Allowed

Abdu v. State of Kerala

Kerala HC14 Feb 2020WP(C)/406/2020

Case brief

AI extract

What is this about?

Petitioners approached the High Court for police protection and to stop illegal auto-taxi parking in front of their residence. Relying on common law rights of access and a 1996 precedent, the Single Bench held no such parking is permissible where it denies access. The interim order prohibiting parking was confirmed and made absolute upon the respondent's representation that the matter was addresse

What did the court decide?

The interim order prohibiting parking on the petitioners' premises was made absolute; the writ petition is disposed of on receipt of the respondents' representation.

Abdu Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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FRIDAY, THE 14TH DAY OF FEBRUARY 2020 / 25TH MAGHA, 1941

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WP(C).No.406 OF 2020(A)

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PETITIONERS:

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1 ABDU, AGED 60 YEARS, S/O. MOIDUNNY, ARANGATHUPARAMBIL HOUSE, CHIRAMANANGAD P.O PANNITHADAM-680 604.

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2 MOHAMMEDKUTTY, AGED 57 YEARS, S/O. MOIDUNNY, ARANGATHUPARAMBIL HOUSE, CHIRAMANANGAD P.O PANNITHADAM-680 604.

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3 SAID MUHAMMED, AGED 54 YEARS, S/O. MOIDUNNY, ARANGATHUPARAMBIL HOUSE, CHIRAMANANGAD P.O PANNITHADAM-680 604.

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4 AZIS K.M., AGED 35 YEARS, S/O. MOHAMMADALI, KULANGARA VEEDU, CHIRAMANANGAD P.O PANNITHADAM-680 604.

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BY ADVS. SRI.RAJIT SMT.PARVATHY MANOJ

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE HOME SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE DISTRICT POLICE CHIEF, AYYANTHOLE, THRISSUR, KERALA-680 003.

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3 THE DISTRICT COLLECTOR, COLLECTORATE, AYYANTHOLE, THRISSUR-680 003.

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4 THE CIRCLE INSPECTOR OF POLICE, ERUMAPETTY POLICE STATION, ERUMAPETTY, THRISSUR, KERALA-680 584.

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WP(C).No.406 OF 2020

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5 THE SUB INSPECTOR OF POLICE, ERUMAPETTY POLICE STATION, ERUMAPETTY, THRISSUR, KERALA-680 584.

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6 THE JOINT REGIONAL TRANSPORT OFFICER SOUHRADA ARCADE, NEAR TALUK OFFICE, VADAKKANCHERRY, THRISSUR-680 582.

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7 THE SECRETARY, KADANGODE GRAMA PANCHAYAT, VELLATHERI ADHOOR ROAD, VELLARAKKAD, KERALA-680 584.

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8 SWATHANTHRA AUTO-TAXI THOZHILALI UNION, REPRESENTED BY ITS PRESIDENT, SHIHAB, AGED 35 YEARS, S/O. SATHYAN, KALLAYIL HOUSE, A.K.G NAGAR, CHIRAMANANGAD P.O., PANNITHADAM-680 604.

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BY ADV. SRI.PP THAJUDEEN, SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.406 OF 2020

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JUDGMENT

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Dated this the 14th day of February 2020

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The petitioners are residing on the Southern side of the Pannithadam-Wadakkancherry road, approached this Court for police protection as against illegal parking of auto-taxis by the members of the 8^th respondent-Swathanthra Auto-Taxi Thozhilali Union in front of the petitioners' residential building.

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This Court on 09.01.2020 granted the following

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interim order:

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“If there is any illegal parking in front of the petitioners' house, necessary action shall be taken to remove the same. It is made clear that no parking shall be allowed unless the area is notified as a parking area by the competent authority.”

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The learned counsel for the petitioner, Smt.Parvathy

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Manoj referred to Halsbury's Laws and the judgment of this Court, argued that a person owning land adjoining highway has

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right of access to the Highway at any point and their right is both private and public.

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WP(C).No.406 OF 2020

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4. Halsbury's Laws, Volume 21 refers to the right of

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access of an adjoining owner to the Highway at any point of his land. It is appropriate to refer Halsbury's Laws in regard to the

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right available as per the common law.

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“229. Nature and extent of right. At common law, an owner of land adjoining a highway is entitled to access to that highway at any point at which his land actually touches it, even though the soil of the highway is vested in another; but he has no such right if a strip of land, however narrow, belonging to another and not subject to the public right of passage, intervenes.

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The right of access of an adjoining owner from his premises to the highway and vice versa is a private right, and is distinct from his right to use the highway as soon as he is upon it, which (at any rate if the soil of the highway is not his) he enjoys only as a member of the public. An interference with the transference of goods from the highway to private premises is therefore an interference with a public right in which the owner of the premises has an individual interest as a member of the public.

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The private right of access is subject to the public right of passage, which is the higher right; but the public right of passage is subject to the private right of access to the highway where the adjoining owner may exercise that right by means which do not amount to a serious obstruction to the right of passage and are not therefore inconsistent with it.

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The right of access is not limited to the right to pass from the premises to the highway and vice versa, but includes the right of access to a wall on the boundary of the premises. Where a foot walk intervenes between the carriageway and the adjoining premises, the owner of those premises if he also owns the soil up to the middle of the highway, is entitled at common law to access across the

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WP(C).No.406 OF 2020

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footwalk to the carriageway for any kind of traffic which is necessary for the reasonable enjoyment of his premises and will not, as he proposes to conduct it, cause a substantial nuisance, and, it seems, his rights are the same, even if he does not own the soil of the highway.”

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By adverting to the Halsbury's Laws as above, the

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Single Bench of this Court way back in 1996 in M.V. Joseph v. District Magistrate [1996 (2) KLT 490] held that a person owning land adjoining highway has every right of access to the highway at any point of his land.

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In the light of the settled principles of law, no autotaxis can be parked abutting the house of the petitioners by denying right of access as above.

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The learned Government pleader submitted that based on the interim order passed by this Court on 09.01.2020, all such illegal parking has been stopped.

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Recording the above submission and making the interim order as absolute, the writ petition is disposed of.

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Sd/-

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A.MUHAMED MUSTAQUE JUDGE

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akv/15.2.2020

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WP(C).No.406 OF 2020

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF PHOTOGRAPHS EVIDENCING THE MANNER OF PARKING OF AUTO-TAXIS BY MEMBERS OF 8TH RESPONDENT UNION BEFORE THE HOUSES OF THE PETITIONERS.

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EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 18-112014 PREFERRED BY THE AUTO DRIVERS ASSOCIATION PAZHAYANADAKKAVU THRISSUR, TO THE REGIONAL TRANSPORT OFFICER, THRISSUR.

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EXHIBIT P3 TRUE COPY OF THE REPLY DATED 16-12-2014 ISSUED BY THE REGIONAL TRANSPORT OFFICER, THRISSUR.

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EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATE 17-122019, PREFERRED BY THE PETITIONERS BEFORE THE 5TH RESPONDENT.

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RESPONDENT'S/S EXHIBITS : NIL.

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//TRUE COPY//

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P.A. TO JUDGE

Abdu v. State of Kerala

Case brief

What is this about?

What did the court decide?

Abdu v. State of Kerala

Case brief

What is this about?

What did the court decide?

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