1986 Supreme(MP) 755

IN THE HIGH COURT OF MADHYA PRADESH
B.M. Lal, J.
Municipal Committee, Sidhi – Appellant
Versus
Jagdish Prasad Khare – Respondent
M. A. No. 338 of 1986 (I)
Decided On : 17-12-1986

Headnote:(1) Words and Phrases – word 'vest' – means 'vests in interest'.

       (2) Municipalities Act, 1961 (M. P.) – S. 100 (1) (c) – words 'vested in council' – have limited effect – no allotment can be made by council.

       (3) Civil Procedure Code, 1908 – O.39, R. 1 and 2 – action amounting to nuisance of perpetual nature – temporary injunction in mandatory form may be granted.

        Short Note

       1. In a civil suit for declaration and permanent injunction, the respondent plaintiff also prayed for grant of injunction in the mandatory form to remove five Gumtis which were put by the cobblers on the drain side at the instance of the Municipal Committee, Sidhi thereby obstructing the plaintiffs assessmentary right. The trial Court by the impugned order granted relief in favour of the plaintiff as prayed for against which the present appeal is filed by the Municipal Committee Sidhi.

       Held: in common parlance the word 'vest' means 'vests in interest' rather than 'vests in possession'. As such, the word 'vest' bas not a fixed conotation that the property is owned by the person or the authority in whom it vests. It may vest in title or it may vest in possession or it may vest in a limited sense, as may be indicated in the context in which it may have been used in a particular piece of legislation.

       2. As such, under Section 100 (1) (c) of the Act the words 'vested in Council' have only a limited effect to the extent of its management, repairs etc. But the State Government does not lose its right or interest in the public street vested in the Municipality.

       3. In this context if the Gumtis so allotted by the appellant/Municipal Committee, Sidhi is examined it would reveal that vesting means, the Municipality no doubt has the exclusive right to manage and control the surface of the soil as it is necessary to enable it to adequately maintain and enable it as owner to bring possessory action against transpasser but by exercise of possessory right the allotment by the side of the road cannot be made by the Municipality.

       4. In The Municipal Board, Manglaur v. Mahadeoji Maharaj (A.I.R. 1965 S.C. 1147) it has been held that the Municipality has no right to put up structures on vacant site which are not necessary for maintenance or user of it as a pathway.

       5. Therefore, the setting up of Gumtis of cobblers by the Municipal Committee, Sidhi by the side of the Highway and in front of plaintiff's house, is without authority of law and in such a set of circumstances the non – applicant plaintiff is certainly entitled for injunction as prayed for.

       6. In State of Uttar Pradesh v. Ata Mohd. (A.I.R, 1980 S.C. 1785) Their Lordships of the Supreme Court have held that that is vested in the Municipality is the street qua street and if the Municipality put the street to any other user than that for which it was intended, then the State as its owner was entitled to intervene and maintain an action and to get any person In illegal occupation, evicted. As such, this decision also throws light that though the State Highway vests in the Municipality, but for limited purpose.

       7. Shri Khare than argued that no case for grant of mandatory injunction is made out. No doubt where injury is not immediate or of emergent nature causing irreparable loss to the plaintiff, no mandatory injunction in temporary form could be granted. But, all the same, where injury is immediate pressing irreparable loss and it is clearly established that it is not acquiesced in by the plaintiff, mandatory injunction in temporary form could be granted if the Court is satisfied that the matter is an emergent one and immediate assistance is needed to prevent irremedial injury being done to the legal rights of the claimants.

       8. In the instant case the installation of Gumtis and allotment of the same to the cobblers certainly amounts to nuisance which is perpetual in nature offending not only the plaintiff's rights acquired by virtue of constructing the house and residing therein, bue also other easementary and natural rights to which he is entitled. Therefore, it cannot be said that the case does not fulfil the requirement for grant of injunction in the mandatory form. 1972 JLJ 167, AIR 19C8 SC 1785 and AIR 1965 SC 1147 relied on. Appeal dismissed.