Madhya Pradesh High Court
Maa Chamunda Enterprises Thru.Its ... vs The State Of Madhya Pradesh on 5 January, 2018
1
THE HIGH COURT OF MADHYA PRADESH
W.P.NO.203/2018
Indore, Dt.5.1.2018
Shri Pranay Kumar Choudhary, partner of the
petitioner/Firm present in person.
Shri Mahesh Sharma, Executive Engineer, Indore
Municipal Corporation and Shri P.S.Kushwaha, for the
respondent No.2 present in person.
Heard on the question of admission and interim relief.
The petitioner is running a Country Liquor shop in Machhi Bazar Main Road, Indore and is aggrieved with the proposed action of the respondent-Municipal Corporation intending to demolish his shop for the purpose of road widening.
The petitioner in person submits that respondents are going to demolish the petitioner's structure without giving any notice or opportunity of hearing and that the petitioner is running the Country Spirit Shop on the basis of license in which the premises in question has been specified and that the petitioner is tenant of Indore Municipal Corporation therefore the judgment of the Supreme Court on which the respondents are placing reliance upon, will not be attracted and that the petitioner is entitled to protection till the expiry of liquor license i.e. 31.3.2018.
The respondents present in person opposing the writ 2 petition have submitted that road widening work is being done to implement the Master Plan and under section 305 of the Municipal Corporation Act, the respondents are entitled to take action and that the identical writ petition has also been dismissed by Division Bench of this Court vide Annexure R/1 and in the process of road widening, all other adjacent structures have already been demolished and that the petitioner is not entitled to any protection from this court.
Having heard learned counsel for the parties and on perusal of the record, it is noticed that the respondents are taking the impugned action to widen the subject road as per the Indore Development Plan, 2021. In respect of similar impugned action for the same Machhi Bazar area, other writ petitions were filed before this court and co-ordinate Division Bench of this court in W.P.No.2164/2017 in the matter of Mohd. Haroon and others Vs. State of M.P. and others and connected writ petition, has taken note of the judgment of the Supreme Court in the case of Ravindra Ramchandra Waghmare Vs. Indore Municipal Corporation, (2017) 1 SCC 667 and vide order dated 21.12.2017 has dismissed the writ petition holding that :-
21. The stand of the Municipal Corporation is that the obstructing constructions are liable to be removed as per Section 305 of the M.P. Municipal Corporation Act and Indore Development Plan, 2021, irrespective of the question of ownership. The Hon'ble Supreme Court in the case of Ravindra Ramchandra Waghmare (supra) has held as 3 under :-
"Various rights of ownership which ordinarily vest in an owner, are restricted by the regional plan, development plan or the town development scheme, as the case may be. User of the owner's land, property cannot be in derogation to any of them. Development plan is binding upon the Corporation and local authorities and all concerned including the owners."
22. As per reply, the respondent No.4 - Indore Municipal Corporation, is carrying out the road widening work in larger public interest without being selected and has no malafide against any one. After road widening the property owners will get benefit of the provision of the Indore Development Plan, 2021, pertaining to residential - cum - Commercial Roads / Mixed Usage and they will be able to carry out commercial activities on ground floor of their respective constructions. Due to the added advantage of road widening, development and smooth traffic circulation, the area will further commercialize and prosper, enhancing business prospects resulting in escalation of value of the properties. In case where after removal of the obstructing construction the balance portion is not habitable, the owner may apply for and will be accordingly allotted EWS flats. Every married adult member of such family staying in such portion will be entitled for a separate EWS flat. EWS flats are available in different localities of the city. The Indore Municipal Corporation will also provide assistance to the effected persons in applying for EWS flats and shifting of their belongings.
23. The owners of the effected constructions will be offered double FAR on the remaining portion according to the area calculated, adding twice the area of plot utilized for road widening as per the M.P. Bhumi Vikas Niyam, 2012. After road widening the market value of the property will be enhanced manifolds. The persons who were affected by the road widening even benefited due to the enhancement of the market value of their properties.
24. After carrying out road widening as per the Development Plan, the aforementioned road will be developed as the the Area Based Development (ABD) concept under the Smart City Project and will have modern facilities / features like 4 underground electric line ducts, underground telephone line ducts, water lines on both sides of the road, Smart poles for central street lights and wifi, storm water line, sewerage line on both sides and footpath on both sides, etc.
25. From Machhi Bazar to Aanganwadi stretch of the aforementioned road the space between the road section and the 'Kanh' river has been illegally encroached upon by several persons. Notices have already been issued to such persons for removal of the encroachments. The respondents are carrying out the removal as per the directions of the National Green Tribunal. The land available after removal of the encroachments will be used for development of gardens/ plantations and for public utilities.
26. In respect of the contention of the learned Senior counsel for the petitioners that after demolition, no development work was completed by the Municipal Corporation, the contention of the learned Senior counsel for Corporation is that the entire Indore Development Plan, 2021 cannot be implemented at once and different projects depend upon agency and availability of resources, etc are under taken from time to time. The Corporation is implementing the development plan phase-wise. In the present case, the subject matter is road widening as per the Indore Development Plan, 2021, which was finalized after considering the objections and suggestions as provided 1973 Adhiniyam. The Apex court in the case of Ravindra Ramchandra Waghmare (supra) has held that the power conferred under Section 305 of the Act of 1956 by the Corporation has to be exercised with respect to regular line of a public street, either existing or as determined for future, when hearing has already been afforded while laying down regular line under Section 18/19 of the 1973 Adhiniyam. It has been further held that the development plan is binding and has to be implemented by the Corporation. The road widening work in larger public interest and will be beneficial for lacs of commuters commuting over Jawahar Marg and Gangwal Bus Stand to Sarvate Bus Stand road. Apart from the fact that there is no merit in the writ petition, in compliance to order dated 14.11.2017, an additional affidavit has been filed by the Indore Municipal Corporation wherein, they have stated that all those persons who have dispossessed are being offered 5 alternative accommodation at normal rates.
27. The details of the tentative allotment of EWS flats earmarked for all the petitioners (44 Nos.) have been annexed as Annexure R/18 to the additional affidavit filed on behalf of the respondents. The township namely Treasure Town in which flats have been earmarked is not 10 to 20 Kms from the city but in only about 6.7 Kms. from the present location of the petitioners. The said township is just 2 Km from the prominent Choitram Mandi Square (including about 1 K.M. A.B. Road). There is sufficient transport available to commute to and fro from the city from the subject location since it is just 1 Km from the A.B. Road. The cost of each flat is just about 4.5 lacs, whereupon a subsidy of Rs.1.25 lacs is also available. EMI without subsidy would be about Rs.3200/- per month and that after subsidy would be only about Rs.2200/- per month. There is no provision in the M.P. Municipal Corporation Act, 1956 with respect to payment for resettlement that too before widening the road under Section
305. At the most, effected persons are entitled to compensation as per Section 306 of the Act of 1956.
28. The Apex Court in the mater of Ravichandra Waghmare (supra) has extensively dealt with the issue. Relevant portion which is at para 5 reads as under :-
"05. The Master plan was prepared under the provision of M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (Town & Country Planning Act) hereinafter referred to as 'the Act of 1973'. The Development Plan/Master Plan was prepared as per the provisions of Section 18 after inviting objections, suggestions. None of the appellants had raised objections when the development plan was prepared. It was finalized and published as per provisions contained in section 19(4)
20. It is apparent that the development plan once prepared is binding upon the development authorities in the planning area as well as on the Municipal Corporation and other local authorities as the case may be. They cannot modify and permit the user in contravention thereof..............
34. ......... there is no such adjudicatory process or 6 discretion provided. The expression used in section 307(2) is that show-cause has to be made why the work shall not be removed, altered or pulled down, and a person is required to show-cause and on his own failure to show "sufficient cause" why such building or work should not be removed, Commissioner is authorized to remove, alter or pull down the building or work under section 307(3). Since the notice which is contemplated under section 305 does not involve such a case showing sufficiency of cause in case building is falling within the regular line of public street, the building is necessarily to be removed. The expression used is that require by notice removal of the building, the legislative mandate for removal is addressed to the Corporation also to remove the same. As such it was not necessary to repeat it once over again in the provisions contained in section 305.
45................it is apparent that the power conferred under section 305 has to be exercised with respect to regular line of a public street, either existing or as determined for future, when hearing has already been afforded while laying down regular line under section 18/19 of the Act of 1973 and the power is conferred by notice to remove the building under section 305 of the Act of 1956 which includes all the powers and steps which are necessary for removal of such building........
52.........there is already a regular line of public street fixed under development plan and is binding under section 19(5) and section 25 of the Act of 1973. Various rights of ownership which ordinarily vest in an owner, are restricted by the regional plan, development plan or the town development scheme, as the case may be. User of the owner's land, property cannot be in derogation to any of them. Development plan is binding upon the Corporation and local authorities and all concerned including the 7 owners. Though they can transfer the property but subject to such restrictions which the property will carry with it. If the land falls in a regular line of public street, no construction can be raised, no projection can be made by owner whereas it can be removed or set back, as the case may be. In case acquisition is resorted to under sections 78 and 79, public street can never be widened and the entire purpose of preparation of Development Plan shall stand defeated.
53.........provisions contained in section 305 where the vesting is deemed to be by operation of law as soon as there is deemed vesting, the area shall vest in the Corporation and it shall be deemed to be a part of public street. Thus the provision of section 387(5) is not attracted when it is deemed to be part of the public street on vesting in the Corporation. The process under section 305 read with sections 306 and 387 is just, fair and reasonable. The FAR is offered by the Corporation as well as compensation and if it is not acceptable, recourse can be had to the provisions contained in section 387 of the Act of 1956. It is not for this Court to adjudicate upon the issue in which case FAR would be suitable as part of compensation and what would be the impact of conversion of FAR into TDR i.e. Transferable Development Right. Compensation in monetary terms is claimable under sections 305, 306 and 387. Thus, when recourse to section 305 is made by the Corporation, it is not necessary to make acquisition under section 78 or 79 of the Act of 1956.
55. It was also submitted that when the law requires a thing to be done in a particular manner, that thing can be done in that manner only and other modes of doing it are excluded..........
60. Development plan itself is binding and has to be implemented by the Corporation not only under the provisions of section 292 but also under the provisions of section 66(1)(y) of the Act of 1956 which mandates 8 a duty upon the Corporation for fulfilling any obligation imposed by the Act or under any other law for the time being in force. Provision of section 66(1) is extracted hereunder :
63. The appellants have also placed reliance on Rajendra Shankar Shukla & Ors. v. State of Chhattisgarh & Ors. (2015) 10 SCC 400 to contend that the Act of 1973 provides for arrangement, the development plan is an umbrella which encompasses within its fold a zonal plan which is implemented through Town Development Scheme ..................
There is no dispute with the law laid down by this Court and town planning scheme has to be subservient to development plan/zonal plan. Development plan which does not require micro planning is binding and can be implemented.
64...........the provision of section 305 when it deals with the public streets and removal of building falling in regular line is a wholesome one and being a special provision, based on classification made for the purpose of section 305 as to public street cannot be said to be suffering from vice or discrimination and violative of Article 14......."
70. ..........Monetary value has to be worked out and it can be balanced with FAR in appropriate cases which is quite reasonable method of arriving at compensation as discussed hereafter.
74........As compensation is offered after vesting, is quite reasonable procedure as envisaged by Article 300A of the Constitution of India, at which point of time it is offered would not make the provision confiscatory or repugnant. The compensation under section 305 or 306 read with section 387 is on the happening of certain exigency, and various factors are taken into consideration for determination of compensation is a quite valid procedure..........."
The aforesaid judgment applies in full force in the present 9 case also. The record further reflects that the petitioner was earlier given show-cause notice dated 4.4.2017 (Annx.P/5) to which the petitioner had also submitted his reply (Annx.P/6) and thereafter the impugned action has been taken, therefore it is not open to the petitioner to contend that principles of natural justice have not been complied with. That apart, the petitioner's right on the land in question is very limited as admittedly the land belongs to the Municipal Corporation and at the most the petitioner is using the land on the basis of payment of some 'Patri Shulk' as reflected in Annx.P/10. Neither any lease nor any agreement to use the land in question for the coming period has been placed on record. So far as the grievance of the petitioner based upon the area of shop specified in the liquor license is concerned, the same would not curtail the power of the Municipal Corporation to take action in accordance with law under the provisions of Municipal Corporation Act and if on this account the petitioner is required to shift the premises or to close down the business for a brief period, then he would be at liberty to approach the concerned department for appropriate relief in this regard in accordance with law. It is worth noting that respondents by producing a map in respect of road widening activity till now has pointed out the all other adjoining offending structures have already been removed, therefore larger public interest cannot be sacrifized by stopping 10 the work on such a plea of the petitioner.
Having regard to the aforesaid and considering the detail reasons which have been assigned in the case of Mohd.
Haroon, we are of the opinion that no case for interference in the present writ petition is made out, which is accordingly dismissed.
(PRAKASH SHRIVASTAVA) (VIRENDER SINGH)
JUDGE JUDGE
mk
Digitally signed by Mukta Koushal
Mukta Koushal
DN: c=IN, o=High Court of Madhya Pradesh, ou=Administration, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=d5113389cae2680f9a644a283e4712f4e3a663a97c409a 36fa2c3274aef1bfd1, cn=Mukta Koushal Date: 2018.01.12 15:16:15 +05'30'