K.P.Philip vs Government Of Kerala
2021 Latest Caselaw 4051 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                  &

               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

   THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                      WP(C).No.13950 OF 2015(S)

PETITIONER:

               K.P.PHILIP, AGED 63 YEARS, S/O.LATE PAULOSE,
               KUTHUKALLUMKAL HOUSE, VELLAYAMKUDY PO, KATTAPPANA
               VIA, IDUKKI DISTRICT, PIN 685 515(SECRETARY,
               JANASHAKTHI, KERALA STATE COMMITTEE)

               BY ADVS.
               SRI.BABU JOSEPH KURUVATHAZHA
               SRI.P.T.ABHILASH
RESPONDENTS:

      1        GOVERNMENT OF KERALA, REPRESENTED BY ITS SECRETARY,
               LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT
               SECRETARIAT, THIRUVANANTHAPURAM 695 001.

      2        CHIEF ENGINEER, PUBLIC WORKS DEPARTMENTS(ROADS &
               BRIDGES), PUBLIC OFFICERS, MUSUEM,
               THIRUVANANTHAPURAM 695033

      3        KATTAPPANA GRAMA PANCHAYATH
               KATTAPPANA PO, IDUKKI DISTRICT, PIN 685508,
               REPRESENTED BY ITS SECRETARY

      4        EXECUTIVE ENGINEER, PWD (ROAD DIVISION)PAINAVU,
               IDUKKI, PIN 685 603

      5        ASSISTANT ENGINEER, PWD, ROAD SECTION, KATTAPPANA,
               IDUKKI DISTRICT, PIN 685 508

               R1, R4 BY SR.G.P.TEKCHAND
               R3 BY ADV.SRI.LIJI.J.VADAKEDOM, SC, KATTAPPANA
               GRAMA PANCHAYATH

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04-02-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.13950 OF 2015
                                          :: 2 ::




                                      JUDGMENT

Dated this the 4th day of February 2021

S.MANIKUMAR, C.J.

Instant writ petition is filed in public interest alleging that the third

respondent / Kattappana Grama Panchayat has constructed a waiting shed at

Federal Bank Junction of Kattappana town on the side of Thodupuzha -

Puliyanmala State Highway and on the above facts, sought for a direction to

demolish and remove the said waiting shed.

2. Prayers sought for in this writ petition are as follows:

i. Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents 1, 2, 4 and 5 to enforce the direction issued by the 5th respondent in Ext.P2 direction issued to the 3rd respondent, forthwith;

ii. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to demolish and remove the waiting shed constructed by the 3 rd respondent at the Federal Bank Junction of Kattappana town on the side of Thodupuzha - Puliyanmala State Highway, forthwith;

iii. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 3 rd respondent to comply with the direction issued by the 5 th respondent in Ext.P2, forthwith.

3. According to the petitioner, abovesaid waiting shed has been

constructed unauthorizedly and illegally, without obtaining the consent /

approval of the Public Works Department and that the same is causing WP(C).No.13950 OF 2015 :: 3 ::

absolute obstruction and nuisance to the public, since it has been constructed

without providing space for bus bay or for the ingress - egress of passengers.

Complaining this, petitioner has submitted representations to the concerned

authorities. By Ext.P2 letter dated 5.4.2014 5 th respondent/Assistant

Engineer, PWD, Roads Section, Kattappana informed that the third

respondent / Kattappana Grama Panchayat, has no right to construct a

waiting shed, on the side of the State Highway, without getting proper

authorization from the second respondent / Chief Engineer, Public Works

Department (Roads & Bridges), Public Offices, Museum, Thiruvananthapuram.

Therefore, specific direction has been issued to demolish the said waiting

shed forthwith. Grievance of the petitioner is that the direction issued in

Ext.P2 has not been complied with by the third respondent / Kattappana

Grama Panchayat till date. Hence this writ petition.

4. A detailed counter affidavit has been filed on behalf of the third

respondent/Kattappana Grama Panchayat wherein, it is stated that the

waiting shed is beneficial to a large number of the people of the locality. It is

also submitted that Exhibit P2 was issued without considering the relevant

aspects or the purpose for which the waiting shed was constructed.

Therefore, after the receipt of Exhibit P2 direction, the Panchayat made

representation to the Government in pursuance of which, the 2 nd

respondent/Chief Engineer, Public Works Department (Roads & Bridges) by WP(C).No.13950 OF 2015 :: 4 ::

order dated 28/2/2015 granted approval to this respondent to construct the

waiting shed at eight locations in Kattappana town including one at ldduki

Kavala junction. Relevant portion of the counter affidavit reads as under:

"3. It is humbly submitted that in the interest of public the Panchayat had constructed total eight waiting sheds at different spots in Kattappana Town. The waiting shed which was constructed at ldukki Kavala is the one which is referred to in the present writ petition as the one which is situated in front of the Federal Bank.

4. The allegations in Para 3 of the writ petition are not correct hence denied. It is true that the 5th respondent issued Exhibit P2- direction to demolish the said waiting shed. But Exhibit P2 was issued without considering the relevant aspects or the purpose for which the waiting shed was constructed. Therefore after the receipt of Exhibit P2- direction the Panchayat made representation to the Government in pursuance of which the 2nd respondent by order dated 28/2/2015 granted approval to this respondent to construct the waiting shed at eight locations in Kattappana town including one at ldduki Kavala junction. Therefore the allegation that the 3 rd respondent had constructed a bus waiting shed at the federal bank junction of Kattappana town on Thodupuzha- Puliyanmala state highway, without getting the consent/approval of the PWD authorities is denied. The copy of the communication no. CE/R&B/Plg/DB5/580/2015 dated 28- 02-2015 issued by the 2nd respondent to the 4th respondent is produced herewith and marked as Exhibit R3(a). The copy of the said communication was handed over to the Panchayat from the office of the Chief Engineer.

WP(C).No.13950 OF 2015 :: 5 ::

5. The allegation that the said waiting shed is causing obstruction and nuisance to travelling public is denied because the waiting shed was constructed strictly following the conditions laid down by the PWD in Exhibit R3(a). It is further humbly submitted that the waiting shed is beneficial to a large number of the people of the locality."

5. In the counter affidavit filed on behalf of the Executive Engineer,

(PWD Roads Division), Painavu, Idukki / 4 th respondent it is stated that the

bus waiting shed has been constructed without following the conditions

prescribed in Exhibit R3(a) letter and therefore, the said illegal construction

has to be demolished and removed at the earliest. Relevant portion of the

counter affidavit reads thus:

"3. It is submitted that the Thodupuzha-Puliyanmala State Highway between km 70/000 to 92/167 is coming under the Public Works Department road section, Kattappana and the average tar width of road is 5.50 meters. Further, it is submitted that the 3 rd respondent Panchayat constructed the said waiting shed at Federal Bank Junction without getting approval from the Public Works Department. It is true that the President of the Panchayat had submitted an application for constructing a waiting shed at the said junction, but they started construction before the inspection of the site and before getting permission by the Public Works Department. Hence, a stop-memo was issued on 02.02.2014 to the Secretary of the 3 rd respondent Grama Panchayat, ordering to stop the said illegal construction.

4. It is also submitted that the petitioner had submitted a Complaint dated 31.03.2014. Taking note of the same, 5 th respondent WP(C).No.13950 OF 2015 :: 6 ::

had instructed the Panchayat by letter dated 05.04.2014 to demolish the unauthorized construction. But no action was taken by the respondent Panchayat. Further, it is also submitted that on the basis of the complaint given by the petitioner before the Udumbanchola Taluk Local Service Committee, notices were issued to the Panchayat as well as to these respondents, directing to appear before the Committee on 19.06.2014. But no decision was taken in the subject matter and no further information was also received from the Taluk Legal Service Committee. Thereafter, on 25.11.2014, President of the respondent Gramapanchayat submitted a detailed plan and estimate of the constructed waiting shed for submitting to the higher authorities and also sought permission for similar constructions at other junctions. In this regard, it is also submitted that as per the direction given in GO(Rt)No. 932/14/PWD dated 03.07.2014, the construction of bus shelters along PWD road is only entrusted with PBSKL (Pratheeksha Bus Shelter Kerala Limited). No other agencies including Local Self Government Institutions and DRSA are permitted to construct any amenities along PWD road. True copy of the said Government Order dated 3.7.2014 is produced herewith and marked as Exhibit R4(a).

5. It is also submitted that, in the counter affidavit filed by the 3rd respondent, it is stated that sanction has been given for constructing a bus waiting shed at the Junction in question by the Chief Engineer as per 1etter dated 28.02.2015. It is true that as per the said R3(a) letter, the Chief Engineer has directed the Executive Engineer, 4 th respondent herein to issue permissive sanction for construction of bus waiting shed at ldukki Kavala Junction (Federal Bank Junction) and other junctions mentioned therein. But the same was subject to the conditions prescribed therein. Further, it is also to be noted that even WP(C).No.13950 OF 2015 :: 7 ::

before receiving R3(a) letter, the respondent Grama Panchayat had started construction of the waiting shed unauthorizedly and therefore, as stated earlier by letter dated 04.02.2014, the 5 th respondent herein directed the Secretary of Grama Panchayat to stop the construction activities and remove the construction already made. A true copy of the letter dated 04.02.2014 of the Assistant Engineer to the Secretary is produced herewith and marked as Exhibit R4(b).

6. It is submitted that there is no objection in constructing the bus waiting shed in view of Exhibit R3(a) letter, fulfilling the conditions prescribed therein. But the bus waiting shed constructed by the Panchayat at Federal Bank Junction is without satisfying the conditions specified in Exhibit R3(a) letter and the same was reported to the 2nd respondent Chief Engineer. Therefore, the 2 nd respondent Chief Engineer has directed to take urgent action by issuing notice to the 3rd respondent dated 14.7.2015, has informed the Secretary, Panchayat that the bus waiting shed has been constructed without following the conditions prescribed in Exhibit R3(a) letter and therefore, the said illegal construction has to be demolished and removed at the earliest. Hence, it is submitted that the construction of the bus waiting shed is without following the conditions prescribed in R3(a) letter and therefore cannot be permitted."

6. On this day, when the matter came up for hearing, learned Standing

Counsel appearing for Kattappana Grama Panchayat Sri.Liji J. Vadakedom

submitted that the said bus shelter has been removed during the widening

process of the road.

WP(C).No.13950 OF 2015 :: 8 ::

7. Placing on record the above submission of the learned Standing

Counsel appearing for Kattappana Grama Panchayat, there is no need to issue

any directions as prayed for in this writ petition.

Writ petition fails and is dismissed.

SD/-

S.MANIKUMAR CHIEF JUSTICE

SD/-

SHAJI P. CHALY JUDGE jes WP(C).No.13950 OF 2015 :: 9 ::

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 05.02.2014 SUBMITTED BY THE PETITIONER BEFORE THE ASSISTANT EXECUTIVE ENGINEER, PWD, ROADS DIVISION, PAINAVU.

EXHIBIT P2 TRUE COPY OF THE LETTER NO.K 50/98 DATED 05.04.2014 OF THE 5TH RESPONDENT FORWARDED TO THE 3RD RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 22.08.2014 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

RESPONDENT'S EXHIBITS:

EXHIBIT R3(a) TRUE COPY OF THE COMMUNICATION NO.CE/R&B/PLG/DB5/580/2015 DATED 28.2.2015 ISSUED BY THE 2ND RESPONDENT TO 4TH RESPONDENT.

EXHIBIT R4(a) TRUE COPY OF GOVERNMENT ORDER DATED 3.7.2014.

EXHIBIT R4(b) TRUE COPY OF LETTER DATED 4.2.2014 OF THE ASSISTANT ENGINEER TO THE SECRETARY WITH ENGLISH TRANSLATION.

// TRUE COPY //

P.S. TO JUDGE