No obstruction can be caused by Municipality over the road.

Defendant-Panruti Municipality is the appellant herein. The subject-matter of the suit

O.S. No.2846 of 1979, on the file of the District Munsif’s Court, Cuddalore, is a public market place.

2. With an intention to prevent unauthorised occupation of shops and unauthorised hawking, the defendant- Municipality put up a platform having a height of 2 feet, to a length of 8 1/2 feet. The said platform caused obstruction for easy access to the plaintiff who is having shops on the roadside. Hence the present suit was filed for a mandatory injunction, directing the Municipality to demolish the platform constructed by it.

3. The defence taken by the Municipality was that, being a public land, it has got absolute right to construct a platform. It also put forward a contention that the intention of putting up such platform was to avoid unauthorised hawking. It also said that the plaintiff has got free access to their shops. According to the defendant, it was justified in constructing the platform.

4. During trial, a Commissioner was deputed to verify the nature of the platform and submit a report as to how far it has caused obstruction, if any, to the plaintiff’s user. Accordingly the Commissioner has filed a report and plan.

5. Trial court took into consideration the entire evidence in this case, both oral and documentary, and ultimately came to the conclusion that the Municipality has no right to put up such a construction, causing obstruction not only to the plaintiff but also to all the members of the public. Trial court took the view that though it is a public place, it has got only the right to maintain and use the same just like a member of the public, and that it has not right to put up any construction. It said that the construction of the platform has caused obstruction not only to the plaintiff but also to the shop owners on either side of the road. It directed the defendant- Municipality to demolish the platform.

.6. Defendant preferred an appeal before the lower appellate court as A.S. No.84 of 1982. The appellate Judge confirmed the decision of the trial court.

7. It is against the concurrent decision of both the courts below, defendant has preferred this second appeal.

.8. At the time of admission of the second appeal, the following substantial question of law was framed for consideration:

.“Whether the courts below are right in granting a decree for mandatory injunction on the facts and circumstances of the case?”

9. The right of Municipality over a public road is decided in various cases.

10. In State of U.P. v. Ata Mohd., A.I.R. 1980 S.C. 1785, their Lordships followed an earlier decision of the same court reported in Municipal Board, Mangatur v. Mahadeoji Maharaj, A.I.R. 1965 S.C. 1147: (1966)1 S. C.J. 745: (1965)2 S. C.R. 242. In the instant case, the schedule property comes within the definition ‘street’ under the District Municipalities Act. It is better to incorporate paragraph 9 which reads as follows:

“The Municipalities in various States were created under the respective Municipalities Acts, in order to facilitate the efficient administration of the Municipal areas and to provide lighting, watering and maintaining of public streets and places. The duties of the Municipal Boards are specified in Sec.7 of the U.P. Municipalities Act. Under Sec. 118 of the Act, the Municipal Board is empowered to manage or control any property entrusted to its management and control. The vesting of the property, in the Municipality is under Sec. 116 of the Act. Sec. 116 provides that subject to any special reservation made by the State Government, all property of the nature specified in this section and situated within the Municipality shall vest in and belong to the Board, and shall, with all property which may become vested in the Board, be under its direction, management and control. Clause (g) relates to vesting of streets and is as follows:

”All public streets and the pavements, stones and other materials t