Kerala High Court
P.P. Mathew vs The Divisional Railway Manager(Works) on 27 May, 2025
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 27TH DAY OF MAY 2025 / 6TH JYAISHTA, 1947
WP(C) NO. 33597 OF 2024
PETITIONER:
P.P. MATHEW
AGED 61 YEARS
S/O P.C. PAILO, VATTAKUNNEL PULICKAL HOUSE,
MUTTAMBALAM, KOTTAYAM, RESIDING AT VATTAKUNNEL
PULICKEL, 11TH, GIRINAGAR,
KADAVANTHARA, KOCHI, PIN - 682020
BY ADVS.
C.S.MANILAL
S.NIDHEESH
RESPONDENTS:
1 THE DIVISIONAL RAILWAY MANAGER(WORKS),
DIVISIONAL OFFICE, SOUTHERN RAILWAY,
TRIVANDRUM, PIN - 695014
2 THE SENIOR SECTION ENGINEER
OFFICE OF THE SENIOR SECTION ENGINEER,
SOUTHERN RAILWAY, KOTTAYAM, PIN - 686001
3 ASSISTANT DIVISIONAL ENGINEER,
SOUTHERN RAILWAY, ERNAKULAM, PIN - 682016
4 SENIOR DIVISIONAL ENGINEER
CO-ORDINATION,
SOUTHERN RAILWAY TRIVANDRUM DIVISION,
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W.P.(C) No.33597/2024
:2:
DIVISIONAL OFFICE, THYCAUD,
TRIVANDRUM, PIN - 695014
5 SENIOR DIVISIONAL ENGINEER(WORKS),
SOUTHERN RAILWAY TRIVANDRUM DIVISION,
DIVISIONAL OFFICE, THYCAUD,
TRIVANDRUM, PIN - 695014
BY ADV K.R. RAJKUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 22.05.2025, THE COURT ON 27.05.2025 DELIVERED
THE FOLLOWING:
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W.P.(C) No.33597/2024
:3:
N. NAGARESH, J.
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W.P.(C) No.33597 of 2024
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Dated this the 27th day of May, 2025
JUDGMENT
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The petitioner, who is owner and
possesser of 10.38 Ares of property in Re-survey Nos.25
and 25/1 of Muttambalam Village, seeks to direct the
respondents to see that access to the property of the
petitioner is ensured removing the blockade created by the
construction of 8 cement pillars / protection guide blocks in
front of the property of the petitioner.
2. The Railway decided to close the level
cross and to construct an underpass on a municipal road
adjacent to the property of the petitioner. The respondents
acquired property on the southern side of the municipal
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road. An extent of 1.08 Ares (2.67 Cents) of the petitioner
was acquired. After acquisition, the respondents
constructed an underpass through the acquired land.
3. The petitioner states that before the
acquisition, the petitioner had direct access to the said
municipal road from his property. After the acquisition of
the underpass, the access can be only through the newly
constructed road portion. After the construction, the
petitioner was entering into his property from the said road.
In the absence of the petitioner and his family, the
respondents obstructed and prevented the petitioner's
access to public road by constructing 8 cement pillars /
protection guide blocks.
4. The petitioner made Ext.P3 request to the
1st respondent seeking to remove the obstruction and permit
the petitioner to have access to the public road. The 2nd
respondent conducted an inspection and recommended that
access be granted to the petitioner on condition that no
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obstruction should be caused to the free passage of the
vehicles through the road.
5. The 1st respondent rejected the request of
the petitioner as per Ext.P7 communication. The petitioner
challenged Ext.P7 filing W.P.(C) No.36433/2023. This
Court held that new underpass is virtually a public road and
access cannot be denied to the petitioner. The 4th
respondent was directed to reconsider the entire matter.
The 5th respondent thereupon passed Ext.P9 order stating
that the land of the petitioner is situated in a lower level. In
Ext.P9, the respondents have added additional reasons to
deny access.
6. The petitioner argued that Ext.P9 is illegal
and unsustainable and the reasons stated therein are
unreal. The denial of access to the public highway as per
Ext.P9 is illegal and arbitrary. The owner of a property on
the side of a highway or public road has a natural right to
have access at every point in the highway without any
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hindrance. Ext.P9 is therefore liable to be set aside.
7. The respondents resisted the writ petition.
The respondents stated that the property of the petitioner
has no direct access to the road leading to the subway.
The petitioner's land has been at a lower level which has
been recently filled with earth. The petitioner did not have
access to the newly constructed road. The guide blocks
along the limited use subway were constructed since the
adjoining ground was at a lower level. It is these safety
guide blocks which have been termed as "blockade" by the
petitioner.
8. As per Railway Board Guidelines, new
access cannot be granted when the petitioner has already
another access to his property. The field report also stated
that the petitioner wants to demolish the guide blocks for
additional access to the apartment building. The NOC
drawing submitted by the petitioner shows that he has
separate access to the municipality road. The writ petition
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is therefore liable to be dismissed.
9. I have heard the learned counsel for the
petitioner and the learned Central Government Counsel
representing the respondents.
10. It is not disputed that the respondents
have acquired a portion of the petitioner's land in order to
construct an underpass. After construction of underpass,
the existing road lies adjacent to the petitioner's land. The
petitioner had sold a larger extent of his property for
construction of an apartment complex. The apartment
complex has separate access.
11. The contention of the respondents is that
the land had another access before the construction of the
apartment complex. The remaining land possessed by the
petitioner was lying at a lower level. The petitioner had no
access to his property through that area earlier. The
cement blocks have been constructed in order to protect the
railway land/road.
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12. It may be true that the larger extent of area
earlier owned by the petitioner had another access. After
the sale of a portion of the land, where an apartment
complex is constructed subsequently, the remaining land in
possession of the petitioner has no separate access. The
petitioner's land is adjacent to the public road. As rightly
pointed out by the petitioner, owner of a land adjacent to the
highway / public road has every right to access the public
road. By constructing 8 cement pillars, the petitioner has
been denied access to the property.
13. It may be true that the remaining property
in the possession of the petitioner was at a lower level
earlier. But, the fact remains that the petitioner has filled up
that property which is adjacent to the public road. The
petitioner therefore has a right to access the road from his
property. The reasons stated in Ext.P9 are therefore
unsustainable.
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The writ petition is therefore disposed of
directing the respondents to remove such number of
cement pillars / protection guide blocks in front of the
petitioner's property so as to give vehicular access to the
petitioner's property.
Sd/-
N. NAGARESH, JUDGE
aks/24.05.2025
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APPENDIX OF WP(C) 33597/2024
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPIES OF THE PHOTOGRAPHS OF
PROPERTY OF THE PETITIONER
Exhibit P2 TRUE COPY OF THE SKETCH OF PROPERTY
OF THE PETITIONER
Exhibit P3 TRUE COPY OF THE REQUEST DATED
2.6.2023 TO THE 1ST RESPONDENT
Exhibit P4 TRUE COPY OF THE RECOMMENDATION DATED
14.6.2023 OF THE 2ND RESPONDENT
Exhibit P5 TRUE COPY OF THE NOC DATED 21.12.2016
OF THE 1ST RESPONDENT
Exhibit P6 TRUE COPY OF THE REQUEST DATED
16.8.2023 TO THE 1ST RESPONDENT
Exhibit P7 TRUE COPY OF THE COMMUNICATION DATED
11.10.2023 OF THE 1ST RESPONDENT
Exhibit P8 A COPY OF THE JUDGMENT DATED
12.3.2024 IN W.P© 36433/2023
Exhibit P9 A COPY OF THE ORDER DATED 3.7.2024 OF
THE 5TH RESPONDENT
Exhibit P10 A COPY OF THE SKETCH OF THE PROPERTY
SHOWING THE ACCESS TO THE FLAT FROM
THE WESTERN MUNICIPAL ROAD
Exhibit P11 A COPY OF THE SURVEY SKETCH OF BLOCK
Exhibit P12 A COPY OF THE PHOTOGRAPHS OF RECENT
ORIGIN
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RESPONDENT'S EXHIBITS
Exhibit R1(g) The true copy of the railway Board
Guidelines dated 27.11.2001
Exhibit R1(a) The true copy of the judgement dated
12-03-2024 in WP(C) 36433/2023
Exhibit R1(b) The true copy of the proceedings of
Divisional Railway Manager (Works),
Southern Railway, Trivandrum dated
nil.
Exhibit R1(c) The true copy of letter No.
V/W.280/NOC/F.RS/1027 dated
21.12.2016 of Railway granting NOC
for the construction in the name of
petitioner for construction of
apartment building with access from
7m wide road on the western side of
the apartment building
Exhibit R1(d) The true copy of the NOC drawing
dated 21.12.2016 issued to the
petitioner
Exhibit R1(e) The true copy of the agreement
between petitioner and M/s Confident
group produced by the petitioner
dated 01.12.2018
Exhibit R1(f) The true copy of the rejection letter
issued by the 1st respondent on the
way leave petition dated 11-10-2023
