Madras High Court
A.Sesammal vs The District Collector on 6 September, 2021
W.P(MD)No.17774 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 02.12.2021
PRONOUNCED ON : 08.12.2021
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
W.P(MD).No.17774 of 2021
A.Sesammal ... Petitioner
Vs.
1.The District Collector,
Collectorate Office,
Tenkasi District.
2.The Revenue Divisional Officer,
Sankarankovil,
Tenkasi District.
3.The Municipal Commissioner,
Sankarankovil Municipality,
Tenkasi District. ...Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Mandamus, directing the third respondent
to remove the illegal construction of compound wall in the entrance of the
petitioner's house which is blocking the pathway and make way to reach the
main road and dispose of the representation dated 06.09.2021 made by the
petitioner within the time limit that may be stipulated by this Court.
1/14
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W.P(MD)No.17774 of 2021
For Petitioner : Mr.D.Selvanayagam
For R1 & R2 : Mr.D.Ghandiraj
Special Government pleader
For R3 : Mr.P.Mahendran
ORDER
The writ petition has been filed in the nature of Mandamus, seeking a
direction against the third respondent/Municipal Commissioner,
Sankarankovil Municipality, Tenkasi District to remove the illegal
construction of compound wall in the entrance of the house of the petitioner,
which, according the petitioner, is blocking the pathway to reach the main
road. The petitioner had also given a representation dated 06.09.2021, in this
regard.
2.In the affidavit filed, the petitioner A.Sesammal, residing at No.45,
Vadakatchiamman Temple 2nd Street, Sankaranakovil, Tenkasi District, had
stated that she had been residing in the said address for the past 50 years and
her house entrance is in Thiruneelakandar Pond, which joints Tirunelveli main
road.
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W.P(MD)No.17774 of 2021
3.It is claimed that there is a 20 feet drainage in between the entrance
and the road. She obtained permission from the the third respondent in 1979
to construct cement foot pathway over the 20 feet drainage. She also put up
the cement foot pathway.
4.She claimed in the affidavit that the third respondent had threatened
to destroy the cement foot path. She filed O.S.No.350 of 2005, before the
District Munsif Court, Sankarankovil and the suit was decreed on 05.04.2006.
Thereafter, again on 14.12.2015, the third respondent issued a notice to
demolish the cement foot pathway. She filed a contempt petition in the suit
and it is claimed that it is still pending. She claimed specifically that she has
no other entrance to reach the road. She gave a representation on 06.09.2021
to the second respondent, who had forwarded the same to the third
respondent. Since no action had been taken, the writ petition had been filed
by her.
5.A counter affidavit had been filed by the third respondent, in which,
they have specifically stated that the land comprised in T.S.No.291/1, which is
abutting the said pathway claimed by the petitioner is Sarkar
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W.P(MD)No.17774 of 2021
poramboke/Street. It is under the control of the third respondent. It has been
stated that it is vacant land. It had been stated that the petitioner and an other
neighbourer, Muthaih had constructed building over the said vacant land and
used the same. It had been stated that possession had been taken with much
difficulty.
6.It has been very specifically stated that the petitioner's house faces
east and there is a door way to that particular connecting street and that is the
address of the petitioner. The cement foot pathway claimed by the petitioner is
on the back side of the house and there is no necessity for the petitioner to use
that pathway. It had also been stated that the only intention of the petitioner is
to grab the vacant land abutting the cement foot pathway.
7.It had been further stated in the counter affidavit that the third
respondent had permitted the petitioner to put the cement foot path over the
existing open drainage and they have very categorically stated that they have
no intention of destroying or demolishing that particular cement foot path.
8.An additional counter affidavit had been filed by the third respondent
in which they stated that they are proposing to construct six buildings in the
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W.P(MD)No.17774 of 2021
vacant space and a resolution had also been passed in that regard. These are
shops will be constructed without causing damage to the cement foot path.
9.It had been very categorically stated that except to put the cement
pathway, no further permission had been granted to the petitioner to use the
vacant land as an access pathway to her house. The actual entrance is on the
eastern side. It had therefore been stated that the writ petition should be
dismissed.
10.Heard arguments advanced by Mr.D.Selvanayagam, learned Counsel
for the petitioner, Mr.D.Ghandiraj, learned Special Government Pleader for
first and second respondents and Mr.P.Mahendran for the third respondent.
11.Mr.D.Selvanayagam, learned Counsel for the petitioner, took the
Court through the facts of the case and stated that in the year 1979, on
30.04.1979, by proceedings in Mu.Mu.No.774/79, the third respondent had
specifically granted permission to the petitioner to put up the cement foot
pathway from the western side of her house to the vacant land in Survey
No.219/1. Since, there was a threat to destroy the said cement foot pathway,
the petitioner had filed O.S.No.350 of 2005, before the Principal District
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W.P(MD)No.17774 of 2021
Munsif Court, Sankarankovil and an ex-parte decree had also been granted on
05.04.2006. The petitioner had also filed E.P.No.51/2015, which is still
pending. Learned Counsel stated that the petitioner's access to her house
would be seriously prejudiced, if the third respondent destroys the cement
foot path. He also stated that the third respondent should not be permitted to
put up any construction in Survey No.219/1, which is the vacant land lying to
the western side of the property of the petitioner.
12.In this connection, the learned counsel for the petitioner placed
strong reliance on the judgment of a learned Single Judge of this Court
reported in 2012(8) MLJ 41 (State of Tamil Nadu, represented by the
District Collector, Erode and others vs D.Samiyathal). In that case, while
examining the right of access to road, and after examining construction put up
by the Government in the road margin and whether such construction
obstructed the access to the property, a learned Single Judge had held that the
public have the right to see that public street and road margins are kept for the
purpose for which they are left and that local body or Government have no
right to put up any construction so as to block the entry to adjacent properties
from public road except constructions which are necessary for maintenance of
street and road.
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W.P(MD)No.17774 of 2021
13.The learned Counsel therefore stated that the right of the petitioner
should be recognized, and the writ petition should be allowed and
respondents should not be allowed to put up any construction in survey No.
219/1.
14.Mr.D.Ghandiraj, learned Special Government Pleader, on behalf of
the first and second respondents stated that the right of the petitioner, is only
subject to the right of the Government to put the vacant land to public use.
The petitioner had been granted a limited right to put up a cement foot path
from the back side/western side of her house to the vacant land in
Survey No.219/1. The petitioner already had a regular entrance on the eastern
side of her house at Vadakatchiamman Temple 2nd Street, which is the actual
address of the petitioner. The learned Special Government pleader also stated
that the petitioner had earlier encroached into the open space and put up
various shops and they had to be removed by the third respondent.
15.It was further stated by the learned Special Government Pleader that
the attempt of the petitioner was only to grab the land of the third respondent
for personal and commercial use. The learned Special Government Pleader
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pointed out that the right of easement can be recognized only when there is no
alternate way, but here the actual existing way is on the eastern side and
therefore, the right of convenience of the petitioner cannot be examined. It
has to be a right of necessity and the petitioner has no necessity to use this
particular cement foot path which was provided to be put over the 20 feet
drainage. The learned Special Government Pleader, therefore, insisted that the
writ petition should be dismissed.
16.Mr.P.Mahendran, learned Counsel for the third respondent, also
adopted the arguments advanced by the learned Special Government
Advocate and also stated that the third respondent has passed a resolution to
use that open space for the benefit of the general public and the petitioner
cannot prevent such welfare activity from being conducted by the third
respondent. The learned counsel also stated that the third respondent had put
in lot of effort to remove the encroachments put by the petitioner and, stated
that the petitioner lacks bonafide in filing the writ petition.
17.I have carefully considered the arguments advanced and pursued the
records.
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W.P(MD)No.17774 of 2021
18.The address of the house of the petitioner is No.45,
Vadakatchiamman Temple 2nd Street, Sankarankovil. This Street is on the
eastern side of the petitioner's house. Therefore, the petitioner has access to
the road from her house and there is no complaint on this regard.
19.On the back side/western side of the petitioner's house, an open
space belonging to the third respondent/Sankarankvoil Municipality is
available. That is categorized as Sarkar Poramboke/Pathway. It is in Survey
No.219/1. There is a 20 feet drainage canal between the western side
boundary of the petitioner's house and the road. Naturally the petitioner
cannot jump across the 20 feet drainage. In the year 1979, the third
respondent had granted permission to put up a small cement foot path over the
drainage to the petitioner. No further right had been granted to the petitioner.
The land in Survey No.219/1 remains Sarkar Poramboke/Pathway under the
control of the third respondent. The petitioner cannot claim any right, title or
interest over the said land. The petitioner can only claim that this particular
foot path put by her should not be destroyed. She cannot claim that the third
respondent should not put up any construction in Survey No.219/1. That land
is on the backside of the house of the petitioner. The front side of her house
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above faces Vadakatchiamman Temple 2nd Street, in which, the petitioner has
a regular entrance.
20.The claim of the learned Counsel for the petitioner that the third
respondent should not put up any construction in Survey No.219/1 has no
merits whatsoever. The third respondent has every right to put up any
construction in S.No.219/1, provided they do not destroy the existing cement
foot path put up by the petitioner. By putting up any construction the third
respondent are not blocking access to the house of the petitioner.
21.The access to the house of the petitioner is on the eastern side from
Vadakatchiamman Temple 2nd Street. The petitioner should look forward. But,
on the other hand it appears she had inculcated a habit to look backwards at
the land which lies at the backside of her house. She claims a right over it.
That cannot be permitted and encouraged. The petitioner can claim rights only
on her house within the four boundaries. She must be satisfied with the
entrance she has at Vadakatchiamman Temple 2nd Street.
22.It is not the case of the petitioner that the entrance from
Vadakatchiamman Temple 2nd Street is obstructed by the respondents. There is
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W.P(MD)No.17774 of 2021
no complaint in that regard. The petitioner rather, has concentrated on what is
at the rear side of her house which is a vacant land, naturally, an attractive
prospect for personal economical exploitation.
23.The judgment relied on, D.Samiyathal, referred supra by the
learned Counsel for the petitioner, is certainly distinguishable on facts. In
that case, construction was sought to be put up in front of the house of the
petitioner practically blocking or restricting the pathway to access the house.
Here the construction is proposed on the rear side of the house. The front side
remains as it always remained. There is no change. The petitioner should be
satisfied with that particular aspect.
24.In AIR 1956 Madras 584, Mariyayi Ammal and other Vs.
Arunachala Pandaram, it had been held, that to claim a right of way as an
easement of necessity, it must be proved there was no other access to the
property. Convenience is not the test, but absolute necessity was the test.
25.In this case, the petitioner does not require the entrance at the
backside as an absolute necessity. There is already an entrance on the eastern
side in Vadakatchiamman Temple 2nd street. At the backside/western side,
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W.P(MD)No.17774 of 2021
since there was an open drainage, permission was granted to put up a cement
foot path over the drainage. That right has been recognized by the Civil Court
in the suit filed by the petitioner.
26..The third respondent has very clearly stated that they are not going
to destroy this particular cement foot path.
27.At any rate the issue regarding that particular cement foot path is
subject matter of the suit where E.P.No.51 of 2015 is still pending.
28.The third respondent has every right to put construction in a manner
known to law over the vacant land in Survey No.219/1 in the rear side of the
petitioner's house. By putting up any such construction there will not be any
obstruction of the usual ingress and egress to the residence of the petitioner
which is only through the Vadakatchiamman Temple 2nd Street.
29.The writ petition has been filed more than with an eye to some how
lay claim on the vacant land in Survey No.219/1. It is seen that even on earlier
occasion the petitioner had actually encroached into the said land. The
petitioner has no right to claim any right over the said land .
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W.P(MD)No.17774 of 2021
30.The writ petition is misconceived. The writ petition is dismissed. No
costs.
08.12.2021
Index : Yes / No
Internet : Yes/ No
sn/lr
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy of
the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
1.The District Collector,
Collectorate Office,
Tenkasi District.
2.The Revenue Divisional Officer,
Sankarankovil,
Tenkasi District.
3.The Municipal Commissioner,
Sankarankovil Municipality,
Tenkasi District.
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W.P(MD)No.17774 of 2021
C.V.KARTHIKEYAN, J.
sn/lr
W.P(MD).No.17774 of 2021
08.12.2021
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