IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 WP(C).No. 20281 of 2008(M) -------------------------- PETITIONER: --------------- MOHAMMED RAFIQUE SAIT S/O. HAJI NOOR MOHAMMED SAIT JEWEL PARK, CC 42/2260-B6 THRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE PROVIDENCE ROAD, KOCHI 682 018 BY ADV. SRI.MILLU DANDAPANI RESPONDENTS: ------------------ 1. CORPORATION OF COCHIN SHANMUGHAM ROAD, KOCHI 682 011 REPRESENTED BY ITS SECRETARY 2. THE SECRETARY CORPORATION OF COCHIN SHANMUGHAM ROAD, KOCHI 682 011 3. SHRI JAMALUDDEEN SEEMATI COOL BAR, T.D. WEST SANNIDHI ROAD JUNCTION, MARKET ROAD, KOCHI 682 035 4. THE DISTRICT COLLECTOR COLLECTORATE, ERNAKULAM. BY ADV. SMT.A.G.ANEETHA, SC, COCHIN CORPN. FOR R1 & 2 SRI.S.RAMESH BABU, SC FOR R1 GOVT.PLEADER SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING BEEN COME UP FOR ADMISSION ON 20/08/2008, HE COURT ON 29/08/2008 DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. =============== W.P.(C) NO. 20281 OF 2008 M ==================== Dated this the 29th day of August, 2008 J U D G M E N T The prayer in this writ petition is for directing the 2nd and 4th respondent to take action for the removal of a pettikkada put up by the 3rd respondent in front of the petitioner's building bearing Door No 40/7350 situated in the property comprised in Sy.Nos.652 Part and 1734 Part of Ernakulam Village. Petitioner is also seeking to quash Ext.P5, a resolution of the Town Planning Standing Committee of the 1st respondent. 2. The petitioner is the owner of 7.360 cents of land together with a three storied building situated in Sy.Nos.652 Part and 1734 part of Ernakulam village, purchased by him by Ext.P1 sale deed No.1042/07 executed on 15/2/2007. According to the petitioner, there are six tenants in the ground floor of the building and one in the first floor. The entrance to the first floor is on the northern side of the building and on the north western corner, a pettikkada has been put up by the 3rd respondent in the puramboke land. According to the petitioner, as a result of the pettikkada, the entry to the upstair portion of the building is completely blocked and the front portion of the two shops in the ground floor is also partially WPC 20281/08 :2 : blocked. Complaining that the pettikkada is causing inconvenience, petitioner submitted Exts. P3 and P4 representations to the 2nd respondent requesting for its removal. By Ext.P5, he was informed that the Town Planning Standing Committee of the Corporation had decided to permit continuance of the pettikkada as such and it is in this background writ petition has been filed. 3. Mainly, the grounds urged are, that the 3rd respondent has no right to conduct pettikkada in front of the petitioner's building and it is also argued that the petitioner has a right of access to the public road at every point at which the petitioner's land touches the public road and that this right of his is obstructed by the 3rd respondent. It is also contended that the light and air to the petitioner's building is also obstructed. 4. The Corporation has filed a statement where it is stated that the pettikkada by name 'Seematti Cool Bar' is seen entered in the revenue records of the Corporation and floor rent has been paid for the same for the period 2001-08. It is stated that water connection and electricity connection have also been given to the pettikkada in question. After the petitioner purchased the adjacent property by Ext.P1 sale deed, representations were made by him and that after hearing both the petitioner and the 3rd respondent, the Town Planning Committee of the WPC 20281/08 :3 : Corporation has decided to allow the pettikkada to continue to function since the 3rd respondent was paying the floor rent for a long period. It is stated that this decision of the Town Planning Committee was conveyed to the petitioner by Ext.P5. 5. A reply affidavit has been filed by the petitioner raising several new contentions. It is stated that the 3rd respondent has not yet obtained any licence from the Corporation. Petitioner is also asserting his entitlement to get access to the road at all points where the land adjoin the Highway and in this context, is referring to Mackenzie's law of Highways 21st Edition. Relying on the judgment of this court reported in Achuthan v.District Collector (1982 KLT 133), it is contended that members of the public have got a legal right to use the foot path in an unobstructed manner and that the Municipality and revenue authorities have failed in their legal duty in this behalf. 6. It is stated that the 3rd respondent has not obtained any licence in terms of the provisions contained in the Kerala Land Conservancy Act. According to the petitioner, he has borrowed huge funds from the Bank and he has to repay the instalments, which he will not be able to, if the obstruction and inconvenience caused by the 3rd respondent is not removed and his business venture is made profitable. It is also WPC 20281/08 :4 : pointed out that the recalcitrant attitude of the 3rd respondent will ruin his business. At the same time, he also states that he has paid Rs.3,16,000/- towards income tax for the income derived from the business conducted in the building in question. It is on these grounds, relief is claimed. 7. Having considered the pleadings in this writ petition and heard the learned senior counsel for the petitioner and the standing counsel for the Corporation, I am not satisfied that this Court should come to the rescue of the petitioner. 8. I am not prepared to hold that the 3rd respondent is totally an unauthorised occupant of the puramboke land of the Corporation. 9. Corporation in its statement has confirmed that the shop in question was in existence for the last several years and that the 3rd respondent has been paying floor rent. He is also enjoying water and power connection in his shop. True the petitioner contends that the 3rd respondent has not obtained licence from the Corporation, which may give a cause of action to the Corporation, but then, that will not be a ground for the petitioner to contend that since trade licence has not been obtained from the Corporation, the 3rd respondent is liable to be evicted in order to make his business venture a profitable one. 10. The petitioner seeks removal of the pettikkada on the ground WPC 20281/08 :5 : that it obstructs the access to his building. It is also stated that as a result of the pettikkada, his business is affected, as a result of which, he will not be in a position to repay the instalments due to the Bank. First of all, petitioner has purchased the property only in 2007 by Ext.P1. It is on record that the shop was in existence long prior to the time when he purchased the property. Therefore, knowing fully well about the existence of the shop, only the petitioner purchased the property. 11. That apart, I am not prepared to swallow the theory of the petitioner that he is suffering loss. Though he has raised this contention, in the next breath, he has stated that towards the income generated from this very building, he has paid Rs.3.16 lakhs as income tax payable. If that be so, petitioner cannot contend that as a result of the existence of the pettikkada, he is incurring any loss. 12. True, the owner of a land has right of access to the highway at every point where it touches the highway. Public law remedy which can be enforced through a proceedings under Article 226 is not available to enforce this right as it will involve adjudication of factual disputes. Even otherwise, going by the pleadings, the compliant of the petitioner is that the view of the building is obstructed. That does not amount to obstruction of access to the building or access to the highway from the building. It WPC 20281/08 :6 : may be true that by the existence of the shop, petitioner is not in a position to enjoy a luxurious access to the highway, but then that does not give him a cause of action to be enforced in a court of law. If at all he has a grievance in this behalf, it is for him to agitate the matter before a Civil Court and not in a writ petition. 13. Initially, I was not inclined to entertain this writ petition since a statutory remedy of appeal is available to the petitioner against Ext.P5 under Section 509 of the Municipalities Act. It was since the petitioner insisted on a judgment on merits, that I have ventured to pronounce on the merit of the contentions. I clarify that, in case the petitioner pursues the remedy of appeal, none of the findings in this judgment will cause any prejudice to him and that the appeal shall be considered by the appellate authority, untramelled by the findings in this judgment. Writ petition is only to be dismissed and I do so. ANTONY DOMINIC, JUDGE Rp