Heard learned counsel for the petitioner. Order dictated in open Court. 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 110 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.

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 byelaws 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."

A bare perusal of this provision shows that it has an application to every construction which is made without due sanction from the concerned Municipal Corporation. Word "building" is defined in section 5 (7) of the said Act which is as under:

"building" includes a house, outhouse, shed, hut and other enclosure or structure whether of masonry, bricks, wood, mud, metal or any other material whatever, whether used as a human dwelling or otherwise, and also includes verandahs, fixed platforms, plinths, doorsteps, walls including compound walls, and fencing and the like but does not include a tent.

Thus, alleged construction of Chabutra amounts to construction of a building under the definition as contained in the Act. The location of the building so long as it is situated within the limits of Municipal Corporation does not divest the Court from exercising its powers under section 307 (5) of the said Act. The learned trial Judge relying upon the decision of this Court in the case of Janki Pandey and another v. State of M.P and others reported as 1998 (2) JLJ 134 = 1998 (1) MPLJ 103 has held that section 307 (5) of the Municipal Corporation Act does not apply to unauthorised construction made on public land.

I studied the said decision which is totally distinguishable on facts. In case of Janki Pandey (supra), the petitions were filed against the drive to remove encroachment from the city specially in the area of contiguous to the National Highway No.7. The decision was rendered in a bunch of Writ Petitions. This Court has held:

"The petitioners are seeking a mandamus against the respondents to restrain them from demolishing the building or any part of the building as also compensation for the damage already caused by the respondents. In a Writ Petition, where the facts are disputed with regard t