Madhya Pradesh High Court
Mohd. Haroon vs The State Of Madhya Pradesh on 21 December, 2017
Author: Virender Singh
Bench: Virender Singh
...27...
W.P.No.2164/2017
& W.P.No.3985/2017
HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
D.B.:Hon'ble Shri P.K. Jaiswal
Hon'ble Shri Virender Singh, JJ.
W.P. No.2164/2017
MOHD. HAROON & OTHERS.
Versus
STATE OF M.P. & OTHERS.
*****
W.P. No.3985/2017
JAVED MANSOORI & OTHERS.
Versus
STATE OF M.P. & OTHERS.
*****
Shri A.M. Mathur, learned Senior counsel with Shri A.
Dhanodkar, Advocate for the petitioners.
Shri Purushyamitra Kaurav, learned Advocate General
with Shri P. Bhargava, learned Dy.A.G. for the respondents
No.1 to 3.
Shri A.K. Sethi, learned Senior Advocate with Shri Rishi
Tiwari, Advocate for the respondent No.4.
*****
ORDER
(Passed on 21.12.2017) PER P.K. JAISWAL, J:-
In these two writ petitions, the petitioners are challenging the validity of the Indore Development Plan, 2021, which came into effect from January 2008, after a delay of more than nine years.
...27...W.P.No.2164/2017 & W.P.No.3985/2017
2. Since the common question of law is involved in these writ petitions therefore, they are heard together and are being disposed of by this common order. For the sake of convenience the facts are borrowed from W.P.No.2164/2017.
3. The petitioners in W.P.No.2164/2017 are praying for the following relief :-
"(i) To declare the Development Plan 2021 as ultravires to Part IX-A of the Constitution; M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973, M.P. Zila Yojana Samiti Adhiniyam, 1995;
(ii) To stay the enforcement of Indore Development Plan 2021;
(iii) To restrain the respondents - Indore Municipal Corporation and the Commissioner, Indore Municipal Corporation from demolishing the house of petitioner.
(iv) To restrain the respondents particularly the respondents Indore Municipal Corporation and the Commissioner, Indore Municipal Corporation from implementing any provision of Indore Development Plan 2021;
(v) Allow this petition with cost;
(vi) Any other relief, this Hon'ble Court thinks fit in the facts and circumstances of the case be also granted to the petitioners"
4. The petitioners are challenging the illegal demarcation done by the respondents on their houses and directions of the respondent No.4 to the petitioners to remove the construction of the demarcation part inspite of the fact the entire construction has been made by the petitioners as per the sanction lay out by the respondents.
...27...
W.P.No.2164/2017& W.P.No.3985/2017
5. According to the petitioners the respondents without issuing any show cause notice and without granting any opportunity of hearing to them in respect of any kind of illegality or encroachment or any other type of violation of the terms of sanctioned map, put the demarcation on the house of the petitioners and directed the petitioners to remove the portion demarcated. The petitioners requested the authorities of respondent No.4 to disclose the violation or illegality on his part but no satisfactory answer was given by the authorities except that they are implementing the Indore Master Plan, 2021. The above mentioned action of the respondent No.4 is illegal, arbitrary and without jurisdiction since the Master Plan 2021 is itself illegal in view of the judgment delivered by the Hon'ble Apex court in the case of Rajendra Shankar Shukla V/s. State of Chhattisgarh reported as 2015 (8) Scale 384 / 2015 (10) SCC 400 , as no draft annual or 5 years development plan of the District was prepared under M.P. Zila Yojna Samiti Adhiniyam, 1995 (herein after referred as 'Adhiniyam of 1995') in which planning area is situated and therefore, there is violation of Section 17 of the Act of M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (hereinafter ...27...
W.P.No.2164/2017& W.P.No.3985/2017 referred as 'the Act of 1973').
6. The respondent No.4 - Indore Municipal Corporation is carrying out the road widening work from 'Sarvate Bus Stand' to 'Gangwal Bus Stand', Sarvarte Bus Stand - Hathipala - Juni Indore - Rawala - Gautampura - Chandrabhaga - Pandhrinath - Machhi Bazar Chouraha - Kadav Ghat - Naya Pitha - Kagdipura - Silawatpura - Biyabani Square - Gangwal Bus Stand."
7. The aforementioned road is parallel to Jawahar Marg Road, which passes through central and commercial area of the city connecting (Rajbada Square, Narsingh Square, Raajmohalla Square, Maalganj Square, Gurudwara Square, Nandlalpura Square, Krishnapura Bridge Square, Saifee Nagar Square and Patel Bridge Square) several important places and markets. Lacs of people and vehicles commute every day on the subject road.
8. Widening of the aforesaid Gangwal Bus Stand to Sarvate Bus Stand road will provide an alternative of Jawahar Marg to the commuters and reduce the traffic congestion on the Jawahar Marg Road as well as on all the aforementioned squares connecting various other roads, thereby enabling ...27...
W.P.No.2164/2017& W.P.No.3985/2017 smooth circulation of traffic on busy roads, reducing traffic jams, reducing fuel consumption and pollution and will be a considerable relief to the commuters. The Gangwal Bus Stand to Sarvate Bus Stand road connects various prominent areas of the city viz., Marothia market, Satha Bazar, Nandlalpura, Siyaganj etc. Once the road widening of this road is complete two parallel and broad roads will be available to the commuters easing out the traffic movement in this important commercial and central area of the city due to which lacs of commuters will be benefited every day.
9. The development work of Sarvate Bus Stand to Hathipala stretch has been allotted to agency viz., Som Project Pvt. Ltd. The aforesaid agency has already started the road widening work from Sarvate Bus Stand onwards and the carriage way work has almost been completed till Hathipala. The balance work like pole shifting, median (divider), storm water line, footpath, etc are also under progress.
10. In respect of Hathipala to Pandharinath via Chandrabhaga, the road widening work has been taken up. A physical survey has already been conducted and topographical sheet has been prepared. The affected portion obstructing the ...27...
W.P.No.2164/2017& W.P.No.3985/2017 road widening was identified and marked. Thereafter notices were issued to the concerned persons furnishing measurements of the obstructing constructions. Construction of cement - concrete carriage way is also under progress on this stretch.
11. In respect of Stretch - III :- Machhi Bazar Square to Silawatpura Dargah, the road widening and development work is being allotted to a private agency viz. Sita Homes Pvt. Ltd. The allotment of the development work for this stretch to the agency is in the final approval stage. The Indore Municipal Corporation is carrying out the road widening and development work of this stretch simultaneously along with the other stretches, without being selective, in the larger public interest. For the road widening work notices to the effected persons have already been issued furnishing details of the affected area of their respective constructions, seeking their reply along with relevant documents. Before taking any action 7 days' time will be granted to the concerned persons to remove the obstructing constructions. If the obstructing constructions are not removed within the aforesaid time limit then, the same will be removed by the respondent - No.4 ...27...
W.P.No.2164/2017& W.P.No.3985/2017 Corporation, as per law. As per reply of the Municipal Corporation, there are total 85 obstructing constructions on the right hand side and 124 on the left hand side on the stretch Pandhrinath Square to Silawatpura Dargah Square.
12. In respect of Silawatpura Dargah to Gangwal Bus Stand, after physical survey, the affected portion obstructing the old widening was identified and marked.
13. The first relief sought by the petitioners is that the Indore Development Plan, 2021 be declared ultra vires to Part IX-A of the Constitution and to stay the enforcement of the Development Plan 2021.
14. The stand of the respondents that the aforesaid mentioned relief is misconceived and cannot be granted due to the following reasons :-
"(a) Part IX-A of the Constitution, particularly Article 243-ZD does not refer to the Development Plan as provided under Section 14 of the Nagar Tatha Gram Nivesh Adhiniyam, 1973. Article 243-ZD mandates that a District Planning Committee shall be constituted at the District Level to consolidate the plans prepared by the Panchayats and the Municipalities and to prepare a draft Development Plan for the District as a whole. The aforesaid article does not contemplate anything with respect to the Development Plan under the Act of 1973.
(b) Section 17 of the Nagar Tatha Gram Nivesh Adhiniyam, 1973 mandates that a Development Plan shall take into account any ...27...W.P.No.2164/2017 & W.P.No.3985/2017
draft five years and Annual Development Plan of the District prepared under the Madhya Pradesh Zila Yojna Samiti Adhiniyam, 1995. The case in hand is not where the aforesaid draft Five Year / Annual Development Plan of the District has not been taken into account while prepared the Indore Development Plan 2021, but admittedly it is a case where the District Planning Committee for the District Indore did not prepare a draft Development Plan or Annual Development Plan (as averred in para 5.52 of the petition memo). Thus, there cannot be a question of taking into account or not, a plan which is not in existence. By no stretch of imagination such non-existence Development Plan could have been taken into account while preparing the Indore Development Plan, 2021.
(c) For application of Section 17 of the Act of 1973 about taking into account of the Development Plan prepared under the M.P. Zilla Yojna Samiti Adhiniyam the precondition is that there has to be a draft five year or Annual Development Plan of the District. When no such plan has been prepared then the aforementioned provision of Section 17 of the 1973 Act with respect to taking into account of the draft Five year / Annual Development Plan of the District will not be applicable. Section 17 of the 1973 Act does not say that if the draft five year / Annual Development Plan of the District has not been prepared under the M.P. Zila Yojna Samiti Adhiniyam then the Development Plan under Section 14 of the 1973 Act cannot be prepared."
15. The second, third and fourth reliefs pertain to restraining the respondent No.4 - Municipal Corporation from implementing the Indore Development Plan, 2021. Such a relief is misconstrued and cannot be granted due to the under mentioned reasons :-
"(a) As per Sectioon 19 (5) of the Nagar Tatha ...27...W.P.No.2164/2017 & W.P.No.3985/2017
Gram Nivesh Adhiniyam, 1973 the Development Plan is binding on the respondent Corporation. The relevant sub-section is reproduced as under :-
(5) The development plan shall come into operation from the date of publication of the said notice in the Gazette under sub-section (4) and as from such date shall be binding on all Development Authorities constituted under this Act and all local authorities functioning within the planning area."
(b) In the matter of Ravindra Ramchandra Wagmare V/s. Indore Municipal Corporation the Hon'ble Supreme Court has held as under :-
"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 right 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......"
16. The learned Advocate General has submitted that the petitioners are challenging the validity of the Indore Development Plan, 2021 on hyper technical grounds. The draft five year / Annual Development Plan of the District has not been prepared under the Adhiniyam of 1995 (which was admittedly not in existence) while preparing the Indore Development Plan, 2021. There is no adverse effect of non- compliance of Section 17 of the Adhiniyam of 1973. He submitted that these ground are raised merely to protect the subject constructions of the petitioners which are obstructing ...27...
W.P.No.2164/2017& W.P.No.3985/2017 the road widening as per the Indore Development Plan, 2021.
17. There is a delay of nine years in filing the writ petition. The Indore Development Plan, 2021 came into effect in the month of January 2008 that too after inviting objections and suggestions. The development plan was approved and implemented in January 2008. The writ petition has been filed on 30.3.2017, ie., after a period of more than 9 years. It has further been submitted that since 2008 large scale development work has been carried out in the city as per the Indore Development Plan 2021 and several development works are still in progress which pertain to infrastructural development of the city. A writ petition has been filed seeking relief to restrain the respondent No.3 from demolishing the houses of the petitioners. The road widening work as provided under the Indore Development Plan, 2021 is carrying out as per the mandates of this court and the Hon'ble Supreme Court in various matter pertaining to road widening. After carrying out the survey and physical verification notice under Section 305 of M.P. Municipal Corporation Act, 1956 has already been issued to the concerned persons. The Division Bench of M.P. High court, principal seat at Jabalpur vide judgment dated ...27...
W.P.No.2164/2017& W.P.No.3985/2017 9.5.2016 passed in W.A.No.23/2015 (Municipal Corporation Bhopal V/s. Prem Narayan Patidar) and other connected matter has held as under :-
"47. On co-joint reading of Sections 305, 322 and 323 of the Act of 1956, it would mean that if the land within the street line, if is a private property as per the final Town Planning Scheme under the Act of 1973 or Section 291 of the Act of 1956 is formulated and adopted, upon issuance of notice in exercise of power under Section 305 of the Act of 1956 by the Corporation expressing intention to remove obstructions and encroachments falling with such street line and if the owner of the land or occupant of the building fails to remove such obstructions or encroachments, it is bounden duty of the Corporation under section 322 and 323 of the Act of 1956 to remove such obstruction or encroachment on expiry of notice period with utmost dispatch for implementation of the Town Planning Scheme, to pave way for construction of new road or widening of the existing road, as the case may be in larger public interest."
18. In the case of Rajendra Shankar Shukla (supra) the Raipur Development Planned Scheme, viz Kamal Vihar Township Development Scheme (KVTDS) and subsequently included five villages in the said scheme. The lands belonging to the private owners were to be taken over by consent or acquisition. The allegation was that the RDA had assumed the role of Town Planning Authority by proposing and framing ...27...
W.P.No.2164/2017& W.P.No.3985/2017 KVTDS with land use which was different from the one prescribed in the Raipur Master Plan (Revised) 2021. However, in the present case the respondent No.4 - Indore Municipal Corporation has not done any such thing. The Hon'ble Supreme Court in para 22 of the judgment observed that the Master Plan was in clear violation of Section 14 and 17 of the Adhiniyam of 1973, on the ground that Raipur Development Authority admittedly prepared the Master Plan (Revised) 2021, which was in clear contravention of Section 14 of the 1973 Adhiniyam. In the case in hand, the Indore Municipal Corporation has not prepared the Master Plan. The Master Plan has been prepared by the Director as provided under Section 14 of the 1973 Adhiniyam. The Hon'ble Supreme Court in para 26 held that a nominated body like RDA cannot assume the role of an elected body and cannot usurp the power of the local authority. In para 34 it was held that the Development Plan was altered to suit the requisites of Kamal Vihar Township Development Scheme (KVTDS). In the present case there is not such scenario nor such condition is existing.
19. In the matter of Ravindra Ramchandra Waghmare V/s. Indore Municipal Corporation reported as (2017) 1 ...27...
W.P.No.2164/2017& W.P.No.3985/2017 SCC 667 considered the order passed in the matter of Rajendra Shankar Shukla (supra) and has held as under :-
"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. This court has laid down thus :-
--------------------------
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.
20. Similar writ petition registered as W.P.No.6692/2016 (Dr.Tapan Bhatacharya V/s. Urban Development Department & Others), was filed challenging the Development Plan 2021. Vide order dated 19.10.2016, the Division bench rejected the prayer for interim relief and observed as under :-
"The petitioner before this Court has filed this present petitioner challenging the development plan 2021 notified by the State Government vide notification dt. 1.1.2008. The development plan has been brought into force by the State Government in exercise of the powers conferred under Section 19(1) of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973.
An application has been filed for stay of the development plan. It has been argued ...27...W.P.No.2164/2017 & W.P.No.3985/2017
before this Court that in the light of the judgment delivered by the Hon'ble Supreme Court in the case of Rajendra Shankar Shukla & ors. vs. State of Chhattisgarh & Ors., 2015(8) SCALE the implementation of Indore Development Plan 2021 deserves to be stayed.
Shri Manoj Munshi learned Counsel and learned Senior Counsel Shri Sunil Jain, Additional Advocate General have vehemently opposed the prayer for grant of interim relief. Their contention is that the development plan was notified on 1.1.2008 and a stay has been sought after about more than 8 years of period. They further also argued that most of the development work has been carried out and still going on. Large number of projects are at the verge of completion, keeping in view the development plan 2021 and grant of interim relief shall result in chaos in township of Indore. They have also stated that nothing prevented the petitioner to file a proper writ petition, immediately after the notification was issued in the year 2008. They have also stated that crores of rupees have been invested in the township of Indore for development, keeping in view the development plan and no case for stay is made out in the matter.
This Court is of the opinion, that the prayer for grant of interim relief deserves to be rejected and is, accordingly, rejected. The petition is however admitted for final hearing.
As respondents have already marked their presence, the question of payment of process fee does not arise.
The respondents are granted eight weeks time to file reply in the matter.
...27...W.P.No.2164/2017 & W.P.No.3985/2017
List for final hearing in due course."
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 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 ...27...
W.P.No.2164/2017& W.P.No.3985/2017 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 ...27...
W.P.No.2164/2017& W.P.No.3985/2017 Area Based Development (ABD) concept under the Smart City Project and will have modern facilities / features like 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 ...27...
W.P.No.2164/2017& W.P.No.3985/2017 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 ...27...
W.P.No.2164/2017& W.P.No.3985/2017 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 ...27...
W.P.No.2164/2017& W.P.No.3985/2017 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 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 ...27...W.P.No.2164/2017 & W.P.No.3985/2017
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 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 ...27...W.P.No.2164/2017 & W.P.No.3985/2017
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 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 ...27...
W.P.No.2164/2017& W.P.No.3985/2017 procedure..........."
29. Shri A.M. Mathur, learned Senior counsel for the petitioners has submitted that Indore Municipal Corporation has no power to allot EWS flats under the State and Center Enactments Law. The allotment of flat in Treasure Township cannot be made as each one of the petitioner owns a house either in his name or in the name of member of the family. The petitioners are, therefore, ineligible for such allotments. The petitioners are carrying out their small business in the front portion of their house from 50 to 100 years and for such resettlement EWS flats in Treasure township and other locality are unfit for the purpose of residence and purpose of business for the petitioners. The income of the petitioners is not sufficient to pay any EMI as each family has a unit of 5 to 10 persons.
30. As per Annexure R/13, number of EWS flats are available at M/s. Treasure township, Awasa Colony, Silver Star City, Singapore Township, Shri Balaji Sky, Omex Ltd., Silver Mention Extension, Manushri Colony and Prime Corridor. The EWS units are much more than the petitioners in question and the learned Senior counsel for the Corporation has very categorically made a statement that all the affected persons ...27...
W.P.No.2164/2017& W.P.No.3985/2017 will be allotted EWS flats. The respondent No.4 - Corporation has identified the EWS flats in newly constructed township for allotment to the petitioners. The tentative list of the proposed allotment of EWS flats earmarked for the petitioners as is evident vide Annexure R/18. In view of the aforesaid proposal made by the respondent No.4 - Municipal Corporation in its affidavit dated 15.5.2017, it is upon to the petitioners to apply for EWS flats in other locality as mentioned in Annexure R/13 and Annexure R/18. The EWS flats will be allotted in the locality preferred by the petitioners depending upon the availability. The allotment of EWS flats will be made subject to handing over vacant possession of the affected construction situated on the subject stretch where the road widening work is being undertaken by the respondent - Corporation. We are of the view that no further purpose will be served in keeping the writ petition pending as the issued involved in these writ petitions have already been decided by the Hon'ble Apex Court in the case of Ravichandra Waghmare (supra). The decision of the Rajendra Shankar Shukla V/s. State of Chhattisgarh (supra) is distinguishable on facts as stated herein above. The validity of Indore Development Plan, 2021, ...27...
W.P.No.2164/2017& W.P.No.3985/2017 is pending in W.P.No.6692/2016 (Dr.Tapan Bhatacharya V/s. Urban Development Department & Others) filed by Dr. Tapan Bhattacharya and Shri A.M. Mathur, learned Senior Advocate is appearing in the aforesaid matter. In view of the proposal made by Municipal Corporation Indore, for allotment of EWS Flats to the affected persons the present writ petitions have no merit and deserve to be dismissed.
31. For the above mentioned reasons and in view of the averments made in additional affidavit dated 19.5.2017, as the offer has been made by the respondent No.4 - Municipal Corporation voluntarily for a allotment of EWS flats, we with the aforesaid liberty dismissed the writ petitions, but without any orders as to costs.
32. All I.A's, stands disposed of.
(P.K. JAISWAL) (VIRENDER SINGH)
JUDGE JUDGE
Shailesh
Digitally signed by Shailesh Sukhdev
DN: c=IN, o=High Court of Madhya
Pradesh, ou=Administration,
postalCode=452001, st=Madhya
Pradesh,
Sukhdev
2.5.4.20=b99d782efca3d28a06caddf3f a57b98c35054f3dd8638f2f98df0172d 29e61c2, cn=Shailesh Sukhdev Date: 2017.12.21 17:21:13 +05'30' ...27...
W.P.No.2164/2017& W.P.No.3985/2017 HIGH COURT OF MADHYA PRADESH : INDORE BENCH D.B.:Hon'ble Shri P.K. Jaiswal Hon'ble Shri Virender Singh, JJ.
W.P. No.2164/2017MOHD. HAROON & OTHERS.
Versus STATE OF M.P. & OTHERS.
***** W.P. No.3985/2017 JAVED MANSOORI & OTHERS.
Versus STATE OF M.P. & OTHERS.
***** ORDER FOR CONSIDERATION (P.K. JAISWAL) JUDGE /12/2017 HON'BLE SHRI VIRENDER SINGH, J.
(VIRENDER SINGH)
JUDGE
/12/2017
Post for _ /12/2017
(P.K. JAISWAL)
JUDGE
...27...
W.P.No.2164/2017
& W.P.No.3985/2017
/12 /2017
W.P.No.2164/2017
W.P.No.3985/2017
5.12.2017
Shri A.M. Mathur, learned Senior counsel with Shri A. Dhanodkar, Advocate for the petitioners.
Shri Purushyamitra Kaurav, learned Advocate General with Shri P. Bhargava, learned Dy.A.G. for the respondents No.1 to 3.
Shri A.K. Sethi, learned Senior Advocate with Shri Rishi Tiwari, Advocate for the respondent No.4.
Arguments heard.
Reserved for orders.
(P.K. JAISWAL) (VIRENDER SINGH)
JUDGE JUDGE
SS/-