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2025 DIGILAW 2589 (KER)

Abraham John, S/o K. A Mathew v. State Of Kerala

2025-09-29

K.NATARAJAN

body2025
JUDGMENT : K. NATARAJAN, J. This original petition is filed by the petitioner/plaintiff for setting aside the order dated 01.07.2025 passed in I.A.No.3/2025 in CMA No.19/2025 by the District Court, Pathanamthitta and the order dated 10.04.2025 passed in I.A.No.2/2024 in O.S.No.111/2024 on the files of Munsiff Court, Ranni. 2. Heard the arguments of the learned counsel for the petitioner and respondents. 3. The case of the petitioner is that the petitioner/plaintiff filed a Suit against the respondents/defendants for permanent prohibitory injunction restraining the defendant Nos.3 to 5 and their officers from making any constructions or encroachment in plaint schedule Item Nos.2 & 3 properties and causing any obstructions to the plaintiff from accessing item Nos.2 & 3 properties. 4. The plaintiff claims himself is the absolute owner in possession of 16.72 Ares of land in Sy.No.274/6 in block No.9 of Pazhavangadikkara Village (herein after referred as Schedule item No.1). The schedule item No.1 lies on the immediate east of the erstwhile PWD road leading from the erstwhile Ranni bridge which collapsed few years ago and a new construction of a bridge was came up. The Punalur and Muvattupuzha highway is further west of the erstwhile Ranni bridge, portion of the said erstwhile PWD road immediately abutting the plaint schedule property lying as a vacant land. The erstwhile PWD road portion is described as plaint schedule item No.2. 5. The further case of the plaintiff is that the plaint item schedule item No.2 property is a part of the erstwhile Pathanamthitta – Erumeli PWD road which was major district road connecting Pathanamthitta town to Erumeli town and beyond till Sabarimala. The said road is passing through several Grama Panchayats and block Panchayats including Konni, Ranni and Kanjirappally before reaching Sabarimala. After the construction of the Punalur - Muvattupuzha State highway, substantial portion of the Pathanamthitta - Erumeli PWD Road has become part of the State highway, the plaintiff has reason to believe that schedule item No.2 property also being declared as part of the said state highway. The plaint Schedule item No.3 property is part of the said highway lying in the north of the new Ranni bridge. 6. The plaint Schedule item No.3 property is part of the said highway lying in the north of the new Ranni bridge. 6. The further case of the plaintiff is that the defendant Nos.3 & 4 along with other officers in the PWD and Local Self Government unlawfully encroached into the western portion of the plaint schedule item No.1 property and attempted to obstruct the construction of the compound wall along with the northern boundary of the item No.1 which forced the plaintiff to file the Suit, OS No.96 of 2024, wherein an injunction has been passed against the said defendants. 7. It is further contended that the plaintiff came to know that a building including toilets and septic tanks are about to construct in the plaint schedule item Nos.2 and 3 properties by the defendants 3 to 5 and the defendants have no legal right to make any construction over the plaint schedule Item Nos.2 and 3. 8. It is further contended that the schedule item Nos. 2 and 3 properties lie within the control lines as determined by the competent authority under the Kerala Highway Protection Act, 1999. The plaint schedule Item Nos. 2 and 3 properties of the 1 st defendant, State of Kerala, the 2 nd defendant constituted the Highway Authority in relation to plaint schedule item Nos.2 and 3 properties. The 2nd defendant has demarcated the boundaries of the Punalur - Muvattupuzha State highway by planting stones and other suitable marks along with the said highway. The schedule item Nos.2 and 3 properties lie within the eastern boundary of the said highway. 9. It is also contended that the respondents have no right over the property for construction of any toilet or building on the State highway which is protected under the Kerala Highway Protection Act, 1999. Therefore, Suit came to be filed restraining the defendants from putting up any constructions. Along with the plaint, the petitioner/plaintiff also filed an interlocutory application under Order 39 Rule 1 of Code Civil Procedure, 1908, for passing injunction against the defendants, which came to be dismissed on 10.04.2025 in I.A.No.2/2024. Being aggrieved by the same the plaintiff filed appeal before the District Court, Pathanamthitta under XLIII Rules 1 & 2 of the CPC, 1908 which also came to be dismissed. Hence, the petitioner approached this Court. 10. Being aggrieved by the same the plaintiff filed appeal before the District Court, Pathanamthitta under XLIII Rules 1 & 2 of the CPC, 1908 which also came to be dismissed. Hence, the petitioner approached this Court. 10. The petitioner also filed an application under Order 16 Rule 6 of the CPC, 1908 directing the defendants to produce the documents evidencing the highway authority has demarcated the boundaries of the Punalur Muvattupuzha State Highway. The plan prepared by the highway authority showing the boundaries of the portion of the said highway and document evidencing competent authority under Section 2 (d) of the Kerala Highway Protection Act, 1999, determined the building lines beyond the eastern and western boundaries of the portion of the State Highway and the documents evidencing competent authority under Section 2(d) of the Kerala Highway Protection Act, 1999, determined the control lines eastern and western building lines and the Ranni bridge which recorded within the Section 18 of the said Act. 11. The defendants No.4 appeared and filed a counter by denying the averments made by the plaintiff in the application and contended that the Ranni Block Panchayat had decided to construct a Community Sanitation Complex under the project “Take A Break”. Under the said project, the State Government has decided to construct 2165 Quality Community Sanitation Complex throughout the State on the sides of the National Highways and State Highways for the purpose of providing refreshment options to the travellers. Hence, the construction of Community Sanitation Complex intended by the Ranni Block Panchayat is a permissible one. The vacant land where the construction is put up is abandoned the old road, it does not form the part of the road margin. Therefore, the private access to the public read to the vacant land the petitioner cannot claim any right. 12. It is further contended by the defendant is that the construction of the Community Sanitation Complex consisting rest room, feeding room, waiting room, open hall and cafetaria etc., at chain 52/550, RHS of Punalur Ponkunnam State Highway near Ranni Bridge and entered into an agreement with the Executive Engineer, Public Works Department (KSTP), Ponkunnam for and on behalf of the Government of Kerala. The above project has got administrative and technical sanction from the competent Authorities. The project was recommended by the Development Standing Committee for taking into account of the public health and public cleanliness. The above project has got administrative and technical sanction from the competent Authorities. The project was recommended by the Development Standing Committee for taking into account of the public health and public cleanliness. The fund was also allotted as grant from Central Finance Commission. The total project amount for the construction of the Community Sanitation Complex under the “Take A Break” project is fixed at Rs.64,49,680/- and as a part of the said work, the 4 th defendant has constructed a compound wall on the eastern boundary of the vacant at the expense of Rs.16,29,030/- which was already paid. Therefore, it is contended that the construction of the Community Sanitation complex will no way obstruct the plaintiff's property or to access to his property. Therefore, prayed for dismissing the application. 13. Having heard the arguments and perused the records. The points that arises for consideration are as follows:- I. Whether the plaintiff made out a prima facie case? II. Whether the plaintiff is having balance of convenience in his favour? III. Whether the plaintiff put into hardship and irreparable loss if injunction is not granted? IV. Whether the petitioner/plaintiff made out a ground for summoning documents from the defendants? 14. On perusal of the records, it is not in dispute that the plaintiff is the owner of the schedule item No.1 of the properties measuring 16.72 Ares. It is also not in dispute the item No.1 of the property is situated on eastern side of schedule item Nos.2 & 3 properties in the low level of the State highway called Punalur - Muvattupuzha road. It is also an admitted fact that the item Nos.2 & 3 properties belong to State highway and now it is also said to be State highway connecting Pathanamthitta - Erumeli road and crossing the various Village Panchayaths, Block Panchayats and it is declared as State highway. It is also an admitted fact that the item Nos.2 & 3 properties belong to State highway and now it is also said to be State highway connecting Pathanamthitta - Erumeli road and crossing the various Village Panchayaths, Block Panchayats and it is declared as State highway. The respondents/defendants said to be kept the proposal for constructing a rest room for the pilgrims who are proceeding to Sabarimala, where there is proposal of constructing waiting room called sanitation complex, permitted by the competent authority, work is said to be handed over to the PWD road section, the respondent No.4 entered into an agreement with the Executive Engineer, PWD (KSTP) for the construction of community sanitation complex comprising rest room, toilet, feeding room, waiting room, open hall and cafetaria in plaint item No.2 of the property in the portion of the highway. This mission has been launched under the aegis of Haritha Kerala mission and Sanitation mission of State Government as part of the 14 th Five Year Plan of the Government, aimed at creating amenities along with the National Highways and State Highways. The funds for the mission was allotted by the Central Finance Commission. Therefore, the respondent is contended that absolutely there is no prima facie case in view of the plaintiff to show that the defendants are constructing the complex which will obstruct the petitioner/plaintiff in any way using his schedule item No.1 and the national highway authority having power to put up the construction. Therefore, if the said sanitation complex is constructed no way connecting with the plaintiff property of the schedule item No.1. The plaintiff property item Nos.2 & 3 belongs to the State Government and Highway department. Therefore, prayed for dismissing the application. 15. The learned counsel for the petitioner relied upon the various judgments in respect of protecting the National Highway. He has relied upon the judgment of the Hon'ble Supreme Court reported in 2022 (2)KLT OnLine 1126 (SC), N.G. Projects Ltd. v. Vinod Kumar Jain , wherein the Hon'ble apex court has held, the construction of road is infrastructure project and keeping in view the intent of the legislature that infrastructure projects should not be stayed, and should be kept in view even by Writ Court while exercising its jurisdiction under Article 226 of the Constitution of India. This judgment is not helpful to the case of the petitioner/plaintiff. 16. This judgment is not helpful to the case of the petitioner/plaintiff. 16. The petitioner counsel relied upon another judgment reported in 2024 SCC OnLine SC 3767, Rajendra Kumar Barjatya and another v. U.P. Avas Evam Vikas Parishad and others , wherein the Hon'ble Supreme Court has issued guidelines for issuing building plan, permissions at paragraph No.21 (vii) & (viii), held as follows:- “(Vii) The development must be in conformity with the zonal plan and usage. Any modification to such zonal plan and usage must be taken by strictly following the rules in place and in consideration of the larger public interest and the impact on the environment. (viii) Whenever any request is made by the respective authority under the planning department/local body for co-operation from another department to take action against any unauthorized construction, the latter shall render immediate assistance and co-operation and any delay or dereliction would be viewed seriously. The States/UT must also take disciplinary action against the erring officials once it is brought to their knowledge.” 17. On the other hand, the counsel for the respondent No.3 relied upon the judgment of the Kerala High Court reported in 2024 (4) KLT 14 , Elsy Abraham v. State of Kerala , wherein in a similar case at paragraph No.11 held as follows:- “11. In the case on hand, the construction intended by the Panchayat is a Community Sanitation Complex under the project take a break by which the State Govemment has decided to construct 2165 quality Community Sanitation Complex throughout the State, on the sides of National Highways and State Highways for the purpose of providing refreshment options to the travelers. Hence the construction of Community Sanitation Complex intended by the Panchayat is a permissible one in view the said decision of the Hon'ble Supreme Court”. 18. In the said case, the coordinate Bench of this Court has categorically held that construction of the complex will not come in the way of using the land by the plaintiff. In this case also, the plaintiff's property is at a low level of the state highway on the eastern side of schedule item Nos.2 & 3 properties, and the state highway authority took up the construction of the pilgrims center. Therefore, it cannot be said that the construction is illegal and violation of the Highway Protection Act. 19. In this case also, the plaintiff's property is at a low level of the state highway on the eastern side of schedule item Nos.2 & 3 properties, and the state highway authority took up the construction of the pilgrims center. Therefore, it cannot be said that the construction is illegal and violation of the Highway Protection Act. 19. The learned counsel for the petitioner had vehemently contended that the public authority cannot take any constructions other than the projects and infrastructure mentioned in the schedule of the Section 41 (ha) of the Specific Relief Act, 1963. 20. The learned counsel for the petitioner vehemently contended and argued in respect of Section 2 (c), (d), (e) & (h) of the Kerala Highway Protection Act. He also argued in respect of Section 2 (h) declaring the highway as State highway. Section 7 for preparation of the scheme for the highway development. He also argued in respect of Section 9 regarding maintenance of the highway by the authorities, including the boundaries prepared and maintained a plan is also approved by the competent authority. The contention of the learned counsel for the petitioner, though it is acceptable that the highway shall be protected, the highway should be maintained by the authority, and no unnecessary construction should be allowed without sanction of the competent authority. However, this project is taken by the State Government which is not just for a lavotary or a washroom but it is for a restroom for the pilgrimage's brief stay, rest room, feeding room, cafetaria, etc., and this project has been taken by the Kerala State Transport Project, which is permissible under the Schedule to the Section 41 (ha) of the Specific Relief Act. The Central Government is financing for the purpose of benefiting the Sabarimala Ayyappa devotees, who used to travel large in number in vehicles from long distances from various States, and they have to take a rest or a brief stay for the purpose of rest, toilet, coffee, etc. Therefore, the contention of the petitioner counsel, this is only a small scale project for constructing lavatory, is not acceptable. It is not only a toilet which is proposed to construct by the respondent authorities but also, rest room, toilet, feeding room, waiting room, open hall and cafetaria. Therefore, the contention of the petitioner counsel, this is only a small scale project for constructing lavatory, is not acceptable. It is not only a toilet which is proposed to construct by the respondent authorities but also, rest room, toilet, feeding room, waiting room, open hall and cafetaria. Therefore, the construction of the building which is permissible under schedule to the Section 41 (ha) of the Specific Relief Act. The project is undertaken by the Kerala State Transport Project (KSTP) which is permissible. Even otherwise, if the respondents have verified the spot work and handed over to the 3 rd respondent, Village Panchayat, they have taken up the work and if the work is allowed to put up construction, there will be no irreparable loss or inconvenience would cause to the plaintiff's property. The defendants have already sanctioned Rs.64,49,680/- and the work is already started. The project is called as sanitation complex under the project of “Take a break”. The State Government taken up this project throughout the State highways for the benefits of the Ayyappa pilgrims coming from various parts of the country. Such being the case, if the said complex is constructed there will be no irreparable loss or inconvenience cause to the plaintiff's case. The plaintiff has absolutely no prima facie case to show his schedule item No.1 property would obstructed because of the construction undertaken to the schedule item Nos.2 & 3 properties. 21. Therefore, I am of the view that the trial court as well as the first appellate court rightly considered the materials, had found that there is no prima facie case in favour of the plaintiff and no balance of convenience in his favour and no irreparable loss would cause to the plaintiff if the injunction is not granted. The trial court while passing the order obtained the commissioner's report and based upon the commissioner's report, considering the both sides argument and documents, rejected the application filed by the plaintiff. The first appellate court once again reappreciated the documents and the District Court has also rightly rejected the appeal of the petitioner under Order 43 Rule 1 of the CPC which do not call for any interference. 22. The first appellate court once again reappreciated the documents and the District Court has also rightly rejected the appeal of the petitioner under Order 43 Rule 1 of the CPC which do not call for any interference. 22. As regards to the Ext.P8 Interlocutory Application, I.A.No.6/2025 filed by the petitioner under Order 16 Rule 6 of the CPC for summoning the documents, where the respondents were admitted that the said road is State highway, having documents and the project was initiated for the purpose of public use at large. The petitioner is already said to be already filed a Suit which is pending. The petitioner has to explain for what purpose these documents are required by the plaintiff. However, there is no proper order passed by the trial Court. Therefore, it is necessary to direct the trial Court to pass an appropriate order for summoning the documents from the defendants/respondents and it is necessary by keeping in the mind about the application filed by the petitioner under Order 12 Rule 5 of the CPC and the reply given by the defendants. 23. Accordingly, the Original Petition is dismissed. i. The rejection of the injunction, by order dated 01.07.2025 passed in I.A.No.3/2025 in CMA No.19/2025 by the District Court, Pathanamthitta, and order dated 10.04.2025 passed in I.A.No.2/2024 in O.S.No.111/2024 on the files of Munsiff Court, Ranni, is hereby confirmed. ii. The interim order granted by this Court on 28.07.2025 is hereby vacated. iii. The Munsiff Court, Ranni, is directed to pass an appropriate order in I.A.No.6/2025 in O.S.No.111/2024.