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2006 DIGILAW 837 (KER)

Mini K. Pai v. District Collector

2006-12-06

S.SIRI JAGAN

body2006
JUDGMENT : This is the third attempt by the petitioner to get the respondents to concede a right of way to the petitioner's property through the road used by the 2nd respondent as access to the fire station near to the petitioner's property. The Government acquired certain property for the purpose of establishment of a fire station at Cherthala. This property lies between the Hospital Road and Alappuzha Cherthala road. According to the petitioner, before the acquisition, the above two roads had access to each other through the acquired property. When the acquired property was enclosed by compound walls, this access got blocked. The only right of access to her property now is through the road leading to the property acquired for the fire station. The employees of the fire station started blocking the pathway leading to the petitioner's property from the road towards the fire station by parking old vehicles on the mouth of the pathway leading to the petitioner's property. In the said circumstances, the petitioner earlier approached this Court by filing WP (C) No. 3289/2004. In that case, by Ext. P9 judgment, a learned Single Judge of this Court directed the Tahsildar to make reverification and issue instructions to the fire force in regard to the parking of old vehicles in such a way without obstructing the petitioner's access to her house. The learned Single Judge also made it clear that if there is another road access to the petitioner's house, there is no need to provide road facility over the Government's property to the petitioner's property and the fire force is free to use their property and road to the exclusion of others, including the petitioner. Complaining violation of the above said judgment the petitioner again the petitioner approached this Court by filing CCC No. 358/2004. In that contempt case, the learned Single Judge directed the Collector to decide the matter in the light of Ext. P9 judgment. Pursuant to the same, the Collector passed Ext. P12 order holding that the petitioner had formed a new road to her house beginning from the boundary of the property acquired for the fire force and former access to the petitioner's property was through the other side. Apparently on the ground that the petitioner had another access to her property, the Collector held that the petitioner has no right for a road through the acquired property. Ext. Apparently on the ground that the petitioner had another access to her property, the Collector held that the petitioner has no right for a road through the acquired property. Ext. P12 order is under challenge in this writ petition. 2. In the counter affidavit filed on behalf of the 1st respondent it was stated that the petitioner got property after a partition in the family. Before the partition, all the houses had a common pathway on the other side. It was deliberately closed and the petitioner formed a new access to her property beginning from the boundary of the acquired property and this was for claiming a new access to her property. It is further stated in the counter affidavit that the properties of the family including the petitioner's had a common pathway and it is after having been convinced of this fact that the District Collector has passed the order, Ext. P12, that too, after conducting a site inspection. On these averments, the respondents would strongly oppose the writ petition. 3. I have heard counsel on both sides. 4. Ordinarily, I would have relegated the petitioner to the remedy by way of a civil suit since this case involves disputed questions of fact relating to the right of way to the petitioner's property. However, a learned Single Judge of this Court has by Ext. P9 judgment recognised certain rights on the petitioner which the respondents could negative only if the petitioner had another road access to the petitioner's house. The relevant portion of Ext. P9 judgment reads thus: "In the circumstances, WP is disposed of directing the Tahsildar to make re-verification and issue instruction to the fire force in regard to parking of old vehicles in such a way without obstructing the petitioner's access to his house. The petitioner will produce a copy of this judgment before the Tahsildar, Cherthala, who will conduct inspection and issue appropriate instructions to the fire force authorities and they will follow his instruction in regard to parking of vehicles. The fire force department is free to park their vehicles anywhere in their property, but without blocking the entry of vehicles to the petitioner's house. The fire force department is free to park their vehicles anywhere in their property, but without blocking the entry of vehicles to the petitioner's house. However, I make it clear that if there is another road access to the petitioner's house, there is no need to provide road facility over the Government's property to the petitioner, and the fire force is free to use their property and road to the exclusion of others, including the petitioner." 5. The respondents, did not challenge Ext. P9 judgment. That being so, the said judgment has become final. As such, going by Ext. P9 judgment the respondents could have denied access to the petitioner's property through the property acquired for the fire station only if there was another road access to the petitioner's property. In view of such right recognised by this Court and since the only dispute is as to whether the petitioner had another alternate access to her property, I thought that this matter could be resolved by appointing an Advocate Commissioner to ascertain whether the petitioner had alternate access to her property apart through the property acquired for the fire station. The Advocate Commissioner has filed her report, paragraphs 5 to 8 of which read thus: "5. After the establishment of the Fire Station it is not possible to reach the Alappuzha Cherthala Road from the Hospital Road through the acquired property. Therefore, to find out whether or not there is any pathway to reach the petitioner's property from the eastern public road i.e., Alappuzha Cherthala Road I had to travel 1 km. 6. From the eastern public road I entered into a small pathway on the northern side of which is the boundary wall of a shopping complex and on the Southern side is a canal, leading to the residential plot of Sri. Mohana Pai. Ex Fire Station Officer Sri. Mohammed Iqbal told me that there is a way leading to the petitioner's property through the property of Sri. Mohana Pai, But he could not show me any way through that property to reach the petitioner's property. Since the petitioner's property is fully enclosed on all sides i.e. by fence on 3 sides and boundary wall on one side, one cannot enter that property from the neighbouring plots. 7. Mohana Pai, But he could not show me any way through that property to reach the petitioner's property. Since the petitioner's property is fully enclosed on all sides i.e. by fence on 3 sides and boundary wall on one side, one cannot enter that property from the neighbouring plots. 7. As directed in the order I have prepared a rough sketch showing petitioner's property, the acquired property for the Fire Station, the western PWD Road, the way of the petitioner up to the acquired property, the road lying through the acquired property upto the western PWD Road and the vehicle parked and the same is appended. II. The 2nd direction is to report whether or not the petitioner has got any road access other than through the acquired property. 8. On a detailed examination I could not find any road access otherwise than through the acquired property to the petitioner's plot." The Commissioner has also produced a rough sketch. Although the 1st respondent has filed an objection to the Commissioner's report, on a reading of the Commissioner's report and the sketch provided by her, I am satisfied that the petitioner has now no road access otherwise than through the property acquired for the fire station. It is under the above circumstances that I have decided to entertain this writ petition without relegating the petitioner to her ordinary civil remedy by way of a suit. Apart from that, I am unable to comprehend the attitude of the respondents' in this matter. The use of the road through the acquired property as access to the petitioner's property would not in any way affect the use of the acquired property by the 2nd respondent. The respondents have no case to that effect. After filing the counter affidavit, in the objection to the Commissioner's report, they have sought to raise another objection to the effect that the property was handed over by the Travancore Devaswom Board for the establishment of fire station on certain conditions mentioned in Annexure I and it is because of that, the petitioner cannot be allowed to have road access through the acquired property. I am of opinion that Annexure I need not stand in the way of the respondents giving access to the petitioner's plot through the acquired property since it is not difficult to direct that the petitioner also would be strictly bound by the terms and conditions in Annexure I. Insofar as the respondents would not in any way be prejudiced by the use of the road leading to the acquired property for access to the petitioner's plot, I am of opinion that the respondents who are Government offices should not take a stand against such access to the petitioner's property through the acquired land. In the above circumstances, there would be a direction to the respondents to permit the petitioner to use the road leading to the property acquired for the fire station for access to the petitioner's property which is the subject matter of this writ petition. The respondents shall not in any way obstruct such access to the petitioner's property either by parking vehicles blocking the access of the petitioner to the road leading to the acquired property from the petitioner's plot through the pathway which reaches the acquired property. However, such right shall be subject to the conditions mentioned in the letter dated 24/05/2003 issued by the Devaswom Commissioner, Travancore Devaswom Board produced as Annexure I to the objections dated 03/10/2006 filed on behalf of the 1st respondent. The writ petition is disposed of as above.