The determination of public roads' status requires a legal process; mere usage does not confer public rights when ownership remains private.

JUDGMENT :

Viju Abraham, J.

Above writ petition is filed challenging Ext.P4 order and for a consequential direction to respondent No.1, Secretary of the Grama Panchayat, to include the subject road in the asset register and to provide further maintenance and upkeep of the road.

2. Brief facts necessary for the disposal of the writ petition are as follows:-

Petitioners are residents of Ward No.9 of Peringome-Vayakkara Panchayat, of which the 1st respondent is the Secretary. The subject road is constructed through the property, which was earlier owned by respondents 2 and 3. When the party respondents had plotted their property and sold the residential plots, they had constructed the road through their property almost 50 years before. It is submitted that more than 40 people are regularly using the road for ingress and egress to their houses after they purchased the residential plots from the party respondents. The road constructed is uneven and non-motorable at many places. The 2nd and 3rd respondents are objecting to any type of improvement or tarring of the road. Even though the road was once private property, it has now got a public character since it is used by many people, and therefore the road now vests in the panchayat under the statutory fiction under the Kerala Panchayat Raj Act, 1994 (for short, ‘Act, 1994’). Since the road was in a dilapidated condition, the petitioners approached the 1st respondent for acquiring the road and further maintaining and developing it into a motorable way. The request submitted by the petitioners as Ext.P3 was rejected by the Panchayat in a mechanical manner as per Ext.P4 order, stating that the property owners are not willing to relinquish the land to the Panchayat. Petitioners submit that the issue is covered in their favour by the judgment of this Court in Mariam Beevi v. The Secretary, Athirampuzha Grama Panchayat & Others [2015 (3) KHC 199]

3. A detailed counter affidavit has been filed by respondents 2 and 3, objecting to the reliefs sought for in this writ petition. The primary contention raised is that Ext.P4 order is an appealable order, and without exhausting the alternate remedy available under law, they have rushed to this Court, filing the above said writ petition. It is further submitted that the private pathway was developed in their property and to reach their house, and it is used exclusively for their own personal purposes. The property now in possession of petitioners 1 to 7 are either sold by the respondents or from the successor in purchase after the sale of the properties to different persons including the petitioners, and that they are only permitted to use it for their ingress and egress and therefore the pathway developed by the party respondents from the main road to reach their residential house cannot be treated as a public road. Therefore, the prayer sought for in the writ petition to direct the 1st respondent, Panchayat to acquire the same without following the due process of law is absolutely without any basis. It is further submitted that the judgment in Mariam Beevi’s case was passed on a different factual situation and therefore cannot have any application in the facts of the present case. It is further submitted that the road in question is a private pathway to reach their property and admittedly not included in the asset register of the Panchayat. On the said contention, the respondents 3 and 4 sought for dismissal of the writ petition.

4. The learned Counsel appearing for the 1^st respondent, Secretary of the Panchayat, submits that they cannot take over the said road and include the same in the asset reg