Madras High Court
Tiruvarur Municipality vs A.K.M.Towers Private Limited on 27 August, 2012
Author: S.Vimala
Bench: S.Vimala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.08.2012 CORAM THE HONOURABLE Mrs. JUSTICE S.VIMALA Second Appeal Nos.678 of 2004 & 703 of 2004 Tiruvarur Municipality, Tiruvarur, Represented by its Commissioner ... Appellants in both the S.As. Vs. A.K.M.Towers Private Limited Rep. by its Managing Director, K.kasinatha Devar, Rep. by its General Power of Attorney, Mr. Muppal, No.54, New St. Thiruvarur Town, Thiruvarur ... Respondent in S.A.No.678 of 2004 S.Sivakumar ... Respondent in S.A.No.703 of 2004 Second Appeals filed under Section 100 of the Civil Procedure Code as against the judgments and decrees, dated 21.11.2003 of the learned Subordinate Judge, Thiruvarur, allowing the first appeal Nos.18 & 17 of 2002 and reversing the decrees and judgments dated 26.11.2001 of the learned District Munsif, Thiruvarur, in O.S.Nos.119 and 120 of 2000. For Appellant in both the S.As. : Mr. V.Raghupathi & Mr. K.N.Pandian For Respondents in both the S.As.: Mr. B.Kumar, Sr. Counsel, for Mr.J.Nandagopal - - - C O M M O N J U D G M E N T
Whether the plaintiffs as owners of property abutting the public highway have the right of ingress and egress to and from the public street and if so whether they can maintain an actionable claim,against the municipality, if their right is obstructed by the appellant/Municipality, is the issue arising in the second appeals.
2. These appeals / S.A.Nos.678 and 703 of 2004 have been filed by Tiruvarur Municipality / appellant / respondent / defendant, challenging the judgments and decrees, dated 21.11.2003 of the learned Subordinate Judge, Tiruvarur, in allowing A.S.No.18 of 2002 and A.S.No.17 of 2002, respectively, thereby reversing the judgments and decrees, dated 26.11.2001 of the learned District Munsif, Tiruvarur, in O.S.Nos.119 of 2000 and 120 of 2000.
3. In O.S.No.119 of 2000, AKM Towers Private Limited, Represented by its Managing Director, who in turn is represented by his power agent, is the plaintiff. In O.S.No.120 of 2000, one Sivakumar is the plaintiff.
4. O.S.Nos.119 and 120 of 2000 have been filed seeking direction to the defendant / Municipality to remove the fence / compound put up by the Municipality in the road margin lying in between Panagal road and the plaintiffs' house-sites and for permanent injunction restraining the defendant from interfering with the plaintiffs' right of access to the road margin.
5. Suit in O.S.No.119 of 2000 has been dismissed on the ground that, (i) Alternative path is available to reach the public road from the plaintiff's property and (ii) The claim of the plaintiff is contradictory between the pleadings and evidence i.e., claiming right to reach the public road as a matter of right in the pleadings and by way of easementary right in the evidence.
6. Suit in O.S.No.120 of 2000 has been dismissed on the finding that, (i) The claim of easementary right is not proved and (ii) The alternative path is available to reach the public road from the plaintiff's property.
7. In A.S.No.18 of 2002 , the finding is that the construction put up by the Municipality would prevent the right of access to the plaintiff to reach the public road from his property and that there is no alternative path available for the plaintiff to reach the public road and on these findings, the dismissal of the suit by the trial court is set-aside.
8. In A.S.No.17 of 2002 the finding is that as per Municipality records the panagal road is the public road and the plaintiff has no other access to reach the public road and that there is no alternative way available for the plaintiff to reach the public road and on these findings, the dismissal of the suit by the trial court is set-aside.
9. Even though separate appeals have been filed challenging the decrees and judgments passed in A.S.Nos.18 and 17 of 2002, as the substantial questions of law raised are common in both the cases, common judgment is being pronounced.
10. The substantial questions of law is re-formulated:-
(i) If the public road is up to the boundary of the plaintiffs' land, whether the plaintiffs have got right of access to the public road from each and every point of their respective land? Whether the plaintiffs are expected to prove continued usage for long time or easementary right to claim,in order to succeed in establishing right of access to the public road?
(ii) If so, whether the Municipality has been empowered under the District Municipalities Act to deprive the owners of the property (abutting on a public street or public road) of their right of ingress and egress to the public street?
(iii) If not, whether the plaintiffs as owners of property abutting the public highway having right of ingress and egress can maintain an actionable claim if their right is obstructed by the Municipality, the appellant?
11. Certain fundamental facts are to be referred to appreciate the substantial questions of law raised.
Each of the plaintiffs own property which lies adjoining the public street. This is a case where the Municipality approved the plan submitted by the plaintiffs to put up construction in their respective properties on 26.07.1996, which was renewed subsequently, but ultimately was cancelled. In between the property of the plaintiffs and public road, the employees of the defendant Municipality put up unauthorised residential buildings in the road margin and subsequently the Municipality removed all the un-authorised constructions. But instead of keeping the road margin open and vacant, the Municipality has fenced all the sides and thus blocked the way of the right of the plaintiffs to the road margin. The request for the removal of fence was not considered by the Municipality. Municipality wanted to put up permanent constructions which was sought to be prevented by the filing of the suit. Filing of the suit did not deter the Municipality from proceeding with the construction and as the Municipality raised compound wall, the prayer in the suit was amended seeking mandatory injunction directing the Municipality to remove the construction.
12. The claim made by the plaintiffs was disputed by the Municipality on the contention that
(a) The plaintiffs should prove the right to use the road margin from the property of the plaintiffs . The claim of easementary right under Section 18 of the Easment Act is not maintainable.
(b) The suit property was never used as a path.
(c) The plaintiffs have alternative way to reach the Panagal Road.
(d) The property has been vested with the Municipality and the property is intended to be used for the common benefit of the public and also for enhancing the income of the Municipality.
13. In order to appreciate the defence taken by the Municipality, it is necessary to consider the nature and extent of right enjoyed by the plaintiffs by virtue of the location of their respective property lying adjoining the public street.
14. The right of immediate access from the private property to a public highway, is a private right available to the owner of the premises, solely by virtue of existence of the property , adjoining the highway. This private right is distinct from the right of the owner of that property to use the highway itself as one of the public.
15. Whether this right has to be proved to have been exercised by the predecessor is the issue. It is not so. It has been elaborated in "Pratt and Mackenzie Law of Highways" (Twenty-first Edition) at page 58 as follows:-
"The owner of the land adjoining the 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 subjacent to the highway or not. The right 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 rights of the public, and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway".
16. From the above passage it is clear that to have access to highway from a property which is adjoining the highway, it is not necessary to prove either the predecessors have been enjoying the right or that predecessors have contributed the property for the formation of the highway. Therefore, the finding of the trial court that the plaintiffs have made contradictory plea cannot be accepted. The plaintiffs have claimed rights probably using incorrect understanding of the right or incorrect way of expressing their rights. That does not mean that the claim is contradictory. It is enough if the plaintiffs are able to prove that, (a) there was a highway, (b) there was a property belonging to them; (c) that property was adjoining the highway. If these three things are proved, then the plaintiffs are entitled to have the access to the public highway from each and every point of their property.
17. Having considered the nature of right possessed by the plaintiffs who own property adjoining the highway it is necessary to consider the right and responsibility of the Municipality over the public highway.
18. No doubt the public highway is vested with the Municipality, but what is the purpose for which it is vested with the Municipality is the question. The purpose of vesting is not for the purpose of conferring ownership to the Municipality so as to enable the Municipality to treat it as a private property, but the vesting is only for the purpose of maintaining the road as a road. The Municipality cannot exercise any right over the public street except such of those as are authorised by law. Even the power of the Municipality to close any public street temporarily or permanently does not imply a power to cause obstruction to the use of public street by the owners adjacent to the same. Once it is proved that the street / road in question is a public street within the meaning of 3 (21) of the Tamil nadu District Municipalities Act, where the plaintiffs have got a right of access to the public street, by virtue of the ownership of the property abutting the public street, then the defendant / Municipality is not entitled to construct anything thereby preventing the plaintiffs from having access to the public street.
19. In order to support the contention that the plaintiffs right is automatic, when the plaintiffs own the property which lies adjoining the public street and also the contention that the plaintiffs can maintain an actionable claim against the Municipality, whose duty it is to maintain the public street as a public street and not to treat it as if it is a private property, the learned counsel for the respondents has relied upon the following decisions:-
(i) 1981 (2) MLJ 336 (GOVINDA ASARI v. KANCHEEPURAM MUNICPAL COUNCIL).
"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. ....
(ii) 1987 MLJ 409 (Bharathamatha Desiya Sangam v. Raja Sundaram). In this decision, it has been held as follows:-
"... Owners of houses or premises abutting a roadway are entitled to have access to that roadway from all points on the boundary of their land and if any obstruction is caused over the road margin securing such access, the person entitled to have such access can enforce that right. Availability of open space between the offending constructions would not justify the denial of such a right. ...."
19. (a) To substantiate the contention regarding the duty of municiaplity the following decisions are relied upon.
(i) AIR 1995 MADRAS 179 : 1995 (1) L.W. 451 (K.V.K.Janardhanan v. State of Tamil Nadu). In this decision, it has been held as follows:-
"It is clear from the plaint allegations that the plaintiff as a public has claimed a right to the public road being the owner of adjoining land on the ground that the Government is bound to maintain the road as a 'road' and is not entitled to obstruct or put up any construction. Therefore, the mere fact that they have not asked for easementary right, his claim will not in any way be affected."
(ii) 1995 MLJ 339 (The Commissioner, Panruti Municipality v. Sri Kannika Parameswari Amman Temple). In this decision, it has been held as follows:-
"..... 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."
(iii) (2006) 4 M.L.J. 517 (U.Angamuthu v. Commissioner, Tiruchengode Municipality). In this decision, it has been held as follows:-
"The primary duty of Municipality is to maintain the road and road margins free from encroachment making it further clear that no person can claim absolute right or unfettered right of erecting any structure on the road or on the roadside and the street margin...."
(iv) 1995-1-L.W. 451 : AIR 1995 Madras 179 (Janarthanam, K.V.K. v. State of Tamil nadu, etc.,). In this decision, it has been held as follows:-
"Easements / Public Street - Right of the public to have access to a public street or cart track, from adjoining land - Duty of Government to maintain the road as 'road' and not obstruct it or put up construction thereon - Failure to ask for relief of declaration will not disentitle plaintiff to the relief of injunction...."
20. All these decisions are squarely applicable to the facts of the cases and the plaintiffs having purchased the property which lies adjacent to the public road which is maintained by the Municipality are entitled to maintain the suit for mandatory injunction directing the Municipality to remove the compound wall, which cause obstruction to the right of the plaintiffs to have ingress and egress to the public road. Therefore, the plaintiffs are entitled to have the suit decreed.
21. During conclusion of the arguments, the learned counsel for the Municipality expressed his apprehension that after getting the right of access to reach the public road, the plaintiffs may put up any construction by encroaching / obstructing the public road / the way to reach the public road.
22. The learned counsel for the plaintiffs cleared the apprehension by submitting that neither the plaintiffs can do that nor they will do that.
23. This submission is sought to be recorded by the learned counsel for the appellant and it is accordingly recorded.
24. In the result, the second appeal Nos.678 and 703 of 2004 are dismissed. The judgment and decree of the first appellate court in A.S.Nos.18 of 2002 and 17 of 2002, reversing the dismissal of the suit in O.S.Nos.119 and 120 of 2000, respectively, are confirmed.
.08.2012 Index : Yes/No Internet: Yes/No srk S.VIMALA, J., srk To
1. The Subordinate Court, Thiruvarur
2. The District Court, Thiruvarur Pre-Delivery Judgment in S.A.Nos.678 of 2004 & 703 of 2004 .08.2012 Judgment in S.A.Nos.678 of 2004 & 703 of 2004 To The Hon'ble Mrs. Justice S.Vimala Most Respectfully submitted:
S.Ramkumar P.A., to the Hon'ble Judges