Madhya Pradesh High Court
Smt. Naseem Bano vs Municipal Corporation Jabalpur on 5 October, 2021
Equivalent citations: AIRONLINE 2021 MP 2317
Author: Vishal Mishra
Bench: Vishal Mishra
1 WP-20743-2021
The High Court Of Madhya Pradesh
WP-20743-2021
(SMT. NASEEM BANO Vs MUNICIPAL CORPORATION JABALPUR AND OTHERS)
1
Jabalpur, Dated : 05-10-2021
Heard through Video Conferencing.
Shri Mohd.Ali, learned counsel for the petitioner.
Shri Shivam Hazari, learned Panel Lawyer for the respondents/State.
With the consent of both the parties matter is finally heard. Challenge being made to the action on the part of the respondent No.5 whereby they have issued notice to the petitioner for demolishing the construction area being 768 sq.ft. which is being raised in accordance with the sanctioned plan on a 1548 sq.ft. ,which was purchased through registered sale deed.
It is argued that the petitioner being victim right from the year 2010 and is facing consequences for the reasons that he has refused to fund the ruling party in the election. Therefore, petitioner has filed this writ petition seeking following prayers:-
(i) To call for the entire record of proceedings of all of the criminal cases registered against the employer of the petitioner.
(ii) To quash the impugned order dated 20.9.2021 (Annexure-P-
8) issued by respondent No.5.
( iii) To restrain the respondents from demolishing the construction/the house situated on plot No.304, diversion sheet No.87, mouza Bhartipur, Jai Prakash Narayan Ward, Jabalpur area about 1548 sq.ft. occupied by petitioner.
(iv) to restrain the respondents from entering in the house without following the due process of law and to restrain complete entry in the house during night i.e. from sunset to sunrise.
(v) To restrain the respondents from taking any coercive action against the petitioner and from evicting the petitioner from the premises without compliance of law."
(vi) To grant any other relief, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case including cost of the litigation in favour of the petitioner.
Signature SAN Not Verified Digitally signed by SMT SHALINI SINGH LANDGE Date: 2021.10.05 16:21:10 IST 2 WP-20743-2021
It is argued that respondents do not have any power for demolishing t h e construction after the approval of map and after completion of construction as per Section 307 r/w Section 308-A of Municipal Corporation Act and Article 300-A, 21, 14 and 19 of the Constitution of India, he has placed reliance upon the orders passed by the Division Bench of this Court in case of Lakhan Singh Vs. State of M.P. and others passed in W.P. No.8719/2020 which was decided by this Court on 8.7.2020, wherein in similar circumstances, the writ petition was disposed of with the following observations:-
"1 . The official respondents are directed to inform the petitioner by way of notice, the reasons for marking the property as encroachment. If intention is to demolish then petitioner be afforded reasonable opportunity of being head and thereafter pass a speaking order and communicating the same to the petitioner by any legitimate mode.
2 . After completion of the aforesaid exercise the petitioner would be afforded thirty (30) working day's time to avail the remedy available in law against the order passed by the official respondents and only thereafter the respondents are free to proceed in accordance with law".
He has further brought to the notice of this Court that a show cause notice was issued to the petitioner on 20.9.2021 asking the petitioner to produce all the relevant documents in support of property in question and appear before the property within three days, failing which, coercive action will be taken regarding demolition of the property. It is submitted that as the petitioner has been harassed owing to the political vengeance as demonstrated herein-above, it is submitted that some breathing time be granted to him to submit all the relevant documents. He has further relied upon the order passed in W.P. No.19210/2021 in the case of Mohd. Abbas Vs. Municipal Signature SAN Not Verified Digitally signed by SMT SHALINI SINGH LANDGE Date: 2021.10.05 16:21:10 IST 3 WP-20743-2021 Corporation Jabalpur and others wherein an interim protection was granted on 16.9.2021 in a similar issue. He has prayed for the similar protection being granted in the case of Mohd. Abbas.
Counsel appearing for the respondents/corporation on advance notice has submitted that petition itself is not maintainable for a simple reason that only a show notice has been issued to the petitioner pointing out that the authorities will be taken coercive action for demolishing the property for which the petitioner is asked to deposit all his documents before the authorities infavour of his case. But despite opportunity being granted he has turned up. He has further placed reliance upon the judgment passed by the Hon'ble Supreme Court in the case of Union of India & Another Vs. Kunishetty Satyanarayana, (2006) 12 SCC 28, wherein the question of maintainability the writ petition against the show cause notice of the charge- sheet was considered in writ petition under article 226 of India was held to be not maintainable as no cause of action arises to the petitioner. In such circumstances the authorities will be left with no other option but to take coercive steps.
Counsel appearing for petitioner has submits that he has submitted all the documents before the authorities but the authorities are bent upon to take coercive action against him and not providing any opportunity of hearing and not considering the documents. It is submitted that the authorities are already against the petitioner, therefore, that is every apprehension that an adverse order order can be passed by the authorities at any point of time, without even providing opportunity of hearing to the petitioner. Therefore, he has prayed for grant of interim relief in the matter.
Heard the learned counsel for the parties and perused the record. From perusal of the record it is seen that steps have been taken by the respondents/Corporation directing for taking steps for demolition of properties for which notices have already been issued to the petitioner. As the petitioner has already deposited the documents as far his sake. The Division Signature SAN Not Verified Digitally signed by SMT SHALINI SINGH LANDGE Date: 2021.10.05 16:21:10 IST 4 WP-20743-2021 Bench of this Court has already considered and granted some breathing time in similar matter, therefore, maintaining parity with the order passed by the Division Bench, this petition is disposed of in same terms.
In such circumstances , this Court deem fit to dispose of the writ petition directing the respondents authorities to decide the case of the petitioner after considering all the relevant documents and providing opportunities of hearing to him and in case an adverse order is passed, it is directed that the authorities will not take any coercive steps for a period of 15 days from the date of such order (such as demolition of the property), to enable the petitioner to avail the remedy available to him under the law against adverse order, if any, passed by the authorities.
With the aforesaid, this petition is disposed of.
(VISHAL MISHRA)
JUDGE
Sha
Signature
SAN Not
Verified
Digitally signed by
SMT SHALINI
SINGH LANDGE
Date: 2021.10.05
16:21:10 IST