[2023:RJ-JD:35208] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 13730/2023
1. Raj Kumar Sharma S/o Late Shri Bhagwana Ram, Aged About 63 Years, By Caste Brahmin, Resident Of Ward No. 37, Rajgarh, District Churu.
2. Ran Singh Punia S/o Late Shri Birbal Ram, Aged About 61 Years, By Caste Jat, Resident Of Ward No. 37, Rajgarh, District Churu.
----Petitioners Versus
1. Muncipal Council, Rajgarh, Through 1/1. Executive Officer, Municipal Council, Rajgarh, District Churu. 1/2. Chiarman, Municipal Council, Rajgarh, District Churu.
2. Prakash Narayan S/o Shri Shiv Lal, By Caste Meghwanshi, Resident Of Ward No. 37, Rajgarh, District Churu.
----Respondents For Petitioner(s) : Mr. R.K. Thanvi, Sr. Adv. assisted by Mr. Narendra Thanvi & Mr. Mahendra Thanvi For Respondent(s) : Mr. Rajesh Parihar, A.G.C.
Mr. Rajesh Choudhary HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Judgment Reserved on 11/10/2023 Pronounced on 20/10/2023
1. This writ petition under Article 227 of the Constitution of India has been preferred claiming the following reliefs:
"It is, therefore, respectfully prayed that this Hon'ble Court may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction:-
(i) quash the order impugned dated 04.09.2023 (Annexure-5) passed by the Learned Addl. District Judge (Downloaded on 12/11/2023 at 08:04:57 AM) [2023:RJ-JD:35208] (2 of 7) [CW-13730/2023] No.1, Rajgarh, District Churu in Civil Appeal No.03/2023; and
(ii) quash the order dated 23.08.2023 (Annexure-3) passed by learned Civil Judge, Rajgarh, District Churu in Civil Misc. Case No.37/2023 ; and
(iii) the temporary injunction application filed by the petitioners may kindly be allowed with costs in toto; and
(iv) any other appropriate relief which this Hon'ble Court deems fit necessary in the fact and circumstances of the present case be granted in favour of the petitioners; and
(v) Cost of the writ petition kindly ordered to be awarded to the petitioners."
2. As per the pleaded facts, towards northern side of the petitioners' house situated in Ward No.37, Indira Colony, Rajgarh via house of one Murli Prajapat towards houses of one Mahendra Sharma and Chhagan Lal lies a public way going towards Hisar Road; earlier a drain was constructed from the funds of the Member of Parliament (M.P.) quota, for the flow of filth and polluted water and the same was headed from southern side to northern side, as per the natural slant.
2.1. Thereafter, the respondent no.1-Municipal Council, Rajgarh invited tender on 07.02.2019 for work no.22 for construction of CC Block Road from the house of petitioner no.2 to house of petitioner no.1, ward no.28 (present Ward no.37) keeping the natural slant from southern side to northern side and the same was constructed.
2.2. Further, by the same tender, Cross Construction was made from petitioner no.1's house to Bheevaram Prajapat's house and construction of drain was made from Bheevaram Prajapat's house to Mahendra Sharma's house via Mahendra Murli Prajapat, Ward (Downloaded on 12/11/2023 at 08:04:57 AM) [2023:RJ-JD:35208] (3 of 7) [CW-13730/2023] no. 28 (relevant part marked in Annexure A - Master Plan as the portion of ABCD).
2.3. The said CC Block Road and the drain constructed by the respondent no.1 was damaged and the same was lifted upwards contrary to the natural slant, and thus, as per the petitioners, the said drain and block road is intended to be constructed against the technical parameters, resulting into grievance to the petitioners; also the road meant for traffic flow was forcibly blocked, due to encroachment by the respondent no.2.
2.4. Subsequently, a suit was instituted by the petitioners under Sections 38 & 39 of the Specific Relief Act, 1963 and Section 91 CPC before the learned Civil Judge, Rajgarh, District Churu for permanent and mandatory injunction against the respondents, along with an application for temporary injunction under Order 39 Rules 1 & 2 CPC praying for restraining the respondents from damaging the CC Block Road and drain for exit of polluted water, contrary to the natural slant and in contravention of the technical parameters, whereupon notices were issued and the respondents prayed for time to file written statement, resulting in arguments being heard on ad interim injunction; however the same was rejected vide the impugned order dated 23.08.2023. 2.5. Aggrieved of the aforesaid impugned order, an appeal under Order 43 Rule 1(d) read with Sections 104 & 151 CPC was preferred by the petitioners before the learned Additional District Judge No.1, Rajgarh, District Churu, however the same was rejected vide the impugned order dated 04.09.2023. Thus, the (Downloaded on 12/11/2023 at 08:04:57 AM) [2023:RJ-JD:35208] (4 of 7) [CW-13730/2023] present petition has been preferred claiming the afore-quoted reliefs.
3. Learned counsel for the petitioner submitted that the suit in question was not instituted for any personal gains but for protecting the right to access of public at large, and thus, the learned Courts below erred in not appreciating the fact that there was no counter to the assertions made by the petitioners; further, the allegations of encroachment and malafide conduct of respondent no.2 in connivance with respondent no.1 have been clearly substantiated, rather remained uncontroverted, on the face of the record.
3.1. It was further submitted that it is a settled legal preposition that in a case, where there are serious disputed questions of fact, the property involved in such dispute should be preserved and the same should not be allowed to be altered in any manner whatsoever by changing the position over the disputed site. Thus, as per learned counsel, the learned Courts below erred in not granting the ad-interim injunction for preserving the suit property. 3.2. It was also submitted that over the site towards both sides of CC Block, drains were already constructed by the Municipal Body in the year 2019, and thus, the proposed change of drain and proposed construction would result into grave inconvenience, in particular, to the residents of the area concerned; further, since it was observed by the learned Trial Court itself that in the present matter, evidence needs to be seen and the reply of respondents is awaited, therefore, order to maintain status quo should have been passed in favour of the petitioners.
(Downloaded on 12/11/2023 at 08:04:57 AM) [2023:RJ-JD:35208] (5 of 7) [CW-13730/2023] 3.3. In furtherance, reliance has been placed by the learned counsel on the following judgments:
(a) Bhagwati Singh v. Raja Laxman Singh, (S.B. Civil Miscellaneous Appeal No. 3459 of 2008) decided on 11.12.2013 by a Coordinate Bench of this Hon'ble Court ; and
(b) Rudresh Jhunjhunwala & Ors. v. Satish Kumar & Ors., (S.B. Civil Miscellaneous Appeal No. 136 of 2022) decided on 03.02.2022 by a Coordinate Bench of this Hon'ble Court at Jaipur Bench.
4. On the other hand, learned counsel for the respondents, while opposing the aforesaid submissions made on behalf of the petitioners, submitted that the present matter was not for the benefit of the residents of the concerned area using the public way, as no one other than the petitioners had complained against the construction work in question.
4.1. It was further submitted that the work order so issued was for re-fixation of the aforesaid drain and work for the same was already almost completed, and further, enquiry in the said matter, was already being conducted.
4.2. It was also submitted that the direction of the slant of the said drain had already been decided and if the slant is not constructed from southern side to the northern side, marked as A to B in Annexure A, then water would get collected before the house of respondent no.2 causing grave grievance to him; in addition, it was submitted that the matter regarding temporary injunction is still pending before the learned court below and the (Downloaded on 12/11/2023 at 08:04:57 AM) [2023:RJ-JD:35208] (6 of 7) [CW-13730/2023] reply and evidence with regard to the present matter is also to be presented before the said Court.
5. Heard learned counsel for the parties as well as perused the record of the case alongwith judgments cited at the Bar.
6. This Court observes that a tender was issued for construction of drain and the petitioners were against the manner of construction of drain which is before their houses and the encroachment done by respondent no.2 on the aforesaid public way; aggrieved of the same, the aforementioned suit was instituted and ad interim injunction was sought for, however the same was declined; whereafter an appeal was preferred by the petitioners before the Additional District Judge, however the said appeal was also dismissed.
7. This Court further observes that the temporary injunction application is still pending before the learned Court below and the response of the respondents are still awaited; in furtherance, as per the observations of the learned Appellate Court below in accordance with the judgment rendered in the case of Gulab Kothari v. State of Rajasthan [Civil Writ (PIL) No. 1554/2004] decided on 22.05.2017, the Municipal Body concerned is required to follow the applicable Master Plan; further, as per the observation of both the learned Courts below, it is evident that questions of drainage of water and slant of drain being from south to north, closing of road, such questions could only be answered after collection of proper evidences as well as after the response of the respondents.
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8. This Court also observes that at this stage, it would not be appropriate for this Court to accept the prayers made by the petitioners in the instant petition, as in case the same are accepted, it would obstruct the free flow of filth and unpolluted water and would also result into stagnation thereof, which would amount to grave inconvenience to the residents of the area concerned.
9. This Court is therefore, of the opinion that there is no legal infirmity in the impugned orders passed by the learned Courts below.
10. The judgments cited at the Bar on behalf of the petitioners also do not render any assistance to their case at this stage.
11. Thus, in light of the aforesaid observations and looking into the factual matrix of the present case this Court, does not find it a fit case so as to grant any relief to the petitioners in the present petition.
12. Consequently, the present petition is dismissed. However, it is directed that the Temporary Injunction application pending before the learned Civil Judge, Rajgarh, District Churu, shall be decided within a period of three months from today, strictly in accordance with law, and without being prejudiced by any of the observations made in the present judgment. All pending applications stand disposed of.
(DR. PUSHPENDRA SINGH BHATI), J.
SKant/-
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