The appointment of a Local Commissioner for measurement and preparation of plans under Section 307(5) of the Municipal Corporation Act does not amount to collecting evidence and can be necessary to assist in resolving disputes of unauthorized construction.

JUDGMENT :

Gurpal Singh Ahluwalia, J.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. Heard the learned counsel for the parties.

9. This Court in the case of Dharam Singh (supra) has held as under:

"12. In the present case, the learned Appellate 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."

10. 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.

11. Thus if anybody has raised an unauthorized construction