In the considered view of this Court, whoever commits an illegal act of encroaching upon a public street, even if it is a temple, should be prevented from undertaking such an illegal act. If any structure is put up in the public street and thereby, the access to the public in using the street is restricted or prevented, such a structure has to be removed immediately. There used to be a time when some individuals developed an impression that they can encroach upon a public space in the name of a temple or by planting an idol in that place. Courts are no more concerned about who or in what name such encroachments take place. We have reached a situation where even if GOD encroaches upon a public space, Courts will direct removal of such encroachments, since public interest and rule of law must be safeguarded and upheld by Courts. Courts cannot be hoodwinked by encroaching and constructing a temple in the name of God. We have enough temples and no God has made any request to construct new temples by encroaching upon public space or by raising a structure in the name of the temple.
{Para 21}
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.A.No.190 of 2013 & M.P.No.1 of 2013
Arulmighu Palapattarai Mariamman Tirukoil Vs Pappayee
CORAM
E MR.JUSTICE N.ANAND VENKATESH
PRONOUNCING ORDERS ON : 25.03.2022.
Citation: MANU/TN/2918/2022.
The 1st defendant is the appellant in this Second Appeal.
2.The 1st and 2nd respondents/plaintiffs filed the suit seeking for the
relief of permanent injunction against the 1st defendant and to restrain the
1st defendant from interfering with the usage of the suit property by
putting up any structure or barricade and thereby, prevent the ingress
and egress to the property belonging to the plaintiffs. The plaintiffs also
sought for the relief of mandatory injunction to restore the suit AB portion
to its original position.
3.The case of the plaintiffs is that they became entitled to the
properties on the demise of their mother on 20.01.1984. According to the
plaintiffs, the portion shown as AB in the rough plan filed along with the
suit is a street called as Mariamman Koil Street which is classified as a
Poramboke in the revenue records and it is a public street vested with the
2nd defendant Municipality. On the southern side of this street exists the
Mariamman Temple at S.No.43. The street is in S.No.42 and the schedule
properties are in S.Nos.30, 31 and 32.
4.The further case of the plaintiffs is that for all the tenements in
S.Nos.30 and 31, their only access is from Mariamman Koil Street in
S.No.42 from time immemorial. Therefore, according to the plaintiffs, it
will not be open to anyone to prevent the user or cause obstruction to the
ingress and egress from any point in S.Nos.30 and 31 to this street in
S.No.42.
5.The grievance of the plaintiffs is that the 1st defendant was
making arrangements to put up a barricade in order to raise a structure in
the place that has been earmarked as a public street. The plaintiffs further
state that the said attempt was prevented by the 2nd defendant and in
spite of the same, hectic preparation was done to barricade and put up a structure. According to the plaintiffs, if the same is done, it will virtually block the ingress and egress to the property belonging to the plaintiffs. It is under these circumstances, the suit came to be filed seeking for the reliefs stated supra.
6.The 1st defendant filed a written statement and they took a stand
that S.No.42 is vested with the Mariamman temple and the temple car
was parked in that place and during the festival days, the temple car used
to be pulled and it was taken around the Mariamman temple. A further
stand was taken in the written statement to the effect that the renovation
and construction is done by the Committee and they should be made as
party in the suit. The 1st defendant denied all the claims made by the
plaintiffs and sought for the dismissal of the suit.
7.The 2nd defendant filed a written statement and took a stand that
S.No.42 has been categorized as a Sarkar Poramboke and Mariamman
temple street is situated in this survey number which runs from the
Mariamman temple to the Salem road. According to the 2nd defendant, the
1st defendant is putting up construction in the place belonging to them and
the plaintiffs do not have any right to question the same. Accordingly, the
2nd defendant also sought for the dismissal of the suit.
8.The trial Court on considering the facts and circumstances of the
case and after analyzing the oral and documentary evidence, dismissed
the suit through a Judgment and Decree dated 31.10.2007. Aggrieved by
the same, the plaintiffs filed an appeal in A.S.No.48 of 2011. The lower
Appellate Court on reappreciation of the oral and documentary evidence
and after considering the findings of the trial Court, allowed the appeal
through Judgment and Decree dated 28.03.2012 and thereby, the
Judgment and Decree of the trial Court was set aside. As a result, the suit
was decreed as prayed for. Aggrieved by the same, the 1st defendant has
filed the Second Appeal.
9.This court while admitting the Second Appeal, framed the
following substantial questions of law:
"1. Is not the lower Appellate Court wrong in
returning a finding that the T.S.No.42 was a public
street vested with a municipality contra to the case of
the second defendant in its pleadings and evidence
that it is a government porambooke land?
2. Is not the lower Appellate Court wrong in
decreeing the suit when the suit is bad for nonjoinder
of necessary party namely the government in
the face of evidence in the shape of Ex.B1 and B2
and the testimony of PW2, DW3 that T.S.No.42 is
government porambooke land and not a street vested
with the municipality namely the second defendant?
3. Was the lower Appellate Court right in
concluding that T.S.No.42 was a public street when
the plaintiff had failed to produce the acceptable
evidence to show that indeed it was a public street
vested with the second defendant?
4. Did not the lower Appellate Court commit an
error in decreeing the suit as prayed for when
through the recitals in Ex.A2 and A3 it was shown
that T.S.No.42 was not the only access to their
property and that they had no right of easement of
necessity to use T.S.No.42?”
10.Heard the learned counsel for the appellant and the learned
counsel appearing on behalf of the respondents.
11.This Court carefully went through the pleadings and also the
findings rendered by both the Courts below based on the evidence
available on record.
12.the trial Court dismissed the suit mainly on the ground that
Mariamman Koil Street is situated in a Sarkar Poramboke and it is not
within the control of the 2nd defendant and since the Government was not
made as a party, the same was put against the plaintiffs on the ground of
non-joinder of necessary party. The trial Court also gave a finding to the
effect that the access to the property of the plaintiffs was not through the
Mariamman Koil Temple street and there was no evidence to show that
the general public was using this as a public street and accordingly, the
suit was dismissed.
13.The lower Appellate Court went into the entire case by
reappreciating the oral and documentary evidence. The lower Appellate
Court held that S.No.42 has been categorized as a Sarkar Poramboke. For
rendering this finding, the lower Appellate Court took note of the evidence
of P.W.2 and the documents marked as Exhibits.A9, B1 and B2. Exhibit A9
was a notice that was sent by the 2nd defendant to the 1st defendant
calling upon them to stop the illegal construction put up in S.No.42 and to
remove the construction that has already been started by the 1st
defendant. By relying upon this document, the lower Appellate Court gave
a specific finding that the 2nd defendant was very much in control of the
street in S.No.42 and they cannot be allowed to take a different stand in
the suit. The lower Appellate Court further gave a finding that there is no necessity to add the Government as a party to the suit. This finding was given, since the street fell within the jurisdiction of the 2nd defendant Municipality and it was maintained by them and they have all the rights to remove any encroachment that takes place in the public street.
14.The lower Appellate Court also rendered a finding to the effect
that S.No.42 does not belong to the 1st defendant and it is clearly
categorized as a Sarkar Poramboke. That apart, there is a mention about
the street in the official records marked as Exhibits B1 and B2. While that
being so, the 1st defendant does not have any right to put up any
structure in the property which was used as a street accessible to the
general public. Hence, whoever is affected in using the street from among
the general public, will have the right to approach the Court to remove
the encroachment/ obstruction put up in the public street.
15.The lower Appellate Court also exhaustively dealt with the Report
of the Advocate Commissioner along with the sketch. The lower Appellate
Court found that there was a thar road in the street when the suit was
filed and during the pendency of the suit, it was removed and a structure
has been put up by the 1st defendant. On going through the details
provided in the Report of the Advocate Commissioner, the lower Appellate
Court found that there was space for only one person to go through the street, since almost the entire street was blocked by the 1st defendant by putting up the construction. The lower Appellate Court also found that the 1st defendant was proceeding further to put up the construction in spite of a Status Quo order operating against them and the entire construction was completed resulting in the shrinkage of the entire street to the extent that only one person can go through the street at any given point of time. This construction had also virtually prevented the plaintiffs from having ingress and egress to their property.
16.In view of all the above findings, the lower Appellate Court by
assigning proper reasons, differed with the findings of the trial Court and
the appeal was allowed. The lower Appellate Court directed the rough
sketch and the sketch submitted by the Advocate Commissioner and
marked as Exhibit C4 to form part of the Decree and directed the removal
of the obstruction.
17.In the present case, it is quite unfortunate that the 2nd defendant
Municipality virtually attempted to wash off their hands by blindly
supporting a flagrant encroachment made by the 1st defendant Temple.
This sudden change of stand taken by the 2nd defendant was probably due
to some official who was handling the case wrongly understanding the
term “God Fearing”. Admittedly, S.No.42 is classified as a Sarkar
Poramboke and the street is situated over this property and it was well
within the jurisdiction of the 2nd defendant and it was maintained by them.
That is the reason why they had issued Exhibit A9 notice to the 1st
defendant to immediately stop the encroachments made upon the public
street. While so, they took a completely contrary stand as if the
Government was in control of the street in S.No.42. This issue was
properly dealt with by the lower Appellate Court and it was rightly held
that such a technical plea will not in any way justify the act of the 1st
defendant in encroaching upon a public street and putting up a
construction. There was absolutely no requirement to add the
Government as a party to the proceedings just because S.No.42 has been
categorized as a Government poramboke. This is a hyper-technical plea
which will not come to the aid of the 1st defendant who had committed a
public wrong by encroaching upon a street which was used by the general
public. In cases of this nature, the Courts should not be swayed by
technical objections and the over all interest of the public must be the
guiding factor. All these issues have been properly dealt with by the lower Appellate Court and this court does not find any ground to interfere with the findings rendered in this regard. The first, second and third substantial questions of law are answered accordingly.
18.There is no requirement to approach this case from the stand
point of right of easement. It is not necessary for the plaintiffs to prove
that S.No.42 is the only access to their property. Even assuming that the
plaintiffs have an alternate access to their property, that does not mean
that the plaintiffs can be deprived of their right to use a public street for
ingress and egress to their property. The law on this issue is too well
settled and it will be more beneficial to take note of the judgment of this
court in K.Sudarsan and others vs. The Commissioner, Corporation
of Madras and others reported in AIR 1984 MADRAS 292.
19.The relevant portions in the judgment are extracted hereunder:
14.Before considering the preliminary objections raised
by Mr. Kesava Iyengar with regard to the maintainability of
the writ petitions, it is necessary to consider the common law
right of highway and also the right of the petitioners to use
Ranganathan Street and Rattan Bazaar Road and N. S. C.
Bose Road to pass and repass, The highway is a passage over
which members of the public are entitled to pass and repass.
The essential characteristic of a highway is that every person
should have the right to use it for the appropriate kind of
traffic. The road or part over which only a particular class of
people or a few individuals are allowed to pass and repass
cannot be a highway. In Halsbury's Laws of England, Third
Edition, Vol. 19, at page 12, highway is defined thus:
"A highway is a way over which all members of
the public are entitled to pass and repass; and
conversely, every piece of land which is subject to that
public right of passage is a highway or part of a highway
It is, however, an essential characteristic of a highway
that every person should have a right to use it for the
appropriate kind of traffic, subject only to any
restrictions affecting all passengers alike. It follows that
a road or path over which only individuals, or a limited
class of the public (for example, the inhabitants or
occupiers of a particular house, field, or village) have a
right of passage, is not a highway."
As regards the extent of the right of the public over the
highway, it is stated thus at page 73: "The right of the public
is a right to 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 person who is found using the
highway for other purposes must be presurned to have
moone thcre for such purposes and not with a legitimate
object, and as against the owner Of the soil he is to be
treated as a trespasser.
Again with regard to the right of access to the highway
by adjoining owners, the law is stated at page 78 thus:
"An owner of land adjoining a highway is entitled to
access to such highway at any point at which his land
actually touches it, even though the soil of the highway
is vested in another, but he has no such right if a strip
of land, however narrow, belonging to another and not
subject to the public right of passage, intervenes.
An adjoining owner's right of access from his premises
to the highway and vice versa is a private right, and is distinct
from his right to use such highway as soon as he is upon it,
which (at any rate if the soil of the highway is not his)' he
enjoys only as a member of the public. The right of access is
not limited to the right to pass from the premises to the
highway and vice versa, but includes the right of access to a
wall on the boundary of the premises."
As regards the remedy for interference with the right of
access to highway Halsbury states at page 79 thus:
"Interference with a private right of access will, if
wrongful, support an action and an adjoining owner may
accordingly recover damages where an unreasonable
use of the highway has rendered access to his shop
unnecessarily inconvenient to himself or his customers.
If the interference is also a public nuisance, he is
entitled to recover in respect thereof if he can show
particular damage, and if the obstruction, though near
to a person's premises, interferes only with his public
right, and not with his private right of access, his claim
must be based on the ground of a public nuisance
causing special damage to him.
Where, however, the interference is authorised by
statute no action will lie, and there will be no remedy unless
compensation is provided for by the statute." Again at page
283 it is stated as follows:
"At common law the duty of repairing a highway
includes the duty of preventing and removing
obstructions, and if a highway authority sustains special
damage it may bring an action for damages. This duty
and power is supplemented by general statutory powers
and by specific statutory powers to abate nuisances
summarily or to prevent their creation."
Salmond in his Law of Torts, 17th edition, at page 79
describes highway thus:
"A highway (including in that term any public way) is a
piece of land over which the public at large possesses a
right of way. A highway extends to the whole width of
the space between the fences or hedges on either side
partly in order to admit light and air to, it ' and partly
because Macadam's system of road-making with broken
stone was not introduced at the earliest until just before
the end of the eighteenth century."
The learned author again states at page 80 thus:
"Every person who occupies land immediately adjoining
a Highway has a private right of access to the highway
from his land and vice versa., and any act done without
lawful justification whereby the exercise of this private
right is obstructed is an actionable wrong. This right of
access is a private right of property, and if what is
complained of is sufficiently substantial to constitute an
interference with that right, he may recover at least
nominal damages, for it is an example of an action on
the case succeeding without Proof of special damage.
...... At common law a frontager had the right of
entrance and exit from his land on to a highway at any
point. But this common law right has been greatly cut
down by statutes (see, for example, the Highways Act,
1959, S. 155) especially since local authorities have had
vested in them the surface of the highway. ... This right
of access to a highway by the occupier of land abutting
upon it must be distinguished from the right of passing
along the highway. The former is a private and the
latter a public right, and for any infringement of the
former an action will lie: whereas, as we shall see in the
next section, no action will lie for an infringement of the
public right of passing except on proof of some special
or particular consequential damage suffered by the
plaintiff. The private right of access thus protected
includes merely the right to get from the highway into
the plaintiff's land, and from his land into the highway;
and does not include a right to get to and from the
plaintiff's land by going along the highway, for this is
merely the public right of passage. A disturbance of this
private right of access may or may not be at the time a
disturbance of the public right of passage."
In Harvey v. Truro Rural District Council (1903 LR 2 Ch 638)
Joyce, J. has observed as follows:-
"In the case of an ordinary highway running
between fences, although it may be of a varying and
unequal width, the right of passage or way prima facie
and unless there be evidence to the contrary, extends
to the whole space between the fences, and those
public are entitled to use the entire of it as highway,
and are not confined to the part which may be metalled
or kept in order for the more convenient use of
carriages and foot passengers." The learned Judge has
again observed:
"........... as Lord Tenterden observed in Rex v.
Wright (1832, 3 B & Ad 681). 'The space at the sides'
(that is of the hard road) is also necessary to afford the
benefit of air and sun. If trees and hedges might be
brought close up to the part actually used as road it
could not be kept sound."
In the Madras City municipal Corporation Act, a public
street is defined in S. 2 (20) thus:
"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 foot-way attached to any such street, public
'bridge or causeway and
(c) the drains attached to any such street, public bridge
or causeway and the land, whether covered or not by any
pavement, veranda, 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.
Street-alignment 'is defined thus under S. 2 (26) of the:
Act: ' "Street-alignment means A line dividing the land
comprised in adjourning a part of a street from Adjoining
land."
Section 203 of the Acts deals with vesting of public
streets and their appurtenances in the corporation. It reads
thus:
"All public streets in the city were served under
the control of the Central or the State Government, with
the pavements, stones and other materials there of,
and all works, materials, implements and other things
provided for such streets, 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 property growing
on public streets or by the side thereof, shall vest in the
corporation.
(2) The State Government may by notification withdraw
any such street, drain, drainage, work , tunnel, culvert or tree
from the control of the corporation.
Section 204 reads thus:
.."The corporation shall cause the public streets to be
maintained and repaired, and may make all
improvements there to which are necessary or
expedient for the Public safety or convenience e.g.
Section 220. reads thus:
"No one shall build any wall or erect, any fence or
other obstruction or projection or make any
encroachment in or over any street or any public place
the control of -which is vested in the corporation except
as hereinafter provided."
Section 221 reads thus:
"(1) The Commissioner may by notice, require the
owner or occupier of any premises to remove or alter
any projection, encroachment or obstruction (other than
a door, gate, bar, or ground-floor window) !situated
against or in front of such premises and in or over any
street or any public place the control of which is vested
in the corporation.
(2)If the owner or occupier of the premises
proves that any such projection, encroachment or
obstruction has existed for a period sufficient under the
law of limitation to give him a prescriptive title or where
such period is less than thirty years, (for a period of
thirty years) or that it was erected with the' consent of
any municipal authority duly empowered in that behalf,
and that the period, if any,' for which the consent is
valid has not expired. the corporation shall make rea-,
s0nable compensation to every person who suffers
damage by the removal or alteration of the same."
Section 223 reads Section 223 (1) ......
(2) With, the concurrence of the Commissioner of
Police the Commissioner may' grant a licence subject to
such conditions and restrictions as he may think fit, for
any temporary construction in any street or any public
Place the control of which is vested in the corporation.
(3) No licence shall be granted under sub-,section
(1) if the projection or construction is likely to be
injurious to health or cause public inconvenience or
otherwise materially interfere or result in material
interference 'with the Use of the read as such..
(4) On, the expiry of any period for which a
licence has been granted under ibis, section of after due
communication of an order of suspension or revocation
Of such licence the Commissioner may without notice,
cause any projection or construction put up under subsections
(1) or (2) to be removed, and the, cost of so
doing shall be recoverable in the~ manner provided in
Section 387 from the Person to whom the licence was
granted.
(5) The council shall have power to lease road
sides and street margins vested in the corporation for
occupation on such terms and. conditions and for such
period as it may fix. Provided that no such lease for any
term exceeding three years shall be Valid unless the
sanction of the State Government therefore shall have
been first obtained :
Provided further that if the State Government
consider that any occupation of a road side or street
margin under a lease granted by the council under this
section is likely to, be injurious to health or cause public
inconvenience or otherwise materially interfere with use
of the toad side or street margin as such, the State
Government may direct the council to cancel or modify
the lease and the council l shall thereupon cancel or
modify the lease accordingly".
15.From the above provisions of the Act, it is clear that
all public streets and their appurtenances vest in the
Corporation. No one has got a right to build any wall or erect
any fence or other obstruction or projection or make any
encroachment in or over any street, which is vested in the
Corporation except as otherwise provided. Section 223(2) of
the Act confers power on the Commissioner of the
Corporation of Madras with the concurrence of the
Commissioner of Police to grant licence for any temporary
construction in any street or any public place the control of
which is vested in the corporation and the licence will be
subject to such conditions and restrictions as he may think fit,
Under Section 22 (1)the Commissioner has got the power
grant a licence to the owner or occupier of any premises to
put up certain projections or constructions. But such
projection or construction shall not be likely to be injurious to
health or cause public inconvenience or otherwise materially
interfere or result in material interference with the use of the
road as a road. On the expiry, of the period 'of the licence the
projection or temporary construction is likely to be removed
.Section 223 (5)confers; power on the Commissioner to lease
out road sides and street margins vested in the corporation
for occupation on such terms and conditions and for such
period as it may fix. Any lease for a term years shall not be
valid unless the sanctions of the State Government is
obtained. Any such lease shall not be injurious to health or
cause public inconvenience or otherwise materially interfere
with the use of the road side or street margin.
16.The Vesting of public street in the Municipalities
under the Madras District Municipalities Act 18984 came up
for consideration before a Bench of this Court in S. Sundaram
Ayyar v. Municipal Council of Madras and The Secretary of
State for India in Council (1902 ILR 25 Mad 635) where it is
observed 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 caelum, but, it has the exclusive
right to manage, and control the surface of the soil and
so much of the soil below and of space above the
surface as is necessary to enable it to adequately
maintain The street as a ~treel. 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."
In Municipal Board Of Agra v. Sudarshan Das Shastri
(1915 ILR 37 All 9) : (AIR 19.14 All 341) a Division Bench of
the Allahabad High, Court observed'. as follows:
" in our opinion all the ground, whether metalled
or not, over which the public had a right of way, is just
as much the public road as the metalled part. The Court
would be entitled to draw the inference that any land
over which The public from time immemorial had been
accustomed to travel was a public street or road, and
the mere fact that a special part of it was metalled for
the greater convenience of the traffic would not render
the unmetalled portion on each side any the less a
public road or street."
The scope of the words "public" street or road or any
part thereof" occurring in Article 146-A of the Limitation' Act
arose for consideration in Anukul Chandra v. Dacca Dist.
Board (AIR 19.28 Cal 485) where Suhrawardy, J. observed as
follows :-
"The expression road or high way has been
considered in many cases in England and it seems that
the interpretation put there is not confined to the
portion actually used by the public life but it extends
also to the side lands. See the cases in Rex v Wright
(1882 3 B & Ad. 681) and turner v. Ringwood Highway
Board (1870 LR 9 Eq 418). I am not prepared to put too
narrow meaning on the expression 'public street' or
'road' in Article 146-A ,as it is intended to safeguard the
interest of public bodies which are not expected to be as
vigilant over their rights as private individuals. I am of
opinion that road in that article includes the portion
which is used as road as also the lands kept on two
sides as parts of the road for the purposes of the road."
In Municipal Board v. Mahadeoji after referring to the above
decisions, the law is summarised thus (Para 8):-
"The law on the subject may be briefly stated
thus: Inference of dedication of a highway to the public
may be drawn from a long user of the highway by the
public. The width of the Highway so dedicated depends
upon the extent of the user. The side lands are
ordinarily included in the road, for they are necessary
for the proper maintenance of the road, In the case of a
pathway used for a long time. by the public, its
topographical and permanent landmarks and the
manner and mode of its maintenance usually indicate
the extent of the user.', The Supreme Court again
observed thus (Paras 9 and 10):
"In the present case it is not disputed that the,
metalled road was dedicated to the public. As we have
indicated earlier 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 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. 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.
If that is the legal position, two results flow from
it, namely (1) 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, (2) 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"
17.The extent of the right of a member of the public to
pass and repass over a public street came up for
consideration before a Bench of the Andhra Pradesh High
Court in M. Butchamma v. Venkateswararao . There, the
prayer for mandatory injunction for the removal of obstruction
placed upon a public street was rejected by the trial Court and
the lower appellate Court, on the ground that notwithstanding
obstruction placed by plaintiff the street was wide enough to
afford passage to cattle and carts and the plaintiff had not
established any special damage entitling her to the relief by
way of mandatory injunction. On appeal, Chinnappa Reddy J
(as he then was) has observ-2d as follows (Para 5):
"The defendant cannot be heard to say that the
obstruction 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. As we have said, 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."
In this context, the learned Judge extracted the
following passage from Peacock in his 'Law Relating to
Easements in British India:-
"As already explained, a public right of way, being
unconnected with a dominant tenement is a right in
gross and clearly distinguishable from an easement. It
is exercised over what is called a 'Highway........The
extent and mode of enjoyment of a high way must be
measured by the user as proved, or by the terms of the
deed when the right is so granted, but in the absence of
evidence to the contrary the public are entitled to the
whole width of the way without any such restriction as
may be imposed by the owner of the servient tenement
in the case of a ore scriptive private way. In Regina v.
United Kingdom Electric Telegraph Co. (1862) 6 LT 378,
Martin B., laid down the proposition which was accepted
by the Court on a motion for a new trial: 'In the case of
an ordinary highway, although it may be of a varying
and unequal width, running between fences one on each
side the right of passage or way, prima facie, and
unless there be evidence to the contrary, extends to the
whole space between the fences; and that public are
entitled to the use oil the entire of it as the highway and
are not confined to the part which may be metalled or
kept in order for the more convenient use of carriages
and foot passengers'.
18.In Damodara v. Thirupurasundari , Raghavan, J.,
had to deal with the right of owners of land adjoining the
highway to go upon the highway from any point on their land.
The learned judge observed thus (para 7):-
"The plaintiffs being owners of land abutting the
highway have an undoubted right of access to the street
from any part of their premises. In Mackenzie's Law of
Highways, 21st Edn. 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 adjacent 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 right of the public, an 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 l2nd 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 of 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."
19.From the above decisions the following principles
emerge. Every member of the public has got a right to pass
and repass over a highway or a public street. The said right of
the public is a right to pass along the highway for the purpose
of legitimate travel, not to be "on it" except to the extent their
presence is attributable to a reasonable and proper user of
the highway as such. The right of the public to pass and
repass extends over the whole width of the highway or the
street, in other words, over every inch of the street. A
member of the public cannot be compelled to -confine himself
to a part of the street at the choice of another. The owner of a
property adjacent to a highway or a public street has got a
right of access to such highway or street at any point at which
his land actually touches it. His right of access from his
premises to the highway and vice versa is a private right.
However, his right to use such highway or public street as
soon as he is "on the highway" or the public street becomes a
public right.
20.This court exhaustively extracted the portions of the above
judgment, since the above judgment had beautifully captured the right of
the member of the general public to use every inch of a highway or a
public street. It was further held that the owner of the property adjacent
to a public street has got the right to access to such street at any point
at which his property actually touches the street. This judgment is the
direct answer for the fourth substantial question of law that has been
framed by this Court.
21.In the considered view of this Court, whoever commits an illegal
act of encroaching upon a public street, even if it is a temple, should be prevented from undertaking such an illegal act. If any structure is put up in the public street and thereby, the access to the public in using the street is restricted or prevented, such a structure has to be removed immediately. There used to be a time when some individuals developed an impression that they can encroach upon a public space in the name of a temple or by planting an idol in that place. Courts are no more concerned about who or in what name such encroachments take place. We have reached a situation where even if GOD encroaches upon a public space, Courts will direct removal of such encroachments, since public interest and rule of law must be safeguarded and upheld by Courts. Courts cannot be hoodwinked by encroaching and constructing a temple in the name of God. We have enough temples and no God has made any request to construct new temples by encroaching upon public space or by
raising a structure in the name of the temple.
22.In the present case, it is quite unfortunate that the 1st defendant
Temple proceeded to put up the construction in spite of a status quo order
and they virtually completed the construction. The photographs that were
produced before this Court shows that the plaintiffs have been completely
prevented from having any access to the public street from their property.
They have to be literally air dropped in to their property. The conduct of
the 1st defendant Temple is highly condemnable.
23.in view of the above discussion, this court does not find any
ground to interfere with the Judgment and Decree of the lower Appellate
Court and all the substantial questions of law are answered against the
appellant.
24.In the result, the second appeal is dismissed with cost through
out. The suit is decreed as prayed for. There shall be a direction to the 1st
defendant to remove the entire construction put up in S.No.42, within a
period of two months from the date of receipt of copy of this order. If the
1st defendant fails to remove the illegal structure within the time
stipulated by this Court, the 2nd defendant is directed to remove the
structure and ensure that the public street is kept free from any
encroachment and the public is able to have easy access. Consequently,
connected miscellaneous petition is closed.
25.03.2022
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