SCA/28846/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 28846 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= VIMLABEN HARKISHANBHAI KHATRI - Petitioner(s) Versus DHIRUBHAI BHANKIBHAI CHAUHAN & 4 - Respondent(s) ========================================================= Appearance : MR CJ VIN for Petitioner(s) : 1, MR RAVINDRA SHAH for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2, NOTICE UNSERVED for Respondent(s) : 3, MR GUNVANT R THAKAR for Respondent(s) : 4, MR RD DAVE for Respondent(s) : 5, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 19/02/2008 ORAL JUDGMENT SCA/28846/2007 2/8 JUDGMENT 1. Rule. Mr.Shah appears for respondent No.1. Respondent No.2 Society has not appeared though notice is served. The presence of respondent No.3 is not required in view of the declaration made by Mr. Thakar, learned counsel for respondent No.4 that respondent No.4 has purchased the property from respondent No.3. Mr. Thakar has appeared for respondent No.4 and Mr.Dave for respondent No.5. The advocates appearing for the concerned respondents waives service of Rule. 2. The short facts of the case appears to be that the petitioner is an occupant of Tenement No.B- 59 in respondent No.2 Society (hereinafter referred to as “the Society”) and respondent No.1 is the occupant of Tenement No.B-64 and respondent No.4 is occupant of Tenement No.B-63. 3. It appears that the suit was filed by the respondent No.1 before the Nominee being Lavad Case No.504/00 for restraining the society and the other occupants in laying down of the drainage line from AUDA and to prohibit the disturbance by any members of the Society. The nominee tried the suit and ultimately, passed the award and in the said award, the injunction has been granted restraining the Society and any other members if the drainage line is taken from Tenement No.B-59 and it was also observed that the plaintiff is entitled to take the drainage SCA/28846/2007 3/8 JUDGMENT line from Tenement No.B-59. The matter was carried in the revision before the Tribunal and the Tribunal as per the order dated 02.11.2007, dismissed the appeal, but further clarified that if the plaintiff takes connection of drainage line from Tenement No.B-59, if any damage is caused to the property, the same shall be compensated by orig. plaintiff. It is against the said order of the Tribunal, the present petition by the petitioner who is occupant of Tenement No.B-59. 4. Heard Mr.Vin for petitioner. Mr.Shah for respondent No.1. Mr. Thakar for respondent No.4 and Mr.Dave for respondent No.5. 5. It appears that in the suit, there was no prayer for declaration for taking drainage connection from Tenement No.B-59 and the nominee has granted a different relief, than the relief claimed by the plaintiff in the plaint. The Tribunal has also lost sight of the said aspect. One course available to this Court was to quash and set aside the award and order of the lower authority and then remand the matter, but as the matter was pertaining to drainage line, and as it is the contention of the respondent No.1 that at present, there is no drainage line whatsoever and such situation may result into hygienic problem, I have found it proper to examine the matter on the basis of the record available and SCA/28846/2007 4/8 JUDGMENT to consider the matter. 6. Keeping in view the aforesaid aspects, this Court had passed an order on 17.01.2008 as under: “1. Leave to join Ahmedabad Urban Development Authority (AUDA) as party respondent. 2. Notice to the newly added party with the direction to the respondent AUDA to prepare a sketch of the existing drainage connection and the possible drainage connection for connecting the drainage line of the concerned respondent i.e. Tenement No.B/64. AUDA shall also report to this Court about the convenience of the drainage line to be connected to Tenement No.B/64, whether from Tenement No.B/59 of the petitioner or Tenement No.B/63 of respondent No.4. 3. There is no proof of service of notice to respondents No.3 and 4. Therefore, fresh notice to respondents No.3 and 4. Notice to all parties is returnable on 30.1.2008.” 7. In response to thereto, the Ahmedabad Urban Development Authority (AUDA) has filed the affidavit and the sketch is also produced at page 48. It appears that it is an admitted position that the occupant of Tenement No.B-63 gas a separate drainage connection with the manhole of AUDA and the said Tenement No.B-63 is just adjacent to Tenement No.B-64. So far as Tenement No.B-59 is concerned, its drainage connection is at the end of all tenements from A-2 to A2, B-62 to B61, B-65, B-60 to B-59. SCA/28846/2007 5/8 JUDGMENT Therefore, since there is a separate connection permitted by AUDA from B63 and no other drainage line connected therewith. Even the AUDA has also opined that the line can be connected from Tenement No.B-64 to B-63. 8. Considering the sketch and keeping in view the fact that no individual rights cannot be claimed by any member of the society over the drainage line, and as B-64 is adjacent to B-63, from where a separate independent drainage connection is available, I find that the respondent No.1- orig. Plaintiff can be permitted to connect his drainage line with the drainage line of Tenement No.B-64, which is ultimately connected by separate connection with the manhole of the main drainage line of AUDA. 9. Mr. Thakar, learned counsel for the occupant of Tenement B-63, respondent No.4 herein, submitted that his client had spent the amount of about Rs.7,000/- towards laying down of the separate drainage line and he also contended that AUDA had provided the condition that no other connection shall be linked up with the said drainage line. He therefore submitted that the occupant of Plot No.B-64, respondent No.1 herein, be not permitted to connect his drainage line with the drainage line located in Tenement No.B-63. He also submitted that there will be future maintenance problem in case there is SCA/28846/2007 6/8 JUDGMENT cleaning or overflowing or repairing of the said line and therefore, it was resisted by Mr. Thakar, learned counsel for respondent No.4. 10.In my view, if the connection is to be ordered for drainage line by this Court, the restriction, if any, put by AUDA even otherwise would not operate as a bar nor is the statement of AUDA that such line cannot be connected. On the contrary, affidavit of AUDA supports the connection. So far as expenses already incurred by respondent No.4 is concerned, it can be separately taken care of since the drainage line is also to be used by occupant of B-64 and proper care can also be taken to see that there is no maintenance problem in future. 11.Mr.Shah, learned counsel appearing for respondent No.1 declared before the Court that his client is ready to deposit the amount as may be ordered by this Court. However, the learned counsel appearing for respondent No.1 as well as Mr.Thakar for respondent No.4 submitted that the work be supervised by the officers of AUDA with a view to avoid dispute in future. 12.In view of the aforesaid, I find that the following directions shall meet with the ends of justice: A) The respondent No.1-orig. Plaintiff shall make the payment of Rs.5,000/- towards the SCA/28846/2007 7/8 JUDGMENT expenses already incurred by respondent No.4 for laying down of drainage line and Rs.2,500/- towards maintenance expenses in future of the said drainage line, total Rs.7,500/-, by Demand Draft to respondent No.4. B) After the aforesaid amount is paid by the respondent Nos. 1 to respondent No.4, it would be open to respondent No.1 to connect his drainage line with drainage line of respondent No.4, occupant of tenement No.B- 63. The levelling and the supervision shall be marked and identified by the officers of AUDA. C) AUDA shall also depute some officer for such purpose as and when intimated by the respondent No.1 and the expenses if any shall be borne by respondent No.1. D) The drainage line after connected from tenement No.B-64 to B-63 to the main drainage line of AUDA, shall be used jointly by the occupant of both the tenements of B- 64 and B-63 as drainage line and in future, if any additional expenses for cleaning, maintenance or repairing etc. is to be borne, the same shall be shared at 50% by both the occupants. E) Any expenses for laying down the drainage SCA/28846/2007 8/8 JUDGMENT line within the boundary area or backside of tenement No.B-63 shall additionally be borne by the respondent No.1 including that of restoration of flooring etc. thereof. 13.The order passed by the Nominee and the order passed by the Tribunal shall stand modified to the aforesaid extent. 14.Petition is partly allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs. (JAYANT PATEL, J.) *bjoy