State Bound To Ensure That When Public Properties Are Used For Any Purpose, It Is Done In A Manner Which Is Least Inconvenient To Its Subjects: Kerala HC

The matter relates to the construction of a Hotel – cum – Latrine- Complex by the Kottayam District Suchitwa Mission on the side of the road abutting a private property. The petitioner claims that her access to highway will be lost if the construction happens.

The facts of the case are that, during the re-alignment of the road to avoid a curve, the road was pushed towards the eastern side. The petitioner therefore claimed that she had to access the Highway through the unused land which was the original road.

It was stated that the Kottayam District Suchitwa Mission and Meenachil Grama Panchayat intended to build a hotel-cum-public-latrine for the public in the said unused land and the construction is to be made as a part of 'take a break' project by the State by which they plan to construct 2165 Community Sanitation Complexes on the sides of National and State Highway to provide refreshment to the travellers. The petitioner claimed that such a construction would obstruct her access to the highway.

The Panchayat urged that they were constructing a community sanitation complex with provisions for snacks and beverages for the large number of Sabarimala pilgrims who would be travelling through this road. The panchayat also submitted that the construction would still leave enough space for the petitioner to access the Highway.

Meanwhile, the Village Officer had prepared a report saying that the place identified by the Panchayat for the construction is not suitable on the point of traffic safety.

The petitioner thus challenged the construction on two grounds: The Common Law principle followed by Courts in India that an owner of land adjoining a highway is entitled to access to the highway at any point at which the land touches the highway and on the report of the Village Officer.

The Court observed that the case mentioned by the petitioner, Municipal Board, Mangalur v Mahadeoji Maharaj says that the Municipality cannot put up any structure on the public pathway which are not necessary for the maintenance or the user of it as a pathway. The High Court in this case observed that this would by necessary implication mean that such structures can be built if it is necessary for the maintenance or the user of it as a pathway.

The Court observed that the said land is not a part of the road margin. It is the land which became vacant after changing the alignment of the road. It was held that the state cannot construct any amenities in the road margin as it is for pedestrians. If the State is stopped from constructing such amenities on the vacant lands also, there would not be any space available for construction.

“If the State and local authorities are not allowed to put up construction in such vacant lands for providing public amenities on the ground that it would affect the access of neighbouring private land owners, there will not be any space available for the State and local authorities to provide the necessary amenities to the users of the road. If the aforesaid common law principle is enforced in stricto sensu there cannot be any development or change to the public road,” the Court said.

The Court held that the construction in the said vacant land can be made. However, the petitioner should not be unreasonably restricted from her access to public roads and the State should see that when public properties are utilized for any purpose, they are done in the least inconvenient and least injurious manner.

The Court asked the District Collector to hear the petitioner and the Panchayat and decide afresh on the suitability of the land on account of traffic safety. If the land is found suitable, the Panchayat can construct the amenities in a manner which causes the least inconvenience and injury to the petitioner, it concluded.

Counsel for Petitioner: Advocate Peeyus A. Kottam, Hrithwik D. Namboothiri

Counsel for Respondents: Advocates P. C. Haridas, P. K. Soyuz, Jelson J. Edampadam

Citation: 2024 LiveLaw Ker 355

Case Title: Elsy Abraham v State of Kerala and Others

Case No.: WP (C) 25489/ 2020

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