Smt. Savitri Agrawal vs Manish Gupta
2021 Latest Caselaw 392 MP

Citation : 2021 Latest Caselaw 392 MP
Judgement Date : 2 March, 2021

Madhya Pradesh High Court

Smt. Savitri Agrawal vs Manish Gupta on 2 March, 2021

Author: Gurpal Singh Ahluwalia

                               1
         THE HIGH COURT OF MADHYA PRADESH
                       MP No.1603/2020
         Smt. Savitri Agrawal vs. Manish Gupta & Ors.

Gwalior, Dated : 02.03.2021

      Shri K.N. Gupta, Senior Advocate with Shri Rinku Shakya,

Counsel for the petitioner.

      Shri Amit Lahoti, Counsel for the respondent No.1.

Shri Ajit Kumar Sudele, Counsel for the respondent No.6.

None for other respondents.

This miscellaneous petition under Article 227 of the

Constitution of India has been filed against the order dated 4.2.2020

passed by 7th Additional District Judge, Gwalior in MJC No.9/2018

by which the application filed by the respondent No.1 under Order 26

Rule 9 of CPC has been allowed and the Local Commissioner has

been appointed to submit its report with regard to the measurement of

the building, to prepare elevation plan and also map as well as for

taking the photographs.

The necessary facts for disposal of the present petition in short

are that the respondent No.1 has filed an application under Section

307(5) of Municipal Corporation Act for removal of unauthorized

construction.

The respondent No.1 filed an application for appointment of

Commissioner for the measurement of the building as well as for

ascertaining the present situation of the building in question, so that

the Trial Court may adjudicate the matter in accordance with law.

THE HIGH COURT OF MADHYA PRADESH MP No.1603/2020 Smt. Savitri Agrawal vs. Manish Gupta & Ors.

The said application was vehemently opposed by the counsel

for the petitioner. However, by the impugned order dated 4.2.2020,

the Trial Court has allowed the application and appointed the Local

Commissioner for measurement of the building as well as for

preparation of map, elevation plan and also to take the photographs.

Challenging the order passed by the Court below, it is

submitted by the counsel for the petitioner that by the impugned

order the Trial Court has directed the Local Commissioner to collect

evidence which is not permissible.

The counsel for the petitioner has relied upon the judgment

passed by this Court in the case of Dharam Singh and another vs.

Deenanath and others reported in 2019 (4) MPLJ 32.

Per contra, it is submitted by the counsel for the respondent

No.1 that the dispute before the Court below is as to whether the

petitioner has raised any unauthorized construction or not. The same

can be effectively adjudicated by measuring the building in question

and thus it cannot be said that the Trial Court has directed the Local

Commissioner to collect the evidence.

Heard the learned counsel for the parties.

This Court in the case of Dharam Singh (supra) has held as

under:

"12. In the present case, the learned Appellate

THE HIGH COURT OF MADHYA PRADESH MP No.1603/2020 Smt. Savitri Agrawal vs. Manish Gupta & Ors.

Court has allowed the application for commission just to ascertain the area after partition. The boundaries and in which the area as in host possession. The aforesaid aspect is not permissible because the same amounts to collection of evidence. The learned Appellate Court is duty bound to decide the issue on the basis of evidence available on record. Thus, the Court has committed a grave error in allowing the application."

The moot question for consideration is as to whether the Trial

Court has directed the Local Commissioner to collect the evidence or

not? Section 307 (5) M.P. Municipal Corporation Act reads as under:-

307. Power to require, removal or alteration of work not in conformity with bye-laws or any scheme or any other requirement.- (1) xxxx (2) xxxx (3) xxxx (4) xxxx (5) Nothing in this section shall affect the right of the Corporation or any other person to apply to the District Court for an injunction or 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.

Thus if anybody has raised an unauthorized construction, then

THE HIGH COURT OF MADHYA PRADESH MP No.1603/2020 Smt. Savitri Agrawal vs. Manish Gupta & Ors.

the same can be directed to be removed by District Court in exercise

of powers under Section 307(5) of M.P. Municipal Corporation Act.

In the present case there is no dispute with regard to the title. The

respondent No.1 is not claiming the ownership of the property in

question. On the contrary, his contention is that the petitioner has

raised some unauthorized construction which is liable to be removed

by the Municipal Corporation. Since the Municipal Corporation has

failed in discharging its duty, therefore, the application under Section

307(5) of Municipal Corporation Act has been filed. The basic

controversy before the Court below is as to whether the petitioner has

raised any unauthorized construction or not. It is well established

principle of law that when there is a dispute of boundaries without