GODAVARI Vs. CANNANORE MUNICIPALITY

JUDGEMENT

(1.) This second appeal at the instance of the plaintiff is admitted on the following questions of law formulated in the memorandum of second appeal:

(2.) The plaintiff is the owner in possession of the suit property adjoining a public road, namely the Civil Station Road in Cannanore town. She has her residential house in the suit property besides some lorry sheds on the side of the road. The plaintiff intends to construct buildings in her compound with direct access to the public road and she has obtained Ext. A3 permission from Municipality for such construction. Exts. A4 and A5 are the approved plans. The defendant is the Cannanore Municipal Council, represented by the Commissioner of the Cannanore Municipality. It is the case of the plaintiff that during the period of her temporary absence from Cannanore, the defendant started construction of three bunks with reinforced concrete ceiling in front of her compound on the road margin for the purpose of letting out for trade on rental basis. The work of construction of the three bunks was in progress at the time when the suit was filed on 8-12-1976 for a permanent injunction to restrain the defendant Municipal Council from proceeding with the construction and also for a mandatory injunction to direct the defendant to remove the obstruction caused on the road margin in front of the plaintiff's compound. According to the plaintiff the defendant has no right to construct buildings on the road margin forming part of a public street as defined in the Kerala Municipalities Act. It is also alleged that the construction if carried out would affect the plaintiff's access to the public road from her compound, and would also obstruct the view of the buildings that she proposes to construct in accordance with the plan sanctioned and permission granted by the defendant Municipality

(3.) The defendant Municipality resisted the suit contending that the Municipal Council had by Exts. B2 and B3 resolutions taken the decision to construct bunks in various localities within the Municipal area for the purpose of letting out the same to small traders. In accordance with the said decision tenders were called for as per the tender notification Ext. B4 from intending contractors and the tenders of two of the conductors had been accepted and agreements Exts. B5 and B6 entered into with them. In pursuance to the decision of the Municipal Council the defendant had almost completed the construction of the three bunks at the road margin in front of the plaintiff's compound. The construction is at a distance of 14.3 metres from the plaintiff's gate and is 80 cms. away from the plaintiff's compound wall. The defendant contends that the Municipality is within its rights in constructing buildings on the road margin in such a way as not to obstruct passage of pedestrians, the road vests in the Municipality and the plaintiff has no cause of action against the defendant. It is further contended that the suit is defective for non compliance to the requirements of S.91 CPC. and also for want of a notice under S.392 of the Kerala Municipalities Act 1960 hereinafter referred to as 'the Act'.