Civil Revision No. 911 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Civil Revision No. 911 of 2009 (O&M) Date of decision: 10.11.2009 Gurdayal ......petitioner Versus Jaidev and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.S.S.Godara, Advocate. for the petitioner. Mr.P.K.Ganga, Advocate, for the respondents. **** SABINA, J. The plaintiffs have filed a suit under Section 91 of the Code of Civil Procedure (‘CPC’ for short) for declaration to the effect that Khasra Number 411/1/1 and 407/102 situated in village Ding, Tehsil and Distt. Sirsa are places of Pir (Plat-Form) in front of shops of Mandi carved out by the then owner Harlal in then Khasra No.237 in the year 1937-38 and Khasra No.407/101 and 411/1/43, situated in Ding are the Road cum streets of this Mandi, means for the use of holders of plots of shops of Mandi carved out and sold to different Civil Revision No. 911 of 2009 (O&M) 2 persons including the plaintiffs and their predecessors in interest and defendants have no right to sell/transfer, aliens or create any charge upon them in any way or to encroach upon these khasra numbers and to raise any construction of any type except for the development of Pir or Road and with consequential relief of permanent injunctions, restraining the defendants from alienating/transferring or creating any charge over them khasra numbers in favour of any body else and also restraining them from raising any type of construction for those khasra numbers for ever and also for mandatory injunction, directing the defendants to demolish any construction made on any part of these khasra numbers if any and to vacate and restore the same for use of the plot holders of this Mandi at the costs of the defendants, on the basis of evidence of every description, oral and documentary. Notice of the suit was issued to the defendants. Vide the impugned order dated 15.1.2009, the application under Section 91 CPC was allowed by the trial Court and hence, the present revision petition, under Article 227 of the Constitution of India, has been filed by defendant No.1. Learned counsel for the petitioner has submitted that the dispute involved in the present case could not be described to be a case of public nuisance or wrongful affect likely to affect public. The dispute between the parties was rather of a private in nature and being a dispute between the vendor and vendee. In support of his arguments, learned counsel has placed reliance on the decision of Civil Revision No. 911 of 2009 (O&M) 3 this Court in Ram Parkash Manchanda v. Amin Chand and others 1983 The Punjab Law Reporter 589, wherein it was held as under:- “Under the common law, a person cannot institute a suit in respect of a public nuisance unless he proves that he has suffered special damage thereby. The section is an exception to that rule. It prescribes that the Advocate General, or two or more persons without proving special damage and with the leave of the Court, can file a suit for appropriate relief regarding a public nuisance. Under sub-section (2) an individual can also maintain a suit for relief regarding such nuisance by proving special damage. However, the Section is applicable to public nuisances and not to breach of individual right of a person. In the present case, the plaintiff has not filed a suit for removal or any public nuisance. Rather, he is claiming right for himself over a public street. Therefore, it is not necessary for him to prove special damage.” Learned counsel for the respondents, on the other hand, has submitted that the trial Court had rightly allowed the application as the acts of the defendants in threatening to alienate or create charge over the suit land would affect the plaintiffs as well as general public. The land in question was meant for the use of holders of the plot or shop of Mandi as well as general public. Civil Revision No. 911 of 2009 (O&M) 4 After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to the dismissed. Section 91 CPC reads as under:- “Public nuisances:- (1) In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted- (a) by the Advocate General, or (b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act. (2) Nothing in this section shall be deemed to limit or otherwise affect any right or suit which may exist independently of its provisions. The controversy involved in the present case is with regard to the property situated in between the shop/land owned by the plaintiffs and others and public road. The case of the plaintiffs is that in case the defendants sell, transfer, alienate or create any charge upon property which lies between the shops of the plaintiffs and the road, the plaintiffs as well as the public would suffer an irreparable loss. Khasra No.411/1/1 and 407/102 belonged to defendant No.1. Some of the land has been sold by the land owners Civil Revision No. 911 of 2009 (O&M) 5 to the plaintiffs as well as others. The case of the plaintiffs further is that there were platforms in front of shops of Mandi carved out by the owner Har Lal. The said platforms were to be used by the plot holders of the shops of Mandi including the plaintiffs and general public. The defendants had started raising construction on the plat forms. The case of the defendants is that, in fact, the vacant land in dispute was being used by the defendants and not by the plaintiffs or the general public. Both the sides are to lead their respective evidence in order to substantiate their pleas. Learned trial Court has allowed the application under Section 91 CPC after hearing the defendants. Whether the plaintiffs have got licenses to run the shops in disputes at this stage or not would be seen at the time of final disposal of the case. However, at this stage, learned trial Court rightly held that the present case involves a wrong to public at large as it is going to affect the persons who are using the property as a Mandi. Although the defendants have alleged that it was not a case where the property was not being used as a platform. Hence, the impugned order does not suffer from any material irregularity and illegality warranting interference by this Court. Accordingly, this petition is dismissed. (SABINA) JUDGE November 10, 2009 anita