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S. Rudrappa Achary Vs. the Corporation of Madras - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in34Ind.Cas.735
AppellantS. Rudrappa Achary
RespondentThe Corporation of Madras
Cases ReferredEllis v. Arnison
Excerpt:
madras city municipal act (iii of 1904), section 247 - erection of fence in private street--'obstruction'--power of corporation to order removal--acquisition of portion of private street by corporation,--connection with public street--statutory powers of corporation. - .....the street gave access, pulled them down and this left an open way from the private street to the public street close by. no doubt this will have the effect of considerably increasing the traffic on the private street, unless the plaintiff takes strict measures to prevent trespass, and in effect (the street is likely to be turned into a thoroughfare, however, it will be evident that it is a public convenience, and in a town, private owners have to put up with inconvenience in many respects pro bona public. can the corporation be said to have done any wrong in palling down the houses they acquired and making the sites into a public way? i do not think so. nor can they by so doing forfeit whatever right of access to the private street they had as owners of the site, but they cannot give.....
Judgment:

Phillips, J.

1. I have no hesitation in agreeing with the City Civil Court Judges finding that the plot marked green in the plan is a private street within the meaning of Section 3 (26) of Act HI of 1904. It is a place 40 feet wide running round the plaintiff's temple, and bordered by houses and is called Mada 'Vidhi,' which means a street, and it is certainly a pathway made by the plaintiff for the convenient use of or for access to his temple. The next question is whether the plaint-iff is entitled to put up an obstruction at the end of the street. The defendant, the Madras Corporation, acquired two houses at the end of the private street, to which the street gave access, pulled them down and this left an open way from the private street to the public street close by. No doubt this will have the effect of considerably increasing the traffic on the private street, unless the plaintiff takes strict measures to prevent trespass, and in effect (the street is likely to be turned into a thoroughfare, However, it will be evident that it is a public convenience, and in a town, private owners have to put up with inconvenience in many respects pro bona public. Can the Corporation be said to have done any wrong in palling down the houses they acquired and making the sites into a public way? I do not think so. Nor can they by so doing forfeit whatever right of access to the private street they had as owners of the site, but they cannot give the general public any greater right than they had before, and the plaintiff will be entitled to restrain the public from trespassing to the same extent to which he was before entitled. The Municipal Act gives the Corporation considerable powers, and these are given for the purpose of promoting the health, safety and convenience of the public and consequently I think that the sections of the Act which give powers or restrict the rights of individuals must be strictly construed. Section 247 is such a section and undoubtedly the plaintiff has erected an obstruction on his private street within the meaning of the section. The removal of the obstruction as ordered by the defendant may ultimately have a wider effect than merely freeing the street from obstruction, as it will afford access to the street from the neighbouring public thoroughfare. This may or may not be prejudicial to the plaintiff, but it will probably be beneficial to the public, and, therefore, I can see no reason why the Corporation should be restrained from exercising the power which they undoubtedly have under Section 247 of the Act. I would dismiss the appeal.

John Wallis, C.J.

2. This was clearly a street, and if so, a private street, running round the temple with the temple wall on one side and houses opening into the street on the other. Formerly there was only one approach to it through the main entrance of the temple. Recently the Corporation purchased from the temple authorities a house at the back of the temple opening into this street pulled it down, and converted the site into a street connecting the private street, with other streets beyond and enabling traffic to pass through it. Though the Corporation by their purchase of the house acquired as an easement of necessity such right of access to the house as had previously been enjoyed, they did not acquire any right for the public from the streets beyond over the acquired site into the private street, and the temple authorities to prevent them from asserting or acquiring such a right have erected certain demarcation stones, as they call them, at the western edge of the street to prevent carriages and cattle passing to their private street. The Corporation object to the erection of these stones without their permission as being in contravention of Section 247 of the Madras City Municipal Act, III of 1904, which forbids any one to build any wall or erect any fence or other obstruction or encroachment in any street or in or over any drain except as hereinafter provided.' The plaintiff then brought the present suit against the Corporation for a declaration of the right of the temple to keep the stones there and for an injunction. The City Civil Court Judge held that they are. an obstruction within the meaning of Section 247 as they prevent access from the public streets to the private street, to those who are entitled to use it. The only easement which existed was one of access to and from the house which has been pulled down to the private street, and it is not shown that the stones which have been left standing would have obstructed such right of access as existed. Now that the house has been pulled down I do not think they are an obstruction within the meaning of the section, as they do not obstruct any one in the exercise of his lawful right of passage. They appear, however, to constitute a fence, Ellis v. Arnison 1 B. & C. 70 and are in fact a boundary fence. It may seem strange that the Legislature should prevent the owner of a private street from erecting a fence for the preservation of their rights : but the language is express and I am reluctantly compelled to concur with my learned brother in holding that the appeal should be dismissed.


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