Popular Vehicles and Services Pvt. Ltd. v. State of Kerala; Kavitha Cycles v. Delhi Metro Rail Corporation Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 24TH DAY OF OCTOBER 2018 / 2ND KARTHIKA, 1940** ## **WP(C).No. 20672 of 2018** ## **PETITIONER/S:** **M/S. POPULAR VEHICLES AND SERVICES PVT. LTD. KUTTUKKARAN CENTRE, MAMANGALAM, KOCHI 682 025, REPRESENTED BY ITS DEPUTY GENERAL MANAGER (DGM) (LEGAL) PRAMOD JAIJI.** **BY ADVS. SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO PUBLIC WORKS DEPARTMENTS, SECRETARIAT, THIRUVANANTHAPURAM.** - **2 THE EXECUTIVE ENGINEER (ROADS) KERALA PUBLIC WORKS DEPARTMENT (ROADS DIVISION), NEAR NGO QUARTERS, EDAPPALLY, ERNAKULAM, PIN - 682 024.** - **3 THE KOCHI METRO RAIL CORPORATION LTD. REVENUE TOWERS, PARK AVENUE, ERNAKULAM, PIN - 682 011. REPRESENTED BY ITS MANAGING DIRECTOR.** - **4 THE DEPUTY GENERAL MANAGER DGM CIVIL KOCHI METRO CORPORATION LTD., REVENUE TOWERS, PARK AVENUE, ERNAKULAM, PIN - 682 011.** **BY ADVS. SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SC KOCHI METRO RAIL LTD. SRI.K.JAJU BABU (SR.)** - ## **OTHER PRESENT:** **SR.GP B.VINOD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.10.2018, ALONG WITH WP(C).26515/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 20672 of 2018 and conctd. Case** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 24TH DAY OF OCTOBER 2018 / 2ND KARTHIKA, 1940** ## **WP(C).No. 26515 of 2017** ## **PETITIONER/S:** **KAVITHA CYCLES 27/489, TOLL JUNCTION, EDAPPALLY, KOCHI-24, KANAYANNUR TALUK,ERNAKULAM DISTRICT REPRESENTED BY ITS MANAGING PARTNER,DEEPAK D.SHAH,S/O.D.P.SHAH, AGED 62 YEARS** **BY ADVS. SRI.P.M.ZIRAJ SRI.JITHIN VARGHESE** ## **RESPONDENT/S:** **1 DELHI METRO RAIL CORPORATION LTD. (DMRC) HAVING ITS PROJECT OFFICE OF KOCHI METRO RAIL PROJECT, SECOND FLOOR, GCDA, EASTERN ENTRY TOWER,KARSHAKA ROAD, ERNAKULAM SOUTH-682016 REPRESENTED BY ITS PROJECT DIRECTOR 2 KOCHI METRO RAIL LTD REGISTERED OFFICE,8TH FLOOR, REVENUE TOWER,PARK AVENUE, KOCHI-682011 REPRESENTED BY ITS PROJECT MANAGER 3 THE STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT,PUBLIC WORKS DEPARTMENT, GOVERNMENT OF KERALA,GOVERNMENT SECRETARIAT, THIRUVANANTHPAURAM PIN-695001** **BY ADVS. SRI.K.ANAND (SR.) SRI.K.JAJU BABU (SR.) SMT.LATHA ANAND SC DELHI METRO RAIL CORPN. SMT.M.U.VIJAYALAKSHMI SC KOCHI METRO RAIL LTD. SRI.K.ANAND (SR.) SRI.K.JAJU BABU (SR.)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.10.2018, ALONG WITH WP(C).20672/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 20672 of 2018 and conctd. Case** **3** ## **JUDGMENT** **The petitioners in these writ petitions are seeking directions to the respondents to provide full entry to the petitioners from their buildings situated on the side of the main road and to remove the restrictions already put in place. Parties and documents are referred to as in W.P.(C)No.26515/17 unless otherwise specified.** **2. It is submitted by the learned counsel appearing for the petitioners in these cases that the petitioners are conducting commercial establishments in the buildings abutting the Aluva -Ernakulam road. It is stated that the Metro Rail Corporation, which is carrying out the maintenance works of the roads, has put up barricades and footpaths in front of the petitioners' properties stricting their access to the road. It is submitted by the learned counsel appearing for the petitioners that the provisions of the Kerala Highway Protection Act, 1999 as well as** **WP(C).No. 20672 of 2018 and conctd. Case** **4** **the Control of National Highways (Land and Traffic) Act, 2002 are not specifically applicable in the instant case and that as such, there is no statutory provision enabling the respondents from placing restrictions on the right of entry of the petitioners on to the main road. Reliance is placed on a decision of this Court in** _**M.V. Joseph v. District Magistrate (1996 KHC 346)**_ **to contend that the persons who own property by the side of highways and public roads have a private right of access to the highway at every point where their property touches the highway and that such right cannot be arbitrarily denied. It is contended that the road in question is not a notified highway and that, as such, the provisions of the Kerala Highway Protection Act would also not apply. It is further submitted that even if such provisions are applicable, respondents 3 and 4 are not Highway Authorities as notified under the Act. The specific nature of the business carried out** **WP(C).No. 20672 of 2018 and conctd. Case** **5** **in the premises makes full access to the road a necessity, it is contended.** ## **3. A detailed counter affidavit has been placed** **on record in both these writ petitions by respondents** **3 and 4. It is stated in the counter affidavit in** ## **W.P.(c)No.26515/17 as follows:** **“5. With regard to the contentions raised in paragraph 2 of the writ petition it is respectfully submitted that as a part of KMRL's Non-Motorised Transport initiatives, KMRL has engaged contractor for construction footpath and drainage work from Edappally Church to Deshabhimani. The main aim of this project is to provide safe pedestrian movement along the corridor and the free access from Bus Stop to nearby Metro stations. At present there is no well defined and designed footpath available in between the above stretches. People are walking along the State Highway and also crossing the State highway wherever they want without and any safety. This resulted frequent accidents in stretch of State Highway. At present people are forced to walk along the road and also crossing the road without any precautions. This has resulted in frequent accidents along the stretch.** **6. The main aim is to provide safe pedestrian movement and encourage walking, it was decided to construct a dedicated footpath with handrails and to provide specified zebra crossing to enable safe crossing acorss the State Highway by the pedestrians. The handrails are proposed to be provided for the safety of the pedestrian movement and to disallow blocking of the footpath by parking vehicles. But at the same time, wherever access to the entrance to the building or to the available parking space in front of the buildings or basement parking etc. was existing, an opening of 3.5 metres width and more was also provided for, based on the type of vehicles coming to the buildings/parking areas.** **7. In the instant case, total frontage of the building is 37.30 meters and hence 3 entries/exit** **WP(C).No. 20672 of 2018 and conctd. Case** **6** **are provided with a width of 6.30 meters, 5.60 meteres and 7.05 meters respectively to the building after discussing with the representative of the petitioner in the site. The balance area is only being protected with handrail for the safe pedestrian movement. The line sketch and actual site measurements is produced herewith and marked as Exhibit.R3(a). The petitioner has no vested right for the uncontrolled vehicular access to the property or to park any vehicles on the footpath. There is no justification for the demand for utilising the entire frontage of their property for vehicular access and it is apparently with an ulterior motive for enabling parking of vehicles on the footpath.** **8. With regard to the contentions raised in paragraph 3 of the writ petition it is respectfully submitted that the handrails are fixed as per standards to ensure the safety of pedestrians. It is not true that KMRL is installing handrails in front of all the buildings by providing a small space for ingress and egress. For the said building, already three openings were provided having widths 6.30m, 5.60m, and 7.05m, which is not a small space for ingress/aggress and is sufficient for the functioning of the business of the petitioner. It can also be noted that out of the total frontage of 37.30 meters, a total of 18.95 meters is provided for ingress/aggress to the vehicles, which is almost 51% of the total frontage. Only the balance 49% is covered with handrails and the same is essential to ensure the safety of pedestrians and for blocking unauthorised parking on the footpath.”** **4. The learned senior counsel appearing for respondents 3 and 4 as also the learned Government Pleader would submit that the steps taken by respondents 3 and 4 are in pursuance of a tripartite agreement entered into between the Central Government, State Government and the implementing** **WP(C).No. 20672 of 2018 and conctd. Case** **7** **authority for providing the Auxiliary facilities for implementation of the Kochi Metro Rail Project. It is stated that sufficient emphasis has been given to public safety. It is stated that the right of the pedestrians and general public for the use of the road has to be balanced with the right of the petitioners for use of their property abutting the highway. It is stated that in view of the fact that no inconvenience has been caused to the petitioners, the contention that the petitioners are entitled to access to the road at every point is misconceived. The decision of this Court relied on by the learned counsel for the petitioners itself had specifically holds that the right of the public authorities to erect obstructions such as electric posts, telephone posts, bus shelters etc., which may infringe the private right of land owners abutting the highway is specifically protected.** **5. The learned Government Pleader would submit** **WP(C).No. 20672 of 2018 and conctd. Case** **8** **that the right of the public for a safe and proper use of the highway is to be balanced against the right of the petitioner and where a public law remedy is being exercised, the public rights are liable to be protected.** **6. I have considered the contentions advanced on either side at considerable length and have perused the pleadings and materials on record. It is clear that the petitioners, who are owners of property abutting the public road have a right of access to the road in question. However, the private right of access to the public road at every point that the property touches the highway, obviously, is subject to reasonable restrictions with regard to the concerns of safety and public interest. This Court in** _**M.V Joseph's case(Supra)**_ **had also considered these aspects. It had been held by this Court that the public right of passage of the general public over a highway is a higher right than the right of private** **WP(C).No. 20672 of 2018 and conctd. Case** **9** **access of persons owing property abutting the highway. In the instant case, it is clear that what has been done is the erection of handrails on a portion of the property in front of the petitioners' buildings. The handrails abut the footpath which is constructed immediately after the carriage way. It is stated that more than 50% of the frontage of the property is left open for access to the petitioners. The respondents specifically contend that the purpose for which the handrails are placed is for the safe use of the footpath by pedestrians and to prevent parking of vehicles preventing such free use of the footpath. It is submitted that the access of the petitioners to the properties in question is also not being blocked.** **7. I am not impressed by the contention that the provisions of the Kerala Highway Protection Act do not have any application in the instant case. The road in question is undoubtedly a major road and** **WP(C).No. 20672 of 2018 and conctd. Case** **10** **respondents 3 and 4 have been empowered to make necessary auxiliary arrangements for the travel of public on the same. There is no challenge to the scheme framed or the orders passed in this regard. The respondents therefore have the right to take appropriate steps to see that the higher public right of passage over the public road is appropriately protected. Safety of the travelling public is also to be taken into account by the respondents.** **In the above view of the matter, I am of the opinion that there can be no direction that no restrictions of any kind can be put on the right of access of the petitioners to the road. I am of the opinion that the arrangements now made are clearly in public interest and that putting up of the handrails leaving adequate space for access of the petitioners to their properties in question do not amount to violating the right of the petitioners for access to their premises. Prayers made in these writ petitions** **WP(C).No. 20672 of 2018 and conctd. Case** **11** **cannot be allowed. The writ petitions fail and are accordingly dismissed. It is made clear that the right of access of the petitioners to the public road as mentioned in the counter affidavit filed by respondents 3 and 4 shall not be further curtailed by the respondents** **Sd/-** sab **ANU SIVARAMAN JUDGE** **WP(C).No. 20672 of 2018 and conctd. Case** **12** ## **APPENDIX OF WP(C) 20672/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 01.06.2018 SUBMITTED BEFORE THE 4TH RESPONDENT.** RESPONDENTS EXHIBITS : EXHIBIT R3(A) COPY OF THE PHOTOGRAPHS SHOWING THE LINE SKETCH AND ACTUAL SITE MEASUREMENTS EXHIBIT R3(B) COPY OF THE GOVERNMENT ORDER GO(MS) NO.34/2017/TRANS DATED 19.4.2017 EXHIBIT R3(C) COPY OF THE PHOTOGRAPHS SHOWING VEHICLES PARKED ACROSS THE FOOTPATH OBSTRUCTING THE PEDESTRIAN FROM WALKING AHEAD ## **APPENDIX OF WP(C) 26515/2017** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1: TRUE PHOTOGRAPHS OF THE SHOP OF THE PETITIONER AT PRESENT** **EXHIBIT P2: TRUE PHOTOGRAPHS OF THE BARRICADE FIXED BY THE CONTRACTOR ON BEHALF OF THE 1ST AND 2ND RESPONDENTS** **EXHIBIT P3: TRUE PHOTOGRAPHS GRANTING OPENING SPACE TO THE SHOP ROOM FROM ROAD TO THE ENTIRE BUILDING WITHOUT BARRICADE** **EXHIBIT P4: TRUE COPY OF THE REPRESENTATION DATED 29.07.2017 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT EXHIBIT P5: TRUE COPY OF THE REPRESENTATION DATED 29.07.2017 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT** RESPONDENTS EXHIBITS : EXHIBIT R2(A) TRUE COPY OF THE LINE SKETCH SHOWING ACTUAL SITE MEASUREMENT EXHIBIT R2(B) PHOTOGRAPHS SHOWING THE OPENING TO THE BUILDING AND THE BALANCE AREA. TRUE COPY PA TO JUDGE sab