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Rajasthan High Court
Jagat Narayan C.J. & Gattani, J.
Pyarelal Satpal - Appellant
Versus
Santlal - Respondents
D.B. Civil Special Appeal No. 21 of 1966
Decided On : September 21, 1971
Sec. 114 also does not authorise letting out a part of a highway for getting up a stall for carrying on business. The purposes for which permission may be granted to occupy any part of a street temporarily are specified in it. They envisage permission to be granted to those constructing buildings abutting public streets or public lands so that people may be able to dig foundations and erect scaffoldings on the public street.
When the Act did not give any power to the Municipality to let out portions of a public highway for putting up stalls for carrying on business this could not be done by framing any bye-laws. Sec. 129 of the Act which provides for framing bye-laws does not contain any clause specifically empowering the Municipality to frame bye-laws about letting out parts of public highways on Tehbazari. ( paras 7, 8, 9 and !0 )
In case the right of any person to pass along a highway is obstructed or interfered with, he can maintain a suit without proving any other damage. The principle is that a person of an immediate community or section of the public who is deprived of the amenity provided for that particular section may be deemed to have suffered loss without proof of such loss.
The contention on behalf of the defendants was that as a result of the putting of the Tehbazari stalls on parts of the public way, the plaintiffs were dispossessed or ousted from those parts of the public way and sec. 23 has no application to the present case.
Held that no question of the dispossession or the ouster of the plaintiffs from any part of the public street can arise as they had no right of possession over the public street. Only a party having a right of possession over some thing can be dispossessed from it. In the present cases, the stall-holders do not claim adversely to the municipality. They are in possession of parts of the public street as Tehbazari holders from the municipality A person who claims a right of way, whether public or private, over a certain land has no right of possession over it and, therefore, there is no question of his dispossession from the land. { paras 45, 46,48,49 and 53 )
2. Special Appeal No. 21 of 1966 arises out of suit No. 157 of 1960 which was instituted by Santlal. Special appeals No. 20 of 1966 and 32 of 1966 arise out of suit No. 75 of 1957 which was filed by Ladu Ram Special appeal No. 29 of 1966 arises out of suit No. 200 of 1962 filed by Khemchand.
3. The defendants of suit No. 20 of 1962 which was instituted by one Lachni Ram have filed special appeal No. 22 of 1966 This could not be heard along with the other special appeals as it was not ripe for hearing on account of the death of a party. The defendants of suit No. 94 of 1960 instituted by Dewan Chand do not appear to have filed any special appeal against the judgment of the learned Single Judge.
4. The facts are these. In the Dhan Mandi area of Ganganagar town there is a road leading from the Kotwali to the Lakkar Mandi known as Kotwali Road. At right angles to it towards its western end is the Dharamshala Road. Both these are public roads or highways, Santlal has a Nohra and Ladu Ram has shops abutting on the Kotwali Road and Khemchand has shops abutting on the Dharamshala Road. The width of these roads is 50 ft. Some 25 or 30 years before the present suits were brought the Municipality of Ganganagar let out substantial portions of these public roads to various persons on Tehbazari basis for putting up temporary wooden stalls for the purpose of using them as shops. The stalls have been set up by the persons who have been joined as defendants in the suits. In between the stalls and the properties of the plaintiffs there are narrow strips of land or lanes which are not more than 2 to 3 feet wide; otherwise the Tehbazari stalls virtually cover up the properties of the plaintiffs abutting on the two public roads. A considerable part of the two public roads has therefore been obstructed by the Tehbazari stalls and their original width of 50 feet has been substantially reduced. The actual position of the roads, the properties of the plaintiffs and the stalls have been shown in a plan which was produced before the learned Single Judge by Shri M. M. Vyas, learned counsel for the Municipality. The correctness of this plan has been admitted by all the parties. The Rajasthan Government conveyed an order to the Municipality on September 11, 1952, for the restoration of the entire width of the Kotwali Road by removing the stalls, but that order was not carried out. The stallholders themselves filed a suit for the issue of an injunction against their impending eviction, but it was dismissed on July 17, 1956. As the Municipality did not take any step to evict them the plaintiffs instituted the present suits challenging the legality of the obstructions on the public highways. They prayed that a perpetual injunction be issued directing the Municipality to refrain from letting out any portion of the public roads in future. They also prayed for the issue of a mandatory injunction for the removal of the obstructions.
5. Various pleas were taken in defence before the learned Single Judge which were overruled by him.
6. The first contention on behalf of the appellants is that the Municipality had the right under the law to let out the lands in question for setting up temporary stalls on Tehbazari basis. When the lands in question
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