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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.

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.

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.

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.