Madhya Pradesh High Court
Gulam Mohammad vs Indore Municipal Corporation on 30 August, 2019
Author: S.C.Sharma
Bench: S.C.Sharma
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Writ Petition No.18237/2019
(Gulam Mohammad and Another Vs. Indore Municipal Corporation and Another)
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Indore, dated 30/08/2019
Shri A. M. Mathur, learned Senior Counsel with Shri Vaibhav
Asawa, learned counsel for the petitioners.
Shri Rishi Tiwari, learned counsel for the respondents.
The petitioners before this Court have filed present petition being aggrieved by order dated 16/08/2019 passed by respondent No.2 - Building Officer, Indore Municipal Corporation.
The petitioners' contention is that the respondents are widening the road and the width of the road is 18 meters. Shri Mathur, learned Senior Counsel has categorically stated before this Court and it has also been stated in the writ petition that the petitioner does not have any objection so far as width of the road is concerned i.e. 18 meters, however, it is resulting in demolition of the house of the petitioner as the center of the road has been shifted.
Various grounds have been raised by the learned Senior Counsel in the writ petition as well as while arguing the matter.
A detailed and exhaustive reply has been filed in the matter by Indore Municipal Corporation justifying their action. It has been stated that as per the "Indore Development Plan, 2021" the width of the Jairampur Colony to Gaurakund is 18 meters (60 feet) and the Indore Development Plan, 2021 came into force w.e.f. 01/01/2008 keeping in view the provisions as contained under Section 18 of the HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.18237/2019 (Gulam Mohammad and Another Vs. Indore Municipal Corporation and Another) -2- Nagar Tatha Gram Nivesh Adhiniyam, 1973. A map is also enclosed along with the reply and the respondents have stated that as many as 300 obstructions are coming in way of widening of road and more than half of them have already been removed.
It has been stated that people themselves are supporting the Indore Municipal Corporation in widening of the road. The respondents have also stated that the petitioners' construction is situated on the left turn and in order to avoid zero visibility and accident, the width of the road is being increased and the left turn is being rounded.
The respondents have categorically stated that petitioner does not have any building permission and no building permission has been brought to the notice of Corporation in spite of repeated notices and the petitioner does not have any right to object in the matter. It has also been stated that the controversy stands concluded by a judgment delivered by the apex Court in the case of Ravindra Ramchandra Waghmare Vs. Indore Municipal Corporation & Ors. reported in (2017) 1 SCC 667. The apex Court in the aforesaid case in paragraphs No.71 to 77 has held as under:-
"71. It was submitted by the respondents that with respect to the principle of determination of compensation, a Constitution Bench of this Court has considered more or less similar provision contained in sections 212 and 216 of the Bombay Provincial Municipal Corporation Act, 1949. It was found to have qualified to section 299 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.18237/2019 (Gulam Mohammad and Another Vs. Indore Municipal Corporation and Another) -3- of the Government of India Act in Municipal Corporation of the City of Ahmedabad & Ors. v. State of Gujarat & Ors. (1972) 1 SCC 802. The question of payment of compensation for acquiring the land lying within line of public street came up for consideration. A question arose whether Corporation is liable to provide compensation. First proviso to section 216(1) which provided for increase or decrease in value in the case of set-back and adjustment of compensation accordingly. Question also came up for consideration whether principle of willing seller and willing buyer is applicable in such a situation, and what is the meaning of full indemnity in accordance with the norms, and to what extent such provisions are justiciable ? Section 210 of the said Act contains a similar provision with respect to removal of project in the regular line of a public street. For the loss caused to the owner provision was made for compensation under section 216 of the Bombay Provincial Municipal Corporation Act, 1949, same is extracted hereunder:
"7. For the loss thus caused to the owner by the action of the Commissioner, provision was made for payment of compensation under Section 216 which is as follows:
"216.(1) Compensation shall be paid by the Commissioner to the owner of any building or land required for a public street under Sections 211, 212, 213 or 214 for any loss which such owner may sustain in consequence of his building or land being so acquired and for any expense incurred by such owner in consequence of the order made by the Commissioner:
Provided that --
(i) any increase or decrease in the value of the remainder of the property of which the building or land so acquired formed part likely to accrue from the set-back to the regular line of the street shall be taken into consideration and allowed for in determining the amount of such compensation;
(ii) if any such increase in value exceeds the amount of loss sustained or expenses incurred by the said owner, the Commissioner may recover from such owner half the amount of such excess as a betterment charge."
Other provisions of sections 389, 390 and 391 of the Bombay Provincial Municipal Corporation Act, 1949 also came up for consideration which are contained in para 8 of the report, same are extracted hereunder :
"8. Chapter XXIV of the Act deals with the subject of compensation generally. Section 389(1) provides as follows:
"389. (1) In the exercise of the powers under the following provisions of this Act by the Commissioner or any other municipal officer or servant or any other person authorised by or under this Act to execute any work, as little damage as can be shall be done and compensation assessed in the manner prescribed by or under this Act shall be paid to any person who sustains damage in consequence of the exercise of such powers, namely,....
(f) acquiring any building or land required for a public street -- under Section 216."
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.18237/2019 (Gulam Mohammad and Another Vs. Indore Municipal Corporation and Another) -4- Section 390 is as follows:
"Subject to the provisions of this Act, the Commissioner or such other officer as may be authorised by him in this behalf shall, after holding such inquiry as he thinks fit, determine the amount of compensation to be paid under Section 389."
This determination, however, is not final because two appeals are provided. Under Section 391 it is provided as under:
"Any person aggrieved by the decision of the Commissioner or other officer under Section 390 may within a period of one month, appeal to the Judge in accordance with the provisions of Chapter XXVI."
"The Judge" means under Section 2, clause (29) the Judge of the Court of Small Causes in the City of Ahmedabad. Section 411 provides for a second appeal to the District Court. It says "An appeal shall lie to the District Court (aa) from a decision of the Judge in an appeal under Section 391 against an assessment of compensation under clause (f) of sub-section (1) of Section 389".
As regards the procedure to be followed in respect of these appeals, provision is made in Section 434 sub-section (1) whereof is "Save as expressly provided by this Chapter (Chapter XXVI) the provisions of the Code of Civil Procedure, 1908, relating to appeals from original decrees shall apply to appeals to the Judge from the orders of the Commissioner and relating to appeals from appellate decrees shall apply to appeals to the District Court".
This Court on due consideration of the aforesaid provisions has held that the Commissioner is required to determine the compensation first, thereafter if the owner is satisfied he can approach the Court of Small Causes or the District Judge. The provisions of section 212 were questioned on the ground that they were violative of section 299 of the Government of India Act, 1935. This Court has laid down that sections 216 and 389 provide for indemnification for the loss caused to be made to the owner of the property or other interests affected by the exercise of power under section 212. This Court has laid down thus :
"13. We are in agreement with the view of the High Court that the Corporations Act does provide for the payment of compensation for the property acquired. We have only to refer to Section 216 and Section 389 of the Act for this purpose. Section 216(1) clearly lays down that compensation shall be paid by the Commissioner to the owner of any building or land required for public street under Sections 211, 212, 213 and 214 for any loss which such owner may sustain in consequence of his building or land being so acquired, and for any expense incurred by such owner in consequence of the order made by the Commissioner. Then Section 389(1) provides that compensation assessed in the manner prescribed by or under the Act shall be paid to any person who sustains damage in consequence of the exercise of such power, namely, "(f) acquiring any building or land required for a public street under Section 216". The two sections read together make it clear that full indemnification in terms of money for the loss caused is to be made to the owner of the property or other interests affected by reason of the exercise of power under HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.18237/2019 (Gulam Mohammad and Another Vs. Indore Municipal Corporation and Another) -5- Section 212. Under the latter section what is acquired for the purposes of the street is the land of the owner which falls within the regular line of the street. Several provisions are made in Chapter XIV for the widening of streets within the limits of the Corporation. With the enormous increase in traffic in the more congested parts of a growing City, Municipal authorities are constantly under pressure to widen the streets and one of the several methods prescribed in Chapter XIV is contained in Section 212. The regular line of the street as prescribed under Section 210 often passes through the properties of owners abutting on the streets and it is impossible to widen the streets unless parts of lands belonging to the owners are acquired. Sometimes a building or a structure or part of it stands on such land and unless that portion of the building which falls within the line is removed the acquisition of the land for the purpose of the street is not possible. Therefore, in the first instance the section requires that the Commissioner shall issue a show-cause notice why the building or a part of the building which falls within the line of street should not be pulled down with a view to release the land underneath for the purposes of the street. If after hearing the owner the Commissioner is of the opinion that the building or part thereof should be pulled down, he must obtain the approval of the Standing Committee and then serve a notice on the owner to pull down the offending building or part of building within a certain time. If the owner cooperates, he will himself remove the offending structure and release the land underneath it for being absorbed in the street. If he does not, the Commissioner is empowered to pull down the offending structure at the cost of the owner. Then sub-section (4) of Section 212 provides that the Commissioner shall at once take possession on behalf of the Corporation of the portion of the land within the said line (line of the public street) theretofore occupied by the said building, and such land shall thenceforward be deemed a part of the public street and shall vest as such in the Corporation. The provisions of Section 212, therefore, clearly declare that what is acquired under that section is the land lying within the line of the public street. The technical question as to whether there is acquisition of the building when the owner himself does not pull down the offending part of the structure but the Commissioner does it at the owner's expense is not necessary for the disposal of the question whether the Act provides for the payment of compensation. Since every kind of loss is required to be compensated as a consequence of the order passed by the Commissioner under Section 216 of the Act, the question whether the Act need have provided for compensation as on the acquisition of the building or a part of the building which is pulled down under Section 212, does not survive. The owner has to be compensated for every deprivation or loss and, therefore, prima facie it must be held that the Corporations Act provides for the payment of compensation for the property acquired.
14. It was, however, argued that the two provisos to sub- section (1) of Section 216 when given effect to may not only nullify the direction given in sub- section (1) for payment of compensation but also in certain contingencies compel the owner to pay the Corporation something out of his own pocket. When sub-section (1) provides for payment of compensation for the loss HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.18237/2019 (Gulam Mohammad and Another Vs. Indore Municipal Corporation and Another) -6- suffered it provides for adequate indemnification or compensation. When such compensation is reduced in the contingencies visualized in the two provisos the compensation, it was submitted, may turn out to be illusory and the provision for the payment of compensation an empty assurance. Proviso (1) prescribes that "any increase or decrease in the value of the remainder of the property of which the building or land so acquired formed part likely to accrue from the set-back to the regular line of the street shall be taken into consideration and allowed for in determining the amount of such compensation".
Proviso (ii) states that "if any such increase in the value exceeds the amount of loss sustained or expenses incurred by the said owner, the Commissioner may recover from such owner half the amount of such excess as a betterment charge". Proviso (i) implies that the compensation payable under sub-section (1) is liable to be increased or reduced after the set-back. It envisages that by reason of the set-back or the widening of the street the property which still remained with the owner is likely, on account of the new situation, either to increase or decrease in value. If that happens, that is to be taken into consideration and the amount determined under sub-section (1) will have to be adjusted accordingly. The High Court is of the view that proviso (1) is unobjectionable as it is a principle governing the determination of compensation and can be rightly employed in determining the compensation for the property acquired. The High Court, however, was not inclined to hold that proviso (ii) lays down any principle for determination of compensation payable for the property acquired. It held, nevertheless, that the proviso was severable from the main part of the section and did not affect the provisions of sub-section (1) for payment of compensation. It is obvious that it is only in very rare contingencies that proviso (ii) may become operative. But in considering the question as to whether the Act provides for compensation for acquisition or not, there can be little doubt that it does so in sub-section (1) of Section 216. That it may in some rare contingencies be very much reduced after taking into account the value of the benefit conferred on the owner by reason of the widening of the street is no adequate reason to hold that the Act does not provide for payment of compensation. As a matter of fact in an actual enquiry for determining the amount of compensation to be paid the authority charged with the duty will have to assess, in the first instance, the value of the total loss or deprivation actually suffered. The provisos may in some rare contingencies go to reduce the amount so determined. Proviso (ii) envisages a situation where the widening of the street has so much benefited the owner that the value of the benefit even exceeds the actual loss suffered by him. In such a case instead of getting any compensation for the loss the owner might have to pay out of his own pocket. As to whether proviso (ii) prescribes any principle for determination of compensation or not is not relevant for our present purpose. Both the provisos come into play only after the compensation for loss is determined under sub-section (1) of Section 216 and since that sub-section declares that full compensation must be paid for the loss or deprivation suffered by the owner it will be incorrect to say that the Act does not make provision for the payment of compensation for the property acquired. We have, therefore, no hesitation in agreeing with the HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.18237/2019 (Gulam Mohammad and Another Vs. Indore Municipal Corporation and Another) -7- High Court that the Corporations Act provides for the payment of compensation for the property acquired under Section 212.
15. The next question is whether the Act specifies the principles on which and the manner in which compensation is to be determined. The High Court has been of the view that neither principles for determination of compensation nor the manner of its determination has been specified and that is the ground on which it has held that the provisions of Section 212 are unconstitutional. We are unable to agree with that view. What is meant by specification of principles for determining compensation? In State of Gujarat v. Shri Shantilal Mangaldas and Ors. (1969) 1 SCC 509, this Court observed:
"Specification of principles means laying down general guiding rules applicable to all persons or transactions governed thereby. Under the Land Acquisition Act compensation is determined on the basis of 'market-value' of the land on the date of the notification under Section 4(1) of that Act. That is a specification of principle."
At a later stage the Court again observed at p. 362:
"Rules enunciated by the courts for determining compensation for compulsory acquisition under the Land Acquisition Act vary according to the nature of the land acquired. For properties which are not marketable commodities, such as lands, buildings and incorporeal rights, valuation has to be made on the application of different rules. Principle of capitalisation of not rent at the current market rate on guilt-edged securities, principle of reinstatement, principle of determination of original value less depreciation, determination of break-up value in certain types of property which have out-rown their utility, and a host of other so-called principles are employed for determination of compensation payable for acquisition of lands, houses, incorporeal rights, etc."
The Land Acquisition Act makes market-value at a certain date the basis for the determination of compensation. But there is no one sure way of applying the principle. As is well known when set-back is imposed by the line of the street, the land actually acquired by the Corporation may be in some cases a few square yards or even a few square inches. Then again the land acquired may be of no significant use to anybody except to the Corporation as a part of the street. The land acquired may be wedge-shaped, sometimes irregular in contour and often shapeless. If the principle of a willing seller and a willing buyer is applied there can possibly be no market at all for the property acquired. It is not suggested that in every case of acquisition of land for the street this principle will break down. But having regard to the fact that in the course of widening the street the Corporation may have to acquire very irregular, shapeless and small pieces of land for the purposes of the street, a host of principles may have to be employed to determine the compensation. We asked learned counsel for the respondents what one general principle of determination of compensation in such cases could have been appropriately specified. We did not get any satisfactory reply. It appears to us that this very difficulty HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.18237/2019 (Gulam Mohammad and Another Vs. Indore Municipal Corporation and Another) -8- in specifying any known rule of compensation is responsible for the wording of Section 216 and Section 389 of the Act which, in our opinion, gets over the difficulty by providing full indemnification for the loss or deprivation suffered by the owner of the building or other interests in the property. We have referred to the provisions with regard to appeals. The first appeal lies to the Judge of the Small Causes Courts and a second appeal to the District Judge. The involvement of civil courts in finally determining compensation imports judicial norms. Since full indemnification in accordance with .judicial norms is the goal set by the Act it is implicit in such a provision that the rules for determination of compensation shall be appropriate to the property acquired and such as will achieve the goal of full indemnity against loss. In other words, the Act provides for compensation to be determined in accordance with judicial principles by the employment of appropriate methods of valuation so that the person who is deprived of property is fully indemnified against the loss. This, by itself, in our opinion, is a specification of a principle for the determination of compensation.
16. As regards the manner of determination of compensation, it is provided in Section 390 of the Corporations Act. Under that section the Commissioner or such other officer as may be authorised by him shall hold such enquiry as he thinks fit and determine the amount of compensation to be paid. Either the Commissioner or an Officer authorised by him has to hold an appropriate enquiry before determining the amount of compensation. Since, as already seen, there is an appeal from such determination to the Judge of the Small Causes Court under Section 391 and a second appeal to the District Court under Section 411 it is clear that the enquiry must be made on broad judicial lines. Any arbitrary determination is bound to be set aside in appeal because the Judges in appeal will be chiefly concerned to see whether the enquiry is made in accordance with normal judicial procedures for evaluating the loss by the application of methods of valuation appropriate to the particular acquisition before them. Since no limitations are placed on the powers of the Appellate Judges in determining the loss in a just and appropriate manner, it is expected that the Commissioner or his authorised officer, who holds the enquiry in the first instance, will be guided by principles which meet with the approval of the Appellate authorities. In our opinion, therefore, the manner of the determination of compensation is also specified by the Act.
17. It is conceded before us that if this Court holds that the Corporations Act has provided for the payment of compensation and also specified the principle on which and the manner in which compensation is to be determined, it would not be possible to say that the Act is either in violation of the provisions of Section 299 of the Government of India Act, 1935 or Article 31 of the Constitution."
Thus with respect to the compensation, considering more or less similar provisions, a Constitution Bench of this Court has clearly laid down that as a matter of fact actual compensation has to be determined in the first instance, the value of the total loss or deprivation actually suffered. It has to be balanced with the other relevant aspects for compensation. The Act provides for payment of HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.18237/2019 (Gulam Mohammad and Another Vs. Indore Municipal Corporation and Another) -9- compensation. The view of the High Court that the principle for determination of compensation has not been specified under section 212 was also not agreed to by this Court. This Court has also held that the Land Acquisition Act makes market value at a certain date the basis for determination of compensation. But there is no one sure way of applying the principle. As is well known when set back is imposed by the line of the street, the land actually acquired by the Corporation may be in some cases a few square yards or even a few square inches. Then again the land acquired may be of no significant use to anybody except for the Corporation as a part of the street. The land acquired may be of different shapes, irregular in contour and often shapeless. If the principle of willing buyer and willing seller is applied there can possibly be no market at all for the property acquired. This Court opined that the owner gets full indemnification for the loss or deprivation suffered to the building or other interests in the property. Involvement of civil courts in finally determining compensation imports judicial norms. There is no limitation on the power of the appellate Judge. Thus this Court held that the provisions contained in sections 212, 216 and 389 were not violative of the provisions of section 299 of the Government of India Act, 1935 or Article 31 of the Constitution. The case was remanded by this Court to the High Court for examining infringement of Articles 14 and 19 after laying down the aforesaid propositions. We have on merits found no violation of Articles 14 and 19 also in the instant cases.
72. It was also submitted that the provisions of sections 305 and 306 are required to be read down by incorporating the requirement of computation of compensation in the light of the principles laid down under the Act of 2013 while correlating it with the provisions of section 387 of the Act of 1956. In view of the aforesaid dictum of this Court in Municipal Corporation of City of Ahmedabad (supra), we find no scope to entertain the submission and the reliance by the appellants on Yogendra Kumar Jaiswal v. State of Bihar & Ors . (2016) 3 SCC 183 is of no avail.
73. We find the principles laid down in sections 305, 306 and 387 are quite reasonable. Reasonable compensation is payable by the Corporation for building or part thereof excluding the land under proviso to section 305(1) and compensation for inclusion of land in public street is payable under section 306(3) of the Act. We do not find any ground so as to read down the provisions. We refrain to comment upon the submission with respect to the granting additional FAR is not acceptable to some appellants, as it is not the stage of dealing with compensation how the total indemnification is to be made, whether FAR is acceptable to the appellants or not, cannot be decided at this stage. It need not be decided at this stage whether they have a right to leave the FAR and claim monetary compensation alone which is to be adjudged by the concerned authorities within the pale of the provisions contained in sections 305, 306 read with section 387 of the Act of 1956. How the compensation is to be worked out at the appropriate stage, is the outcome of the authorities concerned and the job of the arbitrator/District Court, as the case may be. The appellants are at liberty to raise the question with HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.18237/2019 (Gulam Mohammad and Another Vs. Indore Municipal Corporation and Another)
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respect to the adequacy of compensation and how the provision of section 387 has to be interpreted and what would be the just compensation at the appropriate stage of determination of compensation.
74. Reliance has been placed on Laxmi Devi v. State of Bihar & Ors. (supra) and Rajendra Shankar Shukla & Ors. v. State of Chhattisgarh & Ors. (supra). The decision in Laxmi Devi (supra) is based on the specific provision contained in section 10A of the Land Acquisition Act which requires compensation to be paid in a case where emergency clause has been invoked. Collector is required to tender payment of 80% of compensation before taking possession of the land. The said provision is not at all attracted to the Act of 1956. 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 Corporation cannot be compelled as per the special scheme of sections 305, 306 and 387 to offer the compensation before removal and vesting. Reliance on the decision in K.N. Palsikar (supra) so as to contend that the possession should be taken after payment of compensation is totally misplaced. This Court has simply narrated in para 11 what was held by the High Court and the points which were decided were capsualised by this Court in para 12 of the report. The aforesaid question was neither raised nor decided by this Court. This Court has not laid down any such proposition in K.N. Palsikar (supra), as canvassed.
75. Reliance has also been placed on a decision of this Court in Bhusawal Municipal Council v. Nivrutti Ramchandra Phalak & Ors. (2015) 14 SCC 327 in which this Court has considered right to property under Article 300-A and held that such right is a human right and delayed payment of compensation leads to alienation of section of society against the system, further public purpose that is setting up of school, is no justification for delaying/denying compensation in the garb of undertaking developmental projects, without paying the compensation to the concerned landowner as per the statutory provisions. It was also submitted that the time period was not prescribed within which compensation was to be paid. In our opinion, the appellants have questioned the very notice, initiation of action and when no time limit is fixed for payment of compensation, it goes without saying that it has to be awarded within a 'reasonable time'. Law envisages speedy action without unreasonable delay and that is what is expected of the concerned authorities, in respect of the obligation imposed on them to be discharged. Due to this, the provision cannot be struck down as arbitrary nor it can be said to be confiscatory in nature. We expect that the concerned Corporations would do well while offering the compensation to the appellants as expeditiously as possible that is sufficient to take care of their unfounded fear.
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.18237/2019 (Gulam Mohammad and Another Vs. Indore Municipal Corporation and Another)
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76. In the case of Bhuwan Bhandari v. Indore Municipal Corporation (SLP (C) No.31541/2011) it was submitted that building is a heritage building and there is bar on any kind of construction. The boundary wall has been demolished by the Corporation and possession has been taken of that part without compensation. The fact has been denied by the respondents that the building has been declared as heritage one. It was also pointed out that the Corporation for the purpose of widening of the road required removal of part of the boundary wall which is quite external to the main building and is falling within the set back. It is clear that the main building is not being demolished. The submission is thus untenable.
77. In view of the aforesaid discussion, the appeals being devoid of merits are hereby dismissed. Parties to bear their respective costs as incurred."
This Court has carefully gone through the judgment delivered by the Hon'ble Supreme Court in the case of Ravindra Ramchandra Waghmare (Supra) and the controversy involved in the present case stands concluded by the aforesaid judgment.
In light of the aforesaid judgment, as identical writ petitions have been disposed of, this Court does not find any reason to take a different view in the present case. The admission is accordingly declined. The Corporation shall certainly be free to proceed ahead with the widening of the road.
Certified copy as per rules.
(S. C. SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Tej
Digitally signed by
Tej Prakash Vyas
Date: 2019.09.03
15:00:35 +05'30'