P K WARIYAR Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner - Managing Trustee of Kottakkal Arya Vaidya Sala', prays for a writ of mandamus to command respondents to remove hoardings put up in front of the Arya Vaidaya Sala, and for consequential reliefs. Petitioner owns a three storeyed building standing on thirty one cents of land on the Mahatma Gandhi Road, Ernakulam said to be constructed at a cost of Rs.33 lakhs. On the night of 6-4-1988, those acting under second respondent are said to have put up a hoarding in front of the Arya Vaidya Sala. One display board on the hoarding is very large, measuring to 9x31/2 metres and this obstructs the view of the building, virtually obliterating its identity, submits petitioner. Rights of petitioner as an adjoining owner and a member of the public, are invaded by putting up such boards, according to him. The next day, a representative of petitioner went to the office of second respondent and made a request in writing Ext. P1, to remove the hoarding. He was not allowed to see second respondent, but was asked to see fourth respondent who, it is said promised necessary action. Contrary to the promise, on 21-4-1988 the board was painted and improved. Upon this, by Ext. P3 petitioner made another request to second respondent to remove it. Meanwhile, it is alleged that two other boards also were put up. Again by Ext. P5, petitioner made yet another request, to remove the boards. For a while, second respondent turned the Nelson's eye on these requests and eventually, by Ext. P7 an officer of second respondent informed petitioner that the request could not be granted. Petitioner then approached this court. Counsel for petitioner submits that this is not only an act without jurisdiction, but also an act invading rights of the adjoining owner, namely petitioner. In answer, counsel for respondents would submit that public streets and pavements vest in the corporation and it has power to put up hoardings for municipal purposes. S.231 of the Kerala Municipal Corporations Act, called the 'Act' hereinafter, is relied on to support this contention.

(2.) To resolve the controversies raised, nature of powers available to the corporation in respect of streets that vest in them, have to be ascertained. Under S.210 of the Act, public streets vest in the corporation and such may be used for any municipal purpose. The section reads:

(3.) Ambit of powers in corporations or municipalities, have been subject matter of judicial pronouncements. The width of the power, the limitations thereon and the capacity in which power enures to municipal authorities have been indicated by a catena of decisions. At the outset, it must be noticed that corporations or municipalities are in the position of trustees. The decision of the Supreme Court in Saghir Ahamad & another v. State of U.P. & others ( AIR 1954 SC 728 ) brings into sharp focus, the position in which a municipal authority is placed. B.K. Mukherjea, J. speaking for the Constitution Bench, quoting with approval Venkatarama Ayyar, J. in C.S.S. Motor Service v. State of Madras ( AIR 1953 Mad. 279 ) stated: