High Court of KeralaSingle Judge2020-10-14Writ petition allowed

Commander Praveen George and others v. Corporation of Cochin and others

Case / Petition Number:WP(C).No.7802 OF 2020(A)

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Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Muhamed Mustaque
Judgment Date: 2020-10-14
Court Decision / Holding: The writ petition is allowed. The respondent Corporation is directed to remove the structure in front of the petitioners’ property forthwith. If the Corporation intends to reinstall the structure, it must obtain permission from the District Administration for consideration of whether access to the petitioners’ property would be denied and to ensure compliance with applicable permissions.
Final Disposition: Writ petition allowed

Parties to the Case

Appellants / Petitioners

COMMANDER PRAVEEN GEORGE, S/O.GEORGE PUTHANANGADI, represented by power of attorney holder, KUNJUMARY GEORGE, S/O.GEORGE PUTHANANGADI, 61/916, HOPE DALE, SHENOY ROAD, KALOOR, COCHIN - 682 017.
GEORGE PUTHANANGADI, S/O.P.K.ITYERAH, 61/916, HOPE DALE, SHENOY ROAD, KALOOR, COCHIN - 682 017.
KUNJUMARY GEORGE, W/O.GEORGE PUTHANANGADI, 61/916, HOPE DALE, SHENOY ROAD, KALOOR, COCHIN - 682 017.
PRADEEP GEORGE, S/O.GEORGE PUTHANANGADI, REPRESENTED BY POWER OF ATTORNEY HOLDER, KUNJUMARY GEORGE, W/O.GEORGE PUTHANANGADI, 61/916, HOPE DALE, SHENOY ROAD, KALOOR, COCHIN - 682 017.

Respondents

CORPORATION OF COCHIN, represented by its Secretary, Corporation Office, Boat Jetty, COCHIN - 682 025
SECRETARY, CORPORATION OF COCHIN, CORPORATION OFFICE, BOAT JETTY, COCHIN - 682 025
ADDL.R3 THE DISTRICT COLLECTOR, ERNAKULAM COLLECTORATE, KAKKANAD, PIN-682 030
ADDL. R4 TAHSILDHAR, KANAYANNUR TALUK, TALUK OFFICE, PARK AVENUE, KOCHI-682 011

Legal Representation & Advocates

Counsels for Petitioners

• Sri Abraham Vakkanal (Sr.)
• Sri Midhun Mohan
• Smt. Vineetha Susan Thomas

Counsels for Respondents

• Sri P. Fazil, SC
• Sri S. Sudheesh Kumar, SC
• Sri S. Gopinathan, Sr. GP

Case Synopsis & Summary

This writ petition challenges Ext.P10, an order of the Corporation of Cochin, which rejected the complaint about a structure erected in front of the petitioners’ property on a puramboke land along a public road. The petitioners — absolute owners in possession of about 10.50 cents of Sy. No. 571/2 at Elamkulam — contend that the structure blocks access to their land and was erected without the Revenue Department’s permission, rendering it illegal. They rely on this Court’s decision in Joseph v. District Magistrate (1996) 2 KLT 490 to argue that a landowner adjoining a highway has a right of access from the highway at all points, and that public authorities must not impede such access. They also invoke M.V. Mohan Nair v. State and Others (1994) 2 KLJ 1080 to claim that vesting of puramboke land in the Municipality is for management and that construction cannot proceed without Revenue permission. The Corporation counters that petitioners’ access is not denied and that temporary construction does not require Revenue permission. The Court, relying on Joseph’s case and statutory provisions, holds that vesting under Section 207 of the Kerala Municipality Act is for management, not ownership, and that permission from the District Administration is necessary for construction. Since the structure was placed without authorization, the court directs its removal and outlines that any future erection must obtain appropriate permissions.

Provisions of Law Cited

Section 207 of the Kerala Municipality Act, 1994Section 2(34) of the Kerala Municipality Act, 1994Section 3 of the Kerala Land Conservancy Act, 1957

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the structure erected by the Corporation on puramboke land impedes access from the road to their property and was done without Revenue Authority permission, making it illegal. Relying on Joseph v. District Magistrate (1996) 2 KLT 490, they submit that a landowner adjoining a highway has a right of access from the highway at every point, and public authorities must not obstruct such access. They also invoke M.V. Mohan Nair v. State and Others (1994) 2 KLJ 1080 to argue that vesting of puramboke land in the Municipality is for management and that construction requires Revenue Authority permission.

Contentions of Respondents

The respondents submit that petitioners’ access to their property is not denied and that the structure is a temporary one that does not require Revenue Authority permission. They argue that the petitioners can access their land without hindrance and that the structure affects no obstruction to the road. They contend that under Section 207 of the Kerala Municipality Act 1994, adjacent lands vested in the Municipality are for management, and that permissions are to be determined by the Revenue Authority and District Administration where applicable.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Joseph v. District Magistrate	1996 (2) KLT 490	Positive	Court relied on the Joseph doctrine that a landowner adjoining a highway has a right of access from the highway at all points.
M.V. Mohan Nair and Others v. State and Others	1994 (2) KLJ 1080	Mentioned Only	Cited as an argument by petitioners about vesting of puramboke land and need for Revenue Authority permission; not explicitly adopted or overruled in this judgment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 14TH DAY OF OCTOBER 2020 / 22ND ASWINA, 1942** ## **WP(C).No.7802 OF 2020(A)** ## **PETITIONERS:** - **1 COMMANDER PRAVEEN GEORGE, S/O.GEORGE PUTHANANGADI, REPRESENTED BY POWER OF ATTORNEY HOLDER, KUNJUMARY GEORGE, W/O.GEORGE PUTHANANGADI, 61/916, HOPE DALE, SHENOY ROAD, KALOOR, COCHIN - 682 017.** - **2 GEORGE PUTHANANGADI, S/O.P.K.ITYERAH, 61/916, HOPE DALE, SHENOY ROAD, KALOOR, COCHIN - 682 017.** - **3 KUNJUMARY GEORGE, W/O.GEORGE PUTHANANGADI, 61/916, HOPE DALE, SHENOY ROAD, KALOOR, COCHIN - 682 017.** - **4 PRADEEP GEORGE, S/O.GEORGE PUTHANANGADI, REPRESENTED BY POWER OF ATTORNEY HOLDER, KUNJUMARY GEORGE, W/O.GEORGE PUTHANANGADI, 61/916, HOPE DALE, SHENOY ROAD, KALOOR, COCHIN - 682 017.** - **BY ADVS.SRI.ABRAHAM VAKKANAL (SR.) SRI.MIDHUN MOHAN SMT.VINEETHA SUSAN THOMAS** ## **RESPONDENTS:** - **1 CORPORATION OF COCHIN, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, BOAT JETTY, COCHIN - 682 025.** - **2 SECRETARY, CORPORATION OF COCHIN, CORPORATION OFFICE, BOAT JETTY, COCHIN - 682 025.** - ***ADDL.R3 THE DISTRICT COLLECTOR, ERNAKULAM COLLECTORATE, KAKKANAD, PIN-682 030.** - ***ADDL.R4 TAHSILDHAR, KANAYANNUR TALUK, TALUK OFFICE, PARK AVENUE, KOCHI-682 011.** ***ADDL. R3 AND R4 IMPLEADED AS PER ORDER DATED 14.08.2020 IN IA 2/2020 IN WP(C).** **BY ADVS.SRI.P.FAZIL,SC, COCHIN CORPORATION SRI.S. SUDHEESH KUMAR, SC SRI.S.GOPINATHAN, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.7802 OF 2020(A)** **-2-** ## **JUDGMENT** **Dated this the 14th day of October 2020** This writ petition was filed challenging Ext.P10 order of the Corporation of Cochin. That order was passed on a complaint made by the petitioners as against the structure put up by the Cochin Corporation in front of petitioners' property. The Corporation rejected the complaint. 2. The petitioners are the absolute owners in possession of 10.50 cents of property comprised in Sy.No. 571/2 of Elamkulam Village within the Cochin Corporation. The Corporation had put up a structure in front of the petitioners' property for the purpose of fish vending. The said construction was on the side of a road in a _puramboke_ land. 3. The learned Senior Counsel appearing for the petitioners challenges the construction of the structure in the _puramboke_ land on two grounds. According to the learned Senior Counsel, the construction of the structure would deny access to the petitioners' property from the road passing in front of their property. The learned Senior Counsel placed **WP(C).No.7802 OF 2020(A)** **-3-** reliance on the judgment of this Court in **Joseph v. District Magistrate [1996 (2) KLT 490].** It is also submitted that the construction of the structure in the _puramboke_ land was without obtaining permission from the Revenue Authority and, therefore, it has to be treated as an illegal construction. Placing reliance on the judgment of this Court in **M.V.Mohan Nair and others v. State and Others [1994 (2) KLJ 1080],** argued that vesting of _puramboke_ land with the Municipal Corporation is only for the purpose of management and, without permission from the Revenue Authority no construction is permissible. 4. The learned Standing Counsel for the Corporation of Cochin would submit that the access to the property of the petitioners is not denied and they can very well enter into their property without any hindrance or obstruction. It was further argued that temporary construction does not require any permission from the Revenue Authority. 5. In regard to the first point, this Court have considered the matter in detail in **Joseph's** case (Supra). This **WP(C).No.7802 OF 2020(A)** **-4-** Court, after referring to Halsbury's law of England and various authorities and precedents had taken the view that the right of a person on his land adjoining to highway would include right of access at every point from the highway. No doubt, some times, this may prevent the Municipal Authorities or Government from putting up any construction alongside the boundaries of the adjoining owner. In such circumstances, the Court has to consider whether there would be any denial of access to the property of the adjoining owner consequent upon putting up of the construction. This question, in fact, has to be addressed by the public authority. Who is the public authority, in this case, assumes importance in the light of the fact that the structure has been put up in a _puramboke_ land. 6. Under section 207 of the Kerala Municipality Act 1994 (for short, 'the Act'), notwithstanding anything contained in the Kerala Land Conservancy Act, 1957, all adjacent lands along with the public road, streets, lanes would stand vested absolutely with the Municipality. There is no transfer of ownership or title to the Municipality. Therefore, **WP(C).No.7802 OF 2020(A)** **-5-** the Court has to find out the purpose of such vesting with the Municipal Corporation. 7. Section 207 refers to the vesting of public streets and appurtenance in Municipality. It is apparent that such vesting is for the management of the land vested with the Municipal Corporation. It is appropriate to refer to the definition of the public streets under Section 2(34) of the Act. Section 2(34) of the Municipality Act, defines public streets as follows: _(34) “public street" means any street, road, square, court, alley, passage or riding path over which the public have a right of way, whether a thoroughfare or not, and includes-_ _(a) the roadway over any public bridge or causeway;_ _(b) the footway attached to any such street, public bridge or causeway; and_ _(c) the drains attached to any such street, public bridge or causeway and the land whether covered or not by any pavement, verandah, or other structure, which lies on either side of the roadway upto the boundaries of the adjacent property, whether that property is private property or property belonging to the Government;_ **WP(C).No.7802 OF 2020(A)** **-6-** As seen from the aforesaid definition, a land lies on either side of the road up to the boundaries of the adjacent property would also fall within the meaning of the public street. Under Section 3 of the Kerala Land Conservancy Act, 1957, all public roads, streets, lanes etc. are the property of the Government. This would include the property under the control of Municipality. It is also open for the Government to withdraw any public street from the control of the Municipality. Mere vesting of the property with the Municipality will not confers its ownership to the Municipality or Corporation. 8. It is for the Revenue Authority to permit any construction on the side of the road or public street. While this Court cannot ignore the right of the petitioners to have access from any point of the road, this court is of the view, in view of the fact that the structure has been put up by the Corporation without any permission from the District Administration, it has to be removed forthwith. If the Corporation is proposing to put up the structure again, it will **WP(C).No.7802 OF 2020(A)** **-7-** have to obtain permission from the District Administration. In that event, it is for the District Administration to consider whether access to petitioner's property from any point of the road would be denied or not. Accordingly, the writ petition is allowed. The respondent Corporation is directed to remove the structure in front of the petitioners' property forthwith. **Sd/-** **A.MUHAMED MUSTAQUE JUDGE** akv **WP(C).No.7802 OF 2020(A)** **-8-** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED. EXHIBIT P1(A) TRUE COPY OF THE TAX RECEIPT. EXHIBIT P2 TRUE COPY OF THE LETTER ISSUED TO THE PETITIONERS FROM THE OFFICE OF THE RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE PHOTOGRAPH OF THE PROPERTY SHOWING THE SAID ILLEGAL STRUCTURE. EXHIBIT P3(A) TRUE COPY OF THE PHOTOGRAPH OF THE PROPERTY SHOWING THE SAID ILLEGAL STRUCTURE. EXHIBIT P4 TRUE COPY OF THE REPRESENTATION WITHOUT ENCLOSURES. EXHIBIT P5 TRUE COPY OF THE ROUGH SKETCH OF THE AREA. EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.25577 OF 2018. EXHIBIT P7 TRUE COPY OF THE REPRESENTATION. EXHIBIT P7(A) TRUE COPY OF THE RECEIPT. EXHIBIT P8 TRUE COPY OF THE LETTER SENT TO THE TALUK SURVEYOR BY THE ASSISTANT EXECUTIVE ENGINEER. EXHIBIT P9 TRUE COPY OF THE LETTER SENT BY THE PETITIONERS TO THE 2ND RESPONDENT. EXHIBIT P10 TRUE COPY OF THE ORDER SIGNED BY THE 2ND RESPONDENT (ON 27/02/2020). EXHIBIT P11 TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRESENT LIE OF THE OFFENDING/ILLEGAL STRUCTURE IN FRONT OF THE PETITIONERS PROPERTY. EXHIBIT P11(A) TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRESENT LIE OF THE OFFENDING/ILLEGAL STRUCTURE IN FRONT OF THE PETITIONERS PROPERTY.** **WP(C).No.7802 OF 2020(A)** **-9-** |**EXHIBIT P12**|**TRUE COPY OF THE APPLICATION GIVEN TO THE**| |---|---| ||**CRZ AUTHORITIES.**| |**EXHIBIT P12(A)**|**TRUE COPY OF THE REPLY RECEIVED FROM THE**| ||**CRZ AUTHORITIES.**| |**EXHIBIT P13**|**TRUE COPY OF THE ROUGH SKETCH SHOWING THE**| ||**ADDITIONAL DETAILS.**| **RESPONDENT'S/S EXHIBITS:NIL.** **//TRUE COPY// PA TO JUDGE**