J ANANTAM Vs. M C H

JUDGEMENT

(1.) The petitioner is a business-man carrying on his business in shops bearing No. 3-3-416 and 3-3-417 situated at Mahankali temple street near Mahankali temple at Secunderabad. It is stated that the width of the street is 30' as shown in the plan under A.P. Urban Area of Development Act, 1975. A zonal plan for Zone I was prepared by the urban development authority which was published wherein the width of the road is shown as 50'. It is stated that there is Mahankali marriage hall and Mahankali temple and other business shops on the said street ; the locality is a very busy locality and the traffic on the said street is very heavy, resulting in accidents on the roads. Opposite to Mahankali temple, there are temples of Lord Shiva and a mandir of Lord Narasimha and towards north there is a foot-path abutting the said street. At the junction of Subhas Road and Mahankali temple street, at the instance of the 6th respondent, a foundation was laid in the middle of the street to construct a permanent arch with four pillars of 2x2 width, in the presence of respondents 4 and 5 on August 31,1988. The width between the central pillars is 22 ft. Lorries, cars, cart-carriages, buses or any other vehicle and cycle rikshas, men and cattle have to pass through this 22 ft. wide road. By the proposed construction of the arch, 30 ft. wide road is now proposed to be reduced to 22' wide road for their self-glorification, resulting in public hindrance and great nuisance to the public. The proposed construction is an obstruction to the passers by in the said Mahankali street. Coming to know of this, the petitioner sent a notice through his lawyer to the respondents that such a construction of arch on the public road is illegal and will cause obstruction to the free passage of public and requested not to allow or proceed with such constructions. The 1st respondent sent a reply on 14-9-1988 stating that the permission for the proposed arch was granted by the municipal Commissioner on March 3, 1986. The petitioner alleges that respondents 4 to 6 have managed to obtain permission through the Commissioner contrary to the provisions of the Hyderabad Municipal Corporation Act and the Bylaws with their influence and permission is illegal and void. In these circumstances, the petitioner prays for a writ of mandamus or any other appropriate writ or direction to call for the records in Rc.No.E.E./S2/23646 on the file of respondents 1 and 2 and declare the permission granted by the respondents for construction of an ornamental arch in Mahankali street, Secunderabad in permit No. 78/92 of 1986 dated 3-3-1986 as illegal and void and without jurisdiction and for a further direction to the respondents 4 to 6 not to make any permanent structural constructions in the Mahankali street causing obstructions to the passage of public and to pass such further orders as the circumstances of the case justify.

(2.) The Additional Commissioner, Municipal Corporation of Hyderabad filed a counter affidavit for respondents 1 and 2. It is admitted that under G.O.Ms. 440, dated 27-9-1985, the road in question is notified at 50 ft. road It is also admitted that the area in question is a busy area. It is stated that for construction of an ornamental arch at Subhas Road and road leading to Mahankali temple was granted only in consultation with and approval of the Endowment Department and the traffic police, after taking into account all the aspects and the traffic point of view to prevent the speed of the vehicles. It is stated : "permission for this arch was granted for two angles. Firstly to regulate the traffic by breaking the speed to control the traffic and to beautifying the road. Provision has made for passage of vehicles and pedestrains through smaller arches. The 1st respondent has every right to allow, the construction or to construct such arches to beautify the roads under provisions of the H.M.C. Act, 1955". It is further stated that the 6th respondent is the donar and the 5th respondent is the Chairman of the Board of Trustees nominated by the Endowment Department and the 4th respondent is the Executive Officer appointed by the Endowment Department to look after the administration of the said temple. It is further stated :"the Corporation has got every right to grant permission under Sections 428 and 433 of the H.M.C. Act. Even otherwise, the arches so constructed will vest with the Corporation and that the arches should not be misused in any manner and to beautify the road. Thus after construction the arch vests with the Municipal Corporation and respondents 4 to 6 shall maintain the arches at their cost without claiming any compensation." The arch can be removed whenever the road is widened and the permission granted is not in violation of the zonal regulations. It is also stated :The application of building by-laws or zoning Regulations do not apply to construction of an arch but to private buildings. Further more the arch once completed will become Municipal property". It is further stated that under Sec. 397 of the H.M.C. Act, no person shall erect and obstruct but under Section 399 of the Act the Commissioner may give a written permission on such terms as he thinks fit to the owner or occupier of any building abutting on any street. It is denied that the arches hinder free flow of traffic. On the other hand, they regulate speed of the traffic and properly channalise the traffic systematically throut the arch. It is asserted that the permission is legal and not arbitrary, that the petitioner is in no way affected with the construction of the said arch and the writ petition is misconceived and is not maintainable and it is prayed that the writ petition may be dismissed.

(3.) Respondents 4 to 6 filed a separate counter affidavit denying that the width of the road near Mahankali temple is 30 and that the plan prepared by the Urban Development Authority (zonal development plan) shows the width as 50". It is stated that the present width is only 20'. It is admitted that that is a busy locality with heavy traffic, but it is stated that though some accidents took place on the street, it has no relevance as accidents take place on almost every road in the city. It is admitted that the foundation for the construction of the arch was laid but it is denied that it was done at the instance of the 6th respondent. It is also denied that the foundation was laid in the middle of the street reducing the width from 30' to 20'. It is also denied that the construction of the arch causes inconvenience to the general public or to the people moving in the street. It is sub-mitted that the 6th respondent donated money to the temple and the Board of Trustees applied for permission to construct an ornamental arch and the 1st respondent granted the permission and the construction was taken up and the pillars to a height of 18' have been raised and no part of the construction has encroached on the road nor has the width of the street been reduced. The Mahankali street is closed to vehicular traffic. In fact the Deputy Commissioner of Police, Traffic Hyderabad has given a 'no objection' certificate to the proposed construction and the permission was granted by the respondent No. 1 after considering all the aspects including the location etc. and the petitioner is not entitled to question the same, it is asserted that under Section 399 of the H.M.C. Act the Commissioner has ample power to grant permission and the proposed construction is not covered by Sec. 401 of the Act. In these circumstances, it is prayed that the writ petition may be dismisse