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Hiralal Vs. Municipal Board and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 17/66
Judge
Reported in1973(6)WLN699
AppellantHiralal
RespondentMunicipal Board and ors.
DispositionAppeal dismissed
Cases Referred and Pyarelal Satpal v. Santlal
Excerpt:
rajasthan municipalties act, 1959 - section 161--clock tower is a piece of beauty and utility--discretion exercised by municipal board is correct.;beautification is not always synonymous with the concept of utilitarianism a clock tower keeps people acquainted with the correct time even if we were to accept that utility is an ingredient of beauty then it would serve a very large purpose for the pedestrians who would be moving about the town no body says that the roads will need widening and much less in the foreseeable future the municipal board, therefore, had a discretion to decide whether the proposed construction added to the beauty of the town and a consequent improvement. it has decided in favour of having a clock tower and we see no reason to interfere with it.;(b) constitution of..........of the town shri shivpratap tantia, since deceased, approached the municipal board to construct a clock tower at the 'chopad'. the proposed construction in luded four pillars 20' high & 18'' x 18' square on the tour corners of the 'chopad', the pillars were proposed to be constructed on the north western unpaved foot path measuring 96' wide and on the north-east foot path measuring 8' wide and south-west foot path measuring 9' wide and on the south east foot path measuring 7.4' wide. these pillars were to be later covered by beams and thereon a clock tower of the height of approximately 48' was to be constructed as per design given in ex. r. 1. the proposal put by shri tantia came to be considered by the administrator and he observed in ex. 1 dated 24 9. 1963 that the scheme of a clock.....
Judgment:

B.P. Beri, C.J.

1. This special appeal is directed against the judgment of a learned Single Judge dated February 21, 1966, whereby he dismissed the petition of the appellant under Article 226 of the Constitution of India.

2. In the town of Sardanahar two roads each 18' wide intersect at a particular point which is called a Chopad'. One of the residents of the town Shri Shivpratap Tantia, since deceased, approached the Municipal Board to construct a clock tower at the 'Chopad'. The proposed construction in luded four pillars 20' high & 18'' x 18' square on the tour corners of the 'Chopad', The pillars were proposed to be constructed on the north western unpaved foot path measuring 96' wide and on the north-east foot path measuring 8' wide and south-west foot path measuring 9' wide and on the south east foot path measuring 7.4' wide. These pillars were to be later covered by beams and thereon a clock tower of the height of approximately 48' was to be constructed as per design given in Ex. R. 1. The proposal put by Shri Tantia came to be considered by the Administrator and he observed in Ex. 1 dated 24 9. 1963 that the scheme of a clock tower was towards the beautification of the town and such schemes were ordinarily financed by the Municipalities themselves, and the Municipal Board Sardarsahar was fortunate that it came to be financed by a citizen. It was also examined if the construction of he clock tower will in any manner obstruct the passage of traffic and the Administrator found that it would not. The construction was to be done under the supervision of the Municipal Engineer and the financer was to obey the instructions of the Municipal Board as per Ex. 2 dated 11.10.1963. The scheme was accordingly approved but Hiralal petitioner-appellant felt uncomfortable and approached authorises. At one stage he was able to get the scheme paralysed but eventually the scheme was approved by Director, Local Bodies and the Government. Petitioner's dissatisfaction, however, continued and he instituted a writ petition before this Court and the learned Single Jadge after closely examining the matter came to observe that the construction of the four pillars on the corners of the foot path as indicated in annexure R 2 would not in any manner cause obstruction He further observed that these four pillars would be constructed at the places where electric and telephone poles were already in existence The slanting wires that were fixed on these telephone poles for their support would be removed as result of the proposed pillars and thereby they would be instrumental in removing the existing obstruction. In this view of the matter, after examining the provision of the Rajasthan Municipalities Act, 1969, he came to the conclusion that there was no substance in the writ petition submitted by Hiralal and dismissed the same. Hiralal comes in special appeal.

3. Mr. H.M. Lodha appearing for the appellant urged that according to the petitioner's case as contained in paragraph 6 of the petition, the Chief Town Panner had not approved of the scheme and therefore, it was not a whole-some proposal from the town planning's point of view. He further submitted that Hiralal being a resident of Sardarsahar had a right to complain when the passing and repassing in the foot-path would be obstructed on account of these four pillars He placed reliance on the provisions of Section 161(1) of the Rajasthan Municipalities Act and relied on Manglaur Municipality v. Mahadeoji : [1965]2SCR242 and Pyarelal Satpal v. Santlal 1972 RLW 514. Mr Rastogi appearing for the legal representative of Shri Sheo Pratap Tantia urged that the Municipal Board, Sardarsahar had considered all the pros and cons of the proposal and had expressed the definite opinion that in no manner will the proposed clock tower obstruct the traffic. The petitioner's entire case, urged the learned Counsel, is contained in Sub-para (3) of paragragh 10 in which concern has been expressed by the petitioner regarding the traffic and specially heavy vehicles such as Stage carriage in negotiating the curve. In point of fact the petitioner does not even own a vehicle and he has ventured to take cudgels as a busybody on behalf of some people who are not before the Court, He distinghished the authorities cited by Mr. Lodha.

5. Mr. M.D. Purohit on behalf of the State has supported the arguments of Mr. Rastogi.

6. We have carefully examined annexures R. 1 and R. 2 Having regard to the placing of the pillars which do not in any manner touch the metalled road leads us to the conclusion, to which the learned Single Judge reached, namely, that the proposed erection of the pillars does not in any manner adversely interfere with the passage and repassage of the pedestrians because the pillars have been constructed on the foot path and not on the road There 18' squire dimension also having regard to the general width of the foot path does not create any obstruction to the view of a vehicle taking a turn It is no body's case that the construction of the clock tower might adversely affect any aerial movement. Therefore, we are not prepared to agree with the learned Counsel for the appellant that construction of the proposed tower would adversely affect his right of passing and repassing.

7. Section 161(1) of the Rajasthan Municipalities Act reads as follows:

Section 161 Powers regarding streets, etc.--(1) It shall be lawful for the Board to lay out and make new public streets and to construct tunnels and other works subsidiary to the same and to widden, open, enlarge or otherwise improve any such streets and to turn, divert, discontinue or stop up any such streets and, subject to the provisions of Sub-section (2) of Section 80, to lease or sell any such land, therefore used or acquired by the Board for the purposes of such streets, as may not be required for any public streets or for any other purposes of this Act.

(Italcs is ours).

We have not before as the opinion of the Chief Town Planner. The petitioner did not take the trouble to get it produced in the Court. Be that as it may, both in Ex. 1 and Ex. 2 the Municipal Board regarded the construction of a clock tower as an addition to beauty of the town Beautification of the town according to the current thinking is a responsibility which the legislature has encrusted to the Municipal Boards and Councils Mr. Lodha argues that the construction of the pillars would rule out the possibility of widening the roads and therefore the clock tower cannot be regarded as a step towards beautification. Beautification is not always synonymous with the concept of ultrlitaranism. A clock tower keeps people acquainted with the correct time even if we were to accept that utility is an ingredient of beauty then it would serve a very large purpose for the pedestrians who would be moving about the town. No body says that the roads will need widening and much less in the foreseeable future. The Municipal Board, therefore, had a discretion to decide whether the proposed construction added to the beauty of the town and a consequent improvement. It has decided in favour of having a clock tower and we see no reason to interfere with it.

8. We are now left with the two authorities cited by the learned Counsel. The Supreme Court case of the Municipal Board Manglaur (1) was decided in the following circumstances.

9. The plaintiff was the owner of a particular plot in the town of Manglaur. Through the said plot ran a public road and two 'nalies' on the north and south of the said road. There was also a water pipe belonging to the Municipality which ran through the plot. There was a vacant site in between the 'nalies' and the road. The Municipality was going to erect a structure on the vacant site wherein it intended to instal a statue of Mahatma Gandhi and also put up two rooms on either side for a piau' and library. The plaintiff, who was the owner of the plot instituted a suit in the court of Munsif Deoband for a permanent injunction to restrain the Municipal Board Manglaur, from putting up the said structures on the site and for delivery of possession of the same to the plaintiff. Their Lordships of the Supreme Court held that such public path way vested in the Municipality including so much of the soil below and of the place above the surface as was necessary to enable it to adequately maintain the street as a street, But the Municipality could not put up the structures which it intended to erect on the vacant site as it could not be said that they were necessary for the maintenance or user of the road as a public high way. The said acts were unauthorised and the plaintiff who was the owner of the soil, would certainly be entitled to ask for an injunction restraining the Municipality from acting in excess of its rights.

10. We have detailed these facts because they themselves distinguish the situation with which we are concerned. Hiralal has no pretence to be the owner of the land on which the pillars are to be constructed.

11. The facts of the Rajasthan case of Pyrelal Satpal (2) are entirely distinguishable. In the Dhan Mandi area of Ganganagar town there is a road leading the Kotwali Road. At right angles to it towards its western end is the Dharamshala Road. Both these are public roads or highways. Santlal had a Nohra and Laduram had shops abutting on the Kotwali Road and Khemchand had shops abutting on the Dharamshala Road. The width of these roads was 50 ft. Some 25 or 30 years before the present suits were brought, the Municipality of Ganganagar let out substantial portions of these public roads to various persons on Tehbazari basis for putting up temporary wooden stalls to be used. It was held that the Municipality acted in excess of its authority. Shrinking the width of a road was no improvement.

12. We cannot lose sight of the fact that grant of a remedy in exercise of our extra ordinary jurisdiction is discretionary and depends on the rights of the petitioner the extent of the violation and the injustice he suffers. We find in this case that there is no injustice against the appellant as such.

13. No other point was urged before us We are in agreement with the judgment of the learned Single Judge. This appeal fails and is dismissed with costs.


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