--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITION NO. 8996 / 2011 JAGDISH S/O BABULAL AND 4 OTHERS Vs. INDORE MUNICIPAL CORPORATION INDORE * * * * * O R D E R ( 16/12/2011) The petitioner before this Court has filed this present writ petition being aggrieved by the order dt. 11/11/2011 passed by the learned 8th Addl. District Judge, Indore in Misc. Appeal No. 2 / 2011 dismissing petitioners' appeal filed under Or. 43 Rule 1 of the Code of Civil Procedure affirming the order dt. 28/9/11 passed by the learned 7th Civil Judge, Class I, Indore in C.S.No. 5-A/2011 rejecting the petitioners' application under Or. 39 Rule 1 and 2 of the Code of Civil Procedure. In the present case, as per the averment made in the writ petition, the Indore Municipal Corporation, in order to widen up the road under the Bus Rapid Transport System is --- 2 --- taking steps in encroaching the property by the petitioner. Petitioners being aggrieved by the action of the respondents in the matter of widening of the road and constructing a road over their property have preferred a civil suit. However, their application for grant of injunction has been rejected. Learned counsel for the respondents have informed this Court that keeping in view the congestion in traffic, the road is being widen up and the entire cost of project is about 800 crores. Large number of writ petitions were preferred before this court restraining the corporation in the matter of widening of the road and the point argued in the present case were also argued in other identical matters. Learned counsel for the petitioner has placed reliance upon a judgment delivered in the case of K. T. Plantation Private Ltd., and another Vs. State of Karnataka reported in (2011) 9 SCC 1 and his contention is that compensation has to be paid to the petitioners. The issue relating to compensation has already been considered by the Division Bench of this Court and this Court in the case of Shri Ravindra Ramchandra Waghmare Vs. Indore Municipal Corporation and others --- 3 --- (WP No. 6324 / 2009) decided on 28/09/2010 has held as under : It has been contended by learned Senior Counsel for the appellant that the writ court has not properly construed the provisions of section 78, 79 and 305 of the Act. According to him, the petitioner's land can not be acquired without payment of compensation. He submits that the learned Single Judge has wrongly applied provisions of section 305 of the Act as there is no regular line of public street being determined by the first respondent – Corporation and in the circumstances, the land can not be acquired by holding that it is in the 'Set Back'. It is also his case that the writ court has not decided the question raised by the appellant that the road and the land in question being situated on National Highway neither the Municipal Corporation nor the Indore Development Authority can construct and widen the said road. He also argued that the acquisition of land without payment of compensation is violative of Article 300-A of the Constitution. It is also his case that instead of paying the compensation the Corporation has offered extra F.A.R., which is not permissible under the Act. Having heard learned Senior Counsel for the appellant, we find no merit in this writ appeal. --- 4 --- It is not in dispute that the appellant was served with a notice dated 26.05.2007. It is also not in dispute that the appellant was informed by the first respondent – Indore Municipal Corporation that the road in question is to be widened to the extent of 60 meters. In the circumstances, in our considered view, the writ court has committed no error in holding that the regular line of public street has been determined by the Corporation. The road in question being within the Municipal Corporation limit, the appellant's contention that the Indore Municipal Corporation or the I.D.A. has no right to construct or widen the road, can not be accepted. So far as the question of payment of compensation prior to taking over the possession of the land and question about applicability of section 78, 79 and 305 of the Act, we find that this question has already been considered and decided by a Division Bench of this Court vide order dated 29.09.2010 in the case of Ravi Kumar son of Shanti Lal Jain and another vs. Indore Municipal Corporation and others in Writ Appeal No.388 of 2010. The Division Bench after taking into consideration the aforesaid provisions of the Act and the earlier judgments passed by this court as also of the Supreme Court has already taken a view by observing thus :- --- 5 --- “9. It is not in dispute that the appellants were served with the notice dated 04.03.2008 by which it was informed by the Municipal Corporation to the appellants that the road in question is to be widened to the extent of 80 feet. In the circumstances, the learned Single Judge has committed no error in holding that the regular line of public street has been determined by the Corporation since undoubtedly the Corporation is constructing a road over the regular line of public street, in the circumstances the learned Single Judge has rightly held that the question of applicability of Sections 78 and 79 does not arise. 10. In the case of Tara Bai Vs. Indore, Municipal Corporation, Indore 1977 (1) MPWN 321 it has been held by this Court that :- “Section 305 of the Madhya Pradesh Municipal Corporation Act 1956 makes clear that the setting back by legal fiction shall have the effect of vesting that land in the Corporation. The language does not at all suggest or make out that the vesting would in any manner be dependent on the Corporation's making reasonable compensation to the owner for any damage or loss he may sustain in consequence of the set back.” 11. In the case of Indore --- 6 --- Municipality Vs. K.N. Palsikar AIR 1969 SC 579 the Supreme Court while construing Section 305 of the Act has held that once the condition required by the said Section are satisfied vesting is automatic. In the case of Suresh Singh Kushwaha Vs. Municipal Corporation Gwalior and another 2006 (3) MPLJ 412 it has been held by this Court that once the Municipal Corporation has prepared a plan determining the regular line of public street any portion of the building which is projected beyond this line automatically vests in the Corporation in view of Section 305 of the Act and, therefore, the Corporation has right to demolish the portion of said building and no proceedings under the Land Acquisition Act are required. 12. We find that in the present case the Municipal Corporation has already offered F.A.R., if the petitioners are not satisfied with the said offer, it is free for them to seek remedy for compensation as provided under Section 387 of the Act. The vesting being automatic the further action on the basis of vesting would not be dependent upon payment of reasonable compensation to the owner on account of set back. 13. We find no ground to interfere into the impugned order passed by the learned Single Judge. The learned Single Judge has also taken --- 7 --- care of the compensation part by observing that the respondents Corporation while constructing the road also pass necessary orders in the matter of grant of compensation as provided under Section 305 of the Act and shall also be free to pass any other appropriate orders keeping in view the provisions of the Act. We find no infirmity or illegality in the view taken by the learned Single Judge.” Having considered the submissions, we are not inclined to take a different view then the view taken by Division Bench of this court in Ravi Kumar son of Shanti Lal Jain and another vs. Indore Municipal Corporation and others (supra). In view of clear provision contained in section 305 of the Act vesting of land being automatic and so long the said section is in the statute book, the appellant's contention based upon Article 300-A of the Constitution cannot be accepted. Accordingly, the writ appeal fails and is hereby dismissed. In the light of the order passed by the Division Bench of this court and specially keeping in view the fact that the road in front of the petitioners house is like a bottleneck and more than 90% of the work is already over in respect of the --- 8 --- road in question, this court does not find any reason to interfere with the order passed by the learned Civil Judge, rejecting the prayer for grant of injunction and the order dt. 11/11/11 rejecting the appeal. The writ petition is accordingly dismissed. (S. C. SHARMA) J U D G E KR