IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE MANINDER S. BHATTI st ON THE 1 OF MAY, 2023 WRIT PETITION No. 9061 of 2023 BETWEEN:-

RUKHSANA JAMEEL W/O SHRI JAMEEL MOHD. KHAN, AGED ABOUT 63 YEARS, OCCUPATION: HOUSE WIFE R/O 5 DR. ADIL HOUSE AZAD MARKET JUMERATI HUZUR BHOPAL DISTT- BHOPAL (M.P.) (MADHYA PRADESH)

.....PETITIONER (BY SHRI ANIL LALA - ADVOCATE )

AND

1. COMMISSIONER MUNICIPAL CORPORATION BHOPAL DISTT- BHOPAL (M.P.) (MADHYA PRADESH)

2. CHIEF CITY PLANNNER, MUNICIPAL CORPORATION, BHOPAL DISTRICT BHOPAL (MADHYA PRADESH)

3. SUB ENGINEER, MUNICIPAL CORPORATION, BHOPAL BUILDING PERMISSION DIVISION, MUNICIPAL CORPORATION, BHOPAL (MADHYA PRADESH)

.....RESPONDENTS (NONE)

This petition coming on for admission this day, the court passed the following:

ORDER

This is a petition assailing the order dated 12-04-2023 (Annexure-P/10)

and also notices dated 26-09-2022 (Annexure-P/7) and 24-03-2023 referred in the order dated 12-04-2023.

Signature Not Verified Signed by: AJAY KUMAR

2 . Learned counsel for the petitioner contends that the petitioner is the owner of the House No.63, Ward No.8, Zone-II, near Iqbal Maidan, Moti Maszid Bhopal, which was purchased by the father of the petitioner way-back in 1923. Learned counsel contends that the petitioner was granted permission for construction of building over the plot area 3000 sq.ft. and further permission was granted for construction over the area 2140 sq.ft..

3. Thus, the learned counsel for petitioner contends that though the construction was made upon obtaining due permission, yet the petitioner was issued notices alleging illegal construction and later on, another notice under Section 303(1) of the M.P. Municipal Corporation Act, 1956 [hereinafter referred to as "Act of 1956"] has been issued to the petitioner to vacate the construction area.

4. Learned counsel for the petitioner strenuously urged that there is violation of the mandatory provision of Section 307(4) of the Act of 1956. It is contended by the learned counsel for the petitioner that the petitioner is in occupation of the building and, therefore, the so-called application under Section 303 of the Act of 1956 is also misconceived, therefore, has prayed for quashing of the impugned order and the notices.

5. Having heard the submissions advanced on behalf of the petitioner, a perusal of the records reflects that the petitioner herein, was issued the notice on 06-09-2022 contained in Annexure-P/5 under Section 302(1) of the Act of 1956. Thereafter, other notices were issued to the petitioner on 26- 09-2022 (Annexure-P/7) and 24-03-2023 under Section 307(2) of the Act of

1956.

6. The said notice dated 24-03-2023 has not been brought on record by the petitioner. The proceedings undertaken under Section 307 of the Act of Signature Not Verified Signed by: AJAY KUMAR

1956 can be assailed in terms of Section 307(5) of the Act and the petitioner has the remedy in terms of Section 307(5) of the Act of 1956, to approach the District Court. Sub-section (5) of Section 307 being relevant is reproduced hereunder :

"(5) Nothing in this section shall affect then 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 provision of this Act or the byelaws made thereunder, but if the building is one in respect of which plans have been deposited and the plan s 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 and injunction shall have power to order the Commissioner 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 proceedings."

7. A bare perusal of the aforesaid pr