Kerala High Court
Jabbar Puthenveedan vs Hmt Ltd on 25 October, 2019
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE A.M.BABU
FRIDAY, THE 25TH DAY OF OCTOBER 2019 / 3RD KARTHIKA, 1941
WA.No.2057 OF 2019
AGAINST THE JUDGMENT IN WP(C) NO.13026/2013(C) DATED 06.02.2019
APPELLANTS/PETITIONERS:
1 JABBAR PUTHENVEEDAN, AGED 48,
S/O. N.A. MOHAMMED, EX-COUNCILOR, IIND WARD,
KALAMASSERY, MUNICIPALITY, RESIDING AT
NELLIKKATHUKUZHI, PUTHENVEETTIL, PALLILAMKARA,
HMT COLONY P.O., KALAMASSERY, PIN-683504.
2 CHANDRIKA PADAMANABHAN,
COUNCILOR, 10TH WARD, KALAMASSERY MUNICIPALITY,
S/O. KRISHNAN THAMBI, KALLAMARATHODU HOUSE,
KORAKKOM PALLI TEMPLE ROAD, HMT COLONY P.O.,
KALAMASSERY, PIN-683504.
3 ASAINAAR,
S/O. ABOOBACKER, MUKALATH HOUSE, PALLILAMKARA,
HMT COLONY P O, KALAMASSERY-683504.
BY ADV. SRI.SIVAN MADATHIL
RESPONDENTS/RESPONDENTS:
1 HMT LTD., (FORMERLY HINDUSTAN MACHINE TOOLS LTD),
HAVING ITS REGISTERED OFFICE AT 59, BALLARY ROAD,
BANGALORE-500032 AND ITS OFFICE AT HMT COLONY P O,
KALAMASSERY, ERNAKULAM DISTRICT, REPRESENTED BY ITS
SECRETARY/ GENERAL MANAGER-682033.
2 SUB DIVISIONAL MAGISTRATE, FORT KOCHI-682001.
3 DISTRICT COLLECTOR,
CIVIL STATION, KAKKANAD-682030.
4 KALAMASSERY MUNICIPALITY, MUNICIPAL OFFICE,
KALAMASSERY, REP. BY ITS SECRETARY-682033.
W.A. 2057/2019 2
5 STATE OF KERALA,
REVENUE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, REPRESENTED BY THE PRINCIPAL
SECRETARY, PIN-695001.
R1 BY ADVS. SRI.SAJI VARGHESE
SMT.MARIAM MATHAI
R2 TO R5 BY SENIOR GOVERNMENT PLEADER
SRI.TEK CHAND
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
25.10.2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A. 2057/2019 3
JUDGMENT
Dated this the 25th day of October, 2019 S.Manikumar, C.J.
Being aggrieved by the order made in W.P.(C) No.13026 of 2013 dated 6.2.2019, instant writ appeal is filed.
2. Short facts leading to the appeal are that appellants are the local residents and claim usage of pathway starting from Jawaharlal Nehru Memorial Road/HMT Road leading to Chakkarakulam Public Pond. According to the appellants, HMT Ltd. (formerly Hindustan Machine Tools Ltd.), Bangalore, represented by Secretary/General Manager, respondent No.1, obstructed the appellants from using the pathway. Based on a complaint lodged by general public, Revenue Divisional Officer after conducting an enquiry, issued a provisional order directing respondent No.1 to remove the obstruction.
3. The 1st respondent, aggrieved by the above said order and the order of Municipality (Exhibit-P3), preferred O.S.No.839 of 2011 before the I Additional Munsiff's Court, Ernakulam. An alternate pathway was also suggested by the Sub Divisional Magistrate, Fort Kochi, respondent No.2. The said order was questioned by the 1 st respondent in Crl.R.P. No.25 of 2011 before the learned Sessions Judge.
W.A. 2057/2019 4
4. Before writ court, appellants/petitioners have contended that it is their fundamental right under Part III of the Constitution of India to use the pathway and, therefore, they have chosen to file W.P.(C) No.13026 of 2013 refuting the averments made in the supporting affidavit to the writ petition.
5. Opposing the relief sought for, HMT Limited, respondent No.1, has contended that the pathway claimed by the appellants will no longer in existence either before or after acquisition of lands by HMT Ltd. or assigned to them by G.O.(MS) No.237/72/ID dated 20.11.1972. The 1 st respondent has further stated that two of the owners of paddy fields, attempted to trespass upon HMT Estate. They also asked permission from the 1 st respondent to take tanker lorries. Permission was granted. Thereafter, they have filed O.S. No.1682 of 2003 before the Munsiff's Court, Ernakulam. However, the same was dismissed. Unsuccessful plaintiffs therein filed A.S. No.74 of 2010, which was also dismissed by the learned District Judge. Pursuant to the dismissal of the appeal suit, R.S.A No.249 of 2013 has been filed in this Court and the same is pending.
6. Before writ court, further contention has been made by the 1 st respondent that brother of the 1st plaintiff in O.S. No.1682 of 2003 filed W.A. 2057/2019 5 M.C. No.178 of 2009 before the Sub Divisional Magistrate, respondent No.2, alleging obstruction of pathway by the 1 st respondent herein. The 2nd respondent, after finding that the pathway blocked by the 1 st respondent can be kept by the HMT, directed that some other alleged road on the northern side may not be obstructed until substitute road is found for the residents of the locality. Being aggrieved, the 1 st respondent has preferred Crl.R.P. No.25 of 2011 before the Sessions Court. After adjudication, the matter was remanded back to the Revenue Divisional Officer for fresh consideration.
7. Said order passed by the learned Sessions Judge was challenged in Crl.M.C. No.65 of 2013 and that the same is pending.
8. While the matter stood thus, the 1st respondent has filed O.S. No.839 of 2011 before the I Additional Munsiff's Court, Ernakulam against Yasodharan, Divakaran, Lakshmikutty, the Secretary, Kalamassery Municipality, District Collector and others, for a declaration that alteration in the revenue records and survey plan in respect of 17 cents of land of the 1 st respondent in Sy. No.1023/5, Re-Sy. No.321/1 of Block No.6 of Thrikkakara North Village is without authority of law.
W.A. 2057/2019 6
9. Defendant Nos. 1 to 3 in O.S. No.839 of 2011 have filed O.S. No.944 of 2013 before this Court for a direction to the Sessions Court to dispose of Crl.R.P. No.25 of 2011 before the trial of O.S. No.839 of 2011 by the Munsiff's Court.
10. In W.P.(C) No.24056 of 2015, HMT Limited was respondent No.5. A detailed counter affidavit has been filed. Before writ court, Kalamassery Municipality, respondent No.4, has filed a counter affidavit stating that the land is vested with the Municipality. After hearing the learned counsel for the parties and considering the material on record, writ court in the judgment dated 6.2.2019 in W.P.(C) No.13026 of 2013 at paragraphs 11 to 14 ordered thus:
"11. The discussion of facts made above would make it clear that, the claims raised by the petitioners in the writ petitions are basically founded on easement right over a pathway allegedly obstructed by HMT Limited. It is an admitted fact that, 1st petitioner in W.P.(C) No.24056/2015 and others have filed O.S.No.1682/2003 before the Munsiff's Court, Ernakulam claiming easement right over the roads, claimed by the petitioners in these writ petitions. After elaborate consideration of the matter Ext.R5(b) judgment was rendered produced along with W.P.(C) No.24056/2015, which was affirmed by the appellate court in Ext.R5(c) and the second appeal filed by the plaintiffs is pending consideration before this court. It is clearly found that, the plaintiff W.A. 2057/2019 7 could not establish any easement right over the properties within the domain and possession of HMT limited. Even though an order could be secured from the Revenue Divisional Officer in a proceeding under section 138 of the Code of Criminal Procedure, it was set aside by the Sessions Court, as per Ext.R5(e) order and therefore, whatever directions issued under Ext.R5(d) order of the Sub Divisional Magistrate is no more in force. In fact as per Ext.R5(e) order the Sessions Court has remanded the matter to the Sub Divisional Magistrate for re-consideration after taking into account the contentions put forth by the respective parties. 12. But fact remains, the said order is under challenge before this court at the instance of the complainants in the proceedings before the Sub Divisional Magistrate. Therefore, in my considered view, there are no enabling orders in favour of the petitioners from any competent court to use the disputed roads as of right. Moreover, HMT Limited has disputed the rights and claims made by the petitioners stating that, the entire properties remaining with them are enjoyed by the company itself without any interference from any third persons and nobody is permitted to use the rights within the property of the HMT Limited.
13. True, Municipality has a case that, the roads are vested with the Municipality in accordance with the provisions of the Kerala Municipality Act, 1994, and has also submitted that, they are maintaining the roads in question. But it is interesting to note that, no documents are produced by the Municipality to establish that, there is vesting of roads or the purmaboke in which the ponds are situated. If the roads are maintained and the properties have become vested with the Municipality, definitely there would be records with the Municipality like Road and Property Registers. W.A. 2057/2019 8 Having failed to produce the same, the contentions put forth by the Municipality that, the roads and the puramboke property are vested in the Municipality by virtue of the provisions of Act, 1994 cannot be sustained under law. Moreover, it is quite clear and evident that, the claim raised by the petitioners over the property belonging to HMT Limited are surmounted by disputed facts and to top-up all in a writ petition petitioners cannot raise any claim of easement. So far right of easement is concerned, unless and until the open, continuous and uninterrupted user of the road and any property as is statutorily fixed is asserted and proved before a competent civil court, it cannot be granted. So also such an exercise is not expected to be undertaken by this court in writ proceedings under Article 226 of the Constitution of India. Above all the discussion made above, makes it clear, there is material suppression of facts in respect of the earlier suit proceedings, but I leave it at that.
14. In that view of the matter, I have no doubt in my mind to hold that, petitioners are not entitled to get any relief as is prayed for in the writ petitions, especially due to the reason that, petitioners have failed to establish any arbitrariness, illegality or other legal infirmities on the part of HMT Limited, justifying interference of this court under Article 226 of the Constitution of India. Resultantly, writ petitions fail, accordingly they are dismissed."
11. Being aggrieved, instant appeal is filed on the following grounds:
"A. The appellants approached this Hon'ble Court seeking direction to remove the obstruction caused by the 1 st respondent in the public pathway leading from JNM Road to Chakkarakulam Pond, W.A. 2057/2019 9 which has been used by the appellants as well as the general public of that area. In support of this relief sought the statutory authorities respondents 2 to 4 were not filed written submission regarding the existence of the public pathway and also the obstruction caused by the 1st respondent. The crucial fact was not at considered by the learned Single Judge in its right perspective.
B. The learned Single Judge solely related upon some documents filed by the 5th respondent in the other writ petition WP(C) No.24056/15, which have no relevance for the adjudication of the relief sought by the appellant in the instant writ petition.
C. Pursuant to the direction of this Hon'ble Court counter affidavit was filed by the 2nd respondent in which it was clearly stated that 1st respondent had unauthorizedly blocked the public pathway comprised in the land already taken possession of by the Revenue authorities and created hardship to the users of the public pathway by digging trenches and erecting pillars by using JCB. Similarly, in the very same affidavit, it is also further stated that as revealed from the report of the village officer and also the Revenue records the 1st respondent had unauthorizedly blocked the public pathways creating hardship to the nearby residence without any sort of right, title or interest in the sand lands. These crucial facts were also not appreciated by the learned Single Judge.
D. It is submitted that as per Exhibit R2(b) it is specifically stated that the public pathway was obstructed by the 1 st respondent unauthorizedly creating obstructions for the use of the general public. This crucial fact was also not appreciated by the learned Single Judge."W.A. 2057/2019 10
12. Though Mr.Sivan Madathil, learned counsel for the appellants, reiterated the averments made in the writ petition and the grounds extracted supra, this Court is of the view that the lis in O.S. No.1682 of 2003 on the file of the Munsiff's Court, Ernakulam, is as to whether it was a public pathway and whether there is any easement right to the plaintiffs therein and that after trial, the learned Munsiff has dismissed the suit. Appeal filed by the unsuccessful plaintiffs was also dismissed affirming the judgment and decree of the learned Munsiff. Second appeal filed by the plaintiffs is pending consideration before this Court.
13. It is trite law that the decree cannot be set aside in a proceedings under Article 226 of the Constitution of India. Besides, plaintiffs therein have also filed R.S.A No.249 of 2013 before this Court.
14. Brother of the 1st plaintiff in O.S. No.1682 of 2003 had filed M.C. No.178 of 2009 before the Sub Divisional Magistrate, Fort Kochi alleging obstruction of pathway by the HMT Limited. The order passed by the Revenue Divisional Officer has been challenged by HMT Limited in Crl.R.P. No.25 of 2011 before the learned Sessions Judge. However, the learned Sessions Judge remanded the matter to the Revenue Divisional Officer, for fresh consideration. Said order is under challenge in Crl.M.C. W.A. 2057/2019 11 No.65 of 2013, which is stated to be pending before this Court.
15. Apart from the above, the 1st respondent herein has filed O.S. No.839 of 2011 before the I Additional Munsiff's Court, Ernakulam against Yasodharan, Divakaran, Lakshmikutty, the Secretary, Kalamassery Municipality, District Collector and others, for a declaration as stated supra.
16. As rightly observed by writ court, issue is as to whether it is a public pathway or the appellants had any easement right over the pathway and thus obstructed are subject matter of evidence. Though the learned counsel for the appellants contended that the appellants are not parties to the suit, issue is one and the same. Writ court also perused the documents, to establish that proceedings have been taken place in O.S. No.1682 of 2003 before the Munsiff's Court, Ernakulam as Exhibit-R5(b), judgment of the appellate court as Exhibit-R5(c), Exhibit-R5(d) order passed by the Sub Divisional Magistrate dated 29.12.2010, Exhibit-R5(e) of the Sessions Court, Ernakulam dated 10.09.2013 and Exhibit-R5(f) copy of the plaint submitted by HMT Limited in O.S. No.839 of 2011 and has rightly come to the conclusion that the subject matter of the two proceedings were regarding pathway.
17. Though the learned counsel for the appellants submitted that W.A. 2057/2019 12 the pathway is vested with respondent Municipality, writ court has held that no documents have been produced by the Municipality to establish that there was vesting of roads or the puramboke in which the ponds were situated and that no records are placed to substantiate that the pathway was maintained by the Municipality. Writ court has rightly come to the conclusion that aspect of easement as to whether it was open, continuous and uninterrupted can be established only in civil proceedings and not in a proceeding under Article 226 of the Constitution of India, and dismissed the writ petition.
18. Going through the entire material on record, we find that there is no manifest error warranting inference.
Writ appeal is dismissed.
Sd/-
S. MANIKUMAR, CHIEF JUSTICE Sd/-
A. M. BABU, JUDGE krj //TRUE COPY// P.A. TO JUDGE