IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 18TH APRIL 2008 / 29TH CHAITHRA 1930 WP(C).No. 1968 of 2008(H) ------------------------------------- PETITIONERS: --------------------- 1. T.SAROJINI AMMA, W/O.RAMAKRISHNAN, THEKKUMTHALA HOUSE, S.R.M.ROAD, KOCHI-18. 2. V.J.JOHNY, MOHANAMANDIRAM, PURCHASER FROM M.K.SATHI, S.R.M.ROAD, KOCHI-18. 3. N.A.K.HAJI, S/O.N.K.ABDULLA, NAMBI PUNNILATH HOUSE, S.R.M.ROAD, KOCHI-18. 4. K.H.SHAMSUDDIN, S/O.HAMMEED, NEDUMPILLI HOUSE, S.R.M.ROAD, KOCHI-18. 5. SIVADAS T., PURCHASER FROM RADHAMMA, THEKKUMTHALA HOUSE, S.R.M.ROAD, KOCHI-18. 6. T.SARASWATHY AMMA, THEKKUMTHALA HOUSE, S.R.M.ROAD, KOCHI-18. 7. RADHA N., W/O.PRABHAKARAN, NEDUMPPILLY HOUSE, S.R.M.ROAD, KOCHI-18. 8. SANTHA HARIHARAN, NEDUMPILLY HOUSE, S.R.M.ROAD, KOCHI-18. 9. S.ANILKUMAR, NEUMPPILLY HOUSE, S.R.M.ROAD, KOCHI-18. 10. ADV.T.P.RAMESH, 44/159, THEKKUMTHALA HOUSE, S.R.M.ROAD, KOCHI-18. BY ADV. SRI.P.A.AUGUSTINE(AREEKATTEL) W.P.(C). NO.1968/2008-H: RESPONDENTS: ----------------------- 1. DIVISIONAL MANAGER, RAILWAYS, TRIVANDRUM 2. AREA MANAGER, RAILWAYS, ERNAKULAM. 3. COCHIN CORPORATION, REPRESENTED BY ITS SECRETARY, ERNAKULAM. 4. CITY POLICE COMMISSIONER COCHIN CITY, ERNAKULAM. BY ADV. SRI.N.B.SUNIL NATH,SC, RAILWAYS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/04/2008, ALONG WITH W.P.(C). NO. 8904/2008, THE COURT ON 18/04/2008 DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. = = = = = = = = = = = = = = = W.P.(C) Nos. 1968/08 & 8904/08 = = = = = = = = = = = = = = = Dated this the 18th April, 2008. J U D G M E N T The petitioners herein are residents of the properties, which are situated close to the Town Railway Station, Ernakulam. According to them, there is a Corporation Road, connecting their property to the S.R.M road, through which the Corporation of Cochin has constructed a drainage. It is stated that, when the Railways raised claim over the portion of the property which was being used as a road and obstructed its use by the nearby residents, O.P.No.21201/98 was filed before this court challenging the said action of the Railways. The case was disposed of by Ext.P3 judgment recording the statement of the Railways that they are not having any intention “at present” to close down the road preventing the vehicle and traffic. It is stated that ignoring the said judgment, when a the Railways made construction on the road, a contempt case was filed in the court. At that stage, the Divisional General Manager /2/ of the Railways inspected the site and issued a communication dated 7.9.2004(Ext.P4 in W.P(c).No.8904/08) clarifying that railways had no objection to the proposal for the utilisation of the railway land on the eastern side by the residents, provided the Cochin Corporation formerly seeks their permission to utilize the land under “way leave facilities”. Thereafter the contempt case was considered and was disposed of by order dated 24.11.2005 directing that the road shall not be obstructed. It is stated that even thereafter the judgment in O.P.NO.2120/98 was disobeyed and contempt of Court Case No.764/07 was again filed. 2. In the aforesaid Contempt Case an Advocate Commissioner was appointed and a report was submitted before this court which is Ext.P6 in W.P(c).No.8904/08. Though, thereafter the Railways filed I.A.No.541/07 seeking to clarify the order in COC.NO.764/07, that was rejected by this court by order dated 4th December, 2007. It is stated that, despite all this, the Railways constructed foot steps on the Corporation road. It is stated that the petitioners objected to the construction but ignoring the same, the construction was completed. It is also stated that the Railways propose to provide an opening into road referred to above. It is in this background these /3/ writ petitions have been filed for a direction that the Railways shall not make any opening in to the petitioner's compound or to the pathway. They are also seeking demolition of the foot steps allegedly constructed by the Railways 3. The fact that, the land through which the road is constructed, originally belonged to the Railways does not seem to be of dispute. The Railways themselves stated in their communication dated 7.4.2004 (Ext.P4 in W.P(C).No.8904/08) that they have no objection in the residents using the land subject to the conditions mentioned therein. Even when OP.No.21201/98 was considered by this court, all that the Railways had said was that they do not intend to close down the road to prevent the vehicular traffic. When disobedience of Ext.P3 judgment was complained of, this court disposed of the Contempt of Court Case No.1144/2003, as per Exts.P5 judgment, taking into account the aforesaid communication dated 7.9.04 and directing that the use of the road shall not be obstructed by the Railways. From the above it is failrly clear that, all that the railways have been forbidden from doing is, not to create obstruction to the user of the road by the neighbouring residents like the petitioners. /4/ 4. In these cases, relying on the aforesaid orders of this court, what is objected by the petitioners is the foot steps that have been constructed by the Railways and the possibility of providing an opening to the pathway referred to above. In my view, so long as the vehicular and other access of the petitioners are not obstructed by the Railways, they cannot object to the construction of foot steps or the decision of the railways to provide the opening to the road in question. On the other hand, if, by the construction of foot steps or on account of the opening provided, their vehicular access is obstructed, then certainly the petitioners can have a cause of action. However the question as to whether the construction of the foot steps or the opening provided has created any obstruction, is a question of fact, which the petitioners will have to establish in appropriate proceedings. Only in such an event, can the petitioners seek an order directing the removal of the foot steps that have been constructed by the Railways. 5. In my view, this remedy can be sought by the petitioners only by filing a properly constituted suit before the appropriate civil court where they have to establish the factual question of obstruction that is allegedly created by the railways. /5/ 6. Viewed from any angle, this court will not be justified in granting the reliefs sought for. 7. The learned counsel appearing for the writ petitioners relied on the judgments in The Municipal Board, Mangalur V. Mahadeoji (AIR 1965 SC 1147), Damodara Naidu and Ors. V. Thirupurasundari Ammal & Anr.(AIR 1972 Madras 386), Tanoor Panchayat V. Kunhiamutty (1978 KLT 813) and Joseph V. District Magistrate(1996(2) KLT 490). All these judgments recognised the right of access of a person owning a land adjacent to a Highway. In the view I have taken, I do not think it necessary to pronounce on the applicability of the judgments relied on by the petitioners. On the facts to be established by them, it is for the petitioners to contend that the law as laid down in the aforesaid judgments is in their support. Therefore, without prejudice to the contentions and reserving the remedy that is available to the petitioners, these writ petitions are dismissed. ANTONY DOMINIC JUDGE vi