High Court of Rajasthan dismissed a writ petition challenging a trial court order allowing a neighbour to be impleaded in a suit against the Municipal Board for regularisation of encroachment on a public lane, holding that the neighbour was a proper party.
Writ petition dismissed; trial court order allowing impleadment upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. CIVIL WRIT PETITION N0.5647/2015
Ramesh Kumar
VS.
Municipal Board, Suratgarh & Anr.
Date of Order : : 18.2.2016
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Abhinav Jain, for the petitioner/s.
BY THE COURT:
This writ petition has been filed by the petitioner against the order dated 14.10.2014 passed by the trial court, whereby the application filed by the respondent No.2 under Order I, Rule 10 CPC has been allowed.
The petitioner filed a suit for permanent and perpetual injunction against the Municipal Board, Suratgarh inter-alia seeking regularisation / allotment of land ad measuring 5' x 40' on the Northern side and 6' x 65' on the Western side of his plot ad measuring 40' x 60' and perpetual injunction against the Municipal Board from demolishing the construction raised by the petitioner on the said land ad measuring 5' x 40' and 6' x 65'.
During the pendency of the suit, the respondent N0.2 filed an application for being impleaded as party. It was contended in the application that the plaintiff has filed a suit for regularisation of his encroachment on the public lane; the applicant is directly
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effected by the relief sought as his residential house is in the same lane and on account of the encroachment made by the plaintiff, the traffic is effected and heavy vehicles cannot move on the said road; repeated attempts made by the applicant with the Municipal Board have gone in vain and the encroachment has not been removed. The Municipal Board was not performing its duties and therefore, the applicant was seeking impleadment as party in the suit.
The application was resisted by the petitioner. It was interalia submitted that the petitioner has not encroached on any part of the lane and he has filed the suit for regularisation of the strip of land next to his house. The construction has taken place in the symmetry and the complaints have been made on account of vengeance; the plaintiff is dominus litis and prayed that the application be dismissed.
After hearing the parties, the trial court came to the conclusion that from perusal of the suit and the application, it is apparent that on the one side of the lane, there is house of plaintiff and on the other side, there is house of the applicant and on the complaint of the applicant, the Municipal Board has taken action. If the applicant was to bring a fresh suit, the same would result in multiplicity of litigation, for which there is no justification, as the allegation pertains to encroachment on the public lane, which is resulting in obstruction of the traffic, it would be justified in impleading the applicant as party and consequently, allowed the application.
It is submitted by learned counsel for the petitioner that
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the trial court was not justified in accepting the application filed by the applicant. It was submitted that the complainant has no locus standi in the proceedings, which are initiated by the effected party against the person taking action on such complaint. The plaintiff is dominus litis and he cannot be forced to contest against a party against his wishes, presence of the applicant is not necessary for the proper disposal of the suit. It was prayed that the order impugned deserves to be quashed and set-aside.
Reliance was placed on 1992(2) SCC 524 : Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay & Ors. ; 1991(1) WLC (Raj.) 403 : Jai Kishan v. Jyoti Bal Niketan & Ors. ; AIR 1988 Rajasthan 128 : Girdhari La1 v. Nagar Parishad & Anr.; (2012) 4 SCC 407 : Ravi Yashwant Bhoir v. District Collector, Raigad & Ors.; (2012) 8 SCC 384 : Vidur Impex and Traders Private Limited & Ors. v. Tosh Apartments Private Limited & Ors.; 2013(5) SCC 397 : Thomson Press (India) Limited v. Nanak Builders and Investors Private Limited & Ors. ; Ram Swaroop Mewara v. State of Rajasthan & Anr. : S. B. Civil Writ Petition No. 1251/2011 decided on 2.2.201 1; and Mrs. Yasodha & Anr. v. Prabbakaran & Ors. : Civil Revision Petition (PD) No. 763/2007 decided on 31.10.2007 by Madras High Court.
I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record.
The petitioner filed a suit for mandatory and perpetual injunction against the Municipal Board. Admittedly, the petitioner
is seeking relief in the suit qua the land which is not part of his plot as on the Northern side, he has raised construction on 5' x 40' and on the Western side, he has raised construction on 6' x 65' extra land which can only be te.rmed as an encroachment on the public land. In para 6 of the plaint, the petitioner has made following allegations : -
A perusal of the above allegations clearly reveal that the petitioner has made specific allegations against the applicantOmprakash Nadhani and has alleged vengeance on his part and that he has made complaints based on false facts. It is also not in dispute that the applicant has got his residential house just opposite the petitioner's house across the lane and he has made specific allegations in the application regarding obstruction in the lane on account of the encroachment made by the petitioner.
The fundamental requirements for impleading a person as a party to the suit are that either the person must be a necessary party or a proper party to the litigation. A necessary party is one in whose absence the suit cannot proceed / relief prayed for cannot be granted and the suit is liable to be dismissed for such non-joinder. However, a proper party is such whose presence though may not be necessary, however, the presence of the party may facilitate such just disposal of the suit and in such a situation, the Court if the circumstances exist can
exercise powers for impleading in such a person, who is a proper party to the suit.
As noticed herein-before, the allegations pertain to the encroachment on a public lane and the applicant cannot be said to be totally stranger or unaffected by the said encroachment as admittedly he has got his house in the same lane across petitioner's own house and therefore, it cannot be said that the respondent No.2 applicant is a busy body in the present litigation and the exercise of jurisdiction by the trial court in this regard is vitiated.
The trial court has held, based on the suggestion made by the plaintiff that the applicant can bring a fresh suit, that the same would result in multiplicity of litigation. The said aspect by itself cannot be a reason for impleadment of a party, however, it also cannot be said that the said aspect is not germane.
The matters per;taining to enforcement of building bye-laws and specially those building bye-laws of local authorities, which are meant for convenience of the neighbours, have to be viewed from a different angle, inasmuch as, the suits which are filed against a public authority seeking regularisation of violation made of the building bye-laws, for example construction in the set-back or narrowing down the lane by encroaching on the public lane, the neighbours, who are directly effected by such suits which seeks regularisations, cannot be left high and dry on account of decrees passed against the local authorities, who in the first place permit such violation of building laws and then based on the provisions in their statutes are willing to regularise
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the same oblivious of the effect on the neighbours and the persons for whose convenience the building bye-laws were framed in the first instance and therefore, in such cases a different approach from the standard approach which is taken while dealing with the application under Order I, Rule 10 CPC needs to be taken.
In the present case, admittedly encroachment on the public lane has been made and if the suit filed by the petitioner against the Municipal Board is permitted to proceed in absence of the applicant and the Municipal Board during the pendency of the suit by accepting the amount of regularisation enters into a compromise and/ or decide not to contest the suit, the applicant, who is the effected party by such encroachment / regularisation would then be left with no remedy qua the encroachment and therefore, the presence of such a party cannot be said to be undesirable so as to require interference under Article 227 of the Constitution of India.
So far as the judgments cited by the learned counsel for the petitioner are concerned, there is no dispute about the principles laid down in the said judgments. However, as noticed herein-before, the nature of litigation in hand requires a different approach. The principles laid down are well defined and does not require reiteration.
In view of the above discussion, the writ petition has no substance, the same is, therefore, dismissed.
(ARUN BHANSALI), J.
2 issues framed by the court
Whether an applicant adjoining a public lane affected by a petitioner's encroachment is a proper party to a suit seeking regularisation of such encroachment against the Municipal Board requiring imple
Whether judicial implication under Article 227 of the Constitution of India is warranted to allow impleadment of a neighbour in a civil suit concerning regularisation of encroachment on public land.
Colour shows how this judgement treated each authority
Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay & Ors.Referred¶21
1992(2) SCC 524 : Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay & Ors. · Who else cites this
Jai Kishan v. Jyoti Bal Niketan & Ors.Referred¶21
1991(1) WLC (Raj.) 403 : Jai Kishan v. Jyoti Bal Niketan & Ors.
Girdhari Lal v. Nagar Parishad & Anr.Referred¶21
AIR 1988 Rajasthan 128 : Girdhari Lal v. Nagar Parishad & Anr. · Who else cites this
Ravi Yashwant Bhoir v. District Collector, Raigad & Ors.Referred¶21
(2012) 4 SCC 407 : Ravi Yashwant Bhoir v. District Collector, Raigad & Ors. · Who else cites this
Vidur Impex and Traders Private Limited & Ors. v. Tosh Apartments Private Limited & Ors.Referred¶21
(2012) 8 SCC 384 : Vidur Impex and Traders Private Limited & Ors. v. Tosh Apartments Private Limited & Ors. · Who else cites this
Thomson Press (India) Limited v. Nanak Builders and Investors Private Limited & Ors.Referred¶21
2013(5) SCC 397 : Thomson Press (India) Limited v. Nanak Builders and Investors Private Limited & Ors. · Who else cites this
Ram Swaroop Mewara v. State of Rajasthan & Anr.Referred¶21
Ram Swaroop Mewara v. State of Rajasthan & Anr. : S. B. Civil Writ Petition No. 1251/2011
Mrs. Yasodha & Anr. v. Prabbakaran & Ors.Referred¶21
Mrs. Yasodha & Anr. v. Prabbakaran & Ors. : Civil Revision Petition (PD) No. 763/2007
2 provisions across 2 enactments
Ramesh Kumar
Municipal Board, Suratgarh
Omprakash Nadhani
Arun Bhansali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
