T.K. Padmanabhan v. Corporation of Kochi & Others (W.P.(C) No.6847 of 2023)

W.P.(C) No.6847 of 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 9**[TH] **DAY OF APRIL 2024 / 20TH CHAITHRA, 1946** ## **WP(C) NO. 6847 OF 2023** ## **PETITIONER:** ## **T.K.PADMANABHAN,** **AGED 79 YEARS S/O. KOCHU PILLAI,THEKKEDATH PARAMBU,VADUTHALA ERNAKULAM, PIN - 682023** **BY ADVS. C.G.PREETHA N.G.ANITHA DR.ABHILASH O.U.** ## **RESPONDENTS:** |**1**|**CORPORATION OF KOCHI,**| |---|---| ||**PARK AVE ROAD, MARINE DRIVE ERNAKULAM REPRESENTED**| ||**BY ITS SECRETARY, PIN - 682011**| |**2**|**HENRY AUSTIN,**| ||**THE COUNCILOR DIVISION 31- KOCHI CORPORATION BOAT**| ||**JETTY ROAD, VADUTHALA ERNAKULAM, PIN - 682023**| |**3**|**GEORGE PUDUMANA,**| ||**S/O. PATHROSE, PUDUMANA HOUSE CHANDY ROAD, VADUTHALA**| ||**ERNAKULAM, PIN - 682023**| |**4**|**P.G. SUNIL,**| ||**S/O. GEORGE, PUDUMANA HOUSE CHANDY ROAD, VADUTHALA**| ||**ERNAKULAM, PIN - 682023**| |**5**|**STANSILAUS T.V.,**| ||**S/O. VARGHESE, THEKUMTALA HOUSE THANAL 77, CHANDY**| ||**ROAD, VADUTHALA ERNAKULAM, PIN - 682023**| |**6**|**ANTONY SHIBU,**| ||**S/O. K.V. GEORGE, KOLAPARAMBIL HOUSE, THANAL 73,**| ||**CHANDY ROAD, VADUTHALA ERNAKULAM, PIN - 682023**| W.P.(C) No.6847 of 2023 2 **7 VARGHESE JOSEPH S/O. JOSEPH, POOTHAMPILLY HOUSE, EAST OF PUMP HOUSE, TOLL GATE ROAD, VADUTHALA ERNAKULAM, PIN - 682023 8 T.V. RAPHEL, S/O. VARGHESE, THEKUMTALA HOUSE, CHANDY ROAD, VADUTHALA ERNAKULAM, PIN - 682023 9 JAMES ROY K.A., S/O. ANTONY K.T., KALLUVEETTIL HOUSE , CHANDY ROAD, VADUTHALA ERNAKULAM, PIN - 682023 10 RAJESH K.S. S/O. SREEDHARAN, KANNATH HOUSE CHANDY ROAD, VADUTHALA ERNAKULAM, PIN - 682023** **BY ADVS. D.G.VIPIN VINOD S. PILLAI S.Shanavas Khan Shahul Hameed S.INDU(K/002856/1999) KALA G.NAMBIAR(K/515/2006)** ## **OTHER PRESENT:** **ADV.RENI JAMES ADV.D.G.VIPIN FOR KOCHI CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.02.2024, THE COURT ON 09/04/2024 DELIVERED THE FOLLOWING:** W.P.(C) No.6847 of 2023 3 ## **V.G.ARUN J.** ------------------------------------- W.P.(C) No.6847 of 2023 ## **---------------------------------** Dated this the 9[th] day of April 2024 ## **JUDGMENT** The petitioner and his brother Narayanan jointly owned 34.5 cents of land comprised in old Sy.No.889/2 of Cheranallur Village, Ernakulam District. When they partitioned the property in the year 1987, a small extent of land was set apart for a pathway to be used as common access to the properties from the nearby public road (Chandy Road). Later, the properties were sold in parcels to various persons with the right to use the pathway for access to their respective plots. Over a period of time, the pathway got converted to a private street with electric posts and a common drainage. Gradually, maintenance and repair work of the street was taken over by the Corporation. While so, the Corporation decided to declare the private street as a public road and to include the road in its asset register. This move was W.P.(C) No.6847 of 2023 4 opposed by the petitioner, contending that the land over which the street is laid belongs to him and persons residing on either side of the street have only the right to use the road. Petitioner even moved suit seeking a declaration that the subject street is a private street and prayed for a prohibitory injunction restraining the Corporation and others from converting the private street into a public road without following due process of law. According to the petitioner, in spite of filing the suit, the second respondent, who is the ward councillor, attempted to carry out renovation work of the road, leading to a law and order situation and filing of complaints before the police. While so, the residents on either side of the street approached the High Court contending that the street is in a dilapidated condition and since the Corporation had decided to include the street in its asset register, is therefore bound to carry out repairs immediately. That writ petition [W.P. (C) No.16619 of 2022] was disposed of by Ext.P5 judgment, directing the Secretary of the Kochi Municipal Corporation to take immediate decision on the representation submitted by the residents. The petitioner, who was not made a party to W.P.(C) No.16619 of 2022, became aware of the decision taken by the Kochi Corporation to include the private street in its asset register only on receipt of a copy of the judgment. Thereupon he filed the W.P.(C) No.6847 of 2023 5 ## instant writ petition, seeking the following reliefs; “i) To issue a writ of mandamus or any other writ, order or direction to the first respondent prohibiting him from including the subject pathway as part of the asset register of the Corporation without following the due procedure prescribed under the statute; ii) To issue a writ of mandamus or any other writ, order or direction calling for the records leading to the passing of Exhibit P6 and quash the same as illegal. iii) To grant stay of all further proceedings pursuant to Exhibit P6 pending final decision in O.S.No.135 of 2023 on the file of the Hon'ble Munsiff Court at Ernakulam.” 2. Heard learned Counsel for the petitioner and the respondents. 3. The question arising for consideration is regarding the legality and validity of Ext.P6 decision of the Corporation Council deciding to declare the subject street as a public street. Going by the undisputed facts, the subject street has been used by the public for the past many years and the street is being maintained by the Corporation. Electricity poles have been erected on its side and a drainage has also been constructed. Pertinently, except the petitioner, owners and occupiers of the properties/buildings on W.P.(C) No.6847 of 2023 6 either side of the street have given consent for declaring the street as a public street and including it in the asset register of the Corporation. 4. The factual scenario being as above, Sections 359 to 363 of the Kerala Municipality Act, 1994 ('the Act' for short), dealing with private streets assume importance. As per Section 359 of the Act an owner of any land, utilising, selling, leasing or disposing the land or any portion or portions of the same as sites for the construction of building is bound to lay down and make a street or streets or road or roads giving access to the site or sites and connecting with an existing public or private street. In the case at hand, the petitioner and his brother have complied with the requirement of Section 359 by providing a street for accessing the public road. Once such a street is provided, Section 362 require the owners or occupiers of buildings or lands fronting or abutting the street to maintain it in proper condition. If the owners or occupiers fail to maintain the street, the Secretary of the Corporation/Municipality can call upon them to carry out such work and if, in spite of such direction, the necessary work is not carried out, the Secretary can get the work executed and recover the expense incurred from the owners and occupiers. In the case at hand, the Corporation has carried out the necessary work on its own. Being so, Section 363, W.P.(C) No.6847 of 2023 7 ## extracted hereunder for convenience, would come into play; ## “ **363. Right of owners to require street to be declared** **public** :-Where any street has been levelled, paved, metalled, flagged, channelled, drained, conserved and lighted under the provisions of Section 362 such street shall, on the requisition of the majority of the owners thereof, be declared a public street”. 5. The above provision makes it evident that a street, which has been constructed and maintained as per Section 362, can be declared to be a public street on the request of majority of the owners thereof. The ‘owners’, as stated in Section 362, can only be the owners of the buildings/lands fronting or abutting the street and not the owner of the land over which the street has been constructed. A perusal of Ext.P6 decision shows that the majority of owners of the subject street had requested the Corporation to declare it as a public street. As such, the Corporation was well within its rights in declaring the street as a public street, despite the petitioner’s objection. As held by this Court in **Mariam Beevi v.** **Secretary, Athirampuzha Grama Panchayath, Kottayam and Others (2015 (3) KHC 199)** , once a private road connects somebody else's property and becomes part of a network of roads or paths, the road ceases to have any exclusivity, since individual W.P.(C) No.6847 of 2023 8 interest should yield to common good. 6. The challenge against inclusion of the road in the asset register of the Corporation cannot be decided, since no such decision is seen produced. Needless to say that, as per Section 207 of the Act, all public roads vest with the Municipality/Corporation. Once a public road vests with the Corporation, it becomes the Corporation’s immovable property and has to be included in the inventory of immovable properties owned by the Corporation, as mandated by Section 211 of the Act. Being so, inclusion of the subject street in the inventory of the Corporation cannot also be faulted. For the aforementioned reasons, the writ petition is dismissed. Sd/- **V.G.ARUN** **Judge.** Dpk W.P.(C) No.6847 of 2023 9 ## **APPENDIX OF WP(C) 6847/2023** ## **PETITIONER EXHIBITS** - **EXHIBIT P1 THE TRUE COPY OF THE TAX RECEIPT IN THE PETITIONER'S NAME DATED 17.06.2021** - **EXHIBIT P2 THE TRUE COPY OF THE LETTER FROM THE DISTRICT COLLECTOR TO THE TAHSILDAR (LAND RECORDS), KANAYANNUR DATED 26.12.2022** - **EXHIBIT P3 THE TRUE COPY OF THE LETTER ISSUED FROM 1ST RESPONDENT OFFICE DATED 08.07.2021** - **EXHIBIT P4 THE TRUE COPY OF THE PLAINT IN O.S.NO 135 OF 2023 ON THE FILE OF THE HON'BLE MUNSIFF COURT, ERNAKULUM FILED BY THE PETITIONER DATED 07.02.2023** - **EXHIBIT P5 THE TRUE COPY OF THE JUDGMENT IN W.P.(C.)NO 16619 OF 2022 PASSED BY THIS HON'BLE COURT DATED 29.06.2022** - **EXHIBIT P6 THE RELEVANT EXTRACT OF THE AGENDA OF THE COUNCIL MEETING DATED 08.03.2022** - **EXHIBIT P7 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 15.02.2023** - **EXHIBIT P8 The true copy of the complaint submitted by the petitioner before the Sub Inspector Station, Kasaba Police Station, Kacheripady, Eranakulam dated 13.01.2023** - **EXHIBIT P9 The true copy of the complaint submitted by the petitioner before the Assistant Commissioner of Police, Ernakulam dated 13.02.2023** - **EXHIBIT P10 The true copy of the acknowledgment issued by the Assistant Commissioner of Police, Ernakulam dated 13.02.2023** - **EXHIBIT P11 The true copy of the registration card of the petitioner issued by the General Hospital, Ernakulam dated 15.02.2023** - **EXHIBIT P12 The true copy of the complaint submitted by the** W.P.(C) No.6847 of 2023 10 **petitioner's wife before the SHO, Kasaba Town North Police Station, Kacheripady, Ernakulam dated 15.02.2023** **EXHIBIT P13 The true copy of the complaint submitted by the petitioner's wife before the SHO, Women Police Station, Kacheripady, Ernakulam dated 15.02.2023** ## **RESPONDENT EXHIBITS** |**Exhibit**|**True copy of the agreement dated 06/01/2020 entered**| |---|---| |**R6(a)**|**into between on the petitioner herein and one Mr.**| ||**Joseph Correya.**| |**Exhibit**|**True copy of yet another agreement dated 26/10/2010**| |**R6(b)**|**entered into between petitioner and one Mr. Dominic**| ||**Savio.**| |**Exhibit**|**True copy of the acknowledgment receipt of petition**| |**R6(c)**|**dated 07/02/2023 issued by Ernakulam Town North**| ||**Police Station .**| |**Exhibit R6**|**True copy of the receipt dated 09/02/2023 issued**| |**(d)**|**from the office of District Police Chief, Ernakulam**| ||**evidencing the acceptance of petition .**| |**EXHIBIT R-**|**True copy of the relevant page of the Asset**| |**1(A)**|**register maintained in the office of the**| ||**Corporation**| |**Exhibit**|**True photographs showing the present lie and nature**| |**R2(a)**|**of Chandy Road bye-lane**| |**series**||