Madhya Pradesh High Court
Evangelicall Lutheran Church In Mp(Eld ... vs The State Of Madhya Pradesh on 21 September, 2021
Author: Chief Justice
Bench: Chief Justice
WP-18711-2021
[1]
THE HIGH COURT OF MADHYA PRADESH
W.P. No. 18711/2021
[Evangelical Lutheran Church in MP vs. Municipal Corporation Sagar and another)
Jabalpur, Dated: 21-09-2021
Shri Siddharth Gulatee, Advocate for the petitioner.
Shri Anshuman Singh, Advocate for the respondents.
This writ petition has been filed by petitioner - Evangelical Lutheran Church in MP (ELC in MP) challenging the notice dated 01.09.2021 (Annexure P/7) issued to them by the Executive Engineer, Municipal Corporation, Sagar under Sections 305 and 306 of the Municipal Corporation Act, 1956 (for short "the Act").
2. By the aforesaid notice, the petitioner has been informed that the boundary of its property, situate at Ward No.3, Civil Lines, Sagar, ad- measuring 666 Square Meter, which is within the municipal limits of Municipal Corporation, Sagar, is falling in the way of construction and widening of the main road at the stretch from Tili Tiraha to Civil Line Square. Therefore, the petitioner has been called upon to either remove the outer-construction by itself or else the same would be removed by the Municipal Corporation after 07.09.2021.
3. Learned counsel for the petitioner submitted that the petitioner is a registered society duly registered under the M.P. Society Registrikaran Adhiniyam, 1973. It is also registered as a minority institution under the provisions of the M.P. Rajya Alpasankhyak Ayog Adhiniyam, 1996. The petitioner society is running two educational institutions named as Swedish Mission Higher Secondary School, Civil Lines Cent Sagar and ELC English Medium Higher Secondary School, Sagar, Swedish Mission WP-18711-2021 [2] Compound Civil Line, Sagar. The total irrevocable permanent lease area of the petitioner is admeasuring 480989 Square Feet. The District Education Officer, Sagar has issued a certificate of recognition to the Swedish Mission Higher Secondary School on 27.03.2019. Aggrieved by the aforesaid notice dated 01.09.2021 (Annexure P/7) issued to it under Section 305 and 306 of the Act, the petitioner has submitted a reply on 02.09.2021 (Annexure P/8) informing that the decision to remove the construction as per the notice shall be taken by the petitioner-Society in its next meeting. The petitioner therefore has requested for deferment of the matter till 15.09.2021. However, the respondents have sent notice for demolition. The allegation that the petitioner is encroacher on the subject land is wholly unfounded. Learned counsel for the petitioner further argued that in any case the land of the petitioner cannot be taken possession of without paying compensation, which is simultaneously prescribed under Section 305 of the Act.
4. Per contra, learned counsel for the respondents argued in support of the impugned notice. He has placed heavy reliance on the judgment of the Supreme Court in Ravindra Ramchandra Waghmare vs. Indore Municipal Corporation and others, (2017) 1 SCC 667 wherein, while dealing with the power of the Municipal Corporation, the Supreme Court has held that the words in Section 305(1)(b) "that part or some portion of the part projecting beyond the regular line" of the public street may be removed. The Court held that the provision under Section 305 of the Act envisages deemed vesting of the land and thus, permits taking possession of the land prior to payment of compensation, upon building or the WP-18711-2021 [3] projecting part being removed or when the Corporation has issued a notice and such notice was held to be valid. It was further held that such vesting does not depend upon the volition of the owner otherwise no public street can ever be brought in regular line. There is no requirement of separate provision for taking possession as there is a specific provision of Section 305 of the Act for removal of constructions projecting into public roads. Adequate safeguards have been provided for fixing the regular line of a public street while preparing the development plan or the town development scheme. As regards the compensation, it was held that issue as to award of additional FAR in lieu of, or in addition to compensation and adequacy of compensation is the job of the competent authorities and the appellant can raise these issues before them at the appropriate stage. However, at the same time, while analysing the provisions of Sections 305, 306 and 387 of the Act, it was held by the Supreme Court that reasonable compensation is payable by the Corporation for building or part thereof excluding the land under proviso to Section 305(1) of the Act and compensation for inclusion of land in public street is payable under Section 306 of the Act.
5. In the facts of the case, therefore, while not interfering with the impugned notice Annexure P/7, we require the petitioner to approach the respondent No.1 for raising its claim for compensation, who shall have the same examined in the light of the relevant provisions for determination of the compensation in accordance with law and pass a speaking order within a period of three months from the date of WP-18711-2021 [4] submission of such claim with them by the petitioner, along with certified copy of this order.
6. With the aforesaid direction, the present writ petition stands disposed of.
(MOHAMMAD RAFIQ) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
S/
Digitally signed by SACHIN CHAUDHARY
Date: 2021.09.22 10:19:35 +05'30'