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1976 Supreme(AP) 218
Andhra Pradesh High Court
Judges : B.P.JEEVAN REDDY
Sataraboyina Someswara Rao - Appellant
Versus
Sangasetti Tirupathamma - Respondent
Decided On : 11-09-76
The public has a right to use every inch of a public pathway, and no person can be allowed to occupy a portion of such a pathway and argue that there is still space left for public to pass by.
Headnote:
PUBLIC PATHWAY - ENCROACHMENT - MANDATORY INJUNCTION - DISCRETION OF THE COURT - PUBLIC POLICY - HIGHWAY - PUBLIC STREET - RIGHT OF THE PUBLIC TO PASS AND REPASS - SECTION 39 OF THE SPECIFIC RELIEF ACT.
Fact of the Case:
The plaintiffs, owners of lands abutting a public pathway (puntha poramboke), filed a suit for a permanent injunction restraining the defendants from obstructing their access to the pathway and a mandatory injunction directing the defendants to remove the encroachments/sheds already erected. The trial court dismissed the suit, holding that the plaintiffs had another passage to reach the road and hence no immediate necessity for the mandatory injunction. The appellate court reversed the decision and granted both the injunctions.
Finding of the Court:
The High Court held that the plaintiffs had a right to use every inch of the public pathway and that the defendants had no right to occupy the said land or obstruct the user of the same to any extent. The court also held that the discretion under Section 39 of the Specific Relief Act must be exercised in accordance with law and having regard to the facts and circumstances of a given case. In the present case, the court found that the encroachments were blocking the entire frontage of the plaintiffs' land, except for a small passage, and that the defendants had not shown any right to occupy the said land. The court also noted that the school had been running in one of the sheds for a long number of years and that the plaintiffs had another passage to reach the public highway.
Issues: 1. Whether the plaintiffs had a right to use every inch of the public pathway? 2. Whether the defendants had a right to occupy the said land or obstruct the user of the same to any extent? 3. Whether the discretion under Section 39 of the Specific Relief Act must be exercised in accordance with law and having regard to the facts and circumstances of a given case? 4. Whether the encroachments were blocking the entire frontage of the plaintiffs' land, except for a small passage? 5. Whether the defendants had shown any right to occupy the said land? 6. Whether the school had been running in one of the sheds for a long number of years? 7. Whether the plaintiffs had another passage to reach the public highway?
Ratio Decidendi: 1. The court held that the plaintiffs had a right to use every inch of the public pathway, relying on the decision in Butchamma Vs. Venkateswara Rao AIR 1969 A. P. 136, which held that "once a highway the whole and every part of it is a highway and the public right of way extends over every inch of the highway." 2. The court held that the defendants had no right to occupy the said land or obstruct the user of the same to any extent, as they had not shown any right to do so. 3. The court held that the discretion under Section 39 of the Specific Relief Act must be exercised in accordance with law and having regard to the facts and circumstances of a given case. 4. The court found that the encroachments were blocking the entire frontage of the plaintiffs' land, except for a small passage. 5. The court found that the defendants had not shown any right to occupy the said land. 6. The court noted that the school had been running in one of the sheds for a long number of years. 7. The court found that the plaintiffs had another passage to reach the public highway.
Final Decision: The court allowed the second appeal in part and set aside the decree of the courts below to the extent of mandatory injunction. In all other respects, the appeal was dismissed. The court directed the defendants to remove their encroachments within a period of one year from the date of the judgment. The court also directed the District Collector to allot an alternate site for locating the school within the same period.
( 1 ) ADMITTEDLY the cart track poramboke is used by the public of the locality to take their cattle, carts and men. On a portion of the poramboke, the defendants raised structures. Admittedly the defendants are encroachers and are liable to be evicted either by the government or by the Eluru Municipality. The plaintiffs sought a permanent injunction restraining the defendants from interfering with their right to use the entire poramboke as pathway and also sought a mandatory injunction for removal of the structures raised by the defendants. In the plaint, it is admitted that a block-topped road was also laid some time prior to the filing of the suit either by the government or by the municipality. The structures erected by the defendants, it is not asserted in the plaint, are on the black topped road. It is also pleaded by the plaintiffs that they have no other pathway for reaching their lands or for taking their men, cattle and carts to their lands and that the suit public pathway is the only passage. It is however admitted af the trial by the plaintiffs that on the north of the lands there is a pucca passage to take their, cattle, carts and men the said passage was purchased under ex. A-4 by some individuals of the locality for the benefit of the residents of the entire locality.
( 2 ) THE trial court observes that the purchase under Ex. A4 is for the benifit of the residents of the locality. The appellate court however, observes that the owners of the passage purchased under ex. A4 may obstruct the plaintiffs from using the same. Be that as it may, the appellate court also finds that the space left out in the suit public pathway after erection of sheds by the defendants is sufficient to serve the needs of the plaintiffs. However, the appellate court reversing the judgment and decree of the trial court granted both the injunctions prayed for by the plaintiffs on the ground that they are entitled to use every inch of the public pathway from one and to the other, relying upon the decision in Butchamma vs. Venkateswara Rao AIR 1969 A. P. P. 136. The correctness of this decision is canvassed by Sri T. Veerabhadrayya, learned counsel appearing for the appellants, according to whom the cardinel principles governing grant or refusal of the equitable reliefs of injunctions while exercising judicial discretion were not borne in mind. The questions raised in this case are of far- reaching importance. I am, therefore, of the opinion that this case should be decided by a Division Bench of this court. Place the papers before the Hon ble the chief Justice for posting the case before a Division Bench. This appeal coming on for hearing on this the 24th day of February, 1988 before the Hon ble Mrs. Justice Amareswari and the Hon ble Mr. Justice Upendralal waghray, having been referred to Division bench pursuant to the order of the High court dt. 19-2-87 and made herein and upon perusing the petition and the decree and judgnent of the lower courts and the material papers in the case and upon hearing the arguments of Mr. T. Veerabhadrayya, advocate for the petitioners and of Mr. C. V. N. Saxtry, advocate for the respondent nos. 1 to 7 and of Mr. D Venkaiareddy, advocate for the respondents 8 and 9 the court delivered the following Judgment.
( 3 ) THE plaintiffs are owners of lands in R. S. No. 77/1 in Phirangula dibba of Eiuru town. To the East of the said land, there is a puntha poramboke bearing R. S. No. 69. The case of the plaintiffs is that the said puntha RS No. 69 is a pathway leading to their lands and it serves as a passage for ingress and aggress to the adjoining residents and cultivators for men and agricultural purposes. The defendants 2 to 5 have tresspassed upon the puntha about 3 years prior to the suit and constructed thatched houses thereby obstructing the plaintiffs and others from using the puntha as a pathway. They filed the suit for a permanent injunction restraining the defendants from putting up any
