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Andhra Pradesh High Court
Judges : S.S.M.QUADRI
Immadisetty Anantham - Appellant
Versus
Municipal Corporation of Hyderabad and Secunderabad Division, Secundcrabad - Respondent
Decided On : 02-14-89
HYDERABAD MUNICIPAL CORPORATION ACT - SECTION 399 - CONSTRUCTION OF ARCH ON PUBLIC STREET - POWER OF COMMISSIONER - LEGALITY OF SANCTION - PUBLIC RIGHT OF WAY - OBSTRUCTION - MANDATORY INJUNCTION.
Fact of the Case:
Petitioner, a businessman, challenged the legality of the permission granted by the Commissioner of Hyderabad Municipal Corporation (HMC) for the construction of an ornamental arch at the junction of Subhash Road and Mahankali Street. The arch was intended to regulate traffic and beautify the area. The petitioner contended that the construction would obstruct the free passage of the public and was illegal as it violated the provisions of the Hyderabad Municipal Corporation Act (HMA) and the Building Bye-laws.
Finding of the Court:
The court held that the Commissioner did not have the authority under the HMA, Rules, or Zoning Regulations to permit the construction of the arch on the public street. The court found that the proposed construction would reduce the width of the road from 30 feet to 22 feet, which was a violation of the Zoning Regulations. The court also held that the no-objection certificates given by the Deputy Commissioner of Police (Law and Order) and Traffic and the consent given by the Endowment Department did not vest any power in the Commissioner to grant the impugned sanction.
Issues: 1. Whether the Commissioner of HMC had the authority to permit the construction of the arch under the HMA, Rules, or Zoning Regulations? 2. Whether the proposed construction would obstruct the free passage of the public? 3. Whether the no-objection certificates and consent given by various authorities vested any power in the Commissioner to grant the impugned sanction?
Ratio Decidendi: 1. The court interpreted Section 399 of the HMA, which empowers the Commissioner to grant permission for the construction of arcades over streets. The court held that the proposed construction did not fall within the definition of an arcade as it was not an arched way, covered passage, or ornamental dressing to a wall. 2. The court relied on the principle that a highway, public street, or pathway is meant for passing and repassing, and the right of passage of a user extends to every part and portion of it. The court held that the proposed construction would interfere with the right of passage of the public and was, therefore, illegal. 3. The court held that the no-objection certificates and consent given by various authorities did not vest any power in the Commissioner to grant the impugned sanction as they were irrelevant and did not authorize the Commissioner to permit the construction of the arch.
Final Decision: The court allowed the writ petition and issued a writ of mandamus directing the Commissioner to remove the impugned sanction for the construction of the arch.
( 1 ) THE petitioner is a business-man carrying on his business in shops bearing No. 3-3-416 and 3-3-417 situated at Mahankali temple street near mahankali temple at Secunderabad. It is stated that the width of the street is 30 as shown in the plan under A. P. Urban Area of Development act, 1975. A zonal plan for Zone I was prepared by the urban development authority which was published wherein the width of the road is shown as 50 . It is stated that there is Mahankali marriage hall and mahankali temple and other business shops on the said street ; the locality is a very busy locality and the traffic on the said street is very heavy, resulting in accidents on the roads. Opposite to Mahankali temple, there are temples of Lord Shiva and a mandir of Lord Narasimha and towards north there is a foot-path abutting the said street. At the junction of Subhas road and Mahankali temple street, at the instance of the 6th respondent, a foundation was laid in the middle of the street to construct a permanent arch with four pillars of 2x2 width, in the presence of respondents 4 and 5 on August 31,1988. The width between the central pillars is 22 ft. Lorries, cars, cart-carriages, buses or any other vehicle and cycle rikshas, men and cattle have to pass through this 22 ft. wide road. By the proposed construction of the arch, 30 ft. wide road is now proposed to be reduced to 22 wide road for their self-glorification, resulting in public hindrance and great nuisance to the public. The proposed construction is an obstruction to the passers by in the said Mahankali street. Coming to know of this, the petitioner sent a notice through his lawyer to the respondents that such a construction of arch on the public road is illegal and will cause obstruction to the free passage of public and requested not to allow or proceed with such constructions. The 1st respondent sent a reply on 14-9-1988 stating that the permission for the proposed arch was granted by the municipal Commissioner on March 3, 1986. The petitioner alleges that respondents 4 to 6 have managed to obtain permission through the Commissioner contrary to the provisions of the Hyderabad Municipal Corporation Act and the Bylaws with their influence and permission is illegal and void. In these circumstances, the petitioner prays for a writ of mandamus or any other appropriate writ or direction to call for the records in Rc. No. E. E. /s2/23646 on the file of respondents 1 and 2 and declare the permission granted by the respondents for construction of an ornamental arch in Mahankali street, secunderabad in permit No. 78/92 of 1986 dated 3-3-1986 as illegal and void and without jurisdiction and for a further direction to the respondents 4 to 6 not to make any permanent structural constructions in the Mahankali street causing obstructions to the passage of public and to pass such further orders as the circumstances of the case justify.
( 2 ) THE Additional Commissioner, Municipal Corporation of Hyderabad filed a counter affidavit for respondents 1 and 2. It is admitted that under G. O. Ms. 440, dated 27-9-1985, the road in question is notified at 50 ft. road It is also admitted that the area in question is a busy area. It is stated that for construction of an ornamental arch at Subhas Road and road leading to Mahankali temple was granted only in consultation with and approval of the Endowment Department and the traffic police, after taking into account all the aspects and the traffic point of view to prevent the speed of the vehicles. It is stated : "permission for this arch was granted for two angles. Firstly to regulate the traffic by breaking the speed to control the traffic and to beautifying the road. Provision has made for passage of vehicles and pedestrains through smaller arches. The 1st respondent has every right to allow, the construction or to construct such arches to beautify the roads under provisions of the h. M. C. Act, 1955". It is further stated that the 6th
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