M.Balasubramaniam vs The District Collector
2021 Latest Caselaw 23995 Mad

                                                                                    W.P.No.20058 of 2014

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 07-12-2021

                                                          CORAM

                              THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
                                                 W.P.No.20058 of 2014
                                                         and
                                                  M.P.No.1 of 2014

                     M.Balasubramaniam                                                ... Petitioner

                                                            Vs
                     1.The District Collector,
                     Cuddalore District,
                     Cuddalore.

                     2. The Executive Officer,
                     Sethiyathope Town Panchayat,
                     Sethiyathope,
                     Cuddalore District.

                     3. The Divisional Engineer,
                     National Highways,
                     National Highways NH-45c,
                     Tanjore Division, Tanjore.                                    ...Respondents
                     PRAYER : Writ Petition filed Under Article 226 of the Constitution of
                     India, to issue a writ of Mandamus, forebearing the respondents from
                     putting up any construction over the National Highway NH-45C in blocking
                     the access to the petitioner's property bearing Survey No.204/1L4 at
                     Sethiyathope.
                                    For Petitioner      :Mr.P.R.Thiruneelakandan

                     1/12

https://www.mhc.tn.gov.in/judis
                                                                                        W.P.No.20058 of 2014



                                        For Respondents :M/s.N.Senthil Selvi
                                                         Government Advocate
                                                         [For R1 to R3]

                                                             ORDER

The relief sought for in the present writ petition is to forbear the

respondent from putting up any construction over the National Highway

NH-45C in blocking the access to the petitioner's property bearing Survey

No.204/1L4 at Sethiyathope.

2. The petitioner states that he purchased a piece of land to an extent

of 715 Sq.ft in Survey No.204/1L4 at Sethiyathope, Cuddalore District

through a registered sale deed in Document No.436/1993. The petitioner

had put up two storied building (underground + basement + 1st floor + 2nd

floor), in which, he started hardware business in the name of “Muniaiyah

hardware”.

3. The learned counsel for the petitioner states that the Highway

Authorities proposed to construct a Bus stop in the Highways Road in front

of the property belongs to the petitioner. It is contended that the right of

https://www.mhc.tn.gov.in/judis W.P.No.20058 of 2014

access to the property cannot be taken away by constructing a Bus stop. The

petitioner has got a right of property, so also to run his business in a

peaceful manner. In the event of allowing any construction in the Highways,

the petitioner will be deprived of his right of business in the particular

locality.

4. The learned counsel for the petitioner relied on the judgment of this

Court in Second Appeal No.678 of 2004 decided on 27.08.2012 and

contended that “the right of immediate access is ensured in the said

judgment and paragraph 13 of the Judgment is as under:

“13. 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.”

5. The learned Government Advocate appearing on behalf of the

https://www.mhc.tn.gov.in/judis W.P.No.20058 of 2014

respondent disputed the contention by stating that construction of Bus stop

for the benefit of the public at large was proposed from and out of the MLA

Constituency Development Fund and it was sanctioned on 23.12.2013.

Construction commenced and thereafter, the petitioner filed the writ petition

and by virtue of the interim order granted, the respondents are unable to

proceed with the construction.

6. It was proposed to construct a Passengers shelter near Rajiv

Gandhi Statue at Sethiyathope under the Bhuvanagiri MLA Constituency

Development Scheme for the year 2012-13 and administrative sanction for

the work proposal was also accorded by the first respondent. An amount of

Rs.15 lakhs was allotted for this purpose. Technical sanction was estimated.

It is contended that the proposed construction of the Bus shelter lies on the

eastern side of the Vikravandi – Kumbakonam – Tanjore National

Highways Road. The length and breath of the proposed construction is 24

and 4 metres respectively.

7. The Special Tahsildar (Land Acquisition), National Highways,

https://www.mhc.tn.gov.in/judis W.P.No.20058 of 2014

Kattumannarkoil has informed the project Director (Land Acquisition),

Tanjore that there is no proposal for the acquisition of the land for National

Highways in the site proposed for the construction of bus shelter at

Sethiyathope. The Project Director (LA), Tanjore has forwarded a copy of

the report of the Special Tahsildar to the Executive Officer, Sethiyathope

Town Panchayat for taking necessary action. Tenders for the construction

work was called for five times and on 20.12.2013, the lowest tender was

accepted and work order was issued on 23.12.2013.

8. The request of the petitioner was considered and the meeting was

convened in the presence of the MLA Bhuvanagiri, President of the

Business Association, the Sub-Inspector of Police, the President of the

Sethiyathope Town Panchayat and the Executive Officer. In that meeting, it

was agreed by all the participants that the shelter construction area may be

divided into two, one on the eastern side of the road and the other on

western side of the road without giving any disturbance both for the

business people and for the traffic.

https://www.mhc.tn.gov.in/judis W.P.No.20058 of 2014

9. The petitioner having not satisfied with the decision taken in the

meeting, filed the present writ petition.

10. The learned Government Advocate made a submission that the

Bus shelter is proposed for the benefit of the people at large and the

construction works had commenced. Under these circumstances, the writ

petition is to be rejected.

11. The Right of access to a private property must be ensured. No

doubt, the petitioner is running a business by constructing a building in his

property. But, the respondents states that the constructions made are in

violation of the building rules. However, it is for the authorities to conduct

an inspection and initiate appropriate action.

12. As far as the present writ petition is concerned, the petitioner

states that his right of access is denied. In this regard, there is no dispute

that the right of access cannot be denied to any person, who is running a

https://www.mhc.tn.gov.in/judis W.P.No.20058 of 2014

business in his property.

13. The learned Government Advocate states that the right of access

is not denied to the petitioner and construction of bus shelter will not affect

the access to the petitioner's private property. In this regard, the grievances

of the petitioner was considered and the meeting was convened in the

presence of the MLA Bhuvanagiri, President of the Business Association,

the Sub-Inspector of Police, the President of the Sethiyathope Town

Panchayat and the Executive Officer. In the said meeting, it was agreed that

the shelter construction area may be divided into two, one on the eastern

side of the road and the other on the western side of the road. However, the

decision taken in the meeting was not agreeable to the petitioner. Thus, the

writ petition is filed.

14. Public interest will prevail over the private interest. Construction

of Bus shelter for the benefit of the public at large is of paramount

importance. No doubt, property right of an individual is also to be protected.

However, if necessary, for execution of such public project, the Government

https://www.mhc.tn.gov.in/judis W.P.No.20058 of 2014

is empowered to invoke the acquisition laws. But, in the present case, there

is a finding that there is no such proposal as of now for acquisition of the

private property. A proposal is to construct a Bus shelter in the Highways

land and an alternate solution is also considered in the meeting.

15. This being the factum, mere construction of Bus shelter will not

deny access to the petitioner's property. However, if any building violations

are committed by the petitioner, then he may not have any right to claim any

portion of the Highways property.

16. It is a growing practice in urban areas that the traders and

businessmen are frequently encroaching the Highways land and

constructing the Commercial Buildings in violation of the Building Rules,

more specifically, by not providing any space for parking as required under

the Building Rules. Such illegal constructions and violations are causing

greatest hindrance to the free flow of traffic in the Highways and further

causing nuisance to the road users. Public roads are being occupied for the

purpose of parking vehicles. Unguided and haphazard parking of vehicles

https://www.mhc.tn.gov.in/judis W.P.No.20058 of 2014

are posing a threat to the road users. Further such illegal constructions and

illegal parkings are the reasons for road accidents on many occasions. The

Authorities are not initiating any action against such illegal constructions

and violations in the Highways land. Thus, it is duty mandatory on the part

of the Highways Authorities, Police Department, Revenue Department and

other Government Departments to ensure that free flow of traffic is being

maintained, illegal parkings are controlled by enforcing the law and all

appropriate actions are initiated to evict the encroachers so also to demolish

the illegal constructions in order to develop the Highways road and other

areas for the benefit of the public at large and more-so, to avoid road

accidents in such areas.

17. Mostly, these kind of writ petitions are filed since the

businessmen have constructed the Commercial Buildings in such a manner

without following the Building Plan Approval and in violation of the

Building Rules in force. No doubt, while constructing the Bus Shelters, the

Authorities are bound to ensure access to the Commercial Buildings

constructed in the Highways. But it does not mean that the traders can file

https://www.mhc.tn.gov.in/judis W.P.No.20058 of 2014

writ petitions preventing the Authorities from constructing the Bus Shelters

for the benefit of the people at large. Thus the Bus Shelters are to be

constructed ensuring access to the Commercial Premises of that locality.

Equally the encroachments, building violations and illegal parking of

vehicles are also to be dealt with in accordance with law and all suitable

actions are to be initiated by following the procedures.

18. With these observations, the writ petition stands disposed of. No

costs. Consequently, connected miscellaneous petition is closed.

07-12-2021 Internet:Yes Index : Yes Speaking order:Yes kak/Svn

https://www.mhc.tn.gov.in/judis W.P.No.20058 of 2014

To

1.The District Collector, Cuddalore District, Cuddalore.

2.The Executive Officer, Sethiyathope Town Panchayat, Sethiyathope, Cuddalore District.

3.The Divisional Engineer, National Highways, National Highways NH-45c, Tanjore Division, Tanjore.

https://www.mhc.tn.gov.in/judis W.P.No.20058 of 2014

S.M.SUBRAMANIAM, J.

kak/Svn

W.P.No.20058 of 2014

07-12-2021

https://www.mhc.tn.gov.in/judis