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2016 DIGILAW 1179 (HP)

Tilak Raj v. State of H. P.

2016-06-27

P.S.RANA

body2016
Order : P.S. Rana, J. Present petition is filed under Article 227 of Constitution of India against order dated 17.10.2015 passed by learned Additional District Judge (II) Una H.P. Camp at Amb whereby learned Additional District Judge (II) Una H.P. affirmed order of learned Trial Court passed in civil miscellaneous application No. 65 of 2015 filed under Order 39 Rules 1 and 2 CPC. Brief facts of the case 2. Tilak Raj plaintiff filed suit for permanent injunction restraining the defendants themselves through their employees, contractors from curtailing and impeding the passage of plaintiff by way of installing urinals and lavatories and raising any sort of construction over the land comprised in Khewat No. 268 min Khatauni No. 429 min Khasra No. 1085 situated in village Kotli Tehsil Amb District Una H.P. Additional relief sought restraining the defendants from causing any interference, encroaching or discharging the waste of urinals, lavatories and curtailing the access to the land comprised in Khewat No. 65 min Khatauni No. 86 min, Khasra No. 1035. It is pleaded that land situated in Khasra No. 1085 is Gair Mumkin sadak (Non cultivable road) and plaintiff and other co-sharers as well as other inhabitants of area are using the said road for the purpose of egress and ingress to their fields, cattle shed and other allied purposes. It is pleaded that land situated in Khasra No. 1035 is owned by plaintiff along with his brother Jagdish Ram. It is pleaded that Khasra No. 1085 and Khasra No. 1035 are adjoining. It is pleaded that Khasra No. 1035 could be accessed through Khasra No. 1085 only. It is pleaded that defendants are installing the urinals, lavatories in Khasra No. 1085 which would lead to emanating pungent smell which would cause substantial discomfort to the living of plaintiff and his ailing brother. It is pleaded that brother of plaintiff namely Jagdish Ram had recently undergone extensive treatment for brain hemorrhages and paralysis and he was shifted to residential house for later recovery. It is pleaded that plaintiff requested the defendants to desist from their unlawful and illegal act but defendants did not accept the request of plaintiff. 3. Per Contra written statement filed on behalf of defendants pleaded therein that suit is not maintainable and plaintiff has no cause of action. It is pleaded that suit is bad for non-joinder of necessary parties. 3. Per Contra written statement filed on behalf of defendants pleaded therein that suit is not maintainable and plaintiff has no cause of action. It is pleaded that suit is bad for non-joinder of necessary parties. It is pleaded that construction is being raised by H.P. Tourism Development Board through its Project Manager and not by defendants. It is pleaded that project is for development of general public and same is financed by Asian Development Bank. It is pleaded that Khasra No. 1085 is owned and possessed by State of H.P. and Collector is necessary party. It is pleaded that plaintiff did not approach the Court with clean hands and plaintiff suppressed the material facts from the Court. It is pleaded that Khasra No. 1035 is barren and uncultivated land and there is no residential or other building in Khasra No. 1035. It is pleaded that plaintiff has no locus standi to file the present suit. It is further pleaded that plaintiff is estopped by his act conduct and acquiesance to file the present suit. It is pleaded that plaintiff has filed the present suit with malafide intention just to halt the development work on spot relating to the welfare of general public. It is pleaded that State of H.P. has legal right to use Khasra No.1085 for the benefit of general public at large. It is pleaded that septic tank and soak pit would be constructed in Khasra Nos. 1085 and 1089 which is owned by State Government and possessed by PWD department. It is pleaded that no part of waste water or sewerage would be discharged in open land or towards the land of plaintiff comprised in Khasra No. 1035. 4. Plaintiff also filed application under Order 39 Rules 1 and 2 CPC for grant of ad-interim injunction restraining the defendants themselves through their employees or contractors from raising any construction over Khasra No. 1085 by way of installing urinals and lavatories and curtailing the access of plaintiff to Khasra No. 1035 till disposal of suit. 5. Per contra response filed on behalf of defendants and allegations mentioned in written statement re-asserted and prayer for dismissal of application filed under Order 39 Rules 1 and 2 CPC sought. 6. 5. Per contra response filed on behalf of defendants and allegations mentioned in written statement re-asserted and prayer for dismissal of application filed under Order 39 Rules 1 and 2 CPC sought. 6. Learned Civil Judge (Junior Division) Court No. II Amb District Una partly allowed the application filed under Order 39 Rules 1 and 2 CPC and restrained the defendants from raising any sort of construction over land comprised in Khasra No. 1035. Learned Trial Court declined the relief sought relating to Khasra No. 1085. 7. Feeling aggrieved against order passed by learned Trial Court plaintiff Tilak Raj filed civil miscellaneous appeal No. 25 of 2015 which was disposed of by learned Additional District Judge (II) Camp at Amb District Una on 17.10.2015. Learned Additional District Judge (II) Camp at Amb District Una affirmed order passed by learned Trial Court. 8. Feeling aggrieved against order of learned Trial Court and order of learned first Appellate Court petitioner Tilak Raj filed the present petition under Article 227 of Constitution of India. 9. Court heard learned Advocate appearing on behalf of petitioner and learned Deputy Advocate General appearing on behalf non-petitioners Nos. 1 and 4 and learned Advocate appearing on behalf of non-petitioners Nos. 2 and 3 and also perused the entire record carefully. 10. Following points arise for determination in present petition:- Point No.1 Whether petition filed under Article 227 of Constitution of India is liable to be accepted as mentioned in memorandum of grounds of petition? Point No.2 Relief. Findings upon point No.1 with reasons 11. Submission of learned Advocate appearing on behalf of petitioner that Khasra No. 1085 is Gair Mumkin Sadak (Non-cultivable road) and petitioner and other villagers have been using the road for egress and ingress to their respective lands and there is no other passage or path for egress and ingress other than Khasra No. 1085 and said passage is in existence for more than 100 years and on this ground petition be allowed is decided accordingly for reasons hereinafter mentioned. Court has carefully perused Missal Hakiyat consolidation for the year 2007-2008 placed on record relating to Khasra No. 1085. In ownership column name of State Government recorded and in possession column name of Public Works Department recorded. Nature of Khasra No. 1085 is shown as Gair Mumkin sadak (Non-cultivable road). Court has carefully perused Missal Hakiyat consolidation for the year 2007-2008 placed on record relating to Khasra No. 1085. In ownership column name of State Government recorded and in possession column name of Public Works Department recorded. Nature of Khasra No. 1085 is shown as Gair Mumkin sadak (Non-cultivable road). In remarks column it is specifically mentioned that vide mutation No. 183 ownership rights qua Khasra No. 1085 vested in Central Government. Court has also carefully perused jamabandi for the year 2007-2008 relating to Khasra No.1035 placed on record. Khasra No. 1035 is in ownership of Jagdish Ram and Tilak Raj and they are shown in possession of Khasra No. 1035. Nature of Khasra No. 1035 has been shown as Kharetar (Barren land). Court has also perused field map placed on record qua Khasra Nos. 1085 and 1035. As per field map placed on record boundaries of Khasra No. 1035 and boundaries of Khasra No. 1085 are adjoining to each other to the extent of 26 metres. 12. In jamabandi Missal Hakiyat consolidation for the year 2007-2008 nature of Khasra No. 1085 has been shown as Gair Mumkin Sadak (Non-cultivable road). It is well settled law that public has legal right of passage through public road. Learned Trial Court and learned first Appellate Court have not restrained the plaintiff from passing through Khasra No. 1085. It is prima facie proved on record that Khasra No. 1085 has been vested in Central Government and has been declared as National Highway under National Highways Act 1956. Plaintiff did not implead Central Government as co-party in present case. 13. It is well settled law that general public passing through National Highway would require urinals and lavatories. It is prima facie proved on record that urinal and lavatories are being constructed adjoining National Highway for welfare of general public. It is well settled law that when there is conflict between welfare of individual and general public then interest of general public should prevail. Plaintiff is not owner of Khasra No. 1085. It was held in case reported in AIR 1994 Gauhati 105 title State of Assam and another vs. M/s M.S. Associates that when question of granting injunction against public authority arises not only the three ingredients for grant of injunction should be considered (i) Prima facie case (2) Balance of convenience (3) Irreparable loss but in addition public interest should also be considered. It was held that Court cannot be used as a tool to cause inconvenience to the society at large. 14. Submission of learned Advocate appearing on behalf of petitioner that if defendants would succeed in raising urinals and lavatories adjoining to plot of plaintiff comprised in Khasra No. 1035 then pungent smell would come in plot of plaintiff comprised in Khasra No. 1035 is partly accepted for the reasons hereinafter mentioned. It is well settled law that boundaries of Khasra Nos. 1085 and 1035 are adjoining to each other to the extent of 26 metres as per field map placed on record. It is well settled law that neighbour cannot use his own land in such a manner which would create nuisance to his neighbour. See AIR 1989 (P&H) 253 title Darshan Ram vs. Nazar Ram. Court is of the opinion that defendants cannot be permitted to raise urinals and lavatories in such a manner which would create pungent smell to the plaintiff. Non-petitioners would raise urinals and lavatories for welfare of general public in such a manner that same would not create any pungent smell to the plaintiff in any manner. The waste water and sewerage water would go underground. 15. Submission of learned Advocate appearing on behalf of petitioner that in view of the fact that Khasra No. 1085 vested in Central Government and declared as National Highway under National Highways Act 1956 defendants have no locus standi to raise construction and on this ground entire orders of learned Trial Court and learned first Appellate Court be set aside is rejected being devoid of any force for the reasons hereinafter mentioned. It is held that Central Government did not file suit against the defendants. Court is of the opinion that plaintiff has no locus standi to plead the case of Central Government. In view of above stated facts point No. 1 is answered partly in yes and partly in no. Point No. 2 (Relief) 16. It is held that Central Government did not file suit against the defendants. Court is of the opinion that plaintiff has no locus standi to plead the case of Central Government. In view of above stated facts point No. 1 is answered partly in yes and partly in no. Point No. 2 (Relief) 16. In view of findings on point No. 1 above petition is partly allowed and orders of learned Trial Court and learned first Appellate Court are modified to the extent that in addition to original order passed by learned Trial Court defendants would raise urinals and lavatories and other construction over Khasra No. 1085 in such a manner that no part of waste water or sewerage would flow towards the land of plaintiff comprised in Khasra No. 1035 and no pungent smell would flow towards the plot of plaintiff comprised in Khasra No. 1035. It is further ordered that pipes of waste water and sewerage would be laid down by defendants under ground in order to prevent any nuisance to plaintiff who is owner of adjoining plot. Orders of learned Trial Court and learned first Appellate Court are modified to this extent only. Copy of misal Hakiyat for the year 2007-08 relating to Khasra No. 1085, copy of jamabandi for the year 2007-2008 relating to Khasra No. 1035 and field map issued by Consolidation department for the year 2007-2008 placed on record will form part and parcel of order. Observations will not affect the merits of case in any manner and will be strictly confined for disposal of present petition filed under Article 227 of Constitution of India. Files of learned Trial Court and learned first Appellate Court be sent back along with certified copy of order. Parties are directed to appear before learned Trial Court on 22.7.2016. CMPMO No. 25 of 2016 is disposed of. All pending miscellaneous application(s) if any also stands disposed of.