Kerala High Court
P.K. Wariyar vs State Of Kerala And Ors. on 2 November, 1989
Equivalent citations: AIR1990KER218, AIR 1990 KERALA 218, 1989 (2) KER LJ 739 (1989) 2 KER LT 867, (1989) 2 KER LT 867
ORDER Chettur Sankaran Nair, J.
1. Petitioner-Managing Trustee of 'Kottakkal Arya Vaidya Sala', prays for a writ of mandamus to command respondents to remove hoardings put up in front of the Arya Vaidya Sala, and for consequential reliefs. Petitioner owns a three-storeyed building standing on thirlyone cents of land on the Mahatma Gandhi Road, Ernakulam said to be constructed at a cost of Rs. 33 lakhs. On the night of 6-4-1988, those acting under second respondent are said to have put up a hoarding in front of the Arya Vaidya Sala. One display board on the hoarding is very large, measuring to 9 x 31/2 metres and this obstructs the view of the building, virtually obliterating its identity, submits petitioner. Rights of petitioner as an adjoining owner and a member of the public, are invaded by putting up such boards, according to him. The next day, a representative of petitioner went to the office of second respondent and made a request in writing Ext.P 1, to remove the hoarding. He was not allowed to see second respondent, but was asked to see fourth respondent who, it is said promised necessary action. Contrary to the promise, on 21-4-1988 the board was painted and improved. Upon this, by Ext.P 3 petitioner made another request to second respondent to remove it. Meanwhile, it is alleged that two other boards also were put up. Again by Ext.P 5, petitioner made yet another request, to remove the boards. For a while, second respondent turned the Nelson's eye on these requests and eventually, by Ext.P 7 an officer of second respondent informed petitioner that the request could not be granted. Petitioner then approached this Court. Counsel for petitioner submits that this is not only an act without jurisdiction, but also an act invading rights of the adjoining owner, namely petitioner. In answer, counsel for respondents would submit that public streets and pavements vest in the corporation and it has power to put up hoardings for municipal purposes. Section 231 of the Kerala Municipal Corporations Act, called the 'Act' hereinafter, is relied on to support this contention.
2. To resolve the controversies raised, nature of powers available to the corporation in respect of streets that vest in them, have to be ascertained. Under Section 210 of the Act, public streets vest in the corporation and such may be used for any municipal purpose. The Section reads :
"210. Vesting of public streets and their appurtenances in corporation ......... .(1) All public streets in the city not reserved under the control of the Central or the State Government, with the pavements stones and other materials thereof, and all works, materials, implements and other things provided for such streets, all sewers, 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 growing on public streets or by the side thereof, shall vest in the corporation. (2) Any property vested in the corporation under Sub-section (1) may be used by the council for any municipal purpose and as deemed fit by the council".
3. Ambit of powers in corporations or municipalities, have been subject matter of judicial pronouncements. The width of the power, the limitations thereon and the capacity in which power enures to municipal authorities have been indicated by a catena of decisions. At the outset, it must be noticed that corporations or municipalities are in the position of trustees. The decision of the Supreme Court in Saghir Ahamad v. State of U.P., AIR 1954 SC 728, brings into sharp focus, the position in which a municipal authority is placed. B. K. Mukherjea, J. speaking for the Constitution Bench, quoting with approval Venkatarama Ayyar, J. in C.S.S. Motor Service v. State of Madras, AIR 1953 Mad 279, stated (at p. 735 of AIR) :
"The true position, then is, that all public streets, and roads vest in the State, but the State holds them as trustges on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways .........."
4. It is trite law, that a trustee cannot act against the interests of the beneficiaries. Therefore, the municipal corporation, which is in the position of a trustee, cannot by its act invade or abridge rights inhering in the beneficiaries, namely members of public. The manner in which the power can be exercised by municipal authorities and the limitations thereon, must be noticed. The High Court of Judicature at Madras in Sundaram Ayyar v. Municipal Council, (1902) ILR 25 Mad 635, considered the incidents of vesting of streets in municipalities. Bhashyam Ayyangar, J. observed:
"..... the street vests in the local board qua streets; not that a.ny soil or any right to the soil or surface vests, but that it vests qua street. The meaning I put up on the word vest is the space and the street itself, so far as it is ordinarily used in the way that streets are used . . . . ...... "
5. Sundaram Iyer's case, (1902 ILR 25 Mad 635) was noticed and approved by the Supreme Court in Municipal Board, Mang-laur v. Mahadeoji Maharaj, AIR 1965 SC 1147. The Manglaur Municipality proposed to erect a statue of Mahatma Gandhi on a public street "lying in between the nalees and the road". Power of the municipality to put up a structure on a street was questioned. Surveying the authorities on the subject and approving the decision in Sundaram lyer's case, the Supreme Court observed (at p. 1149 of AIR) :
"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. 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."
A like question again came up for consideration in State of U. P. v. Ata Mohammed, AIR 1980 SC 1785, though in a different context. The court observed ;
"What is vested in the municipality under Section 116(g) is the street qua street and if the municipality put the street to any other user, than that for which it was intended, the State is entitled to intervene and maintain an action..........", In Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, the Supreme Court had occasion to consider the uses to which a street could be put. Powers of municipal authorities and right under Article 21 of the Constitution were noticed and the court stated the law :
".......... Foot-paths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed their use for a private purpose frustrates the very object for which they are carved out from portions of public streets.........."
6. The decision of the Supreme Court in Sodan Singh v. New Delhi Municipal Committee, (1989) 3 JT 553 : (AIR 1989 SC 1988), does not strike a different note. The Constitution Bench endorsed the view taken in the earlier decisions, regarding the nature and extent of powers in Municipal authorities, to use streets, only qua street. But, the rights of citizens were enlarged, adding a human content -- permitting poorer sections of hawkers to use the streets for selling their wares, without putting any part of the street to their exclusive use. Approving Olga Tellis, (AIR 1986 SC 180) and Saghir Ahamad, (AIR 1954 SC 728), Court observed further :
"Proper regulation is however a necessary condition as otherwise the very object of laying out roads to facilitate traffic may be defeated..... The proposition that all public streets and roads in India vest in the State, but that the State holds them as trustee on behalf of public and the members of public are entitled as beneficiaries to use them as a matter of right.......... should be treated as of universal application."
7. This court also had occasion to consider the incidents of vesting. In Achuthan v. District Collector, 1982 Ker LT 133 : (AIR 1982 NOC 118), it was held that the corporation cannot use a public street for a purpose, other than the purpose for which the street vested in the corporation. In Govinda Rao v. District Collector, 1983 Ker LT 328 : (AIR 1983 Ker 10), it was held that the District Collector had no authority to permit construction of bunks, for use of disabled persons on a public street. Dr. T. K. Thom-men, J. observed (at pp. 20-21 of AIR) :
"A public street in my view cannot be used for any purpose other than as a street..... Petitioner as the owner of adjoining property is aggrieved not only as owner, as the bunk has diminished the amenities of the property, including its visual amenity, but also as a member of the public entitled to protest against transgression of law .....".
8. Again in Godavari Bai v. Cannanore Municipality, 1984 Ker LT 1103 : (AIR 1985 Ker 2), the court held :
"Vesting of public streets in the municipal council is not absolute. It is only for the limited purpose of preservation and maintenance as a public street.........."
It was also found that an adjoining owner :
"has a right of access at every point where her land adjoins the public street".
9. The decisions recognized not only limitations on powers of municipalities, but also rights in adjoining owners, and members of public at large.
10. Section 210(2) of the Act states that property vested in Corporations "may be used by the Council for any municipal purpose as deemed fit by the Council". Municipal purpose, is not any purpose to which the Municipal authority may address itself to. It is a purpose qua street and no other, (Manglaur Municipality case, AIR 1965 SC 1147).
This principle cannot be varied or extended, by describing an activity, as a 'municipal purpose'.
11. Counsel urged further that the Corporation has power to impose a tax on advertisements, under Section 98(f) of the Municipal Corporations Act. True but imposition of a tax, itself is not a municipal purpose, though it may be an activity incidental to a municipal purpose. By exercising the power to tax, a use not sanctioned otherwise, cannot be made. Nor, does the power under Section 98 remove fetters that Section 210 places.
12. Counsel then contended that Section 231 of the Act confers power to "allow certain projections and erections". Sub-section (2) of Section 231 reads:
"The Commissioner may also grant a licence subject to such conditions and restrictions as he may think fit for any temporary construction in any street or in any public place the control of which is vested in the Corporation".
Section 231 is subject to Section 210, and does not enlarge the content of Section 210, or remove the limitations thereunder. The power must therefore be exercised, within the area comprehended by Section 210 and not outside it, and in a manner not inconsistent with it. Besides, construction contemplated by Section 231, is of a 'temporary' character. Putting up a scaffolding for repairing street lamps, or electric or telephone lines or putting of temporary barricades, are some of the purposes comprehended by Section 231.
13. The decision relied on by counsel for Corporation in M.A. Pal Mohammed v. R.K. Sadarangani, AIR 1985 Mad 23, strikes a seemingly, but not really different note. The view taken in that decision, on limitations on powers of municipal authorities is consistent with the view taken in the decisions referred to earlier, in this judgment. The learned Judges referred to the decision of Supreme Court in Manglaur Municipality case, AIR 1965 SC 1147, which in no uncertain terms held that :
"Municipality cannot put up any structures on the public pathway which are not necessary for the maintenance or user of it, as a pathway".
However, the Court upheld lease of sides and margins of roads, because Section 223(5) of the Madras City Municipal Corporation Act (4 of 1919), conferred a specific power on the Corporation, to lease not streets but sides and margins. The section reads :
"The Council shall have power to lease road sides and street margins vested in the Corporation ....... ".
That was the reason that weighed with the Court as is obvious from para 20 of the judgment. It states :
"Being fully aware of how a public street is composed of the right to lease out, had been conferred under the Act, only for portions, which are earmarked as road sides or street margins".
This decision, cannot lend support to the respondent Corporation, in interpreting Section 231, which does not concede a power in the nature of the power under Section 223(5) of the Madras Act.
14. Rights of petitioner as a member of the public and as an adjoining owner must also be considered. An adjoining owner has :
"..... right of access at every point where her land adjoins the public street".
[Godavari Bai v. Cannanore Municipality, 1984 Ker LT 1103 : (AIR 1985 Ker 2)] An adjoining owner's rights are not limited to access. It is far more. In Govinda Rao's case, 1983 Ker LT 328 : (AIR 1983 Ker 10), it was held that rights of the adjoining owner could be affected by :
".......... diminished amenities of the property, including its visual amenity......"
Besides, right of access, is not limited to the right to enter from the premises to the street, and vice-versa. It is much more, and far more than, right of way. Salmond, and Houston on the Law of Torts, 18th Edn. observe at pages 78 and 79 :
"At common law the ownership of a highway is in the owners of the land adjoining it .......... this right of access is a private right of property.......... This right (right of way) may indirectly protect the owner's interests, in a view from or to his land, interference with which is not otherwise actionable. Interference with a window display may be actionable if it deprives the plaintiff of his own right of access to that window".
Same view is shared by Winfield & Jolowicz on Torts XXII Edn. Corpus Juris Secundum (Volume 64 page 98) recognises rights in an abutting owner of two kinds. It is stated :
"1702. Light, Air, View and Privacy The owner of property abutting on a public street has an easement over the street of light, air, and view, and an interference with his right of privacy has been considered as an element going to make up his right to relief against an encroachment on the highway.
The owner of property abutting on a public street has an easement over the street of light and air, and view or prospect, constituting a property right possessing value. However, the right of view does not entitle an abutting owner to demand that the street shall remain in a natural and unimproved condition.
View from street. In a number of decisions the right of an abutting owner to an unobstructed view of his premises from the street, as, for example, for the purpose of the display of goods or of advertising signs, has been recognised. Although there is authority to the contrary, it has been held that the right is not restricted to the display of goods or of advertising matter related to the business conducted on the premises and that one who leases the whole or a part of the land for the purpose of erecting an advertising sign on it acquires the same right as the owner had".
In Campbell v. Paddington, (1911) 1 KB 869, it was held that frontager whose view or light is invaded by an unlawful obstruction has a cause of action. It is unnecessary to multiply authorities or precedent.
15. By a long line of decisions, of vintage and high authority it is established that a Municipal Corporation, can use a street only qua street and in no other manner. An adjoining owner has rights, in the nature of property and these cannot be invaded by the Corporation, which is in the position a trustee, and a trustee cannot act against the interests of the beneficiary. The vice of lack of authority and acting in excess of such authority as it had, taints the action of the respondent Corporation in erecting hoardings and display boards, in the frontage, or along the boundaries of petitioner's property. Respondent Corporation and its officers are directed to remove the hoardings and display boards or like structures, located in the frontage or along the boundaries, of petitioner's property, Kottakkal Aryavaidya Sala within a period of two weeks from today.
Writ petition is allowed. No costs.