Ravi vs The Secretary
2021 Latest Caselaw 5019 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

    THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942

                        WP(C).No.145 OF 2021(P)


PETITIONER/S:

                RAVI
                AGED 50 YEARS
                S/O. LATE CHAMI MOOTHAN, SREE KRISHNA, VADAKKANTHARA
                MAIN ROAD, VADAKKANTHARA, PALAKKAD DISTRICT.

                BY ADVS.
                SRI.RAJESH SIVARAMANKUTTY
                SRI.ARUL MURALIDHARAN
                SMT.JAEONA JAMES

RESPONDENT/S:

      1         THE SECRETARY
                KOTTAYI GRAMA PANCHAYAT, KOTTAYI, PALAKKAD DISTRICT,
                PIN-678 572.

      2         THE EXECUTIVE ENGINEER
                PUBLIC WORKS DEPARTMENT OFFICE, PALAKKAD, PIN-678
                001.

      3         THE DISTRICT COLLECTOR
                PALAKKAD, OFFICE OF THE DISTRICT COLLECTOR, PALAKKAD-
                678 001.

      4         STATE OF KERALA
                REPRESENTED TO GOVERNMENT, PUBLIC WORKS DEPARTMENT,
                SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.

                R1 BY ADV. SRI.U.BALAGANGADHARAN

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.145 OF 2021(P)

                                        2



                                   JUDGMENT

The petitioner has approached this Court, anticipating that a Bus

Stand that is proposed to be constructed by the respondents will cause

obstruction to the free access to the petitioner's property. In the writ

petition, it is the case of the petitioner that the Bus Stand. if constructed,

would be in front of the gate to the petitioner's property and this would

have the effect of obstructing the free ingress and egress of the petitioner

to and from his property.

2. A counter affidavit has been filed on behalf of the respondent

wherein, the following is stated with regard to the construction:-

"3.It is submitted that the LSGD Coyalmannam Division Assistant

Executive Engineer submitted a letter on 23.1.2020 intimating

that necessary funds have been sanctioned from Special

Development Fund of MLA (Shri A KBalan of Tharoor Legislative

Assembly) for the construction of Bus Waiting sheds at

Cherukulam, Major Ramaswamy Kariyankode. The Kottayi

Panchayat has considered the letter and decided to take over the

maintenance and protection of the aforesaid Bus Waiting Sheds

after the completion of the construction. Subsequently, the

District Collector being the competent authority accorded

necessary Administrative Sanction as per the letter of the

District Collector dated 10.5.2020. A true copy of the letter WP(C).No.145 OF 2021(P)

dated 10.5.20200 is produced and marked as Exhibit

R1(a).Technical sanction Tor the work was accorded by the

Assistant Executive sanction for Engineer, LSGD, Coyalmannam

Division LSGD vide letter No. TS42103/2020-21 dated 2.11.2020

4.It is submitted that the case in hand is with regard to the Bus

Waiting shed at Major Ramaswamy Junction in the Panchayat.

The proposed Bus Waiting Shed is being constructed in the Govt.

land(Porambokku) in Coyalmannam-Kottayi Road and the

building has a total plinth area of 16.38 M². The Waiting shed is

on the North side of the property of the petitioner. The property

of the petitioner has a frontage of 16.45 Mtr and the proposed

bus waiting shed has a length of 8.28 Mtr. There is a distance of

1.5 Mtrs between the Bus Waiting shed and the boundary line of

the petitioner's property.

5.It is submitted that as per Rule 7(g) of KPBR 2019, the

construction of Bus Waiting shed etc are exempted from the

aforesaid Rules, hence, it is not necessary to refer to various

provisions of the KPBR.

6.It is submitted that the project proposal emanated from the

letter of Hon'ble Shri AK Balan, MLA dated 13.8.2019. An

amount of Rs.5 lakhs has been earmarked Tor the construction

of aforesaid Bus Waiting Shed and issued direction to the

Executive Engineer, LSGD, to implement the project.

7.It is submitted that the contentions of the petitioner are denied WP(C).No.145 OF 2021(P)

as all formalities and requirements as mandated by the Rules

have been followed. It may be reiterated that as per Rule 7(g) of

the KPBR, the construction is exempted from the aforesaid Rules

also. It may be further submitted that the site of construction was

proposed by the Hon'ble MLA who is also holding the portfolio of

Minister for SC and ST Welfare, Law, Culture, Parliamentary

Affairs in the Govt. Hence, this respondent has no role in

identifying the site for construction.

8.The allegation of encroachment is factually wrong and baseless.

The property of the petitioner is fully protected by well built

boundary wall and there has not been any encroachment as

alleged. The construction is fully within the Govt. land and the

petitioner has no legal ground to object to it. Since the

construction is only on the western corner of the property of the

petitioner, there is absolutely no obstruction to ingress and egress

to the property of the petitioner as alleged."

3.I have heard the learned counsel appearing for the petitioner and

also the learned Standing Counsel appearing for the respondents.

On consideration of rival submissions and taking note of the

averments in the counter affidavit filed on behalf of the 1 st respondent, I

am of the view that the prayer sought for in the writ petition cannot be

granted in as much as the rights of the petitioner cannot be stated to be

infringed through the construction activities undertaken by the WP(C).No.145 OF 2021(P)

respondents. While dismissing the writ petition, however, I make it clear,

that the respondents while carrying on the construction of the Bus Stand

shall ensure that the access to the property of the petitioner through the

gate constructed by him is not obstructed in any manner.

The writ petition is disposed as above.

Sd/-

A.K.JAYASANKARAN NAMBIAR JUDGE

SJ WP(C).No.145 OF 2021(P)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE REGISTERED SALE DEED NO.755/2017 EXECUTED IN FAVOUR OF THE PETITIONER.

EXHIBIT P2 TRUE COPY OF THE PETITION DATED 1.1.2021 SUBMITTED TO THE IST AND 2ND RESPONDENTS.

EXHIBIT R1(a) A TRUE COPY OF ORDER OF THE THIRD RESPONDENT DATED 10.5.2020