Shanti Grih Nirman Sahakari Samiti ... vs The State Of Madhya Pradesh Thr.
2025 Latest Caselaw 2902 MP

Madhya Pradesh High Court

Shanti Grih Nirman Sahakari Samiti ... vs The State Of Madhya Pradesh Thr. on 16 January, 2025

Author: Milind Ramesh Phadke

Bench: Milind Ramesh Phadke

                                                                      1

    IN THE HIGH COURT OF MADHYA PRADESH
                AT G WA L I O R
                                    BEFORE
    HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE

                   WRIT PETITION No. 1287 of 2015
    SHANTI GRIH NIRMAN SAHAKARI SAMITI MARYADIT
                   GWALIOR THR.
                       Versus
    THE STATE OF MADHYA PRADESH THR. AND OTHERS
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Appearance:
        Shri Prashant Sharma - advocate for the petitioner.
        Shri K K Pajapati - Govt. Advocate for the respondents/State.
        Shri Surendra Singh Gautam - Advocate for the respondent
No.2.
        Shri Deepak Khot - Advocate for the respondent No.3.
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        Reserved on                           :      03/12/2024
        Delivered on                          :      16 /01/2025
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        This petition having been heard and reserved for orders,
comiing on for pronouncement this day, the Hon'ble Shri Justice
Milind Ramesh Phadke pronounced/passed the following:
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                                      ORDER

By way of present petition under Article 226/227 of the

Constitution of India no particular order has been challenged but

petitioner being aggrieved by an alleged illegal and arbitrary action on

the part of respondent No.2, whereby respondent No.2 is trying to

construct a road on the land owned by the petitioner/society in the

garb of the land being shown as road in the notified town development

scheme known as "City Centre Scheme", City Centre of the

respondent No.3-Gwalior Development Authority had preferred the

present petition.

2. The petitioner is assailing the aforesaid action on the ground

that the land having been shown as a part of road in the notified Town

Development Scheme under M.P. Nagar Tatha Gram Nivesh

Adhiniyam and subsequently, shown as road in the master plan of

Gwalior prepared under the said Adhiniyam is not disputed. However,

the respondents have no authority to construct road on a private land

without acquiring the said land under provisions of Section 56 of the

Adhiniyam.

3. Further it is assailed that before appropriate compensation

having been assessed and land acquired after following due procedure

under section 56 of the Adhiniyam and is not paid to the petitioner, the

title does not pass to the Town Development Authority, nor to any

development agency like the Municipal Corporation, therefore, the

respondents have no right as such to construct road on the private land

merely under garb of the Master Plan and Scheme prepared under the

Adhiniyam.

4. Short facts of the case are that the petitioner is an owner of a

piece of land situated in survey No. 237/1 (0.303 hect.) and 243/6

(0.252 hect.), total area 0.555 hectare situated at village Thatipur,

Tehsil and Distt. Gwalior(MP). The lands were purchased vide

separate sale deeds dated 10.8.2001, 28.1.2002 and 24.7.2003. The

holdings of the land were duly divided and demarcated by the orders

of the Tehsildar dated 23.7.2009 and 13.4.2011 and thereafter Nazul

Department has also issued NOC to the petitioner/society relating to

the land in question.

5. The land owned by the petitioner is situated in part of Town

Development Scheme known as "City Center Scheme" framed by the

respondent No.3/GDA under the provisions of M.P. Nagar Tatha Gram

Nivesh Adhiniyam, 1973. The said scheme was notified on 16.8.1985

as per section 50 (7) of the Adhiniyam, comprising certain lands of

villages Thatipur, Mahalgaon and Gospura and the date of

enforcement of the said scheme i.e. date of final publication is

16.08.1985. In the said scheme a road about 18 meters (approximately

60 feet) wide, is shown to be passing through the land of the petitioner

and has been shown in hatches in the relevant portion of map of the

Scheme and the the said road is also shown in the Development Plan

of Gwalior City and thus, this road is now a part of the Town

Development Scheme and subsequently, also a part of the

Development Plan. Till date the ownership of the land in question has

not been transferred to the GDA or to any other instrumentality of the

State or to State till date, rather the ownership remains with the

petitioner. Neither the road has been acquired by the GDA, nor it has

been handed over to the Municipal Corporation till date and

undisputedly the land is owned by the petitioner/society as on date.

6. In the said scheme, the GDA and Municipal Corporation tried to

construct a road as per scheme map, which was challenged by the

petitioner, but initially the petition was dismissed with a direction to

approach the Civil Court but later on after revelation of the correct

facts, the said order was reviewed and petition was restored for re-

hearing and it was held that the GDA and Municipal Corporation

could not have constructed road on private land without acquiring it

under section 56 of the Adniniyam. In what similar circumstances, this

Court in WP No.3629/2008 vide order dated 19.03.2009 while

allowing the petition had directed the respondents not to construct any

road over the land belonging to the petitioners therein without

acquiring the same in accordance with law and without obtaining the

prior consent of the petitioner. In the aforesaid context, the petitioner

submitted a representation to respondent No.2, when they had first

tried to construct the road, however, after keeping the matter at bay for

some months, now again the respondent No.2 had started to take steps

for construction of road and its contractors and officers are visiting the

land for measurement and asking the petitioner not to create hurdle,

else punitive action shall be initiated against him through police.

7. Since peaceful possession of the petitioner in 60 feet wide strip

of the land of the petitioner in survey No.237/1 (about 5 biswa) and

243/6 (about 15 biswa) is being interfered with by the respondents

ostensibly for construction of the road, without any acquisition, the

present petition had been filed.

ARGUMENTS

8. Learned counsel for the petitioner had vehemently argued that

though the land in question forms a part of the notified City Centre

Scheme framed under section 49 and though it is a part of approved

lay out or development plan in terms of Section 50(7) of the

Adhiniyam, but it has never been acquired from the petitioner/society

till date. Further, it is argued that though there is a proposed road as

shown in the Scheme map, but mere inclusion of the proposed road in

the lay-out on the land of a private person does not lead to denuding of

title of the said private person and for that purpose, Section 56 of the

Adhiniyam comes into play and the State/Development Authority is

required to acquire the land duly by resorting to the provisions of

Section 56 by either agreement or acquisition but in the present case,

there is neither any agreement nor any acquisition from the petitioner

and as a procedure and enabling provision has been formulated for

taking away the constitutional right of the property of a person, in

absence of following that procedure the Constitutional right cannot be

done away with and the said action violates Article 300-A of the

Constitution of India.

9. It was further argued that subsequent to the notification of the

scheme, the proposed road which is part of the 18 meter (about 60

feet) wide road connecting Madhavrao Schindia Marg to University

Road has been included in the Development Plan of Gwalior framed

as per Sections 14 to 19 of the Adhiniyam but the land still remains to

be duly acquired from the petitioner for executing the road plan and on

the basis of mere inclusion of the part of the land under the said

scheme, the respondents are behaving as if the title has vested in it.

10. It was further argued that the Corporation without any authority

of law and even against the scheme of GDA had started laying down a

road and is constructing a park, that too during the subsistence of the

interim order, for which it had no authority/ jurisdiction under the garb

that they are constructing over survey No.242 and when there is no

demarcation of survey Nos.237/1 and 243/6 and also survey No.242,

the construction being raised by the Corporation is absolutely

impermissible, therefore the construction, which has been raised on

survey No.242 alleging it by the corporation is also required to be

demarcated.

11. While referring to an order passed in W.P. No.345/2016 dated

03.02.2016 it has been argued that in similar circumstances, this Court

had directed for demarcation and thereafter in that matter the

demarcation report has been tendered which indicated that the action

of the respondent/authority was not correct and herein case also GDA

has not authorized corporation to lay the road or raise a park and in the

scheme it is also not provided thus, complete action is per se illegal.

12. It has also been argued that the Khasra entries with regard to

survey No.244 indicates that the Collector has changed the nature of

the land from Marghat and has converted into a park and the place

where the roads are laid down and park has been constructed by the

Corporation that place is not provided for such purpose in the scheme,

thus the action of the Corporation is not proper.

13. While referring to a judgement passed by Hon'ble Apex Court in

the matter of Vidya Devi Vs. The State of Himachal Pradesh [2020

(2) SCC 569]; it had been argued that in similar set of facts the State

was directed to pay compensation treating it to be a case of deemed

acquisition, which is akin to the facts of the present petition, therefore,

similar treatment be given to the present petitioner herein also, thus, it

was prayed that the present petition be allowed and the respondents be

directed to first demarcate the land and encroachment as well as illegal

construction, if any, be removed over the lands of petitioner bearing

survey Nos. 237/1 and 243/06.

14. On the other hand, learned counsel for the respondents

submitted that the land bearing survey Nos.237 and 243 were included

in the notification dated 16.08.1985 for City Center Scheme of GDA

and it was subsequently purchased by the petitioner vide sale deed

dated 16.08.2001, 28.01.2002 and 24.07.2003 respectively, which in

the light of inclusion of the land in the scheme vide notification dated

16.08.1985 has referred the said transaction to be illegal and as title of

the petitioner is disputed and as the present fact cannot be gone into in

writ jurisdiction, the petition deserves to be dismissed.

15. While referring the judgment of Apex Court in the matter of

Indore Development Authority Vs. Balkrishna and others [(1997) 9

SCC 321]; it was argued that as soon as notification is published the

land vests free from all encumbrances in the State and steps for taking

actual possession are not material being ministerial only, so once the

land has vested in the State petitioner or its vendor looses title in such

land and now after 30 years they cannot obstruct the construction

work.

16. Further, while referring to the order passed by Division Bench

of this Court in the matter of Rajesh Kumar Gupta and others

Vs.State of M.P. and others, 2013 (2) MPLJ 707; it was argued that

purchaser does not acquire right of ownership if land is purchased

after publication of final scheme and it also been held that Section 56

of the Adhiniyam is not attracted in acquisition of the land from the

cooperative societies and since the petitioner has remedy of civil law

then it is not maintainable under the Pubic Law Jurisdiction.

17. It has also been argued that respondent No.2 is in discharge of

public duty in raising construction of road in larger public interest over

the land in question and the petitioners since are not having any valid

title of the property as the land has already been vested in the State

Government before its purchase, therefore, they had no right/authority

to obstruct the activity of construction of road to be carried out by

respondent No.2.

18. Counsel for the State while countering the arguments as raised

on behalf of the petitioner had submitted that the land in question is a

part of notified town development scheme finally published under

Section 50(7) of the Adhiniyam of 1973 in the Gazette Notification

dated 16.08.1985 and after final publication of the notification of the

land in question, lay out plan has also been sanctioned, accordingly,

survey No.237 admesuring 0.303 hectares and survey No.243

admeasuring 0.25 hectares have been earmarked for road, therefore,

without obtaining valid permission from the Director, Town and

Country Planning Department in consonance with Section 53 of the

Adhiniyam 1973, the petitioners had no authority to file the present

petition.

19. It was further argued that as soon as final publication of Section

50(7) of the Adhiniyam, 1973 is made, land used by the petitioner

would automatically freeze and it cannot develop and modify any area

of notified scheme without following due process of law as

contemplated under Section 53 of the Adhiniyam. Apart from it, when

road is shown to have existed in the sanctioned lay-out plan over and

above the land in question, the petitioner cannot be permitted to use

the land differently.

20. It was also argued that the issue about lapse of scheme by virtue

of Section 54 of the Adhiniyam of 1973 has been dealt with in W.P.

No.7861/2011, wherein vide order dated 06.11.2017 this Court has

held that if major portion of the scheme has been implemented then

the scheme would not lapse and apart from it provisions of Section 54

of the Adhiniyam has already been deleted vide amended Gazette

Notification dated 03.01.2012 and looking to the immense growth of

organization and deletion of provision of Section 54 of the Adhiniyam

permanently, by necessary implication it would have retrospective

effect and it will be dealt with as if it was not it the statute and this

aspect has also been taken note of by this Court in the above writ

petition and when the observation of the Single Judge in the aforesaid

writ petition was put to judicial scrutiny before the Division Bench in

writ appeal No.1084/2017, the Division Bench has dismissed the writ

petition affirming the view of learned Single Judge and also since

respondents No.2 and 3 are the contesting party in the present case

because as per the averment of the writ petition, the Municipal

Corporation, Gwalior is trying to construct road over and above land

in question and respondent No.3, Gwalior Development Authority has

afforded the residential scheme in which the land in question is a part

of, therefore, the arguments as advanced by respondents No.2 and 3

are being adopted.

21. Counsel for the petitioner while referring to I.A. No.2648/2022

had argued that GDA has given up the scheme vide order dated

01.12.2021 and the dispute over survey No.237/1 admeasuring 0.303

hectares and survey No.243/6 admeasuring 0.25 hectares has been put

to rest, thus, construction of the road and park over the land of the

petitioner is not tenable, as the said land has not been acquired and in

similar set of facts, this Court had disposed of writ petition

No.3629/2008 vide order dated 19.03.2009 so the present matter can

also be disposed of in the light of aforesaid order.

22. It was further argued that as the lands belonging to the

petitioner, which fell under the scheme of GDA has been freed from

the scheme and during the subsistence of the said scheme, the

corporation has illegally and unauthorizedly constructed a road as well

as had established a park though there was no lay out existing, the

respondents are required to restore back the land to the petitioner.

While referring to a judgement of the Apex Court in the matter of

Kalyani (Dead) through LRs & others vs. The Sulthan Bathery

Municipality and others passed in Civil Appeal No.3189 of 2022 vide

judgement dated 26.4.2022 had argued that Article 300(A) clearly

mandate that no person shall be deprived of his property save by

authority of law and in the present case since no authority of law

existed even then the lands of the petitioner were taken, thus, they

have been deprived of the same and, therefore, subsequent

development of dropping of the land from Gwalior Development

Authority scheme nullified each and every claims of the respondents

over the land, therefore, in the interest of justice the respondents are

required to be directed to restore back the land in original position and

all the constructions of the road etc., which had been raised over the

property is required to be directed to be removed and in the aforesaid

context, the present petition deserves to be allowed.

23. Finally in the light of the judgement of Kolkata Municipal

Corporation & another Vs. Vimal Kumar Shah and others passed in

Civil Appeal No.6466/2024 dated 16.04.2024, the learned counsel for

the petitioner argued that the action of respondents/Corporation is not

tenable and needs to be quashed being arbitrary and breach of Article

300(A) of the Constitution, as admittedly no requisition of the

property has been done.

24. After hearing rival contentions, this Court finds that the

controversy in the light of the revocation of 25 years' old scheme of

Gwalior Development Authority vide order dated 01.12.2021, which

included the survey numbers of the petitioner, which are in dispute,

this Court finds that there is no need for any adjudication further of the

controversy. In wake of aforesaid revocation on the part of the scheme,

which had affected the survey Nos.337 and 343 belonging to the

petitioner since would be reverted back to the petitioner, it can be said

that the said lands were never acquired or never got vested in the State

Government/GDA and in that scenario of the matter laying down a

road and park without the land being acquired by the Corporation is

per se illegal. Thus, when the dispute with regard to the exact title of

the land is not in question, construction of road and laying down a

park on a private land without acquisition or consent is highly

impermissible.

25. Resultantly, petition is allowed. Since, the road has been laid

down and park has been constructed over the land in question, the

respondents/Corporation is directed either to restore back the land of

the petitioner in its original position and remove the construction, if

any, or acquire the said land as per the prevailing laws.

26. With the aforesaid direction, the present petition stand disposed

off.

Certified copy as per rules/direction.

(MILIND RAMESH PHADKE) JUDGE neetu NEETU Digitally signed by NEETU SHASHANK DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH

SHASH GWALIOR, 2.5.4.20=36b486bb0d381b950e435ec09 e066bc6b58cb947c1474b7dc349a1cf27 eaa2ce, postalCode=474001, st=Madhya Pradesh,

ANK serialNumber=E60A9BBFC39E0EE500EA ADE1E0B3B8565CB3A7DC9F5CD048197 DF0FF3149AE58, cn=NEETU SHASHANK Date: 2025.01.16 17:37:47 +05'30'