JANKI PANDEY Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS petition and the petitions bearing W. P. No. 467/97, Nagendra Tiwari and Ors. v. State of M. P. and Ors. , W. P. No. 440/97, Sanjeev Kumar Pandey v. State of M. P. and Ors. , W. P. No. 462/97, Pradeep Kumar Naik v. State of M. P. and Ors. , W. P. No. 465/97, Sunderlal Kasarwani v. State of M. P. and Ors. , W. P. 561/97, Govind Prasad Sahu v. State of M. P. and Ors. , W. P. No. 767/97, R. B. Agrawal v. State of M. P. and Ors. , W. P. No. 784/97, Smt. Rampyari Bai v. State of M. P. and Ors. , W. P. No. 768/97, V. M. Punsule and Ors. v. State of M. P. and Ors. , W. P. No. 789/97, Niranjan Prasad Sahu v. State of M. P. and Ors. , W. P. No. 793/97, Kripa Chand Sahu v. State of M. P. and Ors. , W. P. No. 794/97, Ramcharan Sahu and Anr. v. State of M. P. and Ors. , W. P. No. 795/97 Gulab Chand Sahu v. State of M. P. and Ors. , W. P. No. 797/97, Purshottam Anant Paranjpe and Ors. v. State of M. P. and Ors. , W. P. No. 798/97, Dr. Surendra Bahre and Anr. v. State of M. P. and Ors. , W. P. No. 803/97, Indra Kumar Rai v. State of M. P. and Ors. , W. P. No. 811/97, Rajkumar Budhrani v. State of M. P. and Ors. and W. P. No. 716/97, Lakhanlal Piper Sonia and Anr. v. State of M. P. and Ors. have been filed against the drive of the respondents to remove encroachments from the city especially in the area contiguous to the National Highway No. 7. Since these petitions proceed on identical facts and grounds, they are being decided by this common order. However, for the purpose of this decision, the facts and grounds referred to in W. P. No. 330/97 are being taken into consideration. The case of the petitioners in brief, is that even though the construction of the petitioners is on private land and is neither an encroachment nor against any provision of the Municipal Corporation Act, 1956, the respondents in their zeal to appease their superior officers and political bosses, in a team of local administration and the personnel of the Jabalpur Municipal Corporation, undertook to clear the area along the National Highway No. 7 to widen the said road on the ground that the same had been encroached by construction effected on the two sides of the road. In the said drive against encroachment, the front portion of the house of the petitioners in W. P. No. 330/97 containing three shops was demolished while in W. P. No. 467/97, the boundary wall was demolished. The respondents could not succeed in demolishing other constructions as the petitioners in the other petitions rushed to the court and orders restraining the respondents were passed. The case of the petitioners is that the construction was in accordance with the law and by-laws of the Municipal Corporation and the plans duly sanctioned by it but still without any previous notice or intimation, the respondents suddenly came along with large contingent and demolished the same despite protest of the petitioners that the construction could not have been demolished; the same having been duly sanctioned. Learned counsel for the petitioners, in support of his submissions, has relied upon the sanctioned plan of which the copies have been placed on record as Annexures A/1 and A/2.

(2.) LEARNED counsel for the petitioners has invited attention to the certificate issued by the Patwari (Annexure B/1) by which it was stated that as per the road map, the width of the road in front of the house was 80 feet and the learned counsel has, on the strength of this certificate, contended that it prima facie established that there was no encroachment causing any obstruction of the road. Learned counsel has further referred to order dated 4-12-1997 (Annexure-C) passed in W. P. No. 3994/1995, Pradeep Kumar and anr. v. Municipal Corporation and Ors. , by which in an earlier petition, the respondents were restrained from demolishing any house, building or other construction which did not constitute encroachment on any public street or project over any such area. Reference has also been made to similar orders Annexures-C, D and E and photograph has also been placed on record to show the extent of demolition. Learned counsel, therefore, contends that this menacing action of the respondents of demolishing of the construction of the petitioners was not only illegal but also high-handed and motivated to appease their bosses leaving the law abiding public apprehensive about its safety.

(3.) LEARNED counsel for the respondent No. 2/corporation relied upon the return filed in W. P. No. 561/97 which has been adopted in other cases and pointed out that a public notice Annexure-R-2/2 was duly issued informing the general public to remove structures which were on public street. Attention has been invited to section 323 of the M. P. Municipal Corporation Act, 1956 (hereinafter referred to as the Act') in support of the contention that the Corporation has due authority to remove encroachment from any street or any open place vested in the Corporation, without notice. Learned counsel has also referred to section 294 of the Act, to point out that not only the building plans but also site plans require an approval and there was nothing on record to indicate that the site plan of the petitioners had been approved. Learned counsel has, however, submitted that no structure on any private land was demolished and a concerted action was taken under the aegis of the Collector only to cooperate with the team of persons appointed by him to make the city clean and free from the menace of encroachment. According to the learned counsel, these encroachments were a potential traffic hazard requiring immediate removal.