Judgment :- 1. Two persons, who are owners of saw mills situated on the side of the Conolly Canal in Calicut District seek a writ of mandamus in this petition for directing the Kerala State and the Public Health Engineering authorities to refrain from blocking the navigational facility under the Mooriad Bridge in the canal and also to quash the order prohibiting the traffic in the canal under the Bridge. 2. Conolly canal is a tidal and navigable public water way. This canal was constructed under the orders of Mr. Conolly, then Collector of Malabar and was completed in the year 1848. There are a number of saw mills, some tile factories and other industrial establishments by the side of the canal on the northern side of the Mooriad Bridge. A large number of workmen employed in the various industrial establishments by the side of canal are depending for their livelihood on the working of these establishments. The canal also serves as an outlet for the discharge of flood water to the connecting rivers. It is also declared as a Navigational Canal by a notification issued under the Madras Canals and Public Ferries Act (Act 2 of 1890). 3. The canal which flows north-south divides the thickly populated areas of the Calicut Corporation into two parts The most thickly populated area as also the industrial and commercial area lies to the west of the canal. The mam let out for the finished products of the various industrial establishments on the side of the canal is through this water way which joins the Kallai river and then tails into the Arabian Sea. Mooriad Bridge is at a distance approximately hall a kilometre from the junction of the Conolly Canal and the Kallai river. The finished goods are brought by country crafts through the canal and a good quantity of the goods are taken to places on the sea coast like Bombay through the Sea. 4. The petitioners allege that they are sending large quantities or timber sized in their saw mills to places like Bombay, Saurashtra etc. They are also said to receive orders for sizing timber meant for export to the Gulf countries. The timber sized in their mills are brought south along the Conolly Canal, then taken along the Kallai river to the Sea and taken to various places by country crafts through the sea. 5. They are also said to receive orders for sizing timber meant for export to the Gulf countries. The timber sized in their mills are brought south along the Conolly Canal, then taken along the Kallai river to the Sea and taken to various places by country crafts through the sea. 5. The petitioners state that they are completely depending on the navigational facility through the Conolly Canal for the conduct of their business. Therefore it the navigation along the canal is blocked, the petitioners would have no alternative except to completely close down their business as there will be no way for them to take their finished goods to the market Moreover it is their case that the timber to be sized in their saw mills are brought through the Kallai river and the Conolly Canal to their saw mills According to the petitioners thus irreparable injury would be caused to the petitioners if the navigational facilities in the canal are closed. 6. For water supply purposes a pipe line is to be laid at an approximate height of about 4.5 metres above the water level in the canal and for this purpose there is necessity for construction of a small concrete bridge having a width of about 5 feet by the side of the Mooriad Bridge. The intake, treatment plant and reservoir of the Public Health Engineering Department lie to the east of the canal while as stated earlier the populated industrial and commercial area lies to the west of the canal. The water supply mains from the reservoir have therefore to cross the Conolly Canal at five different points to feed the heart of the Calicut City and also to complete the loop of the distribution system. The pipe line crossing at Mooriad is one of the five important mains. It might be noted, as appears from the pleadings of the respondents in this case that the Calicut Water Supply Scheme is one carried out by the Public Health Engineering Department with the aid of the Life Insurance Corporation of India to cater to the needs of 3.34 lakhs of people in the Corporation area as well as its suburbs. It has to be completed in 1976. 7. It has to be completed in 1976. 7. The preliminary works relating to the construction of the bridge at Mooriad for supporting the 400 m. m. diametre premo-pipe across the Conolly Canal were completed without any interference with the navigation in the canal. The work which remained to be done was putting up of the beam and deck slab of the pipe carrying bridge which according to the department could be done only after closing the canal. A requisition was made by the Assistant Engineer, Water Supply Project Sub-Division IV, P. H. E. D., Calicut to the Executive Engineer PWD., Irrigation Division, Calicut to suspend the navigation in the Conolly Canal in the Elathoor Kallai Section (under the Mooriad Road Bridge) for executing the work referred to above. Being obviously satisfied about the necessity for the same, the Executive Engineer, PWD. Irrigation Division, Calicut in exercise of the powers conferred on him under R.29 of the "Canals and Ferries Rules" framed under the Madras Canals and Public Ferries Act, issued a notification dated 1 11 1975 suspending the navigation in Elathoor Kallai Section of the Canal from 4111975. Publicity was given regarding this matter by publication of the same in the local newspapers. 8. A Committee under the name and style of "Kanoli Canal Mara Vyavasya Sthambhana Parihara Committee", had been formed on a prior occasion when the navigation facility through the canal was threatened to be stopped for the deepining of the canal. At that time, according to the petitioners, the Committee made representations to Government and the Officers of the State Government realising the enormity of the damage that was likely to be caused to the industrial establishments situate on the side of the canal and the misery which would result to the large number of workmen employed in those industries abandoned the ideas of closing the canal for traffic On seeing the notification dated 1111975 referred to above this Committed immediately took up the issue. According to the petitioners the pucca road bridge "Mooriad Bridge" was itself put up at the same site a decade back without obstructing navigation. This bridge was put in stages in order to maintain the navigation in the canal. Therefore according to them the construction of a comparatively small structure like the pipe line bridge could be very easily done without substantially interfering with the rights of navigation in the canal. This bridge was put in stages in order to maintain the navigation in the canal. Therefore according to them the construction of a comparatively small structure like the pipe line bridge could be very easily done without substantially interfering with the rights of navigation in the canal. All that is required to be done is to divide the work into two or three convenient stages so that the work will not completely interfere with the right of passage along the canal. The petitioners submit in this petition that their representations to the Government and Officers had no effect at all. The Officers of the Public Health Department merely stated that the construction of the work in stages will cause about Rs 8,00/- more and that they are trying to economise on the expenses involved. The Junior Engineer of the Water Supply Project concerned who has sworn to an affidavit on behalf of the 2nd respondent would however state that on the representation of the Committee, the Executive Engineer, P.H.E. Department, Calicut (the 2nd respondent) along with the representatives of the Committee inspected the site in question. He explained to them that even the total width of the canal under the Mooriad Bridge will be 40 metres due to formation of sand-silt on either side of the canal, navigable width of the canal under the Bridge is only 6 metres (19 feet) and that too in the middle of the canal. He is said to have pointed out that their suggestion of carrying out the work in stages is not practicable for the reason that at some stage or other the navigable portion of the 6 metres will have to remain closed. He is also alleged to have told them that the pipe line in question is indispensable in the larger interest of the public and he will see that necessary steps are taken to complete the work within a minimum time. According to the Junior Engineer the representatives of the Committee were apparently satisfied with this assurance and they requested the Executive Engineer that in order to enable them to transport the accumulated stock of goods which required to be transported urgently, two weeks time may be given to them before actually bringing into effect the suspension of the navigation in the canal. Accordingly sufficient time was given to them in the matter and suspension of the navigation was brought into affect only from 2711 1975 The contention that the association (or committee to be more correct) was satisfied with the Executive Engineer's explanation is denied in the petitioner's reply-affidavit (in the stay petition). The petitioners also state that the stand taken up by the 2nd respondent that the construction of the deck slab of the pipe carrying bridge could only be after closing the canal has no factual foundation. In support of this position they have produced the opinion expressed in a report by a retired Executive Engineer of the PWD. Shri K. Krishnan Nair who inspected the site in question on 7121975 as requested by the petitioners. That report is marked as Ext. P2 in the case. Shri Krishnan Nair has also sworn to an affidavit marked as Ext. P3 verifying his opinion given in Ext. P2. According to him it was possible to have retained 15 feet passage open for navigation, just with the provision of extra row of taller, thicker piles adjoining those on either side so as to fix the longitudinal girders over these 15 feet, at least about 6 feet over the level of the girders which are laid. This would have given a clear way of 10'x 12' making navigation possible. No doubt it would have meant some extra cost and treble for execution. But according to Shri Krishnan Nair that arrangement was feasible so that free navigation to and fro could have been allowed had the centering arrangements been planned and arranged more judiciously earlier. Petitioner's Plea 9. The petitioners contend that the action of the respondents in completely closing the canal to traffic by water is totally without jurisdiction. The petitioners and persons similarly situated have right of navigation along the canal which is a public right. The State has no legal right at all to completely prevent the exercise of a public right of navigation by the members of the public including the petitioners. Such public right can, if at all, be suspended or extinguished only by statutory enactment. There are no statutes permitting the closure of the canal for any period of time. The officers of the Government cannot by administrative orders or executive action prevent the exercise of lawful public rights by members of the public. 10. Such public right can, if at all, be suspended or extinguished only by statutory enactment. There are no statutes permitting the closure of the canal for any period of time. The officers of the Government cannot by administrative orders or executive action prevent the exercise of lawful public rights by members of the public. 10. It is also put forward by the petitioners that the obstruction in this case is totally uncalled for. The work was possible to be carried out in convenient stages without blocking the navigation completely. Heavy loss is now being inflicted on citizens and a large number of workers thrown out of employment. Therefore the action in this case is not at all reasonable or in the interest of the public. It is also said thai the respondents have not applied their minds to the question of public interest before taking the impugned action of notifying the closure of the canal for traffic. The loss that is likely to be caused to a large section of the public does not at all appear to have been taken into account. The petitioners state that the proposed action amounts to a colourable exercise of power and also is mala fide The action is also said to amount to the commission of a public nuisance. The petitioners also have a case that their right to conduct business in a legal manner is a right to property under Art.31 of the Constitution and the exercise of such a right cannot be adversely affected or extinguished even temporarily by executive or administrative action. 11. The petitioners subsequent to the filing of the counter affidavit by the 2nd respondent wherein he had relied on R.29 of the Canal and Ferries Rules in the matter of closing the canal have taken up the contention by way of amendment of the O. P. that the said rule on a proper interpretation can only authorise suspension of navigation for the purposes dealt with in the Madras Canals and Public Ferries Act and the same cannot be used as the source of power to close the canal for purposes which are totally alien to the subjects dealt with under the Act. The rule, according to the petitioners does not authorise the erection of constructions, which would block the use of the canal for navigational purposes. The rule, according to the petitioners does not authorise the erection of constructions, which would block the use of the canal for navigational purposes. Alternatively it is contended that the rule is clearly ultra vires and void since it is beyond the rule making power conferred by S.16 of the Act. This alternative contention is based on the interpretation given to it by the respondents. Petitioners also point out that any action taken under the rule itself states that the suspension of navigation could only be within specified dates and admittedly no dates were specified within which navigation is to remain suspended by the authorities and therefore the impugned action is beyond the powers conferred by the rule. By amending the prayer portion in the O. P. the petitioners also seek for a declaration that R.29 of the Canals and Public Ferries Rules framed under the Madras Canals and Public Ferries Act is ultra vires and void and also for the issue of a writ of mandamus directing the respondents to remove the obstruction to navigation placed in the middle 15 feet wide portion of the Conolly canal near the Mooriad Bridge which obstruction has been placed according to the petitioners after the stay order in this writ petition. 12. Contentions of the Respondents In the counter-affidavit filed on behalf of the 2nd respondent the grounds raised in the O. P. are controverted. It is stated that the notification for closing the canal was issued by the Executive Engineer, Public Works Department, Irrigation Division. Calicut as per R.29 of the Notification and Navigation Rules issued under S.16 or Canals and Public Ferries Act 1890. The Navigation canal from Badagara to Baipore river, the Conolly Canal and Kallai river among other lines of navigations, have been declared to be subject to aforesaid rules issued under the Act with effect from 1st October, 1923. As per R.29 the District Collector or the Executive Engineer is competent to notify from time to time the navigation through the canal be suspended temporarily within specified dates. It is alleged in the counter-affidavit that though it is true that no date was mentioned for the expiry of the period of suspension in the original notification, this omission was subsequently rectified by issuing an erratum notification published in Malayala Manorama daily dated 12-12-1975. It is alleged in the counter-affidavit that though it is true that no date was mentioned for the expiry of the period of suspension in the original notification, this omission was subsequently rectified by issuing an erratum notification published in Malayala Manorama daily dated 12-12-1975. It is said that R.29 is not beyond the rule making power conferred by the Act. The canal is closed temporarily only for the purpose of completing the Water Supply Scheme drawn up by the Public Health Engineering Department in the interest of the general public. It is also urged that even if the rule is void the Executive Engineer has all the power to issue the impugned notification in the interest of the general public since the canal is a Government property over which petitioners have no fundamental right of navigation. According to the 2nd respondent it is not possible to leave a gap of 15 feet in the middle portion of the canal as suggested by the petitioners. It is stated that the leaving of the space as suggested by the petitioners is not practicable since sub-soil in the middle portion of the river is such that without complete supporting pile throughout the length of the river no concrete work can be done satisfactorily. According to the respondent Shri Krishnan Nair the expert Engineer relied on by the petitioners has not considered many of the aspects. He has not considered the soil condition in the middle portion of the river and the bearing capacity of the subsoil in the area. It is also said that he has not considered the fact that during the concrete work if the navigation is allowed through the canal there is the possibility of hitting the boats on the piles which may affect adversely the concrete work, besides causing danger to the navigating public. The department is said to have considered all the technical aspects while preparing the Scheme which has been prepared by competent and qualified engineers of the department. The counter-affidavit also points out that the suspension of the navigation will be removed within a very short time and hence the petitioners may not have any grievances. 13. It is also the respondents' contention that a writ petition will not lie in the matter. The counter-affidavit also points out that the suspension of the navigation will be removed within a very short time and hence the petitioners may not have any grievances. 13. It is also the respondents' contention that a writ petition will not lie in the matter. It is stated that a writ of mandamus will not lie against the respondents and appropriate remedy of the petitioners to enforce their right is by a properly framed civil suit. The canal is not a public property and the right of navigation cannot be claimed as right. 14. Before going into the merits of the contentions of the parties I may refer to some facts that happened after the filing of the O. P. Along with the O. P. there was an application for injunction as per C. M, P. No. 18693 of 1975 wherein they prayed for an injunction to restrain the respondents and their agents and men from totally blocking the Navigation in Conolly Canal under the Mooriad Bridge and to keep open atleast 15 feet of the Canal for the purpose of navigation in the canal pending disposal of the O. P. This Court on 2121975 while admitting the O P. ordered interim injunction as prayed for for two weeks and the petitioner was allowed to take out notice and interim injunction through a special messenger at his cost, After the notice was served a counter-affidavit was filed on behalf of the 2nd respondent stating that even before the receipt of the injunction order from this Court there was total blocking of the navigation of the canal and that it was not possible for the respondents to comply with the directions of this Court in view of the same. The learned counsel for the petitioners then contended that the blocking was after the receipt of injunction order But this Court held that at that stage as some reversal of the work is necessary inorder to make navigation possible in the canal injunction need not be continued. The petition was therefore dismissed. It was stated in that order which is dated 9 121975 that if the respondents have despite the injunction order issued from this Court done something in violation thereof the petitioner will have to seek his remedy, if any, through appropriate proceedings. In CMP. The petition was therefore dismissed. It was stated in that order which is dated 9 121975 that if the respondents have despite the injunction order issued from this Court done something in violation thereof the petitioner will have to seek his remedy, if any, through appropriate proceedings. In CMP. No. 19095 of 1975 the petitioner had sought for a direction even before the disposal of the injunction application for directing respondents 2 to 4 to immediately remove the obstructions along the Conolly Canal and to keep open 15 feet of the canal for purposes of navigation in the canal. There in the affidavit filed in support of the same by the 1st petitioner it was stated that the interim direction issued in the injunction petition was taken to respondents 2 to 4 by a special messenger deputed by this Court. Respondents 2 and 3 accepted the order in the afternoon on 3 12 75. The 4th respondent refused to accept the order passed by this Court. The petitioners expected that the officers of the State Government would honour the orders of this Court. However, to their surprise it was seen that brisk work was started by the afternoon of 3-12-1975. The piles already driven into the river were hastily connected with wooden beams and scaffolding began to be put up employing a large number of workmen. Though the petitioners, according to them, had their own¬mis-givings about the haste with which the work was done they are said to have believed that the middle portion having a width of about 15 feet will not be blocked. Since the work was seen to continue even during the night, they sent telegrams to res-pondents at about 8.30 P. M. on 3-12-1975 in the following terms: "High Court direction keep open fifteen feet of Kanoly Canal for Navigation flagrantly violating even after service of order. Strict compliance with orders expected Otherwise contempt proceedings will be initiated Ibrahim Haji and Moosakoya". By noon on 4-12-1975 the blocking of the canal was completed according to the petitioners. 15. Strict compliance with orders expected Otherwise contempt proceedings will be initiated Ibrahim Haji and Moosakoya". By noon on 4-12-1975 the blocking of the canal was completed according to the petitioners. 15. After the O. P. came up for hearing before me I thought it would be useful to depute a Commissioner to prepare a report on the basis of local inspection in regard to the work which had already been done at the site near the Mooriad Bridge where navigation was suspended with reference to the allegations in the affidavit and counter-affidavits filed in the matter. I therefore deputed Shri George Varghese, an advocate of this Court as a Commissioner for making the local inspection. He submitted a detailed report with photographs in the matter. In his report he said: "The point where navigation is now suspended in the Kanoly Canal is very near to the Mooriad bridge. Kanoly Canal and its side seem very much industrialised mostly with timber and allied businesses. Timber logs are seen floating in the canal throughout. For the construction of a small bridge across the canal to lay the water pipe, the canal is temporarily closed with wooden piles in which scaffolding is resting. In the centre portion of the river four wooden piles were driven in the soil which has no connection with the upper girder and scaffold. The distance between the top of the piles and the girder is about one foot. As desired by me a photographer was called and he took two photographs in my pretence which will clearly show the position of the piles and the girder. Copy of the photographs (Nos. two) are produced herewith. If these four piles are removed there will be a gap of about 15' through which navigation is possible. With regard to the work already done I made enquiries with the Engineers present on the spot and I personally inspected all the portions. The scaffold to concrete the upper portions of the bridge had already been put and the reinforcement work (tying of iron rods) also was over. To show this as per my instructions a photograph of the upper portion of the bridge was taken in my presence A copy of the photograph (No. 1) is herewith produced. No cement work was seen to be done up to the time of my inspection " 16. To show this as per my instructions a photograph of the upper portion of the bridge was taken in my presence A copy of the photograph (No. 1) is herewith produced. No cement work was seen to be done up to the time of my inspection " 16. It might be noted that in the counter-affidavit filed by the Junior Engineer dated 31st December, 1973 which was about three days before the inspection by the Commissioner it bad been stated: "Already the major portion of the concrete work has been completed and piles can be removed only after about 20 days so that the curing of the concrete will be covered by the time. If the piles are removed before the curing period, the concrete work will be damaged and the department will be suffered irreparable injury and loss." Taking into account the fact that though the petitioners are entitled to have their legal rights declared and consequent orders issued by this Court on that basis the construction of the pipe line being also of great importance as far as the public is concerned I passed an order dated 7th January, 1976 wherein I sought for further clarification in the matter from the Chief Engineer, P.H.E.D. under whom the work of construction of that pipe line was being carried on. Further I said: "As far as the present construction is concerned it would appear that there is a gap of 15 feet through which navigation is possible, if the 8 piles which are placed in this gap are removed. Is it not possible to remove these piles? Apart from that the Chief Engineer will also have to report whether it is not technically feasible in the matter of construction of pipe line bridge over this canal to have the work done without obstructing the navigation in the canal. The petitioners have filed an opinion in the matter of a retired Executive Engineer, who says positively that it is possible. If the petitioners have got the legal right as they claim which they are able to establish positively that might lead to this Court holding that there cannot be an obstruction to the navigation. The petitioners have filed an opinion in the matter of a retired Executive Engineer, who says positively that it is possible. If the petitioners have got the legal right as they claim which they are able to establish positively that might lead to this Court holding that there cannot be an obstruction to the navigation. Before that question is finally decided in the nature of the importance of the work that is being carried on, it is necessary that the Chief Engineer should consider and report whether without making any obstruction to the navigation the bridge could be constructed. It is contended on behalf of the petitioners that the Mooriad Bridge itself was put up at the site about 10 years back without obstructing totally the navigation through the canal. The bridge has a width of 40 feet and has been put up at a height of about 18 feet of the water level. What is the difficulty in the construction of a comparatively smaller pipe line bridge without obstructing the navigation in the canal? It is submitted that in the matter of construction of big river bridges the construction is done without driving piles in the river. These questions might be examined by the Chief Engineer and the report submitted to the Court before 12-1-1976. They are of importance because I am told that pips line bridges are to be constructed at other points in the canal. The Court is now of opinion that it will be unjust to continue the obstruction to the traffic beyond 23rd of this month. The Chief Engineer should see to it that the concreting is completed and navigation through the canal resumed at least by that date. If there is any difficulty for the Chief Engineer to make the inspection and report the matter immediately, he may depute a Superintending Engineer of his own choice for making the inspection and report." The Chief Engineer accordingly made the inspection and submitted a report which was of great help in finally giving appropriate directions in the matter. He said in his report: The issue before me is whether it would be possible to provide a clearance of 15 feet to allow navigation through the canal, since the court feels that the canal should be kept open to navigation as far as possible. He said in his report: The issue before me is whether it would be possible to provide a clearance of 15 feet to allow navigation through the canal, since the court feels that the canal should be kept open to navigation as far as possible. "It the necessity to keep the canal open for traffic was kept in mind at the time of commencement of the work, arrangements could have been made in the shuttering with girders supported on piles on either side to provide 15 feet clearance for navigation. However, from the point of view of the extra cost and non-availability of girders for this purpose, this step was not resorted to by the PHED. At this point of time when piles have already been driven in the canal and the shuttering work has been completed, it would take some time to remove the piles and shuttering and would also involve extra expenditure. According tome, the best course would be to insist on the PHED. to carry out the work and complete the concreting by the 15th of this month and allow the minimum required curing time for another 15 days, so that the canal could be open for traffic by the 31st January, 1976. I was made to understand that the Department is experiencing difficulties to get this work done through the present contractor expeditiously. This aspect has to be sorted out by the PHED. with the contractor and to carry out the work in time, the department should be authorised to adopt such steps as may be necessary, so that the canal could be open by the 31st January, 1976. There is no denying that alternate provision could have been made for diverting the navigation, as was done in the case of the Mooriad bridge some time back But the heavy extra expenditure involved would be about as much as the pipe line bridge itself. However, in future, the PHED. may be directed to evolve methods of providing shuttering in such a way that navigation is not obstructed in similar cases." 17. Questions Arising For Decision The main questions that arise for decision are: 1. Whether the petitioners have a legal right of Navigation along the Canal? 2. Whether the respondents have legal authority to suspend or prevent Navigation in the Canal? 3. Questions Arising For Decision The main questions that arise for decision are: 1. Whether the petitioners have a legal right of Navigation along the Canal? 2. Whether the respondents have legal authority to suspend or prevent Navigation in the Canal? 3. Whether a writ of mandamus is maintainable in law on the facts and circumstances of the case? 4. What should be the nature of reliefs that can be given in this O. P.? 18. In regard to the first question, i.e., whether the petitioners have a legal right of navigation along the canal I have no hesitation to hold that they have got that right. The canal itself has been constructed for navigation as such. It is stated in Logan's Malabar Manual that this navigational canal was constructed under the orders of Mr Conolly, then Collector of Malabar and was completed in the year 1848. It is further stated therein that "imperfect as it is, the facilities it affords to traffic are largely utilised and is likely to be ere long much improved in the carrying out of an extension scheme proposed so long ago as is 1882 by the Special Commissioner Mr. Graeme for affording inland water communication from Travancore northwards". The right of the public over tidal and navigable water ways should now be considered. According to the authorities that right cannot be interfered by the State without statutory authorisation. The standard book on the subject is the one by Coulson and Forbes on The Law of Waters (Sea, Tidal, and Inland) and Land Drainage. It would be useful to quote the following passages from that book (Sixth Edition by S. R. Hobday) "The bed of all navigable rivers, where the tide flows and re-flows, and of all estuaries or arms of the sea, is prima facie vested in the Crown. But this ownership of the Crown is for the benefit of the subject, and cannot be used in any manner so as to derogate from or interfere with the right of navigation, which belongs by law to the subjects of the realm. The right of navigation is simply a right of way and the right of navigation in tidal waters is a right of way thereover for all the public for all purposes of navigation, trade and intercourse. It is a common law right whose origin is lost in antiquity. The right of navigation is simply a right of way and the right of navigation in tidal waters is a right of way thereover for all the public for all purposes of navigation, trade and intercourse. It is a common law right whose origin is lost in antiquity. It extends prima facie over the whole space over which the tide flows, and is not suspended when the tide is out. (Page 506) The right of Navigation is paramount to the rights of property of the Crown and its grantees in the bed of the river, and such property cannot be used in any way so as to derogate from, or interfere with, the public right of navigation. Any grant, therefore, of the Crown which interferes with the public right is void as to such parts as are open to such objection, if acted upon, so as to effect nuisance by working injury to the public right. If, therefore, the Crown grant part of the bed or soil of an estuary or navigable river, the grantee takes subject to the public right; and he cannot, in respect of his ownership of the soil, make any claim or demand, even if it be expressly granted to him, which in any way interferes with the enjoyment of the public right. "It is perfectly clear", says Macdonald, C. B. "that all the soil under the salt water between high water mark and low water mark it the property of the Crown. Such property has certainly been (as it may be) communicated in a great many instances to the subject, but that is always subservient to the public right of the King's subjects generally. It is compared by Lord Hale, with his usual simplicity, to the case of a high way. The private right of the Crown may be disposed of, but the.public right of the subject cannot, even if it be within this grant". Thus it has been held, that the obstruction by artificial means of a navigable river, though of more than twenty-one years' duration, will not operate as a bar to the public right, because one cannot prescribe against a public right. Thus it has been held, that the obstruction by artificial means of a navigable river, though of more than twenty-one years' duration, will not operate as a bar to the public right, because one cannot prescribe against a public right. A navigable river is a public highway navigable by all his Majesty's subjects, in a reasonable way and for a reasonable purpose, (pages 517 & 518) The Crown cannot interfere with the public right by grant; it can only be abridged by Act of Parliament, writ ad quod damnum or natural causes. (page 527) In the same case Lord Hatherley said: "The right of navigation is simply a right of way, and with that right of way you must not interfere in any manner by any course you take"." It is stated by the learned Authors that the obstruction of the navigation of a public navigable river is a public nuisance, and the subject of indictment and information, or of an action on proof of special damage. Obstructions can also be abated by decree. The learned authors further say that "where the obstruction of the public right of navigation is authorised by statute, no action will lie for damage caused by the due execution of the works authorised by the statute, but if the persons so authorised exceed their powers or are guilty of negligence in carrying out their works, they will be responsible for damage so occasioned". 19. These passages would clearly establish that the right of navigation is a public right and that it is paramount to the ownership of the State over the water way concerned in fact it has been equated to the rights of the public on the high way on land. 20. Mr. Govinda Wariyar, learned counsel for the petitioner is quite right in contending that any interference with the public right of navigation had been held to be a public nuisance from very ancient times. 21. In Shri Ramaswamy Iyer's well-known book on the Law of Torts it is stated as follows on the basis of a number of decisions' "One class of public nuisances on which considerable case-law has gathered relates to highways. 21. In Shri Ramaswamy Iyer's well-known book on the Law of Torts it is stated as follows on the basis of a number of decisions' "One class of public nuisances on which considerable case-law has gathered relates to highways. A highway is a way over which all members of the public have a right to pass and re-pass, e. g, a public road, bridge, navigable canal or river In India and in England statutes vest the ownership of highways, i, e., the pavement and other material required for the purpose of passage, in various local authorities, e. g., municipalities and local boards in India. The owner of a highway may exercise all rights of ownership in it but subject to the public right of passage The owner or a highway cannot, unless authorised by statute, do any act which interfere with the public right of passag-, e. g, lay down a tramway, break open a public street for laying gas pipes or erect telegraph poles, if he does, he can be indicted for a public nuisance " Some of the decisions referee to by the learned author are (1) A. G. v. Barker, (1900) 83 LT. 245, (2) R. v Tram (1862) 2 B. & S.640 (3) R. v Longton Gas Co., (1860) E. & E. 651. (4) R. United kingdom Electric Telegraph Co, (1862) 3 L J MC. 166 and (5) Wands-worth Board of Works v. United Telephone Co. (1884) 13 Q. B. D. 904. 22. It might be noted that as stated earlier the principles are the same in the case of highways and in the case of navigable water ways I would referee to three Indian decisions on the point. The first decision is the one reported in C. S. S. Motor Service v Madras State (AIR. 1953 Madras 279. After an exhaustive discussion of the case-law on the subject both in Indian and English Venkatarama Aiyar J. stated: "The true position then is that all public streets and roads vest in the State but that the State holds them as trustee on behalf of the public. 1953 Madras 279. After an exhaustive discussion of the case-law on the subject both in Indian and English Venkatarama Aiyar J. stated: "The true position then is that all public streets and roads vest in the State but that the State holds them as trustee on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways The State as trustees on behalf of the public is entitled to impose all such limitations on the character and extent of the user as may be requisite for protecting the rights of the public generally. Thus the nature of the road may be such that it may no: be suitable for heavy traffic and it will be within the competence of the Legislature to limit the use of the streets to vehicles which do not exceed specified size or weight. Such regulations have been held to be valid as within the police power of the State in America. Vide 'Morris v. Duby', (1927) 71 Law Ed. 966, 'Sproles v. Binford'. (1932) 76 Law Ed 1167, and 'South Carolina State v Barnwell Bros', (1938) 82 Law Ed 734. For the same reason the Stale might even prohibit the running of transport buses and lorries on particular streets or roads if such running would interfere with the rights of pedestrians to pass and re-pass as it might if the street is narrow or conjested but subject to such limitations the right of a citizen to carry on business in transport vehicles on public pathways cannot be denied to him on the ground that the State owns the highways." In Gopalakrishna v. Narasimham (AIR. 1958 Andhra Pradesh 586) Chief Justice Subba Rao said: "Any person or body of persons or even a public body cannot interfere with that right unless statutorily or otherwise legally empowered to do so." The Supreme Court in Saghir Ahamd v. State of U P. (AIR. 1954 SC. 278) has stated that the right or the public to use a highway exists anterior to any legislation on the subject as an incident of public rights over a highway. The State only controls and regulates it for the purpose of ensuring safety, peace, health and good morals of the public. 23. 1954 SC. 278) has stated that the right or the public to use a highway exists anterior to any legislation on the subject as an incident of public rights over a highway. The State only controls and regulates it for the purpose of ensuring safety, peace, health and good morals of the public. 23. I cannot accept the contention of f e learned Government Pleader that the canal though a public place is not a public property through which a right of navigation can be claimed as of right. He relies on the decision reported in Nanhu Lal v. Gaya L H. Committee (AIR. 1964 Patna 98). This case deals with the right of the railway to put restriction on the sale of platform tickets for particular period in the interest of pilgrims visiting the place. The Court held that for definite and specific reasons and in the interest of the general public especially the pilgrims visiting Gaya during the period of pitripiksha mela, an order made by the railway authorities regulating the entry into the railway platform is not bad. Such orders, the authorities are empowered to pass under the provisions of the Railways Act or the rules made thereunder. The facts of the case would indicate that the principle laid down there could have no application in the present case Nor is the Government Pleader right in stating that the petitioners are only enforcing a private right of navigation. They base their right for navigation on the right of the public as such. 24. No doubt the Government Pleader also relied on R.29 of the Canals and Public Ferries Rules framed under S 16 of the Madras Canals and Public Ferries Act, 1890 in authorising the respondents to issue notifications suspending temporarily navigation in the canal. It might be noted here that the reliance is placed only on the general provision in S 16(6) which authorises the framing of rules generally for the purposes of the Act. A perusal of the various sections in the Act would show that suspending navigation in the canal for putting up a pip line or on analogous grounds is not one of the purposes provided for or dealt with in the Act. A perusal of the various sections in the Act would show that suspending navigation in the canal for putting up a pip line or on analogous grounds is not one of the purposes provided for or dealt with in the Act. The Madras Canals and Public Ferries Act as its preamble would indicate is a legislation to make better provision for the establishment of Canals and Public Ferries in the Presidency of Madras and for the management thereof S 4 of the Act empowers the State to declare any line of navigation to be subject to the provisions of the Act. S.5 provides that all vessels using a canal shall be either licensed or registered as the State Government may direct. The Government have got the power to exempt from the operation of the section all or any vessels or classes of vessels using a canal or portion of a canal. S.6 of the Act empowers the State Government to fix fees and rates of toll and to establish toll-stations. S.7 of the Act empowers any person duly empowered by the State Government in this behalf to impose punishment for breach of conditions of licence and to deal with any obstruction with navigation in contravention of the Act S.7-A. enables the State Government to declare that terries' not being public ferries shall be subject to rules for securing the safety of passengers. S.8 deals with the power to apply the Act to any ferry and also define limits of ferry. S.9 of the Act states that from such date all previously existing rights of ferry within the limits defined in the notification shall cease and determine and it shall be unlawful for any person not duly authorised to convey goods, animals or passengers by means of vessels across a channel within such limits while such notification is in force. S.10 deals with the power to provide for management of ferries and fix fees and rates of tolls. S.11 is concerned with the power to assign management of ferry to local Board or municipal council. S.12 of the Act enables the State Government or the managing authority to appoint persons to collect tolls or fees under the Act and to lease out collection thereof. S.3 is in respect of the procedure in case of non-payment of toll, etc. on demand. S.12 of the Act enables the State Government or the managing authority to appoint persons to collect tolls or fees under the Act and to lease out collection thereof. S.3 is in respect of the procedure in case of non-payment of toll, etc. on demand. What payments may be recovered as arrears of revenue is provided in S.14. Form etc. of licences and registrations is provided for in S.15. S.16 is regarding power to make rules and S.17 is in respect of penalty for breach of rule. S.18 and 19 also deal with imposition of penalty for violation of provisions of the Act. S.20 is as regards of power of Court to order confiscation and S.21 deals with the delegation of the powers under the Act by the State Government to its officers. 25. There is no provision in the Act which deals with the suspension of navigation for other public purposes. Therefore though I am not prepared to accept the wide contention raised by the petitioners that R.29 is beyond the rule making power and is ultra vires and void, the rule has to be construed to make it in conformity with the objects of the Act. R.29 reads as follows: "Temporary suspension of traffic: The Collector or the Executive Engineer may from time to time notify that navigation shall be suspended temporarily between specified dates on any canal or part of a canal." On a proper interpretation the suspension of navigation authorised by R.29 can only be for the purpose dealt with by any one or other of the sections of the Act and not on any other ground. In this connection it will be useful to refer to the following passage appearing at page 322 in H W.R. Wade's book on Administrative Law (3rd Edition): "Judicial control of delegated legislation rests on exactly the same foundations as judicial control of administrative powers, the subject of Chap.3. Any order or regulation which is not authorised by statute (or in a few special cases by the royal prerogative) can have no legal effect, and is therefore ultra vires and void Delegated legislation in no way partakes of the immunity which Acts of Parliament enjoy from challenge in the courts, for there is a fundamental difference between a sovereign and a subordinate law-making power. Acts of Parliament have sovereign force, but legislation made under delegated power can be valid only if it conforms exactly to the power granted. Thus a Country Council's by-law will be void if it conflicts with statute law, as was the case where the by-law forbade betting in public places altogether whereas the applicable Acts of Parliament allowed it under certain conditions. Similarly the House of Lords invalidated an order of the Minister of Labour which would have imposed industrial training levy on clubs which were not within the Industrial Training Act 1964. An illustration of the strict conformity which the courts require is given by an Australian case where the Privy Council held a regulation to be ultravires and void. A statute allowed regulations to be made relating to excavation work, both as to the manner of carrying out 'such work and as to safeguards and measures' to protect workers engaged in it. A regulation requiring tunnels to be 'securely protected and made safe for persons employed therein' was held to be outside the authority of the statute, since it attempted to impose an absolute duty to make tunnels safe, whereas the statute give power only to prescribe particular methods of work and specific precautions. A worker injured in tunnelling in the Snowy Mountains Scheme was thus unable to rely on this regulation in suing for damages." 26. The Privy Council decision referred to by the learned author is in Utah Construction and Engineering Pvt. Ltd. v. H. Pataky (1966) Appeal Cases 629). In that case the Privy Council adopted with approval the statement of law in the judgment of the High Court of Australia in Shanahan v. Scott (1956) 96 C.L.R. 245 at 250): "The result is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary' It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends." 27. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends." 27. Garner on Administrative Law, 4th Edition at pages 78 and 79 under the headings Substantive ultra vires and the Construction of delegated legislation states: "If the parent Act provides that regulations may be made for a specified purpose, and the regulations are clearly made for some other purpose, then obviously those regulations will be to that extent (or possibly totally) void. But if the regulations are not said to be made for any particular purpose, then the courts will assume them to have been made for the purpose or purposes stated in the parent Act, and will construe them accordingly." 28. In view of these authorities I am of the view that the petition us have a legal right of navigation along the canal and at present the respondents have no legal authority to suspend or prevent navigation in the canal. Certainly the Legislature can step in in appropriate cases and empower any authority to suspend or prevent navigation for the purpose of putting of the pipe line if it is so considered necessary. R.29 of the Canals and Public Ferries Rules would not be of help to the authorities in this respect because suspension of navigation as per that rule can only be for the purpose dealt with by any one or other of the sections of the Canals and Public Ferries Act. Suspension of navigation for laying a pipe line across the canal is clearly unauthorised. It might also be noted that R.29 contemplates only suspension of navigation between specified dates. The notification initially issued was even beyond this power conferred by R.29 since no date was fixed. It might also be noted here that the subsequent notification pending the O. P. fixed a date but that date is also now over. Therefore Mr. Govinda Wariyar is perfectly right in stating that the action taken by the Executive Engineer in this case was really without authority of law and without jurisdiction as such. 29. But then the next question would arise as to whether a writ of mandamus is maintainable in law on the facts and circumstances of the case. Therefore Mr. Govinda Wariyar is perfectly right in stating that the action taken by the Executive Engineer in this case was really without authority of law and without jurisdiction as such. 29. But then the next question would arise as to whether a writ of mandamus is maintainable in law on the facts and circumstances of the case. It was contended by the learned Government Pleader that the petitioners have no statutory right in the matter and there is no corresponding duty on the part of the Government to keep open the canal for navigation. He referred me to the following decisions in the matter. He referred me to the decision reported in R. v Dunsheath (1950) 2 All. E. R.741. There Lord Goddard C. J stated: "It is important to remember that mandamus is neither a writ of course nor a writ of right, but that it will be granted if the duty is in the nature of a public duty and specially affects the rights of an individual, provided there is no more appropriate remedy. This court has always refused to issue a mandamus if there is another remedy open to the party seeking it." He also referred me to the decision in M. M. Breweries v. Union of India (AIR. 1975 Delhi 248) (FB) where it was said that it is well settled that a writ of mandamus under Art.226 is not granted to enforce a civil liability arising out of a breach of contract to pay an amount of money to the claimant and where the rights and obligations of the parties are purely contractual and not statutory, the validity of a disputed claim for money based on an alleged breach of contract, even though the claimant is the Government, is to be canvassed, either for or against the claim, in an ordinary civil proceedings or by resorting to arbitration or where there is an arbitration clause in the contract and will not be entertained in writ proceedings. 30. Another decision to which reference was made is in Shivendra Bahadur v. Nalanda College (AIR. 30. Another decision to which reference was made is in Shivendra Bahadur v. Nalanda College (AIR. 1962 S. C. 1210) where at Para.5 it was stated: "A great deal of controversy was raised before us as to whether the Statutes framed by the University under S.20 of the University of Bihar Act have or have not the force of law and whether a writ under Art, 226 of the Constitution can issue against the Governing Body of the College i. e. whether the appellant has a legal right to the performance of a legal duty by the respondents. In order that mandamus may issue to compel the respondents to do something it must be shown that the Statutes impose a legal duty and the appellant has a legal right under the Statutes to enforce its performance. It is, however, wholly unnecessary to go into or decide this question or to decide whether the Statutes impose on the Governing Body of the College a duty which can be enforced by a writ of mandamus because assuming that the contention of the appellant is right that the College is a public body and it has to perform a public duty in the appointment of a Principal, it has not been shown that there is any right in the appellant which can be enforced by mandamus. According to the Statutes all appointments of teachers and staff have to be made by the Governing Body and no person can be appointed, removed or demoted except in accordance with Rules but the appellant has not shown that he has any right entitling him to get an order for appointment or reinstatement. Our attention has not been drawn to any Article in the Statutes by which the appellant has a right to be appointed or reinstated and if he has not that right he cannot come to Court and ask for a writ to issue. It is therefore not necessary to go into any other question." 31. There cannot be any controversy with regard to these rulings but then here it is a case of executive authorities acting without jurisdiction at all. and in violation of the common law right of citizens. The argument that a writ of madamus will issue only for the enforcement of statutory rights is unsustainable. There cannot be any controversy with regard to these rulings but then here it is a case of executive authorities acting without jurisdiction at all. and in violation of the common law right of citizens. The argument that a writ of madamus will issue only for the enforcement of statutory rights is unsustainable. De Smith in his book on Judicial Review of Administrative Action states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract" (page 561) 32. The right interfered with by State action in this case is a public right of considerable importance. Since a public right is interfered with by the officers of the State without support of statutory authority ordinarily the petitioners would have been entitled as such to relief from this Court under Art.226. But one will have to take into account the following facts in this case. 33. The work that is being carried on by the authorities concerned which led to the infringement of the legal right of the petitioners is a work of great public importance, namely laying down water pipes for public utility. The Chief Engineer in his report has said that the work can be completed positively by 31st of this month and the obstruction for navigation removed by that time. Therefore I think interests of justice would be served if I direct the authorities concerned to see that the work already initiated is completed by the 31st of this month and the canal open for navigation from Ist February, 1976. In regard to any future work being carried out in view of the statement made by the Chief Engineer that arrangements could be made if the necessity to keep the canal open for traffic is kept in mind at the time of the commencement of the work to provide sufficient clearance for navigation as was done in the case of the Mooriad Bridge some time back Such arrangements should be made. The Public Health Engineering Department should evolve methods of providing shuttering in such a way that navigation is not obstructed in similar cases. The Public Health Engineering Department should evolve methods of providing shuttering in such a way that navigation is not obstructed in similar cases. As regards any loss or any special damage that might have been suffered by the petitioners on account of the negligence of the authorities concerned in carrying out the work or in doing something which law does not authorise them to do certainly they can seek their rights if so adviced in a civil suit. The decision in this case will not be a bar for the petitioners getting relief in any such suit if they are legally so entitled. The Original Petition is disposed of as above. There will be no order as to costs.