Andhra HC (Pre-Telangana)
Thiwari Dadaji Singh vs Alla Nirmala Devi And Four Ors. on 21 November, 2006
JUDGMENT P.S. Narayana, J.
1. Thiwari Dadaji Singh, the 5th respondent in AS No. 223 of 1989 on the file of I Additional District Judge, Guntur, is the appellant in the present Second Appeal. In AS No. 223 of 1989 aforesaid apart from the Guntur Municipal Council represented by its Commissioner, Guntur, as 1st respondent, the original defendant in the suit OS No. 667 of 1985 on the file of II Additional Munsif Magistrate, Guntur, Dr. Sayyed Imam, Syed Niaz Ahamad and Dr. Sayyed Iqbal Ahmad were added as legal representatives of the 2nd appellant, Khairunnisa Begum, who died, by virtue of an order made in IA No. 130 of 1994, dated 4.8.1994 as respondents 2, 3 and 4.
2. The suit OS No. 667 of 1985 was filed by Alla Nirmala Devi and Khairunnisa Begum, two plaintiffs, as against the Guntur Municipal Council represented by its Commissioner, Guntur, praying for the relief of permanent injunction restraining the defendants, its men from demolishing or in any way interfering with the plaintiffs peaceful possession and enjoyment of the site ABCDEF as per plaint plan and the cinema theatre therein shown in the schedule and for permanent injunction restraining its men from in any way allowing encroachments or put up any constructions North of DE wall as per plaint plan and for other suitable reliefs. Before the Court of first instance on the strength of the respective pleadings of the parties, having settled the issues, the evidence of PWs.1 and 2 (Alla Nirmala Devi and Shaik Imam) had been recorded and no evidence was let in on behalf of the defendant and the Court of first instance after recording findings, came to the conclusion that the suit was filed on imaginary cause of action and ultimately dismissed the suit. Aggrieved by the same, both the plaintiffs preferred AS No. 223 of 189 on the file of I Additional District Judge, Guntur, and the 2nd appellant-Khairunnisa Begum died and consequent thereupon respondents 2,3 and 4, the legal representatives of the said Khairunnisa Begum, were brought on record and the present appellant also came on record as 5th respondent in the said appeal as referred to supra. In the light of the subsequent events, an amendment was prayed for claiming the relief of mandatory injunction and before the appellate Court Exs.A1 to A3 and Exs.B1 to B9 were marked. The learned I Additional District Judge, Guntur, at paragraph 13 after framing the point for consideration, proceeded to discuss all the aspects commencing from paragraphs 14 to 39 and ultimately came to the conclusion that the plaintiffs are entitled to the relief prayed for. Aggrieved by the same, the party who came on record afresh at the appellate stage, the 5th respondent, alone had preferred the present Second Appeal.
3. The following substantial questions of law arise for consideration in this Second Appeal:
(i) Whether the plaintiffs have a legal right to seek the reliefs sought for?
(ii) Whether the plaintiffs are entitled to the reliefs of permanent injunction and mandatory injunction without seeking the relief of declaration of their right in the site in question?
(iii) Whether the site in question forms part of the public street as defined under Section 2(31) of the Municipalities Act?
(iv) Whether the plaintiffs have established their right of access through the two gates opened in the year 1985?
(v) Whether on the facts and in the circumstances of the case the plaintiffs are entitled to the reliefs sought for in the amended plaint?
CONTENTIONS OF SRI T.S.ANAND
4. Sri T.S.Anand, learned Counsel representing the appellant, having pointed out to the substantial questions of law would contend that it is doubtful whether the national highway also would fall within the definition of the street under A.P. Municipalities Act, 1965, hereinafter in short referred to as Act for the purpose of convenience. The learned Counsel also would further submit that it is not a case of encroachment, but it is a case where the Municipality had inducted the present appellant into possession as a licensee, and hence, the question of removing encroachments would not arise. The learned Counsel also had drawn the attention of this Court to Section 47 of the Indian Easements Act, 1882 and also would maintain that the Court of first instance dismissed the suit on the ground that the suit is premature and there is no cause of action, but the appellate Court erroneously allowed the amendment prayed for relating to mandatory injunction and granted the said relief. The learned Counsel would maintain that a mere suit for mandatory injunction of this nature without praying for declaration cannot be maintained in the light of the provisions of the Specific Relief Act, 1963. The learned Counsel also while further elaborating his submissions had pointed out to the report of the Commissioner and would maintain that at any stretch of imagination these are not being objectionable constructions and inasmuch as the livelihood of the appellant is involved, while exercising the discretion of either granting the mandatory injunction or refusing mandatory injunction, it is a fit case where the discretion to be exercised in favour of the appellant inasmuch as no prejudice as such had been established by the plaintiffs in the suit. The counsel also placed reliance on certain decisions and distinguished the decisions relied upon by the appellate Court on facts.
CONTENTIONS OF SRI GOPAL DAS
5. Sri Gopal Das, learned Counsel representing the 1st respondent, one of the plaintiffs, would maintain that the public would have a right of access to every inch of the national highway and the ingress and egress cannot be obstructed in any way whatsoever. The counsel also would maintain that merely because an adjacent owner of this nature had initiated action by that itself it cannot be said that the public would not suffer. Even otherwise the learned Counsel would contend that no special damage in such a case need be proved and a national highway also would fall within the meaning of 'public street' as defined under Section 2(31) of the Act. The learned Counsel also placed strong reliance on certain decisions to substantiate his contentions and further had drawn attention of this Court to certain provisions of the National Highways Act, 1956 in this regard.
6. Heard both the learned Counsel.
7. The substantial questions of law and the rival contentions advanced by the counsel representing the parties already had been referred to supra. The brief facts also had been narrated already as specified above.
8. The suit OS No. 667 of 1985 on the file of II Additional Munsif Magistrate, Guntur, was filed praying for the relief of permanent injunction restraining the Guntur Municipal Council, hereinafter in short referred to as Municipality for the purpose of convenience, its men from demolishing or in any way interfering with the plaintiffs peaceful possession and enjoyment of the site ABCDEF as per plaint plan and the cinema theatre therein shown in the schedule and for permanent injunction restraining its men from in any way allowing encroachments or put up any constructions North of DE wall as per plaint plan. As already referred to supra, before the appellate Court the relief was amended praying for the relief of mandatory injunction and certain documents also had been marked with the consent of the parties. The property specified in the schedule and the plan attached thereto is a cinema theatre known as Radhakrishna Talkies at the site ABCD originally belonged to the Deity of Sri Venkateswara Swamy while the site CDEF is the absolute property of the husband of the first plaintiff, the present 1st respondent in the Second Appeal, who had purchased the same under the sale deed dated 1.12.1972 marked as Ex.A1 before the appellate Court. Several other factual details in relation to the enjoyment of the said Radhakrishna Talkies, hereinafter in short referred to as Talkies for the purpose of convenience, had also been narrated and certain lease transactions also had been referred to in relation to the said Talkies. It is also the further case of the plaintiffs that some unauthorized constructions were made by third parties adjoining the walls DE, which were removed by the 1st defendant- Municipality. Hence, the plaintiffs opened the gates in the walls-DE so as to have access to the Grand Trunk Road, but some of the encroachers having good influence in the municipality, wanted that the plaintiffs to permit them to put some encroachments and it is stated that by such encroachments their ingress and egress to the Grand Trunk Road as such would be affected. It is also stated that at the instance of the encroachers, who were removed, the Surveyor of the municipality came to the suit site two days ago and threatened that the wall DE is an encroachment into the municipal site and threatened to demolish it, in which case, according to the plaintiffs, the stair case, the office room etc., which are in existence since the commencement of the hall in 1927 will be demolished. It is also stated that the site shown as ABCDEF in the plaint plan is the absolute site of the first plaintiff and her predecessors having purchased the same from Poluri people under a sale deed dated 1.12.1972 and the municipality has no manner of right, title or interest in relation thereto. By virtue of amendment, which was prayed for and permitted, it was stated by the plaintiffs that though the municipality has been stating that it is not constructing anything North of DE wall, it has actually started construction of shops since about one week i.e., since the 2nd week of February, 1994 and during the pendency of the appeal made part of constructions by laying foundations and started erecting pillars for construction. It was also stated that the site North of DE wall forms part of highway i.e., Grand Trunk Road between Madras and Calcutta, passing through Guntur city and thus the first plaintiff is entitled to use every inch of road adjoining her site and the municipality or any other person has no right to restrict her right by making any sort of constructions and hence, such constructions obstructing the ingress and egress to the Talkies from the National Highway to be removed by issuance of the relief of mandatory injunction.
9. The Municipality filed written statement before the Court of first instance denying several allegations. Specific stand was taken that the matter relates to the encroachment of public streets under Section 192 of the Act and no decision made or order passed relating to the removal of encroachments, the civil Court has no jurisdiction to give findings in relation thereto. The further stand taken by the municipality is that the rights of the parties are in no way affected and the constructions were however already removed. Further specific stand was taken that the Talkies owner is not concerned with the municipal site as such. Further stand was taken that the municipality is entitled to demolish or remove the encroachments on the road margin and hence the plaintiffs are not entitled to the reliefs prayed for.
10. The present appellant who came on record as 5th respondent in the appeal before the appellate Court filed a written statement pleading certain facts and taking a stand that the place where the shops are to be constructed by municipality is not part of the public highway, but only site by the side of the road and part of the site vested in the municipality and the right of the plaintiffs if at all to pass through every inch to the main public road was lost long ago and hence the relief of mandatory injunction cannot be granted. Certain other facts also had been pleaded.
11. The Municipality-1st respondent in the appeal filed an adoption memo adopting the written statement of the 5th respondent.
12. It may be appropriate to have a look at the issues settled before the Court of first instance, which are as hereunder:
1. Whether this Court has jurisdiction to decide the matters relating to encroachments but wrongly typed as endorsements in panchayat lands?
2. Whether the plaintiffs are entitled for permanent injunction as prayed for?
3. To what relief?
13. As already referred to supra, PWs.1 and 2 were examined. PW.1 is the plaintiff and PW.2 supported the version of PW.1. As already referred to supra, before the appellate Court the under-noted documents were marked:
For appellants Ex.A1. Registered sale deed executed by P. Venkateswara Rao in favour of Alla Ratna Rao, dt. 20.11.1972.
Ex.A2. Registered sale deed executed by Poluru Jayaprada and another in favour of Alla Ratna Rao dt.27.2.1974.
Ex.A3. Registered sale deed executed by Polluri Gopal Rao in favour of Alla Ratna Rao, dt. 22.11.1973.
For Respondents Ex.B1. Survey plan in respect of Survey Nos. 658/1 and 772/1.
Ex.B2. Photostat copy of judgment in OS Nos. 348, 353, 364 and 356 of 1954 on the file of the District Munsif, Guntur, dt.30.7.1956.
Ex.B3. Plan.
Ex.B4. Photostat copy of Re-survey and re-settlement Register.
Ex.B5. Photostat copy of detailed remarks to the Municipal Standing Counsel on the construction of shop rooms abutting the northern side compound wall of Radhakrishna Talkies, Guntur.
Ex.B6. Certified copy of Re-survey Settlement registered relating to Ward No. 10 Block No. 2 relating to Survey Nos. 146 and 492.
Ex.B7. Certified copy of decretal order in EA No. 120/86 in OS No. 356/54 on the file of I.A.D.M.C. Guntur, dated 9.8.1989.
Ex.B9. Certified copy of order in EA No. 120/86 in OS No. 356/54 on the file of I Additional District Munsif's Court, Guntur.
At paragraph 13 the appellate Court framed the following point for consideration:
Whether the appellant is entitled to the relief of mandatory injunction as well as permanent injunction prayed for in this appeal after amendment of the plaint.
14. The fact that the first plaintiff is the owner of the Talkies in question is not in serious dispute. The fact that this property is just adjacent to the National Highway is also not in serious controversy. Even if the stand taken by the present appellant, the 5th respondent in the appeal, to be taken into consideration, what is contended is that the site lying in between vests in the Municipality and as such the 1st respondent in the Second Appeal, the first plaintiff in the suit, cannot claim as a matter of right to have ingress and egress from every inch of the National Highway to the Talkies in question. The appellate Court in fact had taken pains and discussed every aspect as already specified supra commencing from paragraphs 14 to 39 and ultimately allowed the appeal granting the relief of mandatory injunction. It is needless to say that the appellate Court being the final Court of fact, the findings relating to the factual details need not be narrated in elaboration again. The only question which may have to be decided in the light of the substantial questions of law referred to supra and also the contentions advanced by the respective counsel on record would boil down to 'Whether the 1st respondent in the Second Appeal-the 1st plaintiff-the owner of the Talkies, has a right to access i.e., right to have ingress and egress to the abutting or adjacent National Highway from each and every inch, and if so whether the findings recorded by the appellate Court as such to be confirmed or to be disturbed in the facts and circumstances of the case'.
15. The documentary evidence referred to supra also had been discussed at length by the appellate Court. The National Highways Act, 1956 is an Act to provide for declaration of certain Highways to be National Highways and for matters connected therewith. Section 8 of Act 48 of 1956 of the National Highways Act, deals with agreements with State Governments or Municipalities. Section 8A of the said Act deals with power of Central Government to enter into agreements and for development and maintenance of National Highways. Section 8B of the said Act deals with punishment for mischief by injury to National Highways. Section 2 of the Act deals with declaration of certain Highways to be National Highways. Sub-Section (1), however, specifies that each of the Highways specified in the schedule except such parts thereof as are constituted within any municipal area is hereby declared to be a National Highway. There is a schedule appended specifying several serial numbers and furnishing several details.
Section 35 of A.P. Municipalities Act reads as hereunder:
Public Street: This corresponds to Section 2(34) of the Hyderabad Act. There is no corresponding provision in the Andhra Act.
A public street means any street, road, square, Court, alley, passage or riding part over which the public have right a way whether a thoroughfare or not, and includes-
(1) roadway over any public bridge or causeway, (2) footway attached to such bridge, causeway or street, (3) the drains attached to such street, public bridge or causeway whether covered or uncovered.
A public street includes land which as on either side of the roadway up to boundaries adjacent to property and includes a road poramboke used for conservancy purposes. Prima facie the public have a right of way over every part of road poramboke. In Public Prosecutor v. Pallaniandi AIR 1928 Madras 160 it was held that if there is a piece of road poramboke which lies between the roadway and the boundary of adjacent property that will be a public road. A public street does not include a road margin. Public street includes the spaces covered by drains even if the space is private property.
(i) over which the public have a right of way:- This expression governs and qualifies street, road, square, Court, alley, passage, or riding path. A strip of land running along the side of the road to which nobody can make out a little does not become part of the road unless it is proved that the public have a right of way over it. A lane or street does not become public street only because there is an underground sewer of old times running under it.
(ii) Rights of private owner - uses as public pathway: Whoever might have been the owner of public footpath before, once the land is used as a public footpath, the rights of the previous owner, if any thereon stands extinguished and the same vests in the State. Sanjay Advertisement v. Union of India 1979 (2) Ker. L.J. 357.
(iii) Proof:- The onus of proving that it is a public street is upon the Crown. Continuous user by public of way raises a presumption that the way belongs to public by the owner for the public use. In determining the question whether a road through a private property is a public highway though not expressly dedicated to the public, it is of crucial importance to distinguish between evidence showing an intention to dedicate to the public generally and evidence showing that visitors to or traders with tenants whose shops about on the road have by permission a right of passage.
16. Section 2 of the Municipalities Act deals with definitions. Section 2(31) of the said Act defines 'public street' as hereunder:
'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 footway attached to any such street, public bridge or causeway and the land, whether covered or not by any pavement, varandah, 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
17. The Division Bench of the Madras High Court in Uppalapati Suryanarayaneswara Jogi Jagannadharaju Garu and Anr. v. Taluk Board, Rajahmundry and Anr. AIR 1935 Madras 810 while dealing with the vesting of a road in Taluk Board under Section 60 of the Madras Local Boards Act (14 of 1920), held as hereunder:
The vesting of a road in a Taluq Board under Section 60, Local Boards Act vests in the Board only such property as is necessary for the control, protection and maintenance of the road as a highway for public use. The right of control is different from full ownership. The trees are nowhere vested in the Taluq Board by the Act. There may be circumstances in which it might be necessary for the Taluq Board to cut down the trees which obstructed the use of the road or interfered with the safety of those using it. But there is no principle which requires that in order to preserve the 'puntas' it is necessary that the Board should have full ownership of all the trees and their usufruct.
The learned Division Bench in fact followed 25 Madras 635 (Sundaram Ayyar v. Municipal Council of Madura and Sect. of State) and had distinguished (1932) 2 Ch. 155 (Stillwell v. New Windsor Corporation).
18. In Movva Butchamma v. Movva Venkateswara Rao and Anr. 1969 (1) An.W.R. 224 the Division Bench of this Court while dealing with the right of easement, highways and obstruction caused in public highway and the principles in granting the relief of mandatory injunction in such cases held:
The appellant filed a suit against the respondents for mandatory injunction for removal of obstruction in a pathway and for a permanent injunction restraining the respondents from interfering in any manner with his right to use the street, for the passage of men, cattle, and carts for reaching his plot. The Court below agreed with the contentions of the appellant, but the lower appellate Court though it confirmed the permanent injunction granted by the trial Court, refused to grant the mandatory injunction on the ground that the appellant had sufficient space to take his men, carts, and cattle along the pathway, and he has not proved any special damage for claiming the relief of mandatory injunction. The same view was confirmed in second appeal by a learned single Judge of the High Court. With the leave of that Judge the appellant has preferred a Letters Patent Appeal, canvassing the view of the learned Judge.
Once in a highway, the whole and every part of it is a highway and the public right of way extends over every inch of the highway. The street in question having been found to be a public street the defendant was not entitled to place any obstructions in plots 2(a) and 3(a) which were parts of the public street. The defendant cannot be heard to say that the obstructions 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. 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. The plaintiff is clearly entitled to the mandatory injunction for removal of obstruction and the permanent injunction granted by the lower Courts cannot have its full effect unless the mandatory injunction is granted too.
A suit for removal of obstruction to a pathway was maintainable without proof of special damage whether the pathway was a highway or a village pathway which could not be 'raised to a dignity of a public highway'." Reliance also was placed by the Division Bench on Subbamma v. Narayanamurthi (1949) I M.L.J. 56.
19. Similar question had fallen for consideration before yet another Division Bench and inasmuch as the learned Judges expressed different opinions, the matter had been referred to a third Judge. In Satraboyina Someswara Rao and Ors. v. Sangasetti Tirupathamma and Ors. 1988 (2) A.P.L.J. 469 while dealing with the suit filed by the owners of the land abutting a 'puntha poramboke' being used as a passage which joins a National Highway seeking for permanent injunction and mandatory injunction against the encroachers of road margin who by constructing sheds for running a school and for residential house completely blocked the access of plaintiffs to the passage and the nature of the discretion to be exercised under Section 39 of Specific Relief Act, 1963, Amareswari J., held:
No doubt the law is well settled that the owner of a land abutting a public street or a public way has every right to use the pathway for ingress and egress all along the line of contact between his land and the public pathway. Still the Courts have discretion in the matter. In the present case, it is not a public street or highway. It is a puntha and is serving as a pathway. Every pathway cannot be equated to a public street or highway. The plaintiffs do not suffer any damage if the encroachments are not removed. They still have enough space to reach their lands from survey No. 69 not to speak of another pathway lying to the North of their land. The encroachments have been in existence for long, one is a school and serving a public purpose and the other is a residential hut of a homeless poor man. Mandatory injunction being a discretionary remedy, this is essentially a fit case in which the relief should be refused.
Upendralal Waghray J., differing with the view expressed by Amareswari, J., held:
It is the duty of the Municipal Council to remove such obstructions which are on the road margin or road itself and obstructing the plaintiffs' approach to the main road. The mere grant of an injunction restraining the defendant from making any further constructions will not give any relief to the plaintiffs. It may be that some of them have an opening on the side lane but that cannot deprive them of the access to the main road in front of their sites. The plea on behalf of the District Collector was that one of the encroachers is a landless poor person and in the other a school is being run. Neither the government nor the Municipality have the authority to assign portions of public street or road margins for this purpose. It is open to the government to assign appropriate land, if the government considers them eligible. The setting aside of the relief of mandatory injunction will not only deny to the plaintiffs the approach to the main road, but will also make structures a permanent obstruction on a 100 feet road in an important place.
On reference, in view of the difference of opinion between Amareswari J., and Upendralal Waghray J., Jeevan Reddy, J., expressed opinion as follows:
No person can be allowed to occupy a portion of a public road, a highway, or even a public pathway, and argue that even after his encroachment there is sufficient space left for public to pass by. He cannot be the judge of the requirements of the public, nor can be decide for himself what extent must be left for public use and what extent must be occupied by him. At this rate, anybody will be free to occupy a portion of such public streets, highways and roads with the spacious argument that there is still space left for public to pass by. Slowly these encroachments may become permanent. It is evident that such a course cannot be permitted. It is true that Section 39 expressly speaks of a discretion in the court in the matter of granting a mandatory injunction; but, the said discretion has to be exercised in accordance with law and having regard to the facts and circumstances of a given case. May be that granting a mandatory injunction would result in eviction of the poor people living in the huts, or the displacement of the school which is said to be running there for the last several decades; but that can be taken care of by making appropriate directions.
In Damodara Naidu and Ors. v. Thirupurasundari Ammal and Anr. 1972 (1) Madras Law Journal 4, the learned Judge of the Madras High Court while dealing with the public highway, owners of land adjoining highway and right to go upon the highway from any point on their land held as hereunder:
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.
Reliance also was placed on the decision of the Apex Court in Sodan Singh v. New Delhi Municipal Committee .
20. No doubt certain submissions were made, though there is no serious controversy on the factual aspects, that in the light of the report of the Advocate-Commissioner in IA No. 72 of 1994 in AS No. 223 of 1989 on the file of II Additional District Judge, Guntur, inasmuch as these constructions are not causing any inconvenience whatsoever, they cannot be taken as obstructions and inasmuch as no serious prejudice as such is caused to the first plaintiff, the owner of the Talkies, while granting the relief of mandatory injunction, inasmuch as the same being discretionary relief, this Court can definitely exercise the discretion by declining to grant such relief depending upon the peculiar facts and circumstances. The principal contention which had been stressed on behalf of the appellant is that the appellant is not an encroacher and at the best he is in permissive possession being a licensee under the municipality and the municipality being a local body, which is under the bounden duty to maintain the public streets or highways, it can be expected that reasonable care and caution had been taken by such local body in maintaining such streets and in view of the same the discretion to be exercised in favour of the appellant declining to grant the relief of mandatory injunction instead of extending the helping hand in favour of the first plaintiff. This contention or submission prima facie appears to be very attractive, but this Court is of the opinion that the same cannot find favour at the hands of this Court especially in the light of the views expressed by the two Division Benches referred to supra. Hence, viewed from any angle this Court is of the considered opinion that the Second Appeal is devoid of merit.
21. Accordingly, the Second Appeal shall stand dismissed. However, since the appellant has been fighting this litigation being a licensee under the municipality, the parties to the litigation to bear their own costs.