IN THE HIGH COURT OF KERALA, AT ERNAKULAM

Present:

The Hon'ble Mr. Justice K.S. Radhakrishnan

&
The Hon'ble Mr. Justice G. Sasidharan

Tuesday, the 19th December, 2000/28th Agrahayana, 1922.


O.P.No....2 3 3 0 9....OF 2000(Y)


PETITIONER:

Kaloor Joseph, S/o. George, Padapurackal, Kaloor, Cochin-17.

By Adv. Sri. P.B. SAHASRANAMAN.

RESPONDENTS:

1. The District Collector, Collectorate, Ernakulam.

2. The Greater Cochin Development Authority, represented by its Chairman, Kadavanthara, Ernakulam.

3. Cochin Corporation, represented by its Secretary, Park Avenue, Ernakulam.

Addl. R4 Smt.Sara John Chandy, 28/277, S.a. Road, Kochi-682036.

(Impleaded suo motu by Order dated 4-9-2000 in CMP.No.39309/2000)

R3 by Adv. Sri. K. Balakrishnan, SC, Cochin Corporation.
R1 by Government Pleader Sri. C.K. Pavithran.
R2 Sri. M.V. Joseph.
R4 by Adv. Sri.Mathews Jacob.

This Original Petition having been finally heard on 19/12/2000 the court on the same day delivered the following:


K.S.RADHAKRISHNAN & G. SASIDHARAN (JJ).

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O.P.No....23309....OF 2000

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Dated:19th December, 2000.


J U D G M E N T

Radhakrishnan, J.

This writ petition has been preferred to abate a public nuisance. Petitioner is a social worker who is concerned with the obstruction caused to a public road by the existence of a land with a building thereon rendering the traffic dangerous to the public.

2. The land and building in question abuts on the Sahodaran Ayyappan Road, hereinafter called S.A. Road, which is one of the most important roads connecting Cochin City with Vyttila junction. Corporation of Cochin and the Greater Cochin Development Authority finding the extreme necessity of widening the S.A. Road, jointly took up a project. Many of the good samaritans who owns lands on either side of the road voluntarily surrendered lands for widening the road, a benevolent gesture deserves approbation. G.C.D.A. as well as Corporation of Cochin have reciprocated this good gesture by granting exemption to them from the Kerala Building Rules for constructing building in the remaining area. Corporation stated by virtue of this scheme, they could save about 28 crores of rupees apart from the normal expenses to be incurred if proceedings under the Land Acquisition Act are initiated Major portion of the land from Kadavanthara junction to Manorama Junction has already been obtained free of cost and road formed except the portion in dispute.

3. We are in this case confronted with a situation where one of the land owners, additional fouth respondent, who is the owner of building Nos.28/277 and 28/278 within the Corporation of Cochin situated on the southern side of S.a. road expressed difficulty to give free surrender of her property for widening of the road. She is residing in building No.28/277 and building No.28/278 is situated abutting on the S.A.Road. For widening the road, Corporation insisted for free surrender of approximately 3 cents of land with building No.28/278 which covers approximately 500 sq. feet. Request for free surrender was not acceptable to additional fourth respondent since she has no intention to construct building in the remaining area and therefore not interested in the order of exemption from Building Rules. Additional fourth respondent is a widow who resides in building No.28/277 just behind building No.28/278. She lives with the pension of her late husband and not capable of taking up any construction.

4. Corporation as well as the G.C.D.A. anticipating that all land owners on either side of the S.A.Road would surrender their lands free, started widening the road between Vyttile junction and Manorama Junction. Additional fourth respondent's building is situated in between Kadavanthara junction and Manorama junction, a solitary building which abuts on S.A. Road in that area. Heavy vehicles including buses, a trucks, two wheelers, cyclists etc. find it difficult to pass through the road. On reaching the building in question, they have to take a sudden 'U' turn causing danger to the pedestrains, cyclists, two wheelers, cars, etc.

5. The additional fourth respondent has submitted a plan before this court which shows the lie of the property. The plain shows that if the road is widened, the approximate total width of the road in that area would be 22.40 metres. Corporation has constructed a median in the middle of the road for separation. The land and building owned by the additional fouth respondent abuts on the S.A.Road by about 10.75 metres. The width of the road in that area is only 11.65 metres and in the balance portion, the width is approximately 22.40 metres. Pencil marked portion in the plan would show how the vehicles have to ply through the road causing danger to the pedestrians, travelling public etc. The land and the building thereon is really a public nuisance.

6. Petitioner, in the above-mentioned circumstances, has filed this writ petition seeking a direction to the respondents to take immediate steps to abate the nuisance by acquiring the land with building No.28/278 (described as XVIII/254 in the writ petition) invoking the emergency clause under the Land Acquisition Act. Counsel for the petitioner submitted that under Sec.346 of the Kerala Municipality Act, 1994 there is an obligation on the part of the Corporation of Cochin to maintain and repair public streets. Reference was also made to Section 349 of the Act which says that the Municipality may acquire any land required for the purpose of opening, widening, extending or otherwise improving any public street or of making any new public street and the buildings if any, standing up on such land. referring to Sec.346 of the act, counsel submitted, Corporation shall, at the cost of the Corporation fund, cause the public streets and bridges vested in and under the control of that Corporation to be maintained and repaired and meet the cost of all improvements to the same which are necessary or expedient for the public safety or convenience. Counsel further submitted that the building in question now abutt into the S.A. Road causing inconvenience to the general public and their safety.

7. Learned counsel appearing for the additional fourth respondent submitted that additional fourth respondent has no objection in surrendering the land, provided adequate compensation is given in accordance with law. Counsel also submitted that since major portion of the road has already been formed, it causes considerable inconvenience to the additional fourth respondent and the general public. Possibility of damaging her land and the building by the vehicles also cannot be rules out causing damage to her life as well.

8. Corporation filed a statement. According to the Corporation it does not owe any duty either to the petitioner or to the additional fourth respondent to acquire any land for widening the S.A.Road. S.A. Road was developed mainly depending on the free surrender of land by the land owners. Corporation's stand is that if the land is surrendered free of cost the land owners will be exempted from the Building Rules. Corporation maintained the stand that the additional fourth respondent should also surrender the land free of cost since other land owners have done so, thereby got the benefit of exemption. Corporation, it is stated, is even trying to find out a builder who is willing to surrender after purchasing the property from the additional fourth respondent thereby gets the benefits of exemption from the Kerala Building Rules. Corporation took up the stand that if the land is acquired and compensation paid similar demands would be made by the land owners on both sides of the road nereby, which will souttle the negotiation.

9. Counsel for the Corporation further submitted that the petitioner has no locus standi to move this court so as to compel the Corporation to acquire the land for widening of the road. Counsel submitted that the funds available with the Corporation are used for various purposes and funds could not be set apart for the development of the roads. Further it was stated that the original petition was filed not to advance public interest.

10. We heard counsel on either side at length. 

11. Undisputably the property in question with its building No.28/278 abuts on S.A.Road on formation of the road on the rest of the portion. Necessity of taking possession of the building with the land, which is approximately 3 cents cannot be disputed. Facts reveal that the property abuts on the S.A. Road causing considerable inconvenience to the public rendering it danger to the life of the pedestrains as well. We have no hesitation to say, on the facts and circumstances of this case, this building is really a public nuisance causing danger to the general public. For abating the public nuisance we permitted the parties to sit together to resolve the issue through negotiation and adjourned the matter for one month. Possibility of providing alternate site in lieu of free surrender was also directed to be discussed. Result was the same. We notice the attempt of the Corporation is to see that the additional fourth respondent should surrender the land free of cost, an unacceptable proposition as far as the additional fourth respondent is concerned. In the wake of these controversies we have necessarily to resove this dispute in public interest.

12. We have indicated the facts and circumstances of the case would show that the building in question is really a public nuisance. Public nuisance is an offence against the public and it affects the public at large. Anything injurious and abnoxious to the community, like obstruction caused to free flow traffic in the public highway, thereby endangers life, properties etc. would be a public nuisance. Basis of law of nuisance is the maxim is sio utere tuo ut alienum non laedas, which means a man must not make such use of his property as unreasonably and unnecessarily to cause inconvenience to the public or to his neighbour.

13. Public nuisance is an act or omission which materially affects reasonable comfort and convenience of life of a citizen. Obstructing the road or highway rendering it dangerous is a public nuisance. Narrowing the road by hoarding, erecting fence or building which projects beyond the boundary lane are all public nuisance. Keeping the road or highway dangerous amount to public nuisance. A fortiori something is shown on the road by deliberate or otherwise rendering the road dangerous as also public nuisance is abated in public interest.

14. Corporation as a local authority has got a legal obligation to abate the public nuisance. Corporation is maintaining S.A.Road. They have already developed major portion of the area from Kadavanthara junction to Manorama Junction. It is the solitary building in that area which abutts on the road causing danger to life and property which is public nuisance. Corporation under the Kerala Municipality Act has got an obligation or general duty to see that public nuisance is abated. Non-exercise of public duty would give rise to cause of action to the general public. When public nuisance is established it is not an answer for the Corporation to say that they have no fund to abate public nuisance. In order to abate public nuisance we had given time to the parties for reaching on an amicable solution. We are convinced that parties would not reach an amicable solution. In the result general public is put to inconvenience. We are of the view that the Corporation has a statutory obligation under the Kerala Municipality Act 1994 to abate this public nuisance.

15. We cannot accept the contention of the counsel for the Corporation that writ petition is not maintainable. We cannot also accept the contention of the Corporation that if the land of additional fourth respondent is acquired owners of lands on either side would also make similar demands. We are of the view that if public nuisance is so widespread in its range of indiscriminate in its effect it is a cause for concern to the community at large. Petitioner is part of the community at large. Petitioner is part of the community and indicidually took up the cause of the community to abate a public nuisance. After the decisions of the apex court in Ratlam Municipality v. Vardhicahand (AIR 1980 SC 1622) and Fertilizer Corporation Kamagar Union v. Union of India (AIR 1981 SC 344) it is too late for the day to contend that a member of the public cannot espouse the cause of the public. Whenever a public injury is caused by an act or omission of a public authority any member of the public can maintain an action for redressal of such public wrong, nuisance or injury. In a recent decision of the apex court in Chairman Railway Board and others v. Chandrima Das and others (2000 (2) SCC 465) after making a survey of the various decisions, the apex court held thus:

ïn the context of public interest litigation, however, the court in its various judgments has given the widest amplitude and meaning to the concept of locus standi. In People's Union for Democratic Rights v. Union of India (1982) (3) SCC 235) it has laid down that public interest litigation could be initiated not only by filing formal petitions in the High Court but even by sending letters and telegrams so as to provide easy access to court. (See also Bandhua Mukti Morcha v. Union of India (1984) (3) SCC 161) and State of H.P. v. A. Parent of a Student of Medical College (1985 (3) SCC 169) on the right to approach the court in the realm of public interest litigation). In Bangalore Medical Trust v. B.S. Muddappa (JT 1991 (3) SC 172=1991(4) SCC 54) the court held that the restricted meaning of aggrieved person and the narrow outlook of a specific injury has yielded in favour of a broad and wise construction in the wake of public interest litigation. The court further observed that public spirited citizens having faith in the rule of law, are rendering great social and legal service by espousing causes of public nature. They cannot be ignored or overlooked on a technical or conservative yardstick of the rule of locus standi of the absence of personal loss of injury. There has, thus, been a spectacular expansion of the concept of locus standi. The concept is much wider and it take in its stride anyone who is not a mere busybody."

16. We are also of the view that this court acting as the sentinal on the qui vive has a duty to grant the relief directing the Corporation to abate the public nuisance. Time was granted by this court to the Corporation to see that the public nuisance is abated. Parties could not reason on amicable settlement and the public nuisance subsists, which the Corporation is bound to abate. Due to the inaction on the part of the local authority to abate public nuisance this court has no other alternative but to give appropriate direction to the authority to abate the public nuisance. Public interest demands intervention of courts in such a contingency. General public which includes pedestrians, school going children, cyclists, two wheelers etc. have to pass through the public road safely every day. Continuance of the building would be dangerous to the travelling public and the pedestrians.

17. The Suprme Court in Chameli Singh v. State of U.P. (1996 (2) SCC 549) held that right to live guaranteed in any civilised society implies civic amenities like roads etc. Whenever there is a public wrong or public injury is caused by an act or omission of the public authority any member of the public acting bonafide and having sufficient interest can invoke the writ jurisdiction of this court. Corporation has a duty to see that public nuisance is abated by a process known to law and in this case only by invoking the provisions of the Land Acquisition Act, since all other efforts failed. We are of the view that since some others have surrendered land free, would not mean the additional fourth respondent would emulate them. The house of every one is to him as his castle as well as for his defence against injury and violence as for his repose. Additional fourth respondent is a widow, cannot be pressurised for surrendering the property free of cost especially when she is not interested in effecting construction in the balance are under unlike others with the advantage of exemption. We cannot also accept the contention of the counsel for the Corporation that if additional fourth respondent is given compensation, others would also make similar demands. This is a mutual beneficial scheme which can be availed of by those persons who have agreed to surrender land free of cost. Additional fourth respondent is not interested in constructing in the balance area. She is therefore legitimate in demanding compensation for the surrender of the land. Petitioner or the general public is not concerned with the inter se dispute with the additional fourth respondent and the Corporation. Corporation is to be held responsible for the inaction or omission by which the road is rendered dangerous to the public.

Under the above circumstances we are inclined to give a direction to the Corporation to abate the public nuisance. Counsel for the additional fouth respondent submitted that additional fourth respondent has no objection in acquiring her property provided she is given adequate compensation. We dispose of this writ petitioner directing the corporation to invoke the emergency clause in the Land Acquisition Act to acquire this portion of the are in question and see that public nuisance is abated. Proceedings will be initiated within a period of one month from today. The Original Petition is allowed as above.

Sd/- K.S. RADHAKRISHNAN, JUDGE


Sd/- G.SASIDHARAN, JUDGE.