Rajesh Jain vs State of M.P. and Others

Heard finally with the consent of the learned counsel for the parties.

This is third round of litigation. The matter pertains to encroachment over the land owned by the petitioner. However, the respondents alleged that the petitioner raised construction on the land exceeding to his ownership. The record further indicates that in earlier round when the dispute arose W.P. No. 2202/96 was filed by the persons aggrieved as they were apprehending demolition of the shops constructed at Block No. 3, 4 and 5 situated at Madho Chowk, which were in their ownership. It was submitted in the writ court that the property belonged to the petitioners and therefore they constructed a cinema hall, porch and shops on the land owned by them. It is contended that on the complaint made against the petitioners, the spot was inspected by the authorities of Nazul department and they submitted a report that there was no encroachment on the land. Taking into consideration the dispute between the parties in the aforesaid Writ Petition No. 2202/96, it was directed on 9/5/01 as an interim measure by this court that the action shall be taken after giving opportunity to the petitioners.

After the aforesaid order was passed, it appears that some shops which were found constructed illegally on the public road were demolished by the authority and therefore another Writ Petition No. 2286/02 was filed by the petitioners with a prayer for permission to raise further constructions on the portion of the land which was demolished by the respondents-authorities. A relief was also prayed that the respondents be restrained from demolishing the porch, cinema building etc. After considering the submissions of the parties, this court vide order dated 7/9/06 disposed of the said writ petition giving liberty to the respondents to demolish the constructions which were raised beyond the limits mentioned in the map (Annexure-P/5). It was further opined by this court that if the respondents decided to demolish any portion of the property which is within the limits of the map then they may act after following due procedure laid down under the provisions of National Highway (Land and Traffic) Act, 2002 and giving opportunity of hearing to the petitioners.

In the present petition, the contention put forth on behalf of the petitioner is that the authority even after such interim directions, the authority is not stopped and bound to demolish the porch as well as passage which were constructed on the land owned by the petitioner. It is submitted that as per map marked as Annexure-P/5 and after seeking necessary permission from the Nazul Department, the construction of the properties was raised and no encroachment was made on the public way. Under these circumstances, it is prayed that restraint order be issued against the respondents in order to save the porch, cinema building as well as gates which were constructed by the petitioner over his own land.

In counter, learned counsel appearing for the respondents submitted that after demolition of the shops, again shops have been constructed on the government land and therefore petitioner is not entitled to get any sort of relief as claimed in this petition.

After going through the arguments and the pleadings made by the parties, this court finds that the petitioner by filing this petition wants to decide question of title/ownership on the disputed portion of the land which is neither permissible nor amenable to writ jurisdiction. For redressing his grievance, a remedy of filing civil suit is very well available to him. Therefore, we think it proper to grant liberty to the petitioner to institute a civil suit before the trial court, having jurisdiction and accordingly liberty is granted. It is directed that no action shall be taken by the respondents for removal of construction for a period of one month, i.e., up to 16/6/14. Thereafter, respondents are free to take action in accordance with law and in view of the order passed in W.P. No. 2286/02 by the Division Bench of this Court on 7/9/06. It is further observed that the observations made above by this court shall not come in the way of the trial court at the time of dealing with the civil suit.

With this direction, this petition stands disposed of.

C.c. as per rules.