Kerala High Court
Ummaya Hamza vs Calicut Corporation on 20 October, 2020
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 20TH DAY OF OCTOBER 2020 / 28TH ASWINA, 1942
WP(C).No.17453 OF 2020(F)
PETITIONER:
UMMAYA HAMZA, AGED 72 YEARS
W/O. K. T. HAMZA, RESIDING AT KANAYANGHODE
HOUSE, KUNNAMANGALAM, KOZHIKODE - 673 571.
BY ADVS.
SRI.NIRMAL. S
SMT.VEENA HARI
RESPONDENTS:
1 CALICUT CORPORATION
REP. BY ITS SECRETARY, CORPORATION OFFICE,
BEACH ROAD, KOZHIKODE - 673 001.
2 THE SECRETARY
CALICUT CORPORATION, CORPORATION OFFICE,
BEACH ROAD, KOZHIKODE - 673 001.
3 SECRETARY TO GOVERNMENT
LOCAL SELF GOVERNMENT (DC DEPARTMENT),
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
4 MISSION DIRECTOR 'AMRUT'
DIRECTORATE OF URBAN AFFAIRS, GOVERNMENT OF
KERALA, THIRUVANANTHAPURAM - 695 001.
5 BINU FRANCIS
AGE AND FATHER'S NAME NOT KNOWN TO THE
PETITIONER, PRESENTLY WORKING AS SECRETARY,
CALICUT CORPORATION, CORPORATION OFFICE,
BEACH ROAD, KOZHIKODE - 673 001.
R1-2 BY SRI.G.SANTHOSH KUMAR, SC, KOZHIKODE
MUNICIPAL CORPORATION
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 20.10.2020, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.17453 of 2020
..2..
C.R.
P.B.SURESH KUMAR, J.
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W.P.(C) No.17453 of 2020
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Dated this the 20th day of October, 2020
JUDGMENT
Petitioner is running a restaurant within the limits of Kozhikode Municipal Corporation (the Corporation). The restaurant of the petitioner is situated on the southern side of Mavoor road. On the west of the restaurant of the petitioner, there is a multi- speciality hospital. In the year 2000, the Public Works Department of the State Government decided to raise the height of the footpaths on either side of Mavoor road, and when the said work was commenced, the predecessor of the petitioner approached this Court in O.P.No.4535 of 2000 alleging that if the work proposed by the Public Works Department is carried out, the same would affect the rights of ingress and egress in respect of the land where the restaurant building is situated. This Court disposed of the said writ petition in terms of Ext.P2 judgment permitting the petitioner to lay W.P.(C) No.17453 of 2020 ..3..
slanting slabs for vehicular access to and from the land where the restaurant building is situated. After about 20 years, during 2020, the Corporation has decided to reconstruct the public drains and footpaths on either side of Mavoor road. When the said work has commenced, the petitioner approached this Court in W.P.(C) No.12285 of 2020 alleging that the work proposed by the Corporation would affect the rights of ingress and egress in respect of the land where the restaurant building is situated. The said writ petition was disposed of by this Court as per Ext.P6 judgment, directing the Corporation to consider the representation preferred by the petitioner seeking orders for vehicular access to the land where the restaurant is situated, through its entire road frontage. It is stated by the petitioner that though a hearing was held pursuant to Ext.P6 judgment, the request of the petitioner was turned down by the Corporation in terms of Ext.P12 order. It is alleged that even before serving Ext.P12 order on the petitioner, the Corporation has completed the work proposed by them. It is stated by the petitioner that the height of the footpath in front of the restaurant now stands raised substantially and the petitioner is given vehicular access to the land where the restaurant is situated only through a portion of the frontage of the land having a length of 7 metres. The petitioner W.P.(C) No.17453 of 2020 ..4..
challenges Ext.P12 order in this writ petition. The petitioner also seeks appropriate directions to the Corporation to provide vehicular access through the entire road frontage of the land where the restaurant building is situated.
2. A counter affidavit has been filed by the Corporation in the matter contending, among others, that the footpath referred to by the petitioner in the writ petition is designed and meant to ensure safety of the pedestrians using the Mavoor road and to enable them to move through either side of the road without any obstruction; that the frontage of the land where the restaurant of the petitioner is situated is 22 metres and vehicular access at a length of 7 metres was, therefore, provided to the parking space in the premises of the petitioner; that the attempt of the petitioner is to make use of the space in between the restaurant building and the road for parking of four wheelers; that the setback of the restaurant building of the petitioner on the side of the road is less than 3.6 metres; that parking of four wheelers cannot be permitted in that area; that if the petitioner is permitted to make use of that area for parking, such parking would obstruct the free movement of the pedestrians through the footpath; that Ext.P12 decision was communicated to the petitioner by e-mail on W.P.(C) No.17453 of 2020 ..5..
17.08.2020 and it is thereafter that the work was completed, and if the request of the petitioner is allowed, there will be water logging on the footpath.
3. Heard the learned counsel for the petitioner as also the learned Standing Counsel for the Corporation.
4. It is seen from the materials on record that the restaurant building of the petitioner is constructed in an item of land measuring 21 cents having a road frontage of 22 metres. The building is situated on the western extremity of the plot and parking space is provided for the customers on the eastern side of the restaurant building having a width of 5.85 metres. It is also seen from the materials that vehicular access having a width of 7 metres is provided to the portion of the land of the petitioner earmarked for parking of vehicles. In other words, there is no obstruction for vehicular access to and from the portion of the land earmarked by the petitioner for parking of four wheelers. There is also no dispute to the fact that since the footpath is constructed throughout the remaining road frontage of the land of the petitioner at a higher level from the carriage way, the petitioner does not have vehicular access through the said portion of the land. As explained in the counter affidavit, the justification of the W.P.(C) No.17453 of 2020 ..6..
Corporation for constructing the footpath at a higher level is that the footpath will not otherwise serve its purpose. I have absolutely no reason to doubt the correctness of the said stand of the Corporation. The question, therefore, is whether the conduct of the Corporation in constructing the footpath at a raised level on the side of the road abutting the land of the petitioner is lawful.
5. The learned counsel for the petitioner asserted that the petitioner has a right to insist that footpath cannot be constructed by the Corporation at a higher level affecting the right of the petitioner to use the entire length of the land for vehicular access to and from the road. He relied on the decision of the Madras High Court in Damodara Naidu v. Thirupurasundari Ammal, AIR 1972 Madras 386 and the decision of this Court in Godavari Bhai v. Cannanore Municipality, 1984 KLT 1103, in support of the said contention. Per Contra, the learned counsel for the Corporation asserted that the petitioner has no right to insist that the Corporation cannot construct footpath at a higher level abutting the land of the petitioner. He has relied on the decision of this Court in Mathew P.D. v. State of Kerala and others, 2019 (5) KHC 242, in support of the said proposition.
6. An owner of a land adjoining a highway is W.P.(C) No.17453 of 2020 ..7..
entitled to access to the highway at any point at which his land actually touches the highway, even though the soil of the highway is vested in another, is a common law principle followed by the courts in India. The decisions cited by the learned counsel for the petitioner are those rendered placing reliance on the said common law principle. In Damodara Naidu, the principle was relied on in the context of a wall constructed by the defendants in a suit in such a way as to prevent the plaintiff therein from accessing the public road adjoining his land. In Godavari Bhai, the principle was relied on in the context of the bunk shops erected by the defendant Municipality in a suit in such a way as to prevent the plaintiff therein from accessing the public road adjoining his land. As noted, the question in this matter is whether the petitioner has a right to insist the respondent Municipality that such a footpath cannot be constructed.
7. In Halsbury's Laws of England, Fourth Edition, Vol. 21, the rights of an owner of the land adjoining a highway are described thus:
"Nature and extent of right. At common law, an owner of land adjoining a highway is entitled to access to that highway at any point at which his land actually touches it, even though the soil of the highway is vested in another, but he has no such right if a strip of land, however narrow, W.P.(C) No.17453 of 2020 ..8..
belonging to another and not subject to the public right of passage, intervenes.
The right of access of an adjoining owner from his premises to the highway and vice versa is a private right, and is distinct from his right to use the highway as so on as he is upon it, which (at any rate if the soil of the highway is not his) he enjoys only as a member of the public. An interference with the transference of goods from the highway to private premises is therefore an interference with a public right in which the owner of the premises has an individual interest as a member of the public.
The private right of access is subject to the public right of passage which is the higher right, but the public right of passage is also subject to the private right of access to the highway where the adjoining owner may exercise that right by means which do not amount to a serious obstruction to the right of passage and are not therefore inconsistent with it.
The right of access is not limited to the right to pass from the premises to the highway and vice versa, but includes the right of access to a wall on the boundary of the premises. Where a footwalk intervenes between the carriageway and the adjoining premises, the owner of these premises, if he also owns the soil up to the middle of the highway, is entitled at common law to access across the footwalk to the carriageway for any kind of traffic which is necessary for the reasonable enjoyment of his premises and will not, as he proposes to conduct it, cause a substantial nuisance, and, it W.P.(C) No.17453 of 2020 ..9..
seems, his rights are the same even if he does not own the soil of the highway."
It is placing reliance on the aforesaid passage that this Court has decided Godavari Bhai. As evident from the extracted passage, the right of access of an adjoining owner from his land to the highway and vice versa is a private right, and it is distinct from his right to use the highway which he enjoys as a member of the public. It is also evident that the said private right of access is subject to the public right of passage which is though a superior right, the same is subject to the private right of access to the highway available to the adjoining owner and he has to exercise that right without causing any obstruction to the right of passage available to the general public. It is further evident that the aforesaid rights are, therefore, not inconsistent. It could also be seen from the extracted passage that where a footpath intervenes between the carriageway and the adjoining land, the owner of the land is entitled at common law to access across the footpath to the carriageway for the reasonable enjoyment of his land, but he shall not cause nuisance to others. In Joseph v. District Magistrate, 1996 (2) KLT 490, referring to Corpus Juris Secundum, Volume 39, Page 1079, and the various decisions rendered by the courts in W.P.(C) No.17453 of 2020 ..10..
India, this Court held thus:
"7. As pointed out in Corpus Juris Secundum, Vol. 39, in Paragraph 141 at page 1079, an abutting owner has two distinct kinds of rights in a highway, a public right which he enjoys in common with all other citizens, and certain private rights, which arise from his ownership of property contiguous to the highway, and which are not common to the public generally. These rights over property of which he may not be deprived without his consent, except on full compensation and by due process of law. The rights of an abutting owner apply not only to the highway proper, but also to essential parts of the highway such as bridges and overpasses.
8. The right of a person owning land adjoining a highway to have access to the highway at any point has been recognised by courts in India in various decisions reported in Sheo Narayan v. Giri Dayal, AlR 1931 Nag. 189, Muhammed DiriMian v. M. V. Alirajoo Koerad, AIR 1931 Pat 418; Beli Ram v. Sib Ram, AIR 1921 Cal. 271, Mandakinee Debee v. Basant Kumaree Debee, AIR 1933 Cal. 884, Damodaranaidu v. Thirupurasundari Ammal, AIR 1972 Mad. 386. This Court in its decision in Tanoor Panchayat v. Kunhiamutty, 1978 KLT 813 also held that an owner of land adjoining a highway is entitled to as a matter of private right access to such highway at any point at which his land actually touches it.
9. It is evident from the above mentioned authoritative principles laid down by Indian and English Courts, a person W.P.(C) No.17453 of 2020 ..11..
who is having business on the side of the national highway has got a right of access at every point. Just as the taxi owners have access at all points in the highway for passage in exercise of their occupation, trade or business, petitioner has got equally the same right for using the highway at all points in exercise of his avocation, trade or business.
10. But more than that, the owner on the side of the national highway has a private right of access as well, subject to the public right of passage which is a higher right to be enjoyed by public including the person like the petitioner. In other words, a private right of access to the highway may co- exist with a public right of way though it does not necessarily merge with the public right. Public right of passage is subject to private right of landowners' right to access to the highway. Where a foot-path intervenes between a highway and adjoining premises, the owner of the premises is entitled to access across the foot-path to the highway for any kind of traffic which is necessary for the reasonable enjoyment of his premises. The interest of the public in a highway consists solely in the right of passage. Such right would include stopping perhaps for refreshments, enjoying the view, etc. But no highway user may use the highway for parking their vehicles permanently for their business so as to invade the private right of entry of a owner of adjoining land to the highway. For traffic regulation and for public purpose and for the safety of pedestrians it is open to the authorities to plant barriers separating the foot path and the highway, which may invade the private right of a person owning land abutting the highway. It may also possible for a statutory authority to erect obstruction in the highway such as electric posts, W.P.(C) No.17453 of 2020 ..12..
telephone posts, but shelter, etc., which may invade the private right of landowners abutting the highway. The same is for public interest. But allowing taxi cars to park on the side of the highway obstructing the private right of landowners abutting the highway is not for a public purpose, but for the private interest of taxi operators in exercise of their business".
The aforesaid judgment was rendered in the context of the obstruction caused to the petitioner therein who held a land adjoining a road, on account of parking of taxi cars in a such a manner as to cause obstruction to the right of access to and from the land. As evident from the extracted passage, it was held in the said case that the private right of access to the highway may coexist with a public right of way though it does not necessarily merge with the public right and the right of the owner of the land to access across the footpath for reasonable enjoyment of the land will not be an impediment for adopting necessary measures in public interest for the safety of pedestrians and it is open to the authorities to plant even barriers separating the footpath and the highway. The petitioner has no case that the construction of the footpath by the Corporation at a higher level from the carriageway is not one made in public interest. In the light of what is stated above, I am inclined to hold that there is no illegality in the conduct W.P.(C) No.17453 of 2020 ..13..
of the Corporation in constructing the footpath at a higher level on the side of the road abutting the land of the petitioner. I take this view also for the reason that if the proposition canvassed by the petitioner is accepted, footpaths can never be constructed at a higher level on the sides of the busy public roads, for footpaths in the same level of the carriageway would not serve any purpose.
8. That apart, it is admitted by the petitioner that vehicular access is claimed by her throughout the frontage of the land where the restaurant building is situated for the purpose of permitting parking of four wheelers in between the building line and the boundary of the land touching the elevated footpath. Ext.R1(a) sketch indicates that the width of the open yard between the building line of the restaurant and the boundary of the land is less than 3.65 metres. It is seen from the various photographs produced by the petitioner that the ground floor of the restaurant building is constructed after leaving a little additional space from the building line so as to enable parking of four wheelers in the front portion of the restaurant as well. A reading of sub-rules (1) and (8) of Rule 29 of the Kerala Municipality Building Rules, 2019 indicates that the length of off-street parking space to be provided shall be 5.5 metres and more than 50% of the open yards of the W.P.(C) No.17453 of 2020 ..14..
building shall not be consumed for parking space. It is stated by the Corporation in the counter affidavit that the open space required for the restaurant building of the petitioner is 3 metres. If that be so, there has to be a minimum of 7 metres space in between the building and the boundary line of the land, for the petitioner to assert that she is entitled to make use of the open space between the building and the boundary line of the land for the purpose of parking four wheelers. The averment made in the counter affidavit filed by the Corporation that the petitioner does not have that space is not denied by the petitioner. In the said view of the matter, the petitioner cannot be heard to contend that she is entitled to make use of the land in front of the restaurant building for parking of four wheelers.
In the said view of the matter, I do not find any merit in the writ petition and the same is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR JUDGE ds 12.10.2020 W.P.(C) No.17453 of 2020 ..15..
APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE TRADE LICENSE ISSUED TO THE PETITIONER DATED 21.08.2019.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED
10.03.2000 IN O.P.4535/2000.
EXHIBIT P3 TRUE COPY OF THE ORDER NO.FCB
3/1979/2000 DATED 09.05.2000.
EXHIBIT P4 TRUE COPY OF THE REPRESENTATION
PREFERRED TO THE 2ND RESPONDENT DATED
09.06.2020 ALONG WITH THE
ACKNOWLEDGEMENT.
EXHIBIT P5 TRUE COPY OF THE PHOTOGRAPHS
EVIDENCING THE VEHICULAR ACCESS
ENJOYED BY THE PETITIONERS, TO THE
PETITIONER'S PROPERTY.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED
23.06.2020 WPC 12285/2020.
EXHIBIT P7 TRUE COPY OF THE COMPLAINT DATED
26.06.2020.
EXHIBIT P8 TRUE COPY OF THE NOTICE FOR HEARING
DATED 25.06.2020.
EXHIBIT P9 TRUE COPY OF THE WRITTEN SUBMISSION
SUBMITTED BY THE PETITIONER.
EXHIBIT P10 TRUE COPY OF THE SANCTION GIVEN AS
R.O. RT.NO.867/2020/LSGD DATED
12.05.2020.
EXHIBIT P11 TRUE COPY OF THE COMPLAINT DATED
18.08.2020 MADE TO THE SUB INSPECTOR
OF POLICE.
W.P.(C) No.17453 of 2020
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EXHIBIT P12 TRUE COPY OF THE ORDER
NO.EG2/33102/2020 DATED 13.08.2020
WHICH WAS SERVED ON THE PETITIONER'S
SON AT 12.15 PM.
EXHIBIT P13 TRUE COPY OF THE PHOTOGRAPH SHOWING
THE ILLEGAL CONSTRUCTION OF THE FOOT
PATH ON 18.08.2020.
EXHIBIT P14 TRUE COPY OF THE PHOTOGRAPHS SHOWING
THE ACCESS PROVIDED TO KASAVU KENDRA
AND YASH INTERNATIONAL HOTEL.
EXHIBIT P15 TRUE COPY OF THE PHOTOGRAPHS
EVIDENCING THE DIFFICULTY IN ENTRY AND
EXIT OF VEHICLES TO THE PARKING LOTS.
EXHIBIT P16 TRUE COPY OF THE PHOTOGRAPHS OF THE
PARKING SPACE OCCUPIED WITH VEHICLES
TO DEMONSTRATE THE REAL STATE OF
AFFAIRS BEFORE THIS HON'BLE COURT,
TAKEN ON 26/09/2020 ALONG WITH RECEIPT
ISSUED BY COLOUR FX DIGITAL STUDIO.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1 A TRUE COPY OF THE SKETCH PREPARED BY
THE ASSISTANT ENGINEER, KOZHIKODE
MUNICIPAL CORPORATION SHOWING THE
PETITIONER'S PROPERTY AND ITS
SURROUNDINGS.
EXHIBIT R1 B PHOTOGRAPH SJOWING THE PARKING OF THE
VEHICLE INTO THE PATHWAY BEFORE THE
COMMENCEMENT OF THE WORK.
EXHIBIT R1 C PHOTOGRAPH SHOWING THE VEHICULAR
ACCESS FROM ROAD TO THE PETITIONER'S
PROPERTY
W.P.(C) No.17453 of 2020
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EXHIBIT R1 D TRUE COPY OF THE DATE AND TIME SHOWING
THE DETAILS OF EXT.P12 PROCEEDINGS
FORWARED TO THE PETITIONER THROUGHT
E .MAIL