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Madhya Pradesh High Court · body

2014 DIGILAW 674 (MP)

Anil Sharma v. State of M. P.

2014-06-18

S.K.GANGELE, S.K.PALO

body2014
Judgment: 1. Heard. 2. The petitioner has filed this petition against the order dated 31.05.2014 (Annexure P-1). 3. By the aforesaid order, the petitioner was directed to remove construction, which was carried out illegally by the petitioner on a total area of 42.0 meter. It is also mentioned in the order that the petitioner may be given benefit of additional FAR by the Corporation under the provisions of Madhya Pradesh Bhumi Vikas Niyam 2012. 4. The contention of the petitioner is that the petitioner is the owner of the land and he has not made any encroachment. The petitioner further pleaded that earlier the petitioner submitted an application for compounding, that was allowed, hence, the construction of the petitioner is in accordance with law. 5. The Municipal Corporation pleaded that the petitioner made encroachment and he has raised construction without permission from the Municipal Corporation. The petitioner did not produce any permission which was granted by the Municipal Corporation in favour of the petitioner for construction. 6. The contention of the petitioner is that the petitioner submitted an application for compounding and it was accepted. 7. There is no order of compounding. Only a copy of receipt (Annexure P-9) has been produced by the petitioner alongwith the petition, in which it is mentioned that the petitioner deposited advance compounding fee of Rs. 3,000/-. From the aforesaid receipt, it cannot be spelled out that the Municipal Corporation accepted the offer of compounding. 8. There is disputed question of fact involved in this petition that whether the petitioner is the owner of the land or whether he has erected construction in accordance with law or he had taken permission from the Municipal Corporation for construction as required under the provisions of Municipal Corporation Act, 1956. The petitioner himself admitted that he did not receive any permission for construction and subsequently he filed an application for compounding but there is no order of compounding on record. Municipal Corporation denied the fact that any such order was passed by the Corporation. 9. Hon'ble Supreme Court in the case of Real Estate Agencies v. State of Goa reported in (2012) 12 SCC 170 has held as under in regard to power of the Court to pass the order where disputed question of facts are involved specially about title of the disputed property:- 16. 9. Hon'ble Supreme Court in the case of Real Estate Agencies v. State of Goa reported in (2012) 12 SCC 170 has held as under in regard to power of the Court to pass the order where disputed question of facts are involved specially about title of the disputed property:- 16. A reading of the order of the High Court would go to show that its refusal to interdict the developmental works undertaken or about to be undertaken is on the ground that the petitioner has an efficacious alternative remedy i.e. a suit for injunction. The writ court exercising jurisdiction under Article 226 of the Constitution is fully empowered to interdict the State or its instrumentalities from embarking upon a course of action to the detriment of the rights of the citizens, though, in the exercise of jurisdiction in the domain of public law such a restraint order may not be issued against a private individual. This, of course, is not due to any inherent lack of jurisdiction but on the basis that the public law remedy should not be readily extended to settlement of private disputes between individuals. Even where such an order is sought against a public body the writ court may refuse to interfere, if in the process of determination disputed questions of fact or title would require to be adjudicated. 17. However, there is no universal rule or principle of law which debars the writ court from entertaining adjudications involving disputed questions of fact. In fact, in the realm of legal theory, no question or issue would be beyond the adjudicatory jurisdiction under Article 226, even if such adjudication would require taking or oral evidence. However, as a matter of prudence, the High Court under Article 226 of the Constitution, normally would not entertain a dispute which would require it to adjudicate the contested questions and conflicting claims of the parties to determine the correct facts for due application of the law. In ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., the precise position of the law in this regard has been explained in paras 16, 17 and 19 of the judgment in the course of which the earlier views of this Court in Gunwant Kaur v. Municipal Committee, Bhatinda and Century Spg. & Mfg. Co. Ltd. v. Ulhasnagar Municipal Council has been referred to. 10. of India Ltd., the precise position of the law in this regard has been explained in paras 16, 17 and 19 of the judgment in the course of which the earlier views of this Court in Gunwant Kaur v. Municipal Committee, Bhatinda and Century Spg. & Mfg. Co. Ltd. v. Ulhasnagar Municipal Council has been referred to. 10. In the present case, it could not be decided from the documents on record that the petitioner has raised the construction after due permission or he is the owner of the land which has been mentioned in the impugned order dt. 31.5.2014 (Annexure P-1). Hence, in such circumstances, in our opinion, no order can be passed in favour of the petitioner by this Court. 11. Counsel for the petitioner relied on the following judgments in support of his contentions:- 1. S.R. Ezaz Vs. Tamil Nadu Handloom- (2002) 3 SCC 137 . 2. Ram Bharose Soni Vs. State of M.P.-2002 (II) MPWN S.N. 22. 3. State of U.P. Vs. Manohar- (2005) 2 SCC 126 . 4. Jaswant Bhai Doshi Vs. Indore Municipal Corporation- 2009 (2) MPLJ 282 . 5. Municipal Corp. Ludhiana Vs. Inderjeet Singh- (2008) 13 SCC 506 . 6. Maa Kaila Devi Enterprises Vs, State of M.P.- 2012 (2) MPLJ 562 . 7. Tukarma Kana Joshi Vs. MIDC- (2013) 1 SCC 353 . 12. The aforesaid judgments sited by the petitioner are distinguishable on facts. 13. Consequently, this petition is disposed of with the observation that the petitioner is at liberty to file civil suit for his grievance. 14. No order as to costs.