Kerala High Court
Sivankutty vs The State Of Kerala
Author: Manjula Chellur
Bench: Manjula Chellur, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
TUESDAY, THE 18TH DAY OF SEPTEMBER 2012/27TH BHADRA 1934
WP(C).No. 26781 of 2011 (S)
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PETITIONER:
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SIVANKUTTY, AGED 46 YEARS,
S/O. VELAPPAN NAIR,
PULIMOODU VEEDU, KADAVATTARAM,
NEYYATTINKARA - 695 121.
BY ADVS.SRI.R.GOPAN
SRI.N.DHARMADAN (SR.)
RESPONDENTS:
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1. THE STATE OF KERALA, REPRESENTED BY THE
CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. THE GOVERNMENT SECRETARY,
PUBLIC WORKS DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
3. THE DISTRICT COLLECTOR,
THIRUVANANTHAPURAM DISTRICT,
COLLECTORATE, KUDAPPANAKUNNU,
THIRUVANANTHAPURAM - 695 001.
4. THE CHIEF ENGINEER,(ROADS AND BRIDGES)
PUBLIC OFFICE, MUSEUM,THIRUVANANTHAPURAM - 695 001.
5. THE ASSISTANT CHIEF EXECUTIVE ENGINNER,
PUBLIC WORKS DEPARTMENT, ROAD SUB DIVISION,
PWD GUEST HOUSE, NEYYATTINKARA - 695 001.
6. THE SUPERINTENDENT OF POLICE (RURAL),
THIRUVANANTHAPURAM, NANDAKODE,
THIRUVANANTHAPURAM - 695 001.
WP(C).No. 26781 of 2011 (S)
7. THE CIRCLE INSPECTOR OF POLICE,
NEYYATTINKARA POLICE STATION,
NEYYATTINKARA - 695 001.
8. M. VENUGOPALAN THAMPI,
CHAIRMAN, N.SUNDARAN NADAR NATIONAL FOUNDATION,
KRISHNAN KOVIL JUNCTION, NEYYATTINKARA - 695 001.
* ADDL 9. THE PROJECT DIRECTOR,
NATIONAL HIGHWAYS AUTHORITY OF INDIA,
PROJECT IMPLEMENTING UNIT,
THIRUVANANTHAPURAM.
(R9 IS IMPLEADED AS ADDITIONAL RESPONDENT VIDE ORDER
DATED 01.03.2012 IN I.A. No.2580 of 2012).
R8 BY ADV. SRI.R.T.PRADEEP
BY ADV. SRI.SREEKANTH S.NAIR
BY ADV. STATE ATTORNEY
BY ADV. SRI.C.C.THOMAS (SR.)
BY ADV. THOMAS ANTONY
R9 BY ADV. SRI.THOMAS ANTONY
BY ADV. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 26781 of 2011 (S)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1 : TRUE COPY OF THE LOCTION SKETCH OF THE NEYYATTINKARA
TRAFFIC ISLAND.
EXT.P2 : TRUE COPY OF GO(Rt) NO.1173/2011 DATED 07.09.2011.
EXT.P3 : TRUE COPY OF THE ORDER HANDING OVER THE NATIONAL HIGHWAY
TO THE CONTRACTOR.
EXT.P4 : TRUE COPY OF THE MASS PETITION SUBMITTED BEFORE THE
1ST RESPONDENT.
EXT.P5 : TRUE COPY OF MASS PETITION SUBMITTED BEFORE THE
2ND RESPONDENT.
EXT.P6 : TRUE COPY OF THE NEWSPAPER REPORT DATED 08.10.2011 IN
MATHRUBHOOMI DAILY.
EXT.P7 : TRUE COPY OF THE FIRST PHASE REPORT OF THE CHIEF ENGINEER FOR
THE DEVELOPMENT OF KARAMANA KALIYIKKAVILA PORTION OF
NATIONAL HIGHWAY.
RESPONDENTS' EXHIBITS:
EXT.R2(A) : TRUE COPY OF THE REPORT NO.CE/R&B/TVM/5250/2010 DATED
28.12.2010 SUBMITTED BY THE 4TH RESPONDENT.
EXT.R2(B) : TRUE COPY OF THE REPORT & PLAN DATED 26.08.2011 SUBMITTED
BY THE THIRD RESPONDENT TO THE 2ND RESPONDENT.
EXT.R2(C) : TRUE COPY OF THE SITE PLAN SUBMITTED ALONG WITH THE REPORT.
EXTR2(D) : TRUE COPY OF THE G.O. DATED 26.08.2010.
EXT.R8(A) : TRUE COPY OF THE RECOMMENDATION OF CHIEF ENGINEER WITH
THE SKETCH DATED 28.12.2010.
EXT.R8(B) : TRUE COPY OF COMMUNICATION DATED 26.08.2011 IN THIS REGARD
FROM DISTRICT COLLECTOR TO DEPARTMENT OF PUBLIC WORKS.
EXT.R8(C) : TRUE COPY OF GO(Rt) No.1173/2011 DATED 07.09.2011 ISSUED
BY PUBLIC WORKS DEPARTMENT.
EXT.R8(D) : TRUE COPY OF ACKNOWLEDGEMENT FORM FOR THE HANDING OVER
THE SITE OF CONTRACTOR DATED 26.09.2011.
EXT.R8(E) : TRUE COPY OF THE PHOTOGRAPH OF STONE LAID FOR INSTALLATION
OF STATUE.
WP(C).No. 26781 of 2011 (S)
EXT.P8(F) : TRUE COPY OF THE LONG VIEW OF PHOTOGRAPH OF THE SITE.
EXT.P8(G) : TRUE COPY OF THE DRAWING OF STATUE.
EXT.P8(H) : TRUE COPY OF THE ESTIMATE OF STATUE NIL DATED.
EXT.R8(I) : TRUE COPY OF THE SPECIAL LEAVE TO APPEAL (CIVIL) NO.(S)
25022/2012 DATED 21.08.2012 BEFORE THE SUPREME COURT OF INDIA.
EXT.R8(J) : TRUE COPY OF THE ORDER DATED 23.08.2012 IN SPECIAL LEAVE TO
APPEAL (CIVIL) No.(S)25022/2012 BY THE SUPREME COURT OF INDIA.
EXT.R8(K) : TRUE COPY OF THE PHOTOGRAPH AFTER CONSTRUCTING PEDESTAL
AND INSTALLING HOARDING OF THE LEADER.
/TRUE COPY/
PA TO JUDGE
Manjula Chellur, Ag. C.J. & A.M. Shaffique, J.
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W.P.(C) No. 26781 OF 2011
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Dated this the 18th day of September, 2012
JUDGMENT
Manjula Chellur, Ag. C.J.
Heard learned counsel for the petitioner as well as State Attorney Mr.Vijayaraghavan, Mr.Thoms Antony representing National Highways and Mr.R.T.Pradeep representing 8th respondent.
2. The petitioner approached this Court by filing a writ petition as a pro bono publico. He claims to be a permanent resident of Neyyattinkara. According to him, the traffic island near K.S.R.T.C bus stand junction, Thiruvananthapuram - Kanyakumari National Highway, Neyyattinkara - Poovar road and Neyyattinkara convent roads joints in this traffic island. According to him, the traffic as such at the junction is congested with many vehicles passing through these roads and the proposal to install the statue of 'late Sundaran Nadar' in this traffic island at Neyyattinkara junction would cause immense problems and the said decision to install the statue of late Sundaran Nadar is only to have a WP(C) No. 26781 of 2011 -:2:- political motive and on appease of a group of public. While narrating violation of various statutes, petitioner contends that the consent ought to have been obtained from the National Highway Authorities and Ext.P2 issued by the Government of Kerala is without jurisdiction and power. Therefore, Ext.P2 cannot stand in the eye of law hence he sought the following reliefs:
"1. Issue a writ of mandamus and call for the records leading to Exhibit P2 and quash the same by issuing a writ of certiorari.
2. Issue a writ of mandamus or prohibitory orders not installing the statue of late Sri.N.Sundaran Nadar on Neyyattinkara Traffic island.
3. Issue writ of prohibitory orders against all Government agencies and its authority against granting permission in installing statues on public roads.
4. Issue a writ of mandamus or order directing the 1st and 2nd respondents to dispose of Exhibit P4 and P5 forthwith.
5. Issue an order or direction directing the 8th respondent to remove the foundation stone installed pursuant to Exhibit P2.
6. Such other writ, direction or order this Honourable Court deem fit and proper for the facts and circumstances in this case."
WP(C) No. 26781 of 2011 -:3:-
3. He also refers to various groups pressurising the Government to pass an order like Ext.P2 i.e. political pressure of the ruling party, though Mr.Sundaran Nadar never represented the Neyyattinkara Constituency. According to him, the social workers and local people gathered on 05.08.2011 at 10 p.m. when contractor and others came to this particular island with the intention to put up construction which was obstructed by them. According to the petitioner, with the malafide intention to hold political meetings near the statue, the present steps were taken at National Highway and the same would definitely affect the traffic flow at the said junction. With these averments petitioner specifically contends that Ext.P2 order is erroneously and illegally issued in violation of law, especially the law laid down by Hon'ble Supreme Court of India. The attempt of the 8th respondent is only to appease a group of persons to earn political image. All other respondents are acting as supporters without discharging any statutory duty supporting the 8th respondent and his henchmen will cause accidents and traffic problems which will infringe the fundamental rights of the public and lastly it would WP(C) No. 26781 of 2011 -:4:- come as a precedent for other political parties in future to fill up National Highway with the statues of political leaders.
4. As against this, the counter affidavit filed on behalf of 2nd respondent the Joint Secretary to Government, Public Works Department indicates how such a decision to issue an order like Ext.P2 came to be passed. In this counter affidavit several facts which lead to issuance of Ext.P2 are revealed. The Chairman of 'N.Sundaran Nadar National Foundation'/8th respondent gave a representation on 19.03.2010 to the then Government to accord sanction to erect statue of late N.Sundaran Nadar in the existing triangular shape traffic island which came to be considered, based on the report of technical experts, i.e. Chief Engineer and District Collector. The reports from these two persons indicate, no hindrance to the vehicular traffic and further approved it as a suitable place for installation of the statue. Subsequent to the report of the Chief Engineer of the concerned Department and the District Collector, Ext.P2 came to be issued. Before this Ext.P2 came to be issued, technical clearance of 3rd and 4th respondents were taken which was the WP(C) No. 26781 of 2011 -:5:- basis for clearance by the Government. In other words, the contention of the petitioner that it would lead to traffic hindrance is totally denied and further they bring on record that though late N.Sundaran Nadar belongs to supporter of Indian National Congress, a veteran leader and noted personality of Kerala Legislature, the then LDF Government in power actually approved the request of the 8th respondent to install the statue of late N.Sundaran Nadar and in spite of it, when the present Government came to power, irrespective of the earlier sanction, they once again made enquiry into the technical clearance and so also suitability and any hindrance to the traffic which could happen because of installation of the statue. Again it revealed that there was no such hindrance to the vehicular traffic and technical clearance was under order, therefore Ext.P2 came to be given. It is also contended that the permission given under Ext.P2 is not in violation of any of the directions given by the Apex Court and this particular area comes within the jurisdiction of PWD and not the National Highway Authority.
WP(C) No. 26781 of 2011 -:6:-
5. This fact again came to be substantiated by an affidavit filed by the 9th respondent. So far as the counter affidavit of 2nd respondent, it came to be approved and adopted by the 1st respondent as well. Subsequent to the filing of this counter affidavit by the 2nd respondent, the 1st respondent filed an affidavit indicating that in no way the permission at Ext.P2 would render violation of directions of the Apex Court. Subsequently, the 9th respondent-National Highway Authority filed its counter brining on record the factual situation clarifying in whose jurisdiction and control the traffic island in question would fall. Paragraph 2 refers to the actual National Highways within the State of Kerala and how many Kilometers they run. Paragraph 3 pertains to the controversy in question indicating whether this stretch of road would fall within the jurisdiction of NH47 or not. Paragraph 3 reads as under:
"3. The Government of India is developing the National Highways throughout the country under the National Highways Development Project (NHDP) in a phased manner. On behalf of the Government of India, the NHAI was entrusted to do the Feasibility studies and preparation of the Detailed Project WP(C) No. 26781 of 2011 -:7:- Report(DPR) for the 4/6 Lanning of the NH47 from Cherthalai to Kazhakkuttam (Km 379/100 to Km 551/900) and from Kazhakkuttam to Karode (Km 00/000 to Km 43/000) now known as Thiruvananthapuram Bye-pass under NHDP Phase- III (A) BOT project. The stretch of the existing NH 47 from Kazhakkuttom (Km.551/900) to Kaliyikkavila (Km.599/00) will not come under the above said Thiruvananthapuram Bye-pass project. This stretch of the existing NH47 is under the control of the Kerala State PWD NH-Wing under the guideline of the Ministry of Road Transport and Highways(MoRT&H). The Neyyattinkara junction where it is proposed to install the statue of Sri.Sundaran Nadar, fall sat Km.582/00 (approximately) in the existing stretch of NH47. The Neyyattinkara junction in the stretch of the existing NH47 is not under the jurisdiction of the NHAI and is maintained by the PWD NH wing of the State of Kerala. The existing NH47 between Km.551/900 and Km.599/00 will convert into a state highway once the Thiruvananthapuram Bye-pass is commissioned."
6. With these pleadings now one has to see whether any directions of the Apex Court is violated as Ext.P2 is in blatant violation of the directions of the Apex Court. Paragraph 3 of the statement filed by the 9th respondent clearly indicates as on today the road in question is not under the jurisdiction of National Highway Authority of India(for short 'NHAI'). But it is WP(C) No. 26781 of 2011 -:8:- completely maintained by Public Works Department, National Highway (Wing) of the State of Kerala. During the course of arguments, Sri.Thomas Antony, Standing Counsel for 9th respondent further submitted that there is no proposal to take the responsibility of this existing NH47 by NHAI, therefore question of this NH47 especially where the controversial island is in existence will never come within the jurisdiction and control of NHAI. With this piece of material and the arguments, definitely the argument of the learned Senior Counsel Mr.Dharmadan that the provisions of National Highway Act of 1956 are violated, is not correct as it does not fall within the jurisdiction of NHAI. When once the traffic island in question is within the jurisdiction of PWD National Highway (Wing) who would be the authority who could grant permission either to install a statue in the area which comes under the control of PWD National Highway or any deviation of the roads and NHAI has nothing to do with the issue in question. Apparently the counter affidavit of the 2nd respondent clearly establishes the exercise done by various departments including the technical clearance before WP(C) No. 26781 of 2011 -:9:- issuing Ext.P2 permission to install the statue in question. With this definitely it is not open to the petitioner to grieve that there is serious violation of National Highway Act of 1956 for want of consent by the NHAI.
7. Then the next question is whether there is any unauthorised structure as dealt with in the case of A.Abdul Farook v. Municipal Council, Perambalur reported in (2009) 15 SCC 351. In this case paragraph 27 is relevant which reads as under:
"27. Sub-section (1) of Section 26, as noticed hereinbefore, is mandatory in character. Sub-section(2) of Section 26 is an exception to sub-section (1) of Section 26. The provisions of Section 26 with a view to prevent unauthorised occupation of highway or encroachment thereof would, however, apply to third parties and not to the Highways Authorities. The power to grant permission for erecting any arch or any other constructions strictly lies with the Highway Authority. The State, after coming into force of the said Act, is denuded of its power in the matter of grant of any permission. The High Court, in our opinion, thus, committed a manifest error in holding that the State would (sic could) exercise its jurisdiction in terms of GOMs No.32."
WP(C) No. 26781 of 2011 -:10:-
Reliance is placed on the above judgment to contend that the provisions of Section 26 of Tamil Nadu Highways Act, 2001 is an exception and the purpose of this Section was only to prevent unauthorised occupation of Highway or encroachment thereof. Therefore, according to him, as per the law laid down by the Apex Court, the present permission is illegal.
8. The question of illegality would come into play only if there is proposal to put up this statue on this traffic island without any sanction or permission of any authority concerned. Once this particular site is not within the control of NHAI especially when it comes within the jurisdiction of PWD National Highway (Wing), the Chief Engineer having given clearance after securing technical clearance and as per the District Collector's report, it is well within the authority of the State to issue an order like Ext.P2. When once Ext.P2 is supported by technical clearance and consent of the Department in question, the question of any unauthorised construction or illegal construction would not come in the way. Even if such permission is given, it would be subject to certain conditions. Apparently no conditions WP(C) No. 26781 of 2011 -:11:- whatsoever are put up. However, to put up the pedestal and then the statue over the pedestal, the location has to be approved by the concerned Department which apparently has approved. The 8th respondent has to put up the base and install the statue only on the site approved and pointed out by the Department and not any other place. It is not the case of the petitioner that the location, now where the base has come up, is not a location identified by the Department while issuing Ext.P2. In that view of the matter, one has to say that there is no violation as of any of the conditions so far as the location is concerned. In that view of the matter even Ext.P2 is in order and well within the jurisdiction of the State of Kerala.
9. Then coming to the present Public Interest Litigation, whether the petitioner has come with clean hands and whether there is bonafide in his approach before this Court. According to the petitioner, this is in violation of National Highway Act and State of Kerala has no authority to issue Ext.P2 order so far as the legal aspect of the matter. Then coming to the factual situation, this would cause traffic congestion at the island, WP(C) No. 26781 of 2011 -:12:- therefore it would be hub of accidents, if statue is installed. The entire installation measures about 486 sq.feet and the space occupied by the pedestal now is about 15 sq.feet which is less than 4% of the total measurement. On the pedestal a statue of 5 feet is going to be erected and the entire length of pedestal and statue would be about 16 feet. The statue definitely will not occupy a space of 15 sq. feet and it would be much smaller than the pedestal. So far as the clearance is concerned, the location of the pedestal will be at one corner of the junction. The look at rough sketch shows the very location of the site definitely would not obstruct the view of any person while manning their vehicles. The very technical clearance was obtained with an intention to know whether it would cause any sort of traffic problems including accidents apart from traffic congestion. Both factually and legally the contentions raised by the petitioner are without any basis as explained above.
10. At the time of filing the writ petition an interim order came to be passed restricting the 8th respondent WP(C) No. 26781 of 2011 -:13:- Foundation in proceeding with the installation work. After posting the matter regularly for hearing, as the 8th respondent was seeking for vacation of stay, the matter came to be listed on several days for hearing. As observed in the order dated 14.08.2012 in spite of several adjournments, the petitioner was taking time on one ground or the other. Therefore, we vacated the interim stay granted on 11.10.2011. This interim order dated 14.08.2012 came to be challenged before the Apex Court making several averments and allegations including denial of taking repeated adjournments which is totally incorrect on the part of the petitioner. Other than the illegal and factual situation as stated above, the petitioner did not raise any other ground in the writ petition opposing the installation of late N.Sundaran Nadar's statue. Surprisingly, altogether a different allegation as a ground came to be brought on record before the Apex Court in the petition for Special Leave. This is placed on record as Ext.R8
(i) along with the counter affidavit of 8th respondent Foundation.
11. We have already noted that late N.Sundaran Nadar a veteran leader belongs to Indian National Congress and WP(C) No. 26781 of 2011 -:14:- was liked by one and all. Though he belonged to Congress party, the LDF Government approved the move of the Foundation to install his statue. This move by the Government lead by LDF would only indicate their consent to erect statue of late N.Sundaran Nadar. In other words, so far as political parties, all other parties respected late N.Sundaran Nadar in spite of the fact that he is a strong follower of Indian National Congress. Unfortunately, forgetting all these the petitioner indicates that installation of his statue at the traffic island in question would cause commercial and political disharmony apart from other illegalities referred. This political and commercial disharmony was never an allegation so far as the ground of writ petition. The petitioner objected installation only on the ground of traffic congestion and also not obtaining necessary permission from NHAI. Totally a different ground was made out before the Apex Court which is erroneous and improper on the part of the petitioner. This would only indicate that petitioner has approached this Court with the intention to stall the installation of statue of late N.Sundaran Nadar. It rather only indicates the WP(C) No. 26781 of 2011 -:15:- conduct and intention that some how the installation of the statue has to be postponed. This is the intention with which the petitioner seems to have approached the Court. In the absence of any illegality and when there is no material indicating any of the grievance expressed by the petitioner, the purpose for public interest litigation now fought is a total failure. It is nothing but the intention of the petitioner and his supporters to see that installation should not happen at any cost. If the proposal of the 8th respondent was not a laudable proposal, both the then Government and the present Government would not have accepted the said proposal. All major political parties have no objection for such a move of 8th respondent. There is no rule that leaders hailing from the constituency alone will have the honour of having their statues installed in the constituency. It is not even the case of the petitioner that another veteran leader ought to have found place in the traffic island and not late N.Sundaran Nadar.
12. In that view of the matter, having regard to paragraphs 41, 42, 43 and 44 in the case of Kalyaneshwari v. WP(C) No. 26781 of 2011 -:16:- Union of India and others reported in (2011) 3 SCC 287, we are compelled to opine that this Public Interest Litigation is an unholy move on the part of the petitioner with personal vengeance for the reasons best known to him to stall the installation of statue of late N.Sundaran Nadar. Paragraphs 41 to 44 in the case of Kalyaneshwari (supra) read as under:
"41. In Ashok Kumar Pandey v. State of W.B. this Court took a cautious approach while entertaining public interest litigations and held that public interest litigation is a weapon, which has to be used with great care and circumspection. The judiciary has to be extremely careful to see that no ugly private malice, vested interest and/or seeking publicity lurks behind the beautiful veil of public interest. It is to be used as an effective weapon in the armoury of law for delivering social justice to citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief.
42. In Rajiv Ranjan Singh 'Lalan'(8) v. Union of India, this Court reiterated the principle and even held that howsoever genuine a case brought before a court by a public interest litigant may be, the court has to decline its examination at the behest of a person who, in fact, is not a public interest litigant and whose bona fides and credentials are in doubt; no trust can be placed by the court on a malafide applicant in a public interest litigation. WP(C) No. 26781 of 2011 -:17:-
43. The courts, while exercising jurisdiction and deciding a public interest litigation, have to take great care, primarily, for the reason that wide jurisdiction should not become a source of abuse of process of law by the disgruntled litigant. Such careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose true facts and approach the Court with clean hands. Thus, it is imperative that the petitions, which are bona fide and in public interest alone, be entertained in this category. Abuse of process of law is essentially opposed to any public interest. One who abuses the process of law, cannot be said to serve any public interest, much less, a larger public interest. In the name of the poor let the rich litigant not achieve their end of becoming richer by instituting such set of petitions to ban such activities.
44. Besides the fact that the present petition lacks bona fides, it is also obvious that the petitioner though had prayed for complete ban on all mining and manufacturing activities but had hardly made any study or prepared statistical data in that regard. It only made reference to certain studies in foreign countries. The petitioner, claiming to be an organisation involved in the good of the common man, ought to have taken greater pains to state essential facts supported by documents in relation to Indian environment."
13. In that view of the matter, apart from alleging that the petitioner has not approached the Court with clean hands, we WP(C) No. 26781 of 2011 -:18:- are of the opinion, the petition deserves to be dismissed with costs. Hence we impose cost of `25,000/-(Rupees twenty five thousand only) to be paid by the petitioner and the same shall go to the Kerala High Court Advocates' Welfare Fund Trust.
Accordingly, this writ petition is dismissed with cost of `25,000/- to be deposited within four weeks from the date of receipt of a copy of this judgment with the Kerala High Court Advocates' Welfare Fund Trust.
Manjula Chellur, Ag. Chief Justice.
A.M. Shaffique, Judge.
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