1989 Supreme(Raj) 959
RAJASTHAN HIGH COURT AT JAIPUR BENCH
D.L.Mehta, J.
Devla & ors. - Appellant
Versus
Khem Chand - Respondent
S.B. Civil Revision Petition No. 245 of 1989. (Against order dated 28-2-89, passed by ADJ No. 1, Jaipur City, Jaipur, in Civil Misc. Appeal No. 50/85 (169/84)).
Decided On : 6-12-1989
The court has the discretion to grant an injunction to restrain a person from committing a wrongful act, and in exercising this discretion, the court will consider factors such as the balance of convenience, the irreparable injury that may be caused to the plaintiff if the injunction is not granted, and the public interest.
Headnote:
INJUNCTION - RESTITUTION OF STATUS QUO - SECTION 38 OF THE SPECIFIC RELIEF ACT, 1963 - COURT'S DISCRETION TO GRANT INJUNCTION - PRINCIPLES GOVERNING THE GRANT OF INJUNCTION - BALANCE OF CONVENIENCE - IRREPARABLE INJURY - PUBLIC INTEREST.
Fact of the Case:
The non-petitioner constructed a wall on a public lane despite being denied permission by the Urban Improvement Trust and the Collector. The petitioner, on behalf of the Schedule Caste and Schedule Tribe members who had a right of way over the lane, filed a suit seeking an injunction to restrain the non-petitioner from encroaching on the lane. The trial court granted a temporary injunction, but the appellate court reversed the order, holding that there was insufficient evidence to prove that the wall was constructed during the pendency of the suit.
Finding of the Court:
The High Court held that the non-petitioner had taken the law into his own hands by constructing the wall on the public lane. The court observed that the encroachment on a public way was not only a cause of one person but also of society and the poor persons of the Schedule Caste. The court further held that the learned Munsiff was justified in ordering the demolition of the wall as it was a case of social injustice and fell within the category of rare and rarest cases.
Issues: 1. Whether the non-petitioner was entitled to construct a wall on the public lane without permission from the Urban Improvement Trust and the Collector? 2. Whether the trial court was justified in granting a temporary injunction to restrain the non-petitioner from encroaching on the lane? 3. Whether the appellate court erred in reversing the order of the trial court?
Ratio Decidendi: 1. The court held that the non-petitioner was not entitled to construct a wall on the public lane without permission from the Urban Improvement Trust and the Collector. The court observed that the encroachment on a public way was a violation of the rights of the public and could not be allowed. 2. The court held that the trial court was justified in granting a temporary injunction to restrain the non-petitioner from encroaching on the lane. The court observed that the non-petitioner had taken the law into his own hands by constructing the wall and that there was a real and imminent threat of irreparable injury to the public if the injunction was not granted. 3. The court held that the appellate court erred in reversing the order of the trial court. The court observed that the appellate court had failed to consider the relevant facts and circumstances of the case and had applied the law incorrectly.
Final Decision: The High Court accepted the revision petition, set aside the order of the appellate court, and directed the non-petitioner to pay Rs. 300/- as costs to the petitioner.
JUDGMENT
1. - This revision petition is directed against the order dated 28th February, 1989 passed by the learned Addl. District Judge No. 1, Alwar, in Civil Misc. Appeal No. 50/1985.
2. In our Socialist, Republic it is a tragic irony of heartless realism that the social, and economic Proprietariat is ever in power sitting on all sides and the only perpetual opposition is the social, economic Proletariat. The exploitative system is the proletariat and the money power moves the wheel of the society at the cost of the down-trodden. Everyday, we read in the newspapers one story or the other in which there is a report of flouting the law by the persons who are having the money power.
3. Power leads to arbitrariness. May be money power, political power or any other type of power if it is allowed to function in an unbriddled way. In the instant case, non-petitioner moved an application before the Urban Improvement Trust, Alwar, and submitted a copy of the site plan, alongwith the said application. In the site plan, submitted by the non-petitioner the way which is in the eastern side of his land and going to north south has been shown having width of 5'8". Similarly, on the nothern side of the land, there was a way having width of 5'6". The aforesaid application was moved by the non-petitioner to shorten the way-before the UIT which was rejected by the UIT vide its order dated 10th Nov., 1981. An appeal was preferred by the non petitioner before the learned Addl. Collector Alwar, and the same has been rejected by the learned Addl. Collector, Alwar.
4. Without permission of the U.I.T. and the learned Collector, with the aid of the money power and the muscle power, the non-petitioner wanted to construct on the part of the lane.
5. Present petitioner instituted a suit on his behalf and on behalf of the other members of the Schedule Caste and Schedule Tribe, having a right of the way-over the lane, on 7-8-1983, and prayed therein that the defendant should be restrained from encroaching on the space on the land referred to in the site plan. It was also submitted therein that the non-petitioner in spite of the fact that he has failed to obtain the sanction to shorten the way, has started the construction on the said lane. Temporary injunction was granted by the learned Munsiff. During the pendency of the proceedings, non-petitioner constructed a wall which is evident from the report of the Commissioner. It was found that the wall is 71/2' in height & the plastering work has not been completed so far. It was found that the non-petitioner has started putting slabs on the wall. Learned Munsiff vide his order dated 13.9.1984, directed that the wall constructed on the space of the land should be demolished. Being aggrieved with the finding given by the learned Munsiff, an appeal was preferred before the learned District, Judge, and the same was transferred to the court of learned Addl. Distt. Judge, No. 1, Alwar. Learned Addl. Distt. Judge, No. 1, Alwar, vide his order dated 28th February, 1989, reversed the order of the trial court on the ground that there is no sufficient material by which it can be said that the non-petitioner has constructed the wall during the pendency of the suit and after issuance of the temporary injunction. He has relied upon some judgments including the judgment of this court that ordinarily, the position anti suit cannot be restored by way of mandatory injunction. This Court in the case of Nazir Ahmed & ors v. Ashfaq Ali, decided on 17th October, 1989 (reported in 1989 (2) RLR 113) held that the court of law has to be liberalised and must lend itself to specificity if it has to be justiciable Board generalisation may not be actually on the rights. We have to go into deep problems of the society and we will have to study the rights and duties of the citizens.
6. Under our constitutional system, where we talk of social justice, economic justice and political justice and also about the equality. The Courts should not stan
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