Raj Kumar Sharma vs Muncipal Council, Rajgarh
2023 Latest Caselaw 8757 Raj

[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

[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

[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

[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.

[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

[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.

[2023:RJ-JD:35208] (7 of 7) [CW-13730/2023]

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/-

Powered by TCPDF (www.tcpdf.org)