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Madhya Pradesh High Court · body

2011 DIGILAW 372 (MP)

Umakant Sharma v. State of M. P.

2011-03-22

S.N.AGGARWAL

body2011
ORDER S.N. Aggarwal, J. 1. The petitioner claims to have succeeded ancestral property bearing house No. 1333, ward No. 35, Patankar Bazar Chauraha Lashkar, Gwalior (M.P.). He apprehends demolition of said property by the respondents without following due procedure of law. 2. The petitioner has contended in this writ petition that the property in question which includes a temple has been declared to be a private property by the Civil Court vide its judgment and decree dated 28.06.2006 in civil suit No. 77A/2004. According to the petitioner, there is no encroachment on the property in question but despite that the respondents have put red marks on various places on the property in question on 08.03.2011 and thereby communicated their intention to demolish the portion earmarked by putting red marks on the property in question. It is alleged by the petitioner that the respondents have not given any notice or opportunity of hearing to him before red marks on the property in question were put by the respondents. 3. Mr. V.K. Bharadwaj, learned senior counsel appearing on behalf of the petitioner says on instruction that the respondents have already demolished some portion of the suit property pursuant to the red marks put by them on 08.03.2011. However, Mr. M.P.S Raghuvanshi, learned Additional Advocate General appearing on behalf of the respondents/State contends that the entire portion covered by red marks have already been demolished by the respondents as the said portion was an illegal encroachment. 4. Upon hearing learned counsels for both the parties, it appears that there are disputed question of facts involved in the present case as to whether the area removed by the respondents was an illegal encroachment or not and those disputed question of facts cannot be gone into by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. Be that as it may, the fact remains that the respondents have already demolished atleast some of the portion out of the portion regarding which red marks were put by the respondents on the property in question. That being so, the petitioner shall be entitled to take remedial measure available to him in law with regard to his grievances. Be that as it may, the fact remains that the respondents have already demolished atleast some of the portion out of the portion regarding which red marks were put by the respondents on the property in question. That being so, the petitioner shall be entitled to take remedial measure available to him in law with regard to his grievances. Learned Additional Advocate General for the respondents/State contends that the respondents shall not take any coercive action in respect of the property in question of the petitioner without serving him notice and giving an opportunity of hearing to him so that due procedure of law is followed before any further coercive action in respect of the property in question is taken. 5. In view of the above submissions made by the learned Additional Advocate General for the respondents/State, this Court is of the opinion that instead of respondents serving the petitioner with notice it will be appropriate and in the interest of justice, if the petitioner is given an opportunity to make a representation to the respondents against the action taken by them or to be taken by them, if any, in respect of his property in question and to direct the respondents to decide the said representation within reasonable time and not to take any further coercive action in respect of the property in question till then. 6. Accordingly, this writ petition is finally disposed of with liberty to the petitioner to make comprehensive representation to the respondents within a week's time and in case any such representation is made by the petitioner then the respondents are directed to decide the same by a speaking order under intimation to the petitioner within two weeks of receipt of the representation and not to take any coercive action till expiry of one week from the date of communication of speaking order to the petitioner on his representation.