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Judgment
T.R. Ravi, J
The petitioners, three in number, are the children of one Parangodan. They jointly own an extent of 11.73 Ares of land in Sy.No.265/69 of Thazhekode Village in Mukkam Municipality of Kozhikode District. The property is situated on the north-eastern side of Kozhikode-Mukkam PWD Road, opposite the Mini Civil Station at a place called Agasthyanmuzhi. In 1992, the petitioners had transferred 6 cents of land to one Appukuttan and in 1995, an extent of 5 cents was sold to one Bharathan. Bharathan had later transferred the properties to one Mohan Babu, who had subsequently transferred the same to one T.S.Mathew, who is the present owner in possession of 5 cents. The properties transferred in 1992 and 1995 are having direct access to the PWD Mukkam Road. There is a 3.12-Metre-wide Road in between the two properties sold, to connect the petitioner's property to the PWD road. There is also a 13.3 Metre direct access to the PWD road from the property of the petitioners at the southern portion of the road. The petitioners have not partitioned the properties between them.
The petitioners are aggrieved by the proposal of the respondents to construct a resting home and bus stop facing the Mini Civil Station completely closing and obstructing the entry to the petitioners' property from the main road. Ext.P1 is the rough sketch of the property prepared by the petitioners, which would show the plot sold by the petitioners, the road in between the said properties, and the manner in which the property remaining with the petitioners is having access to the PWD road. The petitioners have submitted objections to the construction on 28.1.2021, which is produced as Ext.P4. They filed W.P.(C)No.3125 of 2021 before this Court and it was submitted on behalf of the 1st respondent that no permission had been granted to the other respondents to proceed with the construction. Based on the above submission, the writ petition was disposed of by Ext.P5 judgment dated 10.2.2021. Thereafter, the 3rd respondent considered the matter. The 1st petitioner appeared before the 3rd respondent representing himself and petitioners 2 and 3. It is specifically submitted that out of 29 cents, 19 cents belong to petitioners 2 and 3 and any obstruction will cause serious hardship to the petitioners and enjoyment of their property. The 3rd respondent had on 3.3.2021 issued Ext.P6 order authorising the Municipal Engineer to proceed with the construction in the plot earmarked as a road margin by respondents 1 and 2. The reasoning of the 3rd respondent is that since the property has not been divided among the petitioners, the 3rd respondent is duty bound to implement the construction under the Scheme known as “Take a break”. The petitioners contend that under law, every co-owner has a right to have joint ownership over every inch of the property jointly owned by them, and hence the reasoning in Ext.P6 is totally unwarranted. It is submitted that the 3rd respondent has failed to understand the concept of co-ownership rights and the legal incidents of such rights. It is further submitted by the petitioners that there is a proposal for widening of the Koyilandy-Thamarassery-Mukkam-Areacode-Edavanna road by the KSTP under the “Rebuild Kerala Project” and if the “Take a Break” project is implemented, it will stand in the way of widening of the road. Ext.P7 produced by the petitioners is the communication received from the office of the 2nd respondent stating that no permission has been granted for the road development. As an alternate, the petitioners have pointed out that sufficient area adjacent to the site earmarked by the Municipality for the construction of a heritage park is available for implementing the project and it is submitted that sufficient open vacant space is available in the compound which is of an extent of 1.75 Acres. It is also submitted that if the resting home is constructed inside the Mini Civil Station compound, a sufficient parking facility can also be provided. Highlighting the above aspects, the petitioners had submitted Ext.P9. Aggrieved by Ext.P6, the petitioners had filed W.P.(C)No.6434 of 2021 which was disposed of on 8.7.2021 directing the 1st respondent to intervene in the issue, consider the grievance of the petitioners and take a decision after hearing the petitioners as well as the 3rd respondent. Ext.P10 is the judgment in W.P.(C)No.6434 of 2021. The 1st respondent thereafter considered the matter. A report was submitted by the Village Officer regarding the viability of the project at the location to the Tahsildar, Kozhikode, which has been produced as Ext.P11. In Ext.P11, it is specifically stated that the petitioners will be deprived of their entry into their property if the construction is made as proposed. At the hearing held on 12.11.2021, the petitioners submitted that the 1st respondent had made suggestions regarding the alternate site as well as the hindrance that may be caused for providing drainage and widening of the road if the resting home is constructed on the proposed site. However, by Ext.P12, the 1st respondent rejected the request of the petitioners citing the same reason that the property is not divided among the petitioners and there is a way from the 1st petitioner’s property to the PWD road. The writ petition has been filed in the above circumstances.
The 3rd respondent has filed a counter affidavit. The contention of the 3rd respondent is that the access to the petitioners' property is not affected by the proposed construction.
It is stated that the way referred to between the properties which have been sold by the petitioners does not really exist. It is also stated that 13.3 Metres length of access is available and since the construction is made after leaving 1.2 Metres on one side and 2.5 Metres on the other side, there is sufficient space for entry into the properties of the petitioners even after partition. Regarding the legal contention that the petitioners are entitled to access at every point where their property abuts the road, it is submitted that such a right is not absolute and it is open to the statutory authorities to erect obstructions by way of electric posts, telephone posts, bus waiting shed, etc. Reference is made to the decision in Joseph v. District Magistrate reported in [1996 (2) KLT 490]. It is further contended that the Government of Kerala through Suchitwa Mission has evolved the scheme named “Take a break” to provide resting centres to the public and it is under such scheme that the proposed construction is sought to be made. It is stated that except for this property, no other area was found suitable for the project. Along with a counter affidavit, the site plan, building plan, technical sanction, etc. have also been produced to show that necessary care has been taken to consider all relevant aspects. It is also stated that tender was already invited from eligible contractors and an agreement has also been executed with the contractor who was chosen for the work. It is further submitted that after the directions issued by this Court in the earlier writ petitions, the writ petitioners were heard, and their objections were meticulously considered and it is only thereafter that Ext.P12 was issued. Photographs have also been produced to show that the work has already begun.
The petitioner has filed a reply to the counter affidavit filed by the 3rd respondent. It is contended that even though it is stated in the counter affidavit that sufficient space has been left on either side of the construction, no such stand was taken before the 1st respondent and the same is not reflected in Ext.P12 order also. The petitioners point out that it can be seen from Ext.P2 photograph that there is a clear way between the two properties which had been sold by the petitioners earlier. It is further submitted that the alternate site pointed out by the petitioners was never considered by the 1st respondent while passing Ext.P12 order. It is submitted that no attempt was made even to consider the feasibility of the said site. Ext.P14 has been produced along with the reply affidavit, which is a site inspection report prepared by the Junior Superintendent, to submit that alternate land is available in the compound of the Civil Station and PWD Puramboke. It is further submitted that the contention that the implementation of the project at the proposed site will not affect the widening of the road is belied by Exts.P7 and P8.
The 1st respondent has filed a counter affidavit. Ext.P12 order is justified for the same reasons stated in the order. The petitioners have filed a reply to the counter affidavit filed by the 1st respondent also, producing additional documents received on request under the Right to Information Act from the KSTP Division, Kannur. The above documents are relied on to support the contention that there is a proposal to widen the road.
Heard Sri Sethumadhavan.T., Senior Counsel, instructed by Smt.P.V.Preethi on behalf of the petitioners, Sri Suresh Kumar Kodoth, Standing Counsel for the 3rd respondent, and Sri B.S.Syamanthak, Government Pleader, on behalf of the respondents 1 and 2.
In the decision in Joseph (supra), this Court had held that an owner of land adjoining a highway has a right to have access to the highway at all points where his land adjoins the highway. There is an observation that it may be possible for the statutory authority to erect obstructions in the highway, such as electric posts, telephone posts, bus shelters, etc. which may invade the private right of land owners abutting the highway. The above decision was rendered in the context of parking of taxi cars on the side of the highway, obstructing the private right of land owners. This Court had referred to several English decisions and Corpus Juris Secundum to highlight the rights of owners of properties adjoining the highway. The Court also has referred to the Indian decisions on the point in Sheo Narayan v. Din Dayal [AIR 1931 Nagpur 189], Muhammed Dirmian v. M.V.Alirajoo Koorad [AIR 1931 Patna 418], Beli Ram v. Sib Ram [AIR 1921 Calcutta 271] and several other cases including a decision of this Court in Tanoor Panchayat v. Kunhamutty [1978 KLT 813], which have all laid down the law that an owner of land adjoining a highway is entitled to, as a matter of private right, access to such highway at any point at which his land actually touches it. The Court went on to hold that the public right of passage is subject to the private right of the land owner's right of access to the highway and if a footpath intervenes between a highway and adjoining premises, the owner of the premises is entitled to access across the footpath to the highway for any kind of traffic which is necessary for the reasonable enjoyment of his premises. In Municipal Board, Manglaur v. Mahadeoji Maharaj reported in [AIR 1964 SC 1147], the Hon'ble Supreme Court had considered the right of a Municipality to erect constructions on the side of the road which is under their management. After considering the law in detail, the Hon'ble Supreme Court concluded that the Municipality cannot put up any structure on the public pathway, which is not necessary for the maintenance or user of it as a pathway and it cannot be said that putting up of the structures for installing the statue of Mahatma Gandhi or library is necessary for the maintenance or user of the road as a public highway. The Court held that the owner of the soil would certainly be entitled to ask for an injunction restraining the Municipality from acting in excess of its rights, but at the same time cautioned that such claimant cannot ask for possession of any public part of the pathway as it continues to vest in the Municipality. In Tanoor Panchayat v. Kunhamutty [1978 KLT 813], the scope of the private right to access to highway was considered. After referring to the English Law and judgment in Municipal Board (supra), the Court held that the plaintiff in the said case is entitled to access to the road at every point where his property touches the road. [See also P.K.Wariyar v. State of Kerala & Ors. [1989 (2) KLT 867], Godavari Bai v. Cannanore Municipality [1984 KLT 1103], Govinda Rao v. District Collector [1983 KLT 328], Sundaram Ayyar v. Municipal Council [(1902) ILR 25 Madras 635)], and Ummaya Hamza v. Calicut Corporation & Ors. [2020 (6) KHC 305].
The legal position is well settled in view of the aforesaid decisions. Applying the principles to the facts of this case, it can be seen from the impugned orders that the reason stated for rejecting the claim of the petitioners is that the petitioners have not yet partitioned their properties and that they can utilise the 13.3 metres portion available for access. When the law says that the petitioners are entitled to access from all the points where their property adjoins the highway, it is not open to the respondents to lay restrictions on such a right. On the facts of the case, it is not feasible for each of the petitioners to have access from the road to the portion that may be set apart to their share when they partition the property among themselves. The proposed construction clearly affects the access and the same cannot be permitted having regard to the law laid down in the various judgments cited above. A reading of the impugned orders also shows that there has been no consideration at all about the feasibility of the alternate sites pointed out by the petitioners. That apart, it is also evident that the existing road is proposed to be widened, which would make any constructions made on the margin an unnecessary burden on the public exchequer. That the proposed construction is on the road margin is admitted. It is thus very much part of the street as well as a part of “street alignment" as defined in the Kerala Municipality Act, 1994.
In the result, the writ petition is allowed. Ext.P12 order is quashed. There will be a direction to the respondents not to cause any obstruction to the free access of the petitioners to their property comprised in Survey No.265/69 of Thazhekode Village in Mukkam Municipality, adjoining Kozhikode-Mukkam PWD road, by making any construction in the road margin. The respondents are, however, at liberty to implement the project “Take a Break” in such other location, for which they may also consider the alternate sites suggested by the petitioners in Ext.P9 representation.