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2018 DIGILAW 1056 (KER)

Chandramohan v. Sub Inspector of Police

2018-12-17

N.ANIL KUMAR, P.R.RAMACHANDRA MENON

body2018
JUDGMENT : N. Anilkumar, J. The question arising for consideration in this case is as to whether the owner in possession of a shop-room adjoining the highway has a right to go upon the highway from any point from his shop room, especially when there is a public pathway; and if that right is obstructed by anyone, the owner in possession of the shoproom abutting the highway is entitled to maintain an action for the injury, no matter whether the obstruction does or does not constitute a public nuisance. 2. The petitioner has been running a jewellery shop under the name and style 'Chinchilam Jewellers' for the last more than four years at Odanavattom Junction by the side of Kottarakkara Ayur Road in Kollam District. The said jewellery shop has been functioning in a building bearing Door No.XVI/169 and 170 of Veliyam Grama Panchyath as per Ext.Pl licence issued in accordance with rules. Apart from the petitioner, there are two employees in the aforesaid shop room and the annual average income from sales per day is Rupees One Lakh. Feeling aggrieved by the unauthorised parking of taxi cabs in front of the jewellery shop of the petitioner virtually blocking free ingress and egress to the shop room by respondents 5,6 and others, the petitioner submitted Ext.P5 complaint before the first respondent seeking police protection. The inaction on the part of the first respondent to render adequate police protection for carrying out the business in the petitioner's shop is arbitrary and illegal. Hence the petitioner has approached this Court seeking the following reliefs:- (i) issue a writ of Mandamus or any other appropriate writ, order or direction commanding the 1st respondent to give adequate and effective police protection for carrying out the business in the petitioner's shop viz "Chinchilam Jewellers" at Odanavattom Junction of Veliyam Panchayath stopping the illegal parking of vehicles by respondents 5, 6 and others and also the nuisance which are being committed in front of the petitioner's shop room. (ii) issue a writ of Mandamus or any other appropriate writ, order or direction commanding the 1st respondent to give adequate and effective police protection to the life of the petitioner and his staffs at the shop "Chinchilam Jewellers" which is being rim by the petitioner. (ii) issue a writ of Mandamus or any other appropriate writ, order or direction commanding the 1st respondent to give adequate and effective police protection to the life of the petitioner and his staffs at the shop "Chinchilam Jewellers" which is being rim by the petitioner. (iii) issue a writ of Mandamus or any other appropriate writ, order or direction commanding the first respondent to consider Ext.PS complaint and take action in accordance with law." 3. Heard the learned counsel for the petitioner, Sri. P.P. Thajudeen, the learned Senior Government Pleader appearing for respondents 1 and 4, Sri. M.R. Sasith, the learned counsel appearing for respondents 2 and 3 and Sri. N.P. Pradeep, the learned counsel appearing for the fifth respondent. 4. Learned counsel for the party respondents contended that the particular road on which the parking complained of has been constructed as a public highway being Kottarakkara Ayur Road in Kollam District and no person has exclusive right to claim right over such a highway under any circumstance. It is further contended that no right of frontage can be claimed by the petitioner as of right and the parking of autorickshaws and taxies on the side of the public road do not constitute a nuisance and the petitioner has no right to claim independent right over the public road. It is further contended that assuming for arguments sake that the parking is a nuisance, the remedy of the authorities is to abate the nuisance in accordance with law and not by way of mandamus directing to issue necessary police protection to abate the nuisance. Learned counsel for the party respondents vehemently argued that in the case of a public road, the public are entitled to use the entire width of the public road as the highway and are not confined to the part which may be tarred or kept vacant in order for the convenient use of carriages and foot passengers. 5. As against this, the learned counsel for the petitioner contended that the road on which the parking has been challenged, is a public road, and on highways, frontage is of great importance and hence a person, who owns a shop-room abutting on the highway, can legally claim access to the highway at any point. 6. The contention set forth above raises important questions of law and fact and it is necessary to examine the questions in detail. 6. The contention set forth above raises important questions of law and fact and it is necessary to examine the questions in detail. 7. In the decision reported in Municipal Committee v. Mohammad Ibrahim (AIR 1935 Lah 196), a Division Bench of the Lahore High Court held that there can be no question that for the owners of houses abutting on a public highway, the question of frontage is a great deal and if anything is done by those in whom the highway vests which interferes with the rights of the owners with regard to the Highway and which tends to diminish the comforts of the occupants of the house, the owners will undoubtedly have an actionable claim against them. 8. In the decision reported in Sheonarayan v, Dindayal (AIR 1931 Nag 189), a Single Bench of Nagpur High Court held that where a plaintiff complains of an invasion of his rights as owner of property, the beneficial enjoyment of which is adversely affected, he can sue for the removal of the obstruction of a public way without showing, special injury to himself beyond that suffered by any member of the public 9. Similarly in the decision reported in Mandakmee Debee v. Basantakumaree Debee (AIR 1933 Cal.884) a Division Bench of Calcutta High Court held that any individual member of the public has the right to maintain a suit for removal of obstruction of a public highway if his right of passage through it is obstructed without proving special damage. 10. In the decision reported in Patna City Municipality v. Dwarka Prasad Singh and Others (AIR 1939 Pat. 683), Harries, C J. (as he then was) of the Patna High Court held that the owner of a land adjoining the highway is entitled to access to the highway at all points where the land adjoins the highway whether or not the soil of the highway being his. 11. In the decision reported in Damodara Naidu and Others v. Thirupurasundari Ammal and Others (AIR 1972 Madras 386), a Single Bench of the Madras High Court relied on Mackenzie's Law of Highways, 21st Edn (at Page 58), in which it is stated as follows:- "The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground adjacent to the highway or not. The rights of the public to pass along the highway are subject to this right of access. Just as the right of access is subject to the right of the public and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway....... The right of the owner of land adjoining a highway to access to or from the highway from or to any part of his land is a private right, distinct from the right to use the highway as one of the public, and the owner of the land whose access to the highway is obstructed may maintain an action for the injury whether the obstruction does or does not also constitute a public nuisance. " Relying upon the above passage, the Madras High Court held that where there is a public highway, the owners of land adjoining the highway have a right to go upon the highway from any point on their land; and if that right is obstructed by any one, the owner of the land abutting the highway is entitled to maintain an action for the injury, whether the obstruction does or does not constitute a public nuisance. 12. In the decision reported in The Municipal Board. Manglaur v. Mahadeoji Maharaj ( AIR 1965 SC 1147 ). the Apex Court, while considering the right of the Municipality to erect a statue and also to put up two rooms on a vacant site lying in between two Nalis and a road, which ran through a plot belonging to a private owner, held that the Municipality cannot put up any structure on the public pathway, which are not necessary for the maintenance or user of it as a pathway and the installation of a statue or putting up of other constructions cannot be said to be necessary for the maintenance or user of the road as a public highway and such acts' would be unauthorised acts of Municipality. It was also laid down that the owner of the property adjoining the public pathway was entitled to ask for an injunction restraining the Municipality from acting in excess of its rights. 13. It was also laid down that the owner of the property adjoining the public pathway was entitled to ask for an injunction restraining the Municipality from acting in excess of its rights. 13. In the decision reported in Tanoor Panehayath v. Kunhiamutty ( 1978 KLT 813 ), it was held by a Single Bench of this Court that the owner of land adjoining a high way is entitled to access to such highway at any point at which his land actually touches it. 14. Going by the above legal precedents, it is clear that permitting the private respondents to park taxi cabs unauthorisedly in front of the jewellery shop owned by the petitioner, obstructing his private right abutting the highway is not at all justified. No doubt, permitting the party respondents to park their taxi cabs permanently in front of the petitioner's shop room on the side of the highway is an appropriation of his private right to have free access to the highway. Identical question of fact and law was considered by a Single Bench of this Court in the decision reported in Joseph v. District Magistrate ( 1996 (2) KLT 490 ). It reads as follows:- “10. But more than that, the owner on the side of the national highway has a private right of access as well, subject, to the public right of passage which is a higher right to be enjoyed by public including the person like the petitioner. In other words, a private right of access to the highway may co-exist with a public right of way though it does not necessarily merge with the public right. Public right of passage is subject to private right of landowners' right to access to the highway. Where a foot-path intervenes between a highway and adjoining premises, the owner of the premises is entitled to access across the foot-path to the highway for any kind of traffic, which is necessary for the reasonable enjoyment of his premises. The interest of the public in a highway consists solely in the right of passage. Such right would include stopping perhaps for refreshments, enjoying the view etc. But no highway user may use the highway for parking their vehicles permanently for their business so as to invade the private right of entry of a owner of adjoining land to the highway. Such right would include stopping perhaps for refreshments, enjoying the view etc. But no highway user may use the highway for parking their vehicles permanently for their business so as to invade the private right of entry of a owner of adjoining land to the highway. For traffic regulation and for public purpose and for the safety of pedestrians, it is open to the authorities to plant barriers separating the foot path and the highway, which may invade the private right of a person owning land abutting the highway. It may also possible for a statutory authority to erect obstructions in the highway such as electric posts, telephone posts, but shelter etc., which may invade the private right of landowners abutting the highway. The same is for public interest. But allowing taxi cars to park on the side of the highway obstructing the private right of landowners abutting the highway is not for a public purpose, but for the private interest of taxi operators in exercise of their business. 11. Allowing taxi operators who are engaged in their business to park their vehicles permanently in front of petitioner's workshop on the side of the national highway is an invasion of the private right of petitioner to have access to the national highway. It is not as if taxi cars are parked for sometime to board or alight passengers, but parked there for their business. Parking of taxi cars round the clock in front of the petitioner's shop as part of their business cannot be said to be legal." 15. Judged by the above standards, we are of the considered view that the petitioners are entitled to have access to the Kottarakkara Ayur Road in Kollam District abutting his shop room No.XVI/169,170 of Veliyam Grama Panchayath, free of any obstruction. There will be a direction to the first respondent to give adequate and effective police protection for carrying out the business in the petitioner's shop under the name and style 'Chinchilam Jewellers' at Odanavattom Junction at Veliyam Panchayath, stopping the illegal parking of the vehicles by respondents 5, 6 and others in front of the petitioner's shop room on the side of the highway. In the result, the writ petition is disposed of as indicated hereinabove.