DILIP KAUSHAL Vs. STATE OF M P

JUDGEMENT

(1.) THIS is a reference made to this Full Bench by order dated 21-8-2007 passed by a Division Bench of this Court in W. P. No. 5807 of 2006.

(2.) THE two petitioners, a Corporator of the Indore Municipal Corporation and a Mechanical Engineer, have filed this Public Interest Litigation under Art. 226 of the Constitution questioning the lay out sanctioned by the Indore Municipal Corporation for construction of a building of the respondent No. 4. On 21-3-2006, the Division Bench issued notices in the writ petition and directed that the interim prayer shall be considered after service of notices on the respondents. Thereafter, the respondent No. 4 appeared and raised a preliminary objection that an alternative remedy was available to the petitioner under sub-section (5) of Section 307 of the M. P. Municipal Corporation Act, 1956 (for short 'the Act of 1956') to apply to the District Court for an injunction for removal or alteration of the building. The counsel for the petitioners, on the other hand, brought to the notice of the Division Bench that in Radhakishan Sharma v. Pravin Kumar and two others, 1996 MPACj 55, on a reference made by learned single Judge of this Court, a Division Bench has held that under sub-section (5) of Section 307 of the Act of 1956, the expression 'any other person' who has been conferred with the right to apply to the District Court for injunction for removal or alteration of any building will mean Such person who might feel directly affected by the building in regard to his individual right to property and, therefore, the two petitioners in Writ Petition No. 5807 of 2006 may not have an alternative statutory remedy under sub-section (5) of Section 30 of the Act of 1956.

(3.) WE have heard Mr. Vivek Dalai, learned counsel for the petitioners, Mr. Ashok Kutumble, learned Additional Advocate General for the State, Mr. Anand Agrawal, learned counsel for the Indore Municipal Corporation and Mr. A. K. Chitle, learned senior counsel for the respondent No. 4 and in our considered opinion, the view taken by the earlier Division Bench in Radhakishan Sharma (supra) that under sub-section (5) of Section 307 of the Act of 1956 besides the Corporation, only such person who may feel directly affected by the building in regard to his individual right to property can only file application before the District Court for injunction for removal or alteration of the building, is not correct for the reasons which will now follow.