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Madhya Pradesh High Court · body

2015 DIGILAW 577 (MP)

Mahesh Chand Gangil v. State of M. P.

2015-05-12

D.K.PALIWAL, U.C.MAHESHWARI

body2015
ORDER 1. On behalf of the petitioners this petition is preferred under Article 226 of Constitution of India for issuing appropriate writ against the authorities of the respondents for the following relief : “It is humbly prayed that the petition may kindly be allowed by issuing a writ in the nature of Mandamus/prohibitory for commanding the respondent to act in accordance with law and not otherwise and if they want to take any action should adopt procedure of law, i.e. issue notice to show-cause and after getting reply and providing opportunity of hearing pass some reasoned order in accordance, which is minimum requirement under the law. Any other relief also be granted in the facts and circumstance of the case.” 2. Petitioners counsel after taking through the papers placed on the record and advanced the argument that the petitioners are in possession of the disputed shops since long and authorities of the respondent No.3 without following any process prescribed under the law and without complying with the principles of natural justice trying to dispossess the petitioners from such shop after demolishing the same. He also said till today no opportunity of hearing has been extended to any of the petitioners so they could not defend the matter before respondent No.3. In continuation he said that if by entertaining this writ petition any interlocutory relief against the respondent authorities is not issued, then, the petitioners may be deprived from their shops and in such circumstance, they have to suffer the irreparable injury. In further argument he said that the entire action of the respondent No.3 is with assistance of respondents No.1 and 2 to demolish the alleged shop is contrary to law and prayed to admit and allow this petition and if the same is admitted for final hearing, then, till disposal of this petition interim prayer made in the petition be granted in favour of the petitioners. In support of his contention he has referred some interlocutory orders passed in some case in identical matters. 3. Having heard the learned counsel for the parties and keeping in view the arguments advanced, we have carefully gone through the petition along with papers placed on the record. In support of his contention he has referred some interlocutory orders passed in some case in identical matters. 3. Having heard the learned counsel for the parties and keeping in view the arguments advanced, we have carefully gone through the petition along with papers placed on the record. It is apparent from such papers that there are factual controversy between the petitioners and authorities of respondent No.3 and such factual controversy could be resolved only after recording the evidence which is possible only in the regular civil suit and not in the writ jurisdiction conferred to this Court under Article 226 of Constitution of India. In our considered view in order to resolve the factual dispute of the parties remedy is available under the provisions of Specific Relief Act read with M.P. Municipal Corporation Act and the CPC in which if the petitioners are in possession of the shop then they have to approach the appropriate civil Court for appropriate proceedings for resolving their dispute raised in this petition. We are also of the considered view that factual dispute involved in the matter between the parties would be decided only by recording the evidence and the writ petition could not be entertained. In such situation there is no option left with this Court except to dismiss this petition by extending the liberty to the petitioner to approach the appropriate Forum of civil Court with appropriate proceedings. 4. In view of the aforesaid discussion without expressing any opinion on merits of the matter, this petition is hereby dismissed on the technical ground of entertainability by extending the aforesaid liberty to the petitioners to approach the appropriate Forum of civil Court with appropriate suit or proceedings permissible under the law. It is made clear that any observation or finding made by this Court in the present order shall not come in the way of civil Court while deciding the dispute in the civil suit. As such the civil Court shall be at liberty to deal with the suit independently without influencing from any observations or findings of this order. 5. There is no order as to costs.