Kerala High Court
Shyju K. M vs Stateof Kerala on 16 January, 2016
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HON'BLE THE ACTING CHIEF JUSTICE MR. MOHAN M.SHANTANAGOUDAR
&
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
MONDAY, THE 22ND DAY OF AUGUST 2016/31ST SRAVANA, 1938
WP(C).No. 25300 of 2016 (S)
PETITIONER:
SHYJU K. M., AGED 44 YEARS, S/O. MADHAVAN,
KUTTIKKATTUPARAMBIL (H), PORATHISSERY VILLAGE,
IRINJALAKUDA NORTH P.O.,
IRINJALAKUDA MUNICIPALITY, PIN-680 121.
BY ADV. SRI.P.K.SAJEEV
RESPONDENTS:
1. STATEOF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
GOVERNMENT OF KERALA, PUBLIC ROADS DEPARTMENT,
THIRUVANANTHAPURAM-1
2. THE DISTRICT COLLECTOR,
COLLECTORATE,AYYANTHOLE, THRISSUR-3.
3. IRINJALAKUDA MUNICIPALITY,
MUNICIPAL OFFICE, IRINJALAKKUDA-680 121,
REPRESENTED BY ITS SECRETARY.
4. DEPUTY CHIEF ENGINEER, ROAD & BRIDGES.
THIRUVANANTHAPURAM-1.
5. ASSISTANT ENGINEER (PWD)
ROADS DIVISON, OFFICE OF THE ASSISTANT ENGINEER,
IRINJALAKUDA-680 121.
6. THE VICAR,
ST.THOMAS CATHEDRAL, 20/0,
ST.THOMAS CHANDAKKUNNU, IRINJALAKUDA-680 121.
R6 BY ADV. SRI.SHEEJO CHACKO
R6 BY ADV. SRI.ANAND PARATHARA
R3 BY ADV. SRI.K.K.CHANDRAN PILLAI (SR.)
R3 BY ADV. SRI.ABILASH THOMAS
R3 BY ADV. SMT.ELSA DENNY PINDIS
R3 BY ADV. SRI.K.V.KRISHNAKUMAR
R1, 2, 4 & 5 BY GOVERNMENT PLEADER SRI.M.A.ASIF
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22.08.2016, ALONG WITH WPC. 25592/2016, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C).No. 25300 of 2016 (S)
APPENDIX
PETITIONER'S EXHIBITS
EXT. P1 TRUE COPY OF THE G.O(RT) NO. 103/2016/PWD DATED 16.01.2016
OBTAINED UNDER THE RIGHT TO INFORMATION ACT.
EXT. P2 TRUE COPY OF THE ELEVATION OF FOOT OVER BRIDGE APPROVED
BY 3RD RESPONDENT, OBTAINED UNDER THE RIGHT TO
INFORMATION ACT.
EXT. P3 TRUE COPY OF THE GENERAL BUILDING PERMIT NO. LD-
RA/27109/2016 DATED 20.07.2016. ISSUED BY THE 3RD RESPONDENT
TO THE 6TH RESPONDENT, OBTAINED UNDER THE RIGHT TO
INFORMATION ACT.
EXT. P4 TRUE COPY OF THE OFFICE COMMUNICATION IN CONNECTION
WITH W.P(C) NO.39929/2015 DATED 20.06.2016. BETWEEN THE 5TH
AND THE 2ND RESPONDENTS.
EXT. P5 TRUE COPY OF THE OFFICE NOTES WITH B.A. NO.134/16-17 OF THE
3RD RESPONDENT, OBTAINED UNDER THE RIGHT TO INFORMATION
ACT.
EXT. P6 TRUE COPY OF THE REPRESENTATION DATED 25.07.2016 GIVEN BY
THE PETITIONER TO THE 1ST RESPONDENT.
EXT. P7 TRUE COPY OF THE POSTAL RECEIPT DATED 25.07.2016.
EXT. P8 TRUE COPY OF THE REPRESENTATION DATED 25.07.2016 GIVEN BY
THE PETITIONER TO THE 3RD RESPONDENT.
EXT. P9 TRUE COPY OF THE RECEIPT WITH REF NO. PW3/10999/16 DATED
26.07.2016 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT.
RESPONDENTS' EXHIBITS
ERXT.R6(a) PHOTOCOPY OF THE APPLICATION DATED 1.9.2015 FILED BYTHE
6TH RESPONDENT BEFORE THE PWD ROADS EXECUTIVE
ENGINEER.
EXT.R6(a)(i) TRUE COPY OF ENGLISH TRANSLATION OF EXT.R6(a).
EXT.R6(b) PHOTOCOPY OF THE LETTER DATED 24.11.2015 ISSUED FROM THE
DEPUTY CHIEF ENGINEER TO THE SECRETARY TO GOVERNMENT
PUBLIC WORKS DEPARTMENT.
EXT.R6(c) PHOTOCOPY OF THE LETTER DATED 28.1.2016 SUBMITTED BY THE
EXECUTIVE ENGINEER, PWD ROADS DIVISION TO THE
SUPERINTENDING ENGINEER, PWD ROADS & BRIDGES.
EXT.R6(d) PHOTOCOPY OF THE LETTER DATED 1.2.2016 ISSUED BY THE
SUPERINTENDING ENGINEER, PWD ROADS & BRIDGES, ALUVA TO
THE CHIEF ENGINEER, PWD ROADS AND BRIDGES,
THIRUVANANTHAPURAM.
EXT.R6(e)(i)TRUE COPY OF ENGLISH TRANSLATION OF EXT.R6(e).
WP(C).No. 25300 of 2016 (S)
EXT.R6(f) PHOTOCOPY OF THE NO OBJECTION CERTIFICATE DATED 1.6.2016
ISSUED BY EXECUTIVE ENGINEER, KERALA WATER AUTHORITY.
EXT.R6(g) PHOTOCOPY OF THE NO OBJECTION CERTIFICATE ISSUED BY
BHARAT SANCHAR NIGAM LTD. ON 28.05.2016.
EXT.R6(h) PHOTOCOPY OF THE NO OBJECTION LETTER ISSUED BY THE
ASSISTANT ENGINEER, ELECTRICAL SECTION, IRINJALAKUDA ON
31.5.2016.
EXT.R6(h)(i) TRUE COPY OF ENGLISH TRANSLATION OF EXT.R6(h).
EXT.R6(i) PHOTOCOPY OF THE SKETCH SHOWING THE POINT OF ACCESS TO
THE PUBLIC AT LANDING POINTS OF THE FOOT OVER BRIDGE.
//TRUE COPY//
AHZ/
Mohan M. Shantanagoudar, Ag. C.J.
&
K.T.Sankaran, J.
----------------------------------------------------
W.P.(C) Nos.25300 & 25592 of 2016
----------------------------------------------------
Dated this the 22nd day of August, 2016
JUDGMENT
Mohan M. Shantanagoudar, Ag. C.J.
These writ petitions are filed seeking quashing of Ext.P1 order passed by the first respondent as well as Ext.P3 General Building Permit issued by the third respondent on the ground that the proposed construction of the foot over bridge is to be done by the sixth respondent, at km 15/360 at Kodungallur - Shornur road using the funds of St.Thomas Cathedral.
2. The records reveal that Kodungallur-Shornur road is an important State Highway. The properties of St.Thomas Cathedral are situated on either side of the road. St.Thomas Cathedral is running a school. The students of the school will have to cross the road to reach the other portion of the school situated on the other side of the road and hence, the sixth respondent made an W.P.(C) Nos.25300 & 25592 of 2016 :: 2 ::
application before the concerned authorities for grant of permission to construct a new foot over bridge at Kodungallur-Shornur road using its own funds.
3. Respondents 1 to 5, having found that the foot over bridge is not only useful for the students of the school run by the sixth respondent but also for the public at large, permitted the sixth respondent to go ahead with the construction, by granting all necessary licences from various departments. Ext.P1 order, which was issued in favour of the sixth respondent, clearly reveals that St.Thomas Cathedral proposed to use its own fund for the construction of the foot over bridge which is essential and helpful for the general public and the students. It is also observed in the very order that the road in question is one of the important State Highways in Thrissur District which carry heavy traffic throughout the year. Looking into the orders issued in favour of the sixth respondent granting permission to them to construct the foot over bridge, it is clear that the foot over bridge shall be permitted to be used by public also.
W.P.(C) Nos.25300 & 25592 of 2016 :: 3 ::
4. These writ petitions are filed questioning the orders issued in favour of the sixth respondent permitting them to construct the foot over bridge on the ground that the public would not be allowed to use it and that it would be useful only for the purpose of the church and the students of the school. Such submissions are refuted by the sixth respondent by filing affidavit dated 22nd August, 2016. The relevant portion of the affidavit reads thus:
"2. The construction of a New Foot Over bridge at Km 15/360 of Kodungalloor-Shoranur Road using fund of St.Thomas Cathedral Church Irinjalakuda is sanctioned by Government of Kerala vide G.O.(Rt) No.103/2016/PWD, dated 16/01/2016 in pursuance of an application dated 1/09/2016 filed before the Executive Engineer, PWD, Thrissur by me as the Vicar of St.Thomas Cathedral Church, Irinjalakuda.
3. I hereby reiterate and reaffirm the commitment made in the representation dated 1/09/2015 filed before the Executive Engineer PWD Roads Thrissur. The very purpose of the Foot Over Bridge is public purpose and the benefit of the Foot Over bridge will be kept open to all members of the public. The execution of the project is undertaken in accordance with design and plan approved by Public Works Department and in full supervision of the W.P.(C) Nos.25300 & 25592 of 2016 :: 4 ::
Department. Irinjalakuda Municipality has also granted building permit under the Kerala Municipal Building Rules. All concerned statutory authorities like Kerala Water Authority, Kerala State Electricity Board and Bharat Sanchar Nigam Ltd, have granted Clearance certificate for the construction of the Foot Over bridge and same is produced before this Hon'ble Court. The construction of the Foot Over bridge was commenced and continued strictly in accordance with the directions of PWD and in full supervision of the Public Works Department.
4. I hereby confirm and acknowledge the promise given in Ext.R6(a) representation dated 1/09/2015 and all members of the public will be permitted to use the two meter width pathway provided for having access to Foot Over bridge, after its completion. The public shall at all times have free and unobstructed access through the two meter width pathway provided for public access to the landing points of Foot Over bridge as shown in Ext.R6(i).
The two meter width pathway will be maintained as such in good and proper condition so long as the Foot Over bridge exists."
5. From the aforementioned averments made in the affidavit filed by the sixth respondent, it is amply clear that the public at large W.P.(C) Nos.25300 & 25592 of 2016 :: 5 ::
will be permitted to use the two meter width pathway provided for having access to the foot over bridge, after its completion. The public shall at all times have free and unobstructed access through the two meter width pathway provided for public access to the landing points of foot over bridge as shown in Ext.R6(i). It is also mentioned therein that the two meter width pathway will be maintained in good and proper condition so long as the foot over bridge exists. From the aforementioned averments we are fully satisfied about the intention of the sixth respondent that the foot over bridge would be made available for public also.
6. The sixth respondent is directed to keep the two meter width pathway open for all time to come in order to ensure the public passage on the foot over bridge whenever required.
7. The averments made in the affidavit filed by the sixth respondent dated 22.8.2016 are placed on record. Based on the aforementioned undertaking by the sixth respondent, we direct that the sixth respondent shall keep the two meter width pathway to be W.P.(C) Nos.25300 & 25592 of 2016 :: 6 ::
provided to the public at large from the main road to the landing points of the foot over bridge open all through 24 hours on all days.
With these observations, the writ petitions stand disposed of. It is needless to observe that the compound wall of the sixth respondent to an extent of two meter width pathway on either side shall be demolished after completion of the foot over bridge. The construction of the foot over bridge shall be completed by the sixth respondent without any hindrance, at an early date.
Mohan M. Shantanagoudar Acting Chief Justice K. T. Sankaran Judge ahz/22/08/16