Madhya Pradesh High Court

Gendalal vs State Of M.P. on 11 October, 2023

Author: Vivek Rusia

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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 11th OF OCTOBER, 2023
WRIT PETITION No. 6699 of 2023

BETWEEN:-
OM CHOUDHARY S/O SHANKAR, AGED ABOUT 40 YEARS,
OCCUPATION: AGRICULTURE R/O 85 KHATIPURA NEAR SUKHLIYA
GOVT. SCHOOL DISTT. INDORE (MADHYA PRADESH)
.....PETITIONER
(SHRI MANISH YADAV, ADVOCATE FOR THE PETITIONER.)

AND
THE STATE OF MADHYA PRADESH COMMISSIONER INDORE
1.
MUNICIPAL CORPORATION INDORE (MADHYA PRADESH)
C.E.O. INDORE DEVELOPMENT AUTHORITY INDORE (MADHYA
2.
PRADESH)
COLLECTOR COLLECTOR OFFICE DISTRICT INDORE (MADHYA
3.
PRADESH)
.....RESPONDENTS
(SHRI KUSHAL GOYAL, DEPUTY ADVOCATE GENERAL FOR THE
RESPONDENT / STATE.
SHRI AMOL SHRIVASTAVA, ADVOCATE FOR THE RESPONDENT NO.1.)

WRIT PETITION No. 6688 of 2023

BETWEEN:-
SUBHASH S/O BALARAM, AGED ABOUT 57 YEARS, OCCUPATION:
AGRICULTURE R/O NEAR HOUSE OF PARSHAD 189 KHATIPURA
VILLAGE INDORE (MADHYA PRADESH)
.....PETITIONER

Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 12-10-2023
10:29:23
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(SHRI MANISH YADAV, ADVOCATE FOR THE PETITIONER.)

AND
THE STATE OF MADHYA PRADESH THROUGH COMMISSIONER
1.
INDORE MUNICIPAL CORPORATION INDORE (MADHYA PRADESH)
C.E.O. INDORE DEVELOPMENT AUTHORITY INDORE (MADHYA
2.
PRADESH)
3. COLLECTOR COLLECTOR OFFICE INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI AMOL SHRIVASTAVA, ADVOCATE FOR THE RESPONDENT NO.1.
SHRI KUSHAL GOYAL, DEPUTY ADVOCATE GENERAL FOR THE
RESPONDENT NO.3 / STATE.
SHRI SACHIN PARMAR, ON BEHALF OF SHRI NEELU KHETRA, ADVOCATE
FOR THE RESPONDENT NO.2.)

WRIT PETITION No. 6689 of 2023

BETWEEN:-
KOSHALYA BAI CHOUDHARY W/O SHANKARLAL CHOUDHARY, AGED
ABOUT 63 YEARS, OCCUPATION: AGRICULTURE 84, KHATIPURA,
SUKHLIYA, DISTRICT INDORE (MADHYA PRADESH)
.....PETITIONER
(SHRI MANISH YADAV, ADVOCATE FOR THE PETITIONER.)

AND
THE STATE OF MADHYA PRADESH THROUGH COMMISSIONER
1.
INDORE MUNICIPAL CORPORATION, INDORE (MADHYA PRADESH)
C.E.O. INDORE DEVELOPMENT AUTHORITY INDORE (MADHYA
2.
PRADESH)
3. COLLECTOR COLLECTOR OFFICE INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI KUSHAL GOYAL, DEPUTY ADVOCATE GENERAL FOR THE STATE.
SHRI AMOL SHRIVASTAVA, ADVOCATE FOR THE RESPONDENT NO.1.
SHRI SACHIN PARMAR ON BEHALF OF SHRI NEELU KHETRA, ADVOCATE
FOR THE RESPONDENT NO.2.)

Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 12-10-2023
10:29:23
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WRIT PETITION No. 6715 of 2023

BETWEEN:-
RAMESH CHAND SOLANKI S/O RADHA KRISHNA, AGED ABOUT 56
1. YEARS, OCCUPATION: AGRICULTURE 184/5, SUKHLIYA SECTOR-D
INDORE DISTRICT INDORE (MADHYA PRADESH)
ASHOK S/O RADHA KRISHNA, AGED ABOUT 54 YEARS, OCCUPATION:
2.
AGRICULTURE 91, SUKHLIYA, DIST. INDORE (MADHYA PRADESH)
DINESH SOLANKI S/O RADHA KRISHNA, AGED ABOUT 56 YEARS,
3. OCCUPATION: AGRICULTURE SANWER ROAD, 42 SUKHLIYA GRAM,
DIST. INDORE (MADHYA PRADESH)
.....PETITIONER
(SHRI MANISH YADAV, ADVOCATE FOR THE PETITIONER.)

AND
THE STATE OF MADHYA PRADESH THROUGH COMMISSIONER
1.
INDORE MUNICIPAL CORPORATION, INDORE (MADHYA PRADESH)
C.E.O. INDORE DEVELOPMENT AUTHORITY DIST. INDORE (MADHYA
2.
PRADESH)
COLLECTOR COLLECTOR OFFICE DIST. INDORE (MADHYA
3.
PRADESH)
.....RESPONDENTS
(SHRI KUSHAL GOYAL, DEPUTY ADVOCATE GENERAL FOR THE STATE.
SHRI AMOL SHRIVASTAVA, ADVOCATE FOR THE RESPONDENT NO.1.
SHRI SACHIN PARMAR ON BEHALF OF SHRI NEELU KHETRA, ADVOCATE
FOR THE RESPONDENT NO.2.)

WRIT PETITION No. 6729 of 2023

BETWEEN:-
GENDALAL S/O JAMNALAL, AGED ABOUT 71 YEARS, OCCUPATION:
1. AGRICULTURE 111, SUKHLIYA GAWA DEV SHREE COLONI, INDORE,
IDUSTRIAL ESTATE, INDORE (MADHYA PRADESH)

2. GHYANSHYAM S/O JAMNALAL, AGED ABOUT 68 YEARS,
OCCUPATION: AGRICULTURE 110, SUKHLIYA GAWA DEV SHREE

Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 12-10-2023
10:29:23
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COLONI, INDOR, INDUSTRIAL ESTATE, INDORE (MADHYA PRADESH)
.....PETITIONER
(SHRI MANISH YADAV, ADVOCATE FOR THE PETITIONER.)

AND
STATE OF M.P. THROUGH COMMISSIONER INDORE MUNICIPAL
1.
CORPORATION, INDORE (MADHYA PRADESH)
C.E.O. INDORE DEVELOPMENT AUTHORITY INDORE (MADHYA
2.
PRADESH)
3. COLLECTOR COLLECTOR OFFICE, INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI KUSHAL GOYAL, DEPUTY ADVOCATE GENERAL FOR THE STATE.
SHRI AMOL SHRIVASTAVA, ADVOCATE FOR THE RESPONDENT NO.1.
SHRI SACHIN PARMAR ON BEHALF OF SHRI NEELU KHETRA, ADVOCATE
FOR THE RESPONDENT NO.2.)

WRIT PETITION No. 6842 of 2023

BETWEEN:-
KOMAL BAI W/O MANOHAR CHOUDHARY, AGED ABOUT 53 YEARS,
1. OCCUPATION: AGRICULTURE 141, KHATIPURA, DISTRIC INDORE
(MADHYA PRADESH)
VIKAS S/O MANOHAR CHOUDHARY, AGED ABOUT 33 YEARS,
2. OCCUPATION: AGRICULTURE 189, KHATIPURA, DIST. INDORE
(MADHYA PRADESH)
VIJAY S/O MANOHAR CHOUDHARY, AGED ABOUT 29 YEARS,
3. OCCUPATION: AGRICULTURE 189, KHATIPURA, DIST. INDORE
(MADHYA PRADESH)
.....PETITIONER
(SHRI MANISH YADAV, ADVOCATE FOR THE PETITIONER.)

AND
STATE OF M.P. THROUGH COMMISSIONER INDORE MUNICIPAL
1.
CORPORATION, INDORE (MADHYA PRADESH)

Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 12-10-2023
10:29:23
-5-

C.E.O. INDORE DEVELOPMENT AUTHORITY INDORE (MADHYA
2.
PRADESH)
COLLECTOR COLLECTOR OFFICE DIST. INDORE (MADHYA
3.
PRADESH)
.....RESPONDENTS
(SHRI KUSHAL GOYAL, DEPUTY ADVOCATE GENERAL FOR THE STATE.
SHRI AMOL SHRIVASTAVA, ADVOCATE FOR THE RESPONDENT NO.1.)
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This petition coming on for orders this day, the court passed the
following:

ORDER

[01] The petitioners have filed the present petitions challenging the action of the respondent whereby instead of paying them the compensation, offered them enhancement in FAR by issuing compensation certificate. According to the petitioners, they are not interested in extra FAR but amount of compensation as per Land Acquisition Act because in some of the cases their entire lands have been taken for construction of the road. They are also doing the agricultural activities and their crops are being damaged because of this construction which has been started for which also they are entitled to get extra amount of compensation.

[02] As per the master plan, the Municipal Corporation Indore has started the construction of RW1 (Banganga Railway crossing to ISBT) in which the land belonging to the petitioners have been taken without assessment and payment of compensation. Instead of giving them compensation, a "Compensation Certificate" dated 20.05.2022 has been issued by Building Officer, Zone No.17 to the effect that at the

Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 12-10-2023 10:29:23

time of construction of their building, they can claim extra FAR and if they are not interest in FAR then compensation shall be decided as per the TDR policy pending before the State Government.

[03] The respondents have filed the reply by submitting that in view of the judgment passed by the Apex Court in case of Ravi Ram Chandra Waghmare v/s Indore Municipal Corporation reported in (2017) 1 SCC 667 the land had already been vested with the Municipal Corporation and liable to be utilized for construction of road without payment of compensation in advance to the land owners. The Apex Court has held that the land owners shall have a right to approach under Section 387 of the Municipal Corporation Act before the Civil Court to claim compensation if they are not ready to accept the FAR certificate. Paragraph No.53 and 85 are reproduced below:

53. What can be achieved by procedural safeguards in case the property is ac- quired under the provisions of the Land Acquisition Act, 1894 or the Act of 2013 by way of holding inquiry, such exercise has already been taken care of while preparing regional plan, development plan or the town improvement scheme. The widening of the public street cannot brook any delay. The provi sions contained in section 387(5) which empower the Corporation to take pos- session after determination of compensation by arbitration or by District Court, would be applicable only to the acquisition resorted to under sections 78 79 and, particularly under the provisions of section 79 and not to a case which is covered by the special 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

Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 12-10-2023 10:29:23

under section 305 read with sections 306 387 and 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 305387 and 306. 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.

85. We find the principles laid down in sections 305 387 and 306 are quite reasonable. Reasonable compensation is payable by the Corporation for building or part thereof excluding the land under pro-viso to section 305(1) and compensation for inclusion of land in public street is payable under section 306(3) of the Act. We do not find any ground so as to read down the provisions. We refrain to comment upon the submission with respect to the granting additional FAR is not acceptable to some appellants, as it is not the stage of dealing with compensation how the total in- demnification is to be made, whether FAR is acceptable to the appellants or not. cannot be decided at this stage. It need not be decided at this stage whether they have a right to leave the FAR and claim monetary compensation alone which is to be adjudged by the concerned authorities within the pale of the provisions contained in sections 305 306 read with section 387 of the Act of 1956. How the compensation is to be worked out at the appropriate stage, is the outcome of the authorities concerned and the job of the arbitrator/District Court, as the case may be. The appellants are at liberty to raise the question with respect to the adequacy of compensation and how the provision of section 387 has to be interpreted and what would be the just compensation at the appropriate stage of determination of compensation.

Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 12-10-2023 10:29:23

[04] The issue raised in these petitions is no more res-integra, the Apex Court has already held that if the compensation certificate is not acceptable to the petitioners then, they may approach the Civil Court under Section 387 of the Municipal Corporation Act where the Civil Court shall decide the amount of compensation payable to them under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 by appointing a Panchayat.

[05] In view of the above, all the writ petitions are disposed off with the aforesaid liberty.

Let a photocopy of this order be kept in all the connected matters.

(VIVEK RUSIA) JUDGE Divyansh

Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 12-10-2023 10:29:23