Harobai (Dead) Through Grandson Uttam Chand Jain vs The State Of Madhya Pradesh

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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR

BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 7626 of 2022
CNR No.: MPHC030083002022
HAROBAI (DEAD) THROUGH GRANDSON UTTAM CHAND JAIN
AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Prashant Sharma - Advocate for the petitioners.
Shri Shiraz Qureshi - Govt. Advocate for the respondent/State.
Shri Shyam Prakash Jain - Advocate for the respondent No.3
Reserved on : 13.10.2026
Pronounced on : 28.10.2026
ORDER
The present petition under Article 226 of the Constitution of India has
been filed by the petitioners, calling in question the notices dated 24.03.2022
and 25.03.2022 issued by the Nagar Palika Parishad, Bhind, whereby the
petitioners were directed to remove the alleged encroachment over the
footpath and were threatened with coercive action, including demolition, in
the event of non-compliance.
The petitioners have approached this Court contending that the
impugned notices have been issued in an arbitrary and high-handed manner,
without properly determining the nature and extent of the alleged
encroachment and without affording them an effective opportunity of
Signature Not Verified
Signed by: YOGENDRA
OJHA
Signing time: 10/29/2026
10:44:16 AM

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hearing.

Learned counsel for the petitioners submits that the petitioners are
residents of Sadar Bazar, Bhind, and are in possession of the disputed
properties, over which their respective shops and residential premises are
situated. It is contended that the petitioners are in lawful possession of the
properties in question and have been paying municipal taxes. According to
the petitioners, they are also possessed of documents in support of their
claim, including title-related documents and other revenue and municipal
records.
It is further submitted that the impugned notices dated 24.03.2022 and
25.03.2022 have been issued in an arbitrary and mechanical manner without
properly identifying the land allegedly encroached upon by the petitioners.
Learned counsel submits that, although the notices pertain to the same
disputed property, they contain different allegations regarding the extent of
the alleged encroachment. While one notice refers to an encroachment of
approximately nine feet, the other refers to an encroachment of
approximately seventeen to eighteen feet. Such inconsistency, according to
the petitioners, demonstrates the absence of a proper measurement or
determination before initiation of the proposed action.
Learned counsel for the petitioners further submits that the municipal
authorities have not supplied any reliable demarcation report or other
material establishing the precise portion of the land allegedly encroached
upon by the petitioners. It is argued that, in the absence of proper
measurement and demarcation, the petitioners cannot be deprived of their
Signature Not Verified
Signed by: YOGENDRA
OJHA
Signing time: 10/29/2026
10:44:16 AM

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possession merely on the basis of an allegation made by the municipal

authorities. The petitioners contend that they have requested the authorities
to undertake proper demarcation of the disputed property, but no satisfactory
exercise has been undertaken in their presence.
It is also submitted that the impugned notices are not genuine show-
cause notices affording an effective opportunity of hearing, but are merely a
formality preceding the proposed coercive action. According to learned
counsel, the notices disclose a predetermined conclusion that the petitioners
have encroached upon the footpath and require them to remove the alleged
encroachment within the stipulated period. The petitioners contend that such
action, without an objective determination of the disputed area and without
consideration of their documents, is contrary to the principles of natural
justice.
Learned counsel for the petitioners further submits that the municipal
authorities have failed to consider the legal effect of the documents relied
upon by the petitioners and have proceeded on assumptions rather than on a
proper inquiry. It is contended that the respondents cannot arbitrarily
interfere with the petitioners’ possession, particularly when the petitioners
assert that the disputed properties form part of their lawful holdings and their
rights are supported by documentary material.
Referring to the constitutional protection available under Articles 14
and 300-A of the Constitution of India, learned counsel submits that no
person can be deprived of property except by authority of law. It is argued
that the proposed demolition or removal of the alleged encroachment,
Signature Not Verified
Signed by: YOGENDRA
OJHA
Signing time: 10/29/2026
10:44:16 AM

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without following the prescribed procedure and without determining the

actual nature and extent of the encroachment, would amount to arbitrary
State action. On the aforesaid grounds, learned counsel for the petitioners
prays that the impugned notices be quashed and the respondents be
restrained from taking coercive action against the petitioners or interfering
with their peaceful possession over the disputed properties.
Per contra, learned counsel appearing for the State, opposing the
petition, submits that the petition is misconceived and is liable to be
dismissed, as the petitioners have invoked the extraordinary writ jurisdiction
of this Court despite the availability of an alternative statutory remedy. It is
contended that the controversy raised in the petition involves disputed
questions of fact concerning the nature, extent and location of the alleged
encroachment, which cannot appropriately be adjudicated in proceedings
under Article 226 of the Constitution of India.
Learned counsel for the State further submits that the municipal
authorities have acted in accordance with law and that the notices in question
were issued after the matter was examined by the competent authorities.
According to the return filed on behalf of the respondents, a survey was
conducted by the revenue authorities, and the survey report disclosed
encroachment over an area measuring approximately seventeen to eighteen
feet on the drainage side. On the basis of the said report, the municipal
authorities initiated proceedings against the petitioners.
It is further submitted that the petitioners were afforded an opportunity
to respond to the notices but, instead of pursuing the remedy available to
Signature Not Verified
Signed by: YOGENDRA
OJHA
Signing time: 10/29/2026
10:44:16 AM

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them before the competent authority or the appropriate statutory forum, they

have approached this Court directly. Learned counsel submits that the
petitioners cannot seek quashment of the notices merely by asserting that the
disputed property belongs to them, particularly when the respondents dispute
the petitioners’ claim insofar as the land forming part of the footpath or
drainage area is concerned.
Learned counsel for the State also points out that the petitioners have
not placed on record any conclusive material establishing that the particular
portion of land identified by the municipal authorities as an encroachment
forms part of their lawful property. It is submitted that the mere existence of
documents relating to the petitioners’ properties does not, by itself, establish
their entitlement to occupy any portion of a public footpath or drainage area.
The question whether the petitioners have encroached upon public land is
required to be determined on the basis of the relevant records, survey
material and applicable statutory provisions.
It is further submitted that, insofar as petitioner No. 1 is concerned, a
civil suit concerning the disputed property has also been instituted and the
claim of title has not been accepted by the court below. Learned counsel,
therefore, submits that the petitioners cannot seek adjudication of disputed
questions of title and possession in the present writ proceedings, particularly
when the relevant issues are already capable of being examined before the
competent forum. On these grounds, learned counsel for the State prays for
dismissal of the petition, submitting that the impugned notices have been
issued in exercise of statutory powers and that no interference by this Court
Signature Not Verified
Signed by: YOGENDRA
OJHA
Signing time: 10/29/2026
10:44:16 AM

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is warranted at this stage.

Heard learned counsel for the parties and perused the material
available on record.
It is apparent from the record that the present petition was instituted in
the year 2022 and that this Court, vide order dated 28.04.2022, granted
interim protection to the petitioners, which has continued to operate till date.
In view of the fact that the matter has remained pending since the year
2022 and the interim protection granted by this Court has continued
uninterruptedly during this period, the proposed demolition drive pursuant to
the impugned notices has, by passage of time, lost its efficacy. In these
circumstances, no useful purpose would be served by keeping the present
petition pending for adjudication of the controversy arising out of the
impugned notices.
Accordingly, without expressing any opinion on the merits of the rival
claims of the parties regarding the alleged encroachment or the title and
possession claimed by the petitioners, this Court deems it appropriate to
dispose of the present petition.
In view of the fact that the impugned notices dated 24.03.2022 and
25.03.2022 have lost their efficacy by passage of time, particularly in view
of the interim protection granted by this Court vide order dated 28.04.2022,
which has continued to operate till date, the aforesaid notices are hereby
quashed. However, liberty is extended to respondent No. 3, Nagar Palika
Parishad, Bhind, to issue fresh notices to the petitioners, if occasion so
arises, strictly in accordance with law. In the event of initiation of any such
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Signed by: YOGENDRA
OJHA
Signing time: 10/29/2026
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proceedings, the competent authority shall afford the petitioners a reasonable

opportunity of hearing, consider their objections and the documents relied
upon by them, and thereafter pass an appropriate reasoned order in
accordance with law.
It is clarified that this Court has not expressed any opinion on the
merits of the matter.
With the aforesaid observations and liberty, the petition stands
disposed of.
(MILIND RAMESH PHADKE)
JUDGE
ojha

Signature Not Verified
Signed by: YOGENDRA
OJHA
Signing time: 10/29/2026
10:44:16 AM