Madras High Court
D. Malligarjuna Rao vs Member Secretary, Chennai ... on 7 April, 2000
Equivalent citations: AIR 2001 MADRAS 324, (2000) WRITLR 683
ORDER A. Ramnan, J.
1. The petitioner and his family own about 18 grounds and 244 sq. ft. in R.S. No.2932/12, Block-48 Puraswalkam. The property is abutted on the eastern side by Baracah Road. There are slums in the said road which considerably reduced the width of the road from its original width of 49 feet to 12 feet. The encroachment caused considerable difficulties to the petitioner as well as the residents of the locality, not to mention the impediment caused to the free flow of traffic. A group of residents called "Madras Secretariat Co-operative Building Society" filed a writ petition in W.P. No. 12243 of 1984 for removal of the encroachments on either side of the Baracah Road. An order was passed on 16-9-1994, directing the Commissioner of Corporation, the Managing Director of the Tamil Nadu Slum Clearance Board and Chennai Metropolitan Development Authority to remove the encroachments by providing alternative accommodation for the' slum dwellers. In spite of the said order, no steps were taken by the respondent. The respondents identified only a few huts as encroachments and removed only 38 huts on either side of the road and left out the remaining 12 huts undisturbed. Therefore, the Baracah Road Residents Welfare Association sent a notice dated 13-3-1998 to the Commissioner, Slum Clearance Board to remove all the huts on the eastern side of the road. But the situation remained the same and there are number of huts in front of the petitioner's property, blocking the way from Baracah Road. In fact, out of the five huts, two hut dwellers have already been provided alternative accommodation in Sathavanimuthu Nagar and yet they have not removed the encroachments. Neither the Tamil Nadu Slum Clearance Board nor the Corporation of Chennai has taken any steps to remove the encroachments and provide alternative accommodation, with the result that free access to Baracah Road and to the respective properties from the Baracah Road is very much prevented. The encroachments are on the road margin and are blocking the petitioner's property. Depite several letters, the authorities have not taken steps to remove the same. The petitioner wanted to construct residential flats in three blocks in the said property and submitted a petition for planning permission. The petitioner also provided an open space reservation in front of the proposed flats facing Baracah Road and wanted to bequeath the property for public purpose. The petitioner has clearly stated in his letter that the OSF area (open space reservation area) could not be fenced as access to the petitioner's property has to necessarily only through the OSR area till the encroachments are removed. The City Engineer has addressed a communication on 27-9-1999 that he inspected and found that the entire frontage of the petitioner's property except 16 feet is under occupation by slum dwellers and there is no other access to the proposed building site except through the open space reservation and, therefore, it is not possible to take over the OSR land and hence suggested that alternative arrangements may be made to take over the OSR area with access from the public Road. The petitioner's application for planning permission is not considered so far on the ground that OSR area is not fenced, bequeathed and handed over as required by the Corporation. Hence, the present Writ Petition.
2. The 2nd respondent has filed a counter, alleging as follows :--
It is the usual practice to insist upon the applicants to fence the OSR area which has easy access from the public road, if the location is approved by the Chennai Metropolitan Development Authority. The petitioner's property comprised in R.S. No.2932/ 12 is of an extent of 18.10 grounds on the eastern side. The said land was later formed as Secretariat Colony. The lake bund is called as Baracah Road. In and around the Baracah Road, there are number of hutments and the slums comes under notified slum by the Tamil Nadu Slum Clearance Board. The Madras Secretariat Co-operative Building Society filed W.P. No. 12243/94, praying for removal of the huts that obstructed the free flow of traffic on the Baracah Road and access to V Street, which was completely closed by the huts. The Court directed the respondents therein to implement the scheme as envisaged by the Chennai Metropolitan Development Authority viz., to maintain the Baracah Road with 30 ft. width and to make access to V Street of Secretariat Colony from Baracah Road. The 2nd and 4th respondent identified 38 hutments and they were removed from Baracah Road and slum dwellers were rehabilitated at Oteri Sathiavani Muthu Nagar. By the said implementation of the order made in W.P. No. 12243/84, the petitioner's property has also got access of 16' width, to Baracah Road. After getting the passage of 16' width, the petitioner has also raised the land by dumping debris. Now. the Baracah Road has also been widened more than 30' in width. The 2nd respondent has sent a letter to the 4th respondent to evict the remaining hutments. During inspection, it was found that there was no access to the petitioner's property, if the OSR area is fenced and handed over to the respondent. Hence, the entire file was returned by the respondent to the 1st respondent on 27-9-99 for an alternative arrangement as per Development Control Rules. As per D.C.R. without proper access from the public Road, the OSR area cannot be taken over by the Corporation.
3. The 4th respondent has filed a counter, stating as follows :--
The property comprised in S. No. 2932/ 12 is a field land situate from the eastern side of the lake which was later converted as Secrtarlat Colony. This is a notified land under Section 3(1) of the Tamil Nadu Slum Clearance Board Act. Baracah Road is not abutting the petitioner's land, but is only situate behind the notified slum. As a sequel to W.P. No. 12243/84, unauthorised slum dwellers who were occupying the area in and around the Baracah Road reducing the road area to 12 and resulting in hindrance to free flow of traffic, the Hon'ble High Court directed the 2nd respondent viz., the Commissioner, Corporation of Chennai to widen the road for 30' and to make access to the V street. In compliance of the same, the 2nd respondent herein identified 38 huts and the 4th respondent has provided alternative accommodation to the above persons. In that process, the property belonging to the petitioner as also (sic) given 16' approach from Baracah Road. The averments made in the affidavit would show that the Slum Clearance Board has nothing to do with the eviction of the dwellers on the eastern side of the Baracah Road. It is purely within the control and ambit of the Corporation of Chennai, who is bound to show alternative sites. In the light of the reasons set out, the Tamil Nadu Slum Clearance Board cannot act outside the ambit of powers as contemplated under the Act and the Board cannot resort to undertake eviction of the person residing on the eastern side of the Baracah Road which remains under the control of the Corporation of Chennai.
4. It is not in dispute that unauthorised huts were put up by the slum dwellers on Baracah Road, reducing the width of the Road and preventing free flow of traffic. Consequent upon the order passed by this Court in W.P. No. 12243 of 1984 filed by Madras Co-operative Housing Society, certain number of huts were identified and removed. The case of the petitioner is that there are encroachments on road margin just in front of his property, preventing free access of the petitioner from his property to Baracah Road, and these encroachments are all on road margin and in spite of the petitioner bringing it to the notice of the Corporation, the Corporation have not chosen to take any steps to remove the same.
5. Learned counsel for the Corporation would contend that the Corporation has already provided to the Slum Clearance Board sufficient lands and it is for the Slum Clearance Borad viz., the 4th respondent to take suitable steps and that the Corporation has nothing to do with the request of the petitioner. On the other hand, the counsel appearing for the 4th respondent would submit that the 4th respondent has no role to play in this matter and that the alleged encroachments viz., the huts are located not on the street nor they form part of any Slum declared under the Act and that the encroachments are only in road margins which fall within the control of the Corporation and therefore, it is the baby of the Corporation and the Slum Clearance Board has nothing to do with the same. Whose baby it is really. For the Corporation and the Slum Clearance Board viz., respondents 2 and 4 would pass on the responsibility to the other.
6. In the decision reported in 1994 1 (Mad) LW 470 (Natarajan O.N. v. The Municipal Council, Turaiyur etc.), it was held that once it is proved that the suit street is a public street, it follows that the plaintiffs being owners of the property abutting the public street have right of access to the suit street from any part of their premises and that the defendant is not entitled to put up any fence preventing the plaintiffs from having access to the street. To the same effect is the decision (Janarthanam, KVK v. State of Tamil Nadu, etc.) wherein it was held that it is clear from the ratio laid down in the decisions that neither the Government nor the Municipality or any local body has got every right to put up any obstruction over the public street so as to prevent it from having any access to the same.
7. In the decision reported in 1996 (2) Mad LW 35 : (1996 AIHC 4494) (The Commissioner, Panruti Municipality, Panruti v. Sri Kannika Parameswari Amman Temple) it has been held that mere vesting of a public street in the municipal council does not confer any power on the municipal council to treat it as a private property of the municipality and the power to close any public street temporarily or permanently, does not imply a power to cause obstruction to the use of the public street by the owners adjacent to the same. The owners of houses abutting on a public street have right of access to and from the public street, and if anything is done by the municipality to interfere with the rights of such owners, the owners have an actionable claim. The vesting of the public street in the municipality in the instant case is only for the purpose of maintaining it properly as a public street. It is not entitled to put up any structure along the public street to prevent the owner of properties abutting the same from having access to and from the public street. To the same effect the decisions (Damodra Naidu v. Thirupurasundari Ammal) and 1981 (2) Mad LJ 336 (Govinda Asari v. The Kancheepuram Municipality, rep. its Commissioner). Thus, the owner of a property adjoining a public street, has right of access to the public street from all points of his property.
8. The contention of the Corporation that the encroachments form part of a slum area cannot be accepted. There cannot be a declared slum area with reference to a road margin. Road margin and roads vest with the Municipality or Corporation as the case may be. A road margin which is part of a public road cannot become a part of a slum. Nor it can be declared as part of a slum. Nor it would fall within the ambit of slum area. It is admitted now that the encroachments are there on the road margin. There are about 5 huts put up on the road margin. It is also not disputed that of the 5 hutments, two have been already provided an alternative site in Sathiavanimuthu Nagar and instead of moving to the said area, the two allottees have leased out the said sites allotted to them in Sathiavanimuthu Nagar to third parties and continue to occupy the road margin on the Baracah Road.
9. Learned Senior Counsel Mr. R. Gandhi stated that some of the occupants of the huts are employees of the Corporation. These encroachments are on road margin and huts have been put up on road margin. These huts are put up and are now in existence just in front of the petitioner's property. The petitioner is under law entitiled to have access from his property to the road margin and through the Road Margin to the road from any point of his property and is entitled to have an access to his property through the road margin and from the road margin to Teach the public road. He is entitled to pass and repass from any portion of his property or from any point and that cannot be prevented.
10. Such construction or formation of huts on public road posses threat to the public health. The area would become unhygenic and a source of danger to public health. For the occupants living in the huts put up on the public road and road margins necessarily do their washing, bathing and even attend calls of nature only in public streets. Thus, the atmosphere will become polluted. The sutlage and waste water from these huts flow into streets, stagnate into cess-pools where mosquitoes breed in large numbers. Thus, the entire area would become filthy and unhygenic. Not only that, free flow of traffic is impeded. The parts of the road and road margins are blocked by the huts. Necessarily, the pedestrians have to tread on the roads, thereby exposing themselves to the risk of being run over by the vehicles. It is the right of a citizen to lead a healthy life. The State has to see that the citizens lead a healthy life and not a life endangered by such unhygenicatmosphere. If steps are not taken to remove encroachments on public road, then, the State will be failing in its duties and obligations. When there is a failure to discharge the statutory duties, then the citizens has to necessarily resort to the constitutional provisions under Article 226.
11. It is not open to the Corporation to say that It is not their responsibility. The Corporation collects tax from the citizens. They are bound to maintain roads and water works properly and efficiently so that it serves all the citizens. There is a duty cast upon them to maintain the roads in proper conditions. Whenever it is brought to their notice that there are huts and encroachments on public roads and streets, it is their duty to act and take steps to remove the same. It does not lie in the mouth of the Corporation to say that it is the baby of the Tamil Nadu Slum Clearance Board. The right of a citizen is affected and in the fight between the Corporation and the Slum Clearance Board as to who should deal with the matter, it is the citizen, who is the ultimate sufferer. It is hightime, the Corporation wakes up to the realities and adopts a sense of responsibility and evince keen desire to discharge their statutory functions.
12. As regards the other prayer, I do not find that there is any real controversy. The Corporation accepts that the OSR area cannot be fenced because of the encroachment by the sulm dwellers. Had the Corporation taken its job seriously necessarily it could have remove the encroachments long back. Having been indirectly responsible for the encroachement in a public street, they cannot now come down and say that the entire frontage of the property has been occupied by the slum dwellers and, therefore, access to OSR area is blocked and hence it cannot be fenced. It is only on the ground that the OSR area cannot be fenced because of the encroachment, the planning permission has not been granted and once the encroachment is removed by the Corporation, there appears to be no other objection to the grant of planning permission.
13. In the result, the Writ Petition is allowed and a direction is issued to remove all the encroachments on the road margin immediately abutting the petitioner's property situate on Baracah Road. The 2nd respondent in co-ordination with the 1st respondent and the Commissioner of Police, Chennai shall take immediate steps to remove all the encroachments now on the eastern side of the petitioner's property facing Baracah Road viz., in the Road Margin, and clear the area within four weeks of this order. Since it is also stated that suitable steps have already been taken and land has been handed over to the Slum Clearance Board, the 4th respondent shall see to it that the evicted slum dwellers are rehabilitated in Sathiavanimuthu Nagar. There will be a consequent direction to respondens 1 to 3 to further process the petitioner's application for planning permission on and after removal of the encroachments. Consequently, connected WMP will stand closed.