R.S.A. No. 656 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **FRIDAY, THE 4TH DAY OF APRIL 2014/14TH CHAITHRA, 1936** ## **RSA.No. 656 of 2013 ()** **----------------------AS 43/2012 OF ADDL. DISTRICT COURT, OTTAPALAM DATED 15-03-2013 OS 144/2008 OF MUNSIFF-MAGISTRATE COURT, PATTAMBI DATED 19-12-2011** **----------------** ## **APPELLANTS/APPELLANTS/DEFENDANTS :** **-----------------------------------------------------------------** **1. THE DISTRICT COLLECTOR, COLLECTORATE OFFICE, PALAKKAD.** **2. THE PROJECT MANAGER** ## **NIRMITHI KENDRA, MUTTIKULANGARA, PALAKKAD.** **3. THE ASSISTANT EXECUTIVE ENGINEER ROAD SUB DIVISION, SHORANUR.** **BY GOVT. PLEADER SMT. LILLY LISLIE** ## **RESPONDENT/RESPONDENT/PLAINTIFF :** **-------------------------------------------------------------** **MOHAMMED, AGED 61 YEARS S/O. KOYAMU, MARKKASSERY, MELMURI DESOM MUTHTHALA AMSOM, OTTAPALAM TALUK, PIN - 679 101.** **BY SENIOR ADVOCATE SRI.T.KRISHNAN UNNI BY ADV. SRI.SAJU.S.A BY ADV. SMT.MEENA A.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 656 of 2013 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 04[th] day of April, 2014 ## **J U D G M E N T** The issue involved in this second appeal is regarding the construction of a private tourist taxi stand on the road margin which interferes with the right of access of the plaintiff to the public road. 2. Shorn off unnecessary details, the plaintiff owns the plaint schedule property which abuts the national highway. The defendants in the suit thought of putting up a parking area for tourist taxi owners. They sought to put up the structure right across the building which was under construction in a plot purchased by the plaintiff for the purpose of erecting a commercial building. The plaintiff therefore approached the court below by pointing out that he had a right of access from every point of his property to the public pathway and also contending that the act of providing a parking area for private tourist taxi owners is not **R.S.A. No. 656 of 2013** **-2-** a public purpose and relief was sought for against putting up of the structure. It is not in dispute that along with the suit, they have moved an interlocutory application in which the relief was granted. The structure was put up during the pendency of the suit after the interim order of injunction was vacated. 3. The contention of the defendants was that they had utilized the space for public purpose and any private right which the plaintiff may have access to the public road from every point of his property is subject to the public interest. Therefore, the plaintiff does not have any indefeasible right to have access from every point of his property. 4. On the pleadings, issues were raised and parties went to trial. The evidence consists of the testimony of PWs 1 and 2 and Ext. A1 marked from the side of the plaintiff. The defendants did not adduce any oral evidence and they were satisfied by marking Exts. B1 to B5 series. ## **R.S.A. No. 656 of 2013** **-3-** 5. The trial court, on an evaluation of the evidence, found that the grievance of the plaintiff was genuine and purpose for which the area was used does not fall within the ambit of public purpose and therefore, decreed the suit as prayed for. 6. The aggrieved defendants carried the matter in appeal as A.S.No.43/2012. The learned appellate Judge, on an independent evaluation of the evidence in the case, concurred with the trial court and confirmed the decree. 7. The learned Government Pleader appearing for the appellants contended that courts below have erred both on facts and in law in granting a decree in favour of the plaintiff in the suit. The Panchayat is under a statutory obligation to provide parking spaces and that alone has been done in the case on hand. When a statutory obligation is cast on the Panchayat, it takes the colour of public purpose and providing tourist taxi parking area therefore overrides the private interest of the plaintiff. It is further contended that **R.S.A. No. 656 of 2013** **-4-** even after taking note of the area covered by the parking space, there is enough space for easy access to the building that is sought to be put up by the plaintiff in his property. No loss or injury is caused to the plaintiff with the parking area put up by the Panchayat. 8. The learned senior counsel Sri. T. Krishnanunni appearing for the contesting respondent on the other hand pointed out that it is not a question of whether any loss or injury is caused to the plaintiff but it is a question of affecting the absolute private right of the plaintiff which is recognized in law as regards the right of access from every inch of his property to the public way. Of course, the learned senior counsel was fair enough to concede that the private interest may have to yield to public interest. But the learned senior counsel went on to contend that this Court had occasion to consider whether providing parking area for tourist taxi vehicles fall within the ambit of public purpose and this Court held, it does not. Even otherwise, according **R.S.A. No. 656 of 2013** **-5-** to the learned senior counsel, there are sufficient space elsewhere, where the parking area could have been provided. The parking area now provided runs right across the face of the commercial building which is sought to be put up and that considerably affects the business prospects in the shopping complex of the plaintiff. It is therefore contended that no grounds are made out to interfere with the judgment and decree of the courts below. 9. True, the Kerala Panchayat Raj (Landing places, Halting places, Cart Stands and Other Vehicles Stands) Rules, 1995 cast an obligation on the Panchayat to provide sufficient area of parking vehicles. The said Rules provide certain procedure to be followed in doing so. 10. The right of an owner of the property abutting a public road to have access to the road from every inch of his property is well recognized. If any authorities are required in that regard, the same is furnished by the decision reported in Tanoor Panchayat v. Kunhiamutty [1978 KLT 813] and **-6-** ## **R.S.A. No. 656 of 2013** ## M.V. Joseph v. District Magistrate [1996 (2) KLT 490]. 11. Of course, the private rights so recognized by law are subject to public interest. What constitutes the public interest is the matter to be determined in the facts and circumstances of each case. The question as to whether providing parking area of vehicles abutting the private right of the owner of the property was a public purpose for considering the decision reported in M.V. Joseph's case (cited supra). After analyzing the private right which was available to the owner of the property concerned and also considering what constitutes public interest, this Court had occasion to hold that providing parking area for taxi cars does not fall within the ambit of a public purpose. No other decision is brought to the notice of this Court while takes a different view. 12. The learned Government Pleader pointed out that that there is enough space for the vehicles to pass and reach the building that is sought to be constructed by the **R.S.A. No. 656 of 2013** **-7-** plaintiff and none of his rights are seriously affected. 13. The contention cannot be accepted for the reason that on going through the Commission report, it is seen that the parking area now put up by the Panchayat covers almost the entire front portion of the building and the access now shown to the building is far on the northern side. Going by the Commission report, there are other spaces available where the parking area could have been provided, even though the learned Government Pleader disputed the said fact. 14. It is significant to notice that the structure was put up during the pendency of the suit after the interim order of injunction was vacated. As rightly noticed by the trial court, merely because the Collector has sanctioned the construction and it was utilizing the funds of representatives of people, those facts do not convert a private purpose into public purpose. The question as to what constitute the public purpose is elaborately considered in M.V. Joseph's ## **R.S.A. No. 656 of 2013** **-8-** case (cited supra). Applying the test laid down in the said decision, it cannot be said that the purpose for which the Panchayat has utilized the place fall within the ambit of public purpose. If that be so, both the courts below are justified in holding that the structure had to be removed so as to ensure the private place that was accrued to the plaintiff. The result is that this second appeal is without merits and is liable to be dismissed. I do so. Sd/- **P.BHAVADASAN JUDGE** ds //True Copy// P.A. To Judge