HIGH COURT OFCHHATTISGARH. BILASPUR CORAM: Hon'bleShri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha.J. Writ Appeal No. 78 of2Q09 f^^i? f^)^ ^RPl'^ci'i, gPlRl^d cRWteFT tol^ i?? 3T^T ORDER a., Forconsideration Sd/- SUNIL KUMAR SINHA Judge HON'BLE SHRI JUSTJCE RAJEEV GUPTA ^ ^^r^^ Sd/- Chiet Justice Post for Order: /^/02/20j0 / Sd/- I -/^/02/2010^ -J HIGH COURT OFCHHATTISGARH. BILASPUR CORAM : Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil KumarSinha. J, Writ Appeal No. 78 of 2009 aril^Taff/^teR tiTCKiaiT'l"! l^ f^r? sn^ 36 ?TM f^n ^ft ^t"ldld sTRT !R^T afcp? q^ q^, fNt £)4^11di ^ WT, ^PTT ^ffW, ^v^i, f^W^f (TOTTO) Versus T. 1 ^Ptf?R^7, gPiRf4d (M'<4'1^IT1 1^nf, ynr w?r snf^r ^rr ftcTI^, rf^N ^ toT ^f (W7TO) 2. cl?lft?;R, gPlRl^d c(i|<4)^M ^vH^, . 'g^FfT w^r snf^ff 'g^fr te^, d^'rfld ^cr f^IpfT ^f (^07TO) 3. ^TuR? 3ri^cf)T^, yR)R)4d chl'<4l^lrl 1^nf, ynr wsr sirf^T ^i^fT 1^nf, d^'tfld I??telT ^ (^O^TO) (WritADpeal underSection 2(1)0fthe Ghhattisaarh Hiah Court (Appeal to Division Bench). Act2006) Appearance: Mr. Krishnalal- father and powerof attorney holder of the appellant. Mr. H.B. Agrawal, Sr. Advocate with Mrs. Meera Jaiswal, Advocate for the respondents. ORDER ( ^.02.2010) Following order of the Court SunilKumar Sinha. J. was delivered by (1) Being aggrieved with the judgment and order dated 15 December 2008 passed in Writ Petitlon No. 33/2002 bythelearned Single Judge of this Court, the appellanVpetitioner has filed this writ appeal. .L-.L.. Writ Appeal No. 78 of2009 <-^. (2) The facts, briefly stated, are as under:- The Circular Market Area of Camp-2 of Power House, Bhilai was under Special Area Development Authority (SADA), Durg. Later on SADA was dissolved on 9.6.1998 and its assets and liabilities vested in Municipal Corporation, Bhilai. The 3 sons of Krishnalal namely Jawahar Singh, Nek Singh and appellant Virendra Singh, on the basisof their long interrupted possession, claimed for allotment of the disputed plot. Prior to the present petition, Virendra Singh earlier filed writ petition No. 2695/1997 before the High Court of Madhya Pradesh, Jabalpur, in which, an order of status quo was granted on 29.9.1997. The writ petition was dismissed in default on 11.2.2000. Another writ petition i.e. 1391/1999 was filed by one Surendra Kumar against the Municipal Corporation, Bhilai andappellantVirendra Singh in M.P. High Court for removal ofenGroachment 6f appellant Virendra Singh.In the said petition an undertakihg was given by the Corporation that the Corporation would take necessarystepsin accordance with lawfor removalofencroachment. Jawahar Singh and Nek Singh also filed writ petition in High Court of M.P. vide W.P. No. 3179/1996. In the said writ petition, the Corporation gave undertaking that the action in accordance with law will be taken for allotment of shop to the petitioners. Later on a contempt petition No. 193/2000was filed in the HighCourt of M.P., Jabalpur by Dharampal and Surendra Kumar in which petitionerVirendra Singh was also a party. In the said contempt petition, it was contended bythe contempt petitioner that the order passed in W.P. No. 1391/99 was not complied with in spite ofundertaking given by thecontemnor No.2 i.e. Municipal Corporation, Bhilai. The Corporation in the contempt petition took the plea that in the meanwhile notices hgve been issued to the respondents, including respondent No.2 Virendra Singh to Femove the unauthorized construction. The Contempt Court took the view that as the Commissioner has initiated the proceedings, he shall conclude the sarhe inaccordance with law. The Court further made it clear that the Commissionershall asses the facts inentirety with Writ Appeal No. 78 of2009 utmost objeetivity and passed the order in accordance with law. The proceedings pf the contempt petition, thereafter were dropped. It is in this reference, the proceedings before the Municipal Corporation were drawn and ultimatety the impugned order of the writ petition, i.e. order dated 29.12.2001 (Annexure-P/1 in the writ petition) was passed. The Gommissioner Municipal Corporation, Bhilairecorded the finding that the appellant herein was an encroacher overthe disputed plot. It was also held that the disputed plot is a part of roadsituatedin CircularMarketCamp-2 and the plot being partand partial ofthe road cannot be allotted to the appellanVpetitioner. The Commissioner further directed for rernoval of encroachment from the said plot. The appellant contended before the writ Court that the order was passed without applieation of mind and no prior notice was given to the appellant. The finding of the Gommissioner is also incorreet. No notificgtion was issued declaring the plot/shop in question asa part of the road. Thus the order passed by fhe Commissioner on 29.12.2001 be quashed. He also prayed for permanent injunction against the respondents. The writ Court held that the dispute with regard fo locationof the plot in question isa matter of fact;the appellant and his brothers were never allotted legally a plot where they are allegedly working for the last more than 23 years and have been in possession thereof. Thus, the dispute cannot beresolved by writ Courtwith regard to location of the plot as well as possession and its nature etc. The writ Court held that they all are disputed questioris of facts, therefore, they cannot be gone into in a writ petition and the dispute raised cannot be decided by the writ Court. The writ Court, therefore, observed that the petitioner may approach to the jurtsdictional civil CoUrt, ifso advised and thus the Writ Petitipn No. 33/2002 along with two other connected writ petitionswere dismissed. : /f:^\ 0 ^f •w 'a!v^':JS Writ Appeal No. 78 of2009 (3) Mr. Krishnalal, appearing on behalf of the appellant, argued almost similar points which were argued before the learned Single Judge. He contended that the disputed plot is not the part and partial ofthe road. He further contended that the appellant was legally entitled for allotment of the said plot. The appellant and his family members are in possession of the said plot since last more than 23 years, therefore, they have accrued a right in their favour to hold the possession of the property. (4) On the other hand, Mr. H.B. Agrawal, learned Sr.Advocate appearing on behalf of the respondents, opposed thesearguments and supported the judgment passed by the learned Single Judge. He contended that the appellant is an encroacher, therefore, there is no question of allotment in his favour. (5) We have heard them at length and have also perused the records ^ of the writ petition and other connected petitions. (6) Admittedly, no grant is there in fayour of the appellant as the plot in question was never allotted to him. The appellant is claiming that he and his family members are in possession ofthe disputed plot since last more than 23 years and the plot in question is not the part and partial of the road, therefore, there is no impediment in making a grant in favour of the appellant. The contention of the Corporation is that the disputed plot is part and partial of the road and no grant can be made in relation to the / said plot. The right claimed by the appellant is not capable of being established in the summary proceeding ynder Article 226 because it requires a detailed examinationof the evidence as may behad in a suit. It is well settled principle df law that the object of Article 226 is the ssa^ •fsss. \%^/ Writ Appeal No. 78 of 2009 enforcement and not establishment of a right or title. In case of highly disputed questions of fact for decision, civil suit would be the appropriate action. The above princjple has been extended even to the mixed questions offact and law.It is in these facts and circumstances, the learnedSingle Judge held that the relief(s)claimed-by the appellant would not be possible in a writ Court and has dismissed the writ petition observing that the appellant may approach to the competent civil court. (7) We do not find any illegality orinfirmity in such view taken by the learned Single Judge. The appeal filed by the appellant, therefore, is liable to be dismissed and is hereby dismissed. Needless to say that the appellantwould be at liberty toapproach the competent civil courtas observed by the learned Single Judge and in such situation, the concerned court shall decide the claim of the appellantin accordance with law without being influenced by the observations made by the learnedSingle Judge or by this Court. (8) No order as to cost. Sd/- ChiefJustice Sd/- SUNIL KUMAR SINHA Judge vatti