Hubli-dharwad Municipal Corporation Vs. Dr. W.O. Airan Since Deceased by His L.Rs. - Court Judgment

T.N. Vallinayagam, J.

1.The first defendant which is the Municipal Corporation is the appellant in this second appeal. The suit for declaration that the Corporation has no right to construct stalls or shops touching on the eastern boundary of the plaintiff's plot and for consequential reliefs based on such declaration. In O.S. 13/82 on the file of the 1 Addl. Munsiff, Dharwad, was dismissed on 14.3.1983. On appeal therefrom in R.A. 46/83, the learned Prl. Civil Judge, Dharwad, reversed the decree of dismissal and allowed the appeal. Hence, this second appeal.

2. The claim of the plaintiff was based on the basis that there is an open site in front of the building, cannot be spoiled by putting up stalls and such construction also was in violation of what is known as 'Ribbon Rules'. The defendant Municipal Corporation resisted the suit saying that shops are not built on road side portion and that they are actually built on the drainage portion. They do not affect in any manner the use of the public of the road or injuriously affect the use of the plaintiff's plot. The defendants further assert that the National Highway Road Ribbon Rules, are not violated.

3. After consideration of witnesses examined on behalf of the parties and the documents filed by them, the trial Court came to the conclusion that the proposed construction does not injuriously affect the plaintiff's right and therefore the plaintiff is not entitled in law to restrain the defendants from putting up any construction. Aggrieved by such decree, the plaintiff appealed. The Appellate Court considering the demand made by the defendants in the written statement and also the rulings relied upon by the parties, granted the declaration in favour of the plaintiff holding that the defendant has no right to put up such construction. Injunction preventive as well as mandatory was also granted by the lower Appellate Court.

4. In this second appeal, the two questions of law were raised which are as follows :

1) Whether the first appellate Court was justified in giving a decree for mandatory injunction on the ground that the construction of these shops involved in the suit would affect the value of the properties of the plaintiffs?

2) Whether plaintiffs could claim any such right with regard to the value of their property when the construction is made on the Municipal property?

5. The above two questions are to be answered against the appellant and in favour of the plaintiffs for the reasons detailed infra.

6. The main contentions before this Court were : (1) The Corporation's proposed construction is between the plaintiff's property and Kalghatagi road which is 41 feet in width excluding the gutter which is also 8 feet in width and the Appellate Court has not considered the existence of the Corporation property at all; (2) The measurement and ownership of the plaintiff's property and the defendants' property were not in dispute, but yet the Appellate Court wrongly concluded that the appellant has not proved about the vacant site being owned by the Corporation; (3) The plaintiff never contended that the gutter is used as a pathway. It is neither a path way nor passage nor the pathway for going to his house. (4) In view of the fact that the plaintiff's property is not adjacent to the road but there is a drain of 41 feet width, the plaintiff will not be deprived frontage of northern side; (5) The construction of the shops even if true will not diminish the value of the property of the plaintiff or the right of passage.

7. These submissions are made purely on the facts available and the Appellate Court has taken into consideration these facts and has come to a conclusion and it cannot be contended that the conclusions arrived at by the Appellate Court is either perverse or an error apparent on the face of the record. On these grounds alone, the contentions of the appellant have to be repelled.

8. The 'public street' has been defined under Section 2(31) of the Karnataka Municipal Corporation Act. The definition includes drain attached to any street. The contention of the Municipality is that the shops are being constructed over the drain. Admittedly, the construction is on the border of the plaintiff's property. It cannot be denied that such construction will be a source of nuisance or obstruction preventing the access of the plaintiff to the highway. The Appellate Court relied upon a dictum that 'the owner of an adjoining property has right of access to the highway on all paintings of his boundary and access is not to be obstructed to any particular point by the Municipality.' TALAKCHAND DHANJI v. DHORAJI MUNICIPALITY, AIR 1955 Saurashtra, 63. In fact, that was a case where even before the building would come in, the plaintiff objected to the right of construction on the foot path by the Municipality. Upholding such a right, the Court has held thus :

'The Municipality is not entitled to put up a pucca structure on a foot path merely on the strength of the fact that the street vests in and belongs to the Municipality. The Municipality in Saurashtra is to exercise the rights over the street in the manner and to the extent authorised by the Bombay District Municipal Act, 1901 (as adopted and applied to the State of Saur-ashtra) and in absence of anything in the Act to employer the Municipality to cover up a portion of the street by putting up a permanent structure thereon, may be for carrying out a duty permitted by the Act, viz; the collection of octroi duty, the action of the Municipality cannot be justified.

The construction of a permanent structure by the Municipality on a portion of the Public street is an invasion of a valuable right of the owner of land adjoining the street. The invasion would be a continuous one and it can be remedied only by a mandatory injunction ordering the removal of the structures itself and not mere damages.'

The commentary by Ratanlal in this Book 'Law of Tort' regarding construction on the highway, is relied upon by the plaintiff, which is as follows :

'The plaintiff was in possession of a house in London from the windows of which there was an uninterrupted view of part of a certain main thorough-fare along which, it was announced, that the funeral process of King Edward VII was to pass. One Gaggers decided to take and pay for seats on the first and second floors of the house in order to see the procession. The defendants caused a stand to be erected across a certain highway to enable the members of the Council and their friends to view the procession. His stand was a public nuisance, and it obstructed the view of the main thorough fare from the windows of the first floor of the plaintiff's house. G, when he saw the stand in process of erection, asked to be released from his contract as to the seats on the first floor and the plaintiff, thinking it would be unfair to hold him bound, released him. Several other persons refrained from taking seats owning to the obstruction. In an action by the plain tiff to recover damages for the wrongful interference with the use and enjoyment of her house and the special loss she had sustained, it was held that she was entitled to recover as damages the profit which but for the defendant's act she might have made by letting seats.'

9. The Supreme Court also had an occasion to consider the right of a private citizen to prevent the Municipality to put up structures on vacant sites belonging to the Municipality on either side of the road and drains maintained by the Municipality. The right of a private citizen was upheld in MANGALORE MUNICIPALITY v. MLAHADEOLJI, : [1965]2SCR242 . In this case the Supreme Court held that existence of vacant sites between drains on either side of the road does not entitle to the Municipality to put up structures which are not necessary for its maintenance or user of the same as a pathway. The Madras High Court also considered the right of a private citizen to protect the involuntary usage of the property in the case decided in BHARATHAMATHA DESIYA SANGAM v. ROJASUNDARAM : AIR1988Mad183 . The right of owner of a land to have access to the public highway from every point on the boundary of the land. Such a right is enforceable notwithstanding the fact that some open space available between the offending construction and the private citizen who owns the land and such offending construction would constitute a continuing wrong affecting the right of access to the highway, which is also a right under the provisions of the Easement Act. In fact, at the alleged point of time, the Bombay High Court in GAJANA v. ASST. COLLECTOR OF SALES, AIR 1924 Bom 54 held thus :

'By reason of the Government acquiring a part of the frontage of the land belonging to the claimant, the land behind the plot acquired would by reason of such acquisition be injuriously affected.'

10. In view of the above judicial pronouncements, it is clear that the purity of the public road and the environment atmosphere of a private man's property should be maintained by the Municipality and any construction made on the public way by putting stalls or shops would be injurious to the enjoyment of the property and environment of such properties.

11. In this view, upholding the judgment and decree of the first Appellate Court, this second appeal is dismissed.