The construction of a drain by a Municipal Board, if necessary for public convenience and not causing substantial injury, may be considered proper and in public interest, justifying dismissal of a suit against the Board.

1. - This second appeal has been preferred by the plaintiff appellant against the appellate judgment and decree dated 18.09.2007 as passed by the Additional District Judge (Fast Track), Rajsamand in Civil Appeal No. 07/2007 (Old No. 24/1997) whereby, while reversing the decree dated 06.12.1996 for mandatory and perpetual injunction as passed by the Civil Judge (Junior Division), Deogarh in Civil Original Suit No. 10/1996, the learned Appellate Court has dismissed the suit filed by the plaintiff-appellant.

2. The relevant aspects of the case as emerging from the judgments of the subordinate Courts could be noticed thus: On 06.02.1990, the plaintiff-appellant filed the suit for prohibitory and mandatory injunction and for recovery of an amount of Rs.10,000/- towards damages while complaining that the Municipal Board, Amet (defendant No.1 - hereinafter also referred to as 'the Board') has illegally and without any justification constructed a drain in front of his shop providing its flow adjacent to the northern and eastern side walls of his shop; and while alleging such act being unauthorized and improper, and having been actuated by the intentions of vengeance on the part of the Executive Officer of the Municipal Board (defendant No.2), the plaintiff submitted that the drain in question has caused substantial nuisance and inconvenience affecting his health and business. The plaintiff averred that the offending drain was constructed in a wholly unauthorised manner in the night of 07.06.1989 in his absence; that he took proceedings before the Additional Collector, Rajsamand and obtained a stay order, yet the construction of the disputed drain was completed. The plaintiff also alleged that earlier the drain water had been flowing on the back side of his property going towards south and for its proper joining with the stream, only about 40 feet drain-line was required to be completed whereas laying of the present drain has caused a difference of about 300 feet. The plaintiff prayed for injunction in the nature that the disputed drain be closed and the position ante be restored; and also claimed damages for physical and mental in the sum of Rs.10,000/-.

3. The defendants contested the suit denying the plaint averments and, while denying the allegations that the drain in question was constructed to harass the plaintiff, the defendants maintained that the work was carried out for public convenience and submitted that construction of such a drain was necessary in view of the order passed by the District Forum Consumer Protection, Udaipur on 17.05.1989. It was also pointed out that functioning of the earlier drainage system had been causing difficulties because the spillover of discharged water got collected in front of the office of Junior Engineer of the Electricity Board and then, at the Bus Stand and the Tehsil office. The defendants pointed out that laying of the drain near the said Junior Engineer's Office would have required expensive construction of a culvert that was not agreed to by the Public Works Department.

4. The suit was put to trial after framing of the following issues:-

"1- D;k izfroknh us okn i= ds iSjk la0 3 esa of.kZr ds vuqlkj ukyh cuk yh ftl ukyh dks cukus dk izfroknh dks vf/kdkj ugha gSA & oknh 2- D;k okn i= ds iSjk la0 1 esa of.kZr nqdku dh dHkh Hkh ukyh ls ikuh ugha cgk gS rks vc uxjikfydk ,slk ugha dj ldrhA & oknh 3- D;k izfroknhx.k ds ukyh cukus ls oknh dks U;wlsal o O;kikj esa gkfu gqbZ rFkk oknh dh lEifRr dks uqdlku gqvk ;fn gka rks mldk D;k izHkko gSA & oknh 4- vuqrks"kA"

5. After taking the evidence adduced by the parties, the learned Trial Court referred to the duties and responsibilities of the Municipal Board relating to sanitation and observed that the defendants have failed to show, and have not examined any independent witness to establish, if construction of the drain at the disputed place was entirely necessary in public interest and that no other medium or method was available. The learne