Allowed

Kurian Paul v. the Inspector of Police, Puthukkad

Kerala HC12 Dec 2022WP(C)/33597/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition seeking removal of a metal fence obstructing a public road vested in a Panchayat. The court presumed the road was public based on Asset Register entries and directed the Panchayat to clear the obstruction to allow the petitioner access.

What did the court decide?

Direction to the 4th respondent Panchayat to remove all obstructions on the northern side of the petitioner's property abutting the road foreitherwithstandingpendingsuits.

Kurian Paul Vs the Inspector of Police… — Public Procurement and Tenders | Kerala HC (2022)

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“C R”

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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 MURALI PURUSHOTHAMAN

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MONDAY, THE 12^TH DAY OF DECEMBER 2022 / 21ST AGRAHAYANA, 1944

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WP(C) NO. 33597 OF 2022

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PETITIONER/:

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KURIAN PAUL AGED 59 YEARS

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S/O PAUL, THERATTIL KALAPURA HOUSE, AMBALLUR VILLAGE, VENDOOR DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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BY ADVS. SIRAJ KAROLY JAVED HAIDER ANSILA C.A.

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RESPONDENTS:

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1 THE INSPECTOR OF POLICE, PUTHUKKAD PUTHUKKAD PUTHUKKAD POLICE STATION, THRISSUR DISTRICT 680301.

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2 THE DISTRICT SUPERINTENDENT OF POLICE , THRISSUR RURAL THRISSUR 680503.

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3 THE REVENUE DIVISIONAL OFFICER, IRINJALAKKUDA REVENUE DIVISIONAL OFFICE, IRINJALAKKUDA THRISSUR DISTRICT 680121.

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4 ALAKAPPANAGAR GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY ALAKAPPANAGAR P O, THRISSUR DISTRICT 680 302.

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5 AJI, AGED 35 S/O ANTHONY, MANJALI HOUSE, VENDOOR DESOM, AMBALLOR VILLAGE. MUKUNDAPURAM TALUK. ALAGAPPA NAGAR, THRICHUR DISTRICT 680302.

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6 JOJU, AGED 40, S/O ANTHONY, MANJALI HOUSE, VENDOOR DESOM, AMBALLOR VILLAGE. MUKUNDAPURAM TALUK. ALAGAPPA NAGAR, THRICHUR DISTRICT 680302.

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WP(C) NO. 33597 OF 2022

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7 ANTHONY, AGED 53, S/O CHAKKUNNI, MANJALI HOUSE, VENDOOR DESOM, AMBALLOR VILLAGE . MUKUNDAPURAM TALUK. ALAGAPPA NAGAR, THRICHUR DISTRICT 680302.

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BY ADVS. K.S.BHARATHAN N.L.BITTO ALPHIN ANTONY AADITHYAN S.MANNALI VISAKH ANTONY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 33597 OF 2022

“C R”

JUDGMENT

The petitioner is a permanent resident of Alakappanagar Grama Panchayat (hereinafter referred to as the 'Panchayat', for short), the 4^th respondent. The property of the petitioner was purchased as per Ext. P1 sale deed dated 24.01.1997 and the dwelling is assessed to property tax by the Panchayat.

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The petitioner states that there is a road by name 'Manjali road' (the 'road', for short) used by the public on the northern side of his property which is vested in the Panchayat and included in Ext. P4 Asset Register of the Panchayat.

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The petitioner contends that, respondents 5 to 7, who are the residents at the terminal end of

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the road, have blocked his entry to the road from

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his residence by putting metal fencing sheets on the side of the road. Though the petitioner raised objection against blocking his entry to the road, he was assaulted and a case is registered against respondents 5 and 6 by the Police. The petitioner contends that the persons having land on either side of the road have got every right to use the road and the Panchayat has a duty to remove the obstruction under the provisions of the Kerala Panchayat Raj Act, 1994 (for brevity, 'K P R Act') and the Revenue Divisional Officer, the 3^rd respondent has also a duty to remove the obstruction from public road exercising powers under Section 133 of the Code of Criminal Procedure, 1973. Though the petitioner approached respondents 3 and 4 to take steps for removal of obstruction, they have not taken any action. The petitioner also submits that he has

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WP(C) NO. 33597 OF 2022

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filed a suit before the Munsiff's Court, Irinjalakkuda as O.S. No. 345/2022 arraying respondents 5 and 6 herein as defendants for fixation of boundary and consequential injunction, which is pending. The petitioner contends that since the only cartable road to his property has been obstructed, his freedom of movement guaranteed under the Constitution has been infringed and therefore, prays for direction to respondents 1 to 4 to remove the obstruction on the road.

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When the writ petition came up for admission on 21.10.2022, this Court ordered notice to respondents 5 to 7 by special messenger and posted the writ petition on 28.10.2022. On the said day, respondents 5 to 7 entered appearance through counsel and sought time for filing counter affidavit. The learned counsel for

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the petitioner submitted that the petitioner's wife had undergone a surgery recently and the road referred to in Ext. P4 is the only cartable road from his residence. Taking note of the medical emergency, this Court passed an interim order on 28.10.2022 and the relevant portion of the order reads as under:

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“3. It is submitted by the learned counsel for the petitioner that the wife of the petitioner has undergone a surgery recently and that the village road referred to in Exts.P4 and P5 is the only cartable road from the residence of the petitioner.

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There will be a direction to respondents 5 to 7 to remove the metal fencing in front of the house of the petitioner so as to have ingress and egress to his residence including the movement of petitioner's vehicle.

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This order will be without prejudice to the contentions of the parties in any pending suit. Post on 01.11.2022.”

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On 01.11.2022, when the writ petition

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came up for consideration, it was submitted by

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the learned counsel for the petitioner that the interim order dated 28.10.2022 was not complied with by respondents 5 to 7. The writ petition was posted to 02.11.2022 and the respondents 4 and 6 filed counter affidavits. When the matter was taken up for consideration on 04.11.2022, this Court passed an order, the relevant portion whereof reads as under:

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“6.The interim order dated 28.10.2022 was passed taking into consideration the medical emergency pointed out by the petitioner. Admittedly, the order is not complied with by respondents 5 to 7. There will be a direction to the Secretary of the 4th respondent Panchayat to remove such part of the metal fencing in front of the house of the petitioner so as to create a passage for the vehicle of the petitioner including car/ambulance. The Secretary can seek necessary assistance from the 1st respondent, which the 1st respondent shall provide. This order will be without prejudice to the contentions of the parties in any pending civil suits or in this writ petition. Post on 10.11.2022.”.

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6.It is submitted by the counsel for the

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petitioner that the order dated 04.11.2022 was implemented by the Secretary of the Panchayat.

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In the counter affidavit filed on behalf of the Panchayat, it is stated that the road namely "Manjaly Road" mentioned in Ext.P4 Asset Register as item number 212 is vested in the Panchayat.

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A counter affidavit is filed by the 6^th respondent on his behalf and on behalf of respondents 5 and 7 wherein it is stated that the pathway in question is not a public way, and the 7^th respondent is the absolute owner of the

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pathway and is paying land tax for the same. It is averred that the petitioner has other pathway for ingress and egress from his property. It is further stated that the petitioner had preferred a suit as O.S. No. 312 of 2003 before the Additional

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Munsiff Court, Irinjalakkuda for declaration of

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easement by prescription over the pathway in question and the same was dismissed. It is stated that, later, the petitioner preferred a suit for fixation of boundary as O.S. No.345 of 2022 contending that the respondents 5 to 7 constructed boundary wall by trespassing into the property of the petitioner, wherein, he has no case that he is using the pathway in dispute for his ingress and egress. It is also stated that the petitioner could have sought for the relief of demolition of the wall in question in the said suit and the petitioner has filed the writ petition suppressing material facts. They also state that the 7^th respondent has not relinquished his right over the pathway and the land was not acquired by the Panchayat and the Panchayat has, by Ext. R6 (e), informed the 6^th respondent that no documents are available with them as to how the

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road is included in the Asset Register. It is stated that the 7^th respondent has preferred Ext. R6 (f) complaint before the Panchayat to remove the

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entry regarding the road from the Asset Register.

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A reply affidavit is filed by the petitioner stating that O.S. No. 312 of 2003 filed by him for declaration of easement by prescription over the pathway was dismissed by the Court on the technical ground that the petitioner's right had not ripened into an easement by prescription. It is stated that the dismissal of the said suit two decades back will not deny his right over the road subsequently formed and notified in the Asset Register. The petitioner further states that O.S. No.345 of 2022 was filed in March, 2022 and the blockade was made by respondents 5 to 7 thereafter. The petitioner has also produced discharge summary of his wife issued from the

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hospital.

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Heard Sri. Siraj Karoly, the learned counsel for the petitioner, Smt. Surya Binoy, the learned Government Pleader for respondents 1 to 3, Sri. K.S. Bharathan, the learned standing counsel for the 4^th respondent and Sri. Bitto N.L, the learned counsel for respondents 5 to 7.

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According to Sri. Siraj, the road is vested in the Panchayat and is included in the Asset Register and the respondents 5 to 7 have no right to obstruct the entry of the petitioner to the road from his property. The learned counsel submits that the road in question is the only cartable road to the petitioner's property and being the owner of the land adjoining the road vested in the Panchayat, he is entitled to access to the road at any point at which his land actually touches the road. Sri. Siraj refers to Section 272 of the K P R

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Act and submits that all roads vested in or maintained by a Panchayat shall be open to the use and enjoyment of all persons. Sri. Siraj relies on the decision of this Court in Mariam Beevi v.

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Athirampuzha Grama Panchayat [2015 (2) KLT 768:2015 (3) KHC 199: ILR 2015 (2) Ker. 976] and contends that, any street, road, square, port, alley, passage, cart-tract, foot-path or riding path, over which the public have a right of way, even if it is not a thoroughfare, is a public road.

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Sri. Bharathan appearing for the Panchayat would submit that the road is vested in the Panchayat in terms of Section 169 (1) (c) of the K P R Act and is entered in the Asset Register of the Panchayat. Sri. Bharathan refers to Rule 80 of the Kerala Panchayat Raj (Accounts) Rules, 2011 which provides that the Secretary shall maintain appropriate Asset Registers as prescribed by the

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Government to record the details of all movable and immovable assets owned by the Panchayat or assigned/ transferred to the Panchayat. Referring to paragraph 6 of the counter affidavit filed by the 6^th respondent wherein it is stated that the 7^th respondent is the absolute owner of the pathway, Sri. Bharathan would contend that having admitted the existence of pathway, to claim exclusiveness, they have to approach the Civil Court. Referring to the decision in Mariam Beevi (supra), Sri. Bharathan contends that, once a property assumes the character of a road or a path, having the potential of being a public utility, it ceases to have any exclusivity. Sri. Bharathan would also contend that, if respondents 5 to 7 dispute the vesting of the road in the Panchayat or the inclusion in the Asset Register, their remedy is to approach the Civil Court.

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Sri. Bitto would contend that there is no vesting of the road in the Panchayat and unless

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there is a surrender or relinquishment or acquisition proceedings, the question of vesting of private property in the Panchayat does not arise. In Ext. R6 (e), the Panchayat has admitted that there is no record to show how the road is brought into the Asset Register of the Panchayat. Sri. Bitto relies on the Division Bench decision in

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Roy Abraham v. State of Kerala and others

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[2021 (4) KHC 520:2021 (4) KLT 318] and contends that only when there is surrender of property by its owner, the Panchayat gets conferment of rights over the property. Relying on the decision of this Court in Radhakrishnan T.K. v. State of Kerala [2022 (2) KHC 86], Sri. Bitto contends that Asset Register cannot be relied on to prove whether the pathway is public pathway

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or not and that no one can be dispossessed from his property without resorting to the procedure prescribed by law. Sri. Bitto further contends that the suit for declaration of easement by prescription over the pathway was dismissed by the Civil Court and the same has become final and the suit for fixation of boundary is pending before Civil Court and no relief can be granted to the petitioner particularly when he has approached this Court suppressing the dismissal of the suit for declaration of easement by prescription.

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According to the Panchayat, the road in question is vested in the Panchayat in terms of Section 169 (1) (c) of the K P R Act and is entered in their Asset Register. The questions as to the vesting of the road and how the road is brought into Ext. P4 Asset Register are matters of evidence. In Radhakrishnan T.K. (supra), this

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Court, while deciding the Regular Second Appeal, on an appreciation of the evidence on record, came to the conclusion that the entries made in the Asset Register therein are not clear conferment of the rights over the property in favour of the Panchayat. This Court, in paragraph 23 of the said decision, held as under:

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“23.....It has come out in evidence that there was no Panchayat committee decision for inclusion of the disputed pathway as a 'way' in the register of the assets of the Panchayat. The defendants have no case that the land was surrendered by the plaintiff to the Panchayat for widening the pathway. In the above circumstances, the asset register cannot be relied on to prove that the disputed pathway is a public pathway as contended by the defendants.”

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15.The Asset Register of the Panchayat being a statutory document maintained in terms of the provisions of the Kerala Panchayat Raj (Accounts) Rules, 2011, the entries therein have to be

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presumed to be correct unless it is established that the same are incorrect.

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16.O.S. No. 312 of 2003 filed by the petitioner for declaration of easement by prescription over the pathway was dismissed by the Court by Ext. P9 judgment dated 21.08.2004 on the ground that his right then was inchoate. Since the road is included in the Asset Register of the Panchayat, there is presumption regarding the vesting of road in the Panchayat consequent to the entries therein, which is rebuttable. Accordingly, it is for the respondents 5 to 7 to establish in appropriate proceedings that the entries are wrong and made without any legal sanction.By virtue of the entries made in Ext.P4 Asset Register, there is conferment of the rights over the road in favour of the Panchayat and the respondents 5 to 7 cannot obstruct the access of the petitioner to the road.

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Section 272 of the K P R Act provides that all roads vested in or maintained by a Panchayat shall be open to the use and enjoyment of all persons. Accordingly, there will be a direction to the 4^th respondent to remove all obstructions on the northern side of the petitioner's property abutting the road shown as item No.212 in Ext. P4 Asset Register forthwith. The observations herein and the direction issued will not impede any remedy available to respondents 5 to 7 in civil laws.

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The writ petition is allowed as above. There will be no order as to costs.

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MURALI PURUSHOTHAMAN JUDGE

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WP(C) NO. 33597 OF 2022

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APPENDIX OF WP(C) 33597/2022

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PETITIONER EXHIBITS:

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Exhibit P1 TRUE COPY OF THE SALE DEED NO 446/1997 OF NELLAYI SRO DATED 24.1.1997.

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Exhibit P2 TRUE COPY OF THE REVENUE TAX RECEIPT OF THE PROPERTY FOR THE YEAR 2022-23 DATED 16.6.2022.

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Exhibit P3 TRUE COPY OF THE PROPERTY TAX FOR THE BUILDING ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT FOR THE YEAR 2022-23 DATED 10.10.2022.

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Exhibit P4 TRUE COPY OF THE ASSET REGISTER MAINTAINED IN THE OFFICE OF THE 4TH RESPONDENT 9.6.2022 .

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Exhibit P5 TRUE COPY OF THE PHOTOGRAPH SHOWING LIE OF THE ROAD. Exhibit P6 TRUE COPY OF THE FIR DATED 15.6.2022. Exhibit P7 TRUE COPY OF THE REPRESENTATION DATED 20.9.2022 SUBMITTED BY THE PETITIONER BEFORE 3RD RESPONDENT.

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Exhibit P8 TRUE COPY OF THE RECEIPT 20.9.2022 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT.

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Exhibit P8 A TRUE COPY OF THE RECEIPT 20.9.2022 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT.

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WP(C) NO. 33597 OF 2022

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Exhibit P8 B TRUE COPY OF THE RECEIPT 20.9.2022 ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT.

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RESPONDENT EXHIBITS

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Exhibit R6(A)	A TRUE COPY OF THE JUDGEMENT AND DECREE IN O.S. 312 OF 2003 OF THE ADDITIONAL MUNSIFF COURT, IRINJALAKUDA DATED 21.08.2004.
Exhibit R6(B)	A TRUE COPY OF THE PLAINT IN OS 345 OF 2022 PREFERRED BY THE PETITIONER BEFORE THE MUNSIFF COURT, IRINJALAKUDA DATED 23.03.2022.
Exhibit R6(C)	A TRUE COPY OF THE COMMISSION REPORT IN OS 345 OF 2022 OF THE MUNSIFF COURT IRINJALAKUDA DATED 5.4.2022.
Exhibit R6(D)	A TRUE COPY OF THE LAND TAX RECEIPT ISSUED FROM THE AMBALLORE VILLAGE OFFICE IN FAVOR OF 7TH RESPONDENT DATED 16.07.2022.
Exhibit R6(E)	A TRUE COPY OF THE REPLY ISSUED FROM THE ALAGAPPANAGAR GRAMA PANCHAYATH DATED 5.7.2022.
Exhibit R6(F)	A TRUE COPY OF THE COMPLAINT LAUNCHED BY THE 7TH RESPONDENT DATED 29.8.2022.

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PETITIONER EXHIBITS

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Exhibit P9 TRUE COPY OF THE JUDGMENT IN O.S. 312/2003 ON THE FILE OF THE ADDITIONAL MUNSIFF'S COURT, IRINJALAKKUDA DATED 21.8.2004.

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Exhibit P10 TRUE COPY OF THE PLAINT IN O.S. 345/2022 ON THE FILE OF HON'BLE MUNSIFF'S COURT, IRINJALAKKUDA

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DATED NIL.

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Exhibit P11 TRUE COPY OF THE COMMISSION REPORT DATED 5.4.2022. Exhibit P12 TRUE COPY OF THE COMMISSION REPORT DATED 27.6.2022. Exhibit P13 TRUE COPY OF THE DISCHARGE SUMMARY OF THE PETITIONER'S WIFE SHEELA KURIAN ISSUED FROM THE RAJAGIRI HOSPITAL 13.10.2022. Exhibit P14 TRUE COPY OF THE COMPLAINT MADE BY PETITIONER ALONG WITH A COPY OF INTERIM ORDER BEFORE THE 1ST RESPONDENT DATED 29.10.2022. Exhibit P14(A) TRUE COPY OF THE RECEIPT ISSUED BY THE 1ST RESPONDENT DATED 29.10.2022. Exhibit P15 TRUE COPY OF THE PETITION SENT THROUGH E MAIL TO THE SUPERINTENDENT OF POLICE, THRISSUR DATED 30.10.2022.

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spc/..

Kurian Paul v. the Inspector of Police, Puthukkad

Case brief

What is this about?

What did the court decide?

Kurian Paul v. the Inspector of Police, Puthukkad

Case brief

What is this about?

What did the court decide?

What the court decided

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