Kerala High Court
Sujith Sreenivasan vs State Of Kerala on 6 April, 2010
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
FRIDAY, THE 12TH DAY OF APRIL 2013/22ND CHAITHRA 1935
WP(C).No. 15815 of 2012 (B)
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PETITIONER(S) :
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SUJITH SREENIVASAN, AGED 40 YEARS
S/O. SREENIVASAN, KAKKANAD HOUSE,
MOTHERLAND CHERUR, .THRISSUR-8
BY ADV. SRI.MILLU DANDAPANI
RESPONDENT(S) :
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1. STATE OF KERALA
REP.BY THE SECRETARY TO GOVERNENT
DEPARTMENT OF IRRIGATION, THIRUVANANTHAPURAM-1
2. THE CHIEF ENGINEER, PROJECT II
DEPARTMENT OF IRRIGATION THIRUVANANTHAPURAM - I
3. THE EXECUTIVE ENGINEER,.
IRRIGATION DIVISION , THRISSUR -20
4. THE ASSISTANT ENGINEER,
IRRIGATION SECTION, THRISSUR.
R BY GOVERNMENT PLEADER SRI.S. JAMAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 18/2/2013, THE COURT ON 12-04-2013 DELIVERED THE
FOLLOWING:
BP
WP(C).No. 15815 of 2012 (B)
APPENDIX
PETITIONER(S) EXHIBITS
EXT.P1: TRUE COPY OF THE ORDER PASSED BY THE 4TH RESPONDENT
DATED 6-4-2010.
EXT.P2: TRUE COPY OF THE LETTER ISSUED BY MULANKUNNATHKAVU
PANCHAYATH DATED 20.7.2010 AND ITS RESOLUTION.
EXT.P3: TRUE COPY OF THE ORDER PASSED BY THE SUPERINTENDING
ENGINEER ON 20/9/2010.
EXT.P4: TRUE COPY OF THE REPRESENTATION DATED 9-11-2010 WITH
MINISTER'S NOTE.
EXT.P5: TRUE COPY OF THE LIST OF 27 MEMBERS WHOSE DETAILS ARE
NARRATED
EXT.P6: TRUE COPY OF THE PHOTOGRAPH IN ORDER TO HAVE A CLEAR
PICTURE ABOUT THE PROPERTY BELONGING TO THE PETITIONER AND
THE MEMBERS OF THE ASSOCIATION.
EXT.P6: TRUE COPY OF THE PHOTOGRAPH OF THE BRIDGE IN ORDER TO SHOW
THE BLOCKAGE
EXT.P7: TRUE COPY OF THE PHOTOGRAPH OF THE BRIDGE IN ORDER TO SHOW
THE BLOCKAGE
EXT.P8: TRUE COPY OF THE PHOTOGRAPH TO SHOW THE PLIGHT OF THE
PRESENT CANAL.
EXT.P9: TRUE COPY OF THE DOCUMANT DT 15/10/2009 IN FAVOUR OF
LAWRENCE JONNY WHO IS HAVING PROPERTY IN THE 'LOTUS MARK
RESIDENTS ASSOCIATION'
EXT.P10: TRUE COPY OF THE DOCUMENT DT 20/1/2010 IN FAVOUR OF BINU
VARGHESE WHO IS VAHING PROPERTY IN THE 'LOTUS MARK RESIDENTS
ASSOCIATION'
EXT.P11: TRUE COPY OF THE DOCUMENT DT 2/4/2009 IN FAVOUR OF REJI
VARGHESE WHO IS HAVING PROPERTY IN THE 'LOTUS MARK RESIDENTS
ASSOCIATION'
EXT.P12: PHOTOCOPY OF LETTER DT 9/1/2011 OF THE SUPERINTENDING
ENGINEER TO THE R2.
EXT.P13: PHOTOCOPY OF LETTER NO.C215/10 DT 10/3/2010 OF THE TOWN
PLANNER, THRISSUR, TO THE SECARETARY, MULANKUNNATHKAVU
GRAMA PANCHAYAT.
EXT.P14: TRUE COPY OF THE SALE DEED NO. 3912/09 DT 15/10/2009 IN FAVOUR OF
SUJITH SREENIVASAN.
WP(C).No. 15815 of 2012 (B)
EXT.P15: TRUE COPY OF THE SALE DEED NO. 1346/ I/2009 DT 2/04/2009 IN FAVOUR
OF SRI.PRABHAKARA MENON.
EXT.P16: TRUE COPY OF THE SALE DEED NO 1348/1/2001 DT 2/4/2009 IN FAVOUR
OF RENJI JOHN.
EXT.P17: TRUE COPY OF THE SALE DEED NO. 1352/I/2009 DT 2/4/2009 IN FAVOUR
OF SRI. PREM LAL.
EXT.P18: TRUE COPY OF THE SALE DEED NO.1352/I/2009 DT 2/04/209 IN FAVOUR
OF SHERRY BOSE.
EXT.P19: TRUE COPY OF THE SALE DEED NO. 1349/I/2009 DT 2/4/2009 IN FAVOUR
OF GOVINDHA BABU.
EXT.P20: TRUE COPY OF THE SALE DEED NO. 3827/I/2009 DT 9/10/2009 IN FAVOUR
OF ASHA CHANDRAN
RESPONDENTS' EXHIBITS :
ANNEXURE R1(a): COPY OF THE COMMUNICATION DT 6/8/2011.
ANNEXURE R4(a): COPY OF THE LETTER O.4666/ISWC, 1/11/WRD DT 23/05/2011.
//TRUE COPY//
P.A. TO JUDGE
BP
P.R. RAMACHANDRA MENON, J.
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W.P. ) No. 15815 of 2012
.........................................................................
Dated this the 12th April, 2013
J U D G M E N T
Rejection of request for construction of a new bridge having extra width across the 'Thannikkudam Distributory' Canal of Peechi Dam is the subject matter of dispute in this writ petition.
2. Petitioner is the stated as the owner of the property in Sy. No. 1244/1 and 1244/5 of Killanur Village of Thrissur Taluk. It is stated that the nearby properties are owned by several others, who are stated as members of a Housing Colony. The petitioner proclaims himself as the Secretary of the 'Lotus Mark Residents Association', formed by members of the so called Housing Colony. According to the petitioner, the only ingress and egress to the property is through a narrow bridge owned by the first respondent over the canal as aforesaid. It is stated that the bridge is in a dilapidated condition and is virtually causing threat to the life of the petitioner and others, which in turn is sought to be reconstructed.
3. It is stated that an application was filed before the 4th W.P. ) No. 15815 of 2012 2 respondent for the reconstruction of the bridge by one Mr. Antony, a nearby resident, which was declined as per Ext.P1 order dated 06.04.2010. Subsequently, the petitioner and others preferred a representation before the concerned local authority/Grama Panchayath who took a resolution on 20.07.2010 to send a request to the concerned Executive Engineer. It was accordingly, that Ext.P2 letter was written by the Secretary of the Grama Panchayath to the third respondent herein, forwarding a copy of the resolution as aforesaid, expressing that the Panchayath did not have any objection in widening/re-constructing the bridge enhancing the existing width of '3' metres to '7' metres. The petitioner also pursued the matter by filing application dated 23.07.2010 before the third respondent. This was considered and the same was rejected by the third respondent as per Ext.P3 order dated 20.09.2010. Met with the situation, the petitioner preferred Ext.P4 representation before the Hon'ble Minister for Irrigation Department, which is stated as forwarded to the second respondent for appropriate action. It is also pointed out in Ext. P4 that if at all any financial W.P. ) No. 15815 of 2012 3 constraint was there for the Government/Department, the petitioner and others in the locality were prepared to bear the necessary expense. Since no further action was taken by the second respondent, the petitioner is now before this Court seeking for a positive direction to have the Bridge reconstructed and widened.
4. The first respondent has filed a statement dated 04.08.2012 pointing out that the second respondent had considered the matter and a report was sent to the Government immediately on receipt of Ext.P4 representation forwarded from the office of the concerned Minister. Accordingly, on 20.04.2011, a team was deputed by the Government for conducting an inspection at the Peechi Irrigation Project and Thannikkudam Distributory canal. An inspection was conducted on 10.05.2011 by the Joint Secretary to Government, Water Resources Department and a report was filed, pointing out that the area where the bridge reaches is a rubber estate and that a large extent of the estate was being converted as housing plots developed by the petitioner. It was also pointed out that there W.P. ) No. 15815 of 2012 4 was no residence in the locality and therefore the existing bridge was more than sufficient to meet the requirement and that there was no benefit for the Department by widening the bridge. It is also stated that the petitioner is having commercial interest to develop the plots and that if heavy vehicles are made to ply through the bridge for construction activities, after widening the same, it may cause damage to the canal Bund. Accordingly, Ext.P4 representation was considered and rejected by the Government and the same was communicated to the second respondent. It was thereafter that the petitioner chose to file another representation before the Hon'ble Minister for the same relief and after considering the same in the light of the earlier report, it was also rejected and communicated as per Annexure
-R1(a) dated 06.08.2011. In paragraph '5' of the statement dated 04.08.2012, it is stated as follows:
"5. The Thannikudam distributory canal is a part of Peechi irrigation Project and the primary object of the above canal is supply of irrigation water as well as drinking water to vast areas in Thrissur district. The department is more concerned about the W.P. ) No. 15815 of 2012 5 safety of the above canal, since it is the sole means to supply water in the above area.
Therefore the proposal of the petitioner to widen the bridge for transportation of building materials by using heavy vehicles which may cause damage to the canal bund cannot be considered. The public interest regarding the supply of water is having predominant consideration over the commercial interest of the petitioner. Moreover heavy constructions cannot be permitted in the project area. ""
5. The petitioner has filed a reply affidavit producing some additional documents as Exts.P5 to P11 which are particulars of the members of the alleged Association, some photographs of the locality and copies of some title deeds showing the property purchased by various persons. In response to this, the first respondent has filed another statement dated 04.12.2012 giving the particulars of the Irrigation project and such other vital aspects.
6. It is stated that Peechi Irrigation Project has two main canals, i.e., LBMC (Left Branch Main Canal) of 44.86 Km and RBMC (Right Branch Main Canal) of 37.30 Km. The above main W.P. ) No. 15815 of 2012 6 two canals have several branch canals and a net work of distributories. Thannikkuam distributory canal is one of the major distributories having 23.60 km length and no bridge constructed over the canal except those which are built to cross PWD roads or Panchayath roads are having 7 metre width. It is stated that in the location, where the petitioner's property is situated, there are 41 culverts, 13 Super Passages and 4 foot bridges with different specifications. Among them, all bridges having more than three metres' width are built only for Panchayat roads and PWD roads. It is stated that the petitioner's application for widening the bridge is not on public interest but for 'private commercial interest' and that the respondents have not sanctioned construction of any bridge of more than '3' metres width for private requirement, except for a bridge of 3.4 metres and another of 3.7 metres' width sanctioned long back, as stated in paragraph '5'. It is stated in paragraph '6' that no residential house is built near the proposed housing colony and that the adjacent area is agricultural land planted with rubber trees and that the approach road of the existing bridge is a W.P. ) No. 15815 of 2012 7 Panchayath road having a width of 3 metres and that the petitioner had widened the same to 7 metres along the boundary of his property, by adding his private property to the Panchayath road. It is also stated that several such requests are being obtained from the public for constructing/widening of bridges for development of housing colony, which cannot be permitted, as it will only cause damage to the Canal Bund. It is also stated that the respondents are fixing concrete posts on the canal bund road to regulate the passage of heavy duty vehicles for protecting the canal bund in order to sustain the water distribution without obstruction. It is further stated that the proposed housing colony is put up in a hilly area and that the site is developed into small plots by demolishing the hill; which is an agrarian area and that if the petitioner's request is admitted, there will be a flood of requisitions for the construction of extra wide bridges from the public. This would adversely affect the geographical nature of the area; and hence the request of the petitioner for 7 metres' wide bridge cannot be considered .
7. An additional reply was filed by the petitioner on W.P. ) No. 15815 of 2012 8 09.01.2013 producing two more documents as Exts.P12 and 13. It is stated that as per Ext.P12 dated 09.01.2011, the Superintending Engineer has written to the second respondent, pursuant to the representation preferred by the petitioner, referring to the necessity to reconstruct the bridge.
8. The 4th respondent has filed an additional statement dated 02.02.2013 stating that the so called Association of the petitioner is only an Association on paper and that Ext.P12 report of the Superintending Engineer has not recommended for the construction of any extra wide bridge as claimed by the petitioner, but for the necessity to construct a new bridge in place of the existing one.
9. It is also pointed out that, pursuant to the inspection conducted by the Joint Secretary of the Water Resources Department and the report submitted as to the facts and figures, the Addl. Chief Secretary to the Government, Water Resources Department had already declined the request of the petitioner to widen the bridge as per Annexure R4(a) dated 23.05.2011. It is pointed out in paragraph 4 of the additional statement as follows: W.P. ) No. 15815 of 2012 9
"4. The respondents are required to look after the irrigation property as well as smooth water distribution through the canal system to provide sustained water for irrigation purpose as well as drinking water to the nearby areas. Establishment of any development activities on either side of the canal may affect the existing structure of the canal system. The respondent's paramount interest is to keep the agricultural land intact. The Government Secretary is well aware of the Kerala Municipality Building Rule 1999 contains no provision for widening the bridge over canal to 7 meter to protect the interest of private individuals."
10. The 4th respondent points out that the petitioner is having only commercial interest, which does not tally with the agrarian interest of the Irrigation Department. It is further pointed out in paragraph '6' of the additional statement as follows:
"6. The apprehension of the respondents and the Irrigation Department as a whole is truly manifested in the severe encroachment of Puthur-Manali Irrigation canal. The said diversion canal is really non- W.P. ) No. 15815 of 2012 10
existent. As per the direction of this Honourable Court in OP.No. 4358/1987 and CCC 16/1992, Local Body Authorities and District Authorities are bound to take all efforts to evict the encroachers. With the stiff resistance from local encroachers the diversion canal is in a precarious condition. The apprehension of the respondent is well founded on such a back drop. "
11. The petitioner has come up with yet another reply affidavit dated 16.02.2013 producing copies of some sale deeds executed in favour of the petitioner and other similarly situated persons, to show the ownership over the property in the locality. With reference to the said documents and the contents of the resolution passed by the Panchayat (Ext.P2) and the contents of Ext.P12 letter of the Superintending Engineer, it is stated that there is absolutely no reason for having declined the request ; more so when the construction of 7 metre bridge is undertaken to be effected at the expense of the petitioner .
12. It is vehemently argued by the learned Government Pleader for the respondents that the source of funds to be generated by the petitioner for constructing the wider bridge is W.P. ) No. 15815 of 2012 11 not a point of attraction and that the respondents are more concerned with the duty to provide distribution of water through the canal. If heavy vehicles are permitted to proceed along the Canal Bund, serious damage will be caused to the Canal Bund, which in turn will adversely affect the Distributory Canal and the entire Network.
13. After hearing both the sides, this Court finds that the private interest of the petitioner, if any, has necessarily to yield to the 'public interest' and as such, merely for the reason that the petitioner has come forward to meet the expenditure to effect construction of the bridge, it cannot be made the basis for permitting widening and reconstruction of the bridge. If the petitioner wants to reconstruct the bridge retaining its width as it exists now (3 metres), using their own funds, it may be a matter for consideration of the concerned respondents, depending upon the present condition of the bridge. According to the respondents, there is no other building in the locality and as such, the existing bridge is quite enough to meet the present day requirements. If the petitioner apprehends any serious W.P. ) No. 15815 of 2012 12 threat to the bridge and is ready to have it reconstructed at their costs retaining the present width of 3 metres, it is open for the petitioner to approach the third respondent for considering such request. This Court finds that the stand taken by the respondents, with intent to protect and preserve the 'public interest' weighs more and as such, no interference is warranted.
The writ petition fails and the same is dismissed.
P.R.RAMACHANDRA MENON JUDGE lk