Heard argument of learned counsel for the appellant on the point of admission of second appeal and perused the records.
Original suit no. 338 of 1995 was dismissed and appeal against it was also dismissed then present second appeal has been preferred by plaintiff of the original suit.
In original suit no. 338 of 1995, the plaint case is that defendant- Nagar Palika Parishad is blocking and filling the drainage (nala) and raising constructions at place which is for public use and therefore they be restrained from doing so. In written statement, defendants/respondents had admitted that at disputed place.There is pacca nala (drainage) and using its own right, defendants- Nagar Palika Parishad is constructing shops for enhancing income of defendants.
Although, it has been admitted fact that disputed place is within ownership of defendants/respondents- Nagar Palika Parishad but this fact needs consideration as to whether the defendant, who is a public body for providing conveniences to general public, can block public drainage system only for enhancing its income, without considering that such act may be prejudicial to public health. For considering this point, this appeal is admitted.
Following substantial question of law is framed.
"Whether the defendants being a public body, can block public drainage system like nala at disputed place in this matter, only for enhancing its income, without considering that such act may be prejudicial to public health and hygiene ? If so, its effect ?"
Summon the lower court records.
Issue notice to the respondents. Steps within 15 days by both ways.
List after of service of notice in 1st week of October, 2016.
Till further order, no new constructions will be raised at disputed place.
Order Date :- 9.5.2016/Sanjeev