IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28/03/2003
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
WRIT PETITION No.40573 OF 2002
WPMP.NO.60178 OF 2002
AND
WVMP.NO.495 OF 2003
Masseys,
No.17, North Railway Terminus Road,
Royapuram,
Chennai 600 013.
Rep. by its Partner .. Petitioner
-Vs-
1. The Corporation of Chennai,
rep. by the Commissioner,
Rippon Building,
Chennai 600 003.
2. The Zonal Officer,
Division No.22,
Zone-II,
Corporation of Chennai,
47, Basin Bridge Road,
Chennai 79. .. Respondents
Petition filed under Article 226 of the Constitution of India for the
issuance of Writ of Mandamus as stated therein
For Petitioner : Mr.Vijay Narayan
For Respondents : Mr.P. Sundaram
:J U D G M E N T
Though the matter was listed for considering the petition filed by the
respondents to vacate the interim order, since the same question was involved,
on consent of the counsels appearing for the parties, the writ petition itself
was heard on merit and is being disposed of by the present judgment.
2. The petitioner has prayed for issuing a Writ of Mandamus
forbearing the respondents from constructing a lavatory block on the footpath,
adjacent to the entrance at No.17, North Railway Terminus Road, Royapuram.
The petitioner is an Engineering Company engaged in the manufacture of granite
products and has established warehousing, clearing and forwarding services.
It is stated that in the first week of October, 2002, the petitioner found
that adjacent to the compound wall, just at the entrance to the complex, the
respondents were constructing Public Lavatories. The petitioner filed a
representation to the respondents on 12.10.2002 stating that public lavatory
should not be constructed at the said place. It was alleged that large number
of lorries and trailers carrying heavy cargo move in and out every month. It
was further alleged that about 200 workers were working inside the campus and
construction of a public lavatory would be a major health hazard because of
water stagnation, mosquitoes, flies and the diseases usually associated with
such pests. It is further stated that even though a representation was made,
no reply has been received. Therefore, a writ of Mandamus or appropriate writ
should be issued forbearing the respondents from constructing public lavatory
at the said place.
3. The main contention raised by the learned counsel appearing for
the petitioner is to the effect that the Corporation has no right to construct
lavatories on the footpath and such construction is not permissible under the
law.
4. In the counter affidavit filed on behalf of the respondents it has
been stated:
3. The public convenience under construction is for the
economically weaker section at Chettithottam. The Public Convenience
construction is nearer to the Bus Shelter, Royapuram Railway Station and also
useful for the thousands of road users of that area including vehicle riders.
There is no lavatory block in the near vicinity. This construction is away
from the entrance of the petitioners Company entrance and situated at a
distance at 8.50 Metres. also there is 5.70 Metres width from the road
margin.
It has been further stated:
4. . . . Because the location in which the construction is
carried out is used as an unauthorised parking lot for the Trailers and
Lorries of the Petitioners company. He has no right to do so. He wants to
prevent the construction under the strength of the orders of this Honble
Court. There is no health hazard or danger in constructing the lavatory block
either to the public or to the petitioner. In fact, the same would improve
the social condition of the nearby economically weaker sections.
5. Learned counsel appearing for the petitioner by relying
upon the decision reported in A.I.R. 1985 Madras 23 (M.A. PAL MOHAMMED AND
OTHERS v. R.K. SADARANGANI AND OTHERS) has contended that members of the
public, including the petitioner, have right to use the footpath and such
right should not be hampered by constructing lavatories.
6. A careful perusal of the decision makes it clear that the
decision instead of supporting the contention raised by the petitioner, rather
indicates that there is no absolute embargo on the Corporation to construct
public convenience on the roadside.
In paragraph 17, it is further observed :
17. It is interesting to note that in Halsburys Laws of England,
Fourth Edition, Volume 21, at page 700, by reference to S.5(2) of Highways
Act, it is stated that the concerned Council can provide in any street in its
area, on land abutting such streets, advertisement units, showcases,
information boards and other similar structures, and may let out any such
structure on such terms and conditions as it deems fit. . . .
It is further observed in paragraph 21:
21. The other point taken is that, a member of the public has the
right to pass and repass over every inch of the street. This concept is
subject to several restrictions that could be imposed. The definition of
public street embraces within its fold not merely a footway but a roadway; the
drains; that portion of the and which is either covered or not covered by
pavement; veranda or other structures; and a riding path etc., If the common
law principle of right over every inch of a public street is accepted and
implemented, in respect of a public street as defined under S.2(20), a member
of the public would claim that he has a right to walk in the roadway or over a
flower bed or other structures erected by public authorities for regulating
traffic in a public street. How is this concept of right over every inch is
to be understood and enforced? In a public street, for the absolute needs of
public, authorities are duty bound to locate post boxes, fire hydrants with
water tanks, milk booths, bus or jutka or cycle stands, rubbish bins and
telephone booths, etc. etc. Areas covered by these public facilities form
part of the public street. Hence subject to restrictions contemplated
regarding user of these facilities, no member of the general public could
claim that he has the right to trade upon every inch of them. Apart from
that, for public benefit, electricity fuse boxes are located, car parks, taxi
or cycle stands are provided, in public streets. Here again, the right over
each inch of them, would be subject to certain restrictions. Apart from them,
public conveniences, advertisement hoardings are also erected. Traffic
roundabouts, display boards, are required for regulating vehicular traffic,
and therefore, as to in what manner a public street could be enjoyed by
general public and which portions of it are to be earmarked for which manner
of use, are administrative decisions. It would be preposterous to hold that
the public have a right of movement over every inch of a public street, once
formed, and that no restriction could be imposed, confining their rights to
pass and repass, only along specified earmarked portions. . . .
(Emphasis added)
7. If the aforesaid observations are applied to the present
case, it seems that there is no justification in the contentions raised by the
petitioner.
8. In the counter affidavit it has been specifically
indicated that lavatories are being constructed at a place which is more than
5
metres away from the entrance gate of the petitioner. It has been further
indicated that between the tar portion of the road and the place where
lavatories are constructed, sufficient space is available, and therefore, the
right of the public in utilising the pathway would not be hampered.
9. In course of hearing, the learned counsel for the
petitioner has submitted that within 40 metres, lavatories have already been
constructed and there is no
necessity to construct these lavatories at the present place. The question
regarding suitability of the place for construction of lavatories is a matter
within the discretion of the Corporation authorities and it cannot be said
that such discretion has been arbitrarily exercised.
10. Learned counsel for the petitioner has also contended
that since many lorries would be coming to the premises of the petitioner,
possibility of accident occurring, particularly in respect of children, looms
large. This apprehension appears to be farfetched.
11. Learned counsel for the petitioner has also contended
that construction of lavatory would also create health hazard for the workers
and other members of the public. There is no doubt that when the lavatories
are constructed by the Corporation, it would maintain such lavatories properly
so as not to cause any health hazard to the residents of the locality and all
proper precautions would be taken.
12. For the aforesaid reasons, I do not find any merit in
this writ petition, which is accordingly dismissed. The interim order stands
dissolved. No costs. Consequently, miscellaneous petitions are closed.
Index : Yes
Internet : Yes
dpk
To
1. The Corporation of Chennai,
rep. by the Commissioner,
Rippon Building,
Chennai 600 003.
2. The Zonal Officer,
Division No.22,
Zone-II,
Corporation of Chennai,
47, Basin Bridge Road,
Chennai 79.