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2024 Supreme(Online)(KER) 37859
HIGH COURT OF KERALA
M.A. ABDUL HAKHIM, J
VIJAYAN – Appellant
Versus
SHAHNA – Respondent
RSA 146/2022
Landowners have a right to access highways, and injunctions can be sought against unauthorized constructions obstructing such access, without needing to join the local Panchayat as a party in the suit.
Headnote:(A) Kerala Panchayat Raj Act - Sections 170(1) and 220(a) - Mandatory and prohibitory injunctions against construction obstructing access - Suit dismissed as the Panchayat was not a necessary party, and defendants' involvement in construction was established - The appeal was dismissed as the suit only sought injunctions without declaratory relief. (Paras 9, 10, 16)
(B) Common law principle - Landowners are entitled to access to highways at points where their land touches the highway, which was upheld in the appellate court's findings. (Paras 16)
JUDGMENT
1. The Defendants in a suit for mandatory and prohibitory injunctions are the appellants in this appeal. The mandatory and prohibitory injunctions are sought with respect to Plaint B Schedule property.
2. The Plaint B schedule property is a structure consisting of basement, pillars and roof situated on the southern footpath of Ezhipram- Parippally Road on the northern side of Plaint A Schedule of 43.73 ares belonging to the 1st plaintiff. The 2nd plaintiff is the grand father of the 1st plaintiff who has been managing the Plaint A schedule property.
3. The parties are referred according to their status before the Trial Court.
4. The suit was filed initially seeking prohibitory injunction to restrain the defendants from constructing a waiting shed on the road in front of Plaint A Schedule property with the averments that the said contruction would cause obstruction to the access from Plaint A Schedule property to the main road.
5. When the construction of the Waiting Shed was completed during the pendency of the suit, the Plaint was amended to incorporate a relief for mandatory injunction to remove Plaint B Schedule Shed.
6. The defendants opposed the prayers in the suit contending that it is not an illegal construction, that the Grama Panchayat has given Ext.B1 permission for construction; that it is not a new construction, but only a reconstruction of an old shed; that the construction was not made by the respondents; that the public have constructed it after getting sanction from the Panchayat Authorities; that the suit is bad for non joinder of necessary parties as the Panchayat and the Public are not made parties.
7. On the side of the plaintiff PW1 & PW2 and Ext.A1 to A4 were marked and on the side of the defendants DW1 examined Ext.B1 was marked. The Commission Report, Mahazar and Sketch were marked as Ext.C1, C2 and C3.
8. The Trial Court by judgment dated 18.12.2018 dismissed the suit holding that, the Panchayat who is necessary party is not not impleaded in the suit and that no decree can be passed against the defendants as they have no role in the construction.
9. The 1 st plaintiff filed the A.S No. 62 of 2019 before the First Appellate Court and the First Appellate Court allowed the appeal with costs setting aside the judgment and decree passed by the Trial Court and decreeing the suit ordering the defendants 1 to 4 to dismantle the Plaint B Schedule Structure at their cost or in the alternative, permitting the plaintiff to dismantle the structure and recover the entire expenses from defendants 1 to 4 jointly and severally. A permanent prohibitory injunction was also issued restraining the defendants, their men and agents from marking any construction interfering with the free enjoyment of the plaint A schedule property by the plaintiff and obstructing or reducing the road frontage of the plaint A schedule property .
10. This Regular Second Appeal is filed challenging the judgment of the First Appellate Court. This Court issued notice before admission and hence the respondent appeared in this appeal. Both the counsels for the appellant as well as for the respondents were heard.
11. The counsel for the appellant submitted that, since the plaint B schedule waiting shed was constructed with the permission granted by the Grama Panchayat as per Ext.B1 and there is specific averment in the plaint that the plaint B schedule waiting shed is under the management of the Panchayat, the Panchayat is a necessary party in the suit and hence the suit is bad for non joinder of necessary parties. According to him, the construction of the plaint B schedule waiting shed was not a new construction, it is only a reconstruction of the existing bus stop. He also contended that, the defendants are not the persons who constructed the plaint B schedule waiting shed and hence decree should not have been passed by the Appellate Court against them.
12. On the other hand, the counsel for the respondents submitted that the suit is only for an injun
