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The petitioner has constructed a hotel complex in Survey No.-s586, 587/1-2, 587/4, 587/1-1, 587/3 (Re-Sy.Nos.5/17, 5/18,5/24 in block No.23 at Peroorkada Village, in Thiruvananthapuram. The petitioner submits that the above hotel complex has been classified as four star. The petitioner also submits that he was given consent by the Water Authority for crossing their land with certain restrictions. Ext.P7 is the recommendation of Assistant Executive Engineer to the Executive Engineer. However, the Water Authority did not issue the formal consent letter. The grievance of the petitioner is that the Water Authority does not allow vehicular access through the pipe line road. It is submitted that the petitioner is prepared to comply with all conditions in Ext.P7. It is to be noted that the acess to the petitioner’s property is only through the pipeline road. The Water Authority did not object to the petitioner, having access through pipe line road while constructing the multi complex hotel building.
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The petitioner also relies on the decree of the civil Court produced as Ext.P10, wherein the Water Authority was restrained from closing down means of access to other users of the pipe line road by constructing compound wall or otherwise.
2. The right of access to high way is a common law right.
The abuttting owners have such right under common law to have access to the high way. This Court in in Joseph v. District Magistrate [1996 (2) KLT 490] held as follows:
“The owner on the side of the national highway has a private right of access as well, subject to the public right of passage which is a higher right to be enjoyed by public including the person like the petitioner. In other words, a private right of access to the highway may co-exist with a public right of way though it does not necessarily merge with the public right. Public right of passage is subject to private right of landwoners' right to access to the highway”
In Halsbury's Laws of England Vol.21, Paragraph 120 held as follows:
“An owner of land adjoining a highway is entitled to access to that highway at any point at which his land actually touches it.
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The right of access of an adjoining owner from his premises to the highway and vice versa is a private right and is distinct from his right to use the highway as soon as he is upon it, which (at any rate if the woil of the highway is not his) he enjoins only as a member of the public”
In fact this Court in Joseph's Case (supra) referred to the paragraph refererred as above in Halsbury's Laws.
3. Another single judge of this Court in Vijayan vs.State of Kerala [2004 (3) KLT 228], after placing reliance in Joseph's case (supra) held as follows:
“Notwithstanding the use of the property as a bus bay, as is envisaged, it continues to be part of the national highway, which has its boarder extended. As a citizen, the petitioner will have a right to use the bus bay and if necessary he will also have a right to enter into adjoining land which was lying as a Single block before acquisition.”
4. In view of the above, ensuring compliance of Ext.P7, permission shall be granted to the petitioner to use the light motor vehicle acess or such other vehicle permitted by the authority through the pipeline road and Water Authority shall not deny any access to the petitioner’s property through pipe line road. However it is competent on Water Authority to safeguard W.P.(C).No.32644 of 2014
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the property without denying access to their property.
The writ petition is disposed of as above.
jm/ A.MUHAMED MUSTAQUE, JUDGE