Kerala High Court

Ummaya Hamza vs Calicut Corporation Rep. By Its ... on 27 May, 2022

           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.

                         -------------------------------------
                               R.P. No.923 of 2020
                                          in
                          W.P.(C) No.17453 of 2020
                         --------------------------------------
               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

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

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

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

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

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

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

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

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

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

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.