Evangelicall Lutheran Church In ... vs The State Of Madhya Pradesh
2021 Latest Caselaw 5771 MP

                                                                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'