1988 Supreme(AP) 203

Andhra Pradesh High Court
Judges : JEEVAN REDDY
S.Someswararao - Appellant
Versus
S.Tirupathamma - Respondent
S.A. No. 316/82
Decided On : 04-29-88
Advocates Appeared :
Mr. T. Veerabhadrayya,Mr. C.V.N. Sastry,Mr. D. Venkatareddy

Headnote:SPECIFIC RELIEF ACT - Sec. 39-Land abutting a public street or a public high way in a Municipality which joins a National Highway - Mandatory injunction sought by owner thereof against encroachers of road margin blocking ingress and egress between his land and public pathway - Can be granted by the Court.

       Held : (On difference of opinion between the Honble Mrs. Justice Amareswari and the Honble Mr. Justice Upendralal Waghray)

       It is true that Sec. 39 expressly speaks of a discretion in the Court in the matter of granting a mandatory injunction but the said discretion has to be exercised in accordance with law and having regard to the facts and circumstances of a given case. May be that g ranting a mandatory injunction would result in eviction of the poor people living in the huts, or the displacement of the school which is said to be running there for the last several decades; but that can be taken care of by making appropriate directions. No person can be allowed to occupy a portion of a public road, a highway, or even a public pathway and argue that even after his encroachment there is sufficient space left for public to pass by. He cannot be the judge of the requirements of the public. nor can he decide for himself what extent must be left for public use and what extent must be occupied by him.