substantive provision. On these contentions, petitioner seeks quashment of Rule 15A of 1998 Rules by declaring it ultra vires the Statute.
29. The State, on their turn, has supported their action. It is stated that it is well established position that the State Legislature is competent to enact a law on the subject on the Local Government with reference to Entry No. 5 of List II of the State List of Schedule 7 of the Constitution. That is to say the powers of Municipal Corporation for the purpose of local-self Government or Village Administration. It is urged that, the State Government had enacted the M.P Municipal Corporation Act, 1956 and by virtue of the powers conferred under Section 292(A), 292(B), 292(C) and 292(E) read with Section 433 of 1956 Act, the State Government had formulated the 1998 Rules. Rule 15 of the aforesaid Rules deals with the management of colonies whereas Rule 15-A as substituted vide Gazette Notification dated 03.07.2000 provides for regularization of unauthorized colony that has come into existence up to the date specified therein. The aforesaid provision for regularization of unauthorized/illegal colonies has been amended from time to time and lastly in the year 2017. It is further contended that the provision for regularization of unauthorized colonies has been in statute from the year 2000 itself. It is further pertinent to mention here that the State Government being the Welfare State is under obligation to provide planned residential colonies with basic amenities in the interest of public in general. State government is duty bound to provide potable drinking water, electricity, essential civic amenities and land for the purpose of their house to its citizens and also bound to provide developed colonies. In furtherance of which rules have been framed by the State Government referred above as 1998 Rules. It is further contended that the 1998 Rules which specifically provide in Rule 15A that only those colonies would be regularized which belong to private owners. It is contended that it is prescribed in the rules that minimum 10% area of colony has been constructed and these colonies are which came into existence till 31/12/2016. It is also contended that only those colonies are coming in the category of illegal colonies which have been constructed without getting any No Objection Certificate from nazul, Municipal Corporation, without any approval from town and country planning department, constructed said colonies without any permission regarding change of use of land (diversion). Only such type of colonies can be regularized. It is further contended that other colonies are not to be regularized which have been constructed upon main road, park, play ground, in area of cultural monuments, river, pond, faucet (Nala), Green Zone and area of town planning. It is urged that the petitioner has deliberately not disclosed these facts and the provisions of 1998 Rules. It is contended that in view of the aforesaid provisions, State Government is empowered to make or to amend the 1998 Rules in the interest of public in general. Therefore, it cannot be said that the illegality committed by colonizers has been ignored by the State Government. It is further contended that the basic object of the 1998 Rules is to provide better facilities to the innocent public in general who has invested huge amount for purchasing the plots or houses in the said illegal colonies. It is contended that the principle of law is well settled by the Supreme Court in “Sushil Kumar Sharma v. Union of India [(2005) 6 SCC 281]” that if a statutory provision is otherwise intra vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional. Be it noted that the proposition as evident from the decision in Sushil Kumar Sharma (supra) will be applicable only “if” a statutory provision is intra vires and not otherwise.
30. The question is whether Rule 15A of 1998 Rules is intra vires. Evidently, the Rule 15A is framed by the State Government in exercise of its delegated power under Section 292E of 1956 Act and 339E of 1961 Act. We have seen that Section 292E of 1956 Act or 339E of 1961 Act nowhere contemplates regularization of illegal colonies. Or for that, no such provision of relaxation exists under Chapter XXIIIA of 1956 Act or Chapter XIIA of 1961 Act. It is a settled principle of law that the scope of judicial review/scrutiny of delegated legislation is on two grounds, viz, (a) violation of constitutional provision and (b) violation of the enabling Act. In the present case, we are concerned with the latter.
31. Trite it is that the power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegatee has to act within the limits of the authority conferred by the Act.
32. In “Additional District Magistrate (Rev.) Delhi Admn. v. Siri Ram. [(2000) 5 SCC 451”, it is held:
“16. It is well-recognised principle of interpretation of a statute that conferment of rule making power by an Act does not enable the rule making authority to make rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto. From the above discussion, we have no hesitation to hold that by amending the Rules and Form P-5, the rule making authority has exceeded the power conferred on it by the Land Reforms Act.”
33. In “St. Johns Teachers Training Institute v. Regional Director, National Council for Teacher Education [(2003) 3 SCC 321]”, it is held that the Rules cannot be made to supplant the provisions of enabling Act but to supplement it. It is held by their Lordships:
“10. A regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and regulations are all comprised in delegated legislations. The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The legislature may, after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the frame work of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the Rule, after coming into force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statutes. Rules and regulations made by reason of the specific power conferred by the Statutes to make rules and regulations establish the pattern of conduct to be followed. Regulations are in aid of enforcement of the provisions of the Statute. The process of legislation by departmental regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of rules and regulations is conferred by Parliament. The main justification for delegated legislation is that the legislature being over burdened and the needs of the modern day society being complex it can not possibly foresee every administrative difficulty that may arise after the Statute has begun to operate. Delegated legislation fills those needs. The regulations made under power conferred by the Statute are supporting legislation and have the force and effect, if validly made, as the Act passed by the competent legislature. (See Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (1975) 1 SCC 421 : AIR 1975 SC 1331).”
34. Justice G.P Singh, in his “Principles of Statutory Interpretation observes that “……even a general power to make rules or regulations for carrying out or giving effect to the Act, is strictly ancillary in nature and cannot enable the authority on whom the power is conferred to extend the scope of general operation of the Act. Therefore, such a power “will not support attempts to widen the purposes of the Act, to add new and different means to carrying them out, to depart from or vary its terms” (Ch. 12 Syn. 3(ii) page 1009).
35. In “Indian Express Newspapers (Bombay) Private Ltd. v. Union of India [(1985) 1 SCC 641]”, it is held:
“75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent Legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary.”
36. In “Supreme Court Employees' Welfare Association v. Union of India [(1989) 4 SCC 187]” it is held that:
“100. Where the validity of a subordinate legislation (whether made directly under the Constitution or a statute) is in question, the court has to consider the nature, objects and scheme of the instrument as a whole, and, on the basis of that examination, it has to consider what exactly was the area over which, and the purpose for which, power has been delegated by the governing law.
101. Rules are liable to be declared invalid if they are manifestly unjust or oppressive or outrageous or directed to an unauthorised end or violative of the general principles of the law of the land or so vague that it cannot be predicated with certainty as to what is prohibited by them or so unreasonable that they cannot be attributed to the power delegated or otherwise disclose bad faith. . …….”
37. Similarly in “Shri Sitaram Sugar Company Limited v. Union of India [(1990) 3 SCC 223] it is held:
“47. Power delegated by statute is limited by its terms and subordinate to its objects. The delegate must act in good faith, reasonably, intra vires the power granted, and on relevant consideration of material facts. All his decisions, whether characterised as legislative or administrative or quasi-judicial, must be in harmony with the Constitution and other laws of the land. They must be “reasonably related to the purposes of the enabling legislation”. See Leila Mourning v. Family Publications Service [411 US 356 : 36 L ed 2d 318]. If they are manifestly unjust or oppressive or outrageous or directed to an unauthorised end or do not tend in some degree to the accomplishment of the objects of delegation, court might well say, “Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires“: per Lord Russel of Killowen, C.J in Kruse v. Johnson [(1898) 2 QB 91, 99 : 78 LT 647].”
38. Evidently, by incorporating Rule 15A in 1998 Rules, a new right is created in favour of illegal colonizers/colonies which being contrary to the stipulations contained under Section 292E of 1956 Act and 339E of 1961 Act cannot be upheld. Consequently, Rule 15A of 1998 Rules is hereby declared to be ultra vires the substantive provisions contained in 1956 Act and 1961 Act and being beyond the competence of the State Government, a delegatee of the legislature to have framed such a rule. Petition is allowed to the extent above.
39. Consequently, on declaration of Rule 15A of 1998 Rules as ultra vires the substantive provisions of the Act, all actions taken thereon are declared illegal. The Commissioner, Municipal Corporation and the Competent Authority of respective Municipalities are directed to initiate action under Section 292E read with Section 292DA of 1956 Act and under Section 339E read with Section 339DA of 1961 Act.
40. Parties to bear their respective costs.
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