LADHURAM Vs. MUNICIPAL BOARD GANGANAGAR

JUDGEMENT

(1.) THESE nine second appeals arise out of suits Nos. 75 of 1957, 94 and 157 of 1960 and 20 and 200 of 1962. The first of these suits stands dismissed by the impugned judgment and decrees of the learned District Judge of Ganganagar, dated March 2, 1959, and the first two appeals of the plaintiffs have arisen for that reason. The remaining suits have been decreed and this is why the defendants have preferred the other seven second appeals. There is not much difference in the basic facts of the five suits and the nature of the dispute is quite similar. They can be disposed of on the basis of the admitted facts, as common questions of law and facts arise in all of them. This is why they have been argued together, virtually as companion appeals, and I propose to dispose them of by this single judgment.

(2.) THE parties to the suits are no doubt different, except that the Municipal Council of Ganganagar, which shall hereafter be referred to as the Municipality, is a defendant in all of them. THE common admitted facts are like this : In the Dhan Mandi area of Shri Ganganagar town there is a road leading from the Kotwali to the Lakhar Mandi (which shall hereafter be referred to as the Kotwali road ). On its western junction there is a road known as the Dharamshala road. Both these are public roads or highways. THE plaintiffs in four of the suits own shops and/or 'nohras' abutting on the Kotwali road, while the plaintiff in the remaining suit (No. 200 of 1962) owns a shop abutting on the Dharamshala road. From these ends or extremities of the plaintiffs' shops or 'nohras' which abut on the aforesaid roads, the opposite line of private properties is situated at a distance of 50 feet. Some 25 or 30 years ago, the Municipality let out substantial portions of these public roads on what is locally known as 'tehbazari' basis, to various persons, for putting up temporary wooden stalls for the purpose of using them as shops or other business premises. THE stalls have been set up by the persons who have been joined as defendants in the suits and who shall hereafter be referred to as the stall holders. In between the stalls and the properties of the plaintiffs, there are narrow strips of land or lanes which are no more than 2 to 3 feet wide ; otherwise the 'tehbazari' stalls virtually cover up the properties of the plaintiffs abutting on the two public roads. A considerable part of the two public roads has therefore been obstructed by the 'tehbazari' stalls and their original width of 50 feet has been substantially reduced. THE actual position of the roads, the properties of the plaintiffs and the stalls has been brought out in a map which has been placed on the record by Mr. M. M. Vyas, THE correctness of the map has been admitted by all the other learned counsel. THE Rajasthan Government conveyed an order to the Municipality on September 11, 1952, for the restoration of the entire width of the Kotwali road by removing the stalls, but that order was not carried out. THE stall holders themselves raised a suit for the issue of an injunction against their impending eviction from the 'tehbazari' premises, but it was dismissed on July, 17, 1956. All these facts are admitted in this Court. THE plaintiffs therefore challenged the legality of the obstructions on the public ways, and prayed for the issue of a perpetual injunction directing the Municipality to refrain from letting out any portion of the public roads on 'tehbazari' in future, and also for the issue of a mandatory injunction for the removal of the obstructions. Alleging that the obstructions continuously interfered with their rights, the plaintiffs pleaded that they gave rise to a continuous cause of action and that the suits were within limitation for that reason.

(3.) WHAT follows therefore is that there is no provision in the statute which could be said to authorise the Municipality to place the obstructions on the two public ways in question by converting sizable portions thereof into stalls, howsoever temporary the licences or leases may be. So when the two public ways were 50 feet wide, any structures on them which were not necessary for their maintenance or user as public highways cannot be continued. For this view I would refer merely to The Municipal Board, Manglaur vs. Mahadeoji Maharaj (l) on which the learned counsel for the defendants had placed considerable reliance in another connection.