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1972 Supreme(Raj) 59
High Court Of Rajasthan
Judgename : J.P.Jain
DULICHAND - Appellant
Versus
BHAIRONDAS - Respondent
Second Appeal 6 Of 1966
Decided On : 03/29/1972
Bipinchandra C.Shah, M.B.L.Bhargawa, Rajesh Balia, SUMERCHAND
The construction of projections and balconies on public streets is permissible with prior permission from the Municipal Board, and unauthorized constructions are punishable under the Rajasthan Municipalities Act, 1959.
Headnote:
MUNICIPAL LAW - PUBLIC STREET - PROJECTION - SOAK PIT - RIGHT OF PASSAGE - OBSTRUCTION - DAMAGES - INJUNCTION - RAJASTHAN MUNICIPALITIES ACT, 1959 (ACT NO. 38 OF 1959), SECTIONS 3(26), 3(32), 92(2)(T), 194, 266.
Fact of the Case:
Plaintiff Meghraj filed a suit against defendants Bhairondan and others for a perpetual injunction and damages, alleging that the defendants had constructed a projection, a flush latrine, a pipe line, and a soak pit in the public lane in front of their houses, obstructing the plaintiff's view of the road and causing damage to his property. The defendants contested the suit, claiming that the constructions were made with permission from the Municipal Council and did not infringe on the plaintiff's rights.
Finding of the Court:
The trial court dismissed the plaintiff's suit, but on appeal, the Civil Judge sent the case back for a fresh decision. The Munsif court then decreed the plaintiff's suit in part, ordering the demolition of the projection and restraining the defendants from making similar constructions in the future. On further appeal, the District Judge dismissed the plaintiff's suit in toto, and the plaintiff filed a second appeal.
Issues: 1. Whether the defendants' constructions in the public lane were unauthorized and obstructed the plaintiff's rights. 2. Whether the plaintiff had a right to view the road from his house and whether the defendants' projection obstructed that view. 3. Whether the defendants' soak pit encroached on the plaintiff's rights in the public lane.
Ratio Decidendi: 1. The Rajasthan Municipalities Act, 1959 defines 'public street' and 'street' as including the land up to the defined boundary, notwithstanding the projection of any verandah or other superstructure, and any space used by the public as a means of access to or from any public place or thoroughfare. 2. The Act empowers the Municipal Board to give permission for the construction of projections and balconies on public streets, and unauthorized constructions are punishable. 3. The right of the public to pass and repass on a public street is subject to reasonable restrictions, and does not extend to the subsoil or the air space above the surface. 4. The plaintiff had no right to view the road from his house, and the defendants' projection did not obstruct his right of passage on the public street. 5. The soak pit was constructed beneath the surface of the public street and did not interfere with the plaintiff's right of passage.
Final Decision: The second appeal was dismissed, and the plaintiff's suit was dismissed in toto.
J. P. JAIN, J.
( 1 ) THIS second appeal arises out of a suit instituted by Meghraj on 26-2-1960 in the Court of Munsif, Bikaner. for a perpetual injunction and for recovery of damages. During the pendency of the suit, Meghrai plaintiff died and his son dulichand came on record to continue the suit. His two daughters Mst. Bhanwari and Mst, Chanwari were impleaded as defendants Nos. 6 and 7. The plaintiff has a house in Mothalla Surana in the city of Bikaner. Towards the east of the plaintiffs house, the house of the defendant Bhairondan and his three brothers is situated. All the four brothers are defendants Nos. 1 to 4. Municipal Council. Bikaner is defendant No. 5. Towards the north of the house of the plaintiff and that of the defendants is a gali and is admittedly a public lane.
( 2 ) THE allegations of the plaintiff in the suit are that the defendants have constructed a projection at the height of 9 feet 10 inches towards the gali extending to 3 feet. The projection is in the form of a balcony and is 9 feet in length on the first floor of the defendants house. This has been shown as a in the map Ex. 3 filed with the plaint The plain-tiffs averment in this regard is that on account of the construction of the balcony, the beauty of his house has been substantially marred and anyone in his house is not able to see the rasta. It has not been clarified which rasta the [plaintiff refers to. Even in the map Ex. 3, the rasta referred to has not been shown. Another averment of the plaintiff is that the defendants got constructed a flush latrine in the north-west corner of their house on the first floor. This has been shown as b in the map Ex. 3. The plaintiff also made a grievance for (the pipe C to D put up by the defendants to carry the urine and dirty water (from the second floor. Yet another grievance made by the plaintiff is about the construction of a soak pit in the lane and which has been shown as e in the map Ex. 3. It was alleged by him that on account of the soak pit the lane has been narrowed down. The plaintiff also alleged that constructions f. g and h were also made by the defendants in their house after having damaged Ms wall and In respect of that he claimed damages in the amount of Rs. 100/ -. The plaintiff proceeded to say that all these constructions were made by the defendants without the permission of the Municipal Council. Bikaner. He apprehended that they are likely to compose the matter with the Municipal council. He accordingly prayed for the demolition of the projection a, the closure and removal of the pipe line CD and the constructions b, e and f and further prayed for a perpetual injunction restraining the defendants from making such further construction. Against the Municipal Council it was prayed that it be restrained from making any compromise with the defendants with regard to these constructions.
( 3 ) DEFENDANTS Nos. 1 to 4 contested the suit. By their joint written statement dated 8-4-1960 it was admitted that a balcony was constructed by them at a height of about 10 ft. from the ground in the first floor of the house, but it was averred that it did not impair the beauty of the plaintiffs house, nor did it infringe any of the plaintiffs rights. As regards the flush latrine, it was alleged that it was constructed in their house and the soak pit was under the staircase outside the, house but in their Patta Sud land. The soak pit did not narrow the lane. As regards the urinal and the two pipes C to D it was stated that they did not construct any urinal and the two pipes C to D put up by them in second floor of the house were only meant to carry the rain water. As regards the constructions F. G. and H, it was alleged that they were made in their house and no damage was caused to the plaintiffs property. These constructions according to the defendants, were made at a distance of 8 inches from the plaintiffs house and as such, they were not entitled to any damages.
( 4 ) THE Municipal Coun
