Kerala High Court
Elsy Abraham vs State Of Kerala on 4 June, 2024
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 4TH DAY OF JUNE 2024 / 14TH JYAISHTA, 1946
WP(C) NO. 25489 OF 2020
PETITIONER:
ELSY ABRAHAM
AGED 65 YEARS
W/O.ABRAHAM, PALAKKUDIYIL HOUSE, POOVARANI P.O.,
KOTTAYAM,-686 577
BY ADVS.
PEEYUS A.KOTTAM
SHRI. HRITHWIK D. NAMBOOTHIRI
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, LSGD, SECRETARIAT,
TRIVANDRUM-695 001
2 DISTRICT SUCHITWA MISSION,
KOTTAYAM , REPRESENTED BY ITS CO-ORDINATOR,
PIN-686 513
3 MEENACHIL GRAMA PANCHAYAT,
MEENACHIL, IDAMATTOM P.O., KOTTAYAM,REPRESENTED BY
ITS SECRETARY, PIN-686 577
4 THE DISTRICT COLLECTOR,
KOTTAYAM,PIN-686 002
5 ADDL.R5. THE EXECUTIVE ENGINEER,
PWD (STATE HIGHWAY), KOTTAYAM. IS SUO MOTU
IMPLEADED AS PER ORDER DATED 19-11-2020 IN WP(C)
6 FR.JOSE PRINGAMALA
AGED 74 YEARS, S/O.LATE THOMAS, ST.PAULS MISSION
HOUSE, PRRVARANI, PALA, KOTTAYAM DISTRICT-686 577.
7 SUNNY JOHN, AGED 53 YEARS,
S/O.JOHN PUNNATHANATH, POOVARANI,
PALA, KOTTAYAM DISTRICT-686 577.
ARE IMPLEADED AS PER ORDER DATED 03-02-2021 IN IA
2/21.
BY ADVS.
WP(C) No.25489 of 2020
2
SRI.P.C.HARIDAS
P.K.SOYUZ
SRI.JELSON J.EDAMPADAM
OTHER PRESENT:
SRI.BIMAL K NATH-SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 04.06.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.25489 of 2020
3
CR
M.A ABDUL HAKHIM, J
----------------
WP(C) No.25489 of 2020
------------ ----
Dated this the 04th June, 2024
JUDGMENT
1. The petitioner is the owner in possession of 1 Acre 40 cents of
property abutting Punaloor-Muvattupuzha State Highway which
runs through the eastern boundary of the petitioner's property.
2. The case of the petitioner is that on realignment of the original
road for avoiding the curve in front of the petitioner's property,
the road was pushed towards the eastern side and the land
through which the original road was passing is kept unused;
and that the petitioner has road frontage extensively on its
eastern side to the existing State Highway thorough the said
unused land. The grievance of the petitioner is that the 2 nd and
3rd respondents are attempting to utilise the said unused land in
front of her property for constructing a Hotel-Cum-Public-
Latrine-Complex. According to the petitioner if such a complex
is constructed, her access to the Highway will be lost which is
clearly impermissible in law as she has got the right of access
on all points of her property touch the highway in view of the
settled position of law. When the petitioner and her neighbours
came to know that the 2nd and 3rd respondent are attempting to
construct the said Hotel-Cum-Public-Latrine-Complex in the
said unused land, the husband of the petitioner, along with
other persons submitted representations stating their
grievances and objections before the 2 nd and 3rd respondents,
they are proceeding to construct the said Hotel-Cum-Public-
Latrine-Complex without considering those representations.
3. The petitioner filed this writ petition seeking direction to the
respondents 2 to 4 not to proceed with the construction of the
said Hotel-Cum-Public-Latrine-Complex before taking any
decision on the representation submitted and in such a way
denying the petitioner's right to have access to the State
Highway from her property.
4. When the 3rd respondent Grama Panchayat filed Counter
Affidavit producing Ext.R3(h) Order rejecting the representation,
the petitioner amended the writ petition and included the
challenge against Ext.R3(h) and a declaratory relief that she
has every right to use the old road portion for her ingress and
egress to enter into the State Highway formed after widening,
from her property abutting to the road and also that the 3 rd
respondent has no right to obstruct or to interfere the right of
the petitioner to have free ingress and egress to the road from
every inch of her property.
5. The 3rd respondent filed a Counter Affidavit dated
07/01/2021 opposing the prayers in the Writ Petition. After
amendment of the Writ Petition the 3rd respondent filed an
Additional Counter affidavit dated 06/10/2021 to the amended
writ petition. The sum and substance of the contentions of the 3 rd
respondent is that the 3rd respondent proposes to construct a
Community Sanitation Complex as a part of the project 'take a
break' by which the State Government has decided to construct
2165 quality Community Sanitation Complex throughout the
state, on the sides of National Highways and State Highways for
the purpose of providing refreshment options to the travelers;
that Suchitwa Mission is the nodal agency for implementing the
Project through Local Self Government Institutions; that the 3 rd
respondent was asked to construct Community Sanitation
Complex within its limits as Punaloor- Muvattupuzha Sate
Highway is passing through it; that there are heavy traffic through
the Highway especially during Sabarimala season; that the 3 rd
respondent identified the strip of land between the petitioner's
property and the State Highway as a suitable place for the
purpose; that it is the only available suitable land available within
the limits of the 3rd respondent to implement the Project; that the
Community Sanitation Complex with provision for snacks and
beverages will be helpful for large number of Sabarimala pilgrims
and other travelers through the road; that the petitioner's
property is not abutting the highway; the access of the
petitioner's property to the highway will not be obstructed by the
proposed construction; that the proposed construction is having
plinth area of 79.65 Sq.Meters in about 2-3 cents; that as per
Ext.R3(g) proceedings issued by District Collector only maximum
extent of 3 cents could be used for construction of Community
Sanitation Complex under 'take a break' Project; that since the
land is vested with PWD and has been remaining as
Puaramboke, the 3rd respondent obtained Ext.R3(k) NOC from
the PWD which contains several conditions taking care of traffic
safety also;and that the petitioner cannot have any kind of right
over PWD Puramboke.
6. I heard the learned Counsel for the petitioner
Sri.Peeyus.A.Kottam, the learned Counsel for the 3 rd
respondent Sri.P.C.Haridas, the learned Counsel for the
Additional Respondents Sri.P.K.Soyus and Learned Senior
Government Pleader Sri.Bimal.K.Nath who represented
Respondents 1,2,4 & 5.
7. The petitioner has raised two grounds in support of her claim.
The first ground is based on the Common Law Principle
followed by the Courts in India that an owner of a land adjoining
a highway is entitled to access to the highway at any point at
which his land actually touches the highway, even though the
soil of the highway is vested in the State. The second ground is
that the construction of the Complex is objectionable on the
ground of traffic safety as revealed from Ext.P10.
8. With respect to the first ground based on the common law
principle there are long line of decisions following the common
law principles in India. The learned counsel for the petitioner
has cited three of such decisions in support of her claim - (1)
Municipal Board, Manglaur v. Mahadeoji Maharaj [AIR 1965
SC 1147], (2) Tanoor Panchayat v. Kunhiamutty [1978 KLT
813] & (3) P.K. Wariyar v. State of Kerala [1989 (2) KLT 867].
9. In Mahadeoji Maharaj's case, the Hon'ble Supreme Court
considered the question of the right of the Municipality to a
vacant piece of land adjacent to metalled public road. The case
arose from a title suit instituted by a person having property on
the side of public road. In that case, the subject matter of the
property is a vacant site lying in between the nalis and the road
in which the Municipality attempted to erect a structure to install
a statute of Mahatma Gandhi with two rooms on either sides for
piyo and library. The public road as well as the said vacant land
originally belonged to the landowner/plaintiff in the suit. Dispute
was essentially with respect to the title of the said vacant land.
The question was whether the land lying on the side of the
metalled road is a part of the public road or not. The Hon'ble
Supreme Court found that the suit site is a part of the public
pathway and hence the suit so far as it asked for decree for
possession is dismissed. But at the same time the Hon'ble
Supreme Court granted decree for permanent injunction
restraining the Municipality from putting up the structures on the
disputed land holding that the Municipality cannot put up any
structure on the public pathway which are not necessary for the
maintenance or the user of it as a pathway and that putting up
of the structures intended by the Municipality are not necessary
for the maintenance or the user of the road as a public highway.
10. When the Hon'ble Supreme Court holds that the Municipality
cannot put up any structure on the public pathway which are not
necessary for the maintenance or the user of it as a pathway, it
by necessary implication holds that any structure on the public
pathway which are necessary for the maintenance or the user
of it as a pathway is permissible.
11. In the case on hand, the construction intended by the
panchayat is a Community Sanitation Complex under the
project take a break by which the State Government has
decided to construct 2165 quality Community Sanitation
Complex throughout the state, on the sides of National
Highways and State Highways for the purpose of providing
refreshment options to the travelers. Hence the construction of
Community Sanitation Complex intended by the Panchayat is a
permissible one in view the said decision of the Hon'ble
Supreme Court.
12. In Tanoor Panchayat's case, the land involved was a strip of
land belonging to the Panchayat lying on the side of the road.
The construction proposed by the Panchayat was a library for
the benefit of local fishermen. The said construction was not
intended to cover the entire road margin and even after
construction there would have ample space left for the land
owner therein for access to the road. This Court followed the
aforesaid common law principle and the Supreme Court
decision in Mahadeoji Maharaj. This Court referred to the
principle that the width of the highway, that is, the extent of land
subject to the public right of passage is a question of fact and
that the side lands are ordinarily included in the road for their
necessary proper maintenance of the road. This case also
arose from a civil suit. Even though this Court found the legal
principles in favour of the land owner/ plaintiff in the suit, the
claim of the land owner was rejected holding that the eastern
strip separates the road from the property of the land owner and
it is not be treated as part of the road as necessary for its
maintenance nor can it be treated otherwise as there is no proof
that it is subject to the public right of passage. This Court held
that the land owner/plaintiff cannot therefore claim that the
panchayat should keep the road margin vacant for his use as
part of the road especially when the construction proposed by
the panchayat leaves the plaintiff's ample space on its north
and south for access to the road. In the case on hand, there
cannot be any objection to the construction proposed by the 3 rd
respondent as the petitioner is having extensive road frontage
for his 1.40 acres of land and the proposed construction which
are beneficial for the users of the public road occupies only a
small portion of the petitioner's frontage.
13. In P.K. Wariyar's case, this Court was dealing with the right of
the respondent/Municipal Corporation to put up a large
hoarding on the road margin of M.G.Road, Ernakulam
substantially blocking the view of the petitioner's property,
namely Kottakkal Arya Vydhyasla. The claim of the petitioner is
that the right of the petitioner as an adjoining owner and as a
member of the public are invaded by putting up such a huge
hoarding. Following the Supreme Court decision in Mahadeoji
Maharaj, this Court held that the Municipal Corporation can use
a street only qua street and in no other manner and that an
adjoining owner has rights, in the nature of property and these
rights cannot be invaded by the Corporation, which is in the
possession of a trustee, and a trustee cannot act against the
interest of the beneficiary. This Court held that the act of
erecting hoarding and display boards in the frontage or along
the boundaries of the petitioner's property is an act in excess of
the authority and it has the vice of lack of authority. Accordingly,
this Court directed to remove the subject hoardings and display
boards fixed in front of the petitioner's property namely
Kottakkal Arya Vaidya Sala. This decision also clearly
distinguishable on facts available in the present case. The said
hoarding was not necessary for the maintenance or user of the
road. Secondly, such a huge hoarding unreasonably violates
the rights of adjoining property owner.
14. The learned counsel for the 3 rdrespondent Panchayat cited the
decision of this Court in Ummaya Hamza v. Calicut
Corporation and Ors. [ 2020 (6) KLT 674] in which the
grievance of the petitioner therein was that on account of
raising of height of footpath on the side of Mavoor Road in
Kozhikode, his access to the main road is completely lost. This
Court found that the petitioner is having a road frontage of 22
mtrs and petitioner is having vehicular access at a length of 7
mtrs even after raising the footpath. Though this Court referred
to the aforesaid common law principle this Court did not apply
the same in stricto sensu. This Court referred to the principle
that the private right of access is subject to the public right of
passage which the higher right; and that it may also possible for
a statutory authority to erect obstruction in the highway such as
electric posts, telephone posts, but shelter, etc., which may
invade the private right of landowners abutting the highway as
the same is in public interest. Thereafter it was held that the
right of the owner of the land to 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 it is open to the authorities to plant even
barriers separating the footpath and the highway. Finding that
the petitioner has no case that the construction of the footpath
by the Corporation at a higher level from the carriage way is not
one made in public interest, this Court held that 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. This Court added that if the proposition
canvassed by the petitioner is accepted, footpaths can never be
constructed at a higher level on the sides of the busy public
roads, for footpaths in the same level of the carriageway would
not serve any purpose. In the light of these principles also, the
objection from the petitioner to the construction proposed by the
3rd respondent is unsustainable.
15. Since the land in the present case became vacant on
account of change of alignment of the road, it can not be said to
be a part of road margin. State is bound to provide several
amenities for the users of the public road. In normal case, it
cannot suitably be located in the road margin since the same is
intended for the passage of pedestrians and there may not be
sufficient width for locating such amenities in the road margin.
The State and other local authorities are having so many
valuable vacant lands on the side of the public road which do not
form part of road margin. If the State and the local authorities are
not allowed to put up constructions in such vacant lands for
providing public amenities on the ground that it would affect the
access of neighbouring private land owners, there will not be any
space available for the State and local authorities to provide the
necessary amenities to the users of the road. If the aforesaid
common law principle is enforced in stricto sensu there cannot
be any development or change to the public road. The access of
the private land owners would be restricted when new roads are
constructed or the level of the road is increased or lowered or
when bridges are constructed. If such developments are not
permitted on the ground that it violates private right of access on
the basis of the aforesaid common law principle, the
consequences would be disastrous. Since the vacant land herein
was formed on account of the abandoning of the old road, it does
not form part of the road margin and hence the petitioner cannot
claim right of his private access to the public road through the
said vacant land. Hence, the contention of the petitioner that the
said vacant land cannot be used for constructing the Complex is
unsustainable.
16. Nevertheless, since the property of the petitioner lies on
the immediate western side of the said vacant land and the
petitioner is having access to the public road through the said
vacant land, the access of the petitioner cannot unreasonably be
restricted by the respondents. The respondents are entitled to
use the said vacant land only after ensuring reasonable access
from the petitioner's property to the public road. What is a
reasonable access is a question of fact. If the petitioner's
contention is upheld the valuable vacant land belonging to the
Government will have to be kept unutilized forever. The position
of the State is that of Trustee with respect to public properties
and are bound to protect the interest of its subjects who are the
beneficiaries.The State is bound to see that when public
properties are utilized for any purpose, it is done in a manner
which is least inconvenient and least injurious to the its subjects.
Viewed from this angle, the respondents are bound to ensure
that the construction proposed is done in a manner which is least
inconvenient and least injurious to the petitioner.
17. With respect to the second ground of challenge of the
petitioner with reference to traffic safety, the petitioner relies on
Ext.P10 Report prepared by the Village Officer, which is obtained
by the petitioner under the Right to Information Act. Ext.P10 is a
Report prepared by the Village Officer addressed to the Taluk
Officer for the purpose of giving instructions in the present writ
petition. In Ext.P10 it is stated that the place identified by the
3rdrespondent is not suitable on the point of traffic safety. Though
1st and 4th respondent have not filed any Counter affidavit, the
learned Senior Government Pleader submitted that he has got
instructions from the 4th respondent/District Collector that place
identified by the 3rd respondent is not suitable for construction of
Community Sanitation Complex on the ground of traffic safety as
stated in Ext.P10 Report. This Court does not have the technical
expertise to comment on the suitability of the place identified by
the 3rd respondent for construction of Community Sanitation
Complex on the ground of traffic safety. It is a matter for the
authorities to decide.
18. In view of the aforesaid propositions of law and in view of
the traffic safety involved in the matter, I set aside Ext.R3(h)
Order passed by the 3rd respondent and direct the 4th
respondent/District Collector to take a fresh decision with respect
to the suitability of the place identified by the 3 rd respondent for
constructing Community Sanitation Complex under the take a
break Project with reference to traffic safety after hearing
petitioner as well as the 3rd respondent within a period of three
months from the date of receipt of copy of this judgment. If the
vacant land in front of the petitioner is found suitable, the 4 th
respondent shall find out a location which would cause least
inconvenience and injury to the petitioner.
Writ petition is disposed of accordingly.
Sd/-
M.A ABDUL HAKHIM, JUDGE
jma
APPENDIX OF WP(C) 25489/2020
PETITIONER EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE MINUTES DATED
23.10.2020 OF THE COMMITTED OF 3RD
RESPONDENT
EXHIBIT P2 TRUE COPY OF THE REGISTERED SALE DEED
NO.12854/1991 OF MEENACHIL SRO
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONERS HUSBAND AND
OTHER NEIGHBORING PEOPLE BEFORE THE
SECRETARY MEENACHIL GRAMA PANCHAYAT
DATED 06.10.2020
EXHIBIT P4 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT
ISSUED FROM THE OFFICE OF THE MEENACHIL
GRAMA PANCHAYAT TOWARDS THE RECEIPT OF
EXT.P3 REPRESENTATION
EXHIBIT P5 THE TRUE COPY OF THE REPRESENTATION
DATED 14.10.2020 SUBMITTED BY THE BISHOP
OF UJJAIN DIOCESE BEFORE THE PANCHAYAT
EXHIBIT P6 THE TRUE COPY OF THE RECEIPT ISSUED BY
THE 3RD RESPONDENT PANCHAYAT TOWARDS OF
EXT.P5 REPRESENTATION
EXHIBIT P7 TRUE COPY OF THE PAPER REPORT PUBLISHED
IN MALAYALA MANORAMA DAILY DATED
20.09.2020 PERTAINING TO THE ACCIDENT
BEING HAPPENED IN THIS PARTICULAR AREA
DUE TO THE PECULIAR LIE AND NATURE OF
THE ROAD
EXHIBIT P7A TRUE COPY OF THE PAPER REPORT PUBLISHED
IN DESHABHIMANI DAILY DATED 20.09.2020
PERTAINING TO THE ACCIDENT BEING
HAPPENED IN THIS PARTICULAR AREA DUE TO
THE PECULIAR LIE AND NATURE OF THE ROAD
EXHIBIT P8 THE PHOTOGRAPHS SHOWING THE LIE OF THE
STATE HIGHWAY IN FRON OF THE PETITIONERS
PROPERTY
EXHIBIT P9 THE TRUE COPY OF THE SKETCH ISSUED FROM
POOVARANI VILLAGE OFFICE SHOWING THE LIE
AND NATURE OF THE PUNALOOR-MUVATTUPUZHA
ROAD
RESPONDENT EXHIBITS
EXHIBIT R3 A TRUE COPY OF THE RESOLUTION NO-5 DATED
13/09/2020
EXHIBIT R3 B TRUE COPY OF THE LETTER DATED THIS TEAM
09/20 OF THE 3RD RESPONDENT TO THE
EXEWCUTIVE ENGINEER PWD
EXHIBIT R3 C TRUE COPY OF THE APPLICATION FOR
BUILDING PERMIT DATED 22/0/2020
SUBMITTED BY THE PETITIONER
EXHIBIT R3 D TRUE COPY OF THE SIDE LOCATION PLAN AND
EXHIBIT R3C
EXHIBIT R3 E TRUE COPY OF THE LETTER DATED 16/11/2020
OF THE 3RD RESPONDENT TO THE PETITIONER
EXHIBIT R3 F TRUE COPY OF THE PROCEEDINGS DATED
02/11/2020 OF THE DISTRICT COLLECOT
KOTTAYAM
EXHIBIT R3 G TRUE COPY OF THE PROCEEDINGS DATED
03/11/2020 OF THE DISTRICT COLLECTOR,
KOTTAYAM
EXHIBIT R3 H TRUE COPY OF THE ORDER DATED 06/11/2020
OF THE RESPONDENT
EXHIBIT R3 1 TRUE COPY OF THE TENDE NOTICE DATED
03-11-2020
