Plea in Bom HC to invoke Writ Jurisdiction against Private Citizens if there is Public Duty owed

In an interesting development, a plea filed before the Nagpur Bench of the Bombay High Court contends that a writ under Article 226 of the Constitution may be issued even against a private person if there is a public duty owed by him. In this case, the public duty owed refers to easementary rights over a pathway owned by the respondent..The two petitioners before the Court and the second respondent in the case (respondent) own property which are proximate to each other. A dispute emerged after the respondent began to block a part of his property, which had been serving as a pathway to the property of the first petitioner. The said route lies between the property of the respondent and the first petitioner..The second petitioner got involved in the matter after people began to pass by his land, thereby damaging his crops, after the respondent blocked the pathway through his plot..The matter went through several rounds of adjudication before the Tashildar, the Sub-Divisional officer and the Deputy Collector after an initial application was filed by the first petitioner against the respondent’s decision to block the pathway passing through his plot..Eventually, the Deputy Collector held that there was a viable route between the properties belonging to the respondent and the second petitioner, apart from the original route blocked by the respondent. This verdict has also been challenged as erroneous..Over and above this challenge, it is the petitioner’s case that the High Court’s writ jurisdiction can be invoked against the respondent, even though he is private citizen, since he has acted to deny a public duty owed to the society at large..The public duty owed, as per the petitioner, is the easementary rights obtained by the petitioners and others over the pathway blocked by the respondent. It has been submitted that the path in question has been used by the public for over 80 years before it was blocked by the respondent. As stated in the petition filed through advocate Amit Kinkhede,.“The Supreme Court held in Common Cause v. Union of India that the law of torts, which is part of common law, includes the duty of a person owed to society at large…..If it is assumed that this common passage is a part of the Respondent No. 2’s land, then, as this route has been used by the general public since more than 80 years, it is an easementary right available to the public..The obstruction by the Respondent No. 2 is thus a violation of the common law right of the Petitioner No. 1 to access his land by virtue of the easementary rights….… as the right to movement, which is a facet of the right to privacy, and which in turn is a common law right, is being violated by the Respondent No. 2, a writ can be issued against him, restraining him from obstructing the common law right of the Petitioner No. 1 to access his land.“.On these grounds, the petitioner has gone on to submit,.“… justice demands that this Court exercise its discretion under Article 226 and pass a writ against the Respondent No. 2, restraining him from obstructing the common law right of the Petitioner No.1 to access his land. “.Inter alia, the first petitioner has also argued that he has approached the High Court since the alternative remedy of approaching a civil court is not an efficacious and non-dilatory one, particularly given the old age of the second petitioner (aged 82 years) whose testimony is crucial to the case..A Bench of Justices Ravi K Deshpande and Vinay Joshi issued notice in the case..Read the Petition: