A Municipal Corporation is under a statutory obligation to see that public streets are not encroached upon and to remove any encroachment that is made.

T.S. Doabia, J.

1. A suit bearing CO.S. No. 7A of 1994 is pending in the Court of Vllth Civil Judge Class 11, Gwalior. In this suit an application under Order 39, Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) was filed. This was to the effect that the plaintiff may not be dispossessed from a piece of land admeasuring 2 ft. x 23 ft. This piece of land is located at a place known as Jiyajee Chowk in Gwalior. It was alleged that the Municipal Corporation Gwalior is threatening to demolish the structure which is admittedly raised on a drain by the side of a public street. There is some dispute regarding the nature of the structure so raised. According to Shri Roman, learned counsel for the petitioner, this structure was of permanent, nature. This position is disputed by the' counsel for the Municipal Corporation and also by the respondents-defendants Nos. 1 to 5.

2. In the application under Order 39, Rule 1 of the Code interim injunction to the effect that the plaintiff shall not be dispossessed or the structure raised by him shall not be removed was granted by the trial Court. This injunction order was however vacated on 18th April 1994. An appeal was preferred against this order and the IVth Additional Judge to the Court of District Judge, Gwalior, who vide his order dated 18-4-1994 dismissed the appeal in limine without calling for the records. The present revision petition has now been filed in this Court challenging the orders of the courts below.

3. It may be seen that the position as it obtains today is that the structure raised by the plaintiff/petitioner no longer exists. This was demolished on 19th April, 1994, that is, immediately after the trial Court vacated the injunction order. The petitioner/plaintiff accordingly submits that he is entitled to restoration and for this he invokes the principles applicable to matters arising under Section 144 of the Code.

4. All the parties are duly represented.

5. The case of the petitioner as projected in this Court is that he has been carrying on his business on the land which admittedly belongs to the Municipal Corporation, Gwalior. Its dimension, as noticed above, is 2 ft. x 23 ft. His case is that he is paying 'Rent'and as such relationship between him and the Corporation is that of a landlord and tenant and he cannot be evicted in summary manner. The contention cannot be accepted. In the matter of disposal of Corporation property the provisions which are applicable are contained in Section 80 of the M.P. Municipal Corporation Act, 1956 (hereinafter referred as the Act). The mode of executing contracts is provided in Sections 73 and 74 of the Act. Section 80 of the Act contains a legislature mandate to not to permit encroachment on streets, Nazul lands, drains, public places, irrigation channels etc. On a question being put to the counsel for "the petitioner, Shri Roman fairly conceded that his client is not in possession of any written instrument in terms of Section 73 or 74 or Section 80 of the Act. Under these circumstances, even if he was paying some amount which has been shown as 'rent' by the Corporation, it cannot confer the status of a tenant on the petitioner plain-tiff. This question was considered by the Supreme Court in H.S. Rikhy v. New Delhi Municipality, AIR 1962 SC 554. The Apex Court observed as under (at p. 558 of AIR) :--

"6. The use of the word 'rent' is not conclusive of the matter. It may be used in the legal sense of recompense paid by the tenant to the landlord for the exclusive possession of premises occupied by him. It may also be used in the general sense, without importing the legal significance aforesaid, of compensation for use and occupation. 'Rent' in the legal sense can only be reserved on a demise of immoveable property. Reference may be made in this connection to paragraphs 1193 and 1194 of Halsbury's Laws of England (Third Edition, Vol. 23) at pages 536-537. Hence the use of term 'rent' cannot preclude the l