--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: Hon. Mr. S. c. Sharma, J WRIT PETITION NO. 6324/2009 Shri Ravindra Ramchandra Waghmare Vs. Indore Municipal Corporation & 5 Ors., * * * * * [ J U D G M E N T ] ( 28/9/2010) The petitioner before this court has filed this present petition being aggrieved by notice dated 26/5/07 issued by Indore Municipal Corporation. The contention of the petitioner is that the petitioner is owner of land bearing survey No.360, 382, 382/437 measuring 2.72 acres situated at Khajrani Tehsil, Indore and the property was acquired by the petitioner 25 years ago. It has also been stated that a residential house has been constructed and a completion certificate is on record as Annexure P/1. Petitioner has also stated that a notice was served on 26/5/07 issued by the Corporation for demolition of the boundary well and it was alleged in the notice that for the purpose of widening of the road the land demarcated as setback area was to be used by Corporation. Petitioner has further stated that they have --- 2 --- submitted a reply on 13/7/2007 and the respondent corporation without acquiring the land of the petitioner and without following the prescribed procedure as provided u/S. 78 and 79 of the Municipal Corporation Act, 1956, are proceeding ahead in the matter and therefore as the property of the petitioner is being acquired by the corporation without granting compensation to the petitioner, no such acquisition can take place in the matter. The petitioner has also stated in the writ petition that the right to property is a constitutional right as held by the apex court in the case of Indore Vikas Pradhikaran Vs. Pure Industrial Coke & Chemicals Ltd., & Ors., 2007 (8) SCC 705 and therefore without granting compensation, the land of the petitioner cannot be acquired. It has also been stated in the writ petition that the road in question is a National Highway and the State Government, Municipal Corporation nor the IDA has got any authority to widen the road in question. The petitioner has also before this court that without acquiring the property in question, the question of widening of the road does not arise. It has also been stated that in other identical matters interim orders has --- 3 --- been granted by this court and therefore question of demolition of the boundary wall of the petitioner does not arise. Learned counsel for the petitioner submits that the setback area has not been demarcated by the respondents and there is no document on record to show the regular line of public street as determined by the corporation and therefore unless and until the regular line of public street is shown by the corporation and the set back area is shown by the corporation, no such demolition of wall can take place. A reply has been filed in the matter by Indore Development Authority and the contention of the respondent No.4 is that keeping in view the congestion in traffic a “Bus Rapid Transit Scheme (BRTS)” has been introduced by Atal Indore City Company Ltd., and the entire project is costing about 800 crores. It has also been stated that other petition filed in respect of the same corridor have been dismissed by this court ie., WP NO. 6187/09 State Bank of Indore (now merged with State Bank of India) Vs. State of M.P. & Ors., and WP NO. 3793/10 State Bank of India Vs. Indore Municipal Corporation & Ors., and the road in front of the --- 4 --- house of the petitioner has become a bottleneck resulting in congestion in the traffic. The IDA has also stated before this Court that the present writ petition deserves to be dismissed and the petitioner at the best is entitled for additional F.A.R., as has been done in other cases. It has also been stated that the question of granting compensation does not arise in the peculiar facts and circumstances of the case. A reply has been filed on behalf of the Municipal Corporation and the contention of the Municipal Corporation is that they have issued a notice on 26/5/07 informing the petitioner to remove the illegal construction (boundary wall) as the same is within set back area. It has also been stated that Master Plan was sanctioned in the year 1975 in respect of Rajiv Gandhi Chouraha to Dewas Naka and later on the Master Plan has again been sanctioned ie., Master Plan 2021. It has also been stated that as there is heavy traffic on the road in question and a project has been sanctioned known as BRTS Project costing 800 crores and almost 90% of the work is already over. It has also been stated that this court has dismissed large number of Writ Petitions involving same --- 5 --- road and because of the interim order granted by this court in the present case on 1/9/09 Corporation is not able to construct the road in front of the house of the petitioner and the road has become a bottleneck in front of the house of the petitioner. Respondents Stated that Section 78 and 79 are not applicable in the present case as they are constructing the road by using the setback area. The respondent corporation has also argued before this court that the petitioner at the best will be entitled for the benefit of additional F.A.R., if any in the matter. It has also been stated that the action against the petitioner is being initiated u/S. 305 of the Municipal Corporation Act, 1956 and therefore the question of paying compensation to the petitioner as per the provisions of Sec. 78 and 79 does not arise. Respondents have prayed for dismissal of the petition. An application for intervention has also been filed in the matter and the stand of the intervenor is that family members of the present petitioner have agreed to sell a part of the land and it has been stated that the family members of the petitioner have entered into an agreement of sale for selling part of the land --- 6 --- and a total payment of Rs.84 .00 lacs was received by certainly family members as detailed in the application for intervention. It has also been stated that a Civil Suit was preferred by the intervenor and the same is pending before 13th Addl. Distt. Judge, Indore. The contention of the intervenor is that as the intervenor is having a right in the property in question and he is entitled for the benefit of additional FAR if any in the matter. Heard learned counsel for the parties at length and perused the record. In the present case so far as the intervenor is concerned, the intervenor does not hold a title in respect of the land in question and until and unless the civil suit preferred by the intervenor is decided the question of passing any order in favour of the intervenor does not arise. In the present case a project known as Bus Rapid Transit Scheme (BRTS) has been introduced by Indore Municipal Corporation in order to widen the road ie., A.B. Road. The total cost of the project is 800 crores and 90% of the work is already over. The road in front of the petitioner's --- 7 --- house has become a bottleneck and the Corporation has not been able to construct the road in front of the house of the petitioner though a notice was issued way back in the year 2007. It is pertinent to note that large number of writ petitions were filed before this court and this court has taken a uniform view in all other cases that the corporation can very well utilise set back area keeping in view the provisions of Sec. 305 of the Municipal Corporation Act, 1956. In the present case the petitioner has not been filed any sanctioned map before this court in order to establish that the corporation is encroaching upon the land other than the set back area. No sanctioned map along with the writ petition nor any sanctioned map along with the rejoinder has been filed. This court has carefully gone through the reply filed by the corporation and the reply reveals that the corporation is only widening the road by taking into account the regular line of public street and is using the set back area and therefore as the corporation is utilising the set back area, the question of granting a compensation and the question of applicability of Sec. 78 and 79 does not arise in t he peculiar --- 8 --- facts and circumstances of the case. Sec. 78 and 79 of the Municipal Corporation Act reads as under : 78. Acquisition of immovable property or easement by agreement.- (1) Whenever it is provided by this Act that the Commissioner may acquire or whenever it is necessary or expedient for any purppose of this Act that the Commissioner shall acquire , any immovable property, such property may be acquired by the Commissioner on behalf of the Corporation by agreement on such terms and at such rates or prices, or at rates or prices not exceeding such maxima , as shall be approved by the Mayor – in – Council either generally for any class of cases or specially in particular case. (2) Whenever under any provision of this Act the Commissioner is authorised to agree to pay the whole or any portion of the expenses of acquiring any immovable property, he shall do so on such terms and at such rates or prices or at rates orprices not exceeding such maxima as shall have been approved by the Mayor in Council: Provided that no agreement for the acquisition of any immovable property under sub-section (1) or (2) at a price exceeding one thousand rupees shall be valid until such agreement has been approved bythe Corporation. (3) The Commissioner may on behalf of the Corporation acquire by agreement any easement affecting any immovable property vested in the Corporation and the provisions of sub- --- 9 --- sections (1) and (2) shall apply to such acquisition. 79. Procedure when immovable property or easement cannot be acquired by agreement. (1) Whenever the Commissioner is unable under section 67 to acquire by agreement any immovable property or any easement affecting any immovable property orwhenever any immovable property or any easement affecting any immovable property vested in the Corporation is required for the purposes of this Act, the Government may in its discretion upon the application of the Commissioner made with the approval of the Mayor in council order proceedings to be taken for acquiring the same on behalf of the Corporation as if such property or easement were land needed for a public purpose within the meaning of the Land Acquisition Act, 1894. (2) The amount of the compensation awarded and all other charges incurred in the acquisition of any such property or easement shall subject to all other provisions of this Act be fortwith paid by the Commissioner and thereupon thesaid property oreasement shall vest in the Corporation. (3) When any land is required for a new street or for the widening or improving of an existing street the Commissioner mayproceed to acquire in addition to the land to be occupied by the street the land necessary for the sites of the building to be erected on both sides of the streeets and such land shall be deemed to be required for the purposes of this Act. --- 10 --- The aforesaid statutory provisions provides for acquisition of immovable property or easement by agreement and also for a procedure when immovable property cannot be acquired by agreement. The aforesaid provisions provides for grant of compensation in case a property is acquired by the corporation. Section 305 of the Municipal Corporation Act, 1956 reads as under : 305. Power to regulate line of buildings. (1) If any part of a building projects beyond the regular line of a public street either as existing or as determined for the future or beyond the front of immediately adjoining buildings the corporation may - (a) if the projecting part is a verandah, step or some other structure external to the main building, then at any time or (b) if the projecting part is not such external structure as aforesaid then whenever the greater portion of such building or whenever any material portion of such projecting part has been taken down or burned down or has fallen down require by notice either that the part or some portion of the part projecting beyond the regular line or beyond the front of the immediate adjoining building shall be removed or that such building when being rebuilt shall be set back to or towards the said line or front and the portion of land added to the street by such setting back or removal shall henceforth be deemed to --- 11 --- be part of the public street and shall vest in the corporation; Provided that the corporation shall make reasonable compensation to the owner for any damage or loss he may sustain in consequence of his building or any part thereof of being set back. (2) The Corporation may on such terms as it thinks fit allow any building to be set forward for the improvement of the line of the street. The aforesaid statutory provisions provides for regulating the line of buildings and also provides for grant of reasonable compensation to the owner of the building for any damage or loss which he may sustain in case the building or part of the building is removed or any part of the building is being removed which has been constructed over the set back area. The corporation has categorically stated in the return that the corporation is not at all going to demolish the building of the petitioner and the land of set back area and the marginal open space is being utilised for widening of the road as the land automatically vests in the corporation in the light of the provision of Sec. 305 of the Act. Thus the present case is not a case of demolition of the building as stated in the return and the area which is shown as set back area and the area which is shown as Marginal Open Space is being utilised for widening up --- 12 --- of the road. This court in the case of Suresh Singh Kushwaha Vs. Municipal Corporation, Gwalior 2006 (3) MPLJ 412, in paragraph 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 has held as under : 7. To appreciate the arguments it is necessary to first refer to sections 304, 305 and 306 of the M. P. Municipal Corporation Act, 1956 (hereinafter referred to as the “Act”). Section 304 of the Act relates to erection and use of temporary building to be approved by Commissioner. This section lays down that no building shall be erercted for a temporary purpose without the sanction of the Commissioner. Sub-section (2) of this section provides that if any building accordance with any bye-laws made under this Act, or is erected without the sanction of the Commissioner, the building may be demolished by the Commissioner at the expsness of theowner thereof. Thus this section has no application in the present case as it is not reflected from the Notice Annexure P/1 that the buildings of the petitioners are erected for temporary purpose or used for the purpose for which sanction was not granted. On the other hand, from the notice and the sale deeds on record it appears that permanent structure is situated on the spot. Petitioners have also filed receipts of property tax to show that the building is situated for the last so many years. Annexure P/3 in WP No. 2721/06 is a copy of the map prepared for the purpose of road widening scheme. This also shows that the structures raised by the petitioners are not temporary --- 13 --- structures but they are their permanent buildings situated at Hanuman chouraha. 8. Section 305 of the Act provides for regulating line of buildings the said section reads as under : 305. Power to regulate line of buildings. (1) If any part of a building projects beyond the regular line of a public street either as existing or as determined for the future or beyond the front of immediately adjoining buildings the corporation may - (a) if the projecting part is a verandah, step or some other structure external to the main building, then at any time or (b) if the projecting part is not such external structure as aforesaid then whenever the greater portion of such building or whenever any material portion of such projecting part has been taken down or burned down or has fallen down require by notice either that the part or some portion of the part projecting beyond the regular line or beyond the front of the immediate adjoining building shall be removed or that such building when being rebuilt shall be set back to or towards the said line or front and the portion of land added to the street by such setting back or removal shall henceforth be deemed to be part of the public street and shall vest in the corporation; Provided that the corporation shall make reasonable compensation to the owner for any damage or loss he may sustain in consequence of his building or any part thereof of being set back. --- 14 --- (2) The Corporation may on such terms as it thinks fit allow any building to be set forward for the improvement of the line of the street. As per the said section, if any part of the building projects beyond the regular line of a public street, either as existing or as determined for the future then the said portion can be demolished after service of notice. This section provides that either part of the building or some portion of the part projecting beyond the regular line or beyond the front of the immediate adjoining building shall be set back to or towards the said line orfront; and the portion of the land added to the street by such setting back or removal shall henceforth be deemed to be part of the public street and shall vest in the Corporation provided that the Corporation shall make reasonable compensation to the owner for any damage or loss he may sustain in consequence of his building or any part thereof being set back. 9. The aforesaid provision was constructed by the Apex Court in the case of Indore Municipality Vs. K. N. Palsikar , AIR 1969 SC 579 wherein it has been laid down that once the conditions required by the said section are satisfied, vesting is automatic. From perusal of the judgment of the Apex Court in the aforesaid case, it appears that in t hat case 1455 sq.ft. Of land was required for road widening scheme and the Municipality has proposed to allow him compensation @ Rs.2.50 per sq. ft. This was challenged by the landowner. The Apex Court considered the provisions of section 305 --- 15 --- of the Act in para 14 of its judgment and held that section 305 itself provides for automatic vesting of the land. 10. This court has considered the said provisions in the case of Tarabai Vs. Indore Municipal Corporation, Indore, 1977 (I) MPWN 321 AND held as under : “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 compensationto the owner for any damage or los he may sustain in consequence of the set back. On behalf of the appellant, section 387 of the Corporation Act was also relied on, in support of his contention. In the opinion of this court, this section is hardly of any assistance to support that. All that section 387 of the Corporation Act provides is about arbitration in cases of compensation etc. thus, even assuming section 387 of the Corporation Act would be applicable in the instant case then also this court is clearly of the opinion that as far as the set back land becoming part of thepublic street and vesting of the land in the Corporation are concerned they would not be at all dependant on the payment of compensation. 11. From perusal of aforesaid case, it appears that no proceedings either under section 4 or 6 of the Land Acquisition Act were taken foracquisition of the land and --- 16 --- the court while construing the provisions of section 305 of the Act has held that once line is determined then there is automatic vesting of the land and compensation for the same can be determined under section 306 of the Act. 12. In reply to this argument , counsel for the petitioners relied on the provisions of sections 78, 79 and 79-A of the Act. Section 78 provides for acquisition of immovable properlty by agreement while section 79 provides the procedure when the immovable property can be acquired when agreement is not possible. Section 79 reads as under : 79. Procedure when immovable property or easement cannot be acquired by agreement. (1) Whenever the Commissioner is unable under section 67 to acquire by agreement any immovable property or any easement affecting any immovable property or whenever any immovable property or any easement affecting any immovable property vested in the Corporation is required for the purposes of this Act, the Government may in its discretion upon the application of the Commissioner made with the approval of the Mayor in council order proceedings to be taken for acquiring the same on behalf of the Corporation as if such property or easement were land needed for a public purpose within the meaning of the Land Acquisition Act, 1894. (2) The amount of the compensation awarded and all other charges incurred in the acquisition of any such property or easement shall subject to all other provisions of this Act be --- 17 --- forthwith paid by the Commissioner and thereupon the said property or easement shall vest in the Corporation. (3) When any land is required for a new street or for the widening or improving of an existing street the Commissioner may proceed to acquire in addition to the land to be occupied by the street the land necessary for the sites of the building to be erected on both sides of the streets and such land shall be deemed to be required for the purposes of this Act. 13. Counsel for the petitioners also relied upon the word “vest” used in the Land Acquisition Act and submitted that until and unless the land is acquired as per the provision of the Land Acquisition Act, 1894, the land does not vest in the Municipal Corporation. 14. This argument does not have any force in the light of the judgment in the case of K N Palsikar (s7pra) in which the Apex Court held that wheh the conditions required by section 305 of the Act are complied with, then the properlty automatically vests in the Corporation. For satisfying the condition of section 305 of the Act, it is necessary that a building or part of the building is projected beyond the regular line of public street either as existing or as determined for the future. In the present case, the Municipal Corporation has prepared a plan determining the regular line of public street as is shown in the map Annexure P/3. Once this line is determined, any portion of the building which is projected beyond this line --- 18 --- automatically vests in the