1 HIGH COURT OF MADHYA PRADESH : INDORE BENCH, INDORE (S. B.: Hon'ble Mr Justice S.C. Sharma) W.P No.11873/2010 Shaukat Kha & Ors. Vs. State of M.P. & Ors. W.P No.14153/2010 Anil Chordia Vs. State of M.P. & Ors. W.P No.3130/2011 Shri Nagchhatreshwar Constructions Pvt. Ltd. Vs. State of M.P. & Ors. W.P No.2980/2011 M/s Gajraj Constructions Vs. State of M.P. & Ors. W.P No.3153/2011 Shri Nagchhatreshwar Constructions Pvt. Ltd. Vs. State of M.P. & Ors. W.P No.1959/2011 Lokesh & Ors. Vs. State of M.P. & Ors 2 W.P No.191/2011 Rahul Ostwal & Anr. Vs. State of M.P. & Ors Shri Piyush Mathur Sr. Counsel with Shri Rajeev Jain, Ms. Vandana Kasrekar and Shri Vinay Gandhi learned counsel for the petitioners. Ms. M. Ravindran, learned counsel for the respondents State. Shri Harish Tripathi, learned counsel for Municipal Corporation. O R D E R (12.9.2011) Regard being had to the similitude in the controversy involved in the matter, the above cases were heard analogously together and a common order is being passed. The facts of W.P. No.11873/10 are being narrated as under : 2. The petitioner before this Court has filed the present petition being aggrieved by the action of the respondents in rejecting the application to accept shelter fee and demand draft, submitted by the petitioner in compliance to the order dated 16.4.10 passed by the Assistant Director Town and Country Planning, Ratlam, Madhya Pradesh. 3. The contention of the petitioner is that the petitioner is a registered colonizer under the provisions of Madhya Pradesh Nagar Palika (Registration of Colonizer Terms and Condition) Rules 1988 (in 3 short hereinafter referred as “Rules of 1988”). He was registered on 2.6.2006. 4. The petitioner has purchased 1.859 hectare of land in Village Sujawata in the year 2009 bearing survey numbers 51/5, 60/2, 60/3, 51/4. The petitioner has also enclosed a sale deed along with the writ petition and has further stated that necessary application was submitted for mutation and in the revenue records also the petitioner's name has been mutated by the revenue authorities. The petitioner has further stated that his application for demarcation of land has also been allowed and thereafter keeping in view the provisions of Madhya Pradesh Nagar Tatha Gram Adhiniyam read with the provisions as contained under Section 339 of the Municipalities Act, 1961 an application was submitted alongwith a development plan before the Assistant Director, Town and Country Planning, for sanctioning the lay out plan and the same was sanctioned by the Assistant Director, Town and Country Planning Department on 16.4.10. The petitioner has further stated that as per Class-6 of the sanction order dated 16.4.10, the petitioner was directed to pay shelter fee and keeping in view the provisions of Rules of 1988 three years' time was granted to carry out the development works. The petitioner has further stated that he approached the authorities on 7.5.10 to accept shelter fee and as the same was not accepted, he submitted an application alongwith demand draft on 24.2.10 and the competent authority in spite of accepting the shelter fee has passed the impugned order dated 1.6.10. The 4 petitioner's contention is that the impugned order has been passed on the ground that on account of an amendment in the Madhya Pradesh Municipalities Act, 1961 the provision for acceptance of shelter fee has been deleted and in place of shelter fee now a colonizer is required to reserve 10% developed plots or residential houses for allotment to persons belonging to lower income group. The contention of the learned Sr. Counsel is that in his case the lay out was sanctioned on 16.4.10 and once a right has accrued in his favour, the same cannot be taken away by a subsequent amendment, which took place on 19th April, 2010. Learned counsel for the petitioner prays for quashing of impugned order dated 1.6.10 and also prays for issuance of a writ, order or direction directing the respondents to accept the shelter fee. 5. A reply has been filed by the respondents and the State Government has admitted that the factual details in respect of sanction of lay out by the Town and Country Planning Department on 16.4.10, however the stand of the State Government is that the question of accepting shelter fee at this juncture does not arise as an amendment has taken place in Madhya Pradesh Municipalities Act, 1961 and by virtue of the amendment which came into force on 19th April, 2010, the provisions in respect of shelter fee has been deleted and a new provision has been inserted for reserving 10% plots/residential houses. The stand of State Government is that the question of acceptance of shelter fee after 19th April, 2010 does not arise and the writ petition deserves to be dismissed. The respondents have enclosed the 5 amendment dated 19th April, 2010 and have prayed for dismissal of writ petition. 6. Learned counsel for the respondents State has also drawn the attention of this Court towards letter dated 31.3.10 issued by the Principal Secretary, Urban Administration and Development Department and the same letter reveals that all Collectors and President of various development authorities have been directed not to withdraw any amount from the account maintained in respect of shelter fee. She has also drawn the attention of this Court towards order dated 18th July, 2011 and the same reflects that the State Government has issued an order directing the legal bodies to sanction/ grant building permission only in case a colonizer reserves 10% plots/flats keeping in view the amendment which took place in the Madhya Pradesh Municipalities Act, 1961 on 19th April, 2010. The respondents/State have prayed for dismissal of writ petitions in the light of amendment dated 19th April, 2010. 7. Heard the learned counsel for the parties at length and perused the records. The matter is being disposed of with the consent of the parties at motion hearing stage itself. 8. The petitioners before this Court are colonizer duly registered under the provisions of Rules of 1988. The petitioners are owner of land bearing survey numbers 51/5, 60/2, 60/3, 51/4 admeasuring a total area of 1.859 hectare land. The petitioners after purchasing the land in question have applied for mutation and demarcation and the 6 same has been done and thereafter the petitioners have applied for the sanction of lay out keeping in view the provisions of Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam read with Madhya Pradesh Bhumi Vikash Rules, 1984 and also keeping in view the provisions of Madhya Pradesh Municipalities Act, 1961. The application was preferred before the competent authority i.e. Assistant Director, Town and Country Planning, Ratlam and a detailed and exhaustive order was passed on 16.4.10 by the Director, Town and Country Planning Department. Clause-6 and 18 of the aforesaid order reads as under :- “06 vkosnd }kjk 'kiFk i= fnukad 31@01@2010 esa p;fur fodYi vuqlkj e- iz- uxj ikfydk ¼dkyksukbZtj jftLVªhdj.k fucZU/ku rFkk 'krZs½ fu;e 1998 ds fu;e 10¼4½ ds vuqlkj vkJ; fuf/k ¼SHELTER½ esa vkJ; 'kqYd dk Hkqxrku fofgr nj ij tek djk;k tkuk lqfuf'pr djsaA ;g vkJ; 'kqYd dysDVj rFkk ifj;kstuk vf/kdkjh ftyk fodkl vfHkdj.k jryke ds la;qDr [kkrsa esa tek djus ds i'pkr~ l{ke izkf/kdkjh }kjk fodkl dh vuqKk nh tk ldsxhA ftldh lwpuk bl dk;kZy; dks Hkh fof/kor~ :i ls miyC/k djkbZ tkosxhA 18 e iz uxj rFkk xzke fuos'k vf/kfu;e 1973 dh /kkjk 33 ds izko/kkuksa ds vuq:i ;g vuqKk rhu o"kZ dh le;kof/k ds fy;s izor`r jgsxhA” 9. The aforesaid order makes it very clear that the petitioners were granted permission to deposit shelter fee. Section 339-A and 339-B of the Municipalities Acts, 1961 reads as under :- “339-A Registration of [colonizer or builder]. - [(1) Any person who - (a) as a colonizer intends to under the establishment of a colony in the area of Municipal Council or Nagar Panchayat for the purpose of dividing the land into plots, with or 7 without developing the area, transfers or agrees to transfer gradually at a time, to persons desirous of settling down on those plots by constructing residential or non-residential or composite accommodation; or (b) as a building 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 as 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 such competent authority as may be appointed by the State Government for the grant of Registration Certificate.] (2) On receipt of the application for registration under sub-section (1) the [such competent authority, as may be appointed by the State Government] shall, subject to the rules made in this behalf, either issues or refuses to issue the Registration Certificate, within thirty days : Provided that if the [such competent authority, as may be appointed by the State Government] refuses to sisue the Registration Certificate, the reasons for refusal shall be intimated to the applicant. [Provided further that an appeal may be filed before the Appeal Committee constituted under Section 307 within 30 days from the date of rejection of application of registration by the competent authority.] The State Government shall have power to make rules prescribing the form of application, amount of fees for registration and other terms and conditions, for issue of Registration Certificate.” [339-B. Development of colonies.- (1) The Registration Certificate granted under Section 339-A shall entitle the colonizer to undertake the 8 development of colonies in the municipal area subject to the provisions of this Act and the rules made in this behalf and on the following conditions :- (i) In every residential colony in the municipal area, out of the area of the developed plots by the colonizer, fully developed plots equal to fifteen per cent of the prescribed size shall have to be reserved for persons belonging to economically weaker sections. (ii) Such colonizer who wishes to offer the constructed residential houses instead of developed plots in his residential colony for the persons of the economically weaker sections under clause (I) then they make available the houses of the prescribed size constructed in the prescribed area. (iii) Such colonizer who do not wish to develop plots or construct houses for economically weaker sections in his colony having an area as prescribed shall have to deposit the shelter fee at such rate as may be prescribed in the shielder fund. (iv) In respect of the land on which the Urban Land (Ceiling and Regulation) Act, 1976 was applicable the colonizer shall have to reserve developed plots of the prescribed size in the prescribed area for the persons belonging to economically weaker sections. (2) For the allotment of plots or houses to the economically weaker sections, the procedure for the selection of eligible persons and the determination of the cost of such plots or houses shall be such as may be prescribed. (3) The permission of development shall be given by the Competent Authority and an appeal shall lie to the State Government against the order of Competent Authority.]” 10 The State Government has framed Rules in exercise of powers conferred by Section 292-A, 292-B, 292-C and 292-E read with 9 Section 433 of the Madhya Pradesh Municipal Corporation Act 1956 (No.23 of 1956) and Section 3390A, 339-B, 339-C and 339-E read with Section 355 and 356 of the Madhya Pradesh Municipalities Act, 1961 (No.37 of 1961), the State Government hereby make follwing amendments in the Madhya Pradesh Nagar Palika (Registration of Colonizer, Terms and Conditions) Rules, 1988. Rules 10 of the aforesaid Rules reads as under :- “10. In Residential colonies, availability of Plots/Houses for the weaker section of the society. - (1) In every residential colony in the urban area, out of the area of the developed plots by the Colonizer, fully developed plots equal to fifteen percent of the size of 32 to 40 square meter area, shall have to be reserved for persons belonging to economically weaker sections.” 11. The aforesaid statutory provisions of law makes it very clear that an option was granted to a colonizer either to pay shelter fee or to reserve the plots for weaker section of the society and the petitioners have opted for payment of shelter fee. The petitioners lay out was sanctioned by the competent authority under the Rules on 16.4.10 meaning thereby a right accrued in favour of the petitioners on 16.4.10 the State Government has later on amended Section 339 (b) of the Municipalities Act and Section 1(a) has been inserted after subsection 1 and the same reads as under :- “1(a) In addition to reserving the developed plots or residential houses under sub-section (1), the colonizer shall also reserve at least ten percent fully developed plots of the prescribed size or in alternate offer constructed residential houses in his residential colony for the persons belonging to lower income group.” 12. The aforesaid amendment came into force w.e.f. 19.4.10 and by 10 the aforesaid amendment colonizers are now required to reserve at least 10% fully developed plots of the prescribed size or in the alternative offer constructed residential houses in their residential colony for the persons belonging to lower income group. It is not in dispute that the petitioners lay out was sanctioned on 16.4.10 and a right accrued in favour of the petitioners on 16.4.10 as the same was sanctioned by the competent authority and, therefore, by a subsequent amendment a rightly already accrued in favour of the petitioners cannot be wiped out by virtue of a subsequent amendment, which took place on 19 h April, 2010 especially in view of the fact that the amendment is not with retrospective effect. Hon'ble Justice G.P. Singh in his principle of statutory interpretation under Chapter-VI “Operation of Statute” while considering with the statutes dealing with substantive rights has observed as under :- “The rule against retrospective construction is not applicable to a statute merely “because a part of the requisites for its action is drawn from a time antecedent to its passing”.R. v. St. Mary White Chapels(Inhabitants), (1848) 12 QB 120, p. 127) If that were not so, every statute will be presumed to apply only to persons born and things come into existence after its operation and the rule may well result in virtual nullification of most of the statutes. An amending Act, is therefore, not retrospective merely because it applies also to those to whom, pre-amended Act was applicable if the amended Act has operation from the date of its amendment and not from an anterior date.(Bishun Narain Misra v. State of U.P.., AIR 1965 SC 1567). But this does not mean that a statute which takes away or impairs any vested right acquired under existing laws or which creates a new obligation or imposes a new burden in respect of past transactions will not be treated as retrospective.(K.S. Paripoornan v. State of Kerela, Jt 11 1994 (6) SC 182, pp. 213, 214: AIR 1995 SC 1012, pp. 1034, 1035). Thus to apply an amending Act, which creates a new obligation to pay additional compensation, (Ibid. See further, Land Acquisition Officer-cum- DSWO A.P. v. B.V. Reddy, AIR 2002 SC 1045) or which reduces the rate of compensation,(Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar, JT 1999 (8) SC 45, p.56 :AIR 1999 SC 3609, p. 3614 : (1999) 8 SCC 16), to pending proceedings for determination of compensation for acquisitions already made, will be to construe it retrospective which cannot be done unless such a construction follows from express words or necessary implication. Similarly, a new law enhancing compensation payable in respect of an accident arising out of use of motor vehicle will not be applicable to accidents taking place before its enforcement and pending proceedings for assessment of compensation will not be affected by such a law unless by express words or necessary implication the new law is retrospective.(Padma Srinivasan v. Premier Insurance Co. Ltd., AIR 1982 SC 836). It makes no difference in application of these principles that the amendment is by substitution or otherwise.(Ibid. For effect of 'substitution', see text and notes 87 to 89, pp. 676-677, post.) The cases where the principle, that a statute is not retrospective simply because it takes into account past events, has been applied are discussed hereinafter under titles 2(g) and 2(h). Another principle flowing from presumption against retrospectivity is that “one does not expect rights conferred by the statute to be destroyed by events which took place before it was passed.(Birmingham City Council v. Walker, (2007) 3 All ER 445, p. 449(para 11) (HL).” In certain cases, a distinction is drawn between an existing right and a vested right and it is said that the rule against retrospective construction is applied only to save vested rights and not existing rights(West v. Gwynne, (1911) 2 Ch 1, p. 11, 12; Trimbak Damodhar Raipurkar v. Assaram Hiraman Patil, AIR 1996 SC 1758, p. 1761). This distinction, however, has not been maintained in other cases(Duke of Devonshire v. Barrow Haematite Steel Co. Ltd., (1877) 2 QBD 286, p. 289; Indramani (Dr.) v. W.R. Natu, AIR 1963 SC 274, p. 286). The word 'retrospective' has thus been used in different senses causing a certain amount of confusion(Gardner & 12 Co.v. Cone, (1928) All ER Rep 458, p.461). The real issue in each case is as to the scope of particular enactment having regard to its language and the object discernible from the statute read as a whole.” 13. In the present case a substantive right was created in favour of the petitioners on 16.4.10 and the petitioners have submitted an application alongwith demand draft before the authorities in respect of shelter fee. The same has been turned down by passing the impugned order on account of an amendment which took place on 19th April 2010. This Court is of the considered opinion that a right accrued in favour of the petitioners cannot be taken away by a subsequent amendment dated 19th April, 2010 especially when no time limit was framed by the Director, Town and Country Planning Department to deposit the shelter fee and the permission was granted by Town and Country Planning Department for a period of 3 years. 14. In W.P. No.14153/10 the petitioner's lay out was sanctioned on 15.1.10 keeping in view the provisions as contained under Section 2(b) of Madhya Pradesh Municipal Corporation Act, 1956 and the State Government has amended Madhya Pradesh Municipalities Act 1956 also by issuing a consolidated notification dated 19th April, 2010 meaning thereby in the aforesaid case amendment was issued subsequently after a right accrued in favour of the petitioner and, therefore, keeping in view the discussion made in the earlier paragraphs the present writ petition is also allowed. The respondents are directed to accept the shelter fee offered by the petitioner by virtue order passed by Town and Country Planning Department. 13 15. In W.P. Nos.3153, 2980 and 3130 of 2011 the petitioners' lay out was sanctioned keeping in view the provisions as contained under Section 2(b) of Madhya Pradesh Municipal Corporation Act, 1956 and the State Government has amended Madhya Pradesh Municipalities Act 1956 also by issuing a consolidated notification dated 19th April, 2010 meaning thereby in the aforesaid cases notification in respect of amendment was issued subsequently after a right accrued in favour of the petitioners and, therefore, in view the discussion made in the earlier paragraphs the aforesaid writ petitions are also allowed. The respondents are directed to accept the shelter fee offered by the petitioners by virtue order passed by Town and Country Planning Department. 16. Resultantly, this Court is of the considered opinion that the impugned order passed by the respondents is bad in law and is liable to be quashed and it is quashed. The respondents are directed to accept the shelter fee offered by the petitioners in view of the order dated 16.4.10. The writ petition stands allowed. 17. The other identical petitions are also allowed. 18. No order as to costs. ( S.C. SHARMA ) JUDGE skm