IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE GAJENDRA SINGH ON THE 12^th OF NOVEMBER, 2024 SECOND APPEAL No. 2115 of 2022 SHEIKH HAMIDA Versus UJJAIN MUNICIPAL CORPORATION UJJAIN AND OTHERS Appearance:

Jitendra Bharat Mehta - advocate for the petitioner.

ORDER This second appeal under section 100 of the CPC is preferred being aggrieved by the judgment and decree dated 24.06.2022 in regular civil appeal no.13A/2021 by 8th District Judge, Ujjain arising out of the judgment and decree dated 30.11.2021 in regular civil suit no.154A/21 by 8th Civil Judge, Senior Division, Ujjain wherein the appellant/plaintiff was unsuccessful regarding the relief of declaration and permanent injunction regarding plot forming part of survey no.1025, Gandhi Nagar, Idgah Road, Ujjain.

2. Facts in brief are that appellant/plaintiff filed a civil suit on

21.07.2016 on the ground that she purchased a plot from Irfan s/o Iqbal Khan, R/o 13 Nazarlai Marg, Ujjain through registered sale deed dated 21.04.2016. The total area of the plot is 75-90 sq. meter and the boundaries of the plot is mentioned in para-1 of the plaint. Since Signature Not Verified Signed by: HARIKUMAR

21.04.2016 the appellant/plaintiff was in continuous possession of the plot and applied for sanction of map to construct house but the same was denied on the ground that Gandhi Nagar colony Ujjain is an unauthorized colony whereas 200 houses have been built in Gandhi Nagar and people are residing there with their families. The defendants assured the plaintiff that on regularization of the colony the map will be sanctioned but with a mala fide intention defendants refused to sanction plaintiff's map. He served a notice dated 05.05.2016 through his counsel under section 401 of the M.P Municipal Corporation Act. The duration of 30 days from serving the notice from 05.05.2016 was expired but defendants did not dispose of the application her application and plaintiff got deemed permission and she started construction on the plot and defendants issued a notice under section 307 of the M.P Municipal Corporation Act. The notice was not issued by the authorized person. She has completed construction of the ground floor but a portion of the construction was demolished on 01.08.2016 and 03.08.2016. With these assertions a suit was filed. Respondents/defendants filed the statement submitting that in an unauthorized colony no map for construction of house can be sanctioned and the plaintiff was served with a notice to remove the illegal construction. There is no provision for deemed permission. Her unauthorized construction can not be approved.

3. Trial court framed total six issues and recorded the evidence of plaintiff Shaikh Hamida as PW/1, Shaikh Jamir as PW/2, Shaikh Signature Not Verified Signed by: HARIKUMAR Yunus as PW/3, Sanjay Nidhan as PW/4 and admitted the documents Ex.P/1 to P/86. Trial Court also examined Sub Divisional Officer, Public Works Department, Ujjain Shri Suraj Jhania as court witness no.1.

4. Defendants examined Shri Anil Jain, Executive Engineer, Municipal Corporation, Ujjain as DW/1. Appreciating the evidence, trial court did not found proved the case put forth by the plaintiff and dismissed the suit. The first appellate court also affirmed the findings of the trial court and dismissed the appeal.

5. This second appeal has been preferred proposing the following substantial questions of law:

(A) Whether under the facts and circumstances of the case the decree of lower court could be sustained as it erred in law in holding that building officer is authorized to issue notice under section 307 M.P Municipal Corporation Act, 1956 by ignoring the provisions of section 7 M.P Municipal Corporation Act which authorizes Commissioner of M.P Municipal Corporation to issue such notice?

(B) Whether under the facts and circumstances of the case the decree of lower court could be sustained as it erred in law in holding that notices Ex.P/5 and P/6 were validly issued by not