1. The petitioner is the owner of S. No. 282, in Chengazhasseri Pakuthy in Trivandrum, and is residing in a building constructed in the said plot. This plot of ground lies to the north ct the premises of the Women's College in Trivandrum. There was a road running between the petitioner's compound and the Women's College premises, connecting the public roads on the south and east of the college premises. According to him, this road was in existence for very nearly a hundred years and was carved out of S. Nos. 282, 279, 280, 281, 268 and 271 to 276 by their owners for the purpose of the better and more convenient enjoyment of their properties, and affording them the right of way to public roads lying on the south and east. The Government of Travancore, represented by the first counter-petitioner, had acquired the plots comprised in S. Nos. 270 & 276 excluding the portions occupied by the road on the south of the premises of the Women's College. The acquisition was for the University of Travancore, represented by the third counter-petitioner, for locating and conducting a hostel for the students of the Women's College.

2. On the requisition of the third counter-petitioner the State and City Municipal Corporation, Trivandrum the 2nd counter-petitioner were taking steps to close the road between the plots of land which have been acquired and the premises of the Women's College, and as a first step had put up boards containing the words “No thoroughfare” at either end of the whole road extending from the southern to the eastern end. The portion of the road which was carved cut of S. 271 to 276 had not been acquired by Government and could not be acquired as the property in it vested in the public as it was constituted into a street or high way over which the public had the right of passing and repassing. This road in question which was being-used freely by the public for passing and repassing and for plying vehicles such as bullock carts and motor cars had now been completely blocked. The property in the land belonged to the respective owners of the neighbouring land and so nobody had a right to close it. Even assuming; that the high way vested in the Government or in the Municipal Corporation, either of them was only a trustee for the public who had a unlimited right of use over the high way. They could therefore have only control over this road on behalf of the public as might be necessary to manage the same and keep it in proper condition. The contention of the counter-petitioners appeared to be that they were acting under the powers conferred by the statute, that is, the City Municipal Act. The petitioner contended that even if there were such provisions, they were repugnant to the Constitution of India and were void. The right to the public to use the high way or street was a fundamental right which was guaranteed by the Constitution of India, and it was not competent for the Legislature of the State to interfere with such right except for such regulatory requirements as might be necessary in the exercise of the police power of the State for security, safety, convenience or health of the public. There could not be any discrimination by the State or the Municipal Corporation in favour of the third counter-petitioner as against the right of the public over the high way.

3. Even if the provision in the City Municipal Act was not repugnant to the Constitution of India, steps were not properly taken to close the road. If the corporation had decided to close the high way in question, they had acted in excess of their authority and had violated the trust reposed in them by the public. The corporation did not hear the objection of the public before they reached the decision. The decision was therefore ‘ultra vires’ of the Municipal Council, and void, and of no effect. It was therefore prayed that action might be taken under Section 18(2) of the High Court Act and that the proceedings taken by the counter-petitioners for closing the road be quashed, that further steps for closing the road be prohibited, and that such further orders in the form of writs be passed securing the right of the petitioner and the public over the road in question in order to prevent any further infringement of the rights of the petitioner and the public.

4. Along with the petition, a plan showing the lie of the road was also produced. Notice of this petition was given to the counter-petitioners who had all entered appearance. On behalf of the counter-petitioners, the Section Officer of the University Maintenance Section, Trivandrum, had filed a counter-affidavit.

5. He stated that the way in question was a road poromboke covering an area of one acre and 77 cents in S. No. 277 of the Chengazhacherry Pakuthy, that it lies between the Women's College compound on the east and the Women's College Hostel on the west, that the allegation that the road in question was carved out of survey numbers mentioned in the petition was not correct, that in exercise of the powers conferred on the Commissioner of the Trivandrum Corporation by Section 207(1)(c) of Act IV of 1116, he with the special sanction of the Council and of Government had permanently closed down the way in the eastern side of the Women's Hostel and west of the Women's College premises at the point where the premises of the hostel on the north touched the road behind the Women's College premises, that the boards containing the words ‘no thoroughfare’ had been put up at the two ends of the road to prevent the passage, that it was necessary to do so to prevent trespass, especially into the premises of the Women's College, Hostel, by people passing along the said road, that the closing of the road did not in any way cause inconvenience to the petitioner or to the public, that there was a road leading to the locality from the Althara Mukku Junction which could be used by the petitioner and the public, that the property in the said road did not vest, in the public, that the petitioner and the public had only a right to use the road for legitimate purposes so long as it remained a public way, that it ceased to be a public way the moment it became inaccessible at both ends, that after it had ceased to be a public way, neither the public nor any members of the public could have any legal access to any part of it without committing trespass, that a public way could be legally destroyed by the Commissioner by resorting to proper statutory means, that in respect of public ways neither the Government nor the Municipal Council was a trustee for the public, that provisions of Section 207 of the Trivandrum City Municipal Act IV of 1116 had been enacted in public interest and are not repugnant to the Constitution of India, that no question of fundamental rights arose in this case, that steps taken by the Com missioner of Corporation were proper and legal, that his act could not be called in question as he was not a party to these proceedings, that the provisions of Section 207 had been complied with before the road was closed, that this petition was incompetent and that the petitioner was not entitled to any writ as prayed for.

6. The petitioner has filed a rejoinder in which it was contended that the pathway in question was a public way and not a poromboke, that it was carved out of the adjoining survey numbers in the ownership and possession of the adjoining owners who had dedicated the respective portions for use as public high way, that no records had been produced to prove that any action was taken under Section 207(c) of the City Municipal Act, that there had been no special sanction by the council or by the Government, that it was' ‘ultra vires’ of the corporation, and of Government to sanction the closing of the high way even if there were records to show that sanction had been given, that a public right could not be destroyed by any action taken by the Commissioner of Corporation, that the corporation or the Government had only the position of a trustee on behalf of the public in respect of the land used as a high way, that the same could not be assigned away for the purpose of an institution or an individual, that the provision of Section 207 of the City Municipal Act were ‘ultra vires’ of the Legislature in so far as the same infringed the fundamental rights guaranteed by the Constitution of India, and that this was a fit case where the High Court was to interfere and issue the necessary writ.

7. The allegation that the road in question had been carved out of lands from registered holdings belonging to the owners of the adjoining survey numbers had not been made out by the petitioner. It was stated by the counter-petitioners that the road had been a portion of S. No. 277 of the Chengazhacherry Pakuthy. The Settlement Register of that pakuthy shows that S. No. 277 has an area of 1 acre and 77 cents, and that its tenure is road poromboke. If the portion of the road belonged to the adjoining owners, and if the same had been dedicated for the use of the public, then certainly such owners would have claimed compensation for portions of this road also when the Government, or the Corporation had acted in derogation of such grants. There is nothing to show that any such claim had been advanced by any of those owners. If there was a dedication, it must have been supported by records, and no paper had been filed to prove this case. It, has, therefore to be taken that the portion of the road closed is a road poromboke and that it did not form portion of any adjoining registry holdings.

8. Under Section 207(1), (c) of Act IV of 1116, the Commissioner of the Corporation may, subject always to sanction as may be required under Chapter 4, turn, divert, or with the special sanction of the council and the Government permanently close any public street or part thereof. It cannot be contended that this provision is ‘ultra vires’, for at the time this Act was passed. His Highness the Maharaja of Travancore had sovereign powers to lay down restrictions regarding the use of public ways. It could be void after the constitution was passed only if this provision was inconsistent with any of the provisions in the constitution. The petitioner was contending that there was no record to show that the special sanction of the council and of the Government of Travancore had been obtained to indicate that the Commissioner acted within his powers.

9. Sri M.N Parameshwuran Pillai, the learned Government Pleader who appeared for the State had placed before me the papers relating to the closing of the road. The Commissioner of the Municipal Corporation had by letter R.O.C 189/1/4/148 C.I, dated 4-8-1949 communicated to the Government the views of the council that the latter had no objection to close the portion of the road in question provided the Government sanctioned such closing. The Government, by their proceedings I Dis. 2693/49.E.H.L, dated 22-12-1949, had sanctioned the permanent closing of the road. I take it therefore, that the Commissioner before closing this public street had observed the formalities required of him, as provided for in the section. Under Section 3(30) of Act IV of 1116, a public street means any street, road, etc., over which the public have a right of way and it includes the road way and the foot way used by the public.

10. The final orders to close the road had been passed by the Government on 22-12-1949, so that the proceedings had been terminated even long before the Constitution of India came into force. The provisions of the Constitution could not therefore be relied upon to attack an act which was done before it came into force. It is unnecessary here to cite authorities for the position that the provision of the Constitution has no retrospective effect. Whatever might be the interpretation put on the nature of the fundamental rights claimed by the petitioner, he could not attack the present proceedings which terminated before 26-1-1950, the date of the commencement of the Constitution. It was argued by the petitioner's learned Advocate that the actual closing of the road was after 26-1-1950, that he had knowledge of the action that the Commissioner proposed to take only after the date of the commencement of the Constitution and that he had a right to agitate the matter relying on the provisions of the Constitution. Even if the sign boards containing the words “no thoroughfare” had been put up only after 26-1-1950, it is not very material for it was only in furtherance of a decision taken legitimately and within powers before the date of the commencement of the Constitution.

11. The provision in Section 207 of Act IV of, 1116 are also not ‘ultra vires’ of the Constitution. The chief executive authority of the corporation is authorised to close any portion of a road way. Clause 2 there provides for the payment of reasonable compensation to the owners and occupiers of any land or buildings which are acquired for or affected by any such purposes mentioned in Clause (1). The fundamental right that had been guaranteed by Article 19(1)(d) of the Constitution was one to move freely throughout the territory of India. That does not mean the use of any particular road for that purpose. The right contemplated there has for its object the removal of all internal barriers in the country and to make India as a whole the abode of the citizens of India.

12. This provision is thus complimentary to Article which provides a single citizenship. Sub-clause (5) of Article 19 of the Constitution provides that nothing in the Sub-clause (1)(d) shall affect the operation of any existing law in so far as it imposes, or prevent the state from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said Sub-clauses either in the interests of the general public or for the protection of the interests of any scheduled Tribes. The restrictions could therefore be imposed provided they are reasonable. Any act providing for such reasonable restrictions could not; therefore be ‘ultra vires’ of the Constitution. The ruling in ‘Moti Lal v. Govt. of the State of Uttar Pradesh’, AIR 1951 All 257, was relied on by both sides in respect of the position taken by them. At page 267 of the report, Malik, C.J, observes thus:

“It is well-known that the right of the public in a highway is merely to pass and repass. Such right can be restricted at the time of the dedication and whether the right is restricted or not is generally established by the nature of the user. The presumption generally is that the dedication is for the ordinary and reasonable user of the road as a highway.”

13. At page 268 of the report it is stated thus:

“In India we have highways or roads that are maintained by the State. There are roads which vest in Municipal Boards or District Boards, but it can be assumed that the law relating to highways, is more or less, the same as in England.”

14. There can be no doubt, that so long as the road exists as a highway, the general public will have the right to use it for all legitimate purposes without causing inconvenience or annoyance to others who are using it. His Lordship also points out (vide page 268 of the above report) that the right to use a highway is a right which a person possesses as a member of the public along with other members of the public, and whatever personal rights he has of using it are merely as such a member. That being so, the right has always been held to be exercisable subject to such reasonable restrictions or regulations, which, at times, might even amount to prohibition as might be necessary to be imposed in public interest. In all civilized countries this right has been subject to regulations from very early times. At page 269 of the same report, wherein the learned Chief Justice disposes of the argument that “reasonable restriction” cannot mean a total stoppage, it is stated:

“the words in Article 19 are not ‘regulation’ but are ‘reasonable restriction’, and I do not see why if by reason of the nature of the trade carried on, which might be against public morality or if, for any other reason, it is deemed necessary in the general interest, to stop totally any trade or business, it cannot be included in the word ‘restriction.’

15. An extract from an English Report ‘Commonwealth of Australia v. Bank of New South Wales’, (1949) 2 All ER 755 at p. 772, quoted by His Lordship, is as follows:

“………. their Lordships do not intend to lay down that in no circumstances could the exclusion of competition so as to create a monopoly either in a State or Commonwealth agency, or in some other body, be justified. Every case must be judged on its own facts and in its own setting of time and circumstances, and it may be that in regard to some economic activities and at some stage of social development it might be maintained that prohibition with a view to state monopoly was the only particular and reasonable manner of regulation and that interstate ‘trade, commerce and intercourse’ thus prohibited and thus monopolized remained absolutely free. Nor can one further aspect of prohibition be ignored. It was argued by the appellants that prohibitory measures must be permissible, for otherwise lunatics, infants and bankrupts could without restraint embark on inter-state trade and diseased cattle or noxious drugs could freely be taken across State frontiers. Their Lordships must, therefore add what, but for this argument so strenuously urged, they would have thought it unnecessary to Aid that regulation of trade may clearly take the form of denying certain activities to persons by age or circumstances unfit to perform them or excluding from passage across the frontier of a State creatures or things calculated to injure its citizens. Here, again a question of fact and degree is involved…

16. Thus, it is obvious that the use of a public way can be regulated by the State and for that purpose reasonable restrictions can be imposed. Reasonable restrictions may in some cases amount to complete prohibition or stoppage of the use. The Court has only to see whether that was in the interests of the general public. In this case, the State acquired certain lands adjoining the Women's College at Trivandrum for the purpose of opening a hostel for the students there. The Women's College is a public institution opened in the interests of the general public. To accommodate the students there, a college hostel had to be opened and for the efficient and safe use of the hostel the authorities found it necessary to close this pathway between the hostel and the college. That is the discretion exercised by the State and it is not a matter that can be called in question by the petitioner.

17. The petitioner also cannot file a petition on behalf of the general public. He can only agitate his right when it is infringed. It would be seen, that the act done by the authorities in this case was not ‘ultra vires’ in any way. It was done in the interests of the general public alter going through the several formalities required by law, which have provided the necessary safeguards to the general public in the use of the public roads. There is, therefore, no case made out for the petitioner. I, therefore, think that the case for interference by this Court has not been made out. The petition is dismissed with costs, including Advocate's fee Rs. 100/- one set.

18. Petition dismissed.