Kerala High Court
Sreejayan vs The District Collector on 8 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 8TH DAY OF JULY 2021 / 17TH ASHADHA, 1943
WP(C) NO. 6434 OF 2021
PETITIONER:
1 SREEJAYAN
AGED 55 YEARS
S/O. PARANGODAN, PARATHAYIL HOUSE,
AUGUSTIANMUZHI, MUKKOM P.O., KOZHIKODE-673602.
2 RAJANI
AGED 52 YEARS
D/O. PARANGODAN, PARATHAYIL HOUSE,
AUGUSTIANMUZHI, MUKKOM P.O., KOZHIKODE-673602.
3 BINDU
AGED 48 YEARS
D/O. PARANGODAN, PARATHAYIL HOUSE,
AUGUSTIANMUZHI, MUKKOM P.O., KOZHIKODE-673602.
BY ADVS.
T.SETHUMADHAVAN (SR.)
PREETHI. P.V.
M.V.BALAGOPAL
RESPONDENTS:
1 THE DISTRICT COLLECTOR,
KOZHIKODE, COLLECTORATE. CIVIL STATION,
ERANHIPPALAM P.O., KZOHIKODE-673020.
2 THE ASSSTANT ENGINEER,
PWD ROAD DIVISION, KUNNAMANGALAM P.O.,
KOZHIKODE-673570.
3 THE SECRETARY,
MUKKOM MUNICIPALITY, MUKKOM P.O.,
KOZHIKODE-673602.
BY ADV SHRI.SURESH KUMAR KODOTH
GOVT. PLEADER SMT. G.RANJITA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 08.07.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.6434/2021
:2 :
JUDGMENT
~~~~~~~~~
Dated this the 8th day of July, 2021
The petitioners, who are joint owners of 11.73 Ares
of land in Thazhekode Village in Mukkom Municipality, have
filed this writ petition seeking to quash Ext.P5 and to direct the
respondents not to cause any obstruction to the free access to
their property comprised in Survey No.265/69 of Thazhekode
Village in Mukkom Municipality adjoining Kozhikode -
Mukkom PWD by constructing any resting home or public
toilet in the PWD road margin.
2. The petitioners state that their property is situated
opposite to the Mini Civil Station at Augustianmuzhi. The
property is abutting a PWD Road. There is entry to the
petitioners' property from the PWD Road, which has a width of
more than 3 metres. The 1st petitioner is residing in a
residential house there. Petitioners 2 and 3 are having 1/3 rd
WP(C) No.6434/2021
right in the total extent of property. The property is not
partitioned. The petitioners have direct access through plot B
(in Ext.P1 sketch) to their property.
3. Recently, the respondents planned to construct a
resting home and a bus stop facing the Mini Civil Station,
completely closing and obstructing the entry to plot A from the
main road. The construction of resting room is under a project
known as "Take a Break". As the construction would obstruct
access to the property of the petitioners, the 1 st petitioner
submitted Ext.P3 objection dated 28.01.2021 to the Chairman,
Mukkom Municipality. As there was no response to ExtP3, the
1st petitioner filed WP(C) No.3125/2021 before this Court. In
the said writ petition, it was submitted on behalf of the 1 st
respondent that no permission has been granted to other
respondents for proceeding with the construction. Thereupon,
this Court disposed of the writ petition as per Ext.P4 judgment,
directing the respondents to consider Ext.P3 representation of
the petitioner, affording an opportunity of hearing to the
petitioner.
WP(C) No.6434/2021
4. The petitioners submitted before the 3 rd respondent
- Secretary to Municipality that if any obstruction is caused by
constructing the resting room in the PWD road margin, it will
cause serious hardship to the petitioners in the enjoyment of
their property. However, the petitioners learned that the 3 rd
respondent, as per Ext.P5, has authorised the Municipal
Engineer to proceed with the construction of the resting home
in the plot earmarked as road margin by respondents 1 and 2.
5. The petitioners are aggrieved by Ext.P5 order. The
petitioners would contend that they were informed by the 2 nd
respondent - Assistant Engineer, PWD Road Division that no
permission has been granted to the above project.
Furthermore, the 2nd respondent, as per Ext.P7, has directed
the 3rd respondent not to proceed with the "Take a Break"
project without obtaining permission from the KSTP. The
petitioners state that within a distance of 50 metres from the
present site towards north, there is sufficient vacant space
available for such construction. There is also area adjacent to
the site which the Municipality has earmarked for the
WP(C) No.6434/2021
construction of a Heritage Park. The petitioners submitted
Ext.P8 request to shift the site. However, the requests and
representations made by the petitioners have not yielded any
result. Hence, the petitioners are before this Court.
5. The 3rd respondent entered appearance and filed a
counter affidavit. The 3 rd respondent stated that in between
the existing two buildings, the construction of the proposed
building leaves sufficient space which can still be used as
entrance to the property proposed to be allotted to petitioners
2 and 3. The construction at the site would not cause any
hindrance to the expansion of PWD Road. The construction
of resting house will not in any manner affect the right of the
petitioners to access to the PWD Road. At any rate, this
being a disputed question of fact, this Court shall not interfere
in the matter, contended the 3rd respondent.
6. The 3rd respondent further stated that the site was
located and demarcated by the Revenue Department, as per
Ext.R3(a) sketch. By Ext.R3(b), the District Collector accorded
permission. The Municipality prepared the site plan and
WP(C) No.6434/2021
detailed estimate for the work at an amount of `20 lakhs.
Tenders were invited from eligible contractors. Agreement
has been executed with the lowest quoting contractor. The
site is also handed over to him. The work is liable to be
completed within six months. In the circumstances of the
case, the writ petition is liable to be dismissed contended the
3rd respondent.
7. Heard the learned counsel for the petitioners, the
learned Government Pleader representing respondents 1 and
2 and the learned Standing Counsel for the Secretary,
Mukkom Municipality.
8. It is not disputed that the petitioners' property is
abutting the PWD Road. A restroom is sought to be
constructed on the road margin. According to the petitioners,
construction of the said building at the road margin will
obstruct access of the petitioners to their property from the
PWD Road. Though the 3rd respondent has a case that the
new construction will not totally deny access to the property of
the petitioners, the case of the petitioners is that the property
WP(C) No.6434/2021
is intended to be divided between themselves and the
construction will indeed deny access to the plots of the
petitioners.
9. This Court in the judgment in Tanur Panchayat v.
Kunhiammutty [1978 KLT 813] has held that the owner of a
land adjoining highway is entitled to as a matter of right,
private access to such highway at any point at which his land
actually touches it. These rights are property which one may
not be deprived of, without his consent except on full
compensation and due process of law. The judgment of this
Court in Joseph v. District Magistrate [1996 (2) KLT 490] is
also to the same effect.
10. However, the likelihood of obstruction resulting from
construction of the building by the 3 rd respondent, is a
disputed question of fact. It will be inappropriate for this Court
to decide such a disputed question under writ jurisdiction. At
the same time, the grievance raised by the petitioners cannot
also be ignored.
WP(C) No.6434/2021
In the circumstances of the case, the writ petition is
disposed of directing the 1st respondent-District Collector to
intervene in the issue, consider the grievance raised by the
petitioners and take a decision in the matter after affording an
opportunity of hearing to the petitioners as well as the 3 rd
respondent. As according to the 3 rd respondent the project is
to be completed in a time bound manner, the 1 st respondent
shall take a decision as early as possible and at any rate,
within a period of six weeks. The interim orders passed by
this Court on 17.03.2021 and 27.04.2021 shall remain in
force, till the 1st respondent takes a decision as directed
hereinabove.
Sd/-
N. NAGARESH, JUDGE
aks/27.07.2021
WP(C) No.6434/2021
APPENDIX OF WP(C) 6434/2021
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ROUGH SKETCH SHOWING
THE LIE OF THE PETITIONER'S PROPERTY.
EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT ISSUED BY
THAZHEKODE VILLAGE DATED 01/02/2021.
EXHIBIT P3 TRUE COPY OF THE OBJECTION SUBMITTED BY
THE PETITIONER BEFORE THE RESPONDENTS
AS WELL AS BEFORE THE CHAIRMAN, MUKKOM
MUNICIPALITY DATED 28/01/2021.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WPC
NO.3125/2021 DATED 10/02/2021.
EXHIBIT P5 TRUE COPY OF THE ORDER OF THE 3RD
RESPONDENT DATED 03/03/2021.
EXHIBIT P6 TRUE COPY OF THE COMMUNICATION RECEIVED
FROM THE OFFICE OF THE 2ND RESPONDENT
DT 6.2.2021.
EXHIBIT P7 TRUE COPY OF THE COMMUNICATION ISSUED
BY THE 2ND RESPONDENT TO THE CHAIRMAN
OF THE 3RD RESPONDENT DT 6.2.2021
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONERS DT
6.3.2021
EXHIBIT P9 TRUE COPY OF PHOTOGRAPH SHOWING THE
PLOT B WAY.
EXHIBIT P10 TRUE COPY OF PHOTOGRAPH OF THE MINI
CIVIL STATION COMPOUND.
RESPONDENT'S EXHIBITS
R3(A) TRUE COPY OF SKETCH PREPARED BY VILLAGE OFFICER
R3(B) TRUE COPY OF ORDER DT 2.11.2020 ISSUED BY
DISTRICT COLLECTOR.
R3(C) TRUE COPY OF SITE AND BUILDING PLAN.
R3(D) TRUE COPY OF ORDER ACCORDING TECHNICAL SANCTION
BY THE ENGINEER DT 9.12.2020
WP(C) No.6434/2021
R3(E) TRUE COPY OF LETTER DT 7.1.2021 ISSUED BY
ASSISTANT ENGINEER.
R3(F) TRUE COPY OF REPORT DT 23.2.2021 SUBMITTED BY
ASSISTANT ENGINEER
R3(G) TRUE COPY OF LETTER DT 2.3.2021 ADDRESSED TO THE
DISTRICT COLLECTOR.
R3(H) TRUE COPY OF SKETCH PREPARED BY MUNICIPALITY
ENGINEER.
