Asainu vs The Assistant Engineer
2021 Latest Caselaw 11647 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

           THE HONOURABLE MR.JUSTICE N.NAGARESH

  FRIDAY, THE 09TH DAY OF APRIL 2021/19TH CHAITHRA, 1943

                WP(C).No.23020 OF 2020(B)


PETITIONER/S:

           ASAINU
           AGED 58 YEARS
           S/O THATTARUTHODI ALU, MUTHUTHALA AMSOM, DESOM,
           PATTAMBI TALUK, PALAKKAD DISTRICT.

           BY ADVS.
           SRI.P.JAYARAM
           SRI.A.HAROON RASHEED
           SHRI. GIGI PAPPACHAN
           SHRI.AKHIL P

RESPONDENTS:

     1     THE ASSISTANT ENGINEER
           PWD ROAD SECTION, TRITHALA P O, THRITHALA,
           PALAKKAD DISTRICT, PIN-679534.

     2     THE ASSISTANT EXECUTIVE ENGINEER
           PWD ROAD SECTION, SHORNUR,, P O SHORNUR,
           PALAKKAD DISTRICT PIN-679121.

     3     STATE OF KERALA
           REPRESENTED BY THE SECRETARY TO PUBLIC WORKS
           DEPARTMENT, GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM PIN-695001.

     4     ADDL R4, THE EXECUTIVE ENGINEER
           KERALA PUBLIC WORKS DEPARTMENT, ROADS
           MAINTENANCE DIVISION, PALAKKAD-678 001 IS
           IMPLEADED AS PER ORDER DATED 25-03-2021 IN IA
           1/2021 IN WP(C)23020/2020.

           R1 BY SR G.P. SMT DEEPA NARAYANAN

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 09-04-2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) No.23020/2020
                                    :2 :




                            JUDGMENT

~~~~~~~~~

Dated this the 9th day of April, 2021

The petitioner, who is residing adjacent to

Muthuthala - Pallipuram PWD road in Pattambi Taluk, has

filed this writ petition seeking to direct the respondents to

remove the parapet constructed on the southern side of

Muthuthala - Pallipuram PWD road causing blockade of

petitioner's passage from his house at Muthuthala, covered by

Ext.P5 sale deed, to Muthuthala - Pallipuram PWD road.

2. The petitioner states that his house is situated at

Muthuthala. His compound is bound on the northern and

western boundaries by public roads. On the north is the

Muthuthala-Pallipuram PWD road. On the west is a public

way leading to paddy fields on the south starting from the

above said PWD road. According to the petitioner, on the

west, there was originally a narrow lane and the lane was WP(C) No.23020/2020

widened for which the petitioner dedicated his land along his

western boundary. The petitioner's gate opens to this public

way on the west and the petitioner reaches the PWD road on

the north through this way.

3. The petitioner stated that in the year 2013, he put

concrete slabs over the waterway through the western side of

this public way with consent from Muthuthala Grama

Panchayat. The public way on the west and the PWD road on

the north were well-connected. The petitioner could access

PWD road on the northern side from his house, through this

pathway. The pathway on the west is about 3 metres wide up

to the petitioner's gate and 2 metres wide beyond it. The

petitioner has been using this pathway for vehicular access to

his house. He said that the pathway was in existence for the

last more than hundred years, though it was a narrow one

earlier.

4. The petitioner states that the officials recently

undertook work on the PWD road. There was a culvert

underneath the road lying north-south across the road and the WP(C) No.23020/2020

culvert was reconstructed. Due to personal rivalry of certain

members of Panchayat with the petitioner, a parapet was

erected at the junction of the public way. The petitioner would

submit that the parapet is unnecessary. If concrete slabs

were put over the culvert, it would facilitate safe passage of

vehicles through the PWD road as also to the public way

reaching the PWD road.

5. On coming to know of the intention of certain

Panchayat members to construct a parapet blocking the

pathway, the petitioner filed Ext.P1-O.S. No.86/2020 before

the Munsiff-Magistrate's Court, Pattambi. The Munsiff-

Magistrate did not give an interim injunction order, though an

Advocate Commissioner appointed by the Court submitted

Ext.P2 report that a parapet is unnecessary there.

6. The petitioner would submit that the action of the

respondent officials is malafide. The petitioner had

surrendered land for widening the pathway up to 3 metres with

an intention to use the same. The said pathway is now a

public pathway used by the general public as well. WP(C) No.23020/2020

Construction of a parapet right across the pathway where the

pathway joins PWD road, is illegal and arbitrary and is

intended to harass the petitioner at the cost of others who are

also using the pathway.

7. The 1st respondent - Assistant Engineer, PWD filed

a counter affidavit. The 1st respondent stated that there was

an old parapet in existence adjacent to the newly constructed

one which was constructed 10 years ago, as part of the old

Canal work. The said culvert was damaged due to the

vehicular traffic along the road. The PWD, in its current

project for improving the existing conditions of the roadway,

newly constructed a bigger culvert in the place of the old

existing one. The culvert was constructed for the safety of

road users.

8. The 1st respondent stated that the petitioner had put

concrete slabs over the waterway only recently, the pathway

belongs to Muthuthala Grama Panchayat. The petitioner

could have access to his property if he had kept the boundary

of their commercial building open. The PWD constructed the WP(C) No.23020/2020

culvert and its parapet only within its boundary and with a view

to safeguard the road usage from any unexpected accidents.

9. Heard Advocate P. Jayaram, the learned counsel

for the petitioner, and Smt. Deepa Narayanan, learned Senior

Government Pleader.

10. The pleadings in the writ petition disclose a sorry

state of planning and implementation of Public Works. The

material facts are not in dispute. There is a pathway from the

Muthuthala-Pallipuram PWD road toward south, passing

through the western side of the petitioner's residential plot.

The said pathway belonged to the Panchayat. The pathway

was widened up to 3 metres for which the petitioner also

surrendered land.

11. It is not in dispute that there is a culvert across the

PWD road at this junction. The respondents would submit

that there was a parapet earlier on the southern side. The

petitioner would state that there was no parapet earlier and

the petitioner had access to PWD road directly from the

pathway as the petitioner had laid concrete slabs on the small WP(C) No.23020/2020

water channel lying east-west, after surrendering the land for

widening the pathway.

12. Even assuming that there was a parapet earlier,

this Court finds that the action of the respondents in

constructing a parapet, blocking direct entry to a 3-metre wide

Panchayat Road cannot be justified. It is not in dispute that

there is a 3-metre wide pathway/road starting from PWD

Road, which belongs to Panchayat. On re-construction of

culvert at the tri-junction, the respondents have constructed a

parapet for the culvert, blocking entry to the 3-metre wide

pathway/road.

13. Even assuming that there was a parapet earlier,

after the pathway/road was widened, the respondents ought to

have taken note of the fact that a 3-metre wide road starts

from the PWD road, which is veted with the Panchayat and

used by the general public, and ought to have avoided

construction of parapet right across the said road. In fact, the

Executive Engineer has given Ext.P12 Report, wherein it has

been stated that avoiding the parapet in question will not in WP(C) No.23020/2020

any manner adversely affect the public traffic, the pedestrians-

public or to the safety of the culvert and the parapet was

constructed because the estimate for construction included

parapet construction also. Therefore, it is evident that the

construction of the parapet in question blocking the side road

was unwarranted and made without taking note of the

existence of a 3-metre wide Panchayat Road on the southern

side of the PWD Road.

14. The learned Senior Government Pleader

strenuously argued that the petitioner had filed an injunction

suit against construction of the parapet and on failure to get

interim injunction, he has abandoned the Suit and approached

this Court invoking writ jurisdiction, which shall not be

permitted. The learned counsel for the petitioner would

submit that the Suit was filed before construction and after

construction of the parapet, there is change in circumstances

and hence he approached this Court. The Suit stands

dismissed for non-prosecution, stated the counsel for the

petitioner.

WP(C) No.23020/2020

15. It may be noted that the blockage of a public road

vested with the Panchayat is not an issue affecting the

petitioner alone. The said road leads to paddy fields. Access

of farmers to paddy fields is also affected. Therefore, this

Court is of the considered opinion that the respondents are

compellable to set right a wrong decision, which is affecting

right to way of general public as well.

In the facts and circumstances of the case, the writ

petition is allowed. The respondents are directed to remove

the parapet constructed on the southern side of Muthuthala-

Pallipuram PWD road causing blockade to the road in

question, within a period of three months.

Sd/-

N. NAGARESH, JUDGE

aks/07.04.2021 WP(C) No.23020/2020

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO.86/2020 ON THE FILES OF MUNSIFF-

MAGISTRATE COURT,.

EXHIBIT P2 TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN IA NO.544/2020 INOS NO.86/2020 ON THE FILES OF MUNSIFF-MAGISTRATE COURT.

EXHIBIT P3 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENTS IN IA NO.543/2020 IN OS NO.86/2020 ON THE FILES OF MUNSIFF-MAGISTRATE COURT,

EXHIBIT P4 TRUE COPY OF THE ORDER DATED 13.10.2020 IN IA NO.543/2020 IN OS NO.86/2020 ON THE FILES OF MUNSIFF-

MAGISTRATE COURT, PATTAMBI.

EXHIBIT P5 TRUE COPY OF THE SALE DEED NO.2045 OF 1997 SRO, PATTAMBI COVERING PETITIONER'S PROPERTY.

EXHIBIT P6 TRUE COPY OF THE LAND TAX RECEIPT DATED 17/08/2017 ISSUED TO THE PETITIONER FROM MUTHUTHALA VILLAGE OFFICE SHOWING PAYMENT TAX FOR PETITIONER'S.

EXHIBIT P7 TRUE COPY OF THE BUILDING TAX RECEIPT DATED 13/12/2015 ISSUED TO THE PETITIONER FROM MUTHUTHALA GRAMA PANCHAYATH.

WP(C) No.23020/2020

EXHIBIT P8 TRUE COPY OF THE LETTER DATED 14/06/2013 ISSUED BY THE SECRETARY, MUTHUTHALA GRAMA PANCHAYATH GRANTING PERMISSION TO LAY THE SLABS OVER THE WATER WAY ON THE SIDES OF THE PUBLIC WAY ON THE WEST OF PETITIONER'S PROPERTY.

EXHIBIT P9 PHOTOGRAPHS SHOWING THE TOPOGRAPHY OF PETITIONER'S PROPERTY AND SURROUNDINGS AFTER ERRECTION OF THE PARAPET CLOSING PETITIONER'S ACCESS TO PUBLIC ROAD.

EXHIBIT P10 PHOTOGRAPHS SHOWING THE TOPOGRAPHY OF PETITIONER'S PROPERTY AND SURROUNDINGS AFTER ERRECTION OF THE PARAPET CLOSING PETITIONER'S ACCESS TO PUBLIC ROAD.

EXHIBIT P11 TRUE COPY OF MEDICAL RECORDS SHOWING TREATMENT OF THE PETITIONER'S WIFE, FATHIMA, AT MALABAR CANCER CENTRE, KANNUR.

EXHIBIT P12 TRUE COPY OF THE LETTER DATED 24/9/2020, NO.EE/RM-PKD/COMP/2020 WITH REPORT ISSUED BY EXECUTIVE ENGINEER, KERALA PUBLIC WORKS DEPARTMENT, ROADS MAINTENANCE DIVISION THIRUVANANTHAPURAM

EXHIBIT P13 A TRUE OCPY OF INSPECTION REPORT DATED 16.01.2021 ISSUED BY AN ENGINEERING EXPERT WORKED IN IRRIGATION DEPARTMENT.