BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08/07/2010
CORAM
THE HONOURABLE Mr.JUSTICE M.JEYAPAUL
Writ Petition (MD)No.4753 of 2010
S.Palanichamy Goundar ... Petitioner
Vs
1. The District Collector,
Theni District.
2. The Commissioner
Village Panchayat Union,
Chinnamanur, Theni District.
3. The President,
Pulikuthy Village Panchayat,
Pulikutthy, Theni District.
4. The Assistant Divisional Engineer,
Highways Department,
Bodinayakkanur,
Theni District. ... Respondents
Petition filed under Article 226 of the Constitution of India praying for
the issuance of a writ of Mandamus to forbear the third respondent from putting
up bus shelter or any other construction in S.No.92/2AO, Pulikkuthy Village in
Uthammapalayam Taluk in theni District, obstructing petitioner's access to the
Chinnapuram Sankarapuram Highway from his property situated in S.No.92/2AL.
!For petitioner ... Mr.R.Suriyanarayanan
^For respondents ... Mr.R.Manoharan
R-1 & R4 Government Advocate
R-2 Mr.Ajmal Khan
R-3 Mr.So.Paramasivam
Government Advocate
:ORDER
The petitioner is the absolute owner of the property comprised in
S.No.92/2AL in Pulikutthy Village, Uthammapalayam Taluk, Theni District. The
said property is situated on the west adjoining Chinnamanur-Sankarapuram Rural
Highway. The petitioner has made a construction in the said property.
2. The third respondent President of Pulikutthy Village Panchayat started
putting up a bus shelter on the margin of the highway. The petitioner would
submit that obstruction made by way of constructing a bus shelter is not
permissible. He asserts his right to have access to the highway from any part of
his property. Alleging that the bus shelter put up by the third respondent has
affected the right to have an access to the highway, the petitioner has filed
the Writ Petition directing the third respondent not to put up a bus shelter on
the highway margin.
3. The learned counsel appearing for the petitioner referring to the
provision under Section 26 of the Tamil Nadu Highways Act 2001 would submit that
the State Highways Authority may grant permission to put up any temporary
structure with the concurrence of the Collector. But, in this case, there is no
material to show that the Collector gave concurrence to the Highways Authority
to permit the third respondent to put up a bus shelter. Referring to Section
127 of the Tamil Nadu Panchayats Act 1994, the learned counsel for the
petitioner would submit that the Village Panchayat is bound to obtain previous
consent of the highways department even to break up the soil on the public road
belonging to the highways department. No previous sanction was obtained in this
case by the third respondent from the highways department to put up a
construction on the highway margin. Referring to the proceedings of the fourth
respondent dated 05.04.2010, the learned counsel appearing for the petitioner
would submit that the fourth respondent had in fact plunged into action, on
coming to know that the third respondent has started putting up a bus shelter in
front of the property of the petitioner. Referring to a couple of decisions of
this Court, the learned counsel for the petitioner would submit that the
petitioner, who has his property by the side of the highways, is entitled to
have access to the highway from all the points of his property. Therefore, he
would submit that the petitioner has made out a case as against the third
respondent and therefore, the third respondent shall be restrained from putting
up bus shelter in front of the property.
4. The learned counsel for the third respondent would submit referring to
the subsequent order passed by the fourth respondent that the fourth respondent
has virtually no objection for putting up a bus shelter by the third respondent.
It is his further submission that the fourth respondent was pleased to revise
the earlier stand taken and permit the third respondent to put up a
construction. It is his further submission that the Collector has allotted
sufficient funds for the construction of the bus shelter. Therefore, the
Collector has also got no objection for putting up a bus shelter on the road
margin of the highway. He would also submit that there are about six feet
pathway leading to the property of the petitioner from the highways. Only after
the encroachments were successfully removed by the third respondent, the bus
shelter is being constructed to fulfil the wishes of the villagers. It is his
further submission that Section 127 of the Tamil Nadu Panchayats Act 1994 and
Section 26 of the State highways Act will have no application to the facts and
circumstances of this case, it is submitted.
5. The learned Government Advocate appearing for the respondents 1, 2 and
4 would submit that they have virtually no objection for the third respondent to
put up a bus shelter on the road margin of the highways.
6. Chapter 5 of the Tamil Nadu Highways Act 2001 deals with prevention of
unauthorised occupation of, an encroachment on, a highway and removal of
encroachment. Section 26 of the Said Act specifically deals with the steps to
be taken by the highways authority to prevent unauthorised occupation of the
highway. Only in that context, the said section says that no person shall
occupy or encroach on any highway within highway boundaries. The highways
authority empowers to grant permission on temporary basis to put up any
construction, of course, with the concurrence of the Collector.
7. The highways maintained by the Tamil Nadu Highways department caters to
the needs of the public, who commutes through the highways. The highways
department which caters to the needs of the passengers, who travel by bus,
should have put up some bus shelters in the interest of the public. But, it
appears that the highways department has not put up any such structure on the
margin of the highways. The third respondent, it appears, has taken initiative
sensing the requirement of the public and their convenience to put up a bus
shelter on the road margin of the highways. The construction of a bus shelter
might have been started without the initial concurrence of the highways
authority. The initial proceedings issued by the highways department on
05.04.2010 would go to show that the fourth respondent Tamil Nadu Highways
department had some objections in putting up bus shelter by the third respondent
without getting due permission from it. But the proceedings of the fourth
respondent subsequently issued on 21.04.2010 would go to show that the fourth
respondent has issued no objection certificate for the third respondent to put
up bus shelter on the highways road margin.
8. It is not as if the highways authority shall give permission to a
person only after obtaining written permission from the Collector. The
concurrence of the Collector would suffice. In this matter, it is brought to
the notice of this Court by the learned counsel appearing for the third
respondent that the bus shelter is put up only with the fund earmarked from and
out of MLA constituency development fund by the first respondent Collector.
Though the proceedings of the Collector does not specifically refer to the
location where the bus shelter should be put up, we can easily draw inference
that the Collector had in fact allocated this fund only for putting up a bus
shelter on the highways margin, as no objection had emanated from the Collector
so far. The Collector, who had allocated such funds would have visited the
places of construction to verify as to whether such constructions are really
made out of the fund allotted for the said purposes. Therefore, only with the
blessings of the first respondent, it appears that the bus shelter is being
constructed on the road margin of the highways. Even at the stage when the
matter is taken up for arguments, the Collector has not objected to the
construction being made by the third respondent with the fund allocated by the
Collector from the MLA constituency development fund.
9. A bus shelter, whether it is temporary or permanent in nature, can be
put up only with a pucca roof in order to accommodate the passengers to take
shelter over there. If at all the highways authority finds in future that such
a construction in any way endangers the safety and convenience to the traffic,
it has the power to cancel the permission granted to the third respondent to put
up bus shelter.
10. The learned counsel appearing for the third respondent rightly brought
to the notice of this Court that the third respondent is not putting up any
construction for his personal use. The third respondent being the responsible
Panchayat President is putting up bus shelter for the convenience of the public.
The public interest shall always outweigh the private interest of an individual.
11. In this context, the learned counsel appearing for the petitioner
cited a decision of this Court in KVK.Janarthanan vs. The State of Tamil Nadu
represented by the Collector of Salem, etc and 3 others reported in 1995 (1) LW
451, wherein it has been held as follows:
“It has been repeatedly held that the owner of the land adjoining the
public street has got a right of access at eery point where his or her land
adjoins public street. In view of the above ratio, the fencing of an iron fence
put up between the land of the petitioner and that of the suit cart track is
illegal and on that ground alone the petitioners are entitled to an order of
injunction as prayed for. ”
12. In the case cited supra, it appears that an iron fence was put up
between the lane of the petitioner therein and the suit cart track, which was
running abetting the lane of the petitioner. The petitioner in that said case
could not have access to the suit cart track which was in common use. Under
such circumstances, it was held that the owner of the adjoining property cannot
be prevented from having access to the public cart track by fencing the ridge of
the cart track.
13. In Melagaram Town Panchayat represented by its Administrative Officer,
Tenkasi vs. Roman Catholic Mission Sarveswaran Tiruchabai, St. Michael
Athiluthar Thiruchabai represented by Rev.Father, Tenkasi reported in 2007 (6)
MLJ 1642, a learned Single Judge of this Court referring to the earlier decision
laid down by this Court in Dhamodhar Naidu and others vs. Thirupurasundari Ammal
and another (85 LW 381) held as follows:
“24.The defendant has no right to construct a wall on the northern boundary of
T.S.No.1784 and S.No.1770 of 2002 from east to west so as to prevent the
plaintiff, his lessees and others claiming under him from having access to the
public street. The endeavours of the defendant Municipality to construct a wall
from east to west on the southern boundary of the plaintiff’s property and the
northern boundary of the public street so as to prevent the plaintiff and his
man having access to the public street is not motivated by any interest of the
public, and is mala fide. The defendant has no right to collect any licence fee
from the plaintiff or his lessee for having access to the public street.”
14. In the said case referred to above, the Municipality put up a wall on
the public street completely preventing the plaintiff therein from having access
to the public street. Further, the act of the Municipality was also found to be
mala fide one.
15. Of course, it is a well settled proposition of law that a person, who
owns a property abetting public road is entitled to have access to the public
road from all the points of his property. But such a principle cannot be
extended to a situation where a bus shelter for the convenience of the public is
constructed on the highway margin with the blessings of the highway authority.
If the aforesaid general proposition is out stretched to cover such a situation
also, no bus shelter can be constructed on the margin of the highways as the
owners of the property abetting the highways will definitely raise objections to
put up any bus shelter on the margin of the highway.
16. It is not as if all the access to the highway road available to the
petitioner was completely blocked by putting up a bus shelter. It is brought to
the notice of this Court that a six feet width of pathway has been left open for
the petitioner to have access to the highways. There may be some inconvenience
for the petitioner to have access to the highway from one of the points of his
property but in the larger interest of the public, the petitioner has to put up
with such inconvenience.
17. As rightly pointed out by the learned counsel appearing for the third
respondent Section 127 of the Tamil Nadu Panchayats Act 1994 will have no
application to the facts and circumstances of the case. The said provision
would apply only where the Village panchayat in the process of maintaining a
drainage alongside the highways road or maintaining or repairing the foot-paths,
breaks up the soil on the highways road. Only in such cases previous consent of
the highways department as contemplated under Section 127 of the Tamil Nadu
Panchayats Act 1994 would be required. Tamil Nadu Panchayats Act 1994 does not
contemplate obtention of permission from the highways department in case the
village panchayat proposes to put up a bus shelter on the highways margin.
18. It is submitted by the learned counsel appearing for the petitioner
that the third respondent continued to put up a construction even after an order
of stay was granted by this Court. But the fact remains that the third
respondent stopped the entire construction the moment a notice was served on
him. No tangible material has been placed before this Court to establish that
the third respondent continued to put up construction even after he was posted
of the fact that an order of stay was granted by this Court.
19. In view of the above facts and circumstances, the Court finds that the
act of the third respondent is completely motivated by public interest, and
therefore, no malafide can be attributed to the third respondent. As it is
found that the third respondent goes ahead with the construction of the bus
shelter with the blessings of the highways department as well as the District
Collector, no direction can be issued as sought for by the petitioner
restraining the third respondent from putting up the bus shelter on the extreme
road margin of the highways road. The petitioner has in fact not made out a
case. Therefore, the Writ Petition stands dismissed. No costs. Consequently
connected Miscellaneous Petitions are also dismissed.
RR
To
1. The District Collector,
Theni District.
2. The Commissioner
Village Panchayat Union,
Chinnamanur, Theni District.
3. The President,
Pulikuthy Village Panchayat,
Pulikutthy, Theni District.
4. The Assistant Divisional Engineer,
Highways Department,
Bodinayakkanur, Theni District.