DILIP CHERIAN Vs. ASSISTANT EXECUTIVE ENGINEER

JUDGEMENT

(1.) THE petitioner is the owner in possession of a plot comprised in Survey No.173/5 of Elamkulam Village that abuts the Pulleppady - Thammanam road. This writ petition has been filed mainly with the following prayer:-

(2.) THE sum and substance of the contentions of the petitioner is that being an owner of a land adjoining to a highway he is having the absolute and indefeasible right to have access to it and vice versa at all points where his land adjoins the highway. It is contended that the petitioner being a highway abutter the action on the part of respondents 1 and 2 in putting up structures in an area having a length of about 12.80 mts. covering that much extent of his road frontage invades the aforesaid right and as such the said obstructions are liable to be abated. The said obstructions are in the form of small platform and basement of certain pillars as revealed from Ext.P3. It is further contended that putting up such structures on public road side would obstruct the smooth flow of traffic, as well. Ext.P4 is a photograph showing the position of such structures put up by respondents 1 and 2. The petitioner has submitted Ext.P5 before the third respondent, with onward copies to respondents 1 and 2 requesting for the removal of the aforesaid obstructions. It is contended that the third respondent is having a statutory duty in terms of Section 367 of the Kerala Municipality Act to remove such obstructions, but failed to discharge the same. It is in the said circumstances that he filed this writ petition with the aforesaid prayer.

(3.) THE learned counsel appearing for the petitioner relied on a number of decisions such as Damodara Naidu v. Thirupurasundari Ammal (AIR 1972 Madras 386), Manglaur Municipality v. Mahadeoji Maharaj (AIR 1965 S.C. 1147) and Tanoor Panchayat v. Kunhiamutty (1978 K.L.T. 813) to contend that being an owner of a plot that abuts a public road he got right to have access to the same at all points from his property and vice versa. Before considering the contentions relying on the aforesaid decisions, certain indisputable facts and certain relevant aspects require to be highlighted. The learned Standing Counsel for respondents 1 and 2 submitted that the road frontage of the property of the petitioner is about 40 metres, that the structures allegedly causing obstruction cover only a length of about 7 mts. and that the distance from the point of position of the said structures to the gate put up by the petitioner in front of his property is about 10 mts. Though the petitioner disputes the distance and claims it to be 12.80 mts., there is absolute absence of any case for the petitioner that such structures were put up in such a manner to block his ingress and egress through the gate that was put up in front of his property. In that context, it is also to be noted that the petitioner had not specifically stated in the body of the writ petition that he had already constructed a compound wall on the front side of his property and put up a gate at its eastern end. However, Ext.P4 series of photographs produced by the petitioner would show the position of the structures and they would virtually support the submission made on behalf of respondents 1 and 2 regarding existence of a compound wall on the front side of the petitioner's property and also the gate at its eastern side. In view of the said position discernible from Ext.P4 series the petitioner also did not dispute the existence of the compound wall and also the gate. Now, the question is after constructing a compound wall and putting up such a gate at the eastern end of his property to gain access to the road, can the petitioner be heard to contend that the structures in question which were put up towards the western end and at a considerable distance of about 10 mts. from the gate and that too, in the space between the road and the public drain that runs in front of his property, cause obstruction to his ingress and egress and therefore, liable to be removed. The inapplicability of those decisions to the facts of this case can be brought by merely looking into facts of those cases. All those decisions were rendered in civil disputes raised by the concerned parties. In Damodara Naidu's case (supra), the respondents therein who are private parties attempted hastly to put up a wall on the west of item No.2 involved in that case in such a manner completely preventing the appellants therein from having access from their lands to the highway.