Friday, 25 March 2022

What approach should the court adopt if there is an encroachment by a temple on a public street?


In the considered view of this Court, whoever commits an illegal 
act of encroaching upon a public street, even if it is a temple, should be prevented from undertaking such an illegal act. If any structure is put up in the public street and thereby, the access to the public in using the street is restricted or prevented, such a structure has to be removed immediately. There used to be a time when some individuals developed an impression that they can encroach upon a public space in the name of a temple or by planting an idol in that place. Courts are no more concerned about who or in what name such encroachments take place. We have reached a situation where even if GOD encroaches upon a public space, Courts will direct removal of such encroachments, since public interest and rule of law must be safeguarded and upheld by Courts. Courts cannot be hoodwinked by encroaching and constructing a temple in the name of God. We have enough temples and no God has made any request to construct new temples by encroaching upon public space or by raising a structure in the name of the temple.

{Para 21}

IN THE HIGH COURT OF JUDICATURE AT MADRAS

S.A.No.190 of 2013 & M.P.No.1 of 2013

Arulmighu Palapattarai Mariamman Tirukoil Vs Pappayee

CORAM

E MR.JUSTICE N.ANAND VENKATESH

PRONOUNCING ORDERS ON : 25.03.2022

The 1st defendant is the appellant in this Second Appeal.

2.The 1st and 2nd respondents/plaintiffs filed the suit seeking for the

relief of permanent injunction against the 1st defendant and to restrain the

1st defendant from interfering with the usage of the suit property by

putting up any structure or barricade and thereby, prevent the ingress

and egress to the property belonging to the plaintiffs. The plaintiffs also

sought for the relief of mandatory injunction to restore the suit AB portion

to its original position.


3.The case of the plaintiffs is that they became entitled to the

properties on the demise of their mother on 20.01.1984. According to the

plaintiffs, the portion shown as AB in the rough plan filed along with the

suit is a street called as Mariamman Koil Street which is classified as a

Poramboke in the revenue records and it is a public street vested with the

2nd defendant Municipality. On the southern side of this street exists the

Mariamman Temple at S.No.43. The street is in S.No.42 and the schedule

properties are in S.Nos.30, 31 and 32.

4.The further case of the plaintiffs is that for all the tenements in

S.Nos.30 and 31, their only access is from Mariamman Koil Street in

S.No.42 from time immemorial. Therefore, according to the plaintiffs, it

will not be open to anyone to prevent the user or cause obstruction to the

ingress and egress from any point in S.Nos.30 and 31 to this street in

S.No.42.

5.The grievance of the plaintiffs is that the 1st defendant was

making arrangements to put up a barricade in order to raise a structure in

the place that has been earmarked as a public street. The plaintiffs further

state that the said attempt was prevented by the 2nd defendant and in

spite of the same, hectic preparation was done to barricade and put up a structure. According to the plaintiffs, if the same is done, it will virtually block the ingress and egress to the property belonging to the plaintiffs. It is under these circumstances, the suit came to be filed seeking for the reliefs stated supra.

6.The 1st defendant filed a written statement and they took a stand

that S.No.42 is vested with the Mariamman temple and the temple car

was parked in that place and during the festival days, the temple car used

to be pulled and it was taken around the Mariamman temple. A further

stand was taken in the written statement to the effect that the renovation

and construction is done by the Committee and they should be made as

party in the suit. The 1st defendant denied all the claims made by the

plaintiffs and sought for the dismissal of the suit.

7.The 2nd defendant filed a written statement and took a stand that

S.No.42 has been categorized as a Sarkar Poramboke and Mariamman

temple street is situated in this survey number which runs from the

Mariamman temple to the Salem road. According to the 2nd defendant, the

1st defendant is putting up construction in the place belonging to them and

the plaintiffs do not have any right to question the same. Accordingly, the

2nd defendant also sought for the dismissal of the suit.


8.The trial Court on considering the facts and circumstances of the

case and after analyzing the oral and documentary evidence, dismissed

the suit through a Judgment and Decree dated 31.10.2007. Aggrieved by

the same, the plaintiffs filed an appeal in A.S.No.48 of 2011. The lower

Appellate Court on reappreciation of the oral and documentary evidence

and after considering the findings of the trial Court, allowed the appeal

through Judgment and Decree dated 28.03.2012 and thereby, the

Judgment and Decree of the trial Court was set aside. As a result, the suit

was decreed as prayed for. Aggrieved by the same, the 1st defendant has

filed the Second Appeal.

9.This court while admitting the Second Appeal, framed the

following substantial questions of law:

"1. Is not the lower Appellate Court wrong in

returning a finding that the T.S.No.42 was a public

street vested with a municipality contra to the case of

the second defendant in its pleadings and evidence

that it is a government porambooke land?

2. Is not the lower Appellate Court wrong in

decreeing the suit when the suit is bad for nonjoinder

of necessary party namely the government in

the face of evidence in the shape of Ex.B1 and B2

and the testimony of PW2, DW3 that T.S.No.42 is

government porambooke land and not a street vested

with the municipality namely the second defendant?

3. Was the lower Appellate Court right in

concluding that T.S.No.42 was a public street when

the plaintiff had failed to produce the acceptable

evidence to show that indeed it was a public street

vested with the second defendant?

4. Did not the lower Appellate Court commit an

error in decreeing the suit as prayed for when

through the recitals in Ex.A2 and A3 it was shown

that T.S.No.42 was not the only access to their

property and that they had no right of easement of

necessity to use T.S.No.42?”

10.Heard the learned counsel for the appellant and the learned

counsel appearing on behalf of the respondents.

11.This Court carefully went through the pleadings and also the

findings rendered by both the Courts below based on the evidence

available on record.

12.the trial Court dismissed the suit mainly on the ground that

Mariamman Koil Street is situated in a Sarkar Poramboke and it is not

within the control of the 2nd defendant and since the Government was not

made as a party, the same was put against the plaintiffs on the ground of

non-joinder of necessary party. The trial Court also gave a finding to the

effect that the access to the property of the plaintiffs was not through the

Mariamman Koil Temple street and there was no evidence to show that

the general public was using this as a public street and accordingly, the

suit was dismissed.

13.The lower Appellate Court went into the entire case by

reappreciating the oral and documentary evidence. The lower Appellate

Court held that S.No.42 has been categorized as a Sarkar Poramboke. For

rendering this finding, the lower Appellate Court took note of the evidence

of P.W.2 and the documents marked as Exhibits.A9, B1 and B2. Exhibit A9

was a notice that was sent by the 2nd defendant to the 1st defendant

calling upon them to stop the illegal construction put up in S.No.42 and to

remove the construction that has already been started by the 1st

defendant. By relying upon this document, the lower Appellate Court gave

a specific finding that the 2nd defendant was very much in control of the

street in S.No.42 and they cannot be allowed to take a different stand in

the suit. The lower Appellate Court further gave a finding that there is no necessity to add the Government as a party to the suit. This finding was given, since the street fell within the jurisdiction of the 2nd defendant Municipality and it was maintained by them and they have all the rights to remove any encroachment that takes place in the public street.

14.The lower Appellate Court also rendered a finding to the effect

that S.No.42 does not belong to the 1st defendant and it is clearly

categorized as a Sarkar Poramboke. That apart, there is a mention about

the street in the official records marked as Exhibits B1 and B2. While that

being so, the 1st defendant does not have any right to put up any

structure in the property which was used as a street accessible to the

general public. Hence, whoever is affected in using the street from among

the general public, will have the right to approach the Court to remove

the encroachment/ obstruction put up in the public street.

15.The lower Appellate Court also exhaustively dealt with the Report

of the Advocate Commissioner along with the sketch. The lower Appellate

Court found that there was a thar road in the street when the suit was

filed and during the pendency of the suit, it was removed and a structure

has been put up by the 1st defendant. On going through the details

provided in the Report of the Advocate Commissioner, the lower Appellate

Court found that there was space for only one person to go through the street, since almost the entire street was blocked by the 1st defendant by putting up the construction. The lower Appellate Court also found that the 1st defendant was proceeding further to put up the construction in spite of a Status Quo order operating against them and the entire construction was completed resulting in the shrinkage of the entire street to the extent that only one person can go through the street at any given point of time. This construction had also virtually prevented the plaintiffs from having ingress and egress to their property.

16.In view of all the above findings, the lower Appellate Court by

assigning proper reasons, differed with the findings of the trial Court and

the appeal was allowed. The lower Appellate Court directed the rough

sketch and the sketch submitted by the Advocate Commissioner and

marked as Exhibit C4 to form part of the Decree and directed the removal

of the obstruction.

17.In the present case, it is quite unfortunate that the 2nd defendant

Municipality virtually attempted to wash off their hands by blindly

supporting a flagrant encroachment made by the 1st defendant Temple.

This sudden change of stand taken by the 2nd defendant was probably due

to some official who was handling the case wrongly understanding the

term “God Fearing”. Admittedly, S.No.42 is classified as a Sarkar


Poramboke and the street is situated over this property and it was well

within the jurisdiction of the 2nd defendant and it was maintained by them.

That is the reason why they had issued Exhibit A9 notice to the 1st

defendant to immediately stop the encroachments made upon the public

street. While so, they took a completely contrary stand as if the

Government was in control of the street in S.No.42. This issue was

properly dealt with by the lower Appellate Court and it was rightly held

that such a technical plea will not in any way justify the act of the 1st

defendant in encroaching upon a public street and putting up a

construction. There was absolutely no requirement to add the

Government as a party to the proceedings just because S.No.42 has been

categorized as a Government poramboke. This is a hyper-technical plea

which will not come to the aid of the 1st defendant who had committed a

public wrong by encroaching upon a street which was used by the general

public. In cases of this nature, the Courts should not be swayed by

technical objections and the over all interest of the public must be the

guiding factor. All these issues have been properly dealt with by the lower Appellate Court and this court does not find any ground to interfere with the findings rendered in this regard. The first, second and third substantial questions of law are answered accordingly.

18.There is no requirement to approach this case from the stand

point of right of easement. It is not necessary for the plaintiffs to prove

that S.No.42 is the only access to their property. Even assuming that the

plaintiffs have an alternate access to their property, that does not mean

that the plaintiffs can be deprived of their right to use a public street for

ingress and egress to their property. The law on this issue is too well

settled and it will be more beneficial to take note of the judgment of this

court in K.Sudarsan and others vs. The Commissioner, Corporation

of Madras and others reported in AIR 1984 MADRAS 292.

19.The relevant portions in the judgment are extracted hereunder:

14.Before considering the preliminary objections raised

by Mr. Kesava Iyengar with regard to the maintainability of

the writ petitions, it is necessary to consider the common law

right of highway and also the right of the petitioners to use

Ranganathan Street and Rattan Bazaar Road and N. S. C.

Bose Road to pass and repass, The highway is a passage over

which members of the public are entitled to pass and repass.

The essential characteristic of a highway is that every person

should have the right to use it for the appropriate kind of

traffic. The road or part over which only a particular class of

people or a few individuals are allowed to pass and repass

cannot be a highway. In Halsbury's Laws of England, Third

Edition, Vol. 19, at page 12, highway is defined thus:

"A highway is a way over which all members of

the public are entitled to pass and repass; and

conversely, every piece of land which is subject to that

public right of passage is a highway or part of a highway

It is, however, an essential characteristic of a highway

that every person should have a right to use it for the

appropriate kind of traffic, subject only to any

restrictions affecting all passengers alike. It follows that

a road or path over which only individuals, or a limited

class of the public (for example, the inhabitants or

occupiers of a particular house, field, or village) have a

right of passage, is not a highway."

As regards the extent of the right of the public over the

highway, it is stated thus at page 73: "The right of the public

is a right to to pass along, a highway for the purpose of

legitimate travel, not to 'be on' it, except so far as their

presence is attributable to a reasonable and proper user of

the highway as such. A person who is found using the

highway for other purposes must be presurned to have

moone thcre for such purposes and not with a legitimate

object, and as against the owner Of the soil he is to be

treated as a trespasser.

Again with regard to the right of access to the highway

by adjoining owners, the law is stated at page 78 thus:

"An owner of land adjoining a highway is entitled to

access to such highway at any point at which his land

actually touches it, even though the soil of the highway

is vested in another, but he has no such right if a strip

of land, however narrow, belonging to another and not

subject to the public right of passage, intervenes.

An adjoining owner's right of access from his premises

to the highway and vice versa is a private right, and is distinct

from his right to use such highway as soon as he is upon it,

which (at any rate if the soil of the highway is not his)' he

enjoys only as a member of the public. The right of access is

not limited to the right to pass from the premises to the

highway and vice versa, but includes the right of access to a

wall on the boundary of the premises."

As regards the remedy for interference with the right of

access to highway Halsbury states at page 79 thus:

"Interference with a private right of access will, if

wrongful, support an action and an adjoining owner may

accordingly recover damages where an unreasonable

use of the highway has rendered access to his shop

unnecessarily inconvenient to himself or his customers.

If the interference is also a public nuisance, he is

entitled to recover in respect thereof if he can show

particular damage, and if the obstruction, though near

to a person's premises, interferes only with his public

right, and not with his private right of access, his claim

must be based on the ground of a public nuisance

causing special damage to him.

Where, however, the interference is authorised by

statute no action will lie, and there will be no remedy unless

compensation is provided for by the statute." Again at page

283 it is stated as follows:

"At common law the duty of repairing a highway

includes the duty of preventing and removing

obstructions, and if a highway authority sustains special

damage it may bring an action for damages. This duty

and power is supplemented by general statutory powers

and by specific statutory powers to abate nuisances

summarily or to prevent their creation."

Salmond in his Law of Torts, 17th edition, at page 79

describes highway thus:

"A highway (including in that term any public way) is a

piece of land over which the public at large possesses a

right of way. A highway extends to the whole width of

the space between the fences or hedges on either side

partly in order to admit light and air to, it ' and partly

because Macadam's system of road-making with broken

stone was not introduced at the earliest until just before

the end of the eighteenth century."

The learned author again states at page 80 thus:

"Every person who occupies land immediately adjoining

a Highway has a private right of access to the highway

from his land and vice versa., and any act done without

lawful justification whereby the exercise of this private

right is obstructed is an actionable wrong. This right of

access is a private right of property, and if what is

complained of is sufficiently substantial to constitute an

interference with that right, he may recover at least

nominal damages, for it is an example of an action on

the case succeeding without Proof of special damage.

...... At common law a frontager had the right of

entrance and exit from his land on to a highway at any

point. But this common law right has been greatly cut

down by statutes (see, for example, the Highways Act,

1959, S. 155) especially since local authorities have had

vested in them the surface of the highway. ... This right

of access to a highway by the occupier of land abutting

upon it must be distinguished from the right of passing

along the highway. The former is a private and the

latter a public right, and for any infringement of the

former an action will lie: whereas, as we shall see in the

next section, no action will lie for an infringement of the

public right of passing except on proof of some special

or particular consequential damage suffered by the

plaintiff. The private right of access thus protected

includes merely the right to get from the highway into

the plaintiff's land, and from his land into the highway;

and does not include a right to get to and from the

plaintiff's land by going along the highway, for this is

merely the public right of passage. A disturbance of this

private right of access may or may not be at the time a

disturbance of the public right of passage."

In Harvey v. Truro Rural District Council (1903 LR 2 Ch 638)

Joyce, J. has observed as follows:-

"In the case of an ordinary highway running

between fences, although it may be of a varying and

unequal width, the right of passage or way prima facie

and unless there be evidence to the contrary, extends

to the whole space between the fences, and those

public are entitled to use the entire of it as highway,

and are not confined to the part which may be metalled

or kept in order for the more convenient use of

carriages and foot passengers." The learned Judge has

again observed:

"........... as Lord Tenterden observed in Rex v.

Wright (1832, 3 B & Ad 681). 'The space at the sides'

(that is of the hard road) is also necessary to afford the

benefit of air and sun. If trees and hedges might be

brought close up to the part actually used as road it

could not be kept sound."

In the Madras City municipal Corporation Act, a public

street is defined in S. 2 (20) thus:

"Public street means any street, road, square,

court, alley, passage, or riding path over which the

public have a right, of way, whether a thoroughfare or

not and includes-,

(a) the roadway over any public bridge Or causeway,

(b) the foot-way attached to any such street, public

'bridge or causeway and

(c) the drains attached to any such street, public bridge

or causeway and the land, whether covered or not by any

pavement, veranda, or other structure, which lies on either

side of the roadway up to the boundaries of the adjacent

property whether that property is private property or property

belonging to the Government.

Street-alignment 'is defined thus under S. 2 (26) of the:

Act: ' "Street-alignment means A line dividing the land

comprised in adjourning a part of a street from Adjoining

land."

Section 203 of the Acts deals with vesting of public

streets and their appurtenances in the corporation. It reads

thus:

"All public streets in the city were served under

the control of the Central or the State Government, with

the pavements, stones and other materials there of,

and all works, materials, implements and other things

provided for such streets, drains, drainage works,

tunnels and culverts whether made at the cost of the

municipal fund or otherwise in, alongside or under any

street. Whether public or private, and all works,

materials, implements and other things, appertaining

thereto and all trees not being private property growing

on public streets or by the side thereof, shall vest in the

corporation.

(2) The State Government may by notification withdraw

any such street, drain, drainage, work , tunnel, culvert or tree

from the control of the corporation.

Section 204 reads thus:

.."The corporation shall cause the public streets to be

maintained and repaired, and may make all

improvements there to which are necessary or

expedient for the Public safety or convenience e.g.

Section 220. reads thus:

"No one shall build any wall or erect, any fence or

other obstruction or projection or make any

encroachment in or over any street or any public place

the control of -which is vested in the corporation except

as hereinafter provided."

Section 221 reads thus:

"(1) The Commissioner may by notice, require the

owner or occupier of any premises to remove or alter

any projection, encroachment or obstruction (other than

a door, gate, bar, or ground-floor window) !situated

against or in front of such premises and in or over any

street or any public place the control of which is vested

in the corporation.

(2)If the owner or occupier of the premises

proves that any such projection, encroachment or

obstruction has existed for a period sufficient under the

law of limitation to give him a prescriptive title or where

such period is less than thirty years, (for a period of

thirty years) or that it was erected with the' consent of

any municipal authority duly empowered in that behalf,

and that the period, if any,' for which the consent is

valid has not expired. the corporation shall make rea-,

s0nable compensation to every person who suffers

damage by the removal or alteration of the same."

Section 223 reads Section 223 (1) ......

(2) With, the concurrence of the Commissioner of

Police the Commissioner may' grant a licence subject to

such conditions and restrictions as he may think fit, for

any temporary construction in any street or any public

Place the control of which is vested in the corporation.

(3) No licence shall be granted under sub-,section

(1) if the projection or construction is likely to be

injurious to health or cause public inconvenience or

otherwise materially interfere or result in material

interference 'with the Use of the read as such..

(4) On, the expiry of any period for which a

licence has been granted under ibis, section of after due

communication of an order of suspension or revocation

Of such licence the Commissioner may without notice,

cause any projection or construction put up under subsections

(1) or (2) to be removed, and the, cost of so

doing shall be recoverable in the~ manner provided in

Section 387 from the Person to whom the licence was

granted.

(5) The council shall have power to lease road

sides and street margins vested in the corporation for

occupation on such terms and. conditions and for such

period as it may fix. Provided that no such lease for any

term exceeding three years shall be Valid unless the

sanction of the State Government therefore shall have

been first obtained :

Provided further that if the State Government

consider that any occupation of a road side or street

margin under a lease granted by the council under this

section is likely to, be injurious to health or cause public

inconvenience or otherwise materially interfere with use

of the toad side or street margin as such, the State

Government may direct the council to cancel or modify

the lease and the council l shall thereupon cancel or

modify the lease accordingly".

15.From the above provisions of the Act, it is clear that

all public streets and their appurtenances vest in the

Corporation. No one has got a right to build any wall or erect

any fence or other obstruction or projection or make any

encroachment in or over any street, which is vested in the

Corporation except as otherwise provided. Section 223(2) of

the Act confers power on the Commissioner of the

Corporation of Madras with the concurrence of the

Commissioner of Police to grant licence for any temporary

construction in any street or any public place the control of

which is vested in the corporation and the licence will be

subject to such conditions and restrictions as he may think fit,

Under Section 22 (1)the Commissioner has got the power

grant a licence to the owner or occupier of any premises to

put up certain projections or constructions. But such

projection or construction shall not be likely to be injurious to

health or cause public inconvenience or otherwise materially

interfere or result in material interference with the use of the

road as a road. On the expiry, of the period 'of the licence the

projection or temporary construction is likely to be removed

.Section 223 (5)confers; power on the Commissioner to lease

out road sides and street margins vested in the corporation

for occupation on such terms and conditions and for such

period as it may fix. Any lease for a term years shall not be

valid unless the sanctions of the State Government is

obtained. Any such lease shall not be injurious to health or

cause public inconvenience or otherwise materially interfere

with the use of the road side or street margin.

16.The Vesting of public street in the Municipalities

under the Madras District Municipalities Act 18984 came up

for consideration before a Bench of this Court in S. Sundaram

Ayyar v. Municipal Council of Madras and The Secretary of

State for India in Council (1902 ILR 25 Mad 635) where it is

observed as follows:

"When a street is vested in, a Municipal Council,

such vesting does not transfer to the Municipal authority

the rights of the owner in the site or soil over which the

street exists. It does not own the soil from the, centre

of the earth usque ad caelum, but, it has the exclusive

right to manage, and control the surface of the soil and

so much of the soil below and of space above the

surface as is necessary to enable it to adequately

maintain The street as a ~treel. 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."

In Municipal Board Of Agra v. Sudarshan Das Shastri

(1915 ILR 37 All 9) : (AIR 19.14 All 341) a Division Bench of

the Allahabad High, Court observed'. as follows:

" in our opinion all the ground, whether metalled

or not, over which the public had a right of way, is just

as much the public road as the metalled part. The Court

would be entitled to draw the inference that any land

over which The public from time immemorial had been

accustomed to travel was a public street or road, and

the mere fact that a special part of it was metalled for

the greater convenience of the traffic would not render

the unmetalled portion on each side any the less a

public road or street."

The scope of the words "public" street or road or any

part thereof" occurring in Article 146-A of the Limitation' Act

arose for consideration in Anukul Chandra v. Dacca Dist.

Board (AIR 19.28 Cal 485) where Suhrawardy, J. observed as

follows :-

"The expression road or high way 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 life but it extends

also to the side lands. See the cases in Rex v Wright

(1882 3 B & Ad. 681) and turner v. Ringwood Highway

Board (1870 LR 9 Eq 418). I am not prepared to put too

narrow meaning on the expression 'public street' or

'road' in Article 146-A ,as it is intended to safeguard the

interest of public bodies which are not expected to be as

vigilant over their rights as private individuals. I am of

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 purposes of the road."

In Municipal Board v. Mahadeoji after referring to the above

decisions, the law is summarised thus (Para 8):-

"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 are

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 landmarks and the

manner and mode of its maintenance usually indicate

the extent of the user.', The Supreme Court again

observed thus (Paras 9 and 10):

"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 (1) 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

or the user of the road as a public highway. The said

acts are unauthorised acts of the Municipality"

17.The extent of the right of a member of the public to

pass and repass over a public street came up for

consideration before a Bench of the Andhra Pradesh High

Court in M. Butchamma v. Venkateswararao . There, the

prayer for mandatory injunction for the removal of obstruction

placed upon a public street was rejected by the trial Court and

the lower appellate Court, on the ground that notwithstanding

obstruction placed by plaintiff the street was wide enough to

afford passage to cattle and carts and the plaintiff had not

established any special damage entitling her to the relief by

way of mandatory injunction. On appeal, Chinnappa Reddy J

(as he then was) has observ-2d as follows (Para 5):

"The defendant cannot be heard to say that the

obstruction placed by him cannot be removed so long as

he has left a passage of sufficient width to enable men,

cattle and carts to go. As we have said, the right of the

public to pass and repass extends over every inch

of the street and the defendant cannot in any manner

restrict the right and compel the plaintiff to confine

herself to a part of the street of the choice of the

defendant."

In this context, the learned Judge extracted the

following passage from Peacock in his 'Law Relating to

Easements in British India:-

"As already explained, a public right of way, being

unconnected with a dominant tenement is a right in

gross and clearly distinguishable from an easement. It

is exercised over what is called a 'Highway........The

extent and mode of enjoyment of a high way must be

measured by the user as proved, or by the terms of the

deed when the right is so granted, but in the absence of

evidence to the contrary the public are entitled to the

whole width of the way without any such restriction as

may be imposed by the owner of the servient tenement

in the case of a ore scriptive private way. In Regina v.

United Kingdom Electric Telegraph Co. (1862) 6 LT 378,

Martin B., laid down the proposition which was accepted

by the Court on a motion for a new trial: 'In the case of

an ordinary highway, although it may be of a varying

and unequal width, running between fences one on each

side the right of passage or way, prima facie, and

unless there be evidence to the contrary, extends to the

whole space between the fences; and that public are

entitled to the use oil the entire of it as the highway and

are not confined to the part which may be metalled or

kept in order for the more convenient use of carriages

and foot passengers'.

18.In Damodara v. Thirupurasundari , Raghavan, J.,

had to deal with the right of owners of land adjoining the

highway to go upon the highway from any point on their land.

The learned judge observed thus (para 7):-

"The plaintiffs being owners of land abutting the

highway have an undoubted right of access to the street

from any part of their premises. In Mackenzie's Law of

Highways, 21st Edn. at page 58 it is stated 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 rights of

the public to pass along the highway are subject to this

right. of access. Just as the right of access is subject to

the right of the public, an 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 to 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 l2nd 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".

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 of 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."

19.From the above decisions the following principles

emerge. Every member of the public has got a right to pass

and repass over a highway or a public street. The said right of

the public is a right to pass along the highway for the purpose

of legitimate travel, not to be "on it" except to the extent their

presence is attributable to a reasonable and proper user of

the highway as such. The right of the public to pass and

repass extends over the whole width of the highway or the

street, in other words, over every inch of the street. A

member of the public cannot be compelled to -confine himself

to a part of the street at the choice of another. The owner of a

property adjacent to a highway or a public street has got a

right of access to such highway or street at any point at which

his land actually touches it. His right of access from his

premises to the highway and vice versa is a private right.

However, his right to use such highway or public street as

soon as he is "on the highway" or the public street becomes a

public right.

20.This court exhaustively extracted the portions of the above

judgment, since the above judgment had beautifully captured the right of

the member of the general public to use every inch of a highway or a

public street. It was further held that the owner of the property adjacent

to a public street has got the right to access to such street at any point

at which his property actually touches the street. This judgment is the

direct answer for the fourth substantial question of law that has been

framed by this Court.

21.In the considered view of this Court, whoever commits an illegal

act of encroaching upon a public street, even if it is a temple, should be prevented from undertaking such an illegal act. If any structure is put up in the public street and thereby, the access to the public in using the street is restricted or prevented, such a structure has to be removed immediately. There used to be a time when some individuals developed an impression that they can encroach upon a public space in the name of a temple or by planting an idol in that place. Courts are no more concerned about who or in what name such encroachments take place. We have reached a situation where even if GOD encroaches upon a public space, Courts will direct removal of such encroachments, since public interest and rule of law must be safeguarded and upheld by Courts. Courts cannot be hoodwinked by encroaching and constructing a temple in the name of God. We have enough temples and no God has made any request to construct new temples by encroaching upon public space or by

raising a structure in the name of the temple.

22.In the present case, it is quite unfortunate that the 1st defendant

Temple proceeded to put up the construction in spite of a status quo order

and they virtually completed the construction. The photographs that were

produced before this Court shows that the plaintiffs have been completely

prevented from having any access to the public street from their property.

They have to be literally air dropped in to their property. The conduct of

the 1st defendant Temple is highly condemnable.

23.in view of the above discussion, this court does not find any

ground to interfere with the Judgment and Decree of the lower Appellate

Court and all the substantial questions of law are answered against the

appellant.

24.In the result, the second appeal is dismissed with cost through

out. The suit is decreed as prayed for. There shall be a direction to the 1st

defendant to remove the entire construction put up in S.No.42, within a

period of two months from the date of receipt of copy of this order. If the

1st defendant fails to remove the illegal structure within the time

stipulated by this Court, the 2nd defendant is directed to remove the

structure and ensure that the public street is kept free from any

encroachment and the public is able to have easy access. Consequently,

connected miscellaneous petition is closed.

25.03.2022


Print Page

No comments:

Post a Comment