ORDER 1. Both these petitions have been filed being aggrieved by the notice issued by the Municipal Corporation, Indore for removing the encroachment/illegal construction over the Government land. The notices in both the cases were issued under section 307 of the Municipal Corporation Act, 1956 and rule 7 of the Madhya Pradesh Bhumi Vikas Niyam, 2012. Since the notices are challenged in both these petitions on similar grounds, therefore, both the cases are disposed of by a common order. 2. Petitioners are claiming ownership of the land by virtue of registered sale deed. According to the petitioner they are in possession and constructed boundary wall and temporary shed and they are paying property tax and other taxes to the Municipal Corporation. They are having electricity connection and telephone connections. Undisputedly both the petitioners are running the business of selling of marbles and tiles over these plots. Respondent/Building Officer, Municipal Corporation, Indore issued notice dated 13.02.2015 alleging that they have constructed boundary wall over the Government land bearing Survey No.30 followed by another notice of the same date and they are running a marble shop by putting a tin shed. They have been directed to appear before the Building Officer along with documents to explain why the illegal construction be not removed. After notice respondent filed reply raising preliminary objection that the petition is pre-mature as only show cause notice was issued and the petitioners are required to appear before the Building Officer to demonstrate their rights. It is stated that respondents are not trying to demolish the construction without passing order on a show cause notice and that too after giving opportunity of hearing to the petitioners. The construction of shed and boundary wall comes under the definition of the building as provided under section 5 of the Municipal Corporation Act which has admittedly been constructed by the petitioners. Since the construction is without permission and the same is prohibited under section 293 of the Municipal Corporation Act, the Municipal Corporation is free to demolish the same. 3. That the petitioners filed rejoinder and submitted that under rule 12(k) of the Bhumi Vikas Niyam, 2012 for construction of a temporary shed no permission is required. That under the provisions of the Municipal Corporation Act the notice is required to be issued by the Commissioner only and the Building Officer has no authority to issue the impugned notice. 3. That the petitioners filed rejoinder and submitted that under rule 12(k) of the Bhumi Vikas Niyam, 2012 for construction of a temporary shed no permission is required. That under the provisions of the Municipal Corporation Act the notice is required to be issued by the Commissioner only and the Building Officer has no authority to issue the impugned notice. It is denied that impugned notices are show cause notices because till today no final order has been passed by the Municipal Corporation. 4. Shri Jain, learned counsel for the petitioner argued that section 13 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short 'the Adhiniyam of 1973') provides for constitution of planning area by way of notification by the State Government and once the planning area is notified as per sub-section (3), the Municipal Corporation cease to exercise the powers, perform the functions and discharge the duties which the State Government or the Director is competent to exercise, perform and discharge under the Act, therefore, the Municipal Corporation has no right to issue the show cause notice to the petitioner. He further submits that there is a temporary shed over the plot owned by the petitioners and under rule 12(k) of the Bhumi Vikas Niyam, 2012 permission is not required for construction of sheds on any land. He further submits that the Building Officer is not competent under the provisions of the Municipal Corporation Act to issue notice and only Commissioner is competent to issue the notice and the only action which can be taken against the petitioner is under section 36 of the Adhiniyam of 1973 for which one month's notice is required to be issued by the Director, therefore, the impugned notices are liable to be quashed having been issued without authority. 5. Per contra, Shri Rishi Tiwari, learned counsel for the respondents submits that petitioners have raised construction and running marble shops without permissions. The temporary sheds as well as boundary wall comes under the category of building as defined under section 5(7) of the Municipal Corporation Act and according to which include shed, hut, walls including compound walls, fencing etc. 5. Per contra, Shri Rishi Tiwari, learned counsel for the respondents submits that petitioners have raised construction and running marble shops without permissions. The temporary sheds as well as boundary wall comes under the category of building as defined under section 5(7) of the Municipal Corporation Act and according to which include shed, hut, walls including compound walls, fencing etc. and under section 294 every person who intend to erect or re-erect the building shall submit an application to the Commissioner for its approval and if any construction is there without permission the Corporation has power under section 307 of the Municipal Corporation Act to remove such illegal construction. Admittedly, petitioner has not obtained any permission for the said construction and filed this petition, therefore, they have no right to seek the relief and prayed for dismissal of the petitions with cost. ORDER 6. So far as the legal ground raised by the petitioners that under section 13(3) of the Adhiniyam of 1973 the Municipal Corporation cease to exercise the power has been answered by the Division Bench of this Court in Writ Petition No.1625/1997 (Omprakash s/o Ramchandra v. The State of M.P and another dated 10.10.2006). Paras-5, 11 and 12 of the said order is reproduced below :- 5. for the purposes of this decision, we will take the facts from the Writ Petition No.1625/1997 (Omprakash s/o Ramchandra v. The State of M.P and another). By the said petition, notice under section 302 dated 30.7.1997 No.184; notice under section 307 dated 1.8.1997 No.186; notice under section 372 dated 14.8.1997 No.377; and notice under section 372 dated 8.8.1997 No.364-were challenged on the footing that the power of the Municipal Corporation stands excluded by sub-section (3) of section 13 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam. 11. We have already referred to above that the planning area is larger than the area of the local body within the planning area. Under these circumstances, the Corporations and Municipalities cannot be divested of their powers of development within the area of their jurisdiction. This power emanates from the Constitution with Schedule under Article 243W. Specific power has been granted for regulation of land use and construction of building, roads and bridges, slum improvement and up gradation. Under these circumstances, the Corporations and Municipalities cannot be divested of their powers of development within the area of their jurisdiction. This power emanates from the Constitution with Schedule under Article 243W. Specific power has been granted for regulation of land use and construction of building, roads and bridges, slum improvement and up gradation. If this power is assumed to have been transferred to the Director, Town and Country Planning, the same will come in direct conflict with the provisions of the Constitution and apparently the intention from the statements of reasons, was not to bring the power of the local bodies in conflict with the power of Director, Town and Country Planning Department. Under these circumstances, without there being major changes in sub-section (3), we are of the opinion that the said sub-section does not prohibit the exercise of power available to Madhya Pradesh Municipal Corporation Act, Madhya Pradesh Municipalities Act and Madhya Pradesh Panchayat Raj Adhiniyam, within their area. Outside the area, the power granted to the Director remains unaffected. We may also specify that the other powers which prevail over the functions of these bodies, shall in no way be abridged or affected. 12. In view of the above discussion, our conclusion with regard to the applicability of sub-section (3) of section 13 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam is that the power of the local bodies will co-exist with that of the Director in the area of the local body while the Director will have exclusive power within the planning area, outside the area of local bodies. 7. In view of the above judgment of the Division Bench the power of local bodies will co-exist with the Director, Town and Country Planning in the area of local body, hence the objection taken by Shri Jain is liable to be rejected. 8. That so far as the authority of Building Officer to issue notice on behalf of the Municipal Corporation as well as Director, Town and Country Planning is concerned, this issue has also been answered in detail by this Court in the case of Hemant Yadav v. State of Madhya Pradesh in Writ Petition No. 4202/2015 dated 11.1.2016. 8. That so far as the authority of Building Officer to issue notice on behalf of the Municipal Corporation as well as Director, Town and Country Planning is concerned, this issue has also been answered in detail by this Court in the case of Hemant Yadav v. State of Madhya Pradesh in Writ Petition No. 4202/2015 dated 11.1.2016. The writ Court while considering the scope of sections 293 and 294 of the Municipal Corporation Act has held as under : This Court has carefully gone through the notices issued by the respondents and in light of the fact that there is no sanction of any kind, the petitioner is not owner of the property in question and, therefore, the respondent-municipal corporation was justified in issuing the notices and in taking consequential action in the matter. It has been stated in the writ petition that the matter was thoroughly probed on the instructions of the Chief Minister. The so called inquiry relates to construction over Nala and the so called inquiry is not relating to unauthorized construction raised by the petitioner over the plot in question. Therefore, this Court is of the considered opinion that in light of the statutory provisions of law as contained under the Madhya Pradesh Municipal Corporation Act, 1956 read with rule 7 sub-rule (3) of the M.P. Bhumi Vikas Niyam, 2012, the building officer does have the power to remove the illegal construction and the same is being done by the building officer. Resultantly, no case for interference with the petition is made out. The petition is accordingly dismissed with the case of Rs.25,000/- and the building officer is directed to remove the construction forthwith and to recover the cost. The cost recovered be deposited with the M.P State Legal Services Authority. 9. So far as the ground taken by Shri Jain that under rule 12(k) no permission is required for construction of sun shade on his own land is concerned, respondent has filed the photographs from which it is clearly established that respondent has constructed wall and put tin shed and running the business of marble which is different from sun shade, therefore, they cannot get the benefit of rule 12 of the Rules of 2012. The petitioners are governed under the provisions of the Municipal Corporation Act. The petitioners are governed under the provisions of the Municipal Corporation Act. The construction comes under the definition of 'building' as defined under section 5(7) of the Municipal Corporation Act which reads as under : 5(7) “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 (or a temporary shed erected on ceremonial or festive occasions). 10. Under section 294 permission is required to be taken from the Municipal Corporation to erect or re-erect a building which reads as under : 294. Notice of buildings-(1)Every person who intends to erect or re-erect a building shall submit to the Commissioner - (a) an application in writing for approval of the site together with a site plan of the land; and in the case of land which is the property of the Government or of the Corporation, a certified copy of the documents authorizing him to occupy the land, and if so required by the Commissioner the original document or documents; and (b) an application in writing for permission to build together with a ground plan, elevation and section of the building and a specification of the work to be done. (2) Every plan of any building to be constructed wholly or partly of masonry, submitted under sub-section (1) shall, in token of its having been prepared by him or under his supervision, bear the signature of a licensed surveyor. (3) Every document submitted under sub-section (1) shall be prepared in such manner and shall contain such particulars as may be prescribed (by byelaws). (4) Nothing herein contained shall require a person to comply with the provisions of clause (b) of sub-section (1) until such time as the site has been approved by the Commissioner or such person as he may appoint. 11. If any construction is without permission then the Municipal Corporation has power to issue a notice under section 307 which is reads as under : 307. 11. If any construction is without permission then the Municipal Corporation has power to issue a notice under section 307 which is reads as under : 307. Power to require, removal or alteration of work not in conformity with byelaws or any scheme or any other requirement:- (1) If any building is erected or re-erected in contravention of any town planning scheme mentioned under section 291 or of any building byelaws made under section 427, the Commissioner without prejudice to his right to take proceedings for a fine in respect of the contravention, may by notice require the owner either to pull down or remove the work or , if he so elects, to effect such alterations therein as may be necessary to make it comply with the said scheme or byelaws. (2) If a building is erected or re-erected - (a) without any sanction as required by section 293(1) or (b) when sanction has been refused, or (c) in contravention of the terms of any sanction granted, or (d) when sanction has lapsed under section 300, the Commissioner, unless he deems it necessary to take proceedings in respect of such building or work under section 294, shall - (a) by written notice, require the person who is erecting such building or executing such work or has erected such building orexecuted such work on or before such day as shall be specified in such notice, by a statement in writing subscribed by him or by an agent duly authorised by him in that behalf and addressed to the Chief Executive Officer, to show sufficient cause why such building or work shall not be removed, altered or pulled down, or; (b) shall require the said person on such day and at such time and place as shall be specified in such notice to attend personally or by an agent duly authorized by him in that behalf, and show sufficient cause why such building or work shall not be removed, altered or pulled down. (3) If such person shall fail to show sufficient cause, to the satisfaction of the Commissioner, why such building or work shall not be removed, altered or pulled down, the Commissioner may remove, alter or pull down the building or work and the expenses thereof shall be paid by the person. (3) If such person shall fail to show sufficient cause, to the satisfaction of the Commissioner, why such building or work shall not be removed, altered or pulled down, the Commissioner may remove, alter or pull down the building or work and the expenses thereof shall be paid by the person. (4) If the plans are approved by the Commissioner and the approval is communicated to the person intending to build the house or if the plans are rejected by the Commissioner but no notice of their rejection is given to person intending to build the house within the prescribed period, it shall not be open to the Commissioner to give a notice under sub-sections (1) and (4) on the ground that the building is erected or re-erected in contravention of any scheme or byelaws or any other requirements under the chapter. (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. 12. Similar power is also there under rule 7 of the Rules of 2012 i.e. powers and duties of the building officer as it is not disputed that the building officer appointed under the Municipal Corporation Act exercises the power under rule 7 of the Rules of 2012. Under rule 7 the building officer has been authorized to enforce the provisions of the Rules of 2012 also. Under rule 7 the building officer has been authorized to enforce the provisions of the Rules of 2012 also. The present impugned notices have been issued under section 307 as well as under rule 7 and in view of the law laid down in the case of Hemant Yadav (supra), the building officer has power to issue the notices. 13. In view of the aforesaid discussion, I do not find any illegality in the impugned notices. Both writ petitions being devoid of merit are hereby dismissed with cost of Rs.25,000/- each.