A street maintained by the Corporation can be declared public upon majority request of property owners, irrespective of a single opposing owner's objection.

The petitioner and his brother Narayanan jointly owned 34.5

cents of land comprised in old Sy.No.889/2 of Cheranallur Village, Ernakulam District. When they partitioned the property in the year 1987, a small extent of land was set apart for a pathway to be used as common access to the properties from the nearby public road (Chandy Road). Later, the properties were sold in parcels to various persons with the right to use the pathway for access to their respective plots. Over a period of time, the pathway got converted to a private street with electric posts and a common drainage. Gradually, maintenance and repair work of the street was taken over by the Corporation. While so, the Corporation decided to declare the private street as a public road and to include the road in its asset register. This move was W.P.(C) No.6847 of 2023 opposed by the petitioner, contending that the land over which the street is laid belongs to him and persons residing on either side of the street have only the right to use the road. Petitioner even moved suit seeking a declaration that the subject street is a private street and prayed for a prohibitory injunction restraining the Corporation and others from converting the private street into a public road without following due process of law. According to the petitioner, in spite of filing the suit, the second respondent, who is the ward councillor, attempted to carry out renovation work of the road, leading to a law and order situation and filing of complaints before the police. While so, the residents on either side of the street approached the High Court contending that the street is in a dilapidated condition and since the Corporation had decided to include the street in its asset register, is therefore bound to carry out repairs immediately. That writ petition [W.P. (C) No.16619 of 2022] was disposed of by Ext.P5 judgment, directing the Secretary of the Kochi Municipal Corporation to take immediate decision on the representation submitted by the residents. The petitioner, who was not made a party to W.P.(C) No.16619 of 2022, became aware of the decision taken by the Kochi Corporation to include the private street in its asset register only on receipt of a copy of the judgment. Thereupon he filed the W.P.(C) No.6847 of 2023 instant writ petition, seeking the following reliefs;

“i) To issue a writ of mandamus or any other writ, order or direction to the first respondent prohibiting him from including the subject pathway as part of the asset register of the Corporation without following the due procedure prescribed under the statute;

ii) To issue a writ of mandamus or any other writ, order or direction calling for the records leading to the passing of Exhibit P6 and quash the same as illegal.

iii) To grant stay of all further proceedings pursuant to Exhibit P6 pending final decision in O.S.No.135 of 2023 on the file of the Hon'ble Munsiff Court at Ernakulam.”

2. Heard learned Counsel for the petitioner and the respondents.

3. The question arising for consideration is regarding the legality and validity of Ext.P6 decision of the Corporation Council deciding to declare the subject street as a public street. Going by the undisputed facts, the subject street has been used by the public for the past many years and the street is being maintained by the Corporation. Electricity poles have been erected on its side and a drainage has also been constructed. Pertinently, except the petitioner, owners and occupiers of the properties/buildings on W.P.(C) No.6847 of 2023 either side of the street have given consent for declaring the street as a public street and including it in the asset register of the Corporation.

4. The factual scenario being as above, Sections 359 to 363 of the Kerala Municipality Act , 1994 ('the Act' for short), dealing with private streets assume importance. As per Section 359 of the Act an owner of any land, utilising, selling, leasing or disposing the land or any portion or portions o