(1.) HEARD learned Counsel for the petitioner. Order dictated in open Court.
(2.) CASE of the petitioner is that respondent No. 2 purchased the property vide registered sale deed dated 10-1-2000 from its previous owner. He made construction of a Chabutra on the colony road on the area where the property is situated. It is further stated that construction is without permission from the Municipal Corporation, Gwalior and the same is liable to be removed under Section 307 (5) of M. P. Municipal Corporation Act, 1956. Municipal Corporation did not submit its reply. However, respondent No. 2 refuted the allegations made in the application. It was contended by respondent No. 2 that he has not made any illegal construction. He also pleaded that there was no colony road as alleged by the petitioner. Learned Trial Court after recording evidence dismissed the application with a finding that it is clear from the evidence that construction of Chabutra has not been made on the property of the petitioner. It has been further observed that the disputed construction is alleged to have been made on a public way and Section 307 (5) of the aforesaid Act has no applicability.
(3.) THE order is absolutely illegal being highly misconceived. Section 307 (5) of the aforesaid Act is reproduced below:nothing in this section shall affect the right of the Corporation or any other person to apply to the District Court for an injunction for the removal or alteration of any building on the ground that it contravenes any provisions of this Act or the bye-laws made thereunder, but if the building is one in respect of which plans have been deposited and the plans have been passed by the Commissioner, or notice that they have been rejected has not been given within the prescribed period after the deposit thereof, and if the work has been executed in accordance with the plans, the District Court on granting an injunction shall have power to order the Corporation to pay to the owner of the work such compensation as the District Court thinks just, but before making any such order the District Court cause the Commissioner if not a party to be joined as a party to the proceeding.