There Will Not Be Any Space For State Authorities To Provide Amenities To Road Users If Common Law Principle Of Giving Access To Highway To Neighbouring Landowners Is Applied Stricto Sensu: Kerala HC
The Kerala High Court observed that there will not be any space for State Authorities to provide necessary amenities to road users if the common law principle giving access to highways to landowners having land adjacent to highways is applied in a strict sense.
The Court was hearing a Writ Petition seeking direction to the respondents not to proceed with the construction of the Sanitation Complex before taking any decision on the representation submitted and in such a way denying the petitioner's right to have access to the State Highway from her property.
The bench of Justice Abdul Hakhim observed, “If the State and the local authorities are not allowed to put up constructions 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.”
Advocate Peeyus A. Kottam appeared for the Appellant and Advocate P.C. Haridas appeared for the Respondent.
Brief Facts-
The Petitioner Elsy Abraham owns land next to the Punaloor-Muvattupuzha State Highway, which was realigned, leaving an unused strip of land. The petitioner claims that he has access to the road because of that land but the use of land to build a Hotel-Cum-Public-Latrine-Complex by respondents will block her access. Despite her objections, such construction continues. The Petitioner seeks a Court order to stop the construction and confirm her access rights. The Respondent, Grama Panchayat, explained that the construction is part of the state's 'take a break' project to build sanitation complexes for travellers.
The Common Law Principle mentioned by the petitioner was that an owner of land adjoining a highway is entitled to access the highway at any point at which his land touches the highway, even though the soil of the highway is vested in the State.
The Court said that since the land in the present case became vacant on account of the change of alignment of the road, it can not be said to be a part of the road margin.
The Court noted that the access of the private landowners would be restricted when new roads are constructed the level of the road is increased or lowered or when bridges are constructed and according to the Court if such developments are not permitted on the ground that it violates private right of access based on the aforesaid common law principle, the consequences would be disastrous.
The Court observed that the State is entitled to use the vacant land only after ensuring reasonable access from the petitioner's property to the public road and as per the Court what is a reasonable access is a question of fact.
The Court observed, “The position of the State is that of Trustee concerning public properties and are bound to protect the interest of its subjects who are the beneficiaries. The State is bound to see that when public properties are utilized for any purpose, it is done in a manner which is least inconvenient and least injurious to its subjects.”
The Court directed the District Collector to take a fresh decision concerning the suitability of the place identified by the respondent for constructing the Community Sanitation Complex under the “Take a Break” Project with reference to traffic safety after the hearing.
Accordingly, the Court dismissed the Petition.
Cause Title: Elsy Abraham v. State of Kerala (Neutral Citation: 2024:KER:39455)
Appearance:
Appellant: Adv. Peeyus A. Kottam and Adv. Hrithwik D. Namboothiri
Respondent: Adv. P.C.Haridas, Adv. P.K. Soyuz and Jelson J. Edampadam
