ORDER 1. 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. 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 16.8.1985. 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 rehearing 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 19.3.2009 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 what similar circumstances, this Court in WP No. 3629/2008 vide order dated 19.3.2009 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. 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 3.2.2016 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. 13. While referring to a judgement passed by Hon'ble apex Court in the matter of Vidya Devi v. 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 16.8.1985 for City Center Scheme of GDA and it was subsequently purchased by the petitioner vide sale deed dated 16.8.2001, 28.1.2002 and 24.7.2003 respectively, which in the light of inclusion of the land in the scheme vide notification dated 16.8.1985 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 v. 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 v.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. 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 16.8.1985 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. 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 6.11.2017 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 3.1.2012 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 1.12.2021 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 19.3.2009 so the present matter can also be disposed of in the light of aforesaid order. 22. 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 v. 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 v. Vimal Kumar Shah and others passed in Civil Appeal No.6466/2024 dated 16.4.2024, 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 1.12.2021, 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. 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 1.12.2021, 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.