DAKORE TOWN MUNICIPALITY Vs. ANUPRAM HARIBHAI TRAVADL

JUDGEMENT

(1.) IN this case the plaintiff has obtained an injunction against the Dakore Municipality to restrain them from obstructing him in reinstating a stone which was formerly imbedded in his otla in its original position, and Rs. 2 for damages for wrongful removal of the stone. The learned Judge has based his decision upon a finding that this stone had been in situ for twelve years, and that, therefore, the Municipality had no right to interfere with it as there had been adverse possession for the statutory period of the portion of the street occupied by the stone. We do not think that this is a good reason for the decision. The Municipality is the creature of the Statute with duties inter alia to preserve the passage along public streets, and, under Sections 113 and 122 of the District Municipal Act, it is given certain powers depending upon the existence of certain conditions for the removal of encroachments or obstructions upon the streets. Under Section 113, if it is proved that the encroachment objected to is an obstruction to the safe and convenient passage along a street, the Municipality may by written notice require the owner to remove it. Under Section 122, the Municipality have power to remove an encroachment which may have been set up after the place has become a Municipal district. It matters not in either case whether the encroachment has been in existence for twelve years or more, but the statutory conditions regulating the exercise of the power must be shown to exist. The Municipality in the present case have not shown either that the stone which they have removed was an obstruction to the safe and convenient passage along the street or that the stone was set up by the plaintiff after the place became a Municipal district. They have, therefore, not justified their action by reference to their statutory powers. On that ground we affirm the decree of the lower appellate Court and dismiss the appeal with costs.