Fazal Haq v. Maha Chand

[559] The lower Court's finding on the issues remitted is to the effect that the land in dispute formed part of a public thoroughfare, and that the defendant by his occupation of it since his purchase from the Municipal Committee has interfered with the plaintiff's right of drainage and way. On the latter point the Court's finding shows that plaintiff's premises adjoin this land, and while it formed part of the high way he and his tenants had immediate access to the highway, but by the exclusive occupation of this portion of the highway by defendant, their access to that portion which now forms the high-way has been shut off, and in other adequate means of access has been provided.

Accepting this finding, it shows that plaintiff has suffered injuries and inconveniences by the closing, of the highway by defendant, which affect him beyond what affects the public at large, and he has in consequence a right of action against the defendant, Maha Chand, and there is nothing in the circumstance that defendant's title is derived by purchase of the land from the Municipality, as has been urged, which can affect the plaintiff's right to relief. No doubt [560] by S. 38 of the Municipalities Act the property in all public highways is vested in the Committee, and by S. 27 the Committee can, with the sanction of the Local Government, sell any portion of land referred to in that section which is not required for the purposes of the Act, and shall keep roads in repair and may do all acts and things necessary for purposes of general utility—S. 32. But there is nothing in the Act which debars the Civil Courts from entertaining suits and giving relief in respect of any civil right which may be shown to have been infringed through the exercise by the Municipality of its powers under the Act; on the contrary, provision is made for such suits. Here the plaintiff has made out a case. He has shown that the drainage from his premises has been stopped, and that he has been isolated and shut off from access to the present highway. The Municipality could not have thus dealt with the highway to the special injury of the plaintiff. In closing a portion of it they would have been bound to provide adequately for his drainage and his access to the highway which they had substituted; indeed, it is not clear that they had any intention of doing otherwise, and the defendant can do no less.

The relief which plaintiff now seeks is very reasonable. He does not ask to set aside the sale of the land, but that a cart-road nine feet wide should be reserved communicating with the highway, and that the existing course of drainage be not interfered with.

We decree the appeal, and modifying the decrees of the lower Courts, decree the claim with all costs.