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2025 DIGILAW 207 (RAJ)

Municiple Council Udaipur v. Napendra Lal

2025-02-05

REKHA BORANA

body2025
Order : 1. The present second appeal was admitted on 16.11.1994. The following substantial questions of law were framed on the said date: “1. Whether an owner of property adjacent to a public street has a right of frontage to the road abetting to his boundary, so that he can restrain Municipal Council from putting up any construction between the public street and his land. 2. Whether the lower courts were justified in granting a mandatory injunction for demolition of construction in the circumstances of the case.” 2. So far as first substantial question of law is concerned, learned counsel for the appellant submits that in the present matter, even if it is assumed that the plaintiff had a right of frontage to the road abetting to his boundary, the said right had not even been infringed by the Municipal Authorities. 3. While relying upon the photographs of the site in question as placed on record of this appeal upon directions of this Court, counsel submits that the urinal in question had firstly, not been constructed on the road abetting to the boundary of the plaintiff’s house and secondly, had been constructed at a distance of more than 20 feet from the boundary wall of plaintiff’s house. Further, the urinal has been constructed on the main road which is more than 5 feet below the level of the road on which the plaintiff’s residential house is situated. Therefore, even if the question of law as framed is answered in favour of the plaintiff, no relief in the form of mandatory injunction can be granted to him for demolition of the urinal, the bus stand and water house as constructed by the Municipal Authorities. 4. Arguing on second question of law, counsel submits that it was clear on record that the plaintiff was nowhere even affected by the constructions in question as all the said constructions were neither in front of the plaintiff’s house nor did obstruct the frontage of his house. Therefore, the learned Courts seriously erred in granting the decree of mandatory injunction in favour of the plaintiff and directing for demolition of all the three public utility constructions. 5. It is relevant to note that after the demise of respondent No.1, the service on his legal representatives was complete but none appeared on their behalf. 6. Therefore, the learned Courts seriously erred in granting the decree of mandatory injunction in favour of the plaintiff and directing for demolition of all the three public utility constructions. 5. It is relevant to note that after the demise of respondent No.1, the service on his legal representatives was complete but none appeared on their behalf. 6. Heard learned counsel for the appellant and perused the material available on record. 7. A bare perusal of the findings as recorded by the learned Courts makes it clear that the same are totally contrary to the actual situation on site. 8. A bare perusal of the photographs of the present status of the site in question as placed on record reveals that there are two parallel roads running on the site in question. The road running adjacent to the plaintiff’s house is almost 20 feet wide and the main road running parallel to the said road is at 5 feet below the level of the said road. 9. All the three disputed constructions have been raised on the main road which is 5 feet below the road adjacent to the plaintiff’s house. 10. Further, none of the three constructions can be said to be situated in front of the plaintiff’s house so as to obstruct the frontage of his house. The disputed bus stand is not even reflected in the photographs which clearly means that the same is at a far distance from the plaintiff’s house. So far as the urinal and the water house are concerned, the same are also clearly situated on the main road at a distance of almost more than 20 feet from the plaintiff’s house and that too not in front of his house. 11. In view of the above status of the situation at site, even if the first substantial question of law as framed is answered in favour of the plaintiff, it cannot be held that he is entitled to a relief of mandatory injunction in form of a direction for demolition of the constructions of the three public utility constructions. The right of frontage, if any, available to the plaintiff is clearly not obstructed by any of these constructions. 12. The right of frontage, if any, available to the plaintiff is clearly not obstructed by any of these constructions. 12. The questions of law are hence, answered in the manner that the frontage of the plaintiff’s house has not been obstructed or affected by the three public utility constructions in dispute and he is not entitled to any relief of mandatory injunction in his favour. 13. In view of the above observations, the present second appeal is allowed . The orders impugned dated 02.08.1994 passed by Civil Judge (Senior Division), Udaipur in Appeal No.20/1991 and 14.08.1991 passed by Munsif and Judicial Magistrate (First Class), Udaipur in Civil Original No.150/1979 are hereby quashed and set aside. 14. Pending applications, if any, stand disposed of .