Shahi Masjid Waqf Panch Mochiyan Through Its President Arshan Hussain vs The State Of Madhya Pradesh
- Court
- Madhya Pradesh High Court
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANDEEP N. BHATT
th
ON THE 9 OF SEPTEMBER, 2026
WRIT PETITION No. 37147 of 2026
SHAHI MASJID WAQF PANCHAYAT MOCHIYAAN THROUGH ITS
AUTHORISED REPRESENTATIVE ASHFAQ AHMAD AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Jagdish Baheti, Shri Aaditya Dubey and Shri Prabuddha Singh,
Advocate for the petitioners.
Ms. Sonal Gupta, Advocate alongwith Shri Shrey Raj Saxena, Dy. AG
for the respondent/State.
Shri Rishi Tiwari, Advocate for the respondent/Municipal
Corporation.
AND
WRIT PETITION No. 37128 of 2026
SHAHI MASJID WAQF PANCH MOCHIYAN THROUGH ITS
PRESIDENT ARSHAN HUSSAIN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Syed Ashhar Ali Warsi, Advocate(through VC) for the petitioner.
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Ms. Sonal Gupta, Advocate alongwith Shri Shrey Raj Saxena, Dy. AG
for the respondent/State.
Shri Rishi Tiwari, Advocate for the respondent/Municipal Corporation.
ORDER
Both these petitions have been filed by two different sets of petitioners
who claim an interest in the religious place and are administering the affairs
of the Masjid, which is registered as a Waqf property. The petitioners
challenge the impugned action of the respondent Corporation in issuing a
notice for the demolition of a portion of the Masjid for the purpose of road
widening to the extent of 15 meters. It is contended that the property in
question is an ancient structure that has existed for generations. The proposed
demolition would tear down a portion of the prayer hall (Jamat Khana) of the
mosque, a 120-foot-tall minaret, and the Mazhar Chouk Shahi. The
petitioners further submit that the impugned action of the respondent
authority as well as the State violates their fundamental rights guaranteed
under Articles 14, 25, and 26 of the Constitution of India.
2. For consideration of both the petitions, which are essentially
challenging the same action of the respondent(s), both the matters are heard
together and decided by way of a common order.
3. The followings prayer have been sought by the petitioners in W.P.
No.37147 of 2026 :
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Reliefs :-
In view of the facts and circumstances mentioned above, it is most
respectfully prayed that this Hon'ble Court may be pleased to:
a. Issue a Writ in the nature of Certiorari or any other appropriate writ, order,
or direction, quashing the impugned notices dated 14.08.2026, 25.08.2026,
27.08.2026 and the final notice/order dated 01.09.2026 (Annexure P-1 Colly)
issued by Respondent Nos. 3 and 4 as being arbitrary, illegal, unconstitutional,
and void ab initio;
b. Issue a Writ in the nature of Mandamus or any other appropriate writ, order,
or direction, commanding the Respondent Nos. 1 to 5, their agents, servants,
and employees to forbear from taking any coercive action, including demolition
of any part of the Shahi Masjid, situated at Municipal No. 524, Khasra No.
2072, Chatri Chowk, Ujjain, pursuant to the impugned notices;
c. Pass any other or further order(s) as this Hon'ble Court may deem fit and
proper in the interest of justice.
4. The prayers sought in connected W.P. No.37128 of 2026 is as
follows :-
Reliefs :In view of the facts and circumstances mentioned above, it is most
respectfully prayed that this Hon'ble Court may be pleased to
a. Issue a Writ in the nature of Certiorari or any other appropriate writ, order,
or direction, quashing the impugned notices dated 14.08.2026, 25.08.2026,
27.08.2026 and the final notice/order dated 01.09.2026 (Annexure P-1 Colly)
issued by Respondent Nos. 3 and 4 as being arbitrary, illegal, unconstitutional,
and void ab initid,
b. Issue a Writ in the nature of Mandamus or any other appropriate. writ, order,
or direction, commanding the Respondent Nos. 1 105, their agents, servants,
and employees to forbear from taking any coercive action, including demolition
of any part of the Shahi Masjid, situated at Municipal No. 524, Khasra No.
2072, Chatri Chowk, Ujjain, pursuant to the impugned notices,
c. Pass any other or further order(s) as this Hon'ble Court may deem fit and
proper in the interest of justice.
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5. Learned counsel appearing for the petitioner in W.P. No. 37147 of 2026
submitted a detailed historical background of the matter and drew the
attention of this Court to various photographs of the subject property. It is
Waqf property
submitted that the property is registered as a and features a tall
minaret, a prayer hall, and a Dargah in its front portion facing the road. The
petitioner is aggrieved by the Municipal Corporation's proposal to demolish a
portion of the prayer hall, minaret, and Dargah for the purpose of road
Article 25 of the Constitution of India such
widening. It is contended that under ,
religious properties are constitutionally protected and must be preserved.
Furthermore, learned counsel for the petitioner pointed out that there are other
properties in the immediate vicinity that the Corporation has left untouched. The
petitioner contends that, as evident from the photographs, those adjacent
properties are also required to be demolished to achieve the intended widening of
the road. However, the Corporation has purportedly exempted them under the
pretext that they are historical structures requiring preservation, a stance the
petitioner challenges as discriminatory.ical legal assertions. He has further
submitted that a clear distinction exists between private property and properties of
religious or historical significa nce. He contends that while executing statutory
actions, enforcement must primarily target private properties, and as far as
practicable, religious and historical structures should remain untouched. In
support of this contention, he places reliance on the Division Bench
judgment of the Gujarat High Court in Gulam Kadar Ahmadbhai Menon and
Others vs. Surat Municipal Corporation and others [AIR 1998 Gujarat 234],
more particularly, by referring to para - 19 and 32 of the said judgment. He
submits that the impugned action of the respondent is not only in violation of
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the principles of natural justice but also violative of Articles 25 and 26 of the
Constitution of India. This is because the proposed demolition targets the
core religious infrastructure of the Shahi Masjid, including the prayer
Jamat Khana Wazoo
halls ( ), the facility required for ritual ablution, and the
Azan
120-feet tall minaret used for the .
6. He has further submitted that Offering congregational Namaaz is an
essential and |integral tenet of Islam, and the destruction of the prayer halls
directly obstructs and extinguishes this right for thousands of worshippers
and in view of the judgment of the Hon'ble Apex Court in Commissioner,
Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar
of Sri Shirur Mutt, AIR 1954 SC 282, word "religion" encompasses
practices integral to the faith, and any interference therewith is
unconstitutional. He has further referred to the judgment in the case of Syed
Mohd. Salie Labbai v. Mohd. Hanifa, [AIR 1976 SC 1569], by contending
that the purported public interest of road widening cannot be invoked to
override the fundamental right of the community to freely profess and
practice their religion in a centuries-old place of worship. He has further
submitted that Article 25 of the Constitution of India guarantees to all
persons the fundamental right to freely profess, practice, and propagate
religion, subject only to public order, morality, and health. He submits that
the petitioner - Mosque, is a place of worship where approximately 5,000
followers of Islam congregate daily offers Namaaz. Further, by referring to
the judgment in the case of Bijoe Emmanuel v. State of Kerala, (1986) 3
SCC 615, wherein the Hon’ble Apex Court has reiterated that freedom of
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consciénce and the right to practice religion cannot be curtailed except on
grounds expressly provided in the Constitution. He has further submitted that
if the proposed road line (15 meter) is enforced by the Respondent
Corporation, a portion of the substantial part of prayer hall (Jamat Khana) of
the mosque will be demolished.
7. Learned counsel for the petitioner has further submitted that the
Corporation has not properly followed Section 322 or 323 of the M.P.
Municipal Corporation Act, 1956( in short ... "the Act"), whereby for the
demolition of an existing structure, a mandatory notice and procedure under
Section 322 or Section 323 of the Act is an indispensable prerequisite. He
further submits that in the present case, the respondents have only issued a
notice under Section 305 of the Act which pertains to the vesting of land for
a public street. He has also relied on the judgment reported in the case
of Ahmedabad St. Xavier College Society v. State of Gujarat, [AIR 1974 SC
1389] for the purpose of submission that the action of the respondent is not
in accordance with law. He has further submitted that by referring to the
judgment reported in In Re Manoj Tiberwal Akash, 2024 SCC OnLine SC
3210, whereby the Apex Court mandated a strict procedure involving proper
demarcation based on official records, issuance of written notices,
adjudication of objections through a reasoned order, and lawful acquisition
of land. He submitted that the respondents have flouted every single one of
these safeguards. Lastly, he has submitted that the action of the respondents
is illegal and violates Article 300A of the Constitution of India as Section
387 of the M.P. Municipal Corporation Act, 1956 provides for
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compensation. Furthermore, Rule 61 of the Madhya Pradesh Bhumi Vikas
Rules, 2012, explicitly states that the FAR is an option available only when a
landowner voluntarily surrenders land. Therefore, he has submitted that the
impugned notices were issued without serving the Madhya Pradesh Waqf
Board/respondent no.6 which is a statutory supervisor and custodian of all
Waqf properties in the state under the Waqf Act, 1995 and, therefore, he has
submitted that the impugned action of respondents/authority is bad in eye of
law and requried to be interfered with.
8. Learned counsel for the petitioners in W.P. No.37128 0f 2026 while
adopting the arguments advanced by the learned counsel for the other
petitioners, further contended that the respondent authority acted in gross
violation of the law. He submitted that the record clearly indicates the subject
property is a Waqf property, yet the respondent Corporation initiated the
impugned action without issuing the requisite notice to the Waqf Board,
rendering the action legally unsustainable.
9. He further submitted that the Ujjain Development Master Plan, 2035 ,
relied upon by the respondents, does not demand verbatim or rigid
implementation. Rather, the statutory framework allows for necessary
alterations to the master plan based on ground realities and the actual
situation on-site. He has further submitted that there are certain alternative
like garden, which is available nearby vicinity and some learned property is
available just opposite the mosque can also be utilised and the land of such
properties can utilised for widening of the road without disturbing the
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premises of mosque.He has also submitted that no proper notice is issued and
therefore prayed that the petition is required to be allowed as the action of
the respondents are violative of Article 14, 25, 26 and 300A of the
Constitution of India.
10. He has further submitted that there are certain alternatives, such as a
garden which is available in the nearby vicinity , and some vacant property
that utilized Furthermore,
available just opposite the mosque can also be . the
such be utilized for widening
land of properties can of the road without
disturbing the premises of the mosque. He has also submitted that no proper
notice was issued and therefore prayed that the petition be allowed, as the
actions of the respondents are violative of Articles 14, 25, 26 and 300A of the
Constitution of India.
11. Learned counsel for the Madhya Pradesh Waqf
Board/respondent no.6 has also supported the contentions raised by the
petitioner and has relied on judgment recorded in In Re Manoj Tiberwal
Akash(Supra), by referring to para 29 and 30 of that judgment. He has
further submitted that the respondent, Corporation or State are acting in
arbitrary and unjust manner and violation of Article 14 of the Constitution of
India as they are not taking action on against all such religious institutions
and therefore required to be dismissed.
12. Learned counsel for the respondent Corporation has submitted
that he has filed caveat and yesterday only the notices are issued and reply is
prepared and is filed today before the Court by taking permission of the
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Court by giving chronology of the events in para - 9 of his reply.
13. Learned counsel further submitted a preliminary objection regarding
the maintainability of the writ petition. He stated that W.P. No. 37128/2026
was filed by one Mr. Arshad Hussain in his capacity as President of the
W.P. No. 37147/2026
petitioner, whereas was filed by other office-bearers of
the petitioner claiming to be its authorised representatives. Therefore, it
appears that Mr. Arshad Hussain is no longer the President of the petitioner,
as a new committee/institution was constituted by the M.P. Waqf Board on
19.08.2026 , rendering him incompetent to file the present petition. He further
submitted that, as per the Ujjain Development Plan, 2035 , a 15-metre-wide road
is to be constructed from Kanthal Chouraha to Gopal Mandir . The
respondent/Corporation is currently in the process of widening important
Gopal Mandir
roads across Ujjain City. The subject construction is situated on
Road , which is a prominent Peshwai and Shahi Sawari Marg that connects
Gopal Mandir to the Mahakal Mandir , and further extends to the banks of the
River Kshipra . During festivals, lakhs of devotees commute along this road,
which is located in the heart of the city. Since crores of devotees are
expected to visit the city, the widening of the road is in a larger public
interest. He also submitted that, along this stretch of approximately 1.5
kilometres, almost all obstructing structures have already been removed,
except for the subject construction and the structure situated directly
opposite to it.He has further submitted that the proposed widening of road is
necessary therefore being done so as to maintain sufficient space for smooth
movement of traffic and to avoid any congestion at the time of Shahi Sawari,
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Peshwai and even at the time of Simhastha 2028. He has submitted that the
petitioners are unnecessarily trying to give a religious colour to the road
widening process which is highly condemnable. He submits that the
objection regarding Sati gate where the construction is not removed by
Corporation, such objection is misleading as the subject-construction is
situated near Sati Gate which is of historical and religious importance in the
name of Mata Sati and her Shakti Peeth. The subject road is being
constructed in such a manner that, the carriage way is available on both sides
as well as from the middle of the gate of the Sati Gate. Thus, since, there is
passage through the Sati Gate as also on either side, it does not cause
obstruction. Moreover, the available width of road at Sati Gate is more than
that prescribed in the Master Plan.
14. Learned counsel has further submitted that the notices notices ought
to have been issued to Waqf Board, Bhopal, that contention is misleading as
in response to the notices issued by the Corporation, several replies were
submitted. On 18.08.2026, a reply was filed by Arshad Hussain, the alleged
Manager of the Shahi Masjid Waqf Panchayat Mochiyan. Thereafter, a
detailed reply has been filed by the Shahi Masjid Intezamiya Committee
Wagf Panch Mochiyan, through its President Abdul Mannan Rehmani (R/4)
on 21.08.2026. He has further submitted that in another reply filed by Abdul
Mannan Rehmani, it was categorically mentioned that he is President of the
Waqf. Moreover, another reply has also been submitted by the committee on
02.09.2026 wherein it was submitted by Arshad Hussain that notices should
be issued in the name of Arshad Hussain. He has further submitted that by
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way of impugned order, only obstructing portion is being removed and the
petitioner has been offered FAR as compensation and in the alternative
T.D.R is being offered. It is also pertinent to mention that the subject road
has been declared as generating area under the T.D.R Policy. He has further
submitted that the subject road is being constructed as per the master plan,
2035. Moreover,it is pertinent to note that all the constructions land religious
places causing a hindrance in the road widening process are being treated
equally and are being removed in the larger public interest. About 80
religious structures are being shifted/removed across the city for the road
widening as per the master plan. Moreover, 11 religious structures - 10
temples and 01 mosque have already been removed on the subject road. he
has further submitted that a very small portion of the petitioners total area
and more particularly from the construction is being removed and as per the
master plan, it does not even amount to 10% of the total construction. It is
also submitted that only the obstructing portion will be removed by the
answering respondent from the property in question. He has further
submitted that the proposal to acquire Chatri-Chowk garden is misconstrued
and misleading as it is not affected by the road widening. It has a garden in
the middle and there are roads on both sides. He has further submitted that
the contentions regarding the revenue entries and payment of municipal tax is
also misconstrued as there is no application of promissory estoppel. He has
further submitted that the master plan was approved after duly considering
objection raised and same is binding upon answering respondent. He has
referred to S.305 of the 1956 Act and also relied on the judgment Suresh
Singh Kushwah Vs. Municipal Corporation Gwalior and another reported in
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2006 (3) MPLJ 412. He has also relied on the judgment of Division Bench of
this Court in W.A No.873/2014 for consideration of his contention of about
Article 300-A of the Constitution of India and according to Article 300-A
of the Constitution the respondent Corporation has initiated the process of
widening of the subject road as per the Ujjain Development Plan of 2035. He
has also relied on the judgment of K.N. Palsikar [Municipal Corpn., Indore v.
K.N. Palsikar, AIR 1969 SC 579]. Lastly, he has relied on the judgment of
Ravindra Ramchandra Waghmare Vs. IMC; (2017) 1 SCC 6 67 more
particularly referring to Para 4, 21, 56, 72 and 86 and contended that the
petition is misconceived and required to be dismissed.
15. Counsel for the State has also supported the submission made by the
Corporation and further submitted that as per the judgment of Gujarat High
Court which is sought to be relied by petitioner para-30 and 31 are relevant
for the consideration. he has also relied on the judgment of Allahabad High
Court in Mohammad Ali Khan v. The Special land Acquisition Officer
reported in AIR 1978 All 280 by contending that the same question has
arisen for consideration of Article 25 of the Constitution more particularly
referring to para 9 and 10 of the said judgment. Therefore, he submits that
both the petitions are misconceived and required to be dismissed as action
taken by the respondents/authorities are in larger public interest for widening
of the road for necessary requirement looking to the increasing traffic and
also looking to the coming event of Simhastha 2028.
16. I have considered the rival submissions made at the bar, and I have
also considered the various judgments cited by the learned counsel for the
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parties, as well as the ratio of those judgments. It is fruitful to refer to a few
of the judgments cited by the parties for ready reference and detailed
consideration of the matter.
17. The judgment which is reported in In Re Manoj Tiberwal Akash, the
relevant para 29 and 30 is reproduced as under :-
29. The petitioner has alleged that the demolition was a reprisal for a
newspaper report which contained allegations of wrongdoing in relation to the
construction of the road in question. We need not engage with this aspect, save
and except to the extent that it supplies the background to the grievance of the
petitioner. In any case, such high-handed and unilateral action by the State
Government cannot be countenanced. Justice through bulldozers is unknown
to any civilized system of jurisprudence. There is a grave danger that if high
handed and unlawful behaviour is permitted by any wing or officer of the state,
demolition of citizens’ properties will take place as a selective reprisal for
extraneous reasons. Citizens’ voices cannot be throttled by a threat of
destroying their properties and homesteads. The ultimate security which a
human being possesses is to the homestead. The law does not undoubtedly
condone unlawful occupation of public property and encroachments. There are
municipal laws and town-planning legislation which contain adequate
provisions for dealing with illegal encroachments. Where such legislation
exists the safeguards which are provided in it must be observed. We propose to
lay down certain minimum thresholds of procedural safeguards which must be
fulfilled before taking action against properties of citizens. The state must
follow due process of law before taking action to remove illegal encroachments
or unlawfully constructed structures. Bulldozer justice is simply unacceptable
under the rule of law. If it were to be permitted the constitutional recognition of
the right to property under Article 300A would be reduced to a dead letter.
Officials of the state who carry out or sanction such unlawful action must be
proceeded against for disciplinary action. Their infractions of law must invite
criminal sanctions. Public accountability for public officials must be the norm.
Any action in respect of public or private property must be backed by due
process of law.
30. Before acting in pursuance of a road widening project, the State or its
instrumentalities must:
(i) Ascertain the existing width of the road in terms of official records/maps;
(ii) Carry out a survey/demarcation to ascertain whether there is any
encroachment on the existing road with reference to the existing records/maps;
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(iii) If an encroachment is found, issue a proper, written notice to the
encroachers to remove the encroachment;
(iv) In the event that the noticee raises an objection with regard to the
correctness or the validity of the notice, decide the objection by a speaking
order in due compliance with the principles of natural justice;
(v) If the objection is rejected, furnish reasonable notice to the person against
whom adverse action is proposed and upon the failure of the person concerned
to act, proceed in accordance with law, to remove the encroachment unless
restrained by an order of the competent authority or court; and
(vi) If the existing width of road including the State land adjoining the road is
not sufficient to accommodate the widening of the road, steps must be taken by
the State to acquire the land in accordance with law before undertaking the
road widening exercise.
It is also relevant to refer to para - 9 and 10 of the Allahabad
High Court in Mohammad Ali Khan(supra), which is reproduced
as under :-
9.Further, the profession, practice and propagation of religion guaranteed
i n Article 25 is a personal right which has to be exercised by the
individual. It has no nexus with the place or territory where it has to be
exercised. A person may go to a particular mosque to offer prayers if it
exists, he may go to another mosque if the one in which he offered prayer
earlier ceased to exist or he may offer prayers even in his house or
elsewhere. Hence, the acquisition of land on which a mosque may exist
cannot be held to deprive him of his right to freely practise the religion. A
free practice of religion has the idea of practising it anywhere and not its
practice in any particular place. After the acquisition of the property the
right to use that propery for the purpose of offering prayers may be lost,
but that does not militate against the guarantee contained in Article 25 of
the Constitution.
10. To test the argument about Article 25 , we may consider the right of the
person to practise his religion in his house or elsewhere As the prayers can
be offered anywhere on earth and a man may be offering prayers in his
own house or at some remote place, the right cannot be deemed reasonably
to mean that no such place can be acquired. The only reasonable
interpretation of Article 25 can be that no law can prohibit the profession,
practice or propagation of religion. The law of acquisition cannot be held
to be invalid as that relates to land and. not the individual's right to
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profess, practise or propagate religion. As the right to practise religion has
no nexus with any particular place that right cannot be deemed infringed
by acquisition of any particular piece of land which is used as a mosque,
18. It is also relevant to refer to the judgment which is relied upon by the
petitioner as well as counsel for the State reported in Gulam Kadar Ahmadbhai
Menon and Others (supra) . Paras 19, 30, 31, and 32 are relevant, which read as
under:
19. The Hon'ble Supreme Court has thus without giving any immunity from
acquisition to a place of religion worship laid down the following principles;
(1)(a) If the place of worship of any religion has such particular significance
for that religion that offering prayers at that particular place of worship is an
essential and integral part of that religion, such a place stands on a higher
footing and has to be treated differently and more reverentially than other
places of worship of that religion.
(b) If the acquisition of such religious place (referred to in (a) above which is
on a higher footing) results in extension of right to practice the religion
acquisition should not be resorted to.
(2) The question (acquisition) of any other religious place of worship (not
referred to in (1) above) is to be made only in unusual and extraordinary
situation for a larger national purpose.
30. Since we have already held that it is for the local body to consider the
question in the aforesaid proper perspective, we would not have been required
to examine the facts of the case on hand. In fact the preliminary contentions of
Mr. Desai on the ground of delay, laches and acquiescence and absence of
challenge to the decisions taken in 1988 and 1989 were urged as strong enough
to justify refusal entertain, the petition itself but as we are told that it is for the
first time that a Constitutional Court has been approached for directing the
authority to strike a balance between the right of a religious community to its
place of worship and the municipal needs of the society at large, we have
therefore, thought it fit to overrule the preliminary objections urged by Mr.
Desai to demonstrate how the positive concept of secularism can be
implemented in the facts of the present case, in order to discharge the duty to
do complete justice as observed in the case of Union of India v. B.C.
Chaturvedi (supra) as discussed in para 27 above. We would like to add that in
future the balancing act undertaken herein must be left to the local authorities
who would undoubtedly show due deference to the places of religious worship
as earlier discussed in this judgment.
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31. As far as the facts of the present case are concerned, there can be no
gainsaying that in view of the increase in the population and traffic including
explosion of vehicular traffic in all the growing cities in India, it has become
necessary for the local authorities to take up the task of widening roads. The
two mosques are situate on a junction of five roads. The width of the existing
road is hardly about 40' and the sanctioned road line provides for the road line
of 60'. It cannot, therefore, be said that the widening of the road by 20' would
not be in public interest or in larger national interest.
32. As far as the minaret of Minarawali Masjid is concerned, the said structure
is not being used for offering prayers or worship and therefore, it cannot be
considered to be essential or integral part of the prayer much less of the
religion nor can it be treated as having such particular significance that it can
be permitted to override the wider public interest for the smooth movement of
the traffic. In this connection it is necessary to note that the length of the
structure supporting the minaret projects 18' into the sanctioned roadline and
therefore the remaining portion of the road which would be available would be
hardly about 42 feet wide including already existing road of width 40 feet. On
a busy intersection of five roads, it can never be said that the widening of the
road from 40' to 60' is not justified, though the traffic has increased many fold.
In our view if the trustees of the wakf managing Minarawali Masjid are
required to remove the minaret portion, and the structure supporting it, it would
not adversely affect offering 'prayers within the mosque and in any case the
public interest in widening the road overrides the need, if any, of the religion to
preserve the minaret.
19. It is also relevant to refer to the judgment of Ravindra Ramchandra
Waghmare(supra), more particularly by referring to the 4, 21, 56 , 72 and 86
:-
4. Under the Jawaharlal Nehru National Urban Renewal Mission, the Central
Government had sanctioned the scheme called BRTS corridor for improvement
of public transport system at Bhopal in order to avoid hazardous traffic. The
Central Sanctioning & Monitoring Committee was constituted by the Ministry
of Urban Development which had sanctioned a sum of Rs.357.20 crores for
implementation of said scheme. After due sanction by the Committee, NHAI
entered into an agreement with Municipal Corporation, Bhopal on 22.9.2009
and handed over particular part of land to it for the purpose of BRTS corridor.
For betterment of public transport system 225 low floor buses were also
sanctioned by Sanctioning and Monitoring Committee of the Central
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Government. For BRTS corridor survey was undertaken by the Expert
Committee of the Central Government namely Urban Mass Transit Council of
Bhopal City. Plan was duly approved by the State Government and the routes
were notified as per Plan by the State Transport Authority. Presently only 1.25
lakh passengers are getting the services of low floor buses. It is not in dispute
that most of the BRTS corridor has been constructed and the route from
Misrod to Bairagarh is under operation. Buses are plying continuously. The
appellants are land- holders in-between Misroad to Ampree Chouraha. The
Master Plan was prepared under the provisions of M.P. Nagar Tatha Gram
Nivesh Adhiniyam, 1973 (Town & Country Planning Act ) hereinafter referred
to as ‘the Act of 1973’. The Development Plan/Master Plan was prepared as per
the provisions of section 18 after inviting objections, suggestions. None of the
appellants had raised objection when the development plan was prepared. It
was finalized and published as per provisions contained in section 19(4) .
21. It is apparent that the development plan once prepared is binding upon the
development authorities in the planning area as well as on the Municipal
Corporation and other local authorities as the case may be. They cannot modify
and permit the user in contravention thereof. In other words, restriction is
imposed upon the owners on enjoyment of the property in violation of the
development plan/regional plan, as the case may be.
56. The submission raised by the appellants that for acquisition of land,
sections 78 and 79 should be resorted to for the purposes mentioned in section
305 cannot be accepted for yet another reason, if the provision as to public
street is made dependent upon the acquisition of land, the very purpose behind
the provisions of section 305 would be frustrated as well as the public interest,
there is already a regular line of public street fixed under development plan and
is binding under section 19(5) and section 25 of the Act of 1973. Various rights
of ownership which ordinarily vest in an owner, are restricted by the regional
plan, development plan or the town development scheme, as the case may be.
User of the owner’s land, property cannot be in derogation to any of them.
Development plan is binding upon the Corporation and local authorities and all
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concerned including the owners. Though they can transfer the property but
subject to such restrictions which the property will carry with it. If the land
falls in a regular line of public street, no construction can be raised, no
projection can be made by owner whereas it can be removed or set back, as the
case may be. In case acquisition is resorted to under sections 78 and 79, public
street can never be widened and the entire purpose of preparation of
Development Plan shall stand defeated.
72. Land use, development plan and zonal plan provided for the plan at macro-
level whereas the town planning scheme is at a micro-level and, thus, would be
subject to development plan. It is, therefore, difficult to comprehend that broad
based macro-level planning may not at all be in place when a town planning
scheme is prepared.
86. Reliance has been placed on Laxmi Devi v. State of Bihar & Ors. (supra)
and Rajendra Shankar Shukla & Ors. v. State of Chhattisgarh & Ors. (supra).
The decision in Laxmi Devi (supra) is based on the specific provision
contained in section 10A of the Land Acquisition Act which requires
compensation to be paid in a case where emergency clause has been invoked.
Collector is required to tender payment of 80% of compensation before taking
possession of the land. The said provision is not at all attracted to the Act of
1956. As compensation is offered after vesting, is quite reasonable procedure
as envisaged by Article 300A of the Constitution of India, at which point of
time it is offered would not make the provision confiscatory or repugnant. The
compensation under section 305 or 306 read with section 387 is on the
happening of certain exigency, and various factors are taken into consideration
for determination of compensation is a quite valid procedure. The Corporation
cannot be compelled as per the special scheme of sections 305, 306 and 387 to
offer the compensation before removal and vesting. Reliance on the decision in
K.N. Palsikar (supra) so as to contend that the possession should be taken after
payment of compensation is totally misplaced. This Court has simply narrated
in para 11 what was held by the High Court and the points which were decided
were capsualised by this Court in para 12 of the report. The aforesaid question
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was neither raised nor decided by this Court. This Court has not laid down any
such proposition in K.N. Palsikar (supra), as canvassed.
20. It is also relevant to refer to relevant portion of judgment cited by the
counsel for the respondent corporation Suresh Singh Kushwah Vs.
Municipal Corporation Gwalior(supra) which reads as under :-
“once the Municipal Corporation has prepared a plan determining the regular
line of public street any portion of the building which is projected beyond this
line automatically vests in the Corporation in view of section 305 of the Act
and, therefore, the Corporation has right to demolish the portion of said
building and no proceedings under the Land Acquisition Act are required."
21. It is also relevant to reproduce the portion of the judgment cited by
the respondent corporation in W.A. No.873/2014 wherein it is held as under
:-
"....... in view of clear provision contained in Section 305 of the Act vesting of land
being automatic and so long the said Section is in the statute book, the appellant’s
contention based upon Article 300-A of the Constitution cannot be accepted.”
22. Relevant para of the judgment relied by the respondent Corporation
in Municipality Vs. K.N Palsikar(supra) is also reproduced as under :-
" In fact, it seems to us that there is automatic vesting of the
land in the Corporation under sec. 305 once the
requisite conditions are satisfied. ......"`
relevant to refer to Articles 14, 25, 26, and
23. In view of this, it is also
300A of the Constitution of India . It is also relevant to refer to the provisions of
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Article 226 of the Constitution of India . Furthermore, it is relevant to refer to
Sections 305, 322, and 323 of the M.P. Municipal Corporation Act, 1956 .
305. Power to regulate line of buildings.
(1) If any part of a building projects beyond the regular line of a public
street, either as existing or as determined for the future or beyond the front
of immediately adjoining buildings the Corporation may-
(a) if the projecting part is a verandah, step or some other structure external
to the main building, then at any time; or
(b) if the projecting part is not such external structure as aforesaid, then
whenever the greater portion of such building or whenever any material
portion of such projecting part has been taken down or burned down or has
fallen down, require by notice either that the part or some portion of the
part projecting beyond the regular line or beyond the front of the
immediate adjoining building, shall be removed, or that such building
when being rebuilt shall be set back to or towards the said line or front;
and the portion of land added to the street by such selling back or removal
shall henceforth be deemed to be part of the public street and shall vest in
the Corporation :
Provided that the Corporation shall make reasonable compensation to the
owner for any damage or loss he may sustain in consequence of his
building or any part thereof being setback.
(2) The Corporation may, on ...
322. [ Prohibition of obstruction in streets. [Substituted by M.P. Act No.
16 of 1994.]
(1) No person shall, except with the written permission of the
Commissioner granted in this behalf and in accordance with such
conditions including the payment of rent or lee, as he may impose either
generally or specially in this behalf :-
(a) erect or set up any wall, fence, rail, post, step, booth or other structure
whether fixed or movable or whether of a permanent or temporary nature,
or any fixture in or upon any street so as to form an obstruction to, or an
encroachment upon, or a projection over, or to occupy any portion of such
street, channel, drain, well or tank.
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(b) deposit upon any street or upon any open channel, drain or well in any
street or upon any public place, any stall, chair, bench box, ladder, bale or
other thing whatsoever, so as to form an obstruction thereto or
encroachment thereon.
(2) Whoever contravenes any provision of sub-section (1) shall be
punished with imprisonment for a term which may extend to six months or
with fine which may extend to five thousand rupees or with both and with
further fine which may extend to one hundred rupees for every day on
which such contravention continues after the elate of first conviction for
such offence.
(3) Without prejudice to the action under sub-section (2), the
Commissioner notwithstanding anything contained in this Act, may after
giving such notice as may be prescribed, cause to be removed any
obstruction or encroachment as described in clause (a) and (b) of sub-
section (1).
(4) Any of the things caused to be removed by the Commissioner under
sub-section (3), shall, unless the owner thereof turns up to lake back such
things and pays to the Commissioner the charges for the removal and
storage of such things, be disposed of by the Commissioner by public
auction or in such other manner and within such time as the Commissioner
thinks fit.
(5) The Police Officer shall not investigate into the offence under this
section except on a report made in writing in this behalf by the
Commissioner.]
323. Streets not to be opened or broken up and building materials not to be
deposited therein without permission.
(1) Except in such cases as the Government may by general or special order
exempt from the operation of this section, no person shall, except with the
permission of the Commissioner and in accordance with such terms and
conditions, including payment of rent or otherwise, as the Commissioner
may impose either generally or in each special case-
(a) open, break up, displace, take up or make any alteration in or cause any
injury to, the soil or pavement, or any wall, fence, post, chain or other
material or thing forming part of any street or in any open space vested in
the Corporation; or
(b) deposit any building material in any street or in any open space vested
in the Corporation; or
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(c) set up in any street or in any open space vested in the Corporation any
scaffold or any temporary erection for the purpose of any work whatever,
or any posts, bars, rails, boards or other things by way of enclosure, for the
purpose of making mortar or depositing bricks, lime, rubbish or other
materials.
(2) Any permission granted under clause (b) or (c) of sub-section (I ) shall
be terminable at the discretion of the Commissioner on his giving not less
than twenty-four hours' written notice of the termination thereof to the
person to whom such permission was granted.
(3) The Commissioner may without notice-
(a) cause the soil or pavement or any wall, fence, post, channel or other
material forming part of the street to be restored to the condition it was in
before any opening or breaking up or displacement, or alteration or
damage made or done without the permission of the authority specified in
sub-section (1);
(b) cause to be removed any building materials, any scaffold or any
temporary erection, or any posts, bars, rails, boards or other things by way
of enclosure, which have been deposited or set up in any street or in any
open space vested in the Corporation without any permission of the
authority specified in sub-section (I) or which, having been deposited or
set up with such permission, have not been removed within the period
specified in the notice issued under sub-section (2) and recover the costs
of such restoration or removal from the offender.
Article 14. Equality before law
The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.Editorial Comment -
Article 14 rejects any type of discrimination based on caste, race, and
religion, place of birth or sex. This Article is having a wide ambit and
applicability to safeguard the rights of people residing in India.
This article is divided into two parts:
Equality before the Law: This part of the article indicates that all are to be
treated equally in the eyes of the law. This is a negative concept as it
implies the absence of any privilege in favor of any person. This is a
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substantive part of the article.
Equal protection of the Laws: This part means that the same law will be
applied to all the people equally across the society. This is a positive
concept as it expects a positive action from the state. This is a procedural
part of article 14.
Article 25. Freedom of conscience and free profession, practice and
propagation of religion
(1) Subject to public order, morality and health and to the other provisions
of this Part, all persons are equally entitled to freedom of conscience and
the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or
prevent the State from making any law—
(a) regulating or restricting any economic, financial, political or other
secular activity which maybe associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu
religious institutions of a public character to all classes and sections of
Hindus.
Explanation I.—The wearing and carrying of kirpans shall be deemed to
be included in the profession of the Sikh religion.Explanation II.—In sub-
clause (b) of clause (2), the reference to Hindus shall be construed as
including a reference to persons professing the Sikh, Jaina or Buddhist
religion, and the reference to Hindu religious institutions shall be
construed accordingly.
Article 26. Freedom to manage religious affairs
Subject to public order, morality and health, every religious denomination
or any section thereof shall have the right—
(a) to establish and maintain institutions for religious and charitable
purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
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(d) to administer such property in accordance with law.Editorial Comment
- Article 26 provides for the freedom to manage the religious affairs of the
citizens and is subject to Public order, morality and health.
Article 26(a) Right to establish and maintain institutions for religious and
charitable purposes.The right to establish and maintain religious
institutions is given to every religious institution. The word establishes
and maintains must be read together. So it is important for a religious
institution to first establish a religious institution and only then the right to
maintain an institution is to be given to that group. It is to be noted that the
right to maintain an institution will also include the right to administer it.
Article 300A. Persons not to be deprived of property save by authority of
law
No person shall be deprived of his property save by authority of law.
[Editorial comment-The Constitution (Forty-Fourth Amendment) Act,
1978, repealed Article 19 (1) (f) and also took out Article 31(1) has been
taken out of Part III and made a separate Article 300A in Chapter IV of
Part XII. This amendment may have taken away the scope of speedy
remedy under Article 32 for the violation of Right to Property because it is
no more a Fundamental Right. Making it a legal right under the
Constitution serves two purposes: Firstly, it gives emphasis to the value of
socialism included in the preamble and secondly, in doing so, it
conformed to the doctrine of basic structure of the Constitution.
24. The above-mentioned factual position and the chronology of events
provided by the respondent,which is reproduced by recording the
submissions on behalf of the respondent Corporation, clearly indicate that a
notice under Section 305 for the purpose of the Indore Development Plan,
2035 , was issued by the Corporation to the petitioner. There is no dispute that
the property in question is a religious place and has existed for many years.
There is also no dispute regarding the aspect that, on the same road, portions
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of the constructions of 10 temples and 1 mosque have already been removed.
Furthermore, authorities in the city of Ujjain have taken action against the
80 religious places
construction of about in total. Therefore, it cannot be said
that the respondent Corporation is acting in an arbitrary manner or in
violation of Article 14 of the Constitution of India.
25. Considering the chronology of events, the contentions raised by the
respondent Corporation clearly indicate that an opportunity of hearing was
granted to the office bearers of the petitioner, who claim to be administering
the property, and the impugned order was passed only after hearing them.
Particularly considering the judgment in Ravindra Ramchandra Waghmare
(Supra) , such development is in the larger public interest for the widening of
15-meter road
a . For this purpose, a small portion of the petitioner mosque's
property is required to be removed, as it is obstructing the road-widening
process. There is no doubt about the fact that in a certain situation where the
authority, out of the other available options, preserves any property or saves
historical or religious property, looking to the photographs and factual
scenario in the present matter, it cannot be said that the respondent authority
is taking any action in an unfair and biased manner which violates Articles
14, 25, 26, or 300-A. On the contrary, the observations made by the
Allahabad High Court, the judgments of the Gujarat High Court cited above,
Ravindra Ramchandra
as well as the observations made in the judgment of
Waghmare (supra), clearly support the case of the respondent corporation.
26. The other contentions sought to be raised by the petitioner, that the
respondent can find an alternative route by taking some portion of the land
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from the garden, as well as the commercial property situated opposite the
mosque, are also not found to be correct. Looking at the situation of the
property and the expansion required for the existing road, such contentions
are not found to be genuine and are required to be rejected, as there is no
scope for opting for such an alternative method under the facts of the present
case.
27. Furthermore, there are numerous disputed questions of fact involved
in the present matter, including the petitioner's capacity to file this writ
petition and their locus standi . On that count as well, this Court is not required
Article 226 of the Constitution of India
to exercise its jurisdiction under ,
keeping in mind the larger public interest. It is a hard reality that with the
efflux of time, the population of the city has increased. In view of the
provisions of the Ujjain Development Plan, 2035 , the respondent Corporation is
empowered to take action by following the necessary statutory provisions.
The Corporation has already taken all necessary actions available under the
law while strictly observing the principles of natural justice. Therefore, the
actions of the respondent authorities, including the Corporation and the State,
cannot be considered arbitrary, unjust, unconstitutional, or violative of
Articles 14, 25, 26, and 300A of the Constitution of India
. Consequently, no case
is made out for interference under Article 226 of the Constitution of India.
28. On the contrary, it seems that the petitioners are not cooperating with
the process of the widening of the road by raising one or another dispute
under the pretext of giving special treatment to the religious place, and also
believing that differential treatment is being given to the petitioners. Based
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on the above-mentioned discussion, such contentions are found to be
incorrect. Therefore, considering the upcoming event of the Simhastha
Kumbh, 2028, whereby the expectations of crores of devotees are required to
be kept in mind, as well as the need to provide better facilities and to manage
the traffic of such events; and considering the situation of the premises in
question, which is almost opposite to the Mahakaleshwar Temple and very
near to the Kshipra River; and for the consideration of the larger public
safety and larger public interest, the action taken by the respondent is found
to be after following the necessary provisions of law. Furthermore, the
impugned order was passed after considering the objections raised by the
petitioner. Therefore, no interference is called for. Both the petitions are
found meritless and deserve to be dismissed. Accordingly, they are
dismissed.
(SANDEEP N. BHATT)
JUDGE
pn
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