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2021 DIGILAW 935 (KER)

Prof. Sebastian Joseph v. Chirakkadavu Grama

2021-10-12

N.NAGARESH

body2021
JUDGMENT : The petitioner, a Professor by profession, is before this Court seeking to direct respondents 1 and 2 to consider Ext.P2 representation and to remove the illegal bunk of the 3rd respondent situated in front of the petitioner’s house. 2. The petitioner states that he is residing at home in 20th Mile, Ponkunnam in Kottayam District along with his aged mother, wife and children. His house plot is adjacent to NH-220. The 3rd respondent erected an illegal Box Shop in front of the petitioner’s house in 2018. It soon became a nuisance to the family of the petitioner. The petitioner repeatedly requested the 3rd respondent and the 3rd respondent moved his Box Shop towards the next boundary. But, a Bunk which he uses to store his materials, still remains in front of the petitioner’s property. The Bunk is an obstruction to the pedestrians walking through the pathway. The petitioner submitted Ext.P2 complaint to the Grama Panchayat. However, the Panchayat has not taken any action. 3. Respondents 1 and 2 filed a statement in the writ petition. Respondents 1 and 2 stated that the petitioner submitted a complaint requiring the Grama Panchayat and its Secretary to remove the Bunk installed by the 3rd respondent in front of the house of the petitioner. When the writ petition came up earlier before this Court, the Court directed that the Secretary of the Grama Panchayat should personally visit the place where the Bunk Shop is installed by the 3rd respondent. Accordingly, the Secretary of the Grama Panchayat inspected the site and found that the 3rd respondent has installed a Bunk Shop on wheels and doing business. The said Bunk is installed on the side of the new NH-183. The Bunk Shop clearly causes obstruction to the ingress and egress to the petitioner's residential house on the side of new NH-183. The Secretary also verified the records maintained by the Grama Panchayat and the verification revealed that the Grama Panchayat has not issued a licence to the 3rd respondent to install the Bunk in question. 4. The 3rd respondent filed a counter affidavit and controverted the pleadings of the petitioner. The 3rd respondent stated that he is doing business in front of the property of one Smt. Lailakutty. He is not using any Bunk to store any material. The 3rd respondent holds FSSAI registration. The Box Shop shown in Ext.P1 belongs to someone else. 4. The 3rd respondent filed a counter affidavit and controverted the pleadings of the petitioner. The 3rd respondent stated that he is doing business in front of the property of one Smt. Lailakutty. He is not using any Bunk to store any material. The 3rd respondent holds FSSAI registration. The Box Shop shown in Ext.P1 belongs to someone else. The writ petition discloses animosity and vengeance against a poor man who is a senior citizen doing a seasonal business in a small village, putting tapioca under an umbrella in front of Smt. Lailakutty’s property without causing any harm to the petitioner or other pedestrians. 5. The 3rd respondent has no connection with the Bunk shown in Ext.P1 photograph, reiterated the 3rd respondent. Respondents 1 and 2 are not the proper parties to take any action as it is a property vested with the Executive Engineer (Roads), National Highway of Public Works Department. The Panchayat has no jurisdiction, contended the 3rd respondent. 6. Heard the learned counsel for the petitioner, the learned Standing Counsel for respondents 1 and 2 and the learned counsel for the 3rd respondent. 7. The petitioner contends that there is a Bunk situated on the front side of his residential plot which is causing nuisance to the petitioner, his family and also to pedestrians. According to the petitioner, the Bunk belongs to the 3rd respondent. Though the 3rd respondent has shifted his Box Shop to a place nearby, the Bunk in front of the petitioner’s house is remaining there and the 3rd respondent is using the same for storing materials. The 3rd respondent would state that his Bunk is in front of the property of one Smt. Lailakutty and not in front of the petitioner’s house. 8. The Secretary to the Panchayat personally inspected the site and found that the 3rd respondent has installed a Bunk in front of the petitioner’s house and the Bunk clearly causes obstruction to the ingress and egress to the petitioner's residential house. The Panchayat has not issued any licence to the said Bunk. 9. The right of a person owning land adjoining a Highway to have access to the highway at any point has been recognised by Courts in India in various decisions reported in Sheonarayan v. Dindayal [AIR 1931 Nag. 189], Muhammad Din Mian and others v. Atirajo Kuer and others [AIR 1931 Pat. 9. The right of a person owning land adjoining a Highway to have access to the highway at any point has been recognised by Courts in India in various decisions reported in Sheonarayan v. Dindayal [AIR 1931 Nag. 189], Muhammad Din Mian and others v. Atirajo Kuer and others [AIR 1931 Pat. 418], Bati Ram Kolita and others v. Sibram Das and others [AIR 1921 Cal. 271], Mandakinee Debee v. Basantakumaree Dabee [AIR 1933 Cal. 884], Damodara Naidu and others v. Thirupurasundari Ammal and others [ AIR 1972 Mad. 386 ]. This Court in its decision in Tanoor Panchayat v. Kunhiamutty [ 1978 KLT 813 ] also held that an owner of land adjoining a highway is entitled to as a matter of private right access to such highway at any point at which his land actually touches it. Therefore, person owning a property abutting a highway or a pathway over which the public has a right of passage, has a right to have access at each point where the highway touches his property. The said right cannot be violated otherwise than in public interest. The right cannot be infringed by erecting or parking an unlicensed Bunk. 10. In the present case, the Bunk in issue is placed on the side walk of a public road. That would indeed affect the right of pedestrians using the road. Pedestrians are the most vulnerable group on roads. The pedestrians have a right to freely walk through foot paths and where there is no paved or laid footpaths, along the side walks of surfaced roads. The said right is the fact of Article 19(1)(d) of the Constitution of India. The right to walk/passage of the pedestrians can be curtailed or regulated only in public interest. 11. There is a tendency in Kerala to erect unauthorised Bunks on footpaths and on sides of busy public roads, without obtaining any licence or permit from Local Self Government Institutions or from any other public authority. Many a time, such Bunks are erected on wheels to escape from the clutches of civic laws and by passage of time such mobile bunks get embedded in ground. Where the footpaths or side walks do not have sufficient width, such illegal Bunks force the pedestrians to walk through the surfaced roads meant for vehicular traffic, inviting motor accidents, consequential injuries and even loss of life. Where the footpaths or side walks do not have sufficient width, such illegal Bunks force the pedestrians to walk through the surfaced roads meant for vehicular traffic, inviting motor accidents, consequential injuries and even loss of life. It is high time the Government and Local Self Government Institutions take steps to curb mushrooming of such illegal, unauthorised and unlicensed Bunks. In the facts and circumstances of the case, the petitioner is entitled to relief. The writ petition is allowed and the competent among respondents 1 and 2 and the additional 4th respondent are directed to remove the unlicensed Bunk/Box Shop situated in front of the petitioner’s property within a period of one month.