A public street or sanitary lane cannot be sold by the Urban Improvement Trust, and such a sale is a nullity.

GUMAN MAL LODHA, J.

( 1 ) IN this petition, Shrimati Kishna Devi had challenged the judgment of Additional District Judge No. 2, Jodhpur of 23rd November, 1979 setting aside the order passed by Addl. Mun. and Judl. Magistrate No. 2, Jodhpur dt. 7-8-1978.

( 2 ) THE suit for permanent injunction is pending in which the petitioner is plaintiff. In this suit, permanent injunction has been claimed against the defendant. There exists a lane in between the house of the parties and according to plaintiff, this is cemented sanitary lane. In this sanitary lane, sewage line of the flush latrine has been permitted and, the windows and doors of the plaintiffs house are opened in this lane.

( 3 ) THE learned trial Magistrate granted temporary injunction and restrained the defendant from making construction over this sanitary lane in dispute, but in appeal that order has been reversed and application for temporary injunction has been dismissed,

( 4 ) SHRI B. L. Panwar, the learned counsel for the petitioner-plaintiff has argued that in the site plan of the Urban Improvement Trust passed by the Chief Town Planner, this lane has been opened as part of the public street and sanitary lane and, therefore, no one has got right to make construction, permanent construction, sale or alienation of this lane in question. My attention was invited to the written statement of non-applicant No. 1 in which the above fact that it has been shown as public street and sanitary lane in the sub-division plan of the Urban Improvement Trust, hag been admitted.

( 5 ) THE sanitary lanes are kept in the scheme of the town plans for creating hygienic conditions by permitting the house owners on both the sides to discharge the water, open the windows, take sewage lines of flush latrine or otherwise construct lane; argued Shri Panwar. According to him, encroachment of sanitary lanes by sale of them to any one is serious encroachment of civil rights and in the interest of the plaintiff as well as the planed development of citizens towns, such encroachment and invasion of civic rights of citizens should not be permitted by the law courts and that way alone rule of law can be maintained.

( 6 ) SHRI Panwar submitted that the growing tendency to encroach upon the public streets or sanitary lanes and to sell or purchase them either profitably or even by negligence and, sometimes, corrupt motives of the local self Government institutions or, development or improvement authorities should be seriously dealt with by the courts, and non-interference on flimsy pretext, as has been done in this case, be not permitted on such unlawful activities not only against the individuals but against the public interest also.

( 7 ) SHRI Panwar pointed out that it is a known fact that in this area free air is always available from the western side and on all these considerations the windows have been kept towards the western side and so also the door. If the defendant is allowed to make constructions it would result in making the house of the plaintiff unfit for residential purpose.

( 8 ) SHRI Panwar also pointed out that the lower court has committed serious error of jurisdiction, because it has failed to consider that the sale made by the Urban Improvement Trust was a nullity as it was of a public street, as defiled in Section 3 (26) and Section 3 (32) of the Municipal Act and a part of street cannot be sold at all. There was no scheme under the Urban Improvement Trust Act and this lane is never vested in the Urban Improvement Trust, argued Shri Panwar.

( 9 ) IT was also pointed out that the lower court has made a confusion about the so-called existence of 10 ft, high wall of Ramola Mohalla in between the house of the applicant and the sanitary lane in question. In fact, no such wall exists and on account of such important misconstruction and misreading of the record, there has been error of jurisdiction; argued Shri Panwar.

( 10 ) SHRI Guru Prakash, the learned counsel for the