Prem Chand Jain v. State of M.P. & Ors.

[Writ Petition No.8739 of 2012] Omprakash vs. Municipal Council Sheopur ---------------------------------------------------------------------------------------------- Shri N.K. Gupta, Advocate for the petitioner. Shri Vivek Khedkar, Deputy Advocate General for the State. Shri Mahesh Goyal, Advocate for the respondent/Municipal Council. --------------------------------------------------------------------------------------------- [Writ Petition No.8740 of 2012] Ashok Kumar Sharma vs. Municipal Council Sheopur ---------------------------------------------------------------------------------------------- Shri N.K. Gupta, Advocate for the petitioner. Shri Vivek Khedkar, Deputy Advocate General for the State. Shri Mahesh Goyal, Advocate for the respondent/Municipal Council. [Writ Petition No.8741 of 2012] Rukmanibai vs. Municipal Council Sheopur ---------------------------------------------------------------------------------------------- Shri N.K. Gupta, Advocate for the petitioner. Shri Vivek Khedkar, Deputy Advocate General for the State. Shri Mahesh Goyal, Advocate for the respondent/ Municipal Council. --------------------------------------------------------------------------------------------- [Writ Petition No.8742 of 2012] Vishnu Kumar Mittal vs. Municipal Council Sheopur ---------------------------------------------------------------------------------------------- Shri N.K. Gupta, Advocate for the petitioner. Shri Vivek Khedkar, Deputy Advocate General for the State. Shri Mahesh Goyal, Advocate for the respondent/Municipal Council. ---------------------------------------------------------------------------------------------- 3 W.P.No. 8722 of 2012 [Writ Petition No.8743 of 2012] Mitthulal vs. Municipal Council Sheopur ---------------------------------------------------------------------------------------------- Shri N.K. Gupta, Advocate for the petitioner. Shri Vivek Khedkar, Deputy Advocate General for the State. Shri Mahesh Goyal, Advocate for the respondent/Municipal Council. ---------------------------------------------------------------------------------------------- [Writ Petition No.8805 of 2012] Kamal Kishore Saraf vs. Municipal Council Sheopur ---------------------------------------------------------------------------------------------- Shri N.K. Gupta, Advocate for the petitioner. Shri Vivek Khedkar, Deputy Advocate General for the State. Shri Mahesh Goyal, Advocate for the respondent/Municipal Council. ---------------------------------------------------------------------------------------------- [Writ Petition No.8693 of 2012] Ramjidas vs. Municipal Council Sheopur ---------------------------------------------------------------------------------------------- Shri N.K. Gupta, Advocate for the petitioner. Shri Vivek Khedkar, Deputy Advocate General for the State. Shri Mahesh Goyal, Advocate for the respondent/Municipal Council. ---------------------------------------------------------------------------------------------- [Writ Petition No.8694 of 2012] Girija Shankar Dadeech vs. Municipal Council Sheopur ---------------------------------------------------------------------------------------------- Shri N.K. Gupta, Advocate for the petitioner. Shri Vivek Khedkar, Deputy Advocate General for the State. Shri Mahesh Goyal, Advocate for the respondent/Municipal Council. --------------------------------------------------------------------------------------------- [Writ Petition No.8707 of 2012] Smt.Shakuntaladevi vs. Municipal Council Sheopur ---------------------------------------------------------------------------------------------- Shri N.K. Gupta, Advocate for the petitioner. Shri Vivek Khedkar, Deputy Advocate General for the State. 4 W.P.No. 8722 of 2012 Shri Mahesh Goyal, Advocate for the respondent/Municipal Council. ---------------------------------------------------------------------------------------------- [Writ Petition No.8708 of 2012] Rameshchand Sharma vs. Municipal Council Sheopur ---------------------------------------------------------------------------------------------- Shri N.K. Gupta, Advocate for the petitioner. Shri Vivek Khedkar, Deputy Advocate General for the State. Shri Mahesh Goyal, Advocate for the respondent/Municipal Council. --------------------------------------------------------------------------------------------- [Writ Petition No.8709 of 2012] Baikunthi Bai vs. Municipal Council Sheopur ---------------------------------------------------------------------------------------------- Shri N.K. Gupta, Advocate for the petitioner. Shri Vivek Khedkar, Deputy Advocate General for the State. Shri Mahesh Goyal, Advocate for the respondent/Municipal Council. --------------------------------------------------------------------------------------------- [Writ Petition No.8721 of 2012] Kedarlal vs. Municipal Council Sheopur ---------------------------------------------------------------------------------------------- Shri N.K. Gupta, Advocate for the petitioner. Shri Vivek Khedkar, Deputy Advocate General for the State. Shri Mahesh Goyal, Advocate for the respondent/Municipal Council. ---------------------------------------------------------------------------------------------- AND [Writ Petition No.8738 of 2012] Smt.Kanta devi vs. Municipal Council Sheopur ---------------------------------------------------------------------------------------------- Shri N.K. Gupta, Advocate for the petitioner. Shri Vivek Khedkar, Deputy Advocate General for the State. Shri Mahesh Goyal, Advocate for the respondent/ Municipal Council. --------------------------------------------------------------------------------------------- 5 W.P.No. 8722 of 2012 O R D E R ( Passed on this 04th Day of December, 2012 ) (Whether approved for reporting) Per Shri Gangele,J : Since, all these above writ petitions have been filed against the show cause notices issued by the Municipal Council, Sheopur, they were heard together and are being disposed of by this common order. For the sake of convenience, the facts stated in W.P.No.8722/2012 have been taken into consideration. (2) The petitioner has this petition (W.P.No.8722/2012) against the impugned show cause notice, Annexure P/1 dated 23/11/2012. By the aforesaid notice, the petitioner was directed to remove the encroachment within a period of 10 days, failing which, the Municipal Council shall take appropriate action in regard to removal of encroachment. (3) Earlier also, a show cause notice was issued to the petitioner in regard to removal of encroachment. Against the aforesaid notice, the petitioner filed a writ petition bearing W.P.No.7208 of 2012 (Prem Chand Jain vs. State of M.P. and others), that was disposed of by this Court vide order dated 28/09/2012 with the following directions:-. “In this view of the matter, this petition is disposed of with the following directions:- (i) The impugned notice Annexure P/1 dated 18/9/2012 is hereby quashed. (ii) The Municipal Council shall pass a reasoned order after considering the reply submitted by the petitioner to the show cause notice and documents filed by the petitioner. (iii) The petitioner shall also afford a personal 6 W.P.No. 8722 of 2012 opportunity of hearing. If the authority comes to the conclusion that the petitioner has made any encroachment over the area, then a reasoned order be passed in the presence of the petitioner. The petitioner be communicated the date of passing of the order, so he will remain present before the authority. The petitioner shall also be supplied a copy of the order by the Council. If the petitioner wants to submit some more documents or evidence, he is at liberty to produce the same before the Council. (iv) If any adverse order is passed against the petitioner, the petitioner be given 10 days' time to pursue the legal remedy available under law. (v) Upto that period, any action in regard to removal of encroachment shall not be taken against the petitioner. With the aforesaid directions, this writ petition is disposed of. No order as to costs.” (4) Thereafter, the petitioner along with other persons submitted documents and replies before the Municipal Council. The petitioner pleaded before the Municipal Council that he received the land in dispute vide a registered sale-deed, he was granted permission by the Municipal Council to make construction and in accordance with the permission, he had made the construction. (5) The Municipal Council in the reply has submitted that as per the Map of the year 1936 – 37, the road which is situate in front of house of the petitioner is of 34 feet wide including the drains, however, after a spot inspection, it was found that actual width of the road is 26 feet, hence, the petitioner and other persons had made encroachment over 4 feet from each side of the road, consequently, the notices were issued to all the concerned persons and thereafter, the action 7 W.P.No. 8722 of 2012 has been taken by the Municipal Council. In support of the claims, the Municipal Council filed a letter of Superintendent of Land Records, in which, it has been mentioned that in the map of the year 1936 – 37, the width of the road was 34 feet including drains and width would be 34 feet or 39 feet. (6) Earlier, this Court has granted liberty to the petitioner to produce the relevant documents before the Municipal Council and thereafter again the impugned notice has been issued. Now, the question is that what is the actual width of the road and whether the petitioner had made any encroachment over the land or not. In our opinion, it requires an adjudication and findings of fact. Under Article 226 of the Constitution, the disputed questions of fact can not be decided as held by the Hon'ble Supreme Court in the case of Food Corporation of India and another vs. Pala Ram and Others, (2008) 14 SCC 32 and in the case of Antonio S.C. Pereira vs. Richardina Naronha (dead) by LRs., (2006) 7 SCC 740. In the aforesaid judgments, it has been held by the Hon'ble Supreme Court that the High Court under Article 226 of the Constitution cannot decide the disputed question of title and it has to be decided by the Civil Court. (7) Looking to the aforesaid facts of the case, in our opinion, it would be just and proper that the petitioner may approach before the Civil Court for assertion of his title over the disputed land. Consequently, all the petitions are disposed of with the following directions:- “(a) That, the petitioners are at liberty to file Civil Suit before the Court of appropriate jurisdiction in regard to their grievance and for a period of 14 days, no action shall be taken against the petitioners in regard to removal of encroachment. (b) It is hereby clarified that if any suit be filed by 8 W.P.No. 8722 of 2012 the petitioners, the Civil Court would be at liberty to consider the cases on merits without being influenced with any observation made by this Court in this order. No order as to costs. (S.K.Gangele) Judge 04/12/2012 (G.D. Saxena) Judge 04/12/2012 SJ/-