O R D E R

(Passed on this 26th day of July, 2021)

This petition under Article 226 of the Constitution of India has been filed by the petitioner – Gokul Apartment Association, 8/2, Yashwant Niwas Road, Indore (MP) a society registered under the provisions [Section 3 (e)] of Madhya Pradesh Society Registrikaran Adhiniyam, 1973, seeking the following relief

(s): -

"(i) issue a writ or order in the nature of mandamus or other appropriate writ to direct the respondent No.1 and 2 to remove the encroachment or illegal construction made by re- spondent No.3 at Basement and Ground Floor of the Gokul Apartment,

(ii) grant cost of the present proceedings,

(iii) grant any other relief which deems fit by this Hon'ble Court to grant in the facts and circumstances of the case."

2. The petitioner’s grievance is that certain encroachment and illegal construction has been made by respondent No.3 in the basement area of Gokul Apartment, which is not only illegal but has caused serious inconvenience to the flat owners of Gukul Apartment. 3. Shri Praveen Pal, learned counsel for the petitioner has submitted that in the basement area of Gokul Apartment situated at 8/2 Yashwant Niwas Road, Indore (MP), respondent No.3 – M/s. Jabalpur Motors Private Limited has made illegal construction and encroached upon the same to the utter inconvenience of the other flat owners Hence, the area which is a common open space and encroached upon by respondent No.3 needs to be removed.

4. Counsel for the petitioner has also drawn the attention of this Court to the panchnama / notice prepared by the Indore Municipal Corporation itself on 27.11.2020 and annexed with the reply filed on behalf of respondents No.1 and 2 / Indore Municipal Corporation wherein it is clearly mentioned that in the basement area of the aforesaid apartment, certain construction work is going on by changing the nature of the parking area for which, the residents of Gokul Apartment have serious objection. Thus, it is submitted that the petition deserves to be allowed, as it is apparent from the documents filed by the respondents themselves that respondent No.3 has encroached upon the property of Gokul Apartment, which is a Common Area.

5. Shri Ravindra Singh Chhabra, learned counsel for respondent No.3 M/s. Jabalpur Motors Private Limited has opposed the prayer and preliminary objection has been raised regarding the maintainability of the petition.

6. It is submitted by Shri Chhabra that the petition involves disputed questions of facts hence is not maintainable under Article 226 of the Constitution of India; and the petitioner can assail the aforesaid action of respondent No.3 in the competent Court of Law inter alia under Section 307 (5) of Municipal Corporation Act, 1956

(herein after referred to as the Act).

7. In support of his contentions, Shri Chhabra has also relied upon a Full Bench decision of this Court in the case of Dilip Kaushal & others v. State of Madhya Pradesh & others reported as (2008) 3 MPLJ 591 as also a Division Bench judgment in the case of Radhakishan Sharma v. Pravin Kumar & two others reported as 1996 MP ACJ 55.

8. Counsel has further submitted that before taking up the construction work, respondent No.3 had ensured compliance of all the procedural requirement of Municipal Corporation and all permissions were also obtained, copies of such permissions have also been placed on record.

9. Counsel has also drawn the attention of this Court to the sale-deed through which a part of Gokul Apartment was purchased by respondent No.3 wherein, in Clause (4) it is mentioned that the “Open Space” in front of the building facing Main Road, ad- measuring 40' X 30' sq. ft. shall remain in exclusive land of answering respondent No.3. Similarly in Clause (5) and Clause (10) of the Deed, the other rights regarding the land have been assigned to the petitioner.

10. A rejoinder to the aforesaid reply has also been filed by the petitioner and it is submitted that since the petitioner does not fall within