Dilip Cherian v. Assistant Executive Engineer, K.S.E.B., Kaloor Section, Ernakulam; Executive Engineer, Construction Division (APDRP) KSEB, 110 KV S/S., Kadavanthra, Ernakulam-682020; The Secretary, Corporation of Kochi

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR FRIDAY, THE 28TH DAY OF SEPTEMBER 2012/6TH ASWINA 1934 WP(C).No. 2230 of 2011 (C) -------------------------- PETITIONER(S): ------------- DILIP CHERIAN, AGED 45 YEARS, S/O.LATE ABRAHAM CHERIAN, RESIDING AT 2 A SKYLINE ROYALE, PANAMPILLY NAGAR, COCHIN-36. BY ADV. SRI.B.N.SHIVSANKAR RESPONDENT(S): - -------------- 1. ASSISTANT EXECUTIVE ENGINEER, K.S.E.B, KALOOR SECTION, ERNAKULAM. 2. EXECUTIVE ENGINEER, CONSTRUCTION DIVISION (APDRP) KSEB,110 KV S/S., KADAVANTHRA ERNAKULAM-682020. 3. THE SECRETARY, CORPORATION OF KOCHI, R1&2 BY SRI.P.P.THAJUDEEN, SC, K.S.E.B R 1&2 BY SRI.SAJEEVKUMAR K.GOPAL,SC,KSEB R3 BY SRI.S.RAMESH BABU, SC.COCHIN CORPN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).2230/11 ## APPENDIX PETITIONER'S EXHIBITS: P1:TRUE COPY OF THE DOCUMENT NO.240/1980. P2:TRUE COPY OF THE SKETCH SHOWING THE LIE OF THE PROPERTY. P3:TRUE COPY OF THE SKETCH SHOWING THE OBSTRUCTIONS. P4:TRUE COPY OF THE PHOTOGRAPHS. P5:TRUE COPY OF THE REPRESENTATIONS DATED 5/11/2010 AND 11/11/2010. P6:TRUE COPY OF THE ACKNOWLEDGEMENTS DATED 6/11/2010 AND 12/11/2010. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE ## **C.T.RAVIKUMAR, J.** ---------------------------- ## W.P.(C)No.2230 of 2011 ---------------------------Dated 28[th] September, 2012 ## **JUDGMENT** The petitioner is the owner in possession of a plot comprised in Survey No.173/5 of Elamkulam Village that abuts the Pulleppady - Thammanam road. This writ petition has been filed mainly with the following prayer:- “Direct the respondents by a writ of mandamus to remove the obstructions caused to the petitioner on the public road namely Pullepady-Thammanam Road so as to restore back the ingress and egress at all points of entry and exit to the property of the petitioner in Sy.No.173/5 as shown in Exhibit P2.” 2.The sum and substance of the contentions of the petitioner is that being an owner of a land adjoining to a highway he is having the absolute and indefeasible right to have access to it and vice versa at all points where his land adjoins the highway. It is contended that the petitioner being a highway abutter the action on the part of respondents 1 and 2 in putting up structures in an area having a length of about 12.80 mts. covering that much extent of his road frontage invades the aforesaid right and as such the said obstructions are liable to be abated. The said obstructions are in the form of small platform and basement of WP(C).No.2230/2011 2 certain pillars as revealed from Ext.P3. It is further contended that putting up such structures on public road side would obstruct the smooth flow of traffic, as well. Ext.P4 is a photograph showing the position of such structures put up by respondents 1 and 2. The petitioner has submitted Ext.P5 before the third respondent, with onward copies to respondents 1 and 2 requesting for the removal of the aforesaid obstructions. It is contended that the third respondent is having a statutory duty in terms of Section 367 of the Kerala Municipality Act to remove such obstructions, but failed to discharge the same. It is in the said circumstances that he filed this writ petition with the aforesaid prayer. 3. Advocate Thajudeen, the learned Standing Counsel for the Kerala State Electricity Board and Advocate S.Ramesh Babu, the learned Standing Counsel for Kochi Corporation were served with copies of the writ petition. The learned Standing Counsel for K.S.E.B on getting instructions from respondents 1 and 2 submitted as follows:- The property of the petitioner is having a road frontage of about 40 mts. and out of this, the old and the new structures, including the foundation for the installation of Ring Main Units constructed as part WP(C).No.2230/2011 3 of the City Automation Scheme viz., structures which allegedly causing obstruction, cover only a length of 7 mts. of the road frontage. The Ring Main Unit is only a kiosk type switching unit and it was installed as a part of the City Automation Scheme of the KSEB envisaged to provide uninterrupted supply of electricity. Installation of the structures in question will not in any way affect the property right of the petitioner over the aforesaid property and that the petitioner had in fact, already constructed a compound wall in front of his property and a gate was also put up at its eastern end to have access to the road in question. The structures in question were put up only on the western end of the property that too, in the space between the road and the public drain in front of the petitioner's property and the distance between the said structures put up by the K.S.E.B for the aforesaid purpose and the petitioner's gate is more than 10 mts.. It is further submitted as hereunder:- KSEB is carrying out the City Automation Scheme with the aid of Central Government under Accelerated Power Development and Reforms Programme (APDRP) for giving quality supply to its consumers. Already one number CCC type RMU was installed on the foundation already constructed in the aforesaid place as part of the scheme on 16.1.2011. WP(C).No.2230/2011 4 The newly erected RMU is a switching device used to control power supply in three directions and therefore, it is to be installed near to the already existing transformer and has to be connected to the cable ends terminating at the existing single pole. Invariably, the RMU has to be installed near to the existing structures in order to accommodate the cables and that after commissioning the RMU the single pole which is now installed in the said place will be dismantled. Considering the public importance, the urgency and necessity and at the same time, to avert any kind of interference with the smooth flow of traffic, the aforesaid structures were installed at the side of the existing transformer that too, with the oral consent of the concerned Engineer of the third respondent Corporation. 4. The learned counsel appearing for the petitioner relied on a number of decisions such as **Damodara Naidu** v. **Thirupurasundari Ammal** (AIR 1972 Madras 386), **Manglaur Municipality** v. **Mahadeoji Maharaj** (AIR 1965 S.C. 1147) and **Tanoor Panchayat** v. **Kunhiamutty** (1978 K.L.T. 813) to contend that being an owner of a plot that abuts a public road he got right to have access to the same at all points from his property and vice versa. Before considering the WP(C).No.2230/2011 5 contentions relying on the aforesaid decisions, certain indisputable facts and certain relevant aspects require to be highlighted. The learned Standing Counsel for respondents 1 and 2 submitted that the road frontage of the property of the petitioner is about 40 metres, that the structures allegedly causing obstruction cover only a length of about 7 mts. and that the distance from the point of position of the said structures to the gate put up by the petitioner in front of his property is about 10 mts. Though the petitioner disputes the distance and claims it to be 12.80 mts., there is absolute absence of any case for the petitioner that such structures were put up in such a manner to block his ingress and egress through the gate that was put up in front of his property. In that context, it is also to be noted that the petitioner had not specifically stated in the body of the writ petition that he had already constructed a compound wall on the front side of his property and put up a gate at its eastern end. However, Ext.P4 series of photographs produced by the petitioner would show the position of the structures and they would virtually support the submission made on behalf of respondents 1 and 2 regarding existence of a compound wall on the front side of the petitioner's property and also the gate at its eastern side. In view of the said position discernible from Ext.P4 series the petitioner also did not WP(C).No.2230/2011 6 dispute the existence of the compound wall and also the gate. Now, the question is after constructing a compound wall and putting up such a gate at the eastern end of his property to gain access to the road, can the petitioner be heard to contend that the structures in question which were put up towards the western end and at a considerable distance of about 10 mts. from the gate and that too, in the space between the road and the public drain that runs in front of his property, cause obstruction to his ingress and egress and therefore, liable to be removed. The inapplicability of those decisions to the facts of this case can be brought by merely looking into facts of those cases. All those decisions were rendered in civil disputes raised by the concerned parties. In **Damodara Naidu's** case (supra), the respondents therein who are private parties attempted hastly to put up a wall on the west of item No.2 involved in that case in such a manner completely preventing the appellants therein from having access from their lands to the highway. After careful consideration of the case, it was held therein that when the plaintiff's (appellant's) right to access to the highway is completely obstructed by the defendants by putting up a wall, they are entitled to a mandatory injunction. The situation obtained in the case on hand is totally different as in this case there is absolutely no obstruction whatsoever for the WP(C).No.2230/2011 7 petitioner to have access to the public road and vice versa through the gate already put up by him. In **Manglaur Municipality's** case (supra), the Municipality proposed to instal a statue of Mahatma Gandhi and also put up two rooms on either side for piyo and library. A scanning of the contentions would reveal that the court came to the conclusion that putting up of the structures for installing the statue of Mahatma Gandhi or for piyo or library cannot be said to be necessary for the maintenance or the user of the road as a public highway. In fact, the claim of the respondent for delivery of possession of suit site involved in that case was rejected and it was held as part of the public pathway. On such consideration based on the facts of that case, the appeal by the Municipality was partly allowed and at the same time, the Municipality was restrained from putting up such structures. On facts, the said decision also cannot have an application in this case. In **Tanoor Panjayat's** case, the grievance of the respondent therein was against the proposal of the Municipality to erect a temporary shed on the road frontage of his property for the purpose of running a library for the benefit of local fishermen. Then the panchayat submitted before the court that the shed would not cover the entire road margin and that even after its construction, there would be ample space left for access to the WP(C).No.2230/2011 8 road. Further, it was pointed out on behalf of the Municipality that the respondent/plaintiff after the institution of the suit constructed the building contemplated by him in his suit property. The court found that the respondent/plaintiff could not claim that the panchayat should keep the road margin vacant for his use, as part of the road especially when the construction proposed by the panchayat would leave ample space on the north and south of his property for access to the road. True that in that case, the court held that the respondent therein is entitled to access to the road at every point where the suit property which belongs to him touches it, but as it did not touch the road at any point, he got no such right of access. After holding as such, the judgment and decree of the lower appellate court granting injunction against the Municipality were set aside and the second appeal was allowed. After giving anxious consideration to the contentions of the petitioner relying on the aforesaid decisions, I am of the considered view that those decisions cannot render any support to the petitioner's case in view of the indisputable facts and relevant aspects mentioned in the preceding paragraph. In this case, the petitioner did not have a case that the structures sought to be erected therein are not necessary for the public purpose as revealed by respondents 1 and 2. So also, the petitioner did not have a case that he is not a WP(C).No.2230/2011 9 consumer of electricity. If all the residents in the locality take up such a stand I am afraid, even the petitioner would not get the very facility of electrical connection. In this modern age, use of electricity cannot be dispensed with and if all the owners of properties adjoining a highway are permitted to take up such a stand that there shall not be any structure on the road frontage of his/her property, even if such structures would not cause obstruction to their access to the highway and vice versa, that would affect the very system of supply of electricity. In view of the facts obtained in this case that the petitioner had already constructed a compound wall, that he has already put up a gate and that the structures which were erected by the KSEB as part of City Automation Scheme lie aloof from the gate put up by him and also in view of the fact that the petitioner can have free access to the public road in question through the gate already put up by him after constructing compound wall, I do not think that the petitioner can succeed in his contentions. True that, the petitioner being an owner of a land adjoining a public road is having the private right as distinct from his right to use the said public road as a member of public for ingress and egress to his property without obstruction. But, that right when sufficiently protected, he cannot adopt such extreme stand to defeat a WP(C).No.2230/2011 10 real public purpose which would benefit him as well. In this case, since he has already constructed a gate for his ingress and egress and the structures are put up away from the said gate, the petitioners cannot have any bonafide and genuine grievance. When it is evident that the structures are erected not in a manner blocking the gate or put up immediately near the gate, I do not think that the petitioner can legally raise any objection to the erection of such structures that too, as part of City Automation Scheme, which would certainly be beneficial to the petitioner as well. In the aforesaid circumstances, I do not find any merit in this writ petition. This writ petition is liable to fail and accordingly, it is dismissed. Sd/- C.T.RAVIKUMAR Judge TKS