Smt. Sarita Singh vs Additional District Magistrate (Rural) and others

Petitioners in both these writ petitions are landowners of survey no.683/3 and survey no.683/7, respectively, situated at Dewas Junior, on A.B.

Road, Dewas. They have purchased these piece of land by registered sale deeds and thereafter their names have been recorded and they are the

absolute owners of the land. The respondent No.2 issued notice dated 3.11.2017 under Section 305 of the Municipal Corporation Act, 1956

(hereinafter referred as ''the Act of 1956'') on the ground that the part of the property of the petitioners is in obstruction of the proposed widening

of the service road and directed to file their reply within a period of three days from the date of notice otherwise the mentioned part of the part

property in the said notice will be demolished. It is this action, which has been challenged by the petitioners by filing these two writ petitions and

prayed for the following relief

It is therefore prayed that, this petition may kindly be allowed with costs and appropriate writ, direction or order be issued to the Respondents

directing them not to acquire the part of the property owned by the petitioner bearing survey no.683/3 situated at Dewas Junior, on A.B. Road,

Dewas, without following the due procedure of law and not to disturb the ownership and peaceful possession of the petitioner on the said

property. Any other appropriate writ, direction or order which this Hon''ble court deems fit be also granted to the petitioner, in the interest of

justice.

Learned counsel for the petitioners has submitted that without any acquisition, a notice has been issued whereas, the land in question comes

within the National Highway, ie., A.B. Road, Agra - Bombay National Highway road and as per Section 13 of the National Highway Authority

Act, 1988, any land required by the Authority for discharging its function under the said Act may be acquired by the Authority under the provisions

of National Highways Act, 1956. She further submitted that without issuing any notification of acquisition of the land, the said notice is illegal,

arbitrary and prayed for quashment of the notice.

A reply has been filed by the Municipal Corporation. As per para 6 of the reply of the Municipal Corporation, the action has been taken under

Section 305 of the Act of 1956 and, therefore, the petitioners landowners are entitled for compensation under Section 387 of the Act of 1956.

Para 6 of the reply reads as under :-

It is submitted that the petitioner in the present petition fairly stated that the petitioner is not having any problem in giving land for the betterment

of the city and asking for the compensation. The petitioner is free to approach competent authority under section 387 of the Municipal Corporation

Act, 1956 for claiming compensation.

It is submitted by the learned Government Advocate that the issue involved in these writ petitions is squarely covered by the decision of the

Apex Court in the case of Ravindra Ramchandra Waghmare V/s. Indore Municipal Corporation & Others, reported as 2017 (1) SCC 667 . She

submitted that in the case of Ravindra Ramchandra Waghmare (supra), the Apex court has considered the issue in question and held that for

issuance of notice under Section 305(1)(a), it is relevant where the repair work is undertaken in projecting part or other parts of building, the

Corporation can require voluntary action on part of owner so that projecting portion can be set back by owner himself during such repair work.

Section 305 being a special provision with respect to maintaining a regular line of a public street. The Corporation can remove building or any

part of building beyond regular line of public street. Being a special provision, Section 305 would prevail over general provisions of Section 78 and

79 of the Act of 1956.

On due consideration of para 6 of the reply filed by the respondent No.2 - Municipal Corporation, we direct the Municipal Corporation to

proceed further and decide the issue of compensation to the petitioners in accordance with the provisions of the Act of 1956 and the law laid

down by the Apex court in the case of Ravindra Ramchandra Waghmare (supra) within a period of one months from the date of filing of the

certified copy of the order.

With the aforesaid, W.P.No.5/2018 and W.P.No.6/2018 are disposed of.