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Judgment
(Order of the Court was made by M.DHANDAPANI, J.)
These writ petitions have been filed for issuance of a Writ of Mandamus, forbearing the respondents herein from in any way closing down the public pathway situated in Survey No. 132/2 (near to the petitioners company/house) Avanyapuram Village, Madurai South Taluk, Madurai South Registration District by following the earlier order of this Honble Court in WP(MD) 728/2018 dated 24.10.2018.
The learned counsel appearing for the petitioners would submit that the petitioners are users of the public pathway situated in Survey No.132/2, Avaniyapuram Village, Madurai South Taluk, Madurai District.
Earlier, the very same issue was considered by this Court in W.P. (MD) No.728 of 2018, filed by the Arunjunai Nagar Kudiirupor Nalasangam, represented by its President, seeking a direction to the respondents not to close the public pathway situated in Survey No.132/2, Avaniyapuram Village, Madurai South Taluk, Madurai District. The said writ petition was disposed of with a direction to the respondents to maintain the existing road and to put up a compound wall, excluding the existing road.
It is the further submission of the learned counsel appearing for the petitioners that, contrary to the order passed by this Court, the respondents, including the Corporation authorities, have taken effective steps to close the said public pathway. Hence, the present writ petitions have been filed.
Considering the facts and circumstances of the case and also taking note of the earlier proceedings initiated at the instance of the Arunjunai Nagar Kudiirupor Nalasangam, this Court, by order dated 24.10.2018, passed the following order:
“ This Writ Petition has been filed seeking to forbear the respondents herein from in any way closing down the public path way situated in Survey No.132/2, Avanyapuram Village, Madurai South Taluk, Madurai South Registration District. 2.It appears that there has been a road in existence for a quite number of years. This road is being used by the general public. 10 years ago this road has been converted into metal road. Then, it comes within the purview of Madurai Corporation. Unfortunately, this road comes within the school. Now, an attempt is being made to put up a compound wall covering the entire property of the school. Under the present circumstances, this writ petition has been filed. 3.The learned Senior Counsel appearing for the petitioner would submit that the road being on the periphery of the school, the same can be left out to be used by the public as being done till now. The road has been used as such for a quite number of years.
4.The learned Special Government Pleader appearing for the respondents 1 to 3 and 5 to 11 would submit that the property having belongs to the Education Department, the prayer sought for cannot be granted.
5.We have seen the sketch produced by the learned Special Government Pleader. The sketch clearly indicates that the existing road forms the boundary of the school. Even the learned Special Government Pleader submits that there is no difficulty in using part of the road, but the remaining part after the curve cannot be allowed to be used.
6.We are of the view that the basic facts are not in dispute and therefore, equitable order requires to be passed. After all, the road is being used by the public. Therefore, we are dealing with one public interest with the other. Of the two, the interest of the public using the road becomes predominant because there is no difficulty in permitting the public to use the road. It is not as if the property of the school gets affected by the using of the road as it is on the periphery of the school. Therefore, it would be appropriate to permit the general public to use the road which is under the control of Corporation of Madurai. Now the road has been converted into a metal road. Right to access is an accrued one especially when the same is used by public. The existence of the road for decades and the development of Tar road into metal one is not in dispute. Putting a compound wall by covering the road would help no one's cause. In that eventuality the road laid already will have to be removed.
7.In such circumstances, we hereby direct the respondents 1 to 3 and 5 to 11 to put the compound wall by excluding the existing road. We also finds the need for the compound wall as there were prior encroachments. Therefore, we directs the respondents 1 to 3 and 5 to 11 to put up the compound wall around the school excluding the existing road within a period of three months from the date of receipt of a copy of this order.
8.This Writ Petition stands disposed of with the above directions. Consequently, connected Miscellaneous Petition stands closed. No costs.”
In view of the categorical direction already issued by this Court in in W.P.(MD) No.728 of 2018, dated 24.10.2018, the respondents are bound to maintain the existing public pathway situated in Survey No.132/2, Avaniyapuram Village, Madurai South Taluk, Madurai District, without causing any obstruction or encroachment thereto.
With the above direction, these writ petitions stand disposed of. No costs. Consequently, the connected miscellaneous petitions are closed.