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Madhya Pradesh High Court · body

2011 DIGILAW 778 (MP)

Anil Kumar Gupta v. State of M. P.

2011-07-15

RAJENDRA MENON

body2011
ORDER 1. As common questions are involved in all these petitions, they are being heard analoguously. For the sake of convenience, documents and annexures referred to in Writ Petition No. 11975/2010 are being referred to. 2. Challenging the Notification dated 8.2.2007-- Annexure P/6, issued by the Bhopal Development Authority under section 50 (4) of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (hereinafter referred to as 'Adhiniyam of 1973)1 and, the letter-dated 30.7.2010 -- Annexure P/8 issued by the Bhopal Development Authority under section 56 of the Adhiniyam of 1973, petitioners have filed this writ petition. 3. Petitioner Anil Kumar Gupta, in Writ Petition No. 11975/2010, is resident of Bhopal and is owner of certain land detailed in paragraph 5.1 of the petition, situated in Village Bawadiya Kala. According to the petitioners, Bhopal Development Authority (hereinafter referred to as "BOA'), a statutory authority created under the Adhiniyam of 1973, has got powers to declare, draft, finalize, implement and complete various schemes with respect to land. On 13.1 q.2005, the BDA declared its intention for development of a residential scheme under section 50 (1) of the Adhiniyam of 1973. The Scheme was published in the 'Raj Express' on 13.10.2005 and in the said scheme intention was indicate (1 with regard to the land forming subject matter of the petitioners. Annexure P/3 is the said declaration issued in this regard and the scheme in question is known as 'Misrod Up-Nagar 1, Scheme'. It is the case of the petitioners that under the scheme notified vide Annexure P/3, as the proposal for acquisition of land was on the basis of mutual negotiation and as the petitioners had no objection to participate in the mutual negotiation for acquisition of their land, they did not submit any objection in pursuance to the draft published under section 50 (1) vide Annexure P/3. However, to the surprise of the petitioners when the draft was finalized and the final notification of the scheme was issued vide Annexure P/6, on 16.2.2007, petitioners found that instead of making a provision for' acquisition of the land for mutual negotiation as was indicated in the draft scheme, in the final scheme a provision for compulsory acquisition was indicated. Accordingly, petitioners represented into the matter and when the representations were not considered, they have filed these writ petitions. Accordingly, petitioners represented into the matter and when the representations were not considered, they have filed these writ petitions. The reliefs claimed by the petitioners, in these petitions, are that the proposals made in the scheme in question for compulsory acquisition be quashed and directions be issued to undertake acquisition of land by mutual negotiation, as was earlier notified in the draft scheme. Therefore, it is the case of the petitioners that respondents be directed to proceed with the scheme in accordance to the draft already notified, so far as it relates to the process of acquisition of land i.e........by mutual negotiation, consent and joint participation of the petitioners and other land owners. Accordingly, it is stated that the action impugned be quashed and a direction be issued to the respondents. 4. Respondents represented by Shri Sanjay K. Agrawal, have filed reply and it is only stated by them that after the draft notification was issued under section 50 (2) of the Adhiniyam of 1973 and as certain objections were received with regard to the scheme and after finalization the scheme was published on 8.2.2007 and now by virtue of the provisions of section 56 of the Adhiniyam of 1973, the time fixed for acquisition by mutual negotiation or joint participation has lapsed and, therefore, respondents have no option but to undertake acquisition by compulsory methods. 5. Having heard learned counsel for the parties, a perusal of section 5 of the Adhiniyam of l973 indicates that the words used in the said scheme are ‘may’ and not' shall. That being so, the provision is 'directory' in nature and is not 'mandatory'. It is found that the act of the respondents has adversely affected certain class of persons, certainly a direction can be issued for extending the period fixing the procedure for acquisition, for a limited period to enable the petitioners and other land owners to participate in the process of acquisition by mutual negotiation. To that extent, petitioners have a right to be granted the relief, as the benefit stautorily accruing to them by virtue of the initial draft notification is being taken away on technical consideration. 6. In view of the aforesaid, this petition is allowed. It is directed that respondent Bhopal Development Authority shall permit the land owners to give their options and participate in the process of acquisition by mutual negotiation by consent and joint participation. 6. In view of the aforesaid, this petition is allowed. It is directed that respondent Bhopal Development Authority shall permit the land owners to give their options and participate in the process of acquisition by mutual negotiation by consent and joint participation. It any of the land owners submit for acquisition by consent and joint participation, he be permitted to do so in case he submits his option within three months from today and the process in this regard be completed within a period of one year from today. However, if no proposal is received or if any of the land owners fail to make a proposal for the process of acquisition by mutual negotiation and joint participation, then within the period stipulated hereinabove, Bhopal Development Authority is free to proceed in accordance with law. The Notification in the daily newspaper with regard to the rights accruing to the land owners by virtue of this order be published immediately by the Bhopal Development Authority. 7. With the aforesaid, all the petition stand allowed and disposed of