Madras High Court
M.M.Shanmugam vs Dr.A.K.D.Kumar on 3 March, 2021
C.M.A.No.2688 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.03.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.2688 of 2018
and
C.M.P.No.20281 of 2018
M.M.Shanmugam ..Appellant
Vs.
1.Dr.A.K.D.Kumar
2.The Commissioner,
Corporation of Chennai,
Having Office at Rippon Buildings,
Park Town,
Chennai – 600 003.
3.The Assistant Executive Engineer,
Division No.45, Zone 15,
Corporation of Chennai,
Sholinganallur,
Chennai – 600 119. ..Respondents
Prayer : Civil Miscellaneous Appeal filed under Order 43 Rule 1(r) of
C.P.C., to set aside the order and Decreetal order dated 10.04.2017 made
in I.A.No.1057 of 2016 in O.S.No.169 of 2016 on the file of Principal
District Court of Kancheepuram District at Chengalpattu.
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C.M.A.No.2688 of 2018
For Appellant : Mr.M.S.Krishnan
Senior Counsel
For M/s.Sarvabhauman Associates
For Respondents : R1 – Mr.S.Rajasekar
R2 & R3 – M/s.Karthikaa Ashok
Senior Standing counsel
[For Chennai Corporation]
JUDGMENT
The Fair and Decreetal order dated 10.04.2017 passed in
I.A.No.1057 of 2016 is under challenge in the present Civil
Miscellaneous Appeal.
2. The 5th defendant is the appellant before this Court. The 1st
respondent is the plaintiff, who instituted a suit for Declaration of title
and for Permanent injunction. Along with the suit, the 1st defendant filed
an Interlocutory Application in I.A.No.1057 of 2016 for interim
injunction. The trial Court adjudicated the grounds raised by the
respective parties in the Interlocutory Application and granted an
injunction on the ground of balance of convenience and a prima facie
case of title was established by the 1st respondent / plaintiff.
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3. The learned Senior counsel appearing on behalf of the appellant
mainly contended that the very observation made by the trial Court with
reference to the prima facie case of title in favour of the 1st respondent
itself is erroneous, in view of complicated nature of facts and
circumstances and, those facts and circumstances are to be adjudicated
elaborately with reference to various documents and evidences. If such
an opinion is formed by the trial Court regarding the title of a suit
property, then the same would affect the other parties to the suit, while
adjudication of issues during the final hearing. The learned Senior
counsel is of an opinion that the 1st respondent has encroached the
public road as per the approved layout and therefore, the said portion of
the encroachment is to be removed for the benefit of the general public.
With reference to the other issues, the parties may be given liberty to
adjudicate elaborately during the trial. The learned Senior counsel made
a submission that the 1st respondent has no title at all. The trial Court,
while deciding the Interlocutory Application, gone to the extent of
adjudicating the title and form an opinion and granted an injunction and
therefore, such observations would affect the rights of the other parties
during the final adjudication.
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4. The learned counsel appearing on behalf of the 1st respondent
objected the said contentions by stating that based on certain admitted
facts, the 1st respondent had established his title. In view of the fact that
the 1st respondent/plaintiff could able to establish his title before the trial
Court, the trial Court made a finding that the plaintiff established prima
facie case of title and applying the principles of balance of convenience,
an injunction was granted. The earlier notice issued by the Chennai
Corporation authorities was challenged by the first respondent and the
matter went up to the Hon'ble Division Bench and the Hon'ble Division
Bench made a finding that the parties have to adjudicate the issues
before the competent Civil Court and with that observation, the 1st
respondent approached the Civil Court for Declaration of title and for
Permanent injunction.
5. The learned counsel for the 1st respondent is of an opinion that
when the documents pertaining to the title of the 1st respondent is
unambiguous and the trial Court could able to arrive a conclusion that a
prima facie title is made out, then there is no error in granting injunction
and further, the 1st respondent is ready to establish the said title during
the trial. As far as the allegation of encroachment is concerned, the
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learned counsel for the 1st respondent is of an opinion that he was not a
purchaser from the VGP layout and in fact, he purchased from the
original owners, from whom VGP purchased 40 acres alone and formed
a layout. As far as the properties belongs to the 1st respondent is
concerned, it is not part and parcel of VGP layout and therefore, his
right is independent and the same is to be adjudicated before the Civil
Court with reference to the documents and evidences.
6. The 1st respondent in his pleadings in and before the trial Court
contended that his purchase from his vendor is absolutely unconnected
with the VGP layout and therefore, he has not encroached upon the
public land and he is in possession of his own land purchased from the
vendor and therefore, there is no infirmity as such in respect of the order
of interim injunction granted by the trial Court pending disposal of the
suit.
7. The learned counsel appearing on behalf of the Chennai
Corporation strenuously contended that the public road is encroached by
the 1st respondent. The layout was approved by the competent authorities
namely the Director of Town and Country Planning and the said
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approval of layout was granted on 07.06.1975. Thereafter, the VGP
Partnership Firm sold the plots in the layout to many individuals and
those individuals purchased the plots from the VGP layout, constructed
their respective buildings by obtaining building approval from the
competent authorities. The approval was granted in the year 1975 itself.
As far as plot numbers 18, 19 and 20 are concerned, the said plots have
no other approach road, except the encroached portion by the 1st
respondent. Simply because the owner of Plot No.19 purchased an
opposite Plot No.40, he could able to create a pathway but the road
earmarked for the usage of public in general is encroached by the 1st
respondent. Therefore, the very approved layout clearly states that the
portion under the possession of the 1st respondent is earmarked as public
road for the usage of public in general. The said road is the connecting
road for the next layout and therefore, the Corporation authorities issued
a notice and the said notice was challenged by the 1st respondent by way
of a writ petition and the writ petition was disposed of with the direction
to conduct a re-survey. Pursuant to the orders of the High Court, re-
survey was conducted and the report was submitted, holding that the 1st
respondent was encroached the road. Thereafter, the 1st respondent
approached the Hon'ble Division Bench and the Hon'ble Division Bench
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granted liberty to the parties to approach the Civil Court and directed the
Corporation Authorities not to demolish the encroached portion for a
period of three weeks, enabling the 1st respondent to file a suit. Till such
time, Status quo was granted. Pursuant to the said order of the Hon'ble
Division Bench, the 1st respondent instituted a Civil Suit and in the Civil
Suit, the interim injunction was granted.
8. The learned counsel for the Chennai Corporation made a
submission that the trial Court granted injunction mainly on the ground
that the 1st respondent established his title and further, based on the
liberty granted by the Hon'ble Division Bench of this Court. As far as
the orders of the Hon'ble Division Bench is concerned, the Division
Bench granted liberty to the 1st respondent to approach the Civil Court
and the issues were not proceeded by the Hon'ble Division Bench.
Status quo granted for three weeks is only for the purpose of
approaching the Civil Court and therefore, such a Status quo granted for
three weeks by the Hon'ble Division Bench cannot be construed as if the
rights of the 1st respondent is established before the Hon'ble Division
Bench. Thus the trial Court completely misconceived the orders passed
by the High Court and granted Status quo without considering that as
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per the approved layout, it is a public road and the 1 st respondent
encroached the public road.
9. This Court perused the approved layout and the layout was
approved by the competent authority namely the Director of Town and
Country Planning in the year 1975. Admittedly, the 1 st respondent has
not raised any objections nor preferred any appeal before the competent
authority to review the layout or to cancel the layout under the
provisions of the Town and Country Planning Act or under the
Development Control Rules. Layout became final. Pursuant to the
layout, many persons purchased plots from the developers and they have
developed their plots by constructing residential buildings and now it
became a developed area and therefore, the people in that locality cannot
be prevented from using the public road, which is earmarked as per the
approved plan by the competent authority.
10. Once the approved plan became final and the layout was
developed now after a lapse of about 40 years, the 1st respondent
instituted a suit, praying for Declaration and Permanent injunction.
Therefore, the rights accrued to the public in general pursuant to the
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layout, cannot be taken away by an individual, more so, after a lapse of
about 40 years. Even presuming that the 1st respondent purchased
property from the original owner, his remedy would be against his
vendor and not against the public. For the benefit of such public, the
roads were formulated and approved by the competent authorities.
11. The Development Control Rules prevailed during the relevant
point of time in the year 1975, when the layout approval was granted. In
the present case Rule 3(a) of the said Rules, states that 'Development to
be in conformity with these rules. Rule 3(a)(1) stipulates “No
development shall be contravention of these rules.” Rule 3(a)(2) states
that “No land, premises or building shall be changed or put to a use not
in conformity with the provisions of these rules”. Rule 5 Sub Clause (i)
and (ii), which reads as follows:
(i) Proposal rights of way for all major roads
together with set back lines for them shall be in
accordance with details specified in Annexure-IV. The
Authority may prescribe or modify these rights of way or
set back lines from time to time with the approval of the
Government.
(ii) Not withstanding anything contained in the
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Development Plan or in these rules the Executive
Authorities of the Corporation or Municipality concerned
may from time to time, with the prior approval of the
Authority prescribe under relevant sections of the
Madras City Municipal Corporation Act, 1919 (Tamil
Nadu Act V of 1919) or (Tamil Nadu District
Municipalities Act 1920) (Tamil Nadu Act XXXV of 1920)
regular alignments for streets of width different from
these shown in the Development Plan or in these rules”
12. Therefore, the Development Control Rules prevailed during
the relevant point of time, when the VGP layout was formulated
unambiguously stipulates that the roads approved are to be maintained
for the public use and if at all any person is aggrieved, they would have
raised objections during the relevant point of time and not after a lapse
of 40 years and more specifically, after the layout was developed to such
an extent, wherein the public roads are required for the usage of public
at large.
13. With reference to the said Development Control Rules, the
Madras High Court elaborately considered the scope and principles in
the case of K.Sudarsan and others Vs. The Commissioner,
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Corporation of Madras, reported in AIR 1984 MAD 292 and the
relevant paragraphs 14, 15, 16 and 19 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
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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 ‘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 presumed to have gone there 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
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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
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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
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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
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there be evidence to the contrary, extends to the whole
space between the fences, and the 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 ridingpath over which the public have a
right of way, whether athoroughfare 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
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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 and forming a part of a street from the
adjoining land.”
Section 203 of the Act deals with vesting of public streets
and their appurtenances in the corporation. If reads thus:
“All public streets in the city not reserved under the
control of the Central or the State Government, with the
pavements, stones and other materials thereof, and all
works, materials, implements and other things provided
for such streets, all 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
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thereto which are necessary or expedient for the public
safety or convenience.”
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 reasonable compensation to every
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person who suffers damage by the removal or alteration
of the same.”
Section 223 reads thus:
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 in 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 road as such.
(4) On the expiry of any period, for which a licence has
been granted under this 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 sub-sections
(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
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exceeding three years shall be valid unless the sanction of
the State Government therefor 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 road side or
street margin as such, the State Government may direct
the council to cancel or modify the lease and the council
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 a
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 223(1) the Commissioner has got the power to
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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 but
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 exceeding three
years shall not be valid unless the sanction 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 Municipalites Act, 1884 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
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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 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.”
In Municipal Board of Agra v. Sudarshan Das Shastri,
(1915 ILR 37 All 9) : (AIR 1914 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 trafic 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.
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Board, (AIR 1928 Cal 485) where Suhrawardy, J.
observed as follows:—
“The expression road or highway 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 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 a too narrow
meaning on the expression ‘public streets’ 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, (1965-2 SCR 241) :
(AIR 1965 SC 1147) 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 sidelands are ordinarily included
in the road, for they are necessary for the proper
maintenance of the road. In the case of a pathway used
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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
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C.M.A.No.2688 of 2018
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”.
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. It is the background
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if the above facts the locus standi of the petitioners to
maintain the writ petitions has to be considered. The
petitioners in W.P. Nos. 1127 of 1980, 2415 and 2416 of
1982 have averred that they are carrying on business in
the shops in Ranganathan Street, which is admittedly a
public street. They have got the right of access from any
point of their, shop to Ranganathan Street. Further, once
they are on Ranganathan Street, according to allegations,
they will have the right to pass and repass along
Ranganathan street. That right inheres in them as
members of the public. They have further stated that their
customers and they are prevented by reason of the
obstructions created by the hawkers to load and unload
the goods from vehicles into the shops and to enter or
leave the shop directly on to the street without any
obstruction whatsoever. In view of these allegations it has
to be held that the petitioners have sufficient personal
interest in the subject matter of the writ petitions.
However, Mr. Kesava Iyengar contended that the
petitioners are not aggrieved persons and therefore they
cannot maintain the Writ Petitions. In this connection, the
learned counsel cited the decisions in N.R. & F.
Mills v. N.T.G. & Bros., ((1970) 1 SCC 575 : AIR 1971
SC 246). There, the question that arose for consideration
was whether a competitor in a rice mill business can feel
aggrieved by the permission granted to another rice mill
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owner to shift his existing rice mill to the new site and the
Supreme Court answered the question in the negative.
The learned counsel also cited the decision in J.N. &
Co. v. State of A.P. ((1971) 2 SCC 163 : AIR 1971 SC
1507). In that case, the tax collected by dealers as agents
of the principals became illegal as a consequence of
decisions of the High Court. But due to the Amending Act
the collection has become legal and as dealers they are
liable to pay that amount to the State in respect of the
assessments made. The amending Act removed the
exemption of Rs. 10,000/- on sale of jaggery which was
given retrospective effect. The agents questioned the
constitutional validity of the Amending Act. The Supreme
Court held that the Agents have no locus standi to
question the validity. The Supreme Court held that the
Agents of the dealers have no locus standi to maintain the
Writ Petition. I am of the view that these two decisions
are not applicable to the facts of this case. Here, the
Petitioners have alleged that by reason of the obstruction
caused in the public Street they are prevented from
having access to the same from their respective shops.
The petitioners have alleged a clear infringement of their
right to have access to the public street which itself
amounts to an injury. Consequently, they are aggrieved
persons and are entitled to maintain the writ petitions.”
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14. This Court is of the opinion that once a layout is approved by
the competent authority and if any person claims that a particular
property belongs to him or mistakenly or erroneously included in the
layout or earmarked as a public road, then such a person ought to have
raised an objection during the relevant point of time or filed an appeal or
approach the Court of law for cancellation of layout or for reviewing the
layout, so as to correct the mistakes or error. Contrarily, here is the
person, who allowed the layout to remain and pursuant to the approved
layout, many persons purchased the plots, developed and constructed
buildings and now after a lapse of about 40 years, the 1st respondent
raises a ground, stating that he is the absolute owner of the portion of the
land, which is earmarked as a public road in the approved layout and
therefore, the Corporation authorities have every authority to demolish
the portion of the building constructed in the road earmarked as per the
approved plan.
15. As far as the layout approval under the provision of the Tamil
Nadu Town and Country Planning Act 1997 is concerned, Section 101
stipulates Bar of Jurisdiction of Courts. Accordingly, 'Any decision or
order of the Tribunal or the Government or the planning authority or
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C.M.A.No.2688 of 2018
other authority or of any officer under this Act shall, subject to any
appeal or revision or review provided under this Act, be final and shall
not be liable to be questioned in any Court of law 1 (and no injunction
shall be granted by any court against the notices served to any person by
the planning authority under section 56 or under section 57 of this Act)'.
16. Therefore, if any notice is issued by the competent authority
under the Act, then the Civil Court cannot grant any injunction.
However, the 1st respondent has got every right to institute a Civil Suit
for Declaration of title and for an injunction otherwise. Therefore, the
Bar of jurisdiction of Courts under Section 101 of the Town and
Country Planning Act, 1997, is limited to the extent of notice issued
under the provisions of the Act for demolition of the encroached portion
or to demolish the portion earmarked as per the approved layout.
17. In the present case, the Chennai Corporation also contends
that as per the approved layout of the year 1975, the portion under the
possession of the 1st respondent was earmarked as a public road and now
the area is developed to such an extent and the public in general are
restrained from using the public road on account of the encroachment by
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C.M.A.No.2688 of 2018
the 1st respondent. Thus, the authorities issued a notice and the notice
was challenged and the Hon'ble Division Bench directed the 1st
respondent to approach the Civil Court and the 1st respondent also filed
a Civil Suit for Declaration and Injunction. Under these circumstances,
the injunction cannot be granted against the Corporation officials to
remove the encroachment made in the public road with reference to the
approved layout of the year 1975, which was approved by the competent
authority, which was not disputed by the parties. The said approval was
not questioned by the 1st respondent or by any person for the past about
40 years and thus, the approval became final and many other persons
acquired right pursuant to the approval of layout and those public rights
cannot be taken away on account of encroachment by the 1st respondent.
18. This Court is of the considered opinion that when a matter of
private right and public right case came as a dispute, public right alone
will prevail over and the private rights can be adjudicated in the Civil
Suits. The said approved layout was not questioned or appealed by any
of the aggrieved person, there is no reason whatsoever to interfere with
the approved layout. After a lapse of about 45 years, pursuant to the
approved layout, many persons purchased plots from the VGP
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Partnership Firm and constructed buildings and in occupation. The
rights of those individuals cannot be infringed. The rights of those
individuals for the usage of the public road is to be protected by the
public authorities. Thus, in all respects, the public road identified for the
usage of public at large based on the approved layout cannot be
interfered with and therefore, the authorities are competent to remove
such occupation or encroachment and allow the public to use the said
road for the benefit of public at large.
19. As far as the order passed by the Trial Court in the
Interlocutory Application is concerned, the trial Court undoubtedly
adjudicated the documents and found that the 1st respondent/plaintiff
could able to establish his title prima facie.
20. The fact remains that the VGP layout was approved by the
competent authority in the year 1975 by the competent authority and the
said approved layout was not objected nor any appeal was filed by any
aggrieved person during the relevant point of time and now after a lapse
of about 40 years first time, the 1st respondent raised an objection, this
Court is of an opinion that the said objections are to be dealt with
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elaborately in the Civil Suit and therefore, the findings of the trial Court
that the 1st respondent/plaintiff established a prima facie case of title is
unnecessary at this juncture. This apart, title is to be adjudicated with
reference to the documents and evidences. Any such observation in
Interlocutory order should not affect the rights of the parties to defend
their case during the final trial. Though the trial Court made a finding
that the balance of convenience is in favour of the 1st
respondent/plaintiff, this Court is of an opinion that when the public
right is involved based on the approved layout granted by the competent
authorities namely the Director of Town and Country Planning and
when the portion of the land is earmarked as a public road, then public
interest is to be protected in all respects and if at all, any private interest
is involved, those rights can be adjudicated in the suit itself.
Undoubtedly, the 1st respondent may be an innocent purchaser, who
purchased the said portion of the land from his vendor. The 1st
respondent would not have been thought about these issues. However,
his right to prosecute the vendors also remains, if any misrepresentation
or fraud is established. As far as the public rights are concerned, that
will prevail over and the private interest cannot be a ground to grant
injunction by the trial Court.
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21. This Court is of the considered opinion that when it is crystal
clear that the particular portion of the land under the possession of the 1st
respondent is earmarked as a public road as per the approved layout of
the year 1975, the said portion is to be kept for the public usage and the
authorities are bound to clear the portion of the road and make it
available to the public for their usage.
22. As far as the rights of the parties are concerned, it is left open
to them to adjudicate the same with reference to the documents and
evidences in the Civil Suit pending and as far as the interim injunction is
concerned, once this Court arrived a conclusion that the portion
occupied by the 1st respondent is a public road as per the approved
layout and further, the adjacent areas were developed and connecting
roads are to be provided as per the master plan, the injunction granted
stands as an obstruction for the authorities to provide adequate facilities
and under these circumstances, the Corporation authorities are
empowered to clear the road as per the approved layout and make the
road for the usage of the public at large and other issues between the
parties shall be adjudicated before the trial Court.
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C.M.A.No.2688 of 2018
S.M.SUBRAMANIAM, J.
kak
23. Under these circumstances, this Court has no hesitation in
arriving a conclusion that the interim injunction granted by the trial
Court only in respect of the public road is perverse and consequently,
the Fair and Decreetal order dated 10.04.2017 passed in I.A.No.1057 of
2016 in O.S.No.169 of 2016 stands set aside and consequently, the Civil
Miscellaneous Appeal in C.M.A.No.2688 of 2018 is allowed. No costs.
Connected miscellaneous petition is closed.
03.03.2021
kak
Index: Yes/No
Internet:Yes/Non-Speaking order
To
The Principal District Court of Kancheepuram District
Chengalpattu.
C.M.A.No.2688 of 2018
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