IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 27TH DAY OF MAY 2022 / 6TH JYAISHTA, 1944
RP NO. 923 OF 2020
AGAINST THE JUDGMENT DATED 20.10.2020 IN WP(C) 17453/2020 OF
HIGH COURT OF KERALA
REVIEW PETITIONER/PETITIONER:
UMMAYA HAMZA,
AGED 72 YEARS, W/O.K.T.HAMZA, RESIDING AT
KANAYANGHODE HOUSE, KUNNAMANGALAM,
KOZHIKODE - 673 571.
BY ADV NIRMAL. S
RESPONDENTS/RESPONDENTS:
1 CALICUT CORPORATION REP. BY ITS SECRETARY
CORPORATION OFFICE, BEACH ROAD, KOZHIKODE 673001.
2 THE SECRETARY, CALICUT CORPORATION
CORPORATION OFFICE, BEACH ROAD, KOZHIKODE - 673001.
3 SECRETARY TO GOVERNMENT
LOCAL SELF GOVERNMENT (DC DEPARTMENT) SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
4 MISSION DIRECTOR 'AMRUT',
DIRECTORATE OF URBAN AFFAIRS, GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM - 695 001.
5 BINU FRANCIS
AGE AND FATHERS NAME NOT KNOWN TO THE PETITIONER,
PRESENTLY WORKING AS SECRETARY, CALICUT CORPORATION,
CORPORATION OFFICE, BEACH ROAD, KOZHIKODE - 673001.
BY ADV SRI.G.SANTHOSH KUMAR SC
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
27.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.P. No.923 of 2020 in
W.P.(C) No.17453 of 2020 2
P.B.SURESH KUMAR, J.
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R.P. No.923 of 2020
in
W.P.(C) No.17453 of 2020
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Dated this the 27th day of May, 2022
ORDER
The petitioner in the writ petition has come up with this petition seeking review of the judgment.
2. Heard the learned counsel for the petitioner as also the learned Standing Counsel for the first respondent, the Kozhikode Municipal Corporation.
3. The petitioner is running a restaurant within the limits of the Kozhikode Municipal Corporation (the Corporation). The restaurant of the petitioner is situated on the southern side of Mavoor road. During 2020, the Corporation has decided to reconstruct the public drains and footpaths on either R.P. No.923 of 2020 in W.P.(C) No.17453 of 2020 3 side of Mavoor road. When the said work has commenced, the petitioner preferred a representation before the Corporation seeking orders for vehicular access to the land where the restaurant is situated through its entire road frontage, for once the reconstruction proposed is completed, it was apprehended that vehicular access will be possible only through the space earmarked for the same. It was stated by the petitioner in the writ petition that although a hearing was held on the said representation, the request of the petitioner was turned down by the Corporation in terms of Ext.P12 order. The writ petition was instituted, in the circumstances, challenging Ext.P12 order. The case of the petitioner is that the level of the footpath in front of the restaurant stands raised substantially after the work and the petitioner is given vehicular access only through a portion of the road frontage. It is also alleged by the petitioner that even before serving Ext.P12 order on the petitioner, the Corporation has completed the work proposed by them. The petitioner therefore sought directions to the Corporation to provide vehicular access through the entire road R.P. No.923 of 2020 in W.P.(C) No.17453 of 2020 4 frontage of the land.
4. The stand taken by the Corporation in the statement filed in the matter was that the footpath is designed and meant to ensure safety of pedestrians and to enable them to move through either side of the road without any obstruction; that vehicular access is provided to the parking space in the premises of the petitioner; that the attempt of the petitioner is to make use of the open space in between the restaurant building and the road for parking of four wheelers; that sufficient space is not available between the restaurant building and the road for parking of four wheelers and that if the petitioner is permitted to make use of that area for parking, such parking would obstruct the free movement of pedestrians through the footpath. As regards the allegation of the petitioner that the work was completed even before the order on the representation was served on her, it is stated by the Corporation that Ext.P12 decision was communicated to the petitioner by e-mail on 17.08.2020 and it is thereafter that the work was completed.
R.P. No.923 of 2020 in W.P.(C) No.17453 of 2020 5
5. This court found that the restaurant building of the petitioner is situated on the western extremity of the plot and the petitioner was provided parking space for her customers on the eastern side of the restaurant building having a width of 5.85 metres and that vehicular access having a width of 7 metres has been provided to the portion of the land of the petitioner earmarked for parking of vehicles. This court also found that the right of access of an adjoining owner from his land to the highway and vice versa is a private right; that the said private right of access is subject to the public right of passage, which is though a superior right, the same is subject to the private right of access to the highway available to the adjoining owner and he has to exercise that right without causing any obstruction to the right of passage available to the general public. This court also found that the aforesaid rights are not inconsistent and therefore where a footpath intervenes between the carriageway and the adjoining land, the owner of the land is entitled to access across the footpath to the carriageway for the reasonable enjoyment of his land; that the R.P. No.923 of 2020 in W.P.(C) No.17453 of 2020 6 right of the owner of the land for access across the footpath for reasonable enjoyment of the land will not be an impediment for adopting necessary measures in public interest for the safety of pedestrians and that it is therefore open to the authorities to raise the level of the footpath and plant barriers separating the footpath and the highway. In the light of the above principles, it was held by this Court that in the absence of any case for the petitioner that the construction of the footpath by the Corporation at a higher level from the carriage way is not one made in public interest, there is no illegality in the conduct of the Corporation in constructing the footpath at a higher level on the side of the road abutting the land of the petitioner. The writ petition was accordingly dismissed. As noted, the petitioner seeks review of the judgment.
6. It is seen that the writ petition was heard on 24.9.2020 and posted for judgment to 1.10.2020. At the time of arguments, the learned counsel for the parties joined issue on the question as to whether there is sufficient space in between the restaurant building and the boundary of the road for R.P. No.923 of 2020 in W.P.(C) No.17453 of 2020 7 parking four wheelers. Even though the said issue was not very much relevant in the matter of deciding the contentions raised by the petitioner in the writ petition, for a proper understanding of the facts, the learned counsel were permitted to make available materials, if any, available to them in support of their respective stands on the said issue before 1.10.2020. On 30.9.2020, the petitioner produced a few photographs. Later, the Corporation filed a counter affidavit reiterating the stand taken in the statement earlier filed in the matter and produced a few photographs along with the same. Among others, it is stated by the Corporation in the counter affidavit that there is no space for parking cars in between the restaurant building and the boundary of the road. The petitioner has not filed any reply to the counter affidavit filed by the Corporation. Instead, on receipt of a copy of the counter affidavit, the petitioner submitted an argument note on 6.10.2020. It is thereafter, after dealing with the contentions taken by the petitioner in the argument note, the judgment sought to be reviewed was rendered.
R.P. No.923 of 2020 in W.P.(C) No.17453 of 2020 8
7. The main ground on which the petitioner seeks review of the judgment is that the recital in the counter affidavit filed by the Corporation that there is no space for parking of cars in front of the restaurant building of the petitioner is incorrect and the writ petition was dismissed placing reliance on the said incorrect statement.
8. As revealed from the notes of arguments filed by the petitioner in the writ petition, the only contention seriously pressed at the time of argument was that the petitioner has a right to insist that the footpath cannot be constructed by the Corporation at a higher level affecting the rights of the petitioner to use the entire road frontage of the land for vehicular access. It is on account of the said reason, after referring to the rival contentions of the parties, this Court formulated the question whether the conduct of the Corporation in constructing the footpath at a raised level on the side of the road abutting the land of the petitioner is lawful, for decision. The judgment indicates that the said question was answered against the petitioner purely on legal principles R.P. No.923 of 2020 in W.P.(C) No.17453 of 2020 9 without going into the disputed questions of facts. True, in paragraph 8 of the judgment sought to be reviewed, this court referred to the statement made by the Corporation in the counter affidavit that there is no space in between the restaurant building and the boundary of the road for parking of four wheelers. But, in so far as the question formulated for decision was answered without referring to the said disputed statement, according to me, the petitioner is not entitled to seek review of the judgment merely for the reason that the disputed statement has been referred to in paragraph 8 of the judgment, for the decision in the writ petition would stand even without the factual conclusion arrived at in paragraph 8 of the judgment. There is therefore no substance in the said ground urged for seeking review of the judgment.
9. It is seen that during 2000, the Public Works Department of the State Government initiated steps to raise the level of the footpaths on either side of Mavoor road and put up barricades on the side of the footpaths in such a manner as to affect the vehicular access to the property where the R.P. No.923 of 2020 in W.P.(C) No.17453 of 2020 10 restaurant building of the petitioner is situated. The predecessor of the petitioner then approached this court by filing O.P.No.4535 of 2000 contending that raising the level of the footpath and putting up barricades in front of the property of the petitioner in the aforesaid manner is illegal, and prayed for a direction to the State Government to refrain from raising the level of the footpath or putting up barricades in front of the property in such a manner as to affect the vehicular entry to the property throughout its entire road frontage. Ext.P2 is the judgment in the said case, and in terms of Ext.P2 judgment, this court disposed of the original petition directing the respondents that the petitioner may be permitted to put slanting slabs to enable their customers to park vehicles in the hotel premises, without causing any obstruction to the pedestrians and traffic.
10. Another ground urged by the petitioner to seek review of the judgment is that this court ignored Ext.P2 judgment in the matter of rendering the judgment sought to be reviewed. According to the petitioner, in the light of Ext.P2 R.P. No.923 of 2020 in W.P.(C) No.17453 of 2020 11 judgment, the Corporation is precluded from raising the level of the footpath in such a manner as to affect the vehicular access to the property of the petitioner throughout its entire road frontage. Although the judgment in O.P.No.4535 of 2000 was referred to in the judgment, the contention aforesaid of the petitioner has not been considered while rendering the judgment sought to be reviewed. Even though the said contention was raised at the time of arguments, the same was not included in the argument note filed by the petitioner after the conclusion of the hearing and it is in the said circumstances the said contention was not considered while rendering the judgment, taking the view that the petitioner is not serious about the same. Be that as it may, insofar as the said contention is now seriously pressed, I have called for and perused the Judges Papers in O.P.No.4535 of 2000 and I do not find any substance in the argument raised based on Ext.P2 judgment also.
11. As noted, O.P.No.4535 of 2000 is a writ petition filed by the predecessor of the petitioner raising identical R.P. No.923 of 2020 in W.P.(C) No.17453 of 2020 12 contentions. The relief sought for in the writ petition reads thus :
"Issue a writ of mandamus or other appropriate writ, direction or order directing the respondents not to raise the footpath or put up barricades in front of Hotel Sagar in Sy.No.R.S.862 in Kalathinkunnu Village of Kozhikode City causing obstruction for access to the Hotel premises for the vehicles at any point on the southern boundary from the Mavoor Road, Calicut."
The short judgment in the said case reads thus :
"This Original Petition is filed for directing the respondents not to raise the foot path or put up barricades in front of the hotel owned by the petitioner. At the time of admission on 11.2.2000 there was a direction to the respondents to see that ingress and egress of vehicles to the petitioner's hotel is not obstructed.
2. It is submitted by the learned Government Pleader that free egress and ingress is given to the petitioner's hotel. Petitioner submits that foot path can be raised, but petitioner may be allowed to make slanting slabs so that customers' vehicles etc. can be parked in the hotel premises.
3. In the above circumstances, I direct that without obstructions to be pedestrians and without obstructions to the traffic petitioner may be allowed to put slanting slabs so that their customers' vehicles can be parked in the hotel premises.
The Original Petition is disposed of with the above direction."
R.P. No.923 of 2020 in W.P.(C) No.17453 of 2020 13 A perusal of Ext.P2 judgment would indicate that the case of the petitioner that the respondents therein are not entitled to raise the level of the footpath and put up barricades on the side of the footpath in such a way as to affect the vehicular access to the property throughout its entire road frontage has not been accepted by the court and the court has not granted to the petitioner therein the relief sought for by him on that basis. Instead, the petitioner therein has only been granted permission to fix slanting slabs for convenient vehicular access to the property. The said judgment cannot be understood as a judgment preventing the respondents therein from raising the level of the footpath on the side of the road abutting the property of the petitioner or putting up barricades on its side. In other words, even assuming that the Corporation is the successor body of the State Government as contended by the petitioner, the said judgment may not, going by the principles of res judicata, preclude the Corporation in any manner from raising the level of the footpath.
12. Although a few other grounds were also stated R.P. No.923 of 2020 in W.P.(C) No.17453 of 2020 14 in the review petition, as revealed from the written argument note filed by the learned counsel for the petitioner, none of them were raised at the time of hearing. The petitioner is not entitled to seek review of the judgment on those grounds, especially when satisfactory explanation as to the reason why those grounds were not raised at the time of hearing is not furnished.
The review petition, in the circumstances, is without merits and the same is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
YKB R.P. No.923 of 2020 in W.P.(C) No.17453 of 2020 15 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE APPROVED BUILDING PLAN AS PER BUILDING PERMIT NO.E4/26257 DATED 11.04.1991