Dismissed

Smt Krishna Devi v. Public Works Department and Ors.

Rajasthan HC10 May 2018CW/5351/2018

Case brief

AI extract

What is this about?

This order dismisses a petition seeking review of interlocutory orders rejecting a temporary injunction application. The High Court held that concurrent findings of fact by lower courts, based on local inspection reports, cannot be disturbed under Article 227 unless ex-facie perverse. Discussed judicial review standards for interim orders and encroachment disputes.

What did the court decide?

Petition dismissed; interim orders remain in force based on concurrent findings of fact by lower courts.

Smt Krishna Devi Vs Public Works Department… — Civil Procedure and Limitation | Rajasthan HC (2018)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

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AT JAIPUR BENCH

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ORDER

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Smt. Krishna Devi W/o Shri Biharilal, aged 54 years, by caste Brahmin, R/o Ward No.10, Nagarpalika, Tehsil Surajgarh, District Jhunjhunu.

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Public Works Department through Executive Engineer, Khetri, District Jhunjhunu.

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Public Works Department through Assistant Engineer, Surajgarh, District Jhunjhunu.

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Rajasthan State Government through District Collector Jhunjhunu.

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Nagarpalika Surajgarh through Exeuctive Engineer Surajgarh, District Jhunjhunu.

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Kanahia Lal S/o Pushkar Lal, aged 62 years, by caste Mahajan, R/o Ward No.11, Surajgarh, Nagarpalika Surajgarh, Tehsil Surajgarh, District Jhunjhunu, Rajasthan.

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--- Respondents.

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Date of Order: May 10th, 2018.

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PRESENT

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HON'BLE MR. JUSTICE ALOK SHARMA

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Mr. O.P. Jhajharia, for the petitioner.

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BY THE COURT :

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The petitioner-plaintiff (hereafter `the plaintiff') is aggrieved

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of the order dated 22-8-2017 passed by Civil Judge Pilani, District

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Jhunjhunu, dismissing her application under Order 39 Rules 1&2 CPC, as also the affirming order dated 23-1-2018 passed in Miscellaneous Appeal by the Additional District Judge Chirawa, District Jhunjhunu.

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The case set up in the suit for permanent injunction laid by the plaintiff as also in the accompanying application under Order 39 Rules 1&2 CPC was that on 18-3-1998 she had purchased land for a shop from the defendant No.5, to whom the land was allotted by Thikana Bisau on 18-2-1948 by a registered sale deed. Thereafter she obtained the necessary building permission from the Municipality Surajgarh on 13-4-1999. Following the construction, she started running her business of sweets under licence from the Municipality obtained on 28-4-1999. On the defendant No.1 issuing a notice on 6-6-2017 for removing the plaintiff's shop allegedly an encroachment for the purpose of constructing a road “Gaurav Path”, she had no option but to file a suit for permanent injunction along with an application for temporary injunction. The defendant No.1, the Public Works Department was sought to be restrained by a temporary injunction in the first instance.

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On service of summons, the defendants No.1 to 3 filed reply to

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the application under Order 39 Rules 1&2 CPC and submitted that shop constructed was an encroachment on a demarcated road. It was submitted that as per Government's circular issued in the year 1980 on both side of a village road in an area of 12 meters no construction could be raised. As per report of the Site Commissioner the shop was built in the prohibited area and hence was liable to be

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removed for construction of a public road.

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The defendant No.4, Nagar Palika Surajgarh, filed a reply to the Order 39 Rules 1&2 CPC application stating building permission was obtained by the plaintiff by placing on record fake documents and supported the case of defendants No.1to3.

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The trial court considering the government's circular with regard to a notified village road being kept open 12 meters on both sides and relying on the judgment of the Apex Court in the case of Mahadeo Savalram Shelke Vs. Pune Municipal Corporation [(1995)3 SCC 33] wherein it was held that where injunctions are sought the court should necessarily consider the effect on public purpose, found no prima facie case in favour of the plaintiff nor the balance of convenience and dismissed the application for temporary injunction by the impugned order dated 22-8-2017. The appellate court has affirmed the said order on 23-1-2018.

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Heard counsel for the plaintiff and perused the impugned orders passed by the courts below.

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Counsel for the plaintiff has not been able to point out any perversity or illegality in the impugned orders. The conclusions of

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the courts below that the plaintiff constructed the shop in dispute contrary to the approved building plan sanctioned by the Nagar Palika Surajgarh, are based on findings of fact arrived at on objective consideration of the material on record and accompanying affidavits as also the report of the Commissioner appointed for local inspection under Order 39 Rule 7 CPC. The Hon'ble Supreme Court in the case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar [(1999)3 SCC 722] has held that the concurrent findings of facts even if erroneous cannot be disturbed by the High Court under Article 227 of the Constitution of India. Indeed the jurisdiction of this court under Article 227 of the Constitution of India is to be exercised in exceptional cases vis-a-vis interlocutory orders only when they are ex-facie perverse, vitiated by misdirection in law or otherwise suffer from jurisdictional error of the courts below. Finding of fact at interlocutory stage are ordinarily not a matter in which this court invokes its superintending jurisdiction.

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The petition is therefore without force and hence dismissed.

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arn/

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All corrections made in the order have been incorporated in the order being emailed.

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Arun Kumar Sharma, Private Secretary.

Smt Krishna Devi v. Public Works Department and Ors.

Case brief

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Smt Krishna Devi v. Public Works Department and Ors.

Case brief

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