MUNICIPAL COMMITTEE SIRSA Vs. ARJAN DASS

JUDGEMENT

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

(2.) The Municipal Committee defendant-appellant served a notice dated 24.11.1975 upon the plaintiff-respondent 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 Senior-Sub 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, 1955 AIR(P&H) 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.

(3.) 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, 1936 AIR(Lah) 182.