Kerala High Court
K.M.Mathai vs 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
WEDNESDAY, THE 22ND DAY OF AUGUST 2012/31ST SRAVANA 1934
WP(C).No. 16237 of 2012 (S)
---------------------------
PETITIONER(S):
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1. K.M.MATHAI, AGED 60 YEARS,
S/O.MATHEW, KALLUVETTIKUZHI VEEDU, NEDUNGAPRA.P.O.,
PANICHAYAM-683 545.
2. VARGHESE,
S/O.PAILY, ERUMALA HOUSE, NEDUNGAPRA.P.O.,
PANICHAYAM-683 545.
BY ADVS.SRI.DINESH R.SHENOY
SRI.G.HARIKRISHNAN (TRIPUNITHURA)
SRI.R.V.RAHUL
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE SECRETARY,
PUBLIC WORKS DEPARTMENT, GOVERNMENT OF KERALA,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. THE CHIEF ENGINEER (PROJECTS-II),
OFFICE OF THE CHIEF ENGINEER (PROJECTS-II),
IRRIGATION AND ADMINISTRATION,
PUBLIC OFFICE BUILDING, MUSEUM.P.O.,
THIRUVANANTHAPURAM-695 033.
3. THE EXECUTIVE ENGINEER (PERIYARVALLEY
IRRIGATION PROJECT DIV.I)
A.M.RAOD, PERUMBAVOOR-683 548.
4. K.K.POULOSE,
KANJIRATHUMKUDY HOUSE, NEDUNGAPRA.P.O.,
PANICHAYAM-683 545.
5. GEEVARGHESE.K.K.
KANJIRATHUMKUDY HOUSE, NEDUNGAPRA.P.O.,
PANICHAYAM-683 545.
CONT....
WP(C).No. 16237 of 2012 (S)
6. THOMAS K.MATHEW
KOTTANETH HOUSE, KADAYIRUPPU.P.O., PIN-682 311.
* ADDL.R7 IS IMPLEADED
Addl.7. ASAMANNOOR GRAMA PANCHAYAT,
REPRESENTED BY THE SECRETARY,
ASAMANNOOR GRAMA PANCHAYAT,
ASAMANNOOR - 683549
ERNAKULAM. (ADDL. R7 IS IMPLEADED AS PER ORDER DATED
01/08/2012 IN IA NO.10223/2012.
BY ADV. SRI.BABU KARUKAPADATH
BY ADV. SMT.M.A.VAHEEDA BABU
BY ADV. SRI.JAGAN GEORGE
BY ADV. SRI.K.A.NOUSHAD
BY ADV. SRI.P.G.PRAMOD
BY ADV. SRI.P.C.IYPE, ADDL. ADVOCATE GENERAL
BY ADV. SRI.VIJU ABEAHAM, GOVERNMENT PLEADER
BY ADV. SRI.BABY KURIAKOSE
BY ADV. SRI.P.VIJAYAKUMAR
BY ADV. SRI.N.K.KARNIS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AS
WP(C).No. 16237 of 2012 (S)
APPENDIX
PETITIONER(S) EXHIBITS:
EXT.P1: A ROUGH SKETCH OF THE PVIP CANAL AND THE ROADS AND TWO
PATHWAYS.
EXT.P2: COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT ISSUED UNDER
THE RIGHT TO INFORMATION ACT DATED 03.09.2011.
EXT.P3: COPY OF PROCEEDINGS OF THE 2ND RESPONDENT DATED 30.12.2011
TOGETHER, WITH ANNEXURE.
EXT.P4: COPY OF LETTER DATED 30.06.2012 ISSUED FROM THE OFFICE OF
THE 3RD RESPONDENT.(WITH ENGLISH TRANSLATION)
EXT.P5: COPY OF REPRESENTATION DATED 01.07.2012 SUBMITTED BEFORE THE
3RD RESPONDENT.(WITH ENGLISH TRANSLATION)
EXT.P6: COPY OF REPRESENTATION DATED 05.07.2012 SUBMITTED BEFORE THE
2ND RESPONDENT.(WITH ENGLISH TRANSLATION)
EXT.P7: COPY OF THE NEWSPAPER REPORT IN THE MATHRUBHUMI DAILY DATED
12/7/2012. (WITH ENGLISH TRANSLATION)
EXT.P8: COPY OF LETTER DATED 13/7/2012 ISSUED TO THE 3RD RESPONDENT.
(WITH ENGLISH TRANSLATION)
EXT.P9: COPY OF THE AGREEMENT SCHEDULE SIGNED BETWEEN THE 3RD
RESPONDENT AND THE 6TH RESPONDENT.
RESPONDENTS' EXHIBITS:
EXT.R3(A): COPY OF THE MASS PETITION DATED 20/10/2009.
EXT.R3(B): COPY OF THE LETTR OF MLA, PERUMBAVOOR CONSTITUENCY DATED
8/10/2010.
EXT.R3(C): COPY OF THE RESOLUTION OF ASAMANNOOR GRAMA PANCHAYAT DATED
20/10/2009.
EXT.R3(D): COPY OF THE LETTER OF THE PRESIDENT, ASAMANNOOR GRAMA
PANCHAYAT DATED 22/10/2009.
EXT.R3(E): COPY OF THE SKETCH SHOWING THE LIE OF THE ROAD AND CANAL.
EXT.R3(F): COPY OF THE LETTER ADDRESSED TO THE GOVERNMENT DATED
29/6/2011 FROM THE PRESIDENT OF ASAMANNOOR PANCHAYAT.
EXT.R3(G): COPY OF THE REPRESENTATION MODE BY THE RESIDENTS OF
KOLASSERYPADY.
CONT...
WP(C).No. 16237 of 2012 (S)
EXT.R3(H): COPY OF THE REPRESENTATION DATED 15/7/2012.
EXT.R4(A): COPY OF THE RESOLUTION DATED 20/10/2009 OF THE ASAMANNOOR
GRAMA PANCHAYAT.
EXT.R4(A-1):COPY OF THE ENGLISH TRANSLATION OF THE RESOLUTION DATED
20/10/2009 OF THE ASAMANNOOR GRAMA PANCHAYAT.
EXT.R4(B): COPY OF THE LETTER DATED 08/10/2010 ISSUED BY MR.SAJU PAUL,
MLA TO THE CHIEF ENGINEER.
EXT.R4(B-1):COPY OF THE ENGLISH TRANSLATION OF THE LETTER DATED
08/10/2010 ISSUED BY MR.SAJU PAUL, MLA, TO THE CHIEF
ENGINEER.
EXT.R4(C): COPY OF THE REPRESENTATION DATED 20/10/2009 SUBMITTED BY THE
RESIDENTS OF THE LOCALITY FOR RECONSTRUCTING THE BRIDGE.
EXT.R4(C-1):COPY OF THE ENGLISH TRANSLATION OF THE REPRESENTATION
DATED 20/10/2009 SUBMITTED BY THE RESIDENTS OF THE LOCALITY
FOR RECONSTRUCTING THE BRIDGE.
EXT.R4(D): ROUGH SKETCH SHOWING THE LIE AND LOCATION OF THE CANAL AND
BRIDGES.
/TRUE COPY/
P.A. TO JUDGE
AS
MANJULA CHELLUR, Ag.C.J
&
A.M.SHAFFIQUE, J.
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W.P(C).No. 16237 of 2012
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Dated this the 22nd day of August, 2012
JUDGMENT
Manjula Chellur, Ag.C.J. Heard Sri.Dinesh.R.Shenoy, learned counsel for the petitioners, learned Government Pleader, learned counsel representing respondents 4 and 5 and learned Standing Counsel for the Panchayat.
2. Petitioners, claiming to be the residents of Panichayam at Perumbavoor, nearby Periyar Valley Irrigation Canal, have approached this Court in the above public interest litigation. Though their intention of filing the PIL is to prevent misuse and wastage of public funds contending that the construction of bridges is only to satisfy selfish private need of a few powerful, influential and wealthy people of the locality, they are not able to tell how a large number of public would be assisted by constructing the bridge directly connecting the canal road on the eastern side to the temple road by shifting the proposed bridges as originally demanded.
WP(C).No.16237/12 2
3. According to the petitioners, if an access to the Kavu- Kottappady road passing through Panichayam Devi Temple on the northern side of the canal is provided, there will be easy access to Ayurveda Hospital on the southern side of the Periyar Valley Irrigation Canal. The proposed bridge is shifted towards the west to a point at chainage of 15.00 solely for the purpose of satisfying the unjustifiable demand of respondents 4 and 5, as on the northern side, they have their residential building and also agricultural properties near the proposed bridges. It is further contended that in spite of serious objection by the locals, including a mass representation signed by more than 500 people of Panichayam locality, the respondent authorities did not heed to their request and decided to proceed with the proposed construction of bridges wasting public funds without thinking twice and ignoring the need of large number of people, who are the residents of Panichayam. As against this, the Executive Engineer, who is the third respndent herein, has filed a detailed counter affidavit along with a sketch at Exhibit R3(e).
4. According to the third respondent, the canal in question is part of Periyar Valley Irrigation Project, which commissioned as early as in 1967. The third respondent is in charge of WP(C).No.16237/12 3 maintenance and rectification works of the existing canals, bund roads, bridges etc. The bridges, which are in existence, are more than 40 year old. As per the procedure, the department is carrying out its functions after getting administrative, technical and financial sanctions. When the old bridge collapsed in the year 2009 at ch:15/00 km, there was a proposal for construction of a new bridge and there was a demand for such construction. Similarly, there was a representation from MLA of Perumbavoor constituency with similar request and both are produced at Exhibits R3(a) and R3(b). Apart from these representations, Asamanoor Grama Panchayat passed a resolution on 20.10.2009 to request the third respondent for construction of a bridge in the place of collapsed old bridge. The said resolution came to be forwarded to the Assistant Executive Engineer, Periyar Valley Irrigation Project, Bhoothathankettu Sub Division and subsequently, the proposal for construction of a bridge in the place of collapsed bridge was taken up by the department after noticing the need for providing vehicular facility for the people of the locality as indicated in the representations referred in Exhibits R3(a) and R3(d). He denies the allegations raised by the petitioners that only to satisfy the wishes of some influential WP(C).No.16237/12 4 people, the decision was taken. Reconstruction of a bridge at ch:15/00 km in the place of the collapsed old bridge and so also for reconstruction of a super passage-cum-bridge at ch:14/750 km is taken only in order to see the renovation and reconstruction at the same place, where they originally exited and used by the people of that locality. It is further stated that the two roads in existence in front of the proposed two bridges are Pareppady road and Kolaserypady road, which are used by the general public for the last 40 years. He further contends that the Pareppady road is intentionally not shown at Exhibit P1 sketch by the petitioners and the distance between the new proposed bridges is only 235 meters, which will not cause any inconvenience for the users of temple road to reach Devi Temple. He also denies receiving of any mass petition signed by 500 people. According to the department, the experts, after due deliberation, decided to put up new bridges in the place of collapsed bridge and also reconstruct the super passage bridge. It is further stated, majority of the general public is for the reconstruction of the existing bridge and not for the new bridge. It is also contended by them that the apprehension expressed by the petitioners is without any basis and it is nothing, but interest of some people, who are WP(C).No.16237/12 5 approaching this Court for their selfish motives. According to them, the department has to cater the needs of the larger group of persons and they should not do anything favourably to some interested persons, who agitate only keeping in mind their personal and self interest, but not the public interest. With these averments, referring to the cost for the rectification and the cost that would be involved for the new bridge, they seek for dismissal of the Writ Petition.
5. More or less respondents 4 and 5 also support the third respondent and at paragraph 5 of their counter affidavit they referred to location of public institutions like Panchayat Office, Government Higher Secondary School, Government Ayurvedic Hospital etc. situated at Odakkali Junction and the people use these two bridges for their daily and regular requirements. Therefore, according to respondents 4 and 5, there is no change in the location of the site for putting up two bridges. It is nothing, but reconstruction or renovation of the old bridges. Therefore, the petitioners cannot contend that to satisfy the desire of respondetns 4 and 5, such a move was taken up by the department. According to them, the reconstruction or renovation of the bridges would cater to the needs of larger number of public WP(C).No.16237/12 6 and the claim of the petitioners is totally baseless.
6. Learned Standing Counsel representing the Asamannoor Grama Panchayat supports the defence of respondents 3, 4 and 5. According to him, the resolution passed by the Panchayat is already placed on record by the third respondent.
7. We have totally three sketches, produced by the petitioners and also respondents 3, 4 and 5. Exhibit P1 is a rough sketch, which lacks many details, except pointing out the agricultural properties of respondents 4 and 5 and also Ayurveda Hospital. Exhibit R3(e) sketch prepared by the Irrigation Department indicates the existence of earlier bridges, proposed renovation, existence of canal bund road, main roads, villages and different roads leading to different places from canal bund road. Similarly, Exhibit R4(d) is a sketch prepared by respondents 4 and 5, which clearly indicates locations, where people are residing as well. There are totally three bridges in the three sketches produced by the petitioners and respondents 3 to 5. There is no dispute with regard to collapse of the second bridge in 2009 and so also, damage caused to the super passage in between north and south of canal roads. The petitioners contend that the second bridge, which collapsed in 2009 need not be WP(C).No.16237/12 7 reconstructed. Instead of reconstruction or renovation of the second bridge, if a new bridge is put up connecting Devi Temple road, it would be of great assistance to the devotees, who visit the temple for the purpose of celebration of marriages and also other religious functions, as the buses on the existing canal bund tarred road cannot take turn, if they intend to reach Devi Temple coming from southern side towards the temple.
8. It is not in dispute that no bus could pass through this canal bund roads as the canal bund roads are made only for the vehicles of the department, which come regularly on those roads for maintenance of canals, bridges etc. It is not in dispute that smaller public vehicles are allowed on this canal bund road. Therefore, the fact remains is, through this canal bund road, either on the northern side or southern side, no big vehicle is allowed to reach Devi Temple. They have to use Kavu-Kottappady road from Panichayam junction to reach Devi Temple, even if people residing on the southern side of the canal bund road have to reach Devi Temple in bigger vehicles. If they use in smaller vehicles, they can still proceed on the canal bund road through the bridges and reach Devi Temple.
WP(C).No.16237/12 8
9. The contention of the petitioner that in order to satisfy the mala fide selfish motives of respondents 4 and 5, the third respondent has undertaken this project cannot be accepted, as there is no proposal to put up any new bridge at any of these places. For the last 40 years, the three bridges are in existence, but two bridges became unusable on account of collapse of one bridge in 2009 and damage caused to the super passage. Even otherwise, by reconstructing these two bridges, the distance that has to be covered by the people coming on the bund roads to reach Devi Temple road is only 166 meters. It is not the case of the petitioners that the general public living on the southern side of the canal bund road cannot use these two proposed bridges to reach the temple. The main grievance is that buses cannot take turn on the canal bund road and if an opening directly by putting up a new bridge coming to the Devi Temple road is put up, all the persons intending to reach Devi Temple in bigger vehicle can reach the temple. On the other hand we notice that there are several residential localities in between Odakkali road and south canal bund road. Whether the two bridges are reconstructed or a new bridge is put up it would not change the usage of these persons because they can still use the bridge. The question is WP(C).No.16237/12 9 what would be the cost effect on the Government to put up altogether a new bridge, instead of reconstructing or renovating the old bridge. At paragraphs 16, 17 and 18 of the counter affidavit, the third respondent has explained what is the exact cost of the new bridges and how it would be useful for the people of the locality. Definitely, the bridges, which are already in existence need to be strengthened by renovation or reconstruction. It would not create any difficulty so far as the general public is concerned, as they are using these old bridges for the last 40 years.
10. According to learned Government Pleader, the cost of new bridge will be more than the cost of renovation of the old bridge. From that point of view, if one considers the financial burden on the State exchequer, definitely, one would appreciate to spend less public money to do the needful. Doing the needful in the present case is to make the two old bridges usable allowing the public to use them. If the existing bridges would cater to the needs of the public as earlier, there is no point why one has to think about putting up altogether a new bridge making the two old bridges useless in order to satisfy the visitors of the temple, who celebrate marriages and other religious functions by using WP(C).No.16237/12 10 bigger vehicles. Even on these reconstructed bridges, the vehicles, which could pass through, can pass through and the big vehicles, which cannot pass through these two bridges through the canal bund roads, had to take recourse to the other route, which is already in existence. The restriction of using bigger vehicles on canal bund roads is to see that the canal bund roads are not damaged by frequent usage of heavy vehicles and the same would apply even to the bridges also. If bigger vehicles are allowed on the bridges, definitely, the strength of the bridges or durability of the bridges will be comparatively less.
Having regard to all these aspects, especially the fact that the petitioners do have other access to reach Devi Temple, we are of the opinion, no public interest is involved in the matter, which warrants this Court's interference.
Accordingly, the Writ Petition is dismissed.
MANJULA CHELLUR, ACTING CHIEF JUSTICE A.M.SHAFFIQUE, JUDGE vgs23.08