RSA No. 4385 of 2009 -1- ***** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No. 4385 of 2009 (O&M) Date of Decision : 19.07.2010 Veer Bhan .......... Appellant Versus Municipal Council Gurgaon and another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. N.D. Achint, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 7090-C of 2010 For the reasons stated in the application, C.M. is allowed, order dated 13.5.2010 is recalled, and the RSA No. 4385 of 2009 is restored to its original number. RSA No. 4385 of 2009 This is plaintiff's second appeal against the judgment and decree passed by the learned Courts below, vide which the suit filed by the plaintiff / appellant for mandatory injunction directing the defendant / respondents to remove the nuisance i.e. latrine, bath room and khatta shown in red colour by letters ABCD in the site plan, has been dismissed. The pleaded case of the plaintiff / appellant was, that he was owner in possession of a shop shown in green colour by letters CDFE having an area measuring 23' x 13'.2” situated at Basai Road, RSA No. 4385 of 2009 -2- ***** Gurgaon within the jurisdiction of the Municipal Committee/ Improvement Trust, Gurgaon. The plaintiff pleaded, that he was running a Hotel in the shop in question, and several customers visit his Hotel and take food etc. The case of the plaintiff was, that there exists a latrine, bath room and a khatta shown in red colour in the site plan, which abuts the hotel and kitchen of the plaintiff. The case of the plaintiff further was, that there being no arrangement to clean the latrine etc. it stinks, therefore, it has become a nuisance for the people, and is injurious to the health of the customers, as well as to the plaintiff and his employees. The plaintiff / appellant prayed for a decree in the nature of mandatory injunction for removing the said construction. Defendant No.2, Improvement Trust Gurgaon did not contest the suit and was proceeded ex parte. The suit was contested by defendant No.1 by taking a preliminary objection regarding the maintainability, locus standi and cause of action. Plea of estoppel was also taken. On merits, it was pleaded, that the area where the construction exists belongs to the Municipal Council, Gurgaon, wherein the public latrines were constructed. The stand taken was, that the latrine and other constructions is regularly cleaned, therefore, there is no smell as alleged. The other averments on the merit were also denied. The assertion, that a hotel was being run, was also denied. It was also pleaded, that the employee of the RSA No. 4385 of 2009 -3- ***** Municipal Council, Gurgaon are regularly lifting the garbage etc. from the area. The learned Courts below on appreciation of evidence have accepted the plea raised by the defendant / respondent by recording a finding, that the plaintiff was not owner in possession of the shop. Issue No.2, i.e. “Whether there exist a gadda for disposal of garbage by the Municipal Committee adjacent to the shop of the plaintiff as alleged ?”, was also decided against the plaintiff / appellant for want of evidence. The plaintiff also failed to prove any loss caused to him, due to existence of the public latrine etc. within the area of Municipal Council, Gurgaon, even though onus to prove this issue was on the plaintiff. The learned Courts below non-suited the plaintiff / appellant mainly for the reason, that the plaintiff / appellant is claiming relief in the interest of public at large, but had failed to comply with the provisions of Section 91 of the Code of Civil Procedure, therefore, the suit was held to be not competent. However, the issues, the onus of which was on the defendant / respondent were decided against the defendants for want of evidence. In appeal, the findings recorded by the learned trial Court have been affirmed. The learned counsel for the appellant contended, that this appeal raises the following substantial questions of law for RSA No. 4385 of 2009 -4- ***** consideration by this Court :- 1. Whether Section 52 of the Haryana Municipal Act, 1973 bars the maintenance of injunction suit without notice ? 2. Whether the judgment and decrees passed by the learned Courts below is against law and facts and thus perverse? In support of the substantial questions of law the learned counsel for the appellant contended, that Section 52 of the Haryana Municipal Act, 1973 does not bar the maintainability of suit for injunction, therefore, the suit without notice under Section 52 of the Haryana Municipal Act, 1973 was maintainable. This contention of the learned counsel for the appellant, deserves to be noticed to be rejected for the reason, that the substantial questions of law raised, do not arise in this appeal. The plaintiff / appellant was not non-suited for want of notice under Section 52 of the Haryana Municipal Act, 1973, but for non- compliance of the provisions of Section 91 of the Code of Civil Procedure. There is no challenge to this finding in this appeal. The finding of fact has been recorded, that the latrine etc. have been constructed for public use, which is regularly cleaned, therefore, the appellant cannot have any grievance to the existence of the public latrine in the area which is under the ownership of the Municipal Council, specially when the plaintiff has failed to prove nuisance. The findings of the learned Courts below, therefore, can not be said to be against law or facts or perverse, as well as the RSA No. 4385 of 2009 -5- ***** substantial questions of law raised do not arise for consideration in this appeal. The suit was rightly held to be not competent. For the reasons stated, the appeal is dismissed, but with no order as to costs. 19.07.2010 (VINOD K. SHARMA) 'sp' JUDGE