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2021 Supreme(Online)(KER) 21721
HIGH COURT OF KERALA
SUNIL THOMAS, J
RASHEED PARAKKAL – Appellant
Versus
THE SECRETARY, KOTTILANGADI GRAMA PANCHAYATH, – Respondent
WP(C)/21191/2020
ALEX M SCARIA SRI.A.J.RIYAS SMT.SARITHA THOMAS KUM.MINU THANKAPPAN SRI.K.T.SIDHIQ SRI.E.C.AHAMED FAZIL
Property owners have an unqualified right to access their property from public roads, which local authorities must protect against unauthorized obstructions.
Headnote:
Access - Property Rights - Kerala Panchayat Raj Act - Sections 227, 228, 72, 117
Fact of the Case:
The petitioner owns a property with a commercial building obstructed by illegal autorickshaw parking, impeding access. Despite complaints to local authorities, no resolution was achieved, leading to the petition for ingress and egress rights from the main road.
Finding of the Court:
The court found that the petitioner's right to access his property from the main road was obstructed by unauthorized autorickshaw parking, balancing property rights against the public use of space. The local authorities failed in their duty to provide alternative parking.
Issues: Whether the autorickshaw parking obstructs ingress and egress to the petitioner's property and whether local authorities have a duty to provide alternative parking solutions.
Ratio Decidendi: The court established that an owner has an absolute right of access to their property from all points of their boundary facing a public road, providing for regulatory measures to ensure this right against unauthorized obstruction.
Final Decision: The court ordered the removal of autorickshaw parking in front of the petitioner’s property and directed local authorities to identify a suitable parking space within three months.
JUDGMENT
The petitioner is the owner in possession of 10 cents of land comprised in Sy.No.16/2A of Kootilangadi village, covered by Exts.P1 and P2 registered sale deeds of the year 2007. He had constructed a commercial building in the above property located in Ward. No.3 of of Kootinalngadi Grama Panchayat and was allotted Building Nos.320A to F. The above building faces the Kootilangadi Valikappatta PWD Road. Exts.P3 to P3 (e) are the ownership certificates in relation to the above building which was constructed by him for the purpose of starting a super bazar. Since Ext.P3 building was proposed to be used for running a super market, he constructed the building leaving sufficient space in front of the shop room, in addition to the space required to be left as per the building Rules. Trade licence obtained by him was produced as Ext.P4 and GST Regisration Certificate as Ext.P5. The purpose of the above building is shown as starting of super market.
2. The building is located in busy junction facing main road and a bye lane on its side. According to the petitioner, he is entitled to have ingress and egress from every point of the main road to his property. However, about 100 autorickshaws belonging to different persons are parked in front of Ext.P1 building without leaving any point of access to the building premises. Thus, the ingress and egress to the petitioner’s property and building is completely blocked . Respondent Nos 5 & 6 are the persons leading the above illegal parking. Respondents 8 to 47 are the autorickshaw drivers who are parking their vehicles in front of the commercial building. The photographs evidencing the parking of the autorickshaws in front of the building was produced as Ext.P6.
3. Accordingly, he submitted Ext.P10 representation dated
23/6/2020 to the first respondent, who is the secretary of Kottilangadi Grama Panchayat. Ext.P11 complaint was submitted to the second respondent, the station house officer, on 16/8/2020. Ext.P11 is the representation submitted to the first respondent and Ext.P12 is the same representation given to the 2nd respondent SHO. Ext.P14 was a representation given to the first respondent which was replied by Ext.P15. Ext.P16 was the complaint given by him to the 4th respondent who is the regional transport officer, Malappuram. The grievance of the petitioner is that in spite of Exts.P1 to P16 complaints given to various authorities ,his grievances have not been looked into and redressed.The prayer sought in the writ petition was to issue writ of mandamus or direction to respondents 1 to 4 to remove the illegal parking of autorickshws in front of Ext.P1 land and Ext.P3 building in a permanent way and by ensuring that the access to Ext.P1 land from Kootilangadi Valikapatta PWD Road is not blocked due to such autoricksaw parking.
4. Notices were served on all the respondents. Separate counter affidavits were filed on behalf of the some of the respondents. Heard both sides and examined the records.
5. In the counter affidavit filed by the first respondent -Secretary of the Grama Panchayat, it was admitted that Ext.P1 property with the building situated therein belonged to the petitioner. According to Panchayath, autorickshaws stand in dispute has been functioning there for more than 25 years. The area in which autorickshaws were parking on the road side of PWD road had enough width to accommodate them. However, there is no other suitable or convenient place in Padinjattumuri town where the road margin has enough width to park authorickshaws. However, the request made by the petitioner was placed before the Traffic Regulaory Committee headed by the President of the Panchayat for consideration. Though the President tried to settle the issue locally, it could not be settled. Due to the pandemic, subsequent meeting of Traffic Committee could not be held. Thereafter, on the request of the Panchayat, Traffic Advisory Committee met on 23/10/2020 . In that meeting it was decided to invite autoric
