Kerala High Court
Kuriakose K A vs State Of Kerala on 1 October, 2015
Bench: Ashok Bhushan, A.M.Shaffique
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY,THE 1ST DAY OF OCTOBER 2015/9TH ASWINA, 1937
WA.No. 2152 of 2015 () IN WP(C).5558/2014
-------------------------------------------
AGAINST THE JUDGMENT IN WP(C) 5558/2014 of HIGH COURT OF KERALA DATED28-07-2015
APPELLANT(S):
------------------------
KURIAKOSE K A
S/O.AUGUSTINE, KUDIYATTU HOUSE, MATHIRPAPPALLY P.O
KOTHAMANGALAM
BY ADVS.SRI.ALEXANDER JOSEPH
RESPONDENT(S):
----------------------------
1. STATE OF KERALA
REPRESENTED BY ITS SECRETARYTO GOVERNMENT
DEPARTMENT OF MINOR IRRIGATION
STATE SECRTARIAT, THIRUVAANTHAPURM 695 001
2. UNION OF INDIA
REP BY SECRETARY MINISTRY OF ENVIORNMENT & FOREST
GOVERNMENT OF INDIA, NEW DELHI 110001
3. SUPERINTENDING ENGINEER,
DEPARTMENT OF MINOR IRRIGATION, CENTRE CIRCLE
ERNAKULAM 682 030
4. EXECUTIVE ENGINEER
DEPARTMENT OF MINOR IRRIGATION, CENTRAL CIRCLE
ERNAKULAM 682 030
5. DISTRICT COLLECTOR,CIVIL STATION,KAKKANAD,ERNAKULAM 682 030
6. REVENUE DIVISIONAL OFFICER,MUVATTUPUZJHA 686661
7. TAHSILDAR
KOTHAMANGALAM TALUK, KOTHAMANGALAM 686 641
8. VILLAGE OFFICER,
KOTHAMANGALAM VILLAGE, KOTHAMANGALAM 686 691
WA.No. 2152 of 2015 - 2 -
9. CIRCLE INSPECTOR OF POLICE,KOTHAMANGALAM POLICE STTION
KOTHAMANGALAM -686 691
10. KOTHAMANGALAM MUNICIPALITY
REP BY ITS SECRTARY, MUNICIPAL OPFFICE
KOTHAMANGALAM 686 691
11. K.M DAVID, KUZHUPPILLIL HOUSE, PAMPAKUDA P.O
MUVATTUPUZHA 686B 661
R1, R3 TO R9 BY SPL.GOVERNMENT PLEADER SMT. GIRIJA GOPAL
R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
R10 BY ADV. SRI PEEYUS A. KOTTAM
R11 BY SRI.BABU JOSEPH KURUVATHAZHA
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01-10-2015, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sou.
ASHOK BHUSHAN, CJ & A.M.SHAFFIQUE, J
--------------------------------------------------------------
W.A.No. 2152 of 2015
-------------------------------------------------------------
Dated this the 1st day of October, 2015
JUDGMENT
Shaffique, J.
Appellant is the petitioner in the writ petition. He challenges judgment dated 28.7.2015 in Writ Petition(C) No.5558 of 2014 by which the writ petition stands dismissed.
2. The petitioner claiming to be the owner in respect of 10 cents of land in Survey No.1015/1 of Kothamangalam Village, has approached this court seeking the following directions :
"i. Issue a writ of Mandamus or any other appropriate writ order or direction, directing the 10th respondent, not to use the land extending 1.54 acres in Survey No.1015/2 and 1015/3 of Kothamangalam Village, acquired by the 10th respondent as per Exhibit P4 to P7 for the construction of town hall, for diversion of thodu or for any other purpose other than the construction of town hall;
ii. Issue a writ of Mandamus or any other appropriate writ order or direction, directing the 1st, 3rd, 4th and 10th respondents not to divert Kuroor thodu of Kothamangalam as per Exhibit .P9 contract and P10 plan;
iii. Issue appropriate writ order or direction, calling for the records leading to Exhibit .P9 and P10 and quash the same."W.A.No.2152/15 2
3. The grievance raised by the petitioner is with reference to diversion of a thodu. The contention raised is that the thodu having a width of 40 metres has been diverted and reduced to a width of 24 metres. The petitioner submits that the Municipality has earlier acquired 1.54 acres of land in Survey No.1015/2 and 1015/3 of Kothamangalam Village for the purpose of constructing Town Hall and by the present attempt of deviation, the intention of the Municipality is to help certain other persons and the thodu is being constructed without conducting proper study and deviation may cause inundation as far as property of the petitioner is concerned.
4. Counter affidavits have been filed by separate respondents. In the counter affidavit of the first respondent, it is inter alia stated that there is no intention to reduce the width of the present thodu. The diversion has been proposed in public interest and proper study has been conducted by competent authority including the Irrigation Department. A portion of the land was obtained from private party by way of exchange. It is stated that there is no intention to protect the encroachers. The deviation is only made in public interest and that is for constructing the of Town Hall building, and to house W.A.No.2152/15 3 frontge to the National Highway 49.
5. Learned Single Judge after evaluating the contentions raised on behalf of the petitioner and the defence raised on behalf of the respondents formed an opinion that the need projected by the petitioner, for maintenance of thodu is undertaken by the Municipality and it cannot be subject to the whims and fancies or of the opinion of each and every citizen, residing within the Municipality. There is no merit in the contention of the petitioner and therefore the writ petition has been dismissed.
6. Challenging the aforesaid judgment, learned counsel for the appellant submits that the entire idea of the respondent is to reduce the width of the present thodu. According to the the learned counsel, the width of the thodu is 40 metres, which was reduced to 24 metres.
7. Learned counsel appearing for the Municipality submits that there is no intention to reduce the width of the thodu as it presently exists and hence there is no scope for the apprehension of the petitioner.
8. Though the learned counsel for appellant has strenuously argued that Municipality has not taken any steps W.A.No.2152/15 4 to conduct study in the matter, we are not satisfied with the contention of the appellant. Learned counsel for the Municipality submits that proper study had been conducted by the Irrigation Department as well as the PWD authorities.
9. Apparently learned Single Judge has opined that petitioner's opinion with respect to the thodu cannot give rise to litigation which has to be adjudicated by this Court under Article 226 of the Constitution. We do not think that the learned Single Judge has committed any error in dismissing the writ Petition. No grounds are made out for interference in the appeal. The writ appeal is hence dismissed.
Sd/-
ASHOK BHUSHAN CHIEF JUSTICE Sd/-
A.M.SHAFFIQUE, JUDGE // True copy // sou.