Can the court refuse to grant a mandatory injunction for removing obstruction placed upon a public street if the plaintiff can use street despite the obstacle?

  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." {Para 17}

 IN THE HIGH COURT OF MADRAS

S.A. No. 190 of 2013 and M.P. No. 1 of 2013

Decided On: 25.03.2022

Arulmighu Palapattarai Mariamman Tirukoil  Vs.  Pappayee and Ors.

Hon'ble Judges/Coram:

N. Anand Venkatesh, J.

Citation: MANU/TN/2918/2022.

Read full Judgment here: Click here

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Can the plaintiff be denied the right to use public road if he has alternate access to his property?

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. {Para 18}

 IN THE HIGH COURT OF MADRAS

S.A. No. 190 of 2013 and M.P. No. 1 of 2013

Decided On: 25.03.2022

Arulmighu Palapattarai Mariamman Tirukoil  Vs.  Pappayee and Ors.

Hon'ble Judges/Coram:

N. Anand Venkatesh, J.

Citation: MANU/TN/2918/2022

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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.

Citation: MANU/TN/2918/2022.

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Whether municipal corporation can acquire land which is not within regular line of public street?

 Section 213 of the MMC Act reads thus:

213. If any land not vesting in the Corporation, whether open or enclosed, lies within the regular line of a public street and is not occupied by a building, or if a platform, verandah, step, compound wall, hedge or fence or some other structure external to a building, abutting on a public street or a portion of a platform, verandah, step, compound wall, hedge or fence or other such structure, is within the regular line of such street, the Commissioner may, after giving to the owner of the land or building not less than seven clear days' written notice of his intention to do so, take possession on behalf of the Corporation of the said land with its enclosing wall, hedge or, fence, if any, or of the said platform, verandah, step or other such structure as aforesaid or of the portion of the said platform, verandah, step or other such structure as aforesaid which is within the regular line of the street and, if necessary, clear the same and the land so acquired, shall thenceforward be deemed a part of the public street:

Provided that when the land or building is vested in the [Government], possession shall not be taken as aforesaid, without the previous sanction of the Government concerned and, when the land or building is vested in any Corporation constituted by any law for the time being in force, possession shall not be taken as aforesaid, without the previous sanction of the [State] Government."

24. From the aforesaid, it is quite clear that acquisition under section 213 of the MMC Act can be resorted to only where acquisition is of open or land occupied by a platform etc., which lies "within regular line of a public street".

25. In the present case, there is absolutely no material on record to suggest that the said property was the line which lay within the regular line of the public street. Therefore, the Appeal Court, quite correctly, rejected the contentions on behalf of PMC that the acquisition in the present case was relatable to the provisions of section 213 of MMC Act.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 5270, 3821, 3822 and 5269 of 2006

Decided On: 09.04.2019

Maruti H. Bathe  Vs. Pune Municipal Corporation and Ors.

Hon'ble Judges/Coram:

M.S. Sonak, J.

Citation: 2019(5) MHLJ 558

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Whether municipal corporation can issue notice to take possession of enclosed land ?

 This Section, thus, makes it very clear that, the notice under Section 299 of the MMC Act can be issued, not only in respect of the open land, but also when such land is enclosed and which lies within the 'Regular Line of Public Street' and it is not occupied by a building or if a platform, verandah, step or some other structure external to the building abutting on a public street or a portion of a platform, verandah, step or other such structure is within the regular line of such street, then also, the Commissioner, after giving to the owner of the land or building, not less than 7 days clear written notice, of his intention so to do, take possession on behalf of the Municipal Corporation of the said land with its enclosing wall, hedge or fence, if any, or of the said platform, verandah, step or other such structure. The reading of this Section, therefore, makes it clear that, except for the main structure, other structures, which are not part of the main building, which even if standing on the land, for taking possession of such land, the notice under Section 299 of the MMC Act is valid.

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 595 of 2018 and Civil Application No. 787 of 2018

Decided On: 28.09.2018

The Municipal Corporation of Greater Mumbai  Vs.  Bhandup Amber Co-Operative Housing Society Ltd.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2019(1) MHLJ 836

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