2014 Supreme(Raj) 1113
RAJASTHAN HIGH COURT
Arun Bhansali, J.
Ranjana Devi & Anr. - Appellant
Versus
Naurang Lal & Ors. - Respondent
S.B. Civil Second Appeal No. 6 of 2012.
Decided On : 11-03-2014
For the Appellants:R.K. Thanvi Senior Advocate assisted by Narendra Thanvi, Advocates.
For the Respondent:Sandeep Shah, Advocate.
A suit for public nuisance is maintainable under Section 91 CPC even if no special damage is caused to the plaintiffs.
Headnote:
PUBLIC NUISANCE - SECTION 91 CPC - SECTION 3(48) GENERAL CLAUSES ACT, 1897 - SECTION 268 IPC - PUBLIC NUISANCE SUIT - MAINTAINABILITY - PUBLIC WAY OBSTRUCTION - EASEMENT - INJUNCTION - SUMMARY SUIT - SUMMARY PROCEDURE - PUBLIC INTEREST LITIGATION - SUMMARY SUIT - PUBLIC NUISANCE - INJUNCTION - PUBLIC WAY OBSTRUCTION - EASEMENT - INJUNCTION - SUMMARY SUIT - SUMMARY PROCEDURE - PUBLIC INTEREST LITIGATION
Fact of the Case:
Plaintiffs filed a suit seeking a permanent and mandatory injunction against the defendants for obstructing a public street by placing stone slabs and encroaching on the street. The trial court granted an injunction and directed the defendants to remove the encroachment. The defendants appealed, and the appellate court upheld the trial court's decision. The defendants then filed a second appeal.
Finding of the Court:
The court found that the plaintiffs had demonstrated that they were living in the vicinity of the blocked road and that the obstruction was causing common injury, annoyance, etc. to them. Therefore, the suit was maintainable under Section 91(1)(b) CPC.
Issues: 1. Whether the suit was maintainable under Section 91 CPC? 2. Whether the plaintiffs had to seek a declaration regarding easement rights? 3. Whether the defendants had the right to obstruct the public way?
Ratio Decidendi: 1. Section 91 CPC permits institution of a suit by two or more persons aggrieved by a public nuisance for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case. 2. The plaintiffs did not have to seek a declaration regarding easement rights because they were not claiming easement over the land, but rather asserting their right to use the public way. 3. The defendants did not have the right to obstruct the public way.
Final Decision: The court dismissed the second appeal and upheld the decision of the appellate court.
JUDGMENT
1. - This second appeal under Section 100 CPC is directed against judgment and decree dated 21.09.2011 passed by Additional District Judge, Churu, whereby, the appeal filed by the appellants against the judgment and decree dated 07.03.2006 passed by Civil Judge (Junior Division), Churu decreeing the suit filed by the respondents for permanent and mandatory injunction, has been rejected.
2. The facts in brief may be noticed thus : the respondent Nos.1 to 7 filed a suit on 06.11.1997 against Shubh Karan, Navratan Chotiya and Municipality, Churu seeking mandatory and permanent injunction in respect of a public street as indicated in the map annexed with the plaint seeking removal of encroachment and obstruction alongwith stone slabs and injunction from further obstructing the street and from alienating or transferring the same; it was, inter alia, averred in the plaint that in Ward No.28, Churu in front of Shyam Ji Temple there is a 8 ft. wide public street from east to west in existence for about 60 years, which connects the parallel roads from north to south and plaintiffs are using the said public street; plaintiff Nos.1, 3 and 6 have their plots around the said street and have openings on the said street; the defendant Nos.1 and 2 Shubh Karan and Navratan have placed stone slabs on the said street to the extent of their plot and have closed the way, whereas, in their sale deed way has been shown on the northern side; in all the sale deeds relating to the plots around the said public street, there is a mention of public street; when the said Shubh Karan and Navratan were told to remove the same, they threatened criminal proceedings; it was claimed that the public street is essentially for the enjoyment of the plots. Alongwith the suit application under Section 91 CPC was filed seeking leave of the Court for instituting the said suit.
3. The permission was granted by the trial court on 07.11.1997 and where after procedure under Order I, Rule 8 CPC was adopted and public notice was issued. In pursuance thereto, respondent No.8 Jagdish Prashad and respondent No.9 Prem Ratan got themselves impleaded as plaintiffs.
4. Another application under Section 271 of the Rajasthan Municipalities Act, 1959 ('the Act of 1959') was filed seeking dispensing with the prior notice, as Municipality, Churu was also impleaded as a party, which application was also allowed by order dated 07.11.1997.
5. During pendency of the suit, on an application filed by the plaintiffs under Order 39, Rule 1 and 2 CPC, by order dated 28.04.1998 the application was allowed and the defendants were directed to immediately remove the encroachment and obstruction, remove the stone slabs; not to trespass on the public street and not to alienate the same. However, during pendency of the suit vide sale deed dated 08.09.1998, defendants Shubh Karan and Navratan transferred the land to appellant-defendant Nos.4 and 5 Smt. Ranjana Devi and Smt. Sarita Devi; in the sale deed (Exhibit-4), it appears that out of 8 ft. wide public street claimed by the plaintiffs, 4 ft. land from the alleged public street was also transferred. The said Smt. Ranjana Devi and Smt. Sarita Devi whereafter got themselves impleaded as defendant Nos.4 and 5.
6. The defendant Nos.4 & 5 filed written statement and denied the averments contained in the plaint; it was submitted that the plaintiffs have not sought any declaration regarding easement and no public street exists as there are big trees on the said land; it was claimed that as their sale deed indicates a 4 ft. wide way, the claim of the same being 8 ft. wide is baseless; alternative way is available; the permission under Section 91 CPC and exemption under Section 271 of the Act of 1959 could not have been granted and, therefore, the suit be dismissed.
7. The defendant Nos.1 and 2 remained ex parte and interestingly respondent No.3 Municipality, Churu adopted the written statement of defendant Nos.4 and 5.
8. The trial court framed seven issues
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