Shahida Bee vs State Of Madhya Pradesh And Others

Petitioner, Shahida Bee D/o (wrongly typed as S/o) Late Ahmed Noor, resident of Narsinghgarh Distt. Ujjain is before this Court claiming relief against respondents not to take any coercive action for demolition of House No. 19 situated at Pashupatinath Mandir, Distt. Mandsaur and also for issuance of a direction for initiation of contempt proceedings against the respondents in respect of order dated 31.08.2012 and 01.09.2016 passed by the trial Court and appellate Court.

Shri Sheel Pathak, learned counsel for the petitioner contends that Civil Court of competent jurisdiction had earlier decided lis between Mohd Aslam s/O Ahmed Musalman, resident of Gudari Mohalla, Mandsaur Distt. Mandsaur. She is the sole surviving member of the family. Therefore, she has exclusive right to the said property.

She has styled herself as owner of the property of House No. 19 with further submission that under the garb of notice dated 04.01.2020 issued to Haji Abdul Raheem s/O Noor Mohammad [dead] through LR Mohd Shafi S/o Haji Abdul Rahim alias Bandal Ustad for removal of encroachment in respect of House No. 102, Mahadev Ghat Road of Ward No. 27, the petitioner's house was partly demolished. She also claims to have filed a representation on 06.01.2020. Thereafter, again on 27.07.2020 under the garb of notice to one Mohd Shakeel and Mohd Zareef S/o Mohd issued for removal of encroachment of construction raised over the public drain, she apprehends demolition of her house. Hence, seeks indulgence in extraordinary constitutional jurisdiction of this Court under Article 226 of the Constitution of India to restrain respondents from demolishing house no. 19 situated at Pashupatinath Mandir, Mandsaur.

Per contra, Shri Ranka, learned Panel Lawyer on advance notice has taken preliminary objections against the maintainability of writ petition looking to the nature of relief claimed with due regard to the factual matrix narrated above inter-alia contending that;

(i) the judgment of the trial Court does not spell out that the injunction in relation to the suit property is House No. 19, as allegedly claimed by the petitioner.

(ii) neither there is any title document nor building permission or any other evidence of existence of House No. 19 on record.

(iii) there is no documentary evidence on record or any other evidence whatsoever that petitioner is the sister of Late Mohd Aslam s/O Ahmed Musalman(since dead). Moreover, the description of the petitioner in the cause title shows Shahida Bee D/o (wrongly mentioned as S/o) Late Ahmed Noor. Therefore, the father's name of Late Mohd Aslam is different from the father's name of the present petitioner, Shahida Bee. Her claim that she is sister of late Mohd Aslam, as a matter of fact, is prima-facie contrary to record on her own showing. Even otherwise, the disputed question of facts cannot be settled by this Court under Article 226 of the Constitution of India, requiring adjudication of title on facts.

(iv) petitioner in her self-styled manner has made a ground in this petition with regard to notice of respondent no. 2 dated 04.01.2020 which is neither addressed to the petitioner nor in relation to the House No. 19. Instead, it is in the name of Haji Abdul Raheem S/o Noor Ahmed[since dead] LR - Mohd Shafi. Hence, no cognizance of the arguments advanced in relation to the alleged demolition can be taken on such vulnerable assertion. That apart, the subsequent notice dated 27.07.2020 for removal of encroachment over the public drain is addressed to Mohd Shakir and Mohd Zareef. Therefore, apprehension of demolition of the alleged claimed House No. 19 of petitioner is found to be misplaced. Moreover, noticees in notice dated 27.07.2020 viz., Haji Abdul Raheem S/o Noor Ahmed[since dead] LR -Mohd & Mohd Shakir and Mohd Zareef had already approached this Court against the demolition notice in W.P. No. 1393/2020 and the said writ petition had been disposed of by this Court by order dated 16.01.2020.

(v) lastly, petitioner's relief is totally vague and de hors the material on record. Under the pretext of seeking indulgence for alleged House No. 19, she attempts to obstruct anti-encroachment drive of the Municipal Council for no justifiable reasons. If what petitioner says is correct, she can always file a suit for declaration of title and seek injunction before the Civil Court.

Upon hearing the counsel for parties and in the obtaining facts and circumstances, in the opinion of this Court, the kind of inquiry required to be made on facts at variance, the same is not permissible in exercise of writ jurisdiction under Article 226 of the Constitution of India, particularly in the context of alleged relief on facts mentioned above. Hence, this petition is found to be misconceived and cannot be entertained.

However, before parting with the case, it is considered apposite to observe if the petitioner has any apprehension of the nature canvassed through her counsel related to demolition of her alleged house, for which there is no factual foundation on record, petitioner is set at liberty to approach the respondent/municipal council and seek indulgence, particularly in the context of alleged part demolition and further apprehension of demolition.

The petitioner is directed to communicate the order passed by this Court today to respondent no.2 with fresh representation annexing therewith earlier representation, if any with promptitude.

This Court hopes and trusts that the respondent no.2 shall act upon it by affording an audience to the petitioner and upon hearing, shall address the contentions advanced by her on facts in accordance with law. It needs no mention that under our legal system, there is no right to entry or re-entry except by due process of law.

In the light of aforesaid legal position, the apprehension of petitioner that without notice and hearing, her alleged house shall be demolished, at this stage is not addressed, as so far there is no documentary evidence on record in that behalf from the office of respondent no.2. Suffice it is to say that no public authority is expected to act contrary to law or interfere in the property rights of a person, except by due process of law.

With the aforesaid observation, petition stands disposed of.