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Judgment
K. Govindarajan, J.—The petitioner-mosque has filed this writ petition seeking to issue a writ of mandamus, forbearing the respondents from obstructing or putting up construction at T.S. No. 429/1 (part) measuring East-West 6 ft., North South 137 ft., bounded on the North by G.S.T. Road, on the West and South by Mettu Street, on the East by Mecca Jumma Mosque, Chengleput town and Chengleput Taluk, as road and consequently direct the respondents to maintain the same as public street. According to the petitioner-mosque, it exists in T.S.No.13, Chengleput Town and it is bounded on the North by Chengleput Town and it is bounded on the North by G.S.T. Road and West by Mettu Street, now known as Gandhi Salai, Originally there was encroachment, and the encroachment was on Mettu Street alias Gandhi Salai, abutting the petitioner - mosque on the Western portion. The same was removed by the authorities. Subsequently, according to the petitioner, the 3rd respondent-municipality is taking emergent steps to construct shops on the Western side of the compound wall of the mosque, i. e., on Mettu Street alias Gandhi Salai. According to the petitioner, if the shops are constructed on the Western side, it would completely block the ingress and egress to the mosque from the western side, if the mosque intends to have openings on the western side for avoiding crowd and congestion. On the basis the petitioner has come forward with the above writ petition.
Since the 3rd respondent- municipality filed a counter, without any attestation, this Court has returned the same to the learned counsel appearing for the 3rd respondent. This court proceeded to decide the issue after hearing the arguments of the counsel appearing for the respondents.
The learned counsel appearing for the respondents 2 and 3 has submitted that another mosque, namely Nawab Jumma Masjid, filed a suit for the same relief in O.S.No.2 of 2000. The trial Court refused to grant injunction and they filed Appeal and the Appeal is pending. On that basis, the learned counsel has further submitted that the petitioner can approach only Civil Court, and when the Civil Court has come to the conclusion that the plaintiff, who was similarly situated was not able to establish prima facie case to grant injunction, and so the petitioner cannot sustain this writ petition. He has also submitted that the petitioner-mosque is having access only through the Southern gate and as on date they are not having opening on the western side. So, the petitioner cannot sustain the writ petition on the basis that they may open the pathway on the western side, and it will affect their right if the 2nd respondent-municipality constructs the shops on the western side.
The above said facts, namely, the petitioner is having access to the road only on the southern side is not in dispute, and the petitioner can have access on the western side is also not in dispute. It is also not in dispute that Mettu Street alias Gandhi Street is a public road, and the 3rd respondent has decided to construct the shops on the road margin adjacent to the petitioner''s compound wall, on the western side.
On the basis of the abovesaid admitted facts, it is beneficial to discuss about the decided cases so as to find out the rights of the parties to sustain this writ petition.
The submission of the learned counsel appearing for the respondents 2 and 3 is that they are having power to lease road sides and street margins vested in it for occupation on such terms and conditions and for such period as the council may fix, u/s 183 (3) of the Tamil Nadu District Municipalities Act, 1920. So, the petitioner cannot prevent them from constructing any shops on the road margin. On the basis of the said submission, it cannot be said that the petitioner has no right to question the 3rd respondent''s right to construct the shops on the road margins. The following discussion will clearly establish that such a right of the municipality is only subject to the right of the owners who are residing, abutting the road.
The learned Judge of the Calcutta High Court in Anukul Chandra Chakravarti and Others Vs. Chairman of the Dacca Dist. Board, , after considering the relevant English decision on the subject, summarised the English view thus "The expression ''road'' or ''highway'' has been considered in many cases in England and it seems that the interpretation put there is not confined to the portion actually used by the public but it extends also the side lands. The learned Judge applied the English view to the construction of the words ''public street or road'' in Art. 140of the Limitation Act, and stated: I am of the opinion that ''road'' in that article includes the portion which is used as road as also the lands kept on two sides as parts of the road for the purpose of the road."
On the basis of the above said principle, the Apex Court in the decision in Municipal Board, Manglaur v. Sri Mahadeoji Maharaj, (1965) 2 S.C.R.- 242, has decided the right of the municipalities to put up any construction on the public road and the scope of power of the municipality with respect to the said public road. The Apex Court, while dealing with the same, has held as follows:
The law on the subject may be briefly stated thus: Inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. The width of the highway so dedicated depends upon the extent of the user. The side lands arc ordinarily included in the road, for they are necessary for the proper maintenance of the road. In the case of a pathway used for a long time by the public, its topographical and permanent land-marks and the manner and mode of its maintenance usually indicate the extent of the user. In the present case it is not disputed that the metalled road was dedicated to the public. As we have indicated earlier, the inference that the side lands are also included in the public way is drawn easily as the said lands are between the metal road and the drains admittedly maintained by the Municipal Board, such a public pathway vests in the Municipality, but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and ''so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street''. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. Subject to the rights of the Municipality and the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it and, therefore, he can maintain an action for trespass against any member of the public who acts in excess of his rights. If that is the legal position, two results flow from it, namely,
the Municipality cannot put up any structures on the public pathway which are not necessary for the maintenance or user of it as a pathway, (2) it cannot be said that the putting up of the structures for installing the statue of Mahatma Gandhi or for PIYO or library are necessary for the maintenance of the user of the road as a public his way. The said acts are unauthorised acts of the Municipality. The plaintiff, who is the owner of the soil, would certainly be entitled to ask for an injunction restraining the Municipality from acting in excess of its rights. But the plaintiff cannot ask for possession of any part of the public pathway, as it continues to vest in the Municipality.
From the above said decision, it is clear that the municipality is having only exclusive right to manage and control the surface of the soil and cannot put any structure on the public pathway which is not necessary for the maintenance or user as a pathway.
The above said decision has been followed by the learned Judge of this Court in Janah Hanam, K. V. K. v. Stale Of Tamil Nadu, Etc., 1995-1 L.W.- 451, wherein it is held as follows:
It is clear from the ratio laid down in the above decisions that neither the Government nor the Municipality or any local body has, got every right to put up any obstruction over the public street so as to prevent it from having any access to the adjoining land. It has been repeatedly held that the owner of the land adjoining the public street has got a right of access at every point where his or her land adjoins public street. In view of the above ratio, the fencing of an iron fence put up between the land of the petitioner and that of the suit cart tract is illegal and on that ground alone the petitioners are entitled to an order of injunction as prayed for.
Soma Sundaram, J., as he then was, in the decision in Natarajan, O.N. & another v. The Municipal Council, Turaiyur, Etc., 1994 I. L.W. 470, following the same decision of the Apex Court, has held as follows:
In view of the above settled position of law, it is clear that the defendant cannot put up any structure or fence which are not necessary for the maintenance of the street. Admittedly in this case the defendant has put up a fence on the southern boundary of the plaintiffs property and has thus prevented the plaintiff from having access to the public street on the south from their property abutting the suit street. The defendant has no right to put up the fence on the northern side of the public street so as to prevent the plaintiffs from having access to the suit street. In these circumstances, it has to be held that the suit street is a public street within the meaning of S.3 (21) of the Act and the plaintiffs have a right of access to the suit street by reason of their ownership of the property abutting the public street and that the defendant is not entitled to put up any fence or obstruction preventing the plaintiffs and his men from having access to the public street, south of their property.
In this case, justifying the construction of the shops, the 3rd respondent has come forward with the plea through their counsel that such construction of shops is only to prevent unauthorised occupation and unauthorised haw kings. The learned Judge of this Court, while dealing with similar defence in the decision in the Commissioner, Pannuti Municipality, v. Sri Kannika Parameswari Amman Temple, 1996-2-L.W. 35, has held that whatever may be the good intention on the part of the defendant-municipality, if the construction in question causes any hindrance to free public movement, it is bound to remove the same and local Authority has got other statutory powers to prevent unauthorised hawking and unauthorised assembly if they are afraid of such contingency.
So, from the above said decisions, it is clear that the 3rd respondent has no right to construct the shops on the road margin which has been dedicated to the public. Now, 1 have to find out whether the petitioner can make any grievance regarding such construction.
In the decision in Damodara Naidu v. Thirupura Sundari Ammal, 85 L.W. 381, Raghavan, J., as he then was, has decided about the right of the owner of the property, abutting the road, to have an access to the public road. The learned Judge has relied on Mackenzie''s Law of Highways, 21st Edn. at page 58 in support of his conclusion which reads as follows:
The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground adjacent to the highway or not. The right of the public to pass along the highway are subject to the right of access, just as the right of access is subject to the right of the public, and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway.. The right of the owner of land adjoining a highway to access or from the highway from or to any part of his land is a private right, distinct from the right to use the highway as one of the public, and the owner of the land whose access to the highway is obstructed may maintain an action for the injury, whether the obstruction does or does not also constitute a public nuisance.
On that basis, the learned Judge has also held as follows:
Thus it is seen that where there is a public highway the owners of land adjoining the highway have a right to go upon the highway from any point on their land, and if that right is obstructed by any one, the owner of the land abutting the highway is entitled to maintain an action for the injury, whether the obstruction does or does not constitute a public nuisance.
Ratnam, J., in Bharathamatha Desiya Sangam v. Raja Sundram, 1987 (1) M. L. J. -409, following the above said decision, has held as follows:
It has also to be remembered that when the first respondent has a right of access as against the owner of the road margin, namely, the Panchayat or even the State and that right can be enforced as against either the Panchayat or the State with reference to the constructions which may be put up by them in the road margin as owners by asking for a removal of the offending constructions, the appellants cannot be heard to say that despite the obstructions, still access can be had through small intervening narrow strips and, therefore, no case for the removal of the offending constructions is made out.
From the above said decisions, it is clear that the petitioner is having right to have an access to the main road from his land even on the western side, and such right cannot be taken away by putting shops by the 2nd respondent- municipality for which it has no right, as held in the above said decisions cited.
The learned counsel appearing for the respondents 2 and 3 has submitted that in view of the disputed facts, the petitioner has to approach the Civil Court only, and they cannot be permitted to invoke the writ jurisdiction under Article 226of the Constitution of India. He has also submitted that on the same issue a suit is already pending, and so the petitioner cannot ignore the same and file this writ petition before this Court.
I am deciding the issue only on the basis of the admitted facts and settled principles of law. In the decision in Aluminium Industries Ltd. v. Minerals & Metals Trading Corp. of India Ltd., 1997 (II) C.T.C- 630, the Full Bench of this Court has held that the parties have to approach the Civil Court in cases where the facts and circumstances warrant and if the situation demands exercise of power of judicial review is available under Article. 226of the Constitution of India. It is further held that the jurisdiction to exercise the power of judicial review under Article 226of the Constitution is not totally curtailed or absolutely excluded in examining and testing the validity of state action, even in such matters in extraordinary cases as to whether the requirement of Article 14of the Constitution were satisfied by the State/Authority, though ordinarily the courts may not entertain writ petitions, and decline to grant relief exercising powers under Article 226of the Constitution for enforcement of terms of contracts, one of the parties being State or authority to such contracts, Moreover, in this case, I have proceeded to decided the dispute only on the basis of the admitted facts.
In view of the above said facts, the submission of the learned counsel appearing for the respondents 2 and 3 that Civil Court alone can decide the issue cannot be accepted, especially when the 2nd respondent municipality is trying to do certain acts for which they are not legally entitled and they are trying to take away the right of a citizen, namely the petitioner. For all the reasons stated above, the 3rd respondent is not entitled to construct the shops on the road margin of Mettu street alias Gandhi Salai as alleged by the petitioner-mosque, and consequently, the petitioner is entitled to the relief as prayed for. Accordingly, this Writ Petition is allowed. No costs. W.M.P. No. 8783/2000 is closed.