Judgment : 1. This writ petition under Article 226 of the Constitution of India is filed seeking the following reliefs: “For the reasons stated in the accompanying affidavit, it is therefore prayed that this Hon’ble Court may be pleased to issue a writ, order or direction, more particularly one in the nature of Writ of Mandamus, directing the respondent corporation not to make any construction including Sulabh Complex on a public road (Varun Motors Road), Benz Circle, Vijayawada Municipal Corporation declaring its action as illegal and ultra vires to the provisions of Articles 14 and 21 of the Constitution of India and also the mandatory provisions of the Hyderabad Municipal Corporation Act and the Rules framed thereunder on the subject from time to time, besides directing the respondent to demolish the construction already made, while directing not to proceed further and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.” (Reproduced verbatim) 2. The case of the writ petitioners, as set out in the affidavit filed in support of the writ petition, in brief, is as follows: The three writ petitioners are carrying on their respective businesses in Varun Motors Road, (‘the subject road’, for brevity), Benz Circle, Vijayawada Municipal Corporation. The sketch filed showing the topographical details of the area of the subject road on a perusal would make it clear that the 1st writ petitioner is having a petrol bunk facing MG Road situate on it’s Northern side and that the said petrol bunk is having the 30 feet subject road on it’s Western side and the 40 feet service road on it’s Eastern side. The 3rd writ petitioner is the owner of a building; and in it an NRI College is being run. The said building is having the 30 feet subject road on its Eastern side. The entire 30 feet subject road is covered by various offices, commercial organizations, a college, a petrol bunk and a post office. On a look at the sketch, it would be further clear that the subject road passes from South to North, i.e., it starts from 40 feet service road on the Southern side and ends on the Northern side after joining the MG Road, which is a four lane road. On a look at the sketch, it would be further clear that the subject road passes from South to North, i.e., it starts from 40 feet service road on the Southern side and ends on the Northern side after joining the MG Road, which is a four lane road. The width at the entrance of the subject road ranges between 35 and 40 feet; and the spot at which the subject road is ending is the subject matter of the writ petition. At that subject spot, the subject road’s width is 30 feet. The respondent Corporation had started construction of a Sulabh complex on the public road i.e., at the subject spot, that is, at the dotted portion shown in the sketch. On enquiry, the writ petitioners have come to learn that the respondent Corporation is planning to construct Sulabh Complex of a width of about 13 to 15 feet by encroaching the subject road at the subject dotted spot. Already, the subject road was encroached upon by a buddy shop and an electrical transformer. In spite of several representations by the public, the respondent Corporation, for the reasons best known to it, had failed to remove those two encroachments. Now, the respondent Corporation is planning to construct a Sulabh Complex narrowing the public road to a width of 15 to 20 feet at the subject spot. If such construction is made, the road at that spot would become a bottle neck. Heavy vehicles enter the service road to have oil/petrol at the 1st petitioner’s petrol bunk and return back through the subject road to enter National Highway no.5 (‘the NH 5’, for brevity). The subject road is covered by various commercial organizations including a college. There will be heavy vehicular traffic on the subject road; and, during the day time, there would be any amount of traffic jam in view of the parking of various vehicles on the road. The respondent Corporation knows all the facts. The vehicular traffic which passes through the NH 5 takes a diversion and enters the 40 feet service road and the 30 feet subject road to reach MG road whenever traffic jams occur at Benz Circle on the NH 5. The respondent Corporation knows all the facts. The vehicular traffic which passes through the NH 5 takes a diversion and enters the 40 feet service road and the 30 feet subject road to reach MG road whenever traffic jams occur at Benz Circle on the NH 5. On coming to know that the respondent Corporation is planning to make the construction of a Sulabh Complex at the subject spot on the subject road, the writ petitioners being the victims, along with the other affected persons, had submitted a joint representation dated 08.02.2011 requesting the Corporation not to proceed further with the construction on the public road. Having received the representation, the respondent Corporation being a statutory authority, in all fairness, ought to have called the affected persons of the locality for discussion in regard to the actual problem and ought to have taken steps to resolve the same in the larger interests of the public. Without doing so, the respondent Corporation had hushed up the programme and started the construction on Friday, the 11th of February 2011, and is intending to complete the same as expeditiously as possible to disable the concerned from moving the appropriate forum for redressal of their grievance. The respondent Corporation instead of taking steps for the free flow of traffic and prevention of the traffic jams is capriciously programming the construction of the Sulabh Complex on the public road, to add fuel to the fire. The respondent Corporation being a State under Article 12 of the Constitution of India and a statutory authority constituted under the provisions of Hyderabad Municipal Corporation Act is expected to act fairly. The intended action of the Corporation is arbitrary and is a colourable exercise of power and is liable to be struck down being violative of the Article 14 of the Constitution of India. It is an established principle of law that a citizen has got a right to pass through a public road and make use of every inch of it for ingress and egress. Though a public street vests in the Municipal Corporation, it has only the right to manage and maintain the same and it cannot raise any structures, which interfere with the right of passage of the public. In the circumstances, the right to life guaranteed under Article 21 of the Constitution of India is also infringed. Though a public street vests in the Municipal Corporation, it has only the right to manage and maintain the same and it cannot raise any structures, which interfere with the right of passage of the public. In the circumstances, the right to life guaranteed under Article 21 of the Constitution of India is also infringed. Hence, the action of the respondents is liable to be declared as violative of Principles of Natural Justice and the Articles of the Constitution. As the attempts made by the writ petitioners to convince the respondent Corporation not to go ahead with the construction proposed had proved futile, the writ petition is filed to direct the respondent Corporation not to take up any construction activity including the construction of the Sulabh Complex on a public road (subject Varun Motors Road), Benz Circle, Vijayawada Municipal Corporation and for other appropriate reliefs. 3. The averments in the counter affidavit filed by the then Commissioner of the respondent Corporation, in brief, are as follows: The material allegations in the affidavit filed in support of the writ petition are false. The Municipal Corporation is making construction of Sulabh Complex on a public road is incorrect. In fact, Benz Circle of Vijayawada city is an important busy traffic junction, where people will be waiting for buses and doing shopping etcetera. The said activities make people spend some time on open places of the streets, i.e., at the bus stands and shopping areas. Such people waiting on the streets, particularly children and women, are not having facilities to attend calls of nature either in the shopping establishments or on the streets. Many a time, it is not uncommon to see people, especially those coming from the villages and out side the city, attending the calls of nature on the road margins, the corners of the junctions and bushes. This unnatural practice is not only unhygienic but also not conforming to the aesthetics. The ladies, in particular, are the silent sufferers. The prevention of water and soil pollution and the spreading of communicable diseases is an obligatory function of the respondent Corporation. Open urination and defecation may contaminate the drinking water and cooked foods and may lead to propagation of flies. Vijayawada is one of the fast growing cities with high construction activity like laying of roads, construction of bridges, culverts and housing colonies for weaker sections etcetera. Open urination and defecation may contaminate the drinking water and cooked foods and may lead to propagation of flies. Vijayawada is one of the fast growing cities with high construction activity like laying of roads, construction of bridges, culverts and housing colonies for weaker sections etcetera. The City is one of the mission cities in the country. Hectic efforts are going on to cover the entire city with underground drainage system for scientific processing through sewage treatment plants where human excreta are made harmless. It is ridiculous to allow people to defecate and urinate openly. In fact, it is the obligation of the Corporation to provide sufficient number of toilet facilities and then enforce the hygiene. In this regard, on 27.07.2010, an open meeting was conducted with the NG organizations, residential welfare associations, Officers of the Municipal Corporation and the department of Traffic Police etcetera and also the Social Service Organizations like Toilets & Toilets and Sulabh International, who are the pioneers in the field of provision of sanitary conveniences to prevent open defecation and urination. The entire house opined that without providing sufficient number of sanitary conveniences for visitors and floating population, it is unfair to punish the people who are attending emergency nature’s calls in open areas. The Government of India through its National Urban Sanitation policy rated Vijayawada City as one of the best sanitized cities in the State of Andhra Pradesh. Vijayawada City stood first in the State and at 24th place amongst 423 Cities in the Country. The City is also attracting tourists from all over India for the purposes of pilgrimage, visiting Buddhist relic’s etcetera. It is the duty of every citizen in the City to prevent open urination and defecation. The same concept was submitted to the Municipal Council and approval was obtained through its Resolution no.458 dated 17.09.2010 to allot certain important places and places at traffic junctions to attend to the needs of the floating population. 34 such locations have been identified and works were entrusted to organizations like Sulabh International Social Service Organization and Toilets & Toilets etcetera who are the pioneers in the field of construction and maintenance of public toilets with the State of the art expertise. 34 such locations have been identified and works were entrusted to organizations like Sulabh International Social Service Organization and Toilets & Toilets etcetera who are the pioneers in the field of construction and maintenance of public toilets with the State of the art expertise. The numbers of the sanitary seats at such places vary from 2 to 4 as per the availability of the site at the location; and such public toilet facilities do not cause any inconvenience to the pedestrians, traffic and vehicular movement etcetera. All the toilets are allotted on BOT (Build, Own, Operate and Transfer) basis and one person of the organization will always be available round the clock at such public conveniences; and he would allow people to use the facility after collecting the user fee. Such toilets are already constructed at seven locations in the City and they are successfully running without causing any inconvenience to anybody. The construction proposed will narrow the road’s width and causes obstruction to the traffic is only an invention of the writ petitioners to stop the construction of the proposed sanitary convenience. The area was first selected through a survey done by the Health Officers, the Environmental Engineer, the Executive Engineer and the Assistant City Planner who are all responsible officers. As a team, they had visited all the locations and confirmed the requirement; and, after considering all the issues like traffic obstructions and the availability of connectivity of the toilet out lets to the underground drainage etcetera, the team had recommended for the construction of sanitary conveniences at various selected locations and the same was approved in the Council after thorough debate. When the petitioners had objected on the day of the construction, the scheme and the plan were explained, in detail, by the Chief Medical officer; and the Commissioner had cleared all their doubts in regard to connectivity to underground drainage and maintenance of hygiene etcetera; and, then only the contractor had proceeded with the construction work and the construction of the sanitary convenience at the subject spot is nearing completion. Even traffic police had also visited the construction site on the same day and had pacified them saying that it will not obstruct the traffic. Even traffic police had also visited the construction site on the same day and had pacified them saying that it will not obstruct the traffic. The allegation that the respondent Corporation has hushed up the programme and had started the construction on 11.02.2011 and is intending to complete the same as expeditiously as possible to disable the concerned from moving the appropriate forum for redressal of their grievance is not at all correct. The construction activity has been entrusted long ago to a private party on BOT basis, through the work order vide Rc.F13-103139/2010, dated 22.01.2011. On 12.02.2011, when there was an objection raised by Varun Motors for the construction of the toilet in the subject location viz., the spot adjacent to petrol bunk compound wall on the road margin by the side of the already existing electrical transformer, i.e., at the place between the Varun Motors and the petrol bunk, the Chief Medical Officer had personally attended to the problem and had cleared their doubts in the presence of the traffic police; and the issue was resolved peacefully. As the construction of toilets has been completed, the cause in the writ petition does not survive and the writ petition has become infructuous. 4. I have heard the submissions of the learned counsel for the writ petitioners and the learned Standing Counsel appearing for the respondent-Corporation. I have perused the material record. 5. From the pleadings of the parties, the facts that emerge for consideration, in brief, are as follows: The subject road/Varun Motors Road is a 30 feet road. It runs diagonally from South to North. On the South, it joins a 40 feet width service road; and on the North, it joins MG Road, which is a four lane road also known as Machilipatnam road. The circle where the MG road meets the National Highway (NH 5) is popularly known as Benz Circle. The subject spot at which the sulabh complex/sanitary convenience is being constructed on the 30 feet subject road, which joins MG road, is at a little distance from the MG road, which in turn meets at the Benz Circle, the NH 5, that is, the Chennai National High way. Thus, the Benz Circle area is a very important busy traffic junction in the City. Thus, the Benz Circle area is a very important busy traffic junction in the City. On one side of the 30 feet subject road, i.e., on the Western side of the said road, Varun Bajaj Show Room, Finance company office, post office and NRI College are situated. The complex in which the post office is situated is known as Ramachandra complex. On the Southern side of the said 30 feet subject road, i.e., on the Eastern side, the petrol bunk, some offices, a lodge, a canteen, a Bar and other commercial establishments are located. Now, the proposed Sulabh Complex is being constructed on the subject 30 feet road at the subject spot, i.e., on the North-Eastern side of the 30 feet subject road, that is, at the point at which the said subject road joins the MG road. The subject spot is thus adjoining the Western wall of the petrol bunk. The proposed place of the proposed Sulabh Complex is on the opposite side of the Varun Bajaj Show Room, however, on the other side of the subject road. Admittedly, at the place, where the Sulabh Complex is proposed, there is already an electrical transformer in existence. It is undisputed that whenever traffic jams occur at the Benz Circle, the vehicular traffic passes through the subject 30 feet road and the 40 feet service road and then again joins the MG road/main road. Since there are commercial establishments in the 30 feet subject road, it is but natural that there would be heavy movement of vehicles and that the vehicles would be parked on the road margins of the subject road during day time. On the NH 5 and the MG Road, there would be heavy vehicular traffic is not in dispute. The measurements of the proposed Sulabh Complex are12 feet X 15 feet, as per the averments in the writ petition and the said averments are not denied in the counter affidavit. In the counter affidavit, it is not stated on behalf of the Corporation that at the place, where Sulabh Complex is proposed, there is any additional space available or that the road is of more width, i.e., of a width exceeding 30 feet. However, it is stated in the affidavit filed in support of the writ petition that at the entrance, the width of the subject road ranges from 35 to 40 feet. However, it is stated in the affidavit filed in support of the writ petition that at the entrance, the width of the subject road ranges from 35 to 40 feet. Therefore, even if it is to be accepted that the width of the subject road is about 40 feet and that a Sulabh Complex with measurements of 12X15 feet is being constructed, it must be accepted as a sequel that the road width at that subject spot would be reduced considerably to less than 28 to 23 feet or so. Further, if the width of the road at the subject spot is to be taken as 30 feet only, then the proposed construction would reduce the width of the road to about 15 to 18 feet at the subject spot. Therefore, the width of the said subject 30 feet road would considerably be reduced at its Northern end where it joins the MG road, on the completion of the construction of the proposed toilets complex. As already noted the 30 feet subject Road is a road with commercial establishments on both the sides and joins the 40 feet width service road at one end and the MG road at the other. The subject spot, where the construction of the toilets is proposed is very close to one end of the 30 feet subject road i.e., the end which meets the MG road. The said subject spot, therefore, is at a point where the vehicles take a turn from the main road to the subject road and vice versa. Indeed, there are provisions under the Municipal Laws which empower the Municipal authorities to require any building intended to be erected at the corner of the two streets to be rounded off or splayed off to such height and such extent that may be determined keeping in view the convenience of the drivers of the vehicles and the pedestrians. The said MG road is a very prominent and important road in Vijayawada city is definite. The place at which the subject 30 feet road joins the MG road is very close to the Benz Circle, which is an important and major junction, where the MG road joins the NH 5. The said MG road is a very prominent and important road in Vijayawada city is definite. The place at which the subject 30 feet road joins the MG road is very close to the Benz Circle, which is an important and major junction, where the MG road joins the NH 5. It is not in dispute that this 30 feet subject road and the 40 feet service road would be put to use for easing the traffic congestion and for the movement of the vehicles from MG road to other main roads whenever traffic jams occur at the Benz circle. This is the undisputed factual aspect of the lis and topographical background of the subject area. Be that as it may. 6. It is no doubt true that the Corporation has an obligation to provide toilets/public conveniences at all convenient and appropriate places in the City for the convenience of the citizens, particularly children and women and it is the obligation and the responsibility of the Corporation to prevent Open urination and defecation on public streets, road margins and other public places available on the road sides and enforce hygiene by constructing/providing public conveniences wherever necessary subject to the availability of suitable places with sufficient space for construction of such conveniences. It is also true that without constructing or providing public conveniences at all suitable places, the Corporation will not be in a position to enforce hygiene. It is also true that without constructing or providing public conveniences at all suitable places, the Corporation will not be in a position to enforce hygiene. However, at the same time, while making available or providing the public conveniences, the respondent Corporation has an obligation and responsibility to take into consideration the aspects like – (i) the location and importance of the road; (ii) the width of the road in general; (iii) the width of the road at the place proposed for the construction of the public convenience; (iv) the availability of additional space on the road and on the road margins for the construction of such conveniences; (v) the provision for connectivity of the outlet of the proposed toilets to the public/underground drainage; (vi) the movement of the vehicular traffic on the proposed road and the adjoining roads; (vii) the frequency and enormity of the traffic jams on such roads; (viii) the available parking places for the vehicles; (ix) the already existing bus shelters and shops/wooden bunks on the road margins; (x) the commercial establishments on either side of the road; and other allied aspects while selecting a place and making a proposal for construction of the public convenience. The requirement of a public convenience for the use of the public at a particular place is not the only criterion is undisputed. Though it is stated in the counter affidavit filed on behalf of the Corporation that a team of responsible officers had surveyed the subject spot and that the said team had recommended for the construction of the public convenience at the subject spot also and that the Council had passed resolutions from time to time, the copies of any such documents referred to in the counter pleading of the respondent Corporation are not filed. In all fairness, the Corporation ought to have filed the site plan of the proposed public toilets that were permitted to be constructed at the subject spot. In all fairness, the Corporation ought to have filed the site plan of the proposed public toilets that were permitted to be constructed at the subject spot. Had the Corporation filed the site plan and the plan of the proposed structure, viz., the Sulabh Complex/public convenience, the same would have revealed the essential facts like the width of the road at the spot, the measurements of the proposed construction, the reduced width of the road after making such construction, the number of sanitary seats in the proposed toilets, the connectivity of the outlet of the toilet to the public drainage and other topographical details of the place. For non-filing of the vital documents, an adverse inference has to be necessarily drawn against the respondent-Corporation. 7. Before summing up, it is necessary to refer to the following decisions relied upon by the writ petitioners: (i) Immadisetty Anantham v. Municipal Corporation of Hyderabad and Secunderabad Division, Secunderabad and others, 1989 (2) ALT 390 ; (ii) The Municipal Board, Manglaur v. Mahadeoji Maharaj, AIR 1965 SC 1147 . In Immadisetty Anantham (1st supra), the facts disclose that permission that was granted by the Commissioner to erect an arch at the junction or at the intersection of the roads, that is at the junction of Subhash Road and Mahankali Street was the subject matter and the arch was proposed to be constructed on a 30 feet road. This Court noted the submission that if the proposed arch is allowed to be constructed, the road width would be reduced to 22 feet and results in hindrance and public nuisance and would be an obstruction to the passersby in the Mahankali Street. The question that fell for consideration was whether the 1st respondent/Commissioner has power under the Act to permit the proposed construction of the arch at the junction of Subhash Road and Mahankalli Street under Section 399 of the Hyderabad Municipal Corporation Act. The question that fell for consideration was whether the 1st respondent/Commissioner has power under the Act to permit the proposed construction of the arch at the junction of Subhash Road and Mahankalli Street under Section 399 of the Hyderabad Municipal Corporation Act. While answering the said question, this Court considered Sections 379, 397 and 399 of the said Act dealing with – (i) the powers in regard to prohibit use of Public Street for certain kinds of traffic; (ii) the prohibition of projections upon streets; and (iii) the permission in regard to projections over the streets in certain cases and also the case law concerning the subject and had held that the impugned sanction permitting the construction of an arch on the junction of two streets is illegal and, therefore, unsustainable; and that the Commissioner has no power under the Act, Rules, or Zoning Regulations for permitting such permanent construction of arches on the public streets or public roads; and that the ‘no objection certificates’, if any, given by the police and other departments concerned are irrelevant and the same do not vest any power in the Commissioner to grant the impugned sanction. In this decision, this Court referred to the principles laid down in various decisions which are as follows: (i) A highway, public street or pathway is meant for passing and re-passing and right of passage of a user extends to every part and portion of it, so no portion of it can be used for purpose other than the one for which it is meant. (ii) Even though a high way, a public street and public pathway vest in the municipality, it has only the right to manage and maintain the same. It cannot raise any structure thereon or on any part of it nor can it allow it to be used for raising any structure so as to interfere with the right of passage of the public. (iii) The user of the highway, public street, pathway, as the case may be, is not only entitled to seek prohibitory injunction against any individual or institution restraining it from interfering with his right of passage but is also entitled to mandatory injunction for removal of any obstructions or structure already made which in any way interferes with his right of free passage. In Mahadeoji Maharaj (2nd cited), a Bench of three Hon’ble Judges of the Supreme Court while holding that a public pathway vests in the Municipality, but the Municipality does not own the soil, had further held as follows: “In the present case it is not disputed that the metalled road was dedicated to the public. As we have indicated earlier, the inference that the side lands are also included in the public way is drawn much easily as the said lands are between the metal road and the drains admittedly maintained by the Municipal Board. Such a public pathway vests in the Municipality, but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and "so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street". It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. Subject to the rights of the Municipality and the public to pass and re-pass on the highway, the owner of the soil in general remains the occupier of it and, therefore, he can maintain an action for trespass against any member of the public who acts in excess of his rights. If that is the legal position, two results flow from it, namely, (1) the Municipality cannot put up any structures on the public pathway which are not necessary for the maintenance or user of it as a public pathway, (2) it cannot be said that the putting up of the structures for installing the statue of Mahatma Gandhi or for piyo or library are necessary for the maintenance or the user of the road as a public highway. The said acts are unauthorized acts of the Municipality. The plaintiff, who is the owner of the soil, would certainly be entitled to ask for an injunction restraining the Municipality from acting in excess of its rights. But the plaintiff cannot ask for possession of any part of the public pathway, as it continues to vest in the Municipality. The said acts are unauthorized acts of the Municipality. The plaintiff, who is the owner of the soil, would certainly be entitled to ask for an injunction restraining the Municipality from acting in excess of its rights. But the plaintiff cannot ask for possession of any part of the public pathway, as it continues to vest in the Municipality. From the precedential guidance, it is manifest that a highway/ public street/pathway is meant for passing and re-passing of the public and vehicles and that the right of passage of a user extends to every part and portion of it, and so no portion of it can be used for the purpose other than the one for which it is meant. Even though a highway/a public street/a public pathway vests in the Municipality, the Municipality has only the right to manage and maintain the same. But, it cannot raise any structures thereon or any part of it nor can it allow it to be used for raising any structure so as to interfere with the right of passage of the public. Thus, though there is imminent need, as rightly contended by the Corporation to make available or provide public conveniences for the use of citizens/public, particularly children and women, yet the Municipal Corporation cannot either construct structures or grant permission for construction of structures like public toilets on roads/streets or any part of the same. Therefore, the Municipal Corporation has to construct such public conveniences at places away from roads and road margins, and not on streets/roads and margins of streets/roads available immediately on either side or beyond drains. However, though the public toilet/Sulabh Complex is already constructed and is in existence at the subject spot, as on today, yet, the said structure is an illegal construction and the permission that was sanctioned for construction of the same under BOT scheme is not valid. Therefore, such construction, which is made on the subject road and road margin resulting in the reduction of the width of the road and which interferes with the right of passage of the public, cannot be allowed to remain, in view of the facts and the legal position obtaining. Therefore, this Court holds that the writ petitioners are entitled to the relief sought for in the writ petition and the writ petition deserves to be allowed. 8. Therefore, this Court holds that the writ petitioners are entitled to the relief sought for in the writ petition and the writ petition deserves to be allowed. 8. In the result, the Writ Petition is allowed, as prayed for. It is needless to state that the respondent Corporation shall take steps, preferably within two months from the date of the receipt of a copy of this order, for removal of the Toilet complex constructed at the subject spot on the subject 30 feet road and also take steps for providing a suitable alternate public toilet/convenience at any other suitable place other than a road or a road margin. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this writ petition shall stand closed.