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S.B. CIVIL SECOND APPEAL NO. 102/2008.
Roshan Lal Vs. Municipal Board, Amet
Date of Order :: 1st July 2008.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. Pradeep Shah, for the appellant
....
BY THE COURT:
This second appeal has been preferred by the plaintiff-
appellant against the appellate judgment and decree dated
18.09.2007 as passed by the Additional District Judge (Fast
Track), Rajsamand in Civil Appeal No. 07/2007 (Old No.
24/1997) whereby, while reversing the decree dated
06.12.1996 for mandatory and perpetual injunction as passed
by the Civil Judge (Junior Division), Deogarh in Civil Original
Suit No. 10/1996, the learned Appellate Court has dismissed
the suit filed by the plaintiff-appellant.
The relevant aspects of the case as emerging from the
judgments of the subordinate Courts could be noticed thus: On
06.02.1990, the plaintiff-appellant filed the suit for prohibitory
and mandatory injunction and for recovery of an amount of
Rs.10,000/- towards damages while complaining that the
Municipal Board, Amet (defendant No.1 – hereinafter also
referred to as ‘the Board’) has illegally and without any
justification constructed a drain in front of his shop providing its
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flow adjacent to the northern and eastern side walls of his
shop; and while alleging such act being unauthorized and
improper, and having been actuated by the intentions of
vengeance on the part of the Executive Officer of the
Municipal Board (defendant No.2), the plaintiff submitted that
the drain in question has caused substantial nuisance and
inconvenience affecting his health and business. The plaintiff
averred that the offending drain was constructed in a wholly
unauthorised manner in the night of 07.06.1989 in his
absence; that he took proceedings before the Additional
Collector, Rajsamand and obtained a stay order, yet the
construction of the disputed drain was completed. The plaintiff
also alleged that earlier the drain water had been flowing on
the back side of his property going towards south and for its
proper joining with the stream, only about 40 feet drain-line
was required to be completed whereas laying of the present
drain has caused a difference of about 300 feet. The plaintiff
prayed for injunction in the nature that the disputed drain be
closed and the position ante be restored; and also claimed
damages for physical and mental in the sum of Rs.10,000/-.
The defendants contested the suit denying the plaint
averments and, while denying the allegations that the drain in
question was constructed to harass the plaintiff, the
defendants maintained that the work was carried out for public
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convenience and submitted that construction of such a drain
was necessary in view of the order passed by the District
Forum Consumer Protection, Udaipur on 17.05.1989. It was
also pointed out that functioning of the earlier drainage system
had been causing difficulties because the spillover of
discharged water got collected in front of the office of Junior
Engineer of the Electricity Board and then, at the Bus Stand
and the Tehsil office. The defendants pointed out that laying of
the drain near the said Junior Engineer’s Office would have
required expensive construction of a culvert that was not
agreed to by the Public Works Department.
The suit was put to trial after framing of the following
issues:-
“1- क पत व द न व द पत क पर स. 3 म वर
क अनस र न ल बन ल र स न ल क बन न क
पत व द क अत क र नह ह ।— व द —
2- क व द पत क पर स. 1 म वर दक न क# कभ भ न ल स प न नह बह ह अब नगरप तलक ऐस नह कर सक । -- व द -- 3- क पत व द ग क न ल बन न स व द क न स( स व व प र म ह न हई थ व द क# समपत. क नकस न हआ दद ह उसक क पभ व ह । -- व द - 4- अन ष ।" 4After taking the evidence adduced by the parties, the
learned Trial Court referred to the duties and responsibilities of
the Municipal Board relating to sanitation and observed that
the defendants have failed to show, and have not examined
any independent witness to establish, if construction of the
drain at the disputed place was entirely necessary in public
interest and that no other medium or method was available.
The learned Trial Court also observed that the defendant had
earlier considered the proposition of construction of a culvert
for proper discharge of water and, therefore, mere carrying of
drain from the disputed place cannot be said to be proper and
construction of culvert cannot be regarded as misuse of funds.
The learned Trial Court observed that the disputed drain,
placed adjoining the house and shop of the plaintiff appeared
to be taking substantial discharge of filthy water; and it could
not be said that there had been any justification, and proper
and sufficient cause, to construct the drain at the disputed
place.
The elaborate discussion of the learned Trial Court on
issue No.1 culminated into the findings that the drain in
question did not appear to have been constructed at the
disputed place in proper exercise of powers by the defendants.
The learned Trial Court has thus expressed its conclusion on
issue No.1 :
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“इस पक र तवव दद सथ न पर बन ई गई न ल
पत व द ग द र उनक अत क र6 क सह ढग स
प ग करन नह बन न दत9प ह ह ।नक# क तन इस पक र व द क पक म दक ह ।"The learned Trial Court proceeded to decide issue No.2
on the basis of its discussion on issue No.1 and observed that
the place in dispute was not of the natural flow of the water
nor in the past any water had been discharged to that side
and, therefore, laying of the drain near the plaintiff’s shop or
flow of water therefrom cannot be said to be proper nor was
necessary for lawful exercise of the powers of the Municipal
Board.
Issue No.3 was framed on the question if the plaintiff
has suffered nuisance and loss in his business and to his
property due to the drain in question. The learned Trial Court,
however, did not find any reason to award damages to the
plaintiff and decided issue No.3 against the plaintiff with the
observations the plaintiff, PW-1, though stated having
suffered a loss of Rs.15,000/- but failed to adduce any specific
evidence as to how and in what manner did he suffer such a
loss. The learned Trial Court even observed that the plaintiff
has failed to establish if he has suffered any substantial loss or
damages due to the alleged pollution. The Trial Court also
6observed that it was not proved if the drain in question was
constructed by the defendant No.2 for any enmity with the
plaintiff but reiterated its finding that it were not in proper
exercise of the powers under the Municipalities Act in
accordance with law. The learned Trial Court decided issue
No. 3 against the plaintiff with the following observations and
findings:-
"पदष( हन वद न ब और गनदग ह न कह उस ह क ई व द क स रव न कत ह न हआ ह ऐस व द न स तब नह दक । तवव दद नल पत व द ग द र बन ई गई व न ल पत व द स. 2 द र व द क स थ वमनस व दष रख क बन ई गई ह ऐस स तब नह ह परन बन ई गई न ल उत= व तवत अनकल ढग स नगरप तलक अत तन म म पद. शत? 6 क सह र क स ध न म रखकर दक ग ह ह नह कह सक ह । इस पक र व द पत व द ग स क ई ह न र श रप 10 ह र प न क अत क र नह ह इस नक# क तन व द क तवरद दक ह ।"As a result of its discussion and findings on the issues,
the learned Trial Court partly decreed the suit and issued
mandatory and perpetual injunction against the defendants,
while rejecting the claim of the plaintiff for damages, in the
following terms:-
“(1) आदश तमक तनष ज बहक व द रखल फ
पत व द ग स. 1, २ इस अमर क# र क# ह
दक पत व द ग तवव दद न ल लकम ब र क#
सडक क क टकर व द क# दक न क प(वJ व उ.र
द व र क सह र बन ई गई ह, उस तन क# ददन क क
न म ह क# अवत क भ र अपन ख=K स वह स
7हट ग व लकम ब र क प न न तल 6 क
रर आ ह उस प न क बह व ह समत= व
पभ व ढग स प न क पव ह क ध न म रख हए
कई नल डन बन ग और उस क रर व उ?प न क पव दह करन क# व वसथ भ करग व
तमटट भर कर तवव दद प(र न ल क बनद करग ।(2) सथ तनष ज बहक व द तवरद पत व द ग स. 1 व 2 इस अमर स र क# ह दक व द क# दक न क स मन व सह र, लकम ब र क# न तल 6 क प न क बह व ह क ई न ल नह बन ग, न बनव ग । (3) वद क वद बब ह न रप 10000 तवरद पत . स. 1 व 2 ख रर दक ह । (4) म मल क# थ परररसथत 6 क दख हए पकक र न ख= अपन -अपन वहन करग ।"The appeals taken by the defendant Board against the
decree for injunction and by the plaintiff Roshan Lal against
denial of damages have been heard and decided together by
the Additional District Judge (Fast Track), Rajsamand by the
impugned judgment and decree dated 18.09.2007. The
learned Appellate Court has observed that though the plaintiff
has been complaining of nuisance because of the drain in
question but the said drain is running in front of the properties
of other persons too and nobody else has filed any suit. The
learned Appellate Court has referred to the statement of PW-3
Chatarlal on his admission that the discharged water earlier
8got collected at the Bus Stand and after construction of the
drain in question, such water does not get clogged and flows
down to the stream. The learned Appellate Court has also
referred to the statement of PW-4 Prakash Chandra admitting
the facts about earlier collection of water at the road, Bus
Stand and Tehsil and now the water flowing smoothly through
the drain in question.
The learned Appellate Court has observed that in view
of the statements of the plaintiff’s witnesses it is apparent that
the water clogging problem has been solved and clearly,
therefore, construction of the drain in question was necessary
to remove public nuisance. The learned Appellate Court has
held the construction of the drain in question proper and has
pointed out that the Court is not to interfere unless it were a
case of substantial injury to any person. In the present case,
according to the learned Appellate Court, it was wrong to
suggest that the Board had no authority to lay the drain and to
get the water discharged therefrom; and that the work
executed by the Board being in public interest called for no
interference by the Court. The learned Appellate Court
decided issues Nos. 1 and 2 against the plaintiff with the
following observations and findings:-
“इस रह सव व द द र पश स रक 6 क कथन6 स
ह सप9 रप स स तब ह ह दक इस न ल क
बनन स पहल प न तब ल तवभ ग क कतनष
9अतभ न क क ल , हस ल क ल , मरनसफ
क ल थ बस सटणS पर भर रह थ , र सस
वह क#=ड व गनदग रह थ और इस न ल क
बनन स अब वह कह भ प न इकटT नह ह ह
और दकस भ गह प न इकटT नह ह ह और
प न न ल म ह कर ह । इन थ 6 स ह
सप9 ह ह दक नगरप तलक द र र स न ल क
तनम दक ग ह, वह तनम दक न
आवश क थ । स व तनक गनदग क हट न क तल
न ल क तनम आवश क थ । पहल कतनष
अतभ न क ऑदफस स आग क ई न ल बन हई नह
थ , र सस प न खल म बह थ , सभ स व तनक
सथ न6 पर प न भर रह थ , अब इस न ल क बनन
स कह पर भ प न भर नह रह ह और स र प न
न ल म ह कर बह कर तनकल ह, ह थ सव
व द क स रक 6 न सव क र दक ह और पत व द क
भ ह कहन ह । इस रसथत म नगरप तलक द र
न ल क तनम दक ग ह, वह तनम क
सह प ह ह और न ल क ऐस क म
ब क दकस व त? क तवशष रप स कत नह
ह ह, ब क दखल नह करन = दह , ह तवत
क सवसमम तसद न ह । इस रसथत म ह कहन
दक नगरप तलक क व द क# म न क# ओर न ल
बन न क अत क र नह ह और न ह उ र स न ल म
प न बह न क अत क र ह, तबलकल गल ह ।नगरप तलक क कY त ल क दह म दक ग कY त ह और ऐस कY त म न ल क दखल नह दन = दह ऐस रसथत म नक# सख 1 व 2 वद क तवरद व पत व द ग क हक म तवतनर[ क# ह ।"The learned Appellate Court has observed in issue No.3
that the plaintiff has not suffered any substantial injury and his
personal inconvenience cannot be over and above the public
interest. As a result of the findings on issues Nos.1,2 and 3,
the learned Appellate Court has allowed the appeal preferred
by the defendant Municipal Board, Amet and has dismissed
10the appeal preferred by the plaintiff Roshan Lal; and has
dismissed the suit altogether.
Seeking to assail the judgment and decree passed by
the learned Appellate Court, learned counsel Mr. Pradeep
Shah has strenuously contended that the impugned judgment
and decree suffer from basic illegality where the sound legal
reasonings of the learned Trial Court have not at all been
considered by the learned Appellate Court; that the considered
judgment and decree of the learned Trial Court have been set
aside by the Appellate Court in a cursory manner without
considering the evidence on record and the law applicable to
the case; and that the Appellate Court has failed to consider
that the plaintiff-appellant has established by cogent evidence
that he is suffering nuisance because of new drainage system
that has caused him substantial injury.
Having given a thoughtful consideration to the matter
and having examined the impugned judgment and decree as
passed by the learned Subordinate Courts, this Court is clearly
of opinion that this second appeal does not involve any
substantial question of law and does not merit admission.
On its face, of course, the judgment constructed by the
Appellate Court appears to be laconic and gives an impression
as if the learned Appellate Court has not dealt with the
reasonings of the learned Trial Court but any question in that
11regard would not be a substantial question of law in the
present case because, to say the least, there had not been
any legal reasoning in the Trial Court’s judgment. All that is
made out from the lengthy discussion of the Trial Court is that
it has proceeded on entirely irrelevant considerations and in
disregard to the relevant principles applicable to the case, has
recorded such findings that are beyond and away from the real
questions in controversy, and has failed to consider that in any
case a decree for injunction cannot be result of its findings.
The decree for injunction as issued by the learned Trial Court
could not have maintained even if all its finding were kept
intact. In this view of the matter, mere shortage of words or
want of detailed discussion in the Appellate Court’s judgment
does not lead to any substantial question of law. On the
substance and merits of the case, the conclusion reached by
the learned Appellate Court is in accord with the relevant
principles applicable to the case.
In relation to the findings on issues Nos. 1 and 2, the
discussion of the learned Trial Court has gone too far beyond
and away from the real questions. The learned Trial Court has
referred to the case of the plaintiff that earlier the discharge
had been from and through a different place and for proper
management of such discharge, construction of a culvert was
under contemplation; and has proceeded to pose questions on
12the correctness and justification of the decision of authorities
concerned in not constructing the culvert that was proposed
once; and has also cursorily referred to the fact of stay order
passed by the Additional Collector operating; and thereafter,
on the basic question if the defendants had no authority to
construct a drain at the place in question, the learned Trial
Court has stated the opinion that the defendants do not
appear to have exercised the powers properly! The learned
Trial Court has concluded that construction of the drain at the
place in question is wanting in justification and in sufficiency of
cause. Such findings fall too short of real questions as posed
in issues Nos.1 and 2 i.e., whether construction of the drain in
question was unauthorized. The learned Trial Court has,
instead, entered into the decision making process of the
defendants and reached the finding that it was not the proper
exercise of powers.
The learned Trial Court though has noticed the
provisions of Rajasthan Municipalities Act, 1959 including
Section 175 but has failed to appreciate that it is lawful for the
Board for the purpose of carrying out a drainage system to
carry any drain, sewer, conduit etc. through across or under
any street; and the Board has the power and authority to
construct a new drain in place of existing drain and to alter any
drain. In what manner and how a drainage system should be
13laid or any particular drain should be altered are all the
matters essentially within the domain of the Board concerned
and it was not the subject-matter of suit before the learned
Trial Court that sufficiency of reasons for construction of the
drain at a particular place be also examined.
In the present case, the fact that earlier obtainable
position regarding flow of discharged water had been causing
clogging problems is not in dispute and is rather admitted by
the plaintiff’s own witnesses. The matter required the attention
of the Municipal Board and a proper drainage system was
required to be provided. It is also clear, again as admitted by
the plaintiff’s own witnesses, that with construction of the
disputed drain, the clogging and other related problems have
been solved and the discharged water flows smoothly in and
from the drain in question. In the face of the evidence
available on record, as discussed by the learned Appellate
Court that admittedly the disputed drain has served the public
cause, this Court is unable to find any justification wherefor
any injunction would be issued against the Board in this
matter.
The approach of the learned Trial Court is demonstrably
erroneous; and rather, the judgment of the learned Trial Court
suffers from self-contradictions. Though the plaintiff stated the
grievance against the drain in question while imputing motives
14on the defendant No.2, the Executive Officer of the Municipal
Board, the learned Trial Court, however, specifically rejected
such an allegation on the intentions of the defendant No.2.
Then, the plaintiff suggested himself having suffered loss and
the drain causing him nuisance. The learned Trial Court has
not returned any categoric finding on the aspect of nuisance
but, as noticed, has rejected the case for damages with the
finding that the plaintiff has not been able to show substantial
loss. (vide the findings of Trial Court on issue No.3 as
reproduced above). With such findings, the suit of the plaintiff
was bound to fail and ought to have been dismissed.
Though on the aspect of nuisance the Trial Court has
not recorded categoric finding in favour of the plaintiff but, if it
be inferred that the learned Trial Court assumed that the drain
in question causes some nuisance, it has yet not considered
the relevant principles applicable to the case. Per clause (f) of
Section 41 of the Specific Relief Act, 1963, an injunction
cannot be granted to prevent, on the ground of nuisance, an
act of which it is not reasonably clear that it will be a nuisance.
It has nowhere been the finding of the learned Trial Court that
the plaintiff was able to make out a reasonably clear case that
the act in question is of nuisance. The Board, when acting as
a public body and working under the statute and in public
interest, the presumption would be that its acts and actions are
15in accord with the statutory provisions and a Court would not
interfere with such exercise of powers unless the Board is
shown to have acted in an arbitrary or oppressive manner or
when the action could be said to be actuated by improper
motive. No such case being made out against the defendants,
no injunction could have been issued on the ground of
nuisance that the plaintiff attempted to suggest.
The learned Appellate Court has been justified in
pointing out that unless a case of substantial loss is made out,
there is no justification for the Court to interfere in the work
carried out by the Board in public interest.
In the case of Muhammad Mohidin Sait Vs. The
Municipal Commissioners for the city of Madras: (1901) 25
Madras 118 the plaintiff sued for an injunction for restraining
the Municipal Commissioners of Madras from using a plot of
land acquired by them as a burial and burning ground on the
allegation that his premises had become unhealthy and unfit
for residential purpose, and it caused loss to the value of his
property. It was noticed by the Court that though there was
some evidence that the burning and burial ground was to
some extent a source of nuisance to any one who occupied
the plaintiff’s premises and that market value of the premises
had depreciated but the Court held that use of a place
dedicated for communal purposes of cremation in a way which
16was neither negligent or unreasonable and which was not
calculated to aggravate the inconvenience necessarily incident
to such an act, does not amount to an actionable nuisance. In
the lead judgment, Sir Arnold White, Hon’ble the Chief Justice,
quoted the following dictum with approval,-
” It cannot be laid down as a legal proposition or
doctrine, that anything, which under any
circumstances, lessens the comfort or endangers
the health or safety of a neighbour, must
necessarily be an actionable nuisance.”And, Hon’ble Justice Moore in his concurring opinion
further pointed out,-
“The plaintiff in order to be entitled to either an
injunction or damages must show that the injury
suffered by him is not merely nominal but real and
substantial.”
In the present case, the approach of the learned Trial
Court in first of all examining the question if the defendants
have been able to show justification for construction of the
drain at the particular place itself suffers from the fundamental
error of angle of approach. Then, the learned Trial Court has
obviously omitted to consider the principles governing grant of
injunction on the ground of nuisance; and has omitted to
consider that the plaintiff failed to make out a case of
actionable nuisance and that the allegations of the plaintiff
were at best of a complaint of such nuisance that is incidental
17to a drain and when pitted against the other requirements of
public convenience, prayer for injunction as made in this case
could only have been rejected being related to inactionable
nuisance.
This Court is unable to appreciate that a decree for
mandatory and perpetual injunction was passed by the
learned Trial Court against a local body in relation to a work
carried out under its statutory powers and in discharge of its
duties despite there be no finding on any of the relevant
aspects wherefor such injunction could have been issued. The
decree as passed by the Trial Court cannot sustain itself; and
being squarely contrary to the legal principles applicable to the
case, was required to be reversed. The learned Appellate
Court has been justified in doing so. There is no ground for
interference.
This second appeal fails and is, therefore, dismissed
summarily.
(DINESH MAHESHWARI), J.
MK
