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Rajasthan High Court · body

1989 DIGILAW 922 (RAJ)

Devla v. Khem Chand

1989-12-06

D.L.MEHTA

body1989
JUDGMENT 1. - This revision petition is directed against the order dated 28th February, 1989 passed by the learned Addl. District Judge No. 1, Alwar, in Civil Misc. Appeal No. 50/1985. 2. In our Socialist, Republic it is a tragic irony of heartless realism that the social, and economic Proprietariat is ever in power sitting on all sides and the only perpetual opposition is the social, economic Proletariat. The exploitative system is the proletariat and the money power moves the wheel of the society at the cost of the down-trodden. Everyday, we read in the newspapers one story or the other in which there is a report of flouting the law by the persons who are having the money power. 3. Power leads to arbitrariness. May be money power, political power or any other type of power if it is allowed to function in an unbriddled way. In the instant case, non-petitioner moved an application before the Urban Improvement Trust, Alwar, and submitted a copy of the site plan, alongwith the said application. In the site plan, submitted by the non-petitioner the way which is in the eastern side of his land and going to north south has been shown having width of 5'8". Similarly, on the nothern side of the land, there was a way having width of 5'6". The aforesaid application was moved by the non-petitioner to shorten the way-before the UIT which was rejected by the UIT vide its order dated 10th Nov., 1981. An appeal was preferred by the non petitioner before the learned Addl. Collector Alwar, and the same has been rejected by the learned Addl. Collector, Alwar. 4. Without permission of the U.I.T. and the learned Collector, with the aid of the money power and the muscle power, the non-petitioner wanted to construct on the part of the lane. 5. Present petitioner instituted a suit on his behalf and on behalf of the other members of the Schedule Caste and Schedule Tribe, having a right of the way-over the lane, on 7-8-1983, and prayed therein that the defendant should be restrained from encroaching on the space on the land referred to in the site plan. It was also submitted therein that the non-petitioner in spite of the fact that he has failed to obtain the sanction to shorten the way, has started the construction on the said lane. It was also submitted therein that the non-petitioner in spite of the fact that he has failed to obtain the sanction to shorten the way, has started the construction on the said lane. Temporary injunction was granted by the learned Munsiff. During the pendency of the proceedings, non-petitioner constructed a wall which is evident from the report of the Commissioner. It was found that the wall is 71/2' in height & the plastering work has not been completed so far. It was found that the non-petitioner has started putting slabs on the wall. Learned Munsiff vide his order dated 13.9.1984, directed that the wall constructed on the space of the land should be demolished. Being aggrieved with the finding given by the learned Munsiff, an appeal was preferred before the learned District, Judge, and the same was transferred to the court of learned Addl. Distt. Judge, No. 1, Alwar. Learned Addl. Distt. Judge, No. 1, Alwar, vide his order dated 28th February, 1989, reversed the order of the trial court on the ground that there is no sufficient material by which it can be said that the non-petitioner has constructed the wall during the pendency of the suit and after issuance of the temporary injunction. He has relied upon some judgments including the judgment of this court that ordinarily, the position anti suit cannot be restored by way of mandatory injunction. This Court in the case of Nazir Ahmed & ors v. Ashfaq Ali, decided on 17th October, 1989 (reported in 1989 (2) RLR 113 ) held that the court of law has to be liberalised and must lend itself to specificity if it has to be justiciable Board generalisation may not be actually on the rights. We have to go into deep problems of the society and we will have to study the rights and duties of the citizens. 6. Under our constitutional system, where we talk of social justice, economic justice and political justice and also about the equality. The Courts should not stand against wind. Equality without justice is injustice. To talk of equality without putting or without dealing with an iron hand and with the muscle power and money power will not lead to equality and the need of the time is how the muscle power and the money power is curbed and the equality can be restored on all power of equality. Equality without justice is injustice. To talk of equality without putting or without dealing with an iron hand and with the muscle power and money power will not lead to equality and the need of the time is how the muscle power and the money power is curbed and the equality can be restored on all power of equality. Our Constitutional right of equality will remain on papers unless the courts mould in the light of the pre-amble of the Constitution and Chapter-IV and Chapter-3 of the Constitution of India. A Pshychophancy may be the cause of obstruction in the achievement of the goal laid down in the Constitution and the muscle power and the money power may be one of the causes for the destroying the values of the Constitution. Citizens expect that the Judges should be the watch dogs and they should interprete the law by which the citizens can feel that the courts are meant for the weaker section and not for exploitative class. The feeling which exists in the society that the courts are meant for the rich to make them richer at the costs of the down-trodden should be removed. Though, it may not be true. 7. In the facts and circumstances of the case, the non-petitioner has taken the law in his own hand and constructed the wall on a lane having a width of only 5' 8". Hon'ble Justice V. R. Krishna Iyer, in his book Human Rights and the Law, in Chapter-15 has dealt with the topic People's power through Lawyer power. The exploitation of the Jurist, the Judge and the social order is that the lawyer should act to disarm the strong and arm the weak This will lead to the change to the social order and it is the job of the lawyer. Justice should not be the means by which established injustices are sanctioned In a democratic, republic country, the job of the lawyer is to change the social order which will remove the legal injustice and create a social order in which justice means a sanctioned justice, social justice and not a justice on a paper. 8. To encroach on a land of the public way is not a cause of one person but it is a cause of society as well as also of the poor persons of the Schedule Caste. 8. To encroach on a land of the public way is not a cause of one person but it is a cause of society as well as also of the poor persons of the Schedule Caste. If they are not allowed by encroachment to have a bullock carts in the land in a jet age and this is the justice which the non-petitioner wants to get from the court. This type of sanction of injustice cannot be allowed to continue and the learned Munsiff, was right in holding that the position should be restored and the wall constructed or any constructions so made should be removed. The learned Addl. District Judge, No. 1, has committed an error of law and jurisdiction also in depriving the right of the public way and making a way so narrow in which a bullock-cart, cannot pass. It seems that the jet age persons will always fly in the sky but the person who is living on the earth will have to move on foot or on bullock-cart. This is a case of social injustice and it is a case which falls within the category of rare and the rarest and the learned Munsiff was justified tor ordering to demolish the wall. 9. In the result, the revision petition is accepted. The order of the learned Addl. District Judge No. 1, is set-aside. The non-petitioner is directed to pay Rs. 300/- as costs to the petitioner.Revision accepted with costs. *******