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2017 DIGILAW 938 (MP)

Anarbai Bhagore v. Indore Municipal Corporation

2017-08-28

ALOK VERMA, PRAKASH SHRIVASTAVA

body2017
ORDER 1. This appeal under section 2(1) of M.P. Uchha Nyayalay (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 has been filed by the writ petitioner challenging the order of the learned Single Judge dated 10.4.2017 whereby Writ Petition No.5123/2016 has been dismissed. 2. The husband of the appellant had filed Writ Petition No.5123/2016 challenging the notice of the Municipal Corporation dated 5.7.2016 whereby he was required to vacate the temporary premises beneath the water tank in the Ravindra Nagar Colony garden used for residence on the ground that water tank was in a dilapidated condition and not in use and had become dangerous, therefore, it was to be demolished. The petitioner was given an opportunity in terms of section 305 of the M.P. Municipal Corporation Act, 1956 (For short 'Act of 1956') to produce the documents about his title, failing which the action was proposed in terms of the Act of 1956 and M.P. Bhumi Vikas Niyam, 2021. In response to the notice, the writ petitioner had sent the legal notice dated 8.7.2016/reply to the respondent and thereafter the notice dated 22.7.2016 was issued requiring the petitioner to vacate for demolishing the dangerous structure by the Removal Gang. 3. The petitioner's case as set up in the writ petition was that he was employed by the respondent No.3-society as Chokidar and below the water tank one room with tin shed was constructed by the society and provided to the petitioner on rent and the impugned action has been taken by the Muncipal Corporation at the instance of the society to evict the petitioner. 4. Before the learned Single Judge such a plea was denied by not only the Municipal Corporation but the respondent No.3-society also and it was pleaded that water tank was in a dilapidated condition and it is dangerous to stay there, therefore, the tank is required to be demolished. Further plea was raised that the appellant was residing in an illegally constructed one room accommodation beneath the water tank by encroaching upon the Government land. Learned Single Judge considering the respective plea of the parties and taking note of the provisions of Municipal Corporation Act and finding no merit in the case of the petitioner has dismissed the writ petition. 5. Learned Single Judge considering the respective plea of the parties and taking note of the provisions of Municipal Corporation Act and finding no merit in the case of the petitioner has dismissed the writ petition. 5. Learned counsel for appellant submits that there is no proof that the tank is in a dilapidated condition and the appellant is residing there but nothing has happened till now. He further submits that there is discrepancy in the notices dated 5.7.2016 and 22.7.2016 and there is another fair price shop running below the same tank which has not been vacated. 6. As against this, learned counsel for respondents have supported the order of learned Single Judge. 7. Having heard learned counsel for the parties and on perusal of the record, it is noticed that the arguments which the appellant is advancing, have duly been considered by the learned Single Judge. The categorical stand of the respondents is that water tank in question is not in use and it is in dilapidated condition which is required to be demolished. No contrary material has been produced by the petitioner to show the condition of the water tank. Learned Single Judge has rightly noted that writ Court does not sit as a Court of appeal to examine the correctness of the decision of the Municipal Corporation about the water tank being in dilapidated condition. The learned Single Judge having regard to section 82 of the Municipal Corporation Act has noted that water tank is vested in the Municipal Corporation and Municipal Corporation has rightly issued the notice. Nothing has been pointed out by the counsel for the appellant that appellant is in lawful possession of the alleged temporary construction below the water tank. Even if the stand of the appellant is taken to be correct that the place was given to her husband for residence on his appointment as a peon by the respondent No.3-society, then also since he has retired long back, therefore, his possession cannot be said to be authorised. So far as the other occupants are concerned, it has been found by the learned Single Judge that they have already vacated long back and for the fair price shop the notice for vacating the premises has already been issued. Learned counsel for respondent-Municipal Corporation has stated that the said fair price shop has no objection in vacating the premises. So far as the other occupants are concerned, it has been found by the learned Single Judge that they have already vacated long back and for the fair price shop the notice for vacating the premises has already been issued. Learned counsel for respondent-Municipal Corporation has stated that the said fair price shop has no objection in vacating the premises. No contrary material before this Court has been pointed out by learned counsel for the appellant. The alleged discrepancy in respect of the unauthorised construction/dangerous construction in the notices dated 5.7.2016 and 22.7.2016 is minor in nature which does not furnish any ground to interfere. 8. Having regard to the aforesaid, we are of the opinion that it would not be safe to permit the petitioner to continue to reside in the temporary shelter in unauthorised manner below the dilapidated water tank which is required to be demolished for public safety. Hence, we find no reason to interfere in the order of learned Single Judge. 9. The appeal is accordingly dismissed.