Construction of latrine and septic tanks to be treated as deviation from purpose of acquisition.

The Madurai Municipal Council through its Executive Authority the Commissioner who is the first defendant in the suit is the appellant before this Court. The respondents herein were served but they remain absent. The suit filed by the plaintiffs 1 to 5 was for a mandatory injunction directing the defendants, i.e., the Madurai Municipality and also the State of Madras through the District Collector, Madurai to remove the latrines and septic tanks in T.S. No. 2003/1-A in West Madurai and keep the said site as a road and also for a permanent injunction restraining the Municipality and its servants from dumping rubbish in the said road by the side of the house sites of the plaintiff. It is unnecessary for me to deal elaborately with the facts of the case. Suffice it to say that the Municipality acquired the portions from the plaintiffs for the purpose of having a scheme road. In that portion acquired, the Municipality has constructed a public lavatory with septic tanks in the portion marked in the plaint plan. The plaintiffs object to the construction of the latrine and the septic tanks on the ground that since the acquisition is for forming a public road, the Municipality should not have constructed the public latrines and the septic tanks, that the construction of the public lavotary and septic tanks creates actionable nuisance and, as such, they have to be removed and that the construction of those latrines and the septic tanks restricts the access of the plaintiffs to the public road. Apart from this, the plaintiffs have stated that the Municipality is dumping rubbish on the site, and as such, it should be stopped.

2. As far as the Municipality is concerned, which is the main contesting defendant in the suit, it is submitted that the road has been formed as per the acquisition and, while forming the road to provide for the public convenience, the Municipality has constructed the public latrines and the septic tanks. It is also stated that there is absolutely no nuisance as alleged by the plaintiffs and that it does not obstruct the plaintiffs access to the road. The Municipality has also denied the dumping of rubbish as stated by the plaintiffs in the suit.

3. The learned District Judge found that there is no deviation in the object and purpose of acquisition, that there is a substantial compliance with the objects of acquisition in that a portion has been used for the formation of the road; the user of the balance portion for the construction of the latrine and the septic tanks cannot be regarded to be a deviation from the object of the acquisition, that there is no question of lack of sanction from the Government to put up a latrine in view of the subsequent ratification and that there is no question of the Municipality dumping the rubbish as alleged by the plaintiffs. But the learned District Munsif found that there is an actionable nuisance in having the latrines and the septic tanks in the place alleged by the plaintiffs and, as such, the suit has to be decreed.

4. Aggrieved by the judgment and decree of the trial Court, the Municipality preferred an appeal to the learned Principal Subordinate Judge of Madurai. Along with the appeal, the Municipality also filed an interlocutory application for permission to file additional written statement. In the additional written statement it wanted to raise a plea that the suit is barred under Article 113 of the new Indian Limitation Act, 1963. The article provides a period of 3 years for necessary relief. The Municipality wanted to have it that the latrines were put up on 8th September, 1962. It, therefore, wanted to raise the plea that the suit, filed after three years of the completed part, is barred by time. It then wanted to raise the plea that the plaintiffs were aware of the construction and stood by the construction of the latrines and the septic tanks and even acquiesced in the construction by not taking immediate action. The Municipality, therefore, wanted to raise,