Municipal Committee Sirsa vs Arjan Dass

J.V. Gupta, J.

This is defendant''s second appeal against whom suit for permanent injunction was dismissed by the trial Court, but was decreed in appeal.

The Municipal Committee defendantappellant served a notice dated 24.11.1975 upon the plaintiffrespondent Arjan Dass that he had made an encroachment on the public street by way of construction of a latrine and that he should remove the same. Reply to the said notice was given, but the Municipal Committee found it to be unsatisfactory and again issued a notice dated 10.12.1975 for demolishing the same, failing which it shall be demolished at his costs. Feeling aggrieved, the plaintiff filed the present suit on 3.1.1976 for permanent injunction as to restrain the Municipal Committee from demolishing the two latrines shown by letters ABCD in the site plan attached to the plaint. According to the plaintiff, the said latrine is more than 100 years old and is situated in a lane which is closed at one end and meant only for two houses meaning thereby that it was a private lane. It was, therefore, prayed that the notice served by the Municipal Committee was illegal. The suit was contested on the plea that by constructing the disputed latrine, the plaintiff has encroached upon a public street and so the same was liable to be demolished. The trial Court found that the latrine was not an encroachment on a public street. It was also found that the latrine belonged to the plaintiff but it was not a part of his house, as alleged. As regards the relief, the trial Court came to the conclusion that the disputed lane in which latrine was constructed, was a street within the meaning of section 2(23) of the Haryana Municipal Act. So, the Municipal Committee was justified in issuing the notice. In view of this finding, plaintiff''s suit was dismissed. In appeal, the learned SeniorSub Judge with enhanced Appellantte powers reversed the finding of the trial Court under issue No. 1 and came to the conclusion that the latrine in dispute was a part of the house of the plaintiff. However, the finding of the trail Court that the latrine was constructed on a public street was affirmed. Ultimately relying on Pyarelal v. Municipal Committee, Ludhiana, AIR 1955 Punjab 185, the plaintiff''s suit was decreed as it was found that the latrine in dispute was there for more than 30 years and therefore, the Municipal Committee could not take action under section 181 of the Haryana Municipal Act. Dissatisfied with the same, the Municipal Committee has filed the second appeal in this Court.

The learned counsel for the appellant contended that since the encroachment is on the public street, the Municipal Committee was competent to issue notice for its removal. In support of his contention he referred to Municipal Committee, Amritsar v. Mr. Gujri, AIR 1936 Lahore 182.

After hearing the learned counsel for the appellant I do not find any merit in this appeal. The said judgment in Mt. Gujri''s case (supra) was considered by the Court in Pyarelal''s case (supra) and the view taken therein was not accepted therein. It was observed therein that :

``The question appears to be whether the Municipality governed by the Punjab Act can, after it has stood by for more than thirty years without taking any action to remove a platform built on a part of a public street, and so lost its right to bring an ordinary civil suit for possession of the site, invoke the provisions of S. 172 of the Act and take action under it. It seems to me that if this were the case it would render the provisions of Article 146A, Limitation Act wholly nugatory, and moreover it would leave it open to Municipalities to take summary action under S. 172(2) in the very case in which as they concern ancient encroachments, full enquiry by a civil Court into the parties'' rights is most essential. I am, therefore, of the opinion that the view taken by the learned Judges of the Bombay High Court is correct, and in the present case the plaintiffs have become the owners of the site under the platform by prescription''''.

I am in respectful agreement with the view taken by this Court in the said judgment.

Consequently, the appeal fails and is dismissed with no order as to costs.