Madhya Pradesh High Court
Dr. Arun Kumar Shrivastava vs The State Of Madhya Pradesh on 28 June, 2022
Author: Sheel Nagu
Bench: Sheel Nagu, Maninder S. Bhatti
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
WP. No.5216 of 2022
Between:-
1. ASGAR ALI A. TAIYABALI, S/O SHRI
ABBAS ALI TAIYABALI, AGED ABOUT
55 YEARS, OCCUPATION: BUSINESS,
R/O TAIYABALI SQUARE, DAYANAND
SARASWATI WARD, TEHSIL AND
DISTRICT JABALPUR (MADHYA
PRADESH)
2. NILOPHER, D/O LATE ABBAS ALI,
AGED ABOUT 70 YEARS,
OCCUPATION: HOMEMAKER, R/O
1008, NAPIER TOWN,, TAIYABALI
SQUARE, JABALPUR (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI ANSHUMAN SINGH AND SHRI ANUJ SHRIVASTAVA,
ADVOCATE)
AND
1. THE MUNICIPAL CORPORATION
JABALPUR THROUGH ITS
COMMISIONER, NAUDRA BRIDGE,
MARHATAL, JABALPUR (MADHYA
PRADESH)
WP. No.5216 of 2022 & connected matters
- 2 -
2. JABALPUR SMART CITY LIMITED,
THROUGH ITS CHIEF EXECUTIVE
OFFICER, MANAS BHAWAN, HOTEL
SATYA ASHOKA ROAD, WRIGHT TOWN,
JABALPUR (MADHYA PRADESH)
3. THE ADMINISTRATOR, MUNICIPAL
CORPORATION JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI H.S. RUPRAH, ADVOCATE FOR THE MUNICIPAL
CORPORATION)
(SHRI RITWIK PARASHAR, GOVERNMENT ADVOCATE
FOR STATE)
WP. No.21936 of 2015
Between:-
1. ASGAR ALI, S/O LATE SHRI ABBAS
ALI, AGED ABOUT 45 YEARS, R/O 1008,
NAPIER TOWN, TAIYABALI SQUARE,
JABALPUR (MADHYA PRADESH)
2. SMT. BANO BAI, W/O LATE SHRI
ABBAS ALI, AGED ABOUT 94 YEARS,
R/O 1008, NAPIER TOWN, TAIYABALI
SQUARE, JABALPUR (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI ANSHUMAN SINGH AND SHRI ANUJ SHRIVASTAVA,
ADVOCATE)
AND
1. STATE OF MADHYA PRADESH
THROUGH ITS SECRETARY,
WP. No.5216 of 2022 & connected matters
- 3 -
DEPARTMENT OF URBAN
ADMINISTRATION, MANTRALAYA,
VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
2. MUNICIPAL CORPORATION JABALPUR
THROUGH ITS COMMISIONER,
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI H.S. RUPRAH, ADVOCATE FOR THE MUNICIPAL
CORPORATION)
WP. No.5070 of 2022
Between:-
MOHD. ADIL USMANI, S/O LATE SHRI
A.S. USMANI, AGED ABOUT 53 YEARS,
OCCUPATION: ADVOCATE, R/O 2181,
NAPIER TOWN, DAYANAND
SARASWATI WARD, NEAR CLOCK
TOWER JABALPUR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI ANSHUMAN SINGH AND SHRI ANUJ SHRIVASTAVA,
ADVOCATE)
AND
THE MUNICIPAL CORPORATION
JABALPUR THROUGH ITS
COMMISIONER, NAUDRA BRIDGE,
MARHATAL, JABALPUR (MADHYA
PRADESH)
.....RESPONDENT
WP. No.5216 of 2022 & connected matters
- 4 -
(SHRI H.S. RUPRAH, ADVOCATE FOR THE MUNICIPAL
CORPORATION)
WP. No.5231 of 2022
Between:-
CHRIST CHURCH BOYS SENIOR
SECONDARY SCHOOL THROUGH ITS
PRINCIPAL MRS. L.M. SATHE, W/O
SHRI A.K. SATHE, AGED ABOUT 57
YEARS, R/O SLEEMAN ROAD, NORTH
CIVIL LINES, JABALPUR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI ANSHUMAN SINGH AND SHRI ANUJ SHRIVASTAVA,
ADVOCATE)
AND
THE MUNICIPAL CORPORATION
JABALPUR THROUGH ITS
COMMISIONER, NAUDRA BRIDGE,
MARHATAL, JABALPUR (MADHYA
PRADESH)
.....RESPONDENT
(SHRI H.S. RUPRAH, ADVOCATE FOR THE MUNICIPAL
CORPORATION)
WP. No.5332 of 2022
Between:-
WP. No.5216 of 2022 & connected matters
- 5 -
DR. ANJUM USMANI, W/O LATE
MOHD. AKIL USMANI, AGED ABOUT 55
YEARS, OCCUPATION: DOCTOR, R/O
H.NO. 2570, NORTH CIVIL LINES
JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ANSHUMAN SINGH AND SHRI ANUJ SHRIVASTAVA,
ADVOCATE)
AND
1. THE MUNICIPAL CORPORATION
JABALPUR THROUGH ITS
COMMISIONER, NAUDRA BRIDGE,
MARHATAL, JABALPUR (MADHYA
PRADESH)
2. JABALPUR SMART CITY LIMITED,
THROUGH ITS CHIEF EXECUTIVE
OFFICER, MANAS BHAWAN, HOTEL
SATYA ASHOKA ROAD, WRIGHT TOWN,
JABALPUR (MADHYA PRADESH)
3. THE ADMINISTRATOR, MUNICIPAL
CORPORATION JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI H.S. RUPRAH, ADVOCATE FOR THE MUNICIPAL
CORPORATION)
(SHRI RITWIK PARASHAR, GOVERNMENT ADVOCATE
FOR STATE)
WP. No.7126 of 2022
Between:-
DR. SATISH CHANDRA BATALIA, S/O
LATE SHRI ARJUN LAL BATALIA,
WP. No.5216 of 2022 & connected matters
- 6 -
AGED ABOUT 84 YEARS,
OCCUPATION: DOCTOR, R/O NEAR
BATALIA EYE HOSPITAL, TAIYABALI
PETROL PUMP, SWAMI DAYANAND
SARASWATI WARD, JABALPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI ADITYA SANGHI, ADVOCATE)
AND
1. THE MUNICIPAL CORPORATION
JABALPUR THROUGH ITS
COMMISIONER, NAUDRA BRIDGE,
MARHATAL, JABALPUR (MADHYA
PRADESH)
2. THE BUILDING OFFICER, MUNICIPAL
CORPORATION, JABALPUR, NAUDRA
BRIDGE, JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI H.S. RUPRAH, ADVOCATE FOR THE MUNICIPAL
CORPORATION)
WP. No.7191 of 2022
Between:-
SUSHIL SHARMA @ GUDDAN
SHARMA, S/O LATE KISHORILAL
SHARMA, AGED ABOUT 52 YEARS,
OCCUPATION: BUSINESS, R/O H.NO.
489, BAI KA BAGICHA, MAIN ROAD,
SHITLA MAI WARD, JABALPUR
(MADHYA PRADESH)
WP. No.5216 of 2022 & connected matters
- 7 -
.....PETITIONER
(BY SHRI ANSHUMAN SINGH AND SHRI ANUJ SHRIVASTAVA,
ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH PRINCIPAL SECRETARY,
DEPARTMENT OF REVENUE, VALLABH
BHAWAN, BHOPAL (MADHYA PRADESH)
2. COLLECTOR, DISTRICT JABALPUR
(MADHYA PRADESH)
3. THE MUNICIPAL CORPORATION
JABALPUR THROUGH ITS
COMMISIONER, NAUDRA BRIDGE,
MARHATAL, JABALPUR (MADHYA
PRADESH)
4. TEHSILDAR RANJHI, DISTRICT
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI H.S. RUPRAH, ADVOCATE FOR THE MUNICIPAL
CORPORATION)
(SHRI RITWIK PARASHAR, GOVERNMENT ADVOCATE
FOR STATE)
WP. No.7368 of 2022
Between:-
SMT. GANGA DEVI PARNAMI, W/O
LATE S.C. PARNAMI, AGED ABOUT 75
YEARS, OCCUPATION: HOUSEWIFE,
R/O 478, MAIN ROAD, BAI KA
WP. No.5216 of 2022 & connected matters
- 8 -
BAGICHA, GHAMAPUR, JABALPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI ANSHUMAN SINGH AND SHRI ANUJ SHRIVASTAVA,
ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH PRINCIPAL SECRETARY,
DEPARTMENT OF REVENUE, VALLABH
BHAWAN, BHOPAL (MADHYA PRADESH)
2. COLLECTOR, DISTRICT JABALPUR
(MADHYA PRADESH)
3. THE MUNICIPAL CORPORATION
JABALPUR THROUGH ITS
COMMISIONER, NAUDRA BRIDGE,
MARHATAL, JABALPUR (MADHYA
PRADESH)
4. TEHSILDAR RANJHI, DISTRICT
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI H.S. RUPRAH, ADVOCATE FOR THE MUNICIPAL
CORPORATION)
(SHRI RITWIK PARASHAR, GOVERNMENT ADVOCATE
FOR STATE)
WP. No.10456 of 2022
Between:-
DR. ARUN KUMAR SHRIVASTAVA, S/O
LATE SHRI P.C. SHRIVASTAVA, AGED
ABOUT 63 YEARS, OCCUPATION:
DOCTOR, R/O H.NO.1059, GOL
WP. No.5216 of 2022 & connected matters
- 9 -
BAZAAR, JABALPUR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI ANSHUMAN SINGH AND SHRI ANUJ SHRIVASTAVA,
ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH PRINCIPAL SECRETARY,
DEPARTMENT OF REVENUE, VALLABH
BHAWAN, BHOPAL (MADHYA PRADESH)
2. THE ADMINISTRATOR, MUNICIPAL
CORPORATION JABALPUR/DIVISIONAL
COMMISSIONER, JABALPUR DIVISION,
JABALPUR (MADHYA PRADESH)
3. THE MUNICIPAL CORPORATION
JABALPUR THROUGH ITS
COMMISIONER, NAUDRA BRIDGE,
MARHATAL, JABALPUR (MADHYA
PRADESH)
4. JABALPUR SMART CITY LIMITED,
THROUGH ITS CHIEF EXECUTIVE
OFFICER, MANAS BHAWAN, HOTEL
SATYA ASHOKA ROAD, WRIGHT TOWN,
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI H.S. RUPRAH, ADVOCATE FOR THE MUNICIPAL
CORPORATION)
(SHRI RITWIK PARASHAR, GOVERNMENT ADVOCATE
FOR STATE)
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WP. No.5216 of 2022 & connected matters
- 10 -
Reserved on : 07.05.2022 (WP. Nos.5216/2022,
5070/2022, 5231/2022, 5332/2022,
7191/2022 & 7368/2022)
: 13.05.2022 (WP. Nos.21936/2015,
7126/2022, & 10456/2022)
Passed on : 28.06.2022
----------------------------------------------------------------------------------------
Per: Sheel Nagu, J.
ORDER
This common order shall govern the disposal of WP. Nos. 21936/2015, 5070/2022, 5216/2022, 5231/2022, 5332/2022, 7126/2022, 7191/2022, 7368/2022 and 10456/2022.
2. Nine petitions as aforesaid before this Court raise grievance arising out of action of Municipal Corporation, Jabalpur of widening of various roads within the town of Jabalpur, which is allegedly hindered by civil construction made by the petitioners either in shape of boundary wall or in shape of building as a result of which respondent-Corporation has either demolished the boundary wall (in WP. No.21936/2015) or has issued show cause notices which are under challenged in all other eight writ petitions.
3. Pertinently, impugned show cause notices in these petitions seek explanation from the respective petitioners to show cause as to why the civil construction made by the petitioners adjacent to the road proposed to be widened be not demolished. It may not be out of place to mention here that in all the show cause notices, the provisions of Section 305 of WP. No.5216 of 2022 & connected matters
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Municipal Corporation Act, 1956 (for brevity "Act of 1956") are invoked based on a resolution passed by the Municipal Corporation that in lieu of compensation for the piece of land acquired from the petitioners, the respective petitioners would be entitled to FAR (Floor Area Ratio) equal to double the area sought to be acquired in lieu of monetary compensation.
3.1 The aforesaid exercise has been conducted by the Municipal Corporation to give effect to the Smart City Project within the town of Jabalpur by securing the minimum prescribed width of various roads within the town of Jabalpur, as per Master Plan 2021.
4. Learned counsel for the petitioner has raised various grounds in support of challenge to the show cause notices including the ground of misplaced interpretation of provisions of Rule 61 of M.P. Bhumi Vikas Rules, 2012 (for brevity "Rules of 2012") by the Municipal Corporation.
5. Except the ground pertaining to Rule 61 of Rules of 2012, this Court refrains from entertaining into the merits of other grounds raised by learned counsel for the petitioner, for the reason that challenge is merely to a show cause notice where the Competent Authority is yet to take a decision, and therefore, any finding recorded by this Court as regards those grounds raised may prejudice the decision making process of Competent Authority.
WP. No.5216 of 2022 & connected matters
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6. As regards the grounds pertaining to Rule 61 of Rules of 2012 is concerned, it would be apt to reproduce Rule 61 in toto for ensuring proper adjudication:-
"61. Floor Area Ratio- The Floor Area Ratio (FAR) for different use group shall be as mentioned in Table 8.
TABLE 8
Floor Area Ratio for Different Use Group
S. No. Use Group FAR Category
1. Residential 1.25
2. Commercial 2.50 City Centre
2.00 Sub-city Centre
1.75 Community Centre
1.50 Local Shopping Centre
1.25 Convenience Shopping Centre
3. Public Semi- 1.00 Administrative Areas/Semi-
public public Education and
Research/Health/
Social/Cultural/Institutional
4. Industrial As per rule As per rule 48
48
F.A.R and Density may be adopted as provided in the Development Plans of respective towns.
Note. (1) In case where the owner surrenders a portion of his plot/land and vests its ownership in the Government/Authority for public purpose an additional floor area calculated adding twice the area of plot/land surrendered by him may be allowed in the remaining area of the plot/land in lieu of the monetary compensation.
WP. No.5216 of 2022 & connected matters
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(2) In case of in-situ redevelopment of a slum, an additional FAR upto 0.50 may be allowed in addition to the permissible FAR in that area, however all other norms related to the development and building permission shall be observed. (3) On plot admeasuring 200 to 500 sq. meters one servant quarter and on plot admeasuring more than 500 sq meters two servant quarters may be permitted. The size of a servant quarter shall not exceed 25 sq. m. and the area of the servant quarter shall not be counted in the built up area or the covered area.
(4) Covered parking with a clear height of 2.4 meters may be provided within the permissible ground coverage on plots measuring 425 sq.m. or more. Such area of parking shall not be counted towards Floor Area Ratio and permissible height calculations.
(5) In case of redevelopment of areas in the old part of any city/town, the old and dilapidated structures may be reconstructed and if needed, an additional FAR up to an extent of 0.25 may be sanctioned over and above the permissible FAR of the area. However no other norm related to the development and building permission shall be relaxed.
(6) The total built up area of economically weaker section and low income group houses constructed to the extent provided for under the provisions of Madhya Pradesh Nagar Palik Nigam Adhiniyam 1956, Madhya Pradesh Nagar Palika Adhiniyam 1961 and Madhya Pradesh Panchayati Raj Evam Gram Swaraj Adhiniyam 1993 and the rules made thereunder, shall not be counted towards the calculations of the floor area ratio.
However such exemption shall be limited to the built up area of such EWS and LIG dwelling units as together constitute 15%. of the number of dwelling units proposed to be developed in the same colony for other income groups."
6.1 Rules of 2012 are framed in exercise of powers conferred by Section 85(1) of M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973. These WP. No.5216 of 2022 & connected matters
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rules are interalia applicable within the territorial jurisdiction of Municipal Corporation, Jabalpur. Chapter V of Rules of 2012 relates to "general building requirements" wherein Rule 61 describes the Floor Area Ratio (FAR) for different use groups. After detailing FAR for different "use groups" i.e. residential, commercial, public, semi-public and industrial, a note is appended wherein Clause (1), as reproduced above, deals with a situation where the owner in lieu of monetory compensation chooses to surrender a portion of his plot/land leading to vesting of ownership of the same in the government/authority for public purpose. As a reward for voluntary relinquishment additional FAR is made available to such owner, which is equivalent to twice the area of plot/land surrendered.
6.2 Bare perusal of aforesaid Note (1) reveals that operation of Note (1) is founded upon voluntary act of the owner of surrendering his plot/land. Thus, the voluntary act of the owner forgoing his right to monetory compensation is the sine qua non for the Municipal Corporation to assume jurisdiction to grant additional FAR.
6.3 In view of the above, this Court has no manner of doubt that correctly interpreting Note (1) of Rule 61 of Rules of 2012 cannot deprive the owner of adequate monetory compensation for the plot/land sought to be acquired for public purpose until and unless the owner voluntarily chooses to surrender that portion of land/plot, which is required for public purpose.
WP. No.5216 of 2022 & connected matters
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7. As such the Municipal Corporation, Jabalpur could not have unilaterally decided to invoke Note (1) of Rule 61 of Rules of 2012 in the absence of the owner voluntarily surrendering that portion of land/plot which is sought to be acquired for broadening of road.
8. In view of the above discussion, what comes out loud and clear is that the Municipal Corporation, Jabalpur has wrongly interpreted Note (1) of Rule 61 of Rules of 2012 by treating the said provision to be a means for compulsory acquisition without monetory compensation.
9. Consequently, all these petitions are disposed of with following directions:-
(1) The Municipal Corporation cannot deny monetory compensation to the land owners by adopting Note (1) of Rule 61 of Rules of 2012 without the owner voluntarily surrendering his plot/land or part of it for public purpose.
(2) If the Municipal Corporation intends to acquire the land/plot in question, then the same can very well be done by following the due process of law applicable for compulsory acquisition for public purpose as manifested in Section 305 and 306 of Act of 1956.
(3) If the owner declines to voluntarily surrender his plot/land for widening of the road, then the Municipal Corporation is directed to carry out necessary demarcation and valuation of the property sought to be acquired and thereafter take possession followed by paying adequate WP. No.5216 of 2022 & connected matters
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compensation in accordance with law as expeditiously as possible preferably within a period of six months.
(4) The petitioners are free to submit their replies (if not already submitted) to the impugned show cause notices, which if submitted within 30 days from today, shall be considered and final order shall be passed by the respondent-Municipal Corporation.
(5) It is made clear that the possession of the land/plot shall be taken immediately after demarcation and valuation without waiting for evaluation, payment of monetory compensation or decision on reply to show cause notice so that the progress in public work of widening of road is not hampered.
10. With the aforesaid directions, these petitions are disposed of.
(SHEEL NAGU) (MANINDER S. BHATTI)
JUDGE JUDGE
mohsin
Digitally signed by MOHAMMED
MOHSIN QURESHI
Date: 2022.06.28 15:25:47 +05'30'