IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.298 of 2000 Date of decision : 26.4.2010 ____________________________________________________ Municipal Corporation, Shimla …Appellants. Versus Ganeshu Devi and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the appellant : Mr. K.L. Bali, Advocate. For the Respondents : Mr. Bhupinder Kanwar, Advocate Kuldip Singh, Judge(Oral) The Municipal Corporation has filed this appeal against judgment, decree dated 1.4.2000 passed by learned District Judge, Shimla in Civil Appeal No.100-S/13 of 1998, affirming judgment, decree dated 26.2.1998 passed by learned Sub Judge(3), Shimla in Case No.752/1 of 96/93. 2. The facts in brief are that respondents No.1 and 2 had filed a suit for permanent prohibitory injunction restraining the Municipal Corporation, Shimla (for short Corporation) from laying any sewerage pipe lines through their land measuring 8-9 Bighas comprised in khasra Nos. 421, 425, 590, 615, 589 and 705, situate in Mauja Kaithu, Tehsil and District Shimla. The prayer for mandatory _____________________________ whether reporters of Local Papers may be allowed to see the Judgment? Yes 2 injunction was also made in the plaint to remove the sewerage pipe lines laid on a portion of the suit land. 3. The further case of the respondents No.1 and 2 is that they and proforma respondent No.3 are owners in possession of the aforesaid land. The Corporation without any right, title or interest on the said land intended to lay sewerage lines. The respondents No.1 and 2 objected for laying the sewerage line but the Corporation succeeded in laying the pipe lines in some portion of the suit land comprised in khasra No.705. In these circumstances, the suit was filed for permanent prohibitory as well as mandatory injunction. 4. The appellant-corporation had contested the suit, the objections of maintainability, lack of notice under Section 392 of the Himachal Pradesh Municipal Corporation, Act, 1994 (for short Act) were taken. The ownership of respondents No.1 and 2 on the land was also denied. The Corporation took the plea that Corporation has right to lay sewerage pipe lines over, on, in and along any immovable property and for this purpose support of Section 177 has been taken. 5. The learned trial Court had framed the following issues:- 1. Whether the plaintiff is entitled to the relief of permanent injunction as prayed? OPP 2. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed? OPP 3. Whether the suit is not maintainable? 4. Whether the suit is bad for want of notice under Section 392 of H.P.M.C Act? OPD 5. Relief. 3 The issues No.1 and 2 were answered in affirmative, issues No.3 and 4 were answered in negative and suit was decreed for prohibitory and mandatory injunction by learned Sub Judge on 26.2.1998. The learned District Judge on 1.4.2000 has affirmed judgment, decree dated 26.2.1998, hence, Corporation has come in second appeal. The appeal has been admitted on the following substantial question of law:- “Whether both the courts below have misconstrued and misinterpreted the provisions of Section 177 and 199 of the H.P. Municipal Corporation Act, 1994, and further failed to consider the interpretation and spirit of Section 168 of the said Act? 6. I have heard learned counsel for the parties and have also gone through the record. Mr. K.L. Bali, learned counsel appearing for the appellant has submitted that after the passing of decree by trial Court and lower Appellant Court the Corporation has done nothing on the suit land and therefore, the suit of the respondents No.1 and 2 is not maintainable, rather no cause of action survives in favour of respondents No.1 and 2. He has also taken the help of Sections 177 and 199 of the Act in support of the case of the appellant. The learned counsel for the respondents No.1,2 has supported the impugned judgment, decree. 7. The contention of learned counsel for the appellant that Corporation has done nothing after the passing of the decree of the learned trial Court as well as by the learned lower Appellate Court, therefore, no cause of action now survives in favour of the respondents No.1 and 2 is noticed only to be rejected. The suit was filed by 4 respondents No.1 and 2 on the basis of cause of action which was available to them when the suit was filed. I have gone through the Sections 177 and 199 of the Act. The Section 177 of the Act is as follows:- (1) The Commissioner, may, lay a main whether within or outside the limits of the corporation- (a) in any street ; (b) with the consent of every owner and occupier of any land not forming part of a street, in, over or on that land, and may, from time to time in respect of, repair, alter or renew or may at any time remove any main so laid whether by virtue of this section or otherwise: Provided that where a consent required for the purpose of this sub-section is withheld, the Commissioner may, after giving the owner of occupier of the land a written notice of his intention so to do, lay the main in, over or on that land even without such consent. (2)Where the Commissioner, in exercise of the powers under this section lays a main, in over or on any land not forming part of a street or inspects, repairs, alters, renews or removes a main so laid down in, over or on any such land, he shall pay compensation to every person interested in that land for any damage done to, or injurious affection of that land by reasons of the inspection, laying, repair, alteration, renewal or removal of the main”. 8. The Corporation has neither proved written consent of the owner nor the Corporation has established other stipulations laid down in Section 177 for laying down sewerage pipe line. It has not been proved that Corporation had taken consent of owners before laying sewerage pipe line. It is also not the case of petitioner that owners withheld the consent as provided in proviso to clause (b) of Section 177. In these circumstances, the Corporation cannot take benefit of Section 177 of the Act. 5 9. Similarly, Section 199 of the Act gives right to the Commissioner to maintain aqueducts, conduits and lines of mains or pipes or drains over, under, along or across any immovable property whether within or outside the limits of the municipal area, if necessary through an agreement. The Corporation has not proved that any agreement was executed in between Corporation and owners for laying down sewerage pipe line in question. The Courts below have properly appreciated the material on record. The appellant has failed to make out any case for mis-construction and misinterpretation of the evidence and Sections 177, 199 of the Act. It has not been established that Courts below have considered inadmissible evidence and material evidence has been ignored in decreeing the suit of the respondents No.1 and 2. There is no perversity in the impugned judgment, decree. The substantial question of law is decided against the appellant and in favour of the respondents No.1 & 2. 10. No other point was urged. 11. The result of the above discussion, appeal fails and is accordingly dismissed with no order as to costs. April 26, 2010 (Kuldip Singh), (sks) Judge.