Madras High Court
The Commissioner, Panruti ... vs Sri Kannika Parameswari Amman Temple By ... on 22 February, 1996
Equivalent citations: (1996)2MLJ339, 1996 A I H C 4494, (1996) 2 MAD LJ 339 (1996) 2 MAD LW 35, (1996) 2 MAD LW 35
JUDGMENT S.S. Subramani, J.
1. Defendant- Panruti Municipality is the appellant herein. The subject-matter of the suit O.S. No. 2846 of 1979, on the file of the District Munsif's Court, Cuddalore, is a public market place.
2. With an intention to prevent unauthorised occupation of shops and unauthorised hawking, the defendant- Municipality put up a platform having a height of 2 feet, to a length of 8 1/2 feet. The said platform caused obstruction for easy access to the plaintiff who is having shops on the roadside. Hence the present suit was filed for a mandatory injunction, directing the Municipality to demolish the platform constructed by it.
3. The defence taken by the Municipality was that, being a public land, it has got absolute right to construct a platform. It also put forward a contention that the intention of putting up such platform was to avoid unauthorised hawking. It also said that the plaintiff has got free access to their shops. According to the defendant, it was justified in constructing the platform.
4. During trial, a Commissioner was deputed to verify the nature of the platform and submit a report as to how far it has caused obstruction, if any, to the plaintiff's user. Accordingly the Commissioner has filed a report and plan.
5. Trial court took into consideration the entire evidence in this case, both oral and documentary, and ultimately came to the conclusion that the Municipality has no right to put up such a construction, causing obstruction not only to the plaintiff but also to all the members of the public. Trial court took the view that though it is a public place, it has got only the right to maintain and use the same just like a member of the public, and that it has not right to put up any construction. It said that the construction of the platform has caused obstruction not only to the plaintiff but also to the shop owners on either side of the road. It directed the defendant- Municipality to demolish the platform.
6. Defendant preferred an appeal before the lower appellate court as A.S. No. 84 of 1982. The appellate Judge confirmed the decision of the trial court.
7. It is against the concurrent decision of both the courts below, defendant has preferred this second appeal.
8. At the time of admission of the second appeal, the following substantial question of law was framed for consideration:
Whether the courts below are right in granting a decree for mandatory injunction on the facts and circumstances of the case?
9. The right of Municipality over a public road is decided in various cases.
10. In State of U.P. v. Ata Mohd. , their Lordships followed an earlier decision of the same court reported in Municipal Board, Mangalur v. Mahadeoji Maharaj . In the instant case, the schedule property comes within the definition 'street' under the District Municipalities Act. It is better to incorporate paragraph 9 which reads as follows:
The Municipalities in various States were created under the respective Municipalities Acts, in order to facilitate the efficient administration of the Municipal areas and to provide lighting, watering and maintaining of public streets and places. The duties of the Municipal Boards are specified in Section 7 of the U.P. Municipalities Act. Under Section 18 of the Act, the Municipal Board is empowered to manage or control any property entrusted to its management and control. The vesting of the property, in the Municipality is under Section 116 of the Act. Section 116 provides that subject to any special reservation made by the State Government, all property of the nature specified in this section and situated within the Municipality shall vest in and belong to the Board, and shall, with all property which may become vested in the Board, be under its direction, management and control. Clause (g) relates to vesting of streets and is as follows:
All public streets and the pavements, stones and other materials thereof, and also all trees, erections, materials, implements and things existing or on appertaining to such streets.
It may be noted that while under Clause (f) of Section 116 all lands and other property transferred to the board by the Government by gift, purchase or otherwise for local public purposes vest in the Municipality, under Clause (g), the streets vest only qua streets and not as absolute property, with the Municipality. The word 'street' is defined under Section 2(23) as follows:
Street means any road, bridge, footway, lane, square, court, alley or passage which the public or any portion of the public, has right to pass along, and includes, on either side, the drains or gutters and the land upto the defined boundary of any abutting property notwithstanding the projection over such land of any verandah or other superstructure.
It has been found that the property in dispute is Patri and is a land which is within the defined boundary of the property abutting into the road. Thus the property in question falls within the definition of the word 'street'. The question as to the nature of the right that vest in the Municipality under Section 116(g) of the Uttar Pradesh Municipalities Act will have to be considered. This Court in Municipal Board, Mangalur v. Mahadeoji Maharaj , had to consider the nature of the right that vested in the Municipality over the streets, Subba Rao, J. (as he then was) after considering the decisions of the English Courts and the High Courts, summed up the law on this subject as follows:
The inference that the side lands are also included in the public way is drawn easily as the said lands are between the metal road and the drains admittedly maintained by the Municipal Board. Such a public pathway vests in the Municipality, but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and so much of the oil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. Subject to the rights of the Municipality and the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it and, therefore, he can maintain an action for trespass against any member of the public who acts in excess of his rights.
After referring to Section 16 (g) of the Uttar Pradesh Municipalities Act, under which a public street vests in a Municipality, the learned Judge referred to a decision of a Division Bench of the Madras High Court in S. Sundaram Ayyar v. The Municipal Council of Madras, etc., (1902) I.L.R. 25 Mad. 635, where the scope of the vesting under the Madras District Municipalities Act was dealt with. The learned Judge extracted the headnote from the Madras decision observing that it brought out the gist of the decision. The headnote runs as follows:
When a street is vested in a Municipal Council, such vesting does not transfer to the Municipal authority the rights of the owner in the site or soil over which the street exists. It does not own the soil from the centre of the earth usque ad ceelum but it has the exclusive right to manage and control the surface of the soil and so much of the soil below and of the space above, the surface as is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers.
The view taken by the Division Bench of the Madras High Court was that though the street vested in the Municipal Council, it does not transfer to the Municipality the rights of the owner in the site or soil over which the street exists. The question has been dealt with at some detail in the Madras decision and as it has been approved by this Court, it may be usefully referred to. The High Court while observing that if the land itself had been acquired by the Municipality, either by purchase or otherwise and roads and drains formed thereon, the Municipality would have been the owner of the land but if the street or highway over the land was dedicated to the public either by the State or by the owners of the land adjoining the highway will continue vested, subject only to the burden of the highway, in the state or the respective owners of the land on either side of the highway ad medium filum or in any other person who may have dedicated the street to the public as the case may be. The court after pointing out that the Madras Municipal Act was modelled after the English Metropolis Local Management Act, 1855, referred to the English cases which dealt with the vesting of the street in the Municipality and observed:
The conclusion to be drawn from the English case law is that what is vested in urban authorities under Statutes similar to the District Municipalities Act, is not the land over which the street is formed, but the street qua street and that the property in the street thus vested in a Municipal Council is not general property or a species of property known to the Common Law, but a special property created by statute and vested in a corporate body for public purposes, that such property as it has in the street continues only so long as the street is a highway by being excluded by notification of Government under Section 23 of Act IV of 1884 or by being legally stopped up or diverted, or by the operation of the law of limitation (assuming that by such operation the highway can be extinguished), the interest of the corporate body determines.
It is, therefore, clear that when a street ceases to be a highway by its being diverted to some other use, the interest of the corporate body determines. After referring to the decisions of the High Courts in India, it expressed its concurrence with the decisions in Chairman of the Naihati Municipality v. Kishori Lal Goswami, (1886) I.L.R. 13 Cal. 171, Madhu Sudan Kundu v. Pramoda Nath Roy, (1893) I.L.R. 10 Cal. 733 and Nihal Chand v. Amat Alikhan, (1885) I.L.R. 7 All. 362 and concluded that the nature or the right that vested in the Municipality as regards public-streets there is no disposal by the Indian Legislature of any land or hereditament vested in the Government. 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 as its owner, is entitled to intervene and maintain an action and to get any person in illegal occupation evicted....
11. In Himat Lal K. Shah v. Commissioner, of Police, Ahmedahad , the question was, whether under Bombay Police Act, the Commissioner of Police or the Government has got right to frame regulations for the use of the street. While considering the same, in paragraph 67 of the judgment, it has been entitled to use the highway or public road. Paragraphs 67 and 68 of the said decision can be usefully extracted:
There is no doubt that a "public street", as it is commonly understood, is really dedicated for the use of the public of the purpose of passing and repassing on it and not for any other purpose. In this respect, it appears to me that the law in this country, as laid down by this Court in Saghir Ahmad v. State of U.P. and the Municipal Board, Mangalur v. Mahadeoji Maharaj is not different from the law in England found stated in Halsbury's Laws of England (Halsbury's Laws of England - Third Edn. Vol. 19, p.73) as follows:
The right of the public is a right to "pass along' a highway for the purpose of legitimate travel, not to "be on' it, except so far as their presence is attributable to a reasonable and proper user of the highway as such A right to use a public highway for the purpose of carrying on transport business or other forms of trade, such as hawking, or, to take out a procession through it, is really incidental to a reasonable user of the highway by the public. It would be fully covered by the purpose for which the public road is deemed to be dedicated. But, as regards the supposed right to hold a "public meeting" on a highway, it appears to me that the following observations from Blackwell's "Law of Meetings" (9th Edn. p.5), could apply equally well here:
There appears to exist a view hat the public has a right to hold meetings for political and other purposes on the highway. This is an erroneous assumption. A public highway exists for the purpose of free passage only, and for purposes reasonably incidental to this right. There can be no claim on the part of persons who desire to assemble for the purpose of holding a meeting to do so on the highway. The claim is irreconcilable with the purpose for which a highway exists.
12. In Damodara Naidu and Ors. v. Thirupurasundari Animal and Ors. (1972)2 M.L.J. 4 our Court had occasion to consider a similar question. At page 6, it was held thus:
...In Machenzie's Law of Highways, Twenty-first Edition at page 58 it is stated as follows: "The owner of land adjoining a 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 rights 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....The right of the owner of land adjoining a highway to access to or from the highway from or to any part of his land is a private right, distinct from the right to use the highway as one of the public, and the owner of the land whose access to the highway is obstructed may maintain an action for the injury, whether the obstruction does or does not also constitute a public nuisance.
Thus it is seen that 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.
13. The said decision was followed in the decision reported in Govinda Asari v. The Kancheepuram Municipal Council represented by its Commissioner, (1981)2 M.L.J. 336 and it was held thus:
The right of the owner of the roadside property to have access to the road is a totally different right from the public right of passing and repassing along the highway and the right has been recognised in a number of decisions.
An owner of land which runs right up to a public highway is entitled to access to that highway from his land and that is so whether he is the presumptive owner of the soil of the highway or not.
The 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 property 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.
The Municipality has no right to cause obstruction even though there is a vesting of public road with it. From the Commissioner's Report, it is clear that the platform constructed by the defendant- Municipality causes great obstruction in the proper enjoyment of the same by the shop-owners. It also causes nuisance to other members of the public who are entitled to have free access to various shops.
14. Learned Counsel for the appellant submitted the construction of the platform was done in all good faith. They only wanted to prevent unlawful hawking and unauthorised assembly, and it was only for that purpose the construction was made. Whatever be the good intention on the part of the defendant- Municipality, if the construction in question causes nay hindrance to free public movement, it is bound to remove the same. The local Authority has got other statutory powers to prevent unauthorised hawking and unauthorised assembly if they are afraid of such contingency. The question of law is, therefore, found against the appellant.
15. In the result, the second appeal is dismissed. No costs.