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Smt. Kishna Devi Vs. Vishnu Mitra and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 341 of 1979
Judge
Reported inAIR1982Raj281
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rule 2
AppellantSmt. Kishna Devi
RespondentVishnu Mitra and anr.
Appellant Advocate B.L. Panwar, Adv.
Respondent Advocate Guru Prakash, Adv.
DispositionPetition allowed
Excerpt:
.....of sanitary lanes by sale of them to any one is serious encroachment of civil rights and in the interest of the plaintiff as well as the planed development of citizen's towns, such encroachment and invasion of civic rights of citizens should not be permitted by the law courts and that way alone rule of law can be maintained. 8. shri panwar also pointed out that the lower court has committed serious error of jurisdiction, because it has failed to consider that the sale made by the urban improvement trust was a nullity as it was of a public street, as defiled in section 3 (26) and section 3 (32) of the municipal act and a part of street cannot be sold at all. 16. as i am convinced that the first appellate court has failed to consider material documents consisting of urban improvement..........panwar, the learned counsel for the petitioner-plaintiff has argued that in the site plan of the urban improvement trust passed by the chief town planner, this lane has been opened as part of the public street and sanitary lane and, therefore, no one has got right to make construction, permanent construction, sale or alienation of this lane in question. my attention was invited to the written statement of non-applicant no. 1 in which the above fact that it has been shown as public street and sanitary lane in the sub-division plan of the urban improvement trust, hag been admitted.5. the sanitary lanes are kept in the scheme of the town plans for creating hygienic conditions by permitting the house owners on both the sides to discharge the water, open the windows, take sewage lines of.....
Judgment:
ORDER

Guman Mal Lodha, J.

1. In this petition, Shrimati Kishna Devi had challenged the judgment of Additional District Judge No. 2, Jodhpur of 23rd November, 1979 setting aside the order passed by Addl. Mun. & Judl. Magistrate No. 2, Jodhpur dt. 7-8-1978.

2. The suit for permanent injunction is pending in which the petitioner is plaintiff. In this suit, permanent injunction has been claimed against the defendant. There exists a lane in between the house of the parties and according to plaintiff, this is cemented sanitary lane. In this sanitary lane, sewage line of the flush latrine has been permitted and, the windows and doors of the plaintiff's house are opened in this lane.

3. The learned trial Magistrate granted temporary injunction and restrained the defendant from making construction over this sanitary lane in dispute, but in appeal that order has been reversed and application for temporary injunction has been dismissed,

4. Shri B. L. Panwar, the learned counsel for the petitioner-plaintiff has argued that in the site plan of the Urban Improvement Trust passed by the Chief Town Planner, this lane has been opened as part of the public street and sanitary lane and, therefore, no one has got right to make construction, permanent construction, sale or alienation of this lane in question. My attention was invited to the written statement of non-applicant No. 1 in which the above fact that it has been shown as public street and sanitary lane in the sub-division plan of the Urban Improvement Trust, hag been admitted.

5. The sanitary lanes are kept in the scheme of the town plans for creating hygienic conditions by permitting the house owners on both the sides to discharge the water, open the windows, take sewage lines of flush latrine or otherwise construct lane; argued Shri Panwar. According to him, encroachment of sanitary lanes by sale of them to any one is serious encroachment of civil rights and in the interest of the plaintiff as well as the planed development of citizen's towns, such encroachment and invasion of civic rights of citizens should not be permitted by the law courts and that way alone rule of law can be maintained.

6. Shri Panwar submitted that the growing tendency to encroach upon the public streets or sanitary lanes and to sell or purchase them either profitably or even by negligence and, sometimes, corrupt motives of the local self Government institutions or, development or improvement authorities should be seriously dealt with by the courts, and non-interference on flimsy pretext, as has been done in this case, be not permitted on such unlawful activities not only against the individuals but against the public interest also.

7. Shri Panwar pointed out that it is a known fact that in this area free air is always available from the western side and on all these considerations the windows have been kept towards the western side and so also the door. If the defendant is allowed to make constructions it would result in making the house of the plaintiff unfit for residential purpose.

8. Shri Panwar also pointed out that the lower court has committed serious error of jurisdiction, because it has failed to consider that the sale made by the Urban Improvement Trust was a nullity as it was of a public street, as defiled in Section 3 (26) and Section 3 (32) of the Municipal Act and a part of street cannot be sold at all. There was no scheme under the Urban Improvement Trust Act and this lane is never vested in the Urban Improvement Trust, argued Shri Panwar.

9. It was also pointed out that the lower court has made a confusion about the so-called existence of 10 ft, high wall of Ramola Mohalla in between the house of the applicant and the sanitary lane in question. In fact, no such wall exists and on account of such important misconstruction and misreading of the record, there has been error of jurisdiction; argued Shri Panwar.

10. Shri Guru Prakash, the learned counsel for the non-petitioner, in reply submitted that the contentions of Shri Panwar are not tenable, both on facts and in law.

11. On a careful consideration of the entire matter, I am of the firmed view that prima facie, it is a case of invasion on civic rights in general and right to use sanitary lane of the plaintiff-petitioner, in particular, though while making this observation, I am conscious that I would not finally decide the rights of the parties as I am dealing with only temporary injunction and the evidence is yet to be recorded. It is true that the Urban Improvement Trust has sold this lane in dispute to the defendant but by that alone, rights of the plaintiff-petitioner cannot be deemed to have been extinguished. Similarly, grant of permission by the Urban Improvement Trust is no bar for a civil court to grant a temporary injunction, if any legal right of the plaintiff is infringed. According to the written statement of the Urban Improvement Trust, 5 ft. wide vacant space is to be kept by the defendant in this lane in question while making constructions, but the defendant interprets it to mean that it is for the use of defendant only.

12. During the arguments. I enquired from both the counsel about the existence of Ramola Mohalla wall but the counsel of the defendant could not satisfy me that such a wall is in existence. The entire judgment of the first appellate court, as would be evident from the para number 11, is based on the existence of such a wall on the eastern side. This assumption appears to be, prima facie, wrong and, therefore, I am convinced that the lower court has acted with material illegality in the exercise of jurisdiction in accepting the appeal. I find that the judgment of the lower appellate court on this point is very scanty as in para 11 it has abruptly come to a decision that the lane in dispute is not public street or sanitary lane. Such a finding is unwarranted and uncalled for at this stage of the case and is, prima facie, against the record and some of the admission of the defendants. In paras 11 and 12, while deciding the case after the narration of the arguments, the first appellate court has not said anything about the sub-division plan containing this lane and showing it to be a sanitary lane. It appears that after narration of the arguments, the first appellate court abruptly jumped to a negative opinion about the sanitary public lane shown on the basis of the so-called wall and did not even care to discuss the affidavits of the parties and documents including sub-division plan which have Rot great bearing in the case,

13. I am in agreement with the submission of Shri Panwar that when civil courts are required to deal with the alleged encroachment on public streets, sanitary lanes, public roads, public parks or public chowks, which are always left open by the city planning authorities in order to ensure proper hygienic conditions about the light, air, sanitation, then the civil courts should insist on enforcement of such public rights in which the people, as a whole are very much concerned and affected. In those cases, individual rights should yield to public rights and individual interested litigations should be treated as subsidiary and secondary and in a given case yield to the public interest. In my view, this is solemn duties of the civil court to protect public rights and to come down heavily against the efforts of unscrupulous officers or private persons or some-times even the public authorities, who, on account of ulterior motives or vested interests or ignorance or corruption, alienate the public health and public hygiene and public sanitation to vested interests of individuals who purchase them on the strength of coins.

It is not without significance that it was to guard against such unscrupulous individuals on public rights that the Municipal Act contains the provision for non-alienation of public streets and public roads. It is unfortunate that in spite of statutory prohibitions, some public officers and authorities obey them more in disobedience and regard them and respect them more in flagrant disregard and clear violations. The local authorities should realise that they are trustees of public interest and public rights and ensuring proper light, air, sanitation facilities for drainage, sewage and roads is not a matter of mercy or charity but a matter of right of citizens and they should not betray the trust by shirking the responsibilities in any manner, whatsoever.

14. It is a matter of concern and regret that in the present case, even when the lane has been marked as a public street or public lane in the sub-division plan, the Urban Improvement Trust has sold it and further is denying the right of the people to use it as a sanitary lane by filing written statement which prima facie appears to be in collusion with the defendant. Such a conduct of the Urban Improvement Trust authorities requires serious notice by those who supervise their activities.

15. It is also a matter of regret and concern that even when the Urban Improvement Trust has directed 5 ft. space at least, to be kept open, yet the first appellate court has refused the injunction as a whole.

16. AS I am convinced that the first appellate court has failed to consider material documents consisting of Urban Improvement Trust's sub-division plan and affidavits of the parties and the orders of Urban Improvement Trust and the provisions of the Municipal Act regarding public streets, I am of the opinion that the impugned order should be set aside and the first appellate Court should be directed to reconsider the entire matter again and dispose of the appeal afresh after hearing the parties. The first appellate Court would be at liberty to inspect the site in order to ascertain allegations of existence of a wall of Ramola Mohalla which is in contradictions to a public lane. In such matters of civic rights of people in general and public interest litigations, the civil courts should not shirk responsibility of inspecting the site in order to appreciate the documents and affidavits and to impart the effective, prompt and ready justice, which can inspire confidence amongst the litigants and the people as a whole, All said and done the administration of justice and judiciary which has been assigned this sacred task should inspire confidence in people as a whole for whom it exists in the net analysis of our federal Constitution, judiciary exists for the people and not vice versa.

17. The result is that this revision petition succeeds and is hereby accepted, the impugned order is set aside and the case is remanded for fresh decision to the first appellate Court in the light of the observations mentioned above. During the pendency of the appeal before the first appellate Court, the defendants are restrained from making any constructions over the disputed lane. The petitioner would be entitled to get his cost from Vishnu Mitra, the non-petitioner No. 1 only.


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