Kerala High Court
Puthettu Developers Pvt Ltd vs State Of Kerala on 10 August, 2022
W. P. (C). No. 29432 of 2021
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
WP(C) NO. 29432 OF 2021
PETITIONERS:
1 PUTHETTU DEVELOPERS PVT LTD
REPRESENTED BY ITS MANAGING DIRECTOR, JOSEPH
MATHEW, AGED 65 YEARS, S/O. MATHEW, PUTHETTU HOUSE,
PALA P.O., KOTTAYAM-686 575
2 JOE MATHEW, AGED 49 YEARS
S/O. MATHEW, PUTHETTU HOUSE, PALA P.O.,
KOTTAYAM-686 575
3 TOM MATHEW, AGED 51 YEARS
S/O. MATHEW, PUTHETTU HOUSE, PALA P.O.,
KOTTAYAM-686 575
4 MARS MATHEW, AGED 59 YEARS
S/O. MATHEW, PUTHETTU HOUSE, PALA P.O.,
KOTTAYAM-686 575
5 SIBY MATHEW,AGED 47 YEARS
S/O. MATHEW, PUTHETTU HOUSE,
PALA P.O.,
KOTTAYAM-686 575
BY ADVS SRI VINCENT K.C.
SRI ALEXANDER K.C.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM-695 001
2 THE SECRETARY ,DEPARTMENT OF REVENUE, SECRETARIAT,
THIRUVANANTHAPURAM-695 001
3 THE DISTRICT COLLECTOR,
COLLECTORATE, KOTTAYAM-686 002
4 THE TAHSILDAR,MEENACHIL TALUK, PALA P.O.,
KOTTAYAM-686 575
5 THE VILLAGE OFFICER,
LALAM VILLAGE, CIVIL STATION, PALA P.O., KOTTAYAM-
686 575
W. P. (C). No. 29432 of 2021
2
6 THE PALA MUNICIPALITY,
PALA P.O., KOTTAYAM-686 575 REPRESENTED BY ITS
SECRETARY
7 THE MUNICIPAL COUNCIL,
PALA MUNICIPALITY, PALA P.O., KOTTAYAM-686 575,
REPRESENTED BY ITS CHAIRMAN
8 THE ASSISTANT EXECUTIVE ENGINEER,
PALA MUNICIPALITY , PALA P.O., KOTTAYAM-686 575
9 JOSE, S/O. CHACKO, NEDUMATHAKADIYEL HOUSE, ANIKAD
VADAKKUMBHAGAM, CHENGALAM EAST VILLAGE,
KALLOORKULAM P.O., KOTTAYAM-686 503
10 TOM.K.NEDUMTHAKIDY,
S/O. JOSE, NEDUMATHAKADIYEL HOUSE, ANIKAD
VADAKKUMBHAGAM, CHENGALAM EAST VILLAGE,
KALLOORKULAM P.O., KOTTAYAM-686 503
11 GEORGE JOSEPH.A.,
JEERAKATHU HOUSE, VELLAPPAD, KOTTARAMATTAM, PALA
P.O., KOTTAYAM-686 575
ADDL.R12 IMPLEADED
ADDL.R12. THE SECRETARY,
PALA MUNICIPALITY, PALA P.O., KOTTAYAM - 686575.
(ADDL.R12 IS IMPLEADED AS PER ORDER DATED
17.02.2022 IN I.A.NO.1/2022).
ADDL.R13 IMPLEADED
ADDL.R13 P.M.MANI,AGED 71 YEARS,
S/O LATE P.K.MANI, PUTHETTU, ARMONY,
NOCHIPPILLY PO, PALAKKAD, PIN 678 592
(ADDL.R13 IS IMPLEADED AS PER ORDER DATED
29.3..2022 IN I.A.NO.1/2022)
R1 TO R5 BY GOVT.PLEADER SRI RAJEEV JYOTHISH GEORGE
R6 TO R8 BY SUJITH MATHEW JOSE
R9 & R10 BY AJITH VISWANATHAN
SRI P.VISWANATHAN (SR.)
R11 BY P.S.GEORGE
ADDL.R13 BY SRI P.RAMAKRISHNAN
SMT.PREETHI RAMAKRISHNAN
MS.ASHA K.SHENOY
SRI C.ANILKUMAR (KALLESSERIL)
SRI PRATAP ABRAHAM VARGHESE, MS.T.C.KRISHNA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 29.03.2022, THE COURT ON 10.08.2022 DELIVERED
THE FOLLOWING:
W. P. (C). No. 29432 of 2021
3
T.R. RAVI, J.
--------------------------------------------
W. P. (C). No.29432 of 2021
--------------------------------------------
Dated this the 10th day of August, 2022
JUDGMENT
The 1st petitioner is a Private Limited Company represented
by its Managing Director Sri Joseph Mathew and petitioners 2 to 5
are the brothers of Sri Joseph Mathew. Sri Mathew and
Sri Kurian are their father and paternal grandfather, respectively.
Late Sri Kurian had executed a settlement deed registered as
document No.1439/1955 of the SRO, Meenachil, a copy of which is
produced as Ext.P3. As per Ext.P3, properties shown as Schedules
B, C & D have been settled in favour of the 3 sons of Kurian, and
Schedule A was retained by the said Kurian. Later, Kurian
executed a Will which is registered as document No.64/1977 with
SRO, Meenachil, a copy of which is produced as Ext.P4, whereby
the properties shown under Schedule B were allotted to
Sri Mathew. By virtue of Exts.P3 and P4 Sri Mathew became the
owner of 140.25 cents of land. Petitioners have produced as
Ext.P1 series, the tax receipts issued regarding the properties. The
properties are situated in an area called Kottaramattom coming
under the Pala Municipality which is stated to be a commercially
important place. To put the property for better commercial use,
W. P. (C). No. 29432 of 2021
the petitioners decided to construct a commercial building.
Initially, a permit was obtained in the year 2009, and construction
was completed by July, 2010. Additional constructions were made
based on permission obtained in March, 2010 which were also
completed according to the petitioners by November 2011. In
2015, the 1st petitioner and petitioners 2 and 3 approached the
Municipality with a revised building plan to have a better utility for
the building which is already there in existence with the name
"Puthettu Arcade". Even though the application was submitted in
2015, the same was approved only on 24.10.2017 as can be seen
from Ext.P2 revised building permit. The construction, according
to the petitioners, is now complete and the lower floors are already
occupied, and, on the upper floor the proposal is to put up a
multiplex theatre with three screens, the construction of which is
also nearing completion. According to the petitioners even though
necessary documents were submitted for issuance of the
completion certificate and occupancy certificate, the same was not
granted by the Municipality for frivolous reasons.
2. In Ext.P3 settlement deed there is a mention of a road
which the grandfather of the petitioners had decided to lay as
access to the properties shown in A to D Schedules from the
Lalam-Kozha road (presently the Poonjar-Ettumanoor State
W. P. (C). No. 29432 of 2021
Highway) on the south and leading towards north approximately
through the middle portion of the entire property, in such a way
that the B and D Schedule properties will be on the west and A & C
Schedule properties will be on the east of the road. The road was
to have a width of 15 links and covers an extent of 13.5 cents,
ending on the northern end of the property, providing access to the
ancestral house of the petitioners, where the 4 th petitioner resides.
Ext.P3 specifically says that the area covered by the road portion is
also to be included in the Schedules allotted to each beneficiary
and that the respective shareholders are to mutate such portions
as part of their properties. The petitioners submit that the
properties that devolved on Sri Mathew as C Schedule in Ext.P3
and B Schedule in Ext.P4 includes one-half of the extent of the
road having a width of 15 links. It is submitted that the road is
still in existence though the width varies at different points and lies
on the western portion of the properties owned by the petitioners
wherein the buildings have been constructed on the strength of
Ext.P2. Respondents 9 and 10 are alienees from one of the
brothers of Sri Mathew, who had been allotted D Schedule property
in Ext.P3, lying on the north end. There were disputes between
respondents 9 and 10 and Sri Mathew and his sons (petitioners
herein) regarding the road shown in Ext.P3. The issue culminated
W. P. (C). No. 29432 of 2021
in the filing of O.S.No.165/1995 and O.S.No.71/1998 before the
Sub Court, Pala. Ext.P5 is the judgment dated 16.08.2000 of the
Civil Court which is stated to have become final. As per the
judgment, respondents 9 to 11 as well as their successors to the
property involved in Ext.P3 have a right to use the road portion for
transportation without any obstruction. The ownership of the
portion of the road which vests as per Ext.P5 on the respective
owners of the properties covered by the A to D Schedule has not
been interfered with. The petitioners submit that neither the
petitioners nor any other owners of the properties on the side of
the road have relinquished their right over the road portion in a
manner known to law and that the road continues to be a private
road. It is further submitted that it has never been used by the
public except for those persons who are seeking access to the
"Puthettu Arcade".
3. Based on Ext.P2 building permit, the petitioners
proceeded with the construction. When the construction was
reaching the final stages, during 2020, it was in the public domain
that the petitioners are proposing to have a multiplex theatre with
3 screens in the Puthettu Arcade. The petitioners submit that the
rivals in the field of business, apprehending that the petitioners'
project can become a threat to their business, raised complaints
W. P. (C). No. 29432 of 2021
with the help of the 10th respondent against the constructions
effected by the petitioners. The main objection was that the
petitioners were reducing the width of the road which was the
subject matter of Ext.P5. Respondents 6 to 8 did not interfere
based on the complaint, as they were convinced that the
construction was in compliance with the building permit.
According to the petitioners when new office bearers took charge
of the office after the general elections of 2020, the 10 th
respondent again approached the Municipality, which resulted in a
stop memo being issued on 17.03.2021. Ext.P6 is the stop memo
directing the petitioners to stop construction. The stop memo was
issued on the allegation that the building permit was obtained by
misrepresentation, that the plaintiffs in O.S.No.165/95 also have
right over the 3 metre wide road, and that the Overseer has
reported that the width is being reduced. According to the
petitioners, the 11th respondent is using the Municipal road which
is passing through the northern boundary of the properties for
ingress and egress from his residence situated at the northern end
of the erstwhile Puthettu property. Petitioners approached the
Tribunal for Local Self Government Institutions, challenging the
stop memo. Based on the order issued by the Tribunal and the
reply submitted by the petitioners, the Municipality withdrew the
W. P. (C). No. 29432 of 2021
stop memo and permitted the petitioners to resume construction.
Ext.P7 is the order of the Tribunal and Ext.P8 is the order
withdrawing the stop memo. The withdrawal of the stop memo
was the subject matter of a complaint filed by the 10 th respondent
and 3 others before the 6th and 7th respondents, wherein a
contention was taken that the road vests in the Government as per
the revenue records and that such road should not have been
shown in the plan for the building permit as a private road. Ext.P9
is the complaint. Along with Ext.P9, the complainants have
produced a copy of the relevant page of the Basic Tax Register
(BTR) certified by the Village Officer relating to Re-survey
No.22/54 having a total extent of 5.05 Ares, which has been
produced a Ext.P10. Ext.P10 shows an entry that the property is
Government road. According to the petitioners, the entry has
been made after the preparation of the Basic Tax Register. An
application was filed under the Right to Information Act before the
Village Officer seeking information as to the entries made in the
BTR and whether any of the adjoining land owners had
relinquished any portion of their properties and regarding the
person who made the entry and the period when the entry was
made. Exts.P11 and P11(a) are the applications filed under the
Right to Information Act. Yet another application was filed for a
W. P. (C). No. 29432 of 2021
copy of the relevant page of the BTR relating to Re-survey 22/54
and 22/55 and Ext.P12 is the extract of the BTR obtained on the
application. The petitioners contend that the road in question was
never used as a public road. According to them, the additional
entries that have been made in the revenue records are a result of
the conspiracy to delay the construction and use of the multiplex
theatre in the Puthettu Arcade. While so, respondents 9 & 10 and
others filed an Execution Petition before the Sub Court, Pala on
30.07.2021 as E.P.No.79/2021, copy of which is produced as
Ext.P13. The allegation in Ext.P13 is that the direction in Ext.P5
judgment and the decree, in that case, has been violated.
4. On 23.10.2020, the Municipality issued a
communication to the petitioners stating that the Municipality had
sought reports from the Village Officer regarding the ownership of
property and road lying on the western side of the construction
made by the petitioners. Ext.P14 is the communication. The
Village Officer on 12.11.2021 submitted a report informing that the
ownership of the road portion on the western side of the building
can be determined only after conducting a survey through the
Taluk Surveyor. The report did not say that the road portion is
vested with the Government. However, according to the
petitioners, the observation in the report that further survey is
W. P. (C). No. 29432 of 2021
required is mischievous. Petitioners submit that there is no civil
dispute between the owners on either side of the road and hence
no survey is justified. When the Village Officer did not report that
the road is a Government road, respondents 9 to 11 submitted
another representation before respondents 6 and 7 seeking
allotment of Municipal funds for the development of the disputed
road, in an apparent effort to convert it into a public road. Ext.P16
is the representation. The 6th and 7th respondents included the
above representation as item No.9 in the agenda for the meeting
of the Municipal Council scheduled on 12.11.2021. When most of
the Council members objected to the proposal to allot funds to
undertake the construction of the disputed road which is not
included in the Asset Register of the Municipality, the petitioners
submit that the Chairman was compelled to defer the matter for
further discussion. A true copy of the minutes of the meeting of
the Municipal Council held on 12.11.2021 has been produced as
Ext.P18. The site plan submitted before the Municipality for the
purpose of issuance of completion certificate and occupancy
certificate has been produced as Ext.P19. Exts.P20 & P20(a) are
the occupancy certificates issued by the Municipality with effect
from 25.02.2012 and 26.06.2013 regarding portions of the
building which had been completed earlier. The petitioners also
W. P. (C). No. 29432 of 2021
submitted a representation before the District Collector on
22.11.2021, a copy of which is produced as Ext.P21, complaining
about illegalities committed by the revenue authorities including
tampering with the BTR and effecting an endorsement that a
private road is a Government road. The petitioners have filed this
writ petition praying to quash Exts.P14 and P15 and for a direction
to the 6th respondent to issue completion and occupancy certificate
to the building, the subject matter of Exts.P2 and P19, ignoring the
categorisation of the road passing through the western side of the
building in the revenue records if the construction is otherwise in
order. There is a further prayer for a direction to the 3 rd
respondent to consider and pass orders on Ext.P21 and to take
action against the persons responsible for the manipulations in the
Basic Tax Register.
5. A counter affidavit has been filed on behalf of
respondents 9 and 10. It is stated that the petitioners have no
unfettered right over the road and that as alienees from the
original allottee respondents 9 and 10 are also entitled to the
uninterrupted user of the road. They place reliance on Ext.P5
decree. It is submitted that the construction on the strength of
Ext.P2 is unauthorised and that Ext.P2 has been obtained by
suppressing material facts. It is stated that the petitioners have
W. P. (C). No. 29432 of 2021
annexed the road as part and parcel of their property and that the
building does not have the required set back under the Kerala
Municipality Building Rules. The allegation of connivance with rival
businessmen is denied. It was stated that even as per revenue
records, the subject road is being maintained by the Pala
Municipality. Reliance is placed on the entry in the BTR to say that
the road is a Government road. It is contended that the
petitioners are not entitled to cause any obstruction to the user of
the pathway. It is alleged that the parking area of the proposed
building will cause obstruction to the vehicular traffic through the
road. It is further stated that the petitioners have paved tiles over
the disputed pathway which according to respondents 9 and 10 is
with the ulterior motive of annexing the portion of the road.
6. A counter affidavit has been filed on behalf of
respondents 6 to 8, by the Secretary of the Panchayat. The grant
of the building permit is admitted. It is stated that when the
construction was nearing completion, some residents of the locality
made a complaint to the Chief Town Planner alleging violation of
Building Rules, which resulted in a Vigilance investigation on
1.3.2021. While the matter was pending with the Chief Town
Planner (Vigilance), the 10th respondent and a few others
submitted a complaint to the Municipality alleging that the building
W. P. (C). No. 29432 of 2021
permit was obtained suppressing the fact that a 10 Ft. wide road
on the western side is the subject matter of the judgment in
O.S.No.165/1995 and that the ongoing construction is in violation
of the Building Rules. It is stated that an inspection was carried
out through the Overseer who has submitted Ext.R6(b) report
based on which Ext.R6(c) stop memo was issued. It is further
submitted that the appeal filed against Ext.R6(c) stop memo is still
pending consideration before the Tribunal as Appeal No.234 of
2021 and that in view of the order of stay, the stop memo was
withdrawn as per Ext.P8. Ext.R6(e) is the copy of the revised
parking plan submitted by the petitioners. According to
respondents 6 to 8, Ext.R6(d) submitted at the time of seeking a
building permit did not show the existence of the road passing
through the western side, which had been shown as parking place
initially. The respondents have also produced Ext.R6(f) dated
24.9.2021 which is the letter issued from the Local Self
Government Department directing the Municipality not to issue an
occupancy certificate before ascertaining the ownership of the road
passing through the western side of the construction site and
verifying whether parking is allowable in that area. On
23.10.2021, it is stated that the Municipality had issued a
communication to the 5th respondent Village Officer seeking a
W. P. (C). No. 29432 of 2021
report. The letter issued to the Village Officer has been produced
as Ext.R6(h) and the report received from the 5 th respondent has
been produced as Ext.R6(i). The report says that the road in
question is a Government road as per the BTR and that ownership
can be ascertained only after proper measurement by the Taluk
Surveyor. It is submitted that pending the writ petition, on
4.1.2022, the Municipality has received another direction from the
Chief Town Planner pointing out serious violations in the completed
construction, based on the inspection conducted by the District
Town Planner. Ext.R6(a) is the communication, which says that
the minimum 3 Metre set back is not available on the western side
of the site from the disputed road. As per Ext.R6(b), if there is a
road, there are violations of Rule 24 relating to set back and Rule
25 relating to the minimum distance from road boundary. Other
violations are also pointed out. According to respondents 6 to 8,
before proceeding any further, ownership and width of the road
and the boundary on the western side must be fixed and it is only
thereafter that the measurement to the eastern side of the
building can be taken.
7. The 11th respondent has filed a counter affidavit. It is
stated that the road described in Exts.P3 and P5 actually ends in
the northern boundary of his property, but that he linked it with
W. P. (C). No. 29432 of 2021
the Municipal road on the north to have easy access to the Pala-
Vaikom road, since the subject road is narrower and not properly
maintained. He states that no one other than the 10 th respondent
and himself is using the subject road and that the residents on the
side of his property are using the Municipal road to reach the main
road. It is also stated that the subject road is not meant for
transportation of the public, but only for the use of persons who
are holding portions of erstwhile Puthettu property. The 11 th
respondent claims title over the road portion in front of his
residential plot and submits that he has not surrendered his rights
and does not propose to surrender the same. Ext.R11(a) has been
produced which is stated to be a petition dated 15.12.2021
submitted to the Municipal Secretary stating that he is not joining
issue on the dispute relating to the construction of the shopping
complex and that he is withdrawing from Ext.P16 which had been
signed by him based on the representation made by the 10 th
respondent that funds can be got allotted to improve the road
under the Flood Relief Scheme.
8. The petitioners have filed a reply affidavit refuting the
allegations in the counter affidavit filed by respondents 6 to 8. It
is stated that there is sufficient set back available between the
disputed way and the building and that there is no violation of
W. P. (C). No. 29432 of 2021
Rules 24 and 25. A memo has been filed by the Government
Pleader producing the report of the Village Officer and a copy of
the field measurement sketch as well as entry in the BTR.
9. Heard Sri K.C.Vincent, on behalf of the petitioners,
Sri P. Viswanathan, Senior Counsel, instructed by Sri Ajith
Viswanathan on behalf of respondents 9 and 10, Sri Sujith Mathew
Jose, on behalf of respondents 6 to 8, Sri P.S.George on behalf of
the 11th respondent and Sri Rajeev Jyothish George, on behalf of
respondents 1 to 7.
10. The counsel for the petitioner relied on Ext.P5 judgment
to submit that respondents 9, 10, and 11 being transferees from
Puthettu family have also got right over the lands adjoining the
properties transferred to them as per Ext.P3. It is pointed out that
neither the transferor of respondents 9, 10, and 11, nor
respondents 9, 10, and 11 have ever relinquished their right over
the property/road in favour of the Government or the Municipality.
It is submitted that none of the owners on either side of the road
have relinquished their rights. Ext.P3 is of the year 1955 and it is
a settlement of a large extent of property by dividing it into four
separate portions allotted to four different persons providing a way
in between. There is no case that prior to 1955 there was any
public road through the property. As such, no public road could
W. P. (C). No. 29432 of 2021
have been formed, without the permission or relinquishment in a
manner known to law by the owners. There is absolutely no
evidence forthcoming about any such relinquishment or
permission. Reliance is placed on the judgment in W.P.(C)No.360
of 2013 regarding the violation of Rule 25 alleged. In the said
case also, a street was formed by the property owners on either
side setting apart 1.5 Metres from their property. The definition of
'private street' contained in Section 232 of the Act of 1994 was
referred to and the Court held that one-half of the road which is
formed from the property of the person who has made the
construction can also be taken into account for the purpose of
calculating the set back requirement. It is further submitted that
no dispute had been raised till 2013, when the second floor had
been completed and the occupancy certificate had been issued. It
is further pointed out that Ext.R6(g) report of the Chief Town
Planner, Vigilance does not really show any violation. It actually
notices a 3 Metre wide road through the plot to the residential
houses to the further north and in the recommendation portion
Ext.R6(g)(5), what is stated is that occupancy shall be granted
only after cellar parking and other parking facilities as shown in the
plan are provided. There is also a mention that regarding the road
on the western side, the ownership should be ascertained and so
W. P. (C). No. 29432 of 2021
also whether parking is permissible in that area should be
ascertained. Ext.R6(f) is also in the same line. The counsel for
the Municipality argued in terms of the counter affidavit. The
Senior Counsel appearing for respondents 9 and 10 submits that
the judgment in W.P.(C)No.360 of 2013 which had been relied on
by the counsel for the petitioners goes against the purpose of the
Rules and submits that it can be followed only to the extent of the
definition of "private street" and the question whether the road on
the western side is a private street or a public road is to be
primarily ascertained before placing reliance on the judgment.
11. In the decision in Roy Abraham v. State of Kerala
and others [2021 (4) KHC 520], a Division Bench of this Court
considered the manner in which the Municipality can become the
owner of a property. Paragraphs 16 and 17 of the judgment are
extracted below:
"16. Therefore, on a reading of Section 214 of Act, 1994
and Rule 3 of the Rules, 2000, it is clear that once a
property is surrendered free of cost to the Municipality,
the Municipality will become the owner of the property by
virtue of the fiction created under the aforesaid provisions.
The instant case is built up by the petitioner on the basic
contention that various property owners have surrendered
their private roads to the Municipality by giving possession
and mere inclusion of the said roads in the asset register
of the Municipality, would not confer ownership on the
W. P. (C). No. 29432 of 2021
Municipality. The issue is no more res integra, since it was
considered by a learned single Judge of this Court
in Natarajan R. v. Village Officer, Kanayannur Taluk, [2012
(3) KHC 571] in the realm of the Land Relinquishment Act
and the Rules thereto and the Kerala Municipality Building
Rules, 1999. There the question arose was, once the land
has been surrendered for widening of road, can that land
be taken back for the reason that the authorities failed to
pass an order either accepting or rejecting the surrender.
17. After considering the facts, circumstances and the
issues involved, this Court in Natarajan R, (supra) has
held as follows at paragraph 7:
"7. It is evident from the materials that a building
permit was issued to the petitioner's father to
construct a six storied building in relaxation of the
rules only because of the surrender of 2. 28 acres of
land in Sy. No. 478/1, in accordance with the
provisions contained in Chapter XI of the Kerala
Municipality Building Rules, 1999, which deals with
grant of building permits for construction in plots,
parts of which have been surrendered free of cost
for road development. The petitioner does not
dispute the fact that his father had obtained a
building permit in accordance with the provisions
contained in Chapter XI of the Kerala Municipality
Building Rules, 1999. In any case, as the
petitioner's father had surrendered a portion of the
land on the eastern side of the holding which abuts
the Thammanam - Pulleppady road for the purpose
of obtaining a building permit, it must be deemed
that he had dedicated the land for user as a public
way. Though the dedication by itself would not
altogether deprive him of his rights in the soil, his
W. P. (C). No. 29432 of 2021
enjoyment of the land cannot be inconsistent with
the public right of passage over it. As the
petitioner's father had not placed any restrictions as
to the time or mode of user of the land surrendered
by him and the surrender was unconditional though
it was not formally accepted, I am of the opinion
that he could not have done anything inconsistent
with the public right of passage over the land in
respect of which Ext. P1 application was submitted
under the Kerala Land Relinquishment Act, 1958.
Such being the situation, the mere fact that a
formal order accepting the unconditional surrender
of land had not been passed by the Revenue
Divisional Officer, Fort Kochi is not a reason to hold
that dedication of the land for user as a public way
did not take place. In such circumstances, having
regard to the conduct of the petitioner and his
father, I am of the opinion that no relief can be
granted to the petitioner in exercise of the
discretionary jurisdiction of this Court under Article
226 of the Constitution of India."
12. Referring to Section 214 of the Municipality Act, this
Court held that if there is a free surrender of the land, the
Municipality will become the owner. On the facts of the case, it was
found that once an application for unconditional surrender is
preferred, there is no necessity that a formal order accepting the
unconditional surrender is passed by the concerned authority, to
hold that the land has been dedicated to the user as a public way.
The facts, in this case, are quite different. There is no case that at
W. P. (C). No. 29432 of 2021
any point in time there has been an unconditional surrender of the
land belonging to the petitioners and other erstwhile owners of the
land and the transferees of the erstwhile owner. The only
document relied on is the entry in the BTR that the road is
Government road. It is evident from the settlement deed executed
in 1955 that the road itself was formed for the purpose of access
to the A to D schedule properties shown in the document, through
the middle of the entire property, specifically stating that the road
portion is also to be retained by the adjacent owners as their
property and tax paid for the same. A road formed in such a
manner can never be treated as a public road. There is no material
whatsoever to show that the title of the respective adjacent
owners over portions of the road had ever been surrendered by
them to either the Government or the Municipality. The entry in
the BTR cannot be hence considered to be conclusive evidence of
surrender of the property by the petitioner and other owners of the
road, as per their title deed. Even though the petitioner had sought
for information regarding the person who made the aforesaid entry
in the BTR and the period when such an entry was made, there is
no information forthcoming. In such circumstances, I am of the
considered opinion that the road that had been formed as per
Ext.P3 settlement deed continues to be a private road. I am
W. P. (C). No. 29432 of 2021
fortified in the above conclusion since the materials before the
Court clearly show that the properties on either side of the
disputed road belonged to the Puthettu family originally and even
after Ext.P3 settlement for a long period of time, till transfers were
made of portions of the properties by the sons of Late Kurian, who
executed Ext.P3. The said transferees also do not have a specific
case that they had after the transfer in their favour, surrendered
their right over the road to either the Government or the
Municipality. Merely because there are public roads on either end
of a road, it cannot be concluded that the said road is also a public
road vested in the Government by any manner known to law.
13. In W.P.(C) 360 of 2013, this Court considered the
meaning of the word "private street" as defined in Section 2(32) of
the 1994 Act. The definition excludes a path, or a way made by the
owner of the premises on his own land to secure access to or the
convenient use of such premises. Going by the definition, the road
in question would not even come within the meaning of the term
"private street".
14. In view of my prima facie finding that the road passing
through the western side of the building constructed by the
petitioners cannot be treated to be a public road, Exts.P14 and P15
to the extent they take a view that the ownership of the road in
W. P. (C). No. 29432 of 2021
question must be ascertained before considering the application
submitted by the petitioner for occupancy certificate cannot be
justified and are quashed. The 6th respondent is directed to issue
completion and occupancy certificates to the petitioners for the
building which is the subject matter of Exts.P2 and P19, if the
construction is otherwise in order, ignoring the entry in the BTR
that the road on the western side is a Government road. The
above conclusions are made solely for the consideration of the
question of grant of completion certificate and occupancy
certificate and will not in any manner affect the rights of the
parties as per the decree in O.S.No.165 of 1995 and O.S.No.71 of
1998 of the Sub Court, Pala. The above decision also will not in
any way affect the right of the 1 st respondent to proceed against
the owners on either side of the road(mentioned in the BTR as
Government road), for establishing the right of the Government, in
appropriate proceedings, if the Government has a case that there
had been a free surrender of the property in a manner known to
the law, at any point of time in the past.
The writ petition is disposed of as above.
Sd/-
T.R. RAVI
JUDGE
dsn/Pn
W. P. (C). No. 29432 of 2021
APPENDIX OF WP(C) 29432/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPIES OF THE TAX RECEIPTS DATED
29.06.2021 RELATING TO THE PROPERTIES
OWNED BY THE PETITIONERS
Exhibit P2 A TRUE COPY OF THE REVISED BUILDING
PERMIT ISSUED ON 24.10.2017
Exhibit P3 A TRUE COPY OF THE SETTLEMENT DEED
NO.1439 OF 1955 OF S.R.O. MEENACHIL DTD
20.5.55
Exhibit P4 A TRUE COPY OF THE WILL DEED NO.64 OF
1977 OF S.R.O , MEENACHIL DT 19.8.77
Exhibit P5 A TRUE COPY OF THE COMMON JUDGMENT OF THE
HON'BLE SUB COURT, PALA IN OS NO.165 OF
1995, AND OS 71 OF 1998 DATED 16.08.2000
Exhibit P6 A TRUE COPY OF THE STOP MEMO ISSUED BY
THE 8TH RESPONDENT DATED 17.03.2021
Exhibit P7 A TRUE COPY OF THE ORDER OF THE L.S.G.D
TRIBUNAL DATED 27.04.2021
Exhibit P8 A TRUE COPY OF THE NOTICE DATED
03.05.2021 ISSUED BY THE MUNICIPALITY
WITHDRAWING THE STOP MEMO
Exhibit P9 A TRUE COPY OF THE COMPLAINT FILED BY THE
10 RESPONDENT AND OTHERS ON 24.06.2021
Exhibit P10 A TRUE COPY OF THE B.T.R PRODUCED ALONG
WITH EXHIBIT P9
Exhibit P11 A TRUE COPY OF THE APPLICATION UNDER
R.T.I ACT DATED 05.07.2021
Exhibit P11 (A) A TRUE COPY OF THE REPLY RELIVED UNDER
R.T.I ACT DATED 22.07.2021
Exhibit P12 A TRUE COPY OF THE EXTRACT OF THE B.T.R.
OBTAINED UNDER R.T.I ACT NO.36/21
Exhibit P13 A TRUE COPY OF THE EXECUTION PETITION
NO.79 OF 2021 IN OS NO.165 OF 1995 ON THE
FILES OF THE SUB COURT, PALA
Exhibit P14 A TRUE COPY OF THE COMMUNICATION ISSUED
BY THE MUNICIPALITY DATED 23.10.2021
W. P. (C). No. 29432 of 2021
Exhibit P15 A TRUE COPY OF THE REPORT OF THE VILLAGE
OFFICER DATED 12.11.2021
Exhibit P16 A TRUE COPY OF THE REPRESENTATION DATED
26.10.2021 WITHOUT ANNEXURE
Exhibit P17 A TRUE COPY OF THE NOTICE DATED
11.11.2021 RELATING TO THE MEETING
SCHEDULED TO 12.11.2021
Exhibit P18 A TRUE COPY OF THE MINUTES OF THE MEETING
OF THE MUNICIPAL COUNCIL HELD ON
12.11.2021
Exhibit P19 A TRUE COPY OF SITE PLAN SUBMITTED BEFORE
THE MUNICIPALITY ON 29.09.2021 FOR THE
PURPOSE OF ISSUANCE OF COMPLETION AND
OCCUPANCY CERTIFICATE ALONG WITH THE
RECEIPT
Exhibit P20 A TRUE COPY OF THE OCCUPANCY CERTIFICATE
ISSUED BY THE MUNICIPALITY WITH EFFECT
FROM 25.02.2012
Exhibit P20(A) A TRUE COPIES OF THE OCCUPANCY
CERTIFICATES ISSUED BY THE MUNICIPALITY
WITH EFFECT FROM 26.06.2013
Exhibit P21 A TRUE COPY OF THE REPRESENTATION DATED
22.11.2021 SUBMITTED BEFORE THE DISTRICT
COLLECTOR ON 23.11.2021
EXHIBIT P22 TRUE COPY OF TAX RECEIPTS DT.14.2.2022
ISSUED BY THE MUNICIPALITY IN RELATION TO
THE SHOP ROOM AREAS AT THE EXTREME WEST
OF THE ARCADE AT GROUND, FIRST AND SECOND
FLOORS
RESPONDENT EXHIBITS
Exhibit R6(A) TRUE COPY OF THE COMPLAINT SUBMITTED BY
THE 10TH RESPONDENT AND OTHERS TO THE
MUNICIPALITY
Exhibit R6(B) TRUE COPY OF THE REPORT OF THE OVERSEER,
PALA MUNICIPALITY
Exhibit R6(C) TRUE COPY OF THE STOP MEMO DATED
17/03/2021 ISSUED BY THE MUNICIPALITY
Exhibit R6(D) TRUE COPY OF THE PARKING PLAN SUBMITTED
BY THE PETITIONERS AT THE TIME OF
OBTAINING BUILDING PERMIT
Exhibit R6(E) TRUE COPY OF THE REVISED PARKING PLAN
W. P. (C). No. 29432 of 2021
SUBMITTED BY THE PETITIONERS
Exhibit R6(F) TRUE COPY OF THE DIRECTION DATED
24/09/2021 OF THE LOCAL SELF GOVERNMENT
DEPARTMENT, THIRUVANANTHAPURAM
Exhibit R6(G) TRUE COPY OF THE REPORT DATED 27/05/2021,
OF THE CHIEF TOWN PLANNER, VIGILANCE
Exhibit R6(H) TRUE COPY OF THE LETTER DATED 23/10/2021
OF THE MUNICIPALITY TO SEND TO THE 5TH
RESPONDENT
Exhibit R6(I) TRUE COPY OF THE REPORT DATED 12/11/2021,
OF THE 5TH RESPONDENT
Exhibit R6(J) TRUE COPY OF THE REPLY DATED 15/11/2021
SENT TO THE 1ST PETITIONER BY THE
MUNICIPALITY
Exhibit R6(K) TRUE COPY OF THE DIRECTION DATED
28/12/2021, OF THE CHIEF TOWN PLANNER,
THIRUVANANTHAPURAM
EXHIBIT R11(A) TRUE COPY OF PETITION DT.15.12.2021
SUBMITTED TO THE MUNICIPAL SECRETARY
Exhibit R13(A) TRUE COPY OF THE SETTLEMENT DEED DATED
12/03/2003
