CHAMPA LAL Vs. MUNICIPAL CORPORATION JODHPUR

JUDGEMENT

(1.) THIS special appeal is directed against the order of the learned Single Judge dated 23. 7. 2005 in S. B. Civil Writ Petition No. 5774/2003 allowing the writ petition of respondent no. 3 Suresh Nath (hereinafter referred to as `the respondent' ).

(2.) THE respondent had filed the writ petition for quashing the order of the Appellate Committee of the Jodhpur Municipal Corporation (in short, the Corporation ). Brief facts of the case are that the respondent filed an application in the Corporation seeking permission to open a gate on the land in front of the house of the appellant which had allegedly been closed by the appellant by putting stones on one end to prevent the neighbours from dumping garbage on it. THE Building Committee of the Corporation allowed the application vide resolution dated 6. 6. 1998 and the respondent was permitted to erect the gate. THE appellant filed appeal before the Appellate Committee of the Corporation. Challenging the jurisdiction of the Appellate Committee the respondent approached this Court in S. B. Civil Writ Petition No. 3253/2002. THE writ petition was disposed of by order dated 29. 4. 2003 with liberty to raise objections before the Appellate Committee itself. Overruling the objections of the respondent the Appellate Committee by order dated 22. 7. 2003 set aside the resolution of the Building Committee. THE respondent against approached this Court in the connected writ petition i. e. S. B. Civil Writ Petition No. 5774/2003. After hearing counsel for the parties, the learned Single Judge took the view that the respondent had been granted permission to open the gate in a lane in which other persons also had their gates - a fact admitted on behalf of the appellant, and in that view of the matter, the Appellate Committee had no reason to deny similar and natural benefit available to the respondent. THE learned Judge observed that if the lane is small the question as to how it is to be used can be decided by the neighbours, and if there is any nuisance, the aggrieved party has right to approach the civil court. But once other neighbours have opened their gates in the lane, permission granted by the Building Committee to the respondent should not have been cancelled. In these premises, the learned Single Judge quashed the decision of the Appellate Committee dated 22. 7. 2003 and thus allowed the writ petition.

(3.) COUNSEL for the parties also went into the factual gamut of the case which we do not propose to go into. As observed above there are disputed questions of fact and this Court would not like to record any finding on those questions.