Madhya Pradesh High Court
Amit Kumar vs The State Of Madhya Pradesh on 1 April, 2022
Author: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 1st OF APRIL, 2022
WRIT PETITION No. 4718 of 2022
Between:-
1. AMIT KUMAR S/O LATE ROSHAN LAL AGRAWAL ,
AGED ABOUT 49 YEARS, OCCUPATION: BUSINESS
SUNDARAM VIHAR (MADHYA PRADESH)
2. VIVEK KUMAR S/O RAMASHANKAR AGRAWAL ,
AGED ABOUT 50 YEARS, OCCUPATION: BUSINESS
PATEL NAGAR, KITIYANI (MADHYA PRADESH)
3. DEEPAK KUMAR S/O RAMASHANKAR AGRAWAL ,
AGED ABOUT 47 YEARS, OCCUPATION: BUSINESS
HUDCO COLONY, NEEMUCH (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI A.K.SETHI- SENIOR ADVOCATE WITH SHRI HARISH
JOSHI-ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH PRINCIPAL
SECRETARY VALLABH BHAWAN MANTRALAYA
(MADHYA PRADESH)
2. THE COLLECTOR MANDSAUR (MADHYA
PRADESH)
3. NAGAR PALIKA PARISHAD THROUGH CHIEF
MUNICIPAL OFFICER MANDSAUR (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI MANISH NAIR-DY.A.G. FOR RESPONDENT Nos.1 & 2)
(SHRI V.K.JAIN-SENIOR ADVOCATE WITH SHRI NAMIT JAIN-
ADVOCATE FOR RESPONDENT No.3)
This petition coming on for orders this day, the court passed the following:
ORDER
The present petition has been filed under Article 226 of the Constitution of
India seeking following reliefs :-
(i) that, the impugned order/notice dated 23.12.2021 (Annexure P/15) and all
consequential proceedings may be ordered to be set aside and quashed and
respondent No.3 may be directed to not to interfere in possession of petitioners
Signature Not VerifiedDigitally signed by
SAN MUKTA
CHANDRASHEKHA
R KOUSHAL
and may not taken possession without due process of law.
Date: 2022.04.04
17:35:22 IST
(ii) to award the cost of present petition from the respondents to the
petitioner.
(iii) to grant any other relief.
The facts adumbrated in nutshell according to the petitioners are that
respondent No.3 has given a shop on rental basis to one Suresh Kumar vide
resolution no. 312 dated 13.1.1978 and after the death of Suresh Kumar, name of
Dulichand was mutated and tenancy period was extended by respondent no.3 in
the year 1979. After the death of Dulichand on 27.7.1999, the name of petitioner
No.1 and Ramashanker were mutated by resolution No. 177. On 3.8.2004 the name
of petitioner Nos.2 and 3 were mutated in place of Ramashankar and period of
tenancy was extended by respondent No.3. On 30.5.2006 resolution was passed
and the period of tenancy has been extended for a further period of three years. It
is stated that petitioners have filed application for permission of reconstruction of
shops which was granted by respondent No.3 on 10.12.2007. After that petitioners
have constructed the shops under the guidance/supervision of respondent No.3
officers and petitioners have established mobile gallery and fashion shops in
tenanted premises. Petitioners are doing the business under the partnership and
have executed partnership deed with other co-partners for opening the mobile
gallery as well as fashion shops. Respondent No.3 has issued notice on 4.08.2018
alleging that petitioners have violated condition Nos.5 and 6 of the rent agreement
and petitioners have encroached upon some of portion and tenancy of premises
has come to end on 30.11.2009, therefore respondent No.3 does not want to
continue the tenancy, therefore rental premises be vacated otherwise they will take
possession. After receipt of notice, the petitioners have submitted detail reply
before the respondent No.3 on 6.08.2018. Respondent no.3 again issued notice on
18.10.2019 and the petitioners submitted reply to the aforesaid notice. It is stated
that all of a sudden on the basis of complaint submitted before CM helpline by the
public representative under the political pressure, on 14.12.2021 notice was issued
by respondent No.3. On 23.12.2021 petitioners again submitted reply to the said
notice. It is stated that on 2.02.2022 without following due process of law the
Signature Not VerifiedDigitally signed by
officers of respondent No.3 have put a seal/lock upon the petitioners shops.
SAN MUKTA
CHANDRASHEKHA
R KOUSHAL
Date: 2022.04.04
17:35:22 IST Learned Senior Counsel for petitioners submitted that action of the
respondents is illegal, arbitrary and contrary to law. Even assuming that there was a
breach of condition of lease and tenancy had come to an end, still respondents
could not have taken possession without following the due process of law. The
remedy for respondent No.3 was either to file a civil suit for eviction or resort to
the provisions of M.P.Lok Parisar Bedaklhi Adhiniyam. In support of his
submission, he placed reliance upon the judgment passed by apex Court in the
case of State of U.P. and others Vs. Maharaja Dharmander Prasad Singh
and others, (1989) 2 SCC 505. He referred para 30 of the said judgment. He
also placed reliance on the judgment passed by Division Bench in the case of
Sajni Bajaj Vs. Indore Development Authority and others, 2012 (1) MPLJ
Per contra, learned counsel for respondent No.3 submitted that there is no
illegal or arbitrariness in the action of respondents. It is stated that a garage was let
out to one Suresh Kumar for being used for garage purpose only. Thereafter the
said tenancy was transferred on various occasions and ultimately transferred to the
present petitioners. He argued that as per terms and conditions of term lease the
petitioners could not have changed the nature of premises and could not have let
out the same to other persons. Without permission of respondents, the petitioners
have reconstructed the shops by changing the purpose of garage and have also
encroached upon the adjacent land of the ownership of answering respondents. It
is further alleged that lease was for garage purpose only while the petitioners and
their tenants are using the demised premises for opening/running a showroom of
mobile shop and readymade garment shop contrary to the lease conditions. The
petitioners have constructed four shops instead of garage, contrary to the
permission granted to the petitioners. The petitioners have illegally subletted the
said shops to other persons which is apparent in the case. To conceal the same,
ostensible partnership deeds are prepared, which are neither registered nor
intended to be acted upon. It is further submitted that respondents have peacefully
taken possession of the premises without using any force. It is also alleged that in
view of reliefs prayed in the writ petition, the petitioners are not entitled for relief of
possession because the possession has already been taken over by the respondent
Signature Not VerifiedDigitally signed by
SAN MUKTA
CHANDRASHEKHA
R KOUSHAL
Date: 2022.04.04
17:35:22 IST
No.3. There is no relief for possession of the premises. Even otherwise the said
relief cannot be granted under Article 226 of the Constitution of India. For the
same relief, the petitioners have to approach the civil court for redressal of their
grievance.
In support of his submissions, counsel for the respondent No.3 placed
reliance on the order passed by the Division Bench in writ petition NO. 907/2020
(Shiksha Prasarak Samiti through Dilip Kanungo VS. Nagar Palika Sendhwa) where
Division Bench has declined to interfere in the case of peaceful possession.
Counsel further argued that judgment relied upon by counsel for the petitioner
would not apply to the facts of the present case.
After hearing learned counsel for the parties, it would be apt to refer certain
documents annexed along with the petition. The original allotment in favour of
Dulichand vide resolution No. 524 dated 30.5.1998 was for the purpose of old
garage. After the death of Dulichand, the name of petitioners were mutated by the
respondent No.3. An agreement of tenancy was executed between the petitioners
and respondent No.3. In reference to resolution No.28 dated 30/5/2006, the
tenancy was extended for a period from 1.12.2006 to 30.11.2009. The said tenancy
was for a period of 3 years. As per clause 5 of the said agreement, the premises
was let out to the petitioners for the purpose of garage. There was specific
condition that premises would be used only for the same purpose and its use shall
not be changed. The premises shall not be sublet to anyone and the lessee shall not
encroach any area. It appears that thereafter the shops have been constructed on
the said premises in place of garage. There is no document along with writ petition
to show that any permission was taken from respondent No.3 before changing the
use of premises or constructing the shops. The partnership deeds filed by the
petitioners with the shopkeepers are unregistered documents and further they have
been executed without any permission of respondent No.3.
Counsel for respondent No.3 argued that premises was voluntarily handed
over by the shopkeepers to respondent No.3 and no use of force was applied by
respondent No.3. In para 15 of the reply it is stated that premises was taken over
Signature Not VerifiedDigitally signed by
by the respondent No.3 peacefully without using any force, upon the flagrant
SAN MUKTA
CHANDRASHEKHA
R KOUSHAL
Date: 2022.04.04
17:35:22 IST violation of terms and conditions as well as expiry of lease period and also
because of illegal construction.
In the instant petition, a challenge has been made to the order dated
23.12.2021 passed by respondent No.3 whereby the employees of respondent
No.3 were directed to take the possession of said garage. It is not in dispute that
thereafter the possession has been taken over on 2.2.2022 but there is no challenge
of the aforesaid action of the respondents by taking over of the possession of the
premises. Specific stand has been taken by the respondents that possession was
taken peacefully without applying any force. There is no rejoinder to the said effect
denying the aforesaid allegations. Relying upon the judgment passed by Division
Bench (supra) in the case of Shiksha Prasarak Samiti whereby the Division Bench
declined to interfere with the impugned order in the case of peaceful possession, I
am not inclined to interfere with the impugned order. There is no relief prayed for
possession of the premises. Even otherwise the said relief cannot be sought under
Article 226 of the Constitution of India as it would involve dispute question of
facts.
In the judgment passed in the case of Maharaja Dharmander (supra) it has
been held that cancellation of lease was valid and should not have been examined
by the High Court under Article 226 of the Constitution of India. The aforesaid
judgment would not apply to the facts of the present case. In the present case, the
possession has already been taken. In the case of Sajni Bajaj (supra) also the
Division Bench has held that scope of jurisdiction under Article 226 of the
Constitution of India is not for examining the correctness and validity of the order
of cancellation of lease deed and relegated the petitioner to avail remedy of civil
suit. In the present case the peaceful possession has already been taken over by the
respondent No.3 on the ground of flagrant violation of terms and conditions,
expiry of lease deed and illegal construction.
In view of aforesaid, I do not find any merit in the writ petition. The same is
hereby dismissed.
No order as to costs.
Signature Not VerifiedDigitally signed by
SAN MUKTA
CHANDRASHEKHA
R KOUSHAL
Date: 2022.04.04
17:35:22 IST
(VIJAY KUMAR SHUKLA)
JUDGE
MK
Signature Not Verified
VerifiedDigitally
Digitally signed by
SAN MUKTA
CHANDRASHEKHA
R KOUSHAL
Date: 2022.04.04
17:35:22 IST
