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Judgment
A. Badharudeen, J
This is a petition filed under Article 227 of the Constitution of India with the following prayers:
"(i) Set-aside Ext.P6 and P5 orders of courts below rendered in CMA No.22/2020 dated 09.04.2021 of Sub Court, Perumbavoor, and IA No.2/2020 in OS No.286/2020 of Munsiff's Court, Perumbavoor;
(ii) Allow Ext.P2 application (IA No.2/2020 in OS No.286/2020 of Munsiff's Court, Perumbavoor) filed for temporarily injuncting 1st respondent from causing any obstruction to the petitioner from using plaint `B' schedule road, for accessing `A' schedule properties; and
(iii) Grant such other relief as may be just and necessary."
The original petitioner herein is the plaintiff in O.S.No.286 of 2020. According to the plaintiff, the plaint B schedule property having an extent of 1.62 Ares was acquired by the Government from the plaintiff for constructing a public road to `C' schedule Perumbavoor Municipal Auditorium. After acquisition, the plaintiff's property was divided into 2 in between the plaint B schedule item. It has been contended, inter alia, that plaint A schedule item No.1 property is now landlocked and only possible means to access the said property is through B schedule road acquired by the Government for constructing the new road to the `C' schedule municipal auditorium.
Raising this contention, the plaintiff filed O.S.No.856 of 2020 before the Munsiff Court, Perumbavoor along with petition - I.A.No.2/2020, seeking temporary prohibitory injunction restraining the Municipality from constructing an arch on the northern side of plaint B schedule blocking free access of the plaintiff through B schedule road and also from enclosing and walling up the B schedule way by constructing Iron Railing and fencing the same.
The 4th defendant in the above case is Perumbavoor Municipality. Defendants 1 to 3 are Government of Kerala, Tahsildar and Village Officer.
The 4th defendant/4th respondent filed detailed objection in I.A.No.2/2020 challenging the maintainability of the Suit in view of the bar under Section 63 of the right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Further the bar under Section 544(1) of the Kerala Municipalities Act and the exclusive jurisdiction vested with the Tribunal under Section 509 of the Kerala Municipality Act also were highlighted. Precisely the contention raised by the Municipality is that B schedule was acquired after an attempt made by the Municipality to purchase the same from the plaintiff. The specific contention raised by the Municipality in the counter is that though there existed a way towards the town hall, the same is not wide enough to carry tourist bus and heavy vehicles. At this juncture, the Municipality decided to have another way capable of carrying all vehicles from M.C Road to the Municipal Town Hall and for the said purpose and for the exclusive use of the Municipal Town Hall, the said property was acquired and, therefore, B schedule item could not be given the status of a public road so as to have access for all as in the case of a public road.
As per Ext.P5 order dated 07.09.2020, the learned Munsiff dismissed the interim injunction application by a detailed order on the finding that, prima facie, plaint B schedule way was constructed by acquiring property from the possession of the plaintiff for the exclusive use of the Town Hall and Municipality had the right to control the usage of the space vested in the Municipality.
Though Ext.P5 order was challenged in C.M.A.No.22 of 2020 before the Subordinate Judge, Perumbavoor, as per Ext.P6 order dated 09.04.2021, the learned Sub Judge also confirmed the order of the learned Munsiff.
While challenging Exts.P5 and P6, the learned counsel for the original petitioner vehemently argued that the petitioner has right over B schedule since the same is a public way. It is submitted further that now the plaint item No.2 remains landlocked and therefore interim injunction sought for is liable to be granted after setting aside Exts.P5 and P6.
The learned counsel for the 4th respondent, the Perumbavoor Municipality, argued that plaintiff's property was acquired for providing a convenient pathway to the Town Hall and the same is not intended to be used as a public way. According to the learned counsel, now the Municipality constructed fence and as such the suit itself is infructuous. Construction of fence, as submitted, is conceded by the learned counsel for the petitioner also.
In view of the above submission, as of now, the Municipality constructed fence and B schedule is protected for the exclusive use of the Municipal Town Hall.
The issue to be decided in this case is as to whether B schedule way is to be treated as a public way so that any citizen can claim right over the same. Considering the nature of the contentions, evidence is required in this matter and such a course of action is possible only during trial.
Though it is submitted by the learned counsel for the petitioner that plaint item No.2 is now landlocked, in para.16 of Ext.P5 order the learned Munsiff after referring Ext.C1(a) sketch stated that there was road access to item Nos.1 and 2 of plaint A schedule property from the Municipal road lying on the northern side. However, the learned counsel for the petitioner would submit that the said finding is wrong since the Commission Report says otherwise. On perusing the rough sketch, the observation made by the learned Munsiff appears to be correct. In the synopsis of the Original Petition in para.7 it is stated thus:
In connected LAR 47/2021, the government has filed a statement (Ext.P8) which reads "(page 4) കക യ ട വസ വ ന ട ഏകദ ശ മധ ഭ ഗത ക യ ണ മ ന സ പൽ ട ൺ ഹ ള ദ$ക ള ദ ഡ ദ( ക നട*ങ $ ഇര ഭ ഗത മ ള യ ന ട വസ വ ദ$ക മ ന സ പൽ ദ ഡ ൽ ന ന *ടന ദനര ട യദ/ഷ പ(ദവശ ക ന* ന ള മ ർഗമ ള* ണ. ക ട* അക4 ർ ട5യ ഭ മ യ ൽ ക യ യ ന ഭ മ യ ൽ പ(ദവശ ക ന* ന *സടമ ന ഇല ത* ണ.
The said recitals which is given much emphasis by the learned counsel for the petitioner also would go to show that there is road access to both items of plaint A schedule property from the M.C Road. It is true that in the above extracted text the Government stated that there was no obstruction for the plaintiff to enter into the acquired land also. Such an observation by itself shallnot confer any right to the plaintiff in so far as B schedule way is concerned, in this case, where the Municipality can claim exclusive right, after its acquisition as per the procedure established by law, after paying market value and compensation to the plaintiff.
As I have already observed, as of now, the Municipality constructed fence and now the plaintiff is not in a position to use B schedule way. The facts discussed above would go to show that the contention raised by the petitioner to the effect that plaint item No.2 property is now landlocked also cannot be appreciated at all. In view of the matter, I am not inclined to interfere with Ext.P5 or Ext.P6 orders.
In the result, this Original Petition fails and is accordingly dismissed. It is ordered that the learned Munsiff shall consider the possibility of expeditious disposal of the Suit.