SREEJAYAN Vs. DISTRICT COLLECTOR,KOZHIKODE

JUDGEMENT

(1.) 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.

(2.) 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 dtd. 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 3 rd 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 coownership 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-AreacodeEdavanna 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.

(3.) 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.