Aleyamma Cyril and Cyril Parecattill v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY ,THE 30TH DAY OF NOVEMBER 2018 / 9TH AGRAHAYANA, 1940** ## **WP(C).No. 29003 of 2018** ## **PETITIONER:** **1 ALEYAMMA CYRIL AGED 60 YEARS W/O. CYRIL PARECKATTIL, KANIYARAM, MANATHAVADY, WAYANAD DISTRICT. 2 CYRIL PARECATTIL, AGED 62 YEARS S/O.P.V.VARKEY, KANIYARAM, MANATHAVADY, WAYANAD DISTRICT.** **BY ADVS. ABRAHAM MATHEW (VETTOOR) SRI.ANIL ABEY JOSE** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,**| ||**PUBLIC WORKS DEPARTMENT, GOVT. SECRETARIAT,**| ||**THIRUVANANTHAPURAM, PIN- 695 001.**| |**2**|**THE EXECUTIVE ENGINEER,**| |---|---| ||**PUBLIC WORKS DEPARTMENT (BUILDINGS DIVISION),**| ||**WAYANAD, AT KALPETTA NEAR CIVIL STATION, KALPETTA,**| ||**PIN- 673121.**| |**3**|**THE ASSISTANT ENGINEER,**| ||**PUBLIC WORKS DEPARTMENT (BUILDING DIVISION), OFFICES**| ||**OF THE PWD (BUILDINGS DIVISION), MANANTHAVADY,**| ||**PIN- 670645.**| ## **OTHER PRESENT:** **SR.GP B VINOD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.10.2018, THE COURT ON 30.11.2018 DELIVERED THE FOLLOWING:** W.P.(C).No.29003/18 2 ## **JUDGMENT** 1. This writ petition is filed seeking directions to respondents 1 to 3 to remove all obstructions on the IB road of the PWD to enable free ingress and egress of the petitioner's vehicles through the property. It is contended that the 1[st] petitioner is conducting a granite quarry and a metal crusher unit after obtaining all required permissions. The petitioners own and possess properties in Survey No.966 and 966/1 of Thondarnadu amsom desom, Mananthavady Taluk. It is contended that they have been using the IB road belonging to PWD for the access to their properties for years together. It is stated that respondents 2 to 3 had erected iron barricade on the tarred portion of the road leading to the petitioners' property and have also drawn iron chains across the road to see that no vehicles are allowed to pass through the road. It is stated that it is done without any notice or intimation to the persons who have been using the road for decades as of right. 2. The learned counsel relies on decision of this Court in **Mariam** **Beevi. v. Secretary, Athirambuzha Grama Panchayat,** W.P.(C).No.29003/18 3 **Kottayam and others** [2015 (2) KLT 768 to contend that once a private road is used to connect somebody else's property also, the road ceases to have any exclusive right and would have the characteristic of a public road. 3. A statement has been filed by the 2[nd] respondent. It is stated in paragraph 4 and 5 as follows:- “4. During 1990s there was a pathway through the compound of TB Korome. Subsequently people residing in the vicinity used the access as an easy access to their properties. Earlier there was only barbed wire fencing around the periphery of the compound, which are in deteriorated condition now. To protect the compound and to and to propose a compound wall around the boundary, the boundary of the plot was to be assessed/fixed properly. There was an attempt by some people to encroach upon the PWD land of TB Korome on 28.9.2013. However, it is anticipated that there is a possibility of the some people encroaching upon the plot of TB Korome again. Similar attempt was happened in 2016 also for widening the pathway. So, Public Works Department filed a petition in Vellamunda Police Station and the SHO of the Police Station reported that the property is of PWD which needs to be protected. Applications were given to Revenue Department by PWD from 2013 onwards and the boundary of the plot was fixed with the help of Taluk Surveyor and he issued a survey sketch on 10.04.2018. The petitioner's heavy vehicles were passing through the PWD W.P.(C).No.29003/18 4 compound to their property of quarry site which is behind the T.B without the consent of PWD. 5. Government has given strict direction to protect the properties under Public Works Department. In order to avoid further trespassing and to protect the property of PWD and the historical place, on discussion with higher officials, it was decided to put a barricading like iron chain. The same was executed and a board is also kept showing that the property is of PWD and trespassing with vehicles through the property is not allowed. Still the people residing in the vicinity can walk through the land for accessing their houses. Moreover, the intention of the petitioner is to split the property into two and to convert the access as a public road and to use the road to their quarry for commercial purpose.” 4. A reply statement has been placed on record stating that the road in question is a 5m wide road and no trespass of any nature has been attempted by the petitioners or any other persons. It is stated that since the road belonged to the PWD and since it is the means of access to the petitioners' property as well, the road cannot be blocked so as to deny access of the petitioners to their properties. 5. I have considered the contentions advanced on either side. The road in question is admittedly a road belonging to Public Works W.P.(C).No.29003/18 5 Department. In case of any encroachment into the land owned by the PWD or any attempt to widen the road in any manner, preventive action can definitely be taken. Appropriate measures for protecting the property of the Government is also well within the power of the PWD authorities. However, it is clear that such power to impose restrictions cannot extend to deny access to persons who possess properties in the vicinity through the said road, especially in view of the fact that the said road was being used by them as access to such properties. In the above view of the matter, I am of the opinion that the concern of the petitioners that they have no other access to their properties is to be taken into consideration. It is for the Government, in its Public Works Department to take an appropriate decision in the matter. The contention of the petitioners that they have no other means of access to their properties and that they have been using the said road for vehicular access to the properties shall be considered by the 1[st] respondent and an appropriate decision shall be taken. Exhibit P13 representation preferred by the petitioners before the 2[nd] respondent shall therefore be forwarded by the 2[nd] respondent to the 1[st] respondent. Thereupon, the 1[st] respondent W.P.(C).No.29003/18 6 shall hear the petitioners and take appropriate decision, taking note of the factual aspects of the matter as well. Respondents 2 and 3 as well as the Secretary of the Grama Panchayat shall also be heard before a decision is taken in the matter. Orders shall be passed by the 1[st] respondent after hearing all concerned within a period of six weeks from the date of receipt of a copy of the judgment. The petitioner shall produce a copy of the judgment before respondents 1 and 2 for compliance. The writ petition is ordered accordingly. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.29003/18 7 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF SALE DEED EXECUTED IN FAVOUR OF THE 1ST PETITIONER AND REGISTERED AS DOCUMENT NO.1131/93 OF THE SRO VELLAMUNDA DATED 22.06.1993.** **EXHIBIT P2 A TRUE COPY OF THE SALE DEED EXECUTED IN FAVOUR OF THE 2ND PETITIONER AND REGISTERED AS DOCUMENT NO.30/94 OF THE SRO VELLAMUNDA DATED 06.01.1994.** **EXHIBIT P3 A TRUE COPY OF THE SALE DEED EXECUTED IN FAVOUR OF THE 2ND PETITIONER AND REGISTERD AS DOCUMENT NO.1723/93 OF SRO VELLAMUNDA DATED 30.09.1993.** - **EXHIBIT P4 A TRUE COPY OF THE PROCEEDINGS OF THE DIRECTOR OF MINING AND GEOLOGY GRANTING QUARRYING LEASE IN FAVOUR OF THE PETITIONER'S UNIT DATED 26.06.2008.** - **EXHIBIT P5 A TRUE COPY OF THE QUARRYING LEASE EXECUTED BY THE 1ST PETITIONER DATED 20.08.2008 AND VALID UP TO 29.12.2020.** **EXHIBIT P6 A TRUE COPY OF THE RENEWED D AND O LICENSE ISSUED BY THE 2ND RESPONDENT IN RESPECT OF THE CRUSHER UNIT DATED 03.04.2017.** **EXHIBIT P7 A TRUE COPY OF THE RENEWED D AND O LICENSE ISSUED BY THE 2ND RESPONDENT IN RESPECT OF THE QUARRY CONDUCTED BY THE PETITIONER DATED 03.04.2017.** **EXHIBIT P8 A TRUE COPY OF THE RENEWED INTEGRATED CONSENT TO OPERATE ISSUED BY ENVIRONMENTAL ENGINEER, POLLUTION CONTROL BOARD, IN FAVOUR OF THE PETITIONER DATED 09.02.2018.** W.P.(C).No.29003/18 8 ## **EXHIBIT P9** **EXHIBIT P10** **EXHIBIT P11** **EXHIBIT P12** **EXHIBIT P13** **A TRUE COPY OF THE D & O LICENSE FOR THE PERIOD UP TO 31.03.2018 ISSUED BY THE 2ND RESPONDENT IN RESPECT OF THE QUARRY OF THE PETITIONER DATED 13.03.2018.** **A TRUE COPY OF THE JUDGMENT SO PASSED BY THIS HON'BLE COURT IN W.P. (C)NO.18024 OF 2018 DATED 03.08.2018.** **TRUE COPIES OF THE PHOTOGRAPH SHOWING OBSTRUCTIONS CREATED BY THE RESPONDENTS 2 AND 3 ON THE ROAD.** **TRUE COPIES OF THE PHOTOGRAPH SHOWING THE IRON CHAIN DRAWN ACROSS THE ROAD.** **A TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER TO THE 2ND RESPONDENT ON 13.8.2018.** True copy PS to Judge