Murali Purushothaman, J
1. The petitioner is a permanent resident of Alakappanagar Grama Panchayat (hereinafter referred to as the 'Panchayat', for short), the 4th
respondent. The property of the petitioner was purchased as per Ext. P1 sale deed dated 24.01.1997 and the dwelling is assessed to property tax by
the Panchayat.
2. The petitioner states that there is a road by name 'Manjali road' (the 'road', for short) used by the public on the northern side of his property which is
vested in the Panchayat and included in Ext. P4 Asset Register of the Panchayat.
3. The petitioner contends that, respondents 5 to 7, who are the residents at the terminal end of the road, have blocked his entry to the road from his
residence by putting metal fencing sheets on the side of the road. Though the petitioner raised objection against blocking his entry to the road, he was
assaulted and a case is registered against respondents 5 and 6 by the Police. The petitioner contends that the persons having land on either side of the
road have got every right to use the road and the Panchayat has a duty to remove the obstruction under the provisions of the Kerala Panchayat Raj
Act, 1994 (for brevity, 'K P R Act') and the Revenue Divisional Officer, the 3rd respondent has also a duty to remove the obstruction from public road
exercising powers under Section 133 of the Code of Criminal Procedure, 1973. Though the petitioner approached respondents 3 and 4 to take steps
for removal of obstruction, they have not taken any action. The petitioner also submits that he has filed a suit before the Munsiff's Court, Irinjalakkuda
as O.S. No. 345/2022 arraying respondents 5 and 6 herein as defendants for fixation of boundary and consequential injunction, which is pending. The
petitioner contends that since the only cartable road to his property has been obstructed, his freedom of movement guaranteed under the Constitution
has been infringed and therefore, prays for direction to respondents 1 to 4 to remove the obstruction on the road.
4. When the writ petition came up for admission on 21.10.2022, this Court ordered notice to respondents 5 to 7 by special messenger and posted the
writ petition on 28.10.2022. On the said day, respondents 5 to 7 entered appearance through counsel and sought time for filing counter affidavit. The
learned counsel for the petitioner submitted that the petitioner's wife had undergone a surgery recently and the road referred to in Ext. P4 is the only
cartable road from his residence. Taking note of the medical emergency, this Court passed an interim order on 28.10.2022 and the relevant portion of
the order reads as under:
“3. It is submitted by the learned counsel for the petitioner that the wife of the petitioner has undergone a surgery recently and that the village road referred to in
Exts.P4 and P5 is the only cartable road from the residence of the petitioner.
4. There will be a direction to respondents 5 to 7 to remove the metal fencing in front of the house of the petitioner so as to have ingress and egress to his residence
including the movement of petitioner's vehicle.
5. This order will be without prejudice to the contentions of the parties in any pending suit. Post on 01.11.2022.â€
5. On 01.11.2022, when the writ petition came up for consideration, it was submitted by the learned counsel for the petitioner that the interim order
dated 28.10.2022 was not complied with by respondents 5 to 7. The writ petition was posted to 02.11.2022 and the respondents 4 and 6 filed counter
affidavits. When the matter was taken up for consideration on 04.11.2022, this Court passed an order, the relevant portion whereof reads as under:
“6.The interim order dated 28.10.2022 was passed taking into consideration the medical emergency pointed out by the petitioner. Admittedly, the order is not
complied with by respondents 5 to 7. There will be a direction to the Secretary of the 4th respondent Panchayat to remove such part of the metal fencing in front of
the house of the petitioner so as to create a passage for the vehicle of the petitioner including car/ambulance. The Secretary can seek necessary assistance from the
1st respondent, which the 1st respondent shall provide. This order will be without prejudice to the contentions of the parties in any pending civil suits or in this writ
petition. Post on 10.11.2022.â€.
6.It is submitted by the counsel for the petitioner that the order dated 04.11.2022 was implemented by the Secretary of the Panchayat.
7. In the counter affidavit filed on behalf of the Panchayat, it is stated that the road namely ""Manjaly Road"" mentioned in Ext.P4 Asset Register as
item number 212 is vested in the Panchayat.
8. A counter affidavit is filed by the 6th respondent on his behalf and on behalf of respondents 5 and 7 wherein it is stated that the pathway in question
is not a public way, and the 7th respondent is the absolute owner of the pathway and is paying land tax for the same. It is averred that the petitioner
has other pathway for ingress and egress from his property. It is further stated that the petitioner had preferred a suit as O.S. No. 312 of 2003 before
the Additional Munsiff Court, Irinjalakkuda for declaration of easement by prescription over the pathway in question and the same was dismissed. It is
stated that, later, the petitioner preferred a suit for fixation of boundary as O.S. No.345 of 2022 contending that the respondents 5 to 7 constructed
boundary wall by trespassing into the property of the petitioner, wherein, he has no case that he is using the pathway in dispute for his ingress and
egress. It is also stated that the petitioner could have sought for the relief of demolition of the wall in question in the said suit and the petitioner has
filed the writ petition suppressing material facts. They also state that the 7th respondent has not relinquished his right over the pathway and the land
was not acquired by the Panchayat and the Panchayat has, by Ext. R6 (e), informed the 6th respondent that no documents are available with them as
to how the road is included in the Asset Register. It is stated that the 7th respondent has preferred Ext. R6 (f) complaint before the Panchayat to
remove the entry regarding the road from the Asset Register.
9. A reply affidavit is filed by the petitioner stating that O.S. No. 312 of 2003 filed by him for declaration of easement by prescription over the
pathway was dismissed by the Court on the technical ground that the petitioner's right had not ripened into an easement by prescription. It is stated
that the dismissal of the said suit two decades back will not deny his right over the road subsequently formed and notified in the Asset Register. The
petitioner further states that O.S. No.345 of 2022 was filed in March, 2022 and the blockade was made by respondents 5 to 7 thereafter. The
petitioner has also produced discharge summary of his wife issued from the hospital.
10. Heard Sri. Siraj Karoly, the learned counsel for the petitioner, Smt. Surya Binoy, the learned Government Pleader for respondents 1 to 3, Sri. K.S.
Bharathan, the learned standing counsel for the 4th respondent and Sri. Bitto N.L, the learned counsel for respondents 5 to 7.
11. According to Sri. Siraj, the road is vested in the Panchayat and is included in the Asset Register and the respondents 5 to 7 have no right to
obstruct the entry of the petitioner to the road from his property. The learned counsel submits that the road in question is the only cartable road to the
petitioner's property and being the owner of the land adjoining the road vested in the Panchayat, he is entitled to access to the road at any point at
which his land actually touches the road. Sri. Siraj refers to Section 272 of the K P R Act and submits that all roads vested in or maintained by a
Panchayat shall be open to the use and enjoyment of all persons. Sri. Siraj relies on the decision of this Court in Mariam Beevi v. Athirampuzha
Grama Panchayat [2015 (2) KLT 768:2015 (3) KHC 199: ILR 2015 (2) Ker. 976] and contends that, any street, road, square, port, alley, passage,
cart-tract, foot-path or riding path, over which the public have a right of way, even if it is not a thoroughfare, is a public road.
12. Sri. Bharathan appearing for the Panchayat would submit that the road is vested in the Panchayat in terms of Section 169 (1) (c) of the K P R Act
and is entered in the Asset Register of the Panchayat. Sri. Bharathan refers to Rule 80 of the Kerala Panchayat Raj (Accounts) Rules, 2011 which
provides that the Secretary shall maintain appropriate Asset Registers as prescribed by the Government to record the details of all movable and
immovable assets owned by the Panchayat or assigned/ transferred to the Panchayat. Referring to paragraph 6 of the counter affidavit filed by the 6th
respondent wherein it is stated that the 7th respondent is the absolute owner of the pathway, Sri. Bharathan would contend that having admitted the
existence of pathway, to claim exclusiveness, they have to approach the Civil Court. Referring to the decision in Mariam Beevi (supra), Sri. Bharathan
contends that, once a property assumes the character of a road or a path, having the potential of being a public utility, it ceases to have any exclusivity.
Sri. Bharathan would also contend that, if respondents 5 to 7 dispute the vesting of the road in the Panchayat or the inclusion in the Asset Register,
their remedy is to approach the Civil Court.
13. Sri. Bitto would contend that there is no vesting of the road in the Panchayat and unless there is a surrender or relinquishment or acquisition
proceedings, the question of vesting of private property in the Panchayat does not arise. In Ext. R6 (e), the Panchayat has admitted that there is no
record to show how the road is brought into the Asset Register of the Panchayat. Sri. Bitto relies on the Division Bench decision in Roy Abraham v.
State of Kerala and others [2021 (4) KHC 520:2021 (4) KLT 318] and contends that only when there is surrender of property by its owner, the
Panchayat gets conferment of rights over the property. Relying on the decision of this Court in Radhakrishnan T.K. v. State of Kerala [2022 (2) KHC
86], Sri. Bitto contends that Asset Register cannot be relied on to prove whether the pathway is public pathway or not and that no one can be
dispossessed from his property without resorting to the procedure prescribed by law. Sri. Bitto further contends that the suit for declaration of
easement by prescription over the pathway was dismissed by the Civil Court and the same has become final and the suit for fixation of boundary is
pending before Civil Court and no relief can be granted to the petitioner particularly when he has approached this Court suppressing the dismissal of
the suit for declaration of easement by prescription.
14. According to the Panchayat, the road in question is vested in the Panchayat in terms of Section 169 (1) (c) of the K P R Act and is entered in
their Asset Register. The questions as to the vesting of the road and how the road is brought into Ext. P4 Asset Register are matters of evidence. In
Radhakrishnan T.K. (supra), this Court, while deciding the Regular Second Appeal, on an appreciation of the evidence on record, came to the
conclusion that the entries made in the Asset Register therein are not clear conferment of the rights over the property in favour of the Panchayat. This
Court, in paragraph 23 of the said decision, held as under:
“23.....It has come out in evidence that there was no Panchayat committee decision for inclusion of the disputed pathway as a 'way' in the register of the assets of
the Panchayat. The defendants have no case that the land was surrendered by the plaintiff to the Panchayat for widening the pathway. In the above circumstances,
the asset register cannot be relied on to prove that the disputed pathway is a public pathway as contended by the defendants.â€
15.The Asset Register of the Panchayat being a statutory document maintained in terms of the provisions of the Kerala Panchayat Raj (Accounts)
Rules, 2011, the entries therein have to be presumed to be correct unless it is established that the same are incorrect.
16.O.S. No. 312 of 2003 filed by the petitioner for declaration of easement by prescription over the pathway was dismissed by the Court by Ext. P9
judgment dated 21.08.2004 on the ground that his right then was inchoate. Since the road is included in the Asset Register of the Panchayat, there is
presumption regarding the vesting of road in the Panchayat consequent to the entries therein, which is rebuttable. Accordingly, it is for the respondents
5 to 7 to establish in appropriate proceedings that the entries are wrong and made without any legal sanction. By virtue of the entries made in Ext. P4
Asset Register, there is conferment of the rights over the road in favour of the Panchayat and the respondents 5 to 7 cannot obstruct the access of the
petitioner to the road. Section 272 of the K P R Act provides that all roads vested in or maintained by a Panchayat shall be open to the use and
enjoyment of all persons. Accordingly, there will be a direction to the 4th respondent to remove all obstructions on the northern side of the petitioner's
property abutting the road shown as item No.212 in Ext. P4 Asset Register forthwith. The observations herein and the direction issued will not impede
any remedy available to respondents 5 to 7 in civil laws.
The writ petition is allowed as above. There will be no order as to costs.
