( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 799 OF 2009 Sk. Mustak Sk. Sandu Kasai, R/o Qureshi Mohalla, Nandurbar APPELLANT VERSUS Sk. Masud Sk. Sandu Kasai, R/o Qureshi Mohalla, Nandurbar. RESPONDENT ..... Mr. R.R. Mantri, advocate for the appellant. Mr. A.S. Abhyankar, advocate holding for Mr. S.V. Natu, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 10th December, 2009] ORAL JUDGEMENT : 1. By consent, this appeal is being disposed of at the preliminary stage. Mentioned by learned counsel for the respondent and hence, taken on board. 2. The dispute lies in a narrow compass. The appellant is original plaintiff and is real brother of defendant. The houses of the parties are adjacent to each other. The plaintiff filed suit for removal of ( 2 ) encroachment which was allegedly made by the defendant on northern side open space abutting his house property bearing CTS No. 2766/A/2/2. The residential houses of the parties are situated in Kasai Mohalla area at Nandurbar. 3. The plaintiff’s case before the trial Court was that his way of access to the house is on northern side through an open space abutting to the road. He has right to use the said open space to approach his house property situated on southern side of the public road and that open space. The said public road is being used for egress and ingress to the house as well as for driving of bullock-carts, vehicles, etc. Somewhere in August, 1997, the defendant erected unauthorized construction of a shed on the open space admeasuring 10 feet x 20 feet abutting northern side of his house property. The plaintiff alleged that though he objected such unauthorized construction, yet, the defendant continued to carry out the work. The defendant has encroached over the open space which was being used for access to his house. Hence, he sought mandatory ( 3 ) injunction for removal of the alleged encroachment. 4. Defendant resisted the suit on the ground that the open space is not part of the public road. He asserted that the open space is beyond the northern public road and has no nexus with the use of road. He contended that there is a way available to plaintiff to approach his house, but he has constructed a shed for tethering of cattles therein. He contended that he never encroached over any land of the plaintiff. According to him, the plaintiff was residing separately during lifetime of their father, namely, Sk. Sandu. He alleged that the suit shed was constructed on the open space before about 30/40 years and, therefore, he has acquired prescriptive title. 5. The parties went over issues framed below Exh-52. They adduced oral and documentary evidence in support of the rival contentions. On merits, the trial Court decreed the suit. The first Appellate Court found that the suit was barred by limitation and as such, ( 4 ) dismissed the same by allowing the appeal of the defendant. 6. While admitting the second appeal, this Court formulated following substantial question of law : “Whether the plaintiff could be non-suited though it is held that the defendant has carried out construction on frontal road of northern side and the right of egress and ingress available to the plaintiff was thereby affected and hence, the removal of encroachment was warranted ?” 7. Heard learned counsel. 8. At the outset, it is pertinent to notice that the defendant (respondent) did not adduce any evidence regarding his ownership in respect of the open land which he claims to be sandwiched between the house property of the plaintiff and the public street. Nor any such evidence is adduced by the plaintiff. There is ( 5 ) no dispute about the fact that the Court Commissioner visited the houses and carried out measurement. The Court Commissioner submitted a map which indicates that on northern side of the plaintiff’s house, there is a shed. The Court Commissioner observed that the shed was erected in the Government land or road. The question is: “Whether the plaintiff could claim the relief of mandatory injunction for demolition of the unauthorized structure of the shed?” The first Appellate Court held that the plaintiff has no civil right to seek the relief for removal of encroachment. The first Appellate Court further held that the plaintiff suppressed certain material facts. It was further observed that the plaintiff did not enter the witness box and, therefore, adverse inference could be drawn against him. The first Appellate Court held that the defendant has acquired ownership rights by prescription. The first Appellate Court further ( 6 ) observed that the plaintiff was required to prove his case and he cannot be permitted to utilize discrepancies appearing from evidence of the defendant. Considering the conduct of the plaintiff, the delay in filing of the suit and the attending circumstances, the appeal was allowed and the judgement rendered by the trial Court came to be reversed. 9. There is no dispute about the fact that the Court Commissioner was appointed to visit the houses of the parties and locate the details of the unauthorized construction and the construction of the houses. The Court Commissioner supported the report. His report would show that measurement of both the house properties of the parties and the disputed shed was carried out in presence of both the parties and representatives of the Municipal Council. The Court Commissioner noticed that there was encroachment to the extent of the area occupied by the unauthorized construction made by the defendant. The map appended with the report (Exh-63) clearly reveals that the northern road was blocked by the construction done by the defendant. ( 7 ) 10. What transpires from the record is that the first Appellate Court came to the conclusion that there was no civil right available to the plaintiff to seek demolition of the unauthorized construction. It was found that the report of the Court Commissioner could not be regarded as sufficient. 11. Cumulative effect of section 75 and Order-XXVI Rule 10 of the Civil Procedure Code is that the report of the Court Commissioner forms part of the record. The topography of the disputed open space is conspicuous from the report and the map (Exh-63). It is undisputed that the defendant carried out the construction work without prior permission of the Municipal Council. 12. The first Appellate Court held that it was for the Municipal Council to take appropriate action and mandatory injunction could not have been issued unless it was revealed that the defendant has encroached upon any part of the public road. Mr. Natu would submit that the construction on the open space may be regularized if ( 8 ) the Municipal Council decides to condone the lapses. It is urged, therefore, that the mandatory injunction is improper remedy, particularly, when the alleged construction is standing on open place with which the plaintiff (appellant) has no right or concern. The counsel further submits that such mandatory injunction cannot be issued when the question of removal of the unauthorized construction falls within the domain of the competent authorities under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act. He seeks to rely on certain observations in “Sheo Narayan Singh and others v. Ambica Singh and others” (AIR 1970 PATNA 246) and “Muni Suvrat-Swami Jain S.M.P. Sangh v. Arun Nathuram Gaikwad and others” 2007 (2) Mh.L.j. 8 (S.C.). 13. Core issue involved in this second appeal is whether or not a citizen can approach the civil Court and seek relief against unauthorized construction. It is undisputed that the construction of the shed erected by the defendant is without any authority. On perusal ( 9 ) of the report of the Court Commissioner and the map (Exh-63), it is explicit that the part of frontal portion of the open space in front of the plaintiff’s house is occupied by the construction of shed. The plaintiff may not have any title in respect of the said open space. Yet, he has legal right to approach the Court when the right to use the public road is curtailed. The defendant too failed to adduce any evidence to prove his prescriptive title in respect of the open space in question. The unauthorized structure erected by the defendant may not be on the part of the public road, yet, the free access to his house and full use of the northern public road is substantially affected due to the said construction. In case of “Sheo Narayan Singh and others” (supra), Full Bench of Patna High Court held that section 23 of the Limitation Act would not apply when the obstruction to right of way causes complete ouster. In “Muni Suvrat-Swami Jain S.M.P. Sangh” (supra), the Apex Court held that section 351 of the Bombay Municipal Corporation Act obliges the Municipal Commissioner if the construction of any ( 10 ) building or the execution of any work is commenced contrary to the provisions of the Act, to give notice requiring the person doing the work to show cause why it should not be pulled down. 14. The disturbance in the full enjoyment of the northern road would give cause of action to the plaintiff to seek the remedy for removal of encroachment. There is no substantial reason coming forth as to why the plaintiff could be non-suited. The first Appellate Court held that the plaintiff has no locus standi to get removed the structure raised by the defendant. In “Shri Sidharam M. Yanagandul & another v. State of Maharshtra and another” 2007 (2) ALL MR 317, a Single Bench of this court held that whether a structure is authorized or unauthorized, is to be decided by the competent authority . 15. In “Gangadhar Narayanrao Wat & others v. State of Maharashtra and others” 2006 (1) ALL MR 241, a Division Bench of this Court observed that any ( 11 ) encroachment on public roads and foot-paths cannot be legalized even if there is a policy of the State Government. The Division Bench analyzed import of section 189 of the Maharashtra Municipalities Act, 1965. It is held that the policy of the Government cannot prevail over the provisions under the Statute. It is further observed that the public roads and foot-paths must be free from all encroachers. In the present case, however, there appears no encroachment over the public road, but there is encroachment on open space adjoining the public road. The case of “Jiwanlal s/o Pokardas Motwani v. State of Maharashtra and others” 2004 (1) Mh.L.J. 265 is more relevant to the fact situation of the present case. It is observed that where an encroachment is made on public road, which is meant for free passage within the local area, inconvenience and wrong to the public must be presumed. It is observed that the plaintiff even though not in a representative capacity, need not show damages caused to him in order to obtain relief. ( 12 ) 16. In “The Municipal Board, Manglaur v. Mahadeoji Maharaj” (AIR 1965 S.C. 1147), it is observed that there was no right in the Municipality to put up structures on vacant site which are not necessary for maintenance or user of it as a pathway. The observations in “Down Mangor Valley, Residents Welfare Association and another v. Mormugao Municipal Council, Goa and others” (AIR 2002 BOMBAY 258, are significant. It is observed that where an open space is set aside as open space by the Municipal Council, the neighbours or affected public have right to file petition. It is observed that mere omission of the original owner of the plot to file complaint to the Municipality is not material in such a case. 17. One cannot be oblivious of the ground realities. At a times, the unauthorized structures mashrum in various parts of the city are continued under influence of local ward members or the Municipal officers. In such a case, when a neighbouring house owner finds inconvenience in the use of his house ( 13 ) property, he will have right to sue for demolition of the unauthorized structure. There is absolutely no right available to the defendant to continue the encroachment and the enjoyment of unauthorized structure. The first Appellate Court seems to have lost sight of the principle “ubi jus ib remedium” (where there is wrong, there is remedy). 18. Considering the foregoing discussion, I have no hesitation in holding that the plaintiff has legal right to seek negative covenant. The unauthorized structure of the defendant cannot be protected under the guise that the land is not owned by the plaintiff or that the open space is on northern side of the public road. The nuisance caused to the plaintiff may be of direct nature, or indirect nature. It would not, however, enure to benefit of the defendant. 19. For the reasons aforestated, the second appeal is allowed. The impugned judgement is set aside. The judgement of the trial Court is restored in its place. ( 14 ) 20. At request of learned counsel Mr. Abhyankar, this judgement is kept in abeyance for period of four months. [ V.R. KINGAONKAR ] JUDGE NPJ/sa799-09