ACHANKUNJU Vs. I T PARK KUNDARA

JUDGEMENT

(1.) THE petitioners in this writ petition are residents of Edakkara, in Perayar Panchayat. THEy are residing opposite to the properties of the 2nd respondent. Edakkara and the properties of the 2nd respondent are divided by Ashtamudi lake. More than 200 families are residing in Edakkara. According to the petitioners, their only access to the outside world is through a wooden bridge for reaching C.P. Road, which is named after Sir. C.P. who was the founder of Kerala Ceramics, the 2nd respondent herein. A portion of the properties owned by the 2nd respondent has been given to the 1st respondent. THE petitioners are now aggrieved by the action of the 1st respondent in constructing a boundary wall surrounding the C.P. Road obstructing and preventing entrance from Edakkara to C.P. Road through the wooden bridge. According to the petitioners, the said road and wooden bridge are used by the people of Edakkara for more than 100 years. THErefore, if the boundary wall is completed, the petitioners and the local people will have no road access is their contention. Petitioners therefore seek the following reliefs: i. Issue a writ of mandamus or any other appropriate writs, directions or orders commanding respondents 1 and 2 not to construct a boundary wall preventing road access to Edakkara through the wooden bridge to the C.P. road and prevent construction of boundary wall obstructing road access from Edakkara to C.P. road. ii. Issue a writ of mandamus or any other appropriate writs, directions or orders commanding the respondents to consider Ext.P3 petition and to stop the construction of boundary wall preventing road access to Edakkara through the wooden bridge to the C.P. road and prevent construction of boundary wall obstructing road access from Edakkara to C.P. road.

(2.) THE respondents 1 & 2 stoutly oppose the prayers in the writ petition. According to them, the properties have been intended to be put to use for a new project and unless the project area is enclosed by boundary walls it would impede the progress of the project itself. THEy would submit that, the petitioners have an alternate route through which they can have access to other places and therefore it is not necessary to go through the wooden bridge in question at all.

(3.) I am of opinion that, the issue involved in this writ petition cannot be decided on the basis of affidavits. Petitioners claim that they are using the wooden bridge as access to the C.P. Road for 100 years. If that is correct, a question of easement would certainly arise. If that be true, Government entities like respondents 1 & 2 cannot arbitrarily foreclose their right of way through the wooden bridge. Therefore, I am of opinion that, the petitioners should be given an opportunity to approach the civil court to seek redressel of their grievances by establishing their right of easement through the wooden bridge and the road to C.P. Road. Naturally if in the meanwhile the access is closed, they would be prejudiced. In the above circumstances, this writ petition is disposed of with the following directions: The petitioners shall file a suit within 10 weeks from today seeking reliefs in respect of the above subject matter. The respondents would treat the writ petition itself as a notice under Section 80 of the Code of Civil Procedure. Within the said time, the petitioners shall file the suit and move the court for interim orders. Till then, the respondents shall not obstruct the petitioners using the wooden bridge for access to the C.P. Road. I make it abundantly clear that, I have not considered the merits of any of the contentions of either parties on merits and it is absolutely within the purview of the civil court to consider every aspect of the matter on its merits, either at the interim stage or at the final stage.