Kerala High Court
P.O. Varkey vs The Executive Engineer on 28 January, 2021
W.P.(C) Nos. 26523 & 26293/2012 :1:
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 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942
WP(C).No.26523 OF 2012(S)
PETITIONER/S:
P.O. VARKEY,
AGED 62 YEARS
S/O.JOSEPH, PULAVELIL,KURAVILNGAD P.O.,KOTTAYAM DISTRICT.
BY ADVS.
SMT.DAISY A.PHILIPOSE
SRI.K.V.ARUN
SRI.ARUN KRISHNA DHAN
SRI.JAI GEORGE
RESPONDENT/S:
1 THE EXECUTIVE ENGINEER
P.W.D.ROADS SECTION, KOTTAYAM - 686 001.
2 THE ASSISTANT ENGINEER,
P.W.D ROADS SECTION,KURUVILANGAD - 686 633.
3 KURUVILANGAD GRAMAPANCHAYATH,
REP. BY ITS SECRETARY - 686 633.
4 ADDL. R4. IMPLEADED:
HARIKRISHNAN T.A.,
AGED 46 YEARS
S/O.AGNIDEVAN NAMBOOTHIRI, HARI NIVAS, PAKALOMATTOM P.O.,
KURIVILINGAD, KOTTAYAM.
(ADDL. R4 IS IMPLEADED VIDE ORDER DATED 14/11/2012 IN
IA.15206/2012.)
R1 BY ADV. SRI.P.BABU KUMAR
R4 BY ADV. SRI.GEORGE KURUVILLA, ALAPPUZHA
R1& R2 BY SRI. SURIN GEORGE IPE, SR. GOVERNMENT PLEADER
W.P.(C) Nos. 26523 & 26293/2012 :2:
R1 BY ADV. SRI.A.K.HARIDAS
R1 BY ADV. SMT.M.A.ZOHRA
R3 BY ADV. SRI.T.R.HARIKUMAR
R4 BY ADV. SRI.P.S.SREEDHARAN PILLAI
R4 BY ADV. SRI.ARJUN SREEDHAR
R4 BY ADV. SRI.T.K.SANDEEP
R4 BY ADV. SRI.JOSEPH GEORGE(MULLAKKARIYIL)
SMT. M.A. ZOHRA, ADVOCATE COMMISSIONER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.01.2021, ALONG
WITH WP(C).26293/2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) Nos. 26523 & 26293/2012 :3:
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 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942
WP(C).No.26293 OF 2012
PETITIONER:
SIBY SEBASTIAN,
KANNAKULATHEL HOUSE, KURAVILANGAD VILLAGE,
KOTTAYAM DISTRICT.
BY ADVS.
SHRI.BIJU BALAKRISHNAN
SRI.GIGIMON ISSAC
RESPONDENT/S:
1 DISTRICT COLLECTOR
COLLECTORATE, KOTTAYAM, PIN-686 001.
2 THE REVENUE DIVISIONAL OFFICER
PALA, KOTTAYAM DISTRICT, PIN-686 575.
3 THE EXECUTIVE ENGINEER
KERALA STATE PUBLIC WORKS DEPARTMENT (ROADS DIVISION), PUBLIC
WORKS DEPARTMENT, KOTTAYAM, PIN-686 001.
4 THE ASSISTANT EXECUTIVE ENGINEER
KERALA STATE PUBLIC WORKS DEPARTMENT (ROADS DIVISION), PUBLIC
WORKS DEPARTMENT OFFICE, KURAVILANGD, PIN-686 633.
5 THE KURAVILANGAD GRAMA PANCHAYATH,
PIN-686 633, REP. BY SECRETARY.
6 RAHUL GEORGE
MATTATHIL HOUSE, KURAVILANGAD P.O., KOTTAYAM DISTRICT,
PIN-686 633.
W.P.(C) Nos. 26523 & 26293/2012 :4:
7 STEPHEN
KULATHANGANADIYIL HOUSE, KURAVILANGAD P.O., KOTTAYAM
DISTRICT, PIN-686 633.
R1 BY ADV. SRI.V.G.ARUN
R6 BY ADV. SRI.GEORGE KURUVILLAALAPPUZHA
R5 BY ADV. SRI.T.R.HARIKUMAR
R1 TO R4 BY SRI.SURIN GEORG IPE, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.01.2021, ALONG
WITH WP(C).26523/2012(S), THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) Nos. 26523 & 26293/2012 :5:
Dated this the 28th day of January, 2021.
JUDGMENT
SHAJI P. CHALY, J.
The above writ petitions are Public Interest Litigations filed by two
persons residing within the limits of Kuravilangad Grama Panchayat in
Kottayam District basically seeking a direction to the Executive Engineer,
PWD Roads Section, Kottayam and the Assistant Engineer, PWD Roads
Section, Kuravilangad--respondents 1 and 2 not to fill up or reclaim any
portion of the Valyathodu (a stream) flowing through the Kuravilangad
Grama Panchayat for constructing a link road to MC road at Kuravilangad
and a further writ of mandamus directing the aforesaid respondents not to
proceed with the reclamation of Valyathodu and to direct them to remove
the granite and soil from the river, which is already deposited and to restore
the original width of the river.
2. Since the subject matter of the writ petitions are one and the same,
on agreement, we dispose of them by a common judgment.
3. Brief material facts discernible from the writ petitions are as
follows:
According to the petitioners, the water from the aforesaid stream is
the only water source for the entire Panchayat, which is facing acute water
scarcity during summer season. Further, during the rainy season, when the
entire area gets flooded, the said stream is the only drainage channel to
drain out the rain water and therefore, if it is reclaimed for the purpose of
constructing a link road, it will adversely affect the water sources of the
locality. It was also pointed out that in 2007, when the respondents
proceeded with the reclamation of the river for the construction of the link
road, deviating from the original plan, the petitioner in W.P.(C) No. 26523 of
2012 filed W.P.(C) No. 38067 of 2007 before this Court and sought for a
direction to the respondents not to fill up or reclaim any portion of the
stream in question for constructing the link road. The said writ petition was
disposed of as per Ext. P5 judgment dated 02.01.2008 recording the
submission made by the learned Government Pleader that the respondents
have no intention to fill up any portion of the Valyathodu. However, in total
disregard to the undertaking given before this Court, respondents are
proceeding with the construction of the link road by reclaiming a portion of
the river in a specified area, it is contended. It is also contended that
rubbles are laid on the stream bed in order to carry out the construction
from that portion and in order to demonstrate the same, a photograph is
also produced. From the photographs, it is clear that a layer of rubbles is
spread on the stream bed and therefore, according to the petitioners, the
idea is to construct the retaining wall so as to provide sufficient width to the
link road, from the extreme portion of the rubbles laid, thus encroaching
into the stream substantially.
4. The case projected by the petitioners is that if the width of the
stream is reduced by the above construction and the road is developed over
the same, during the rainy season, there would be stagnation of rain water
and the area would be inundated. It is also pointed out that due to the
depletion of the width of the river, there is a likelihood of the people residing
in the Kuravilangad Grama Panchayat suffering for want of required drinking
water. Other contentions are also raised.
5. Anyhow, taking into account the public interest put forth by the
petitioners, an Advocate Commissioner was appointed by this Court in order
to identify the exact situation and the Advocate Commissioner has filed a
very detailed and elaborate report. It is evident from the report of the
Advocate Commissioner that the stream has different widths at different
points, even though they are not stated specifically by the Advocate
Commissioner. The Advocate Commissioner has also reported that on the
stream bed, the rubbles are laid and if the construction is made from that
area, there is every likelihood that the width of the stream would be reduced
to a large extent at that particular point. The Advocate Commissioner has
also produced a sketch prepared by the Taluk Surveyor, Taluk Office,
Meenachil, wherein the details of the stream is shown, the width of the
stream at present and the likelihood of the interference with the flow of
water and the width of the stream, if the construction is carried out from
the area where the rubbles are laid.
6. However, respondents 1 and 2 have filed a detailed counter affidavit
refuting the claims and demands and the allegations made in the writ
petition. Among other contentions, it is stated that the main MC road is
passing through Kuravilangad town, that the town has become very
congested due to heavy traffic and experiencing traffic blocks very
frequently, consequent to which the only solution suggested was to construct
a bypass parallel to MC road. It is also pointed out that proposals were made
several years back and the construction of the bypass at both edges are
already completed. That apart, it is stated that in order to get over the traffic
congestion, a bypass road having a length of 1124 meters was proposed
and 826 meters have already been completed and the balance portion
remaining is 298 meters. But, consequent to the litigations, steps could not
be taken to complete the construction. However, it is reiterated that the
Department has no intention to reduce the vent way of the existing
Valyathodu. It is also pointed out that the present width of thodu at the
downstream side is having an average of 4 to 5 meters, and at many places
it varies from 3 to 5 meters; whereas at the upstream side, the width is only
1.50 meters. Ext.P2 series of photographs are produced to establish the said
contention and we find that the stream is not having a consistent width and
it varies from 2.30 metres to 5 meters at various places, evident from the
markings made in the photographs produced along with the counter
affidavit. It is relevant to note that the photographs so produced are not
disputed by the petitioners . A sketch prepared by the Executive Engineer,
PWD Roads Division, Kottayam is also produced, from where we are
satisfied that except for a distance of 120 meters, the construction of the
link road is complete in all respects. In fact, the disputed portion was not
completed, since there is an interim order of stay granted by this Court. It is
significantly pointed out that rubbles are laid on the stream bed in order to
strengthen the retaining wall proposed to be constructed failing which,
according to the respondents, there is a likelihood of the banks of the stream
receding during monsoon season due to heavy rain falls. It is also pointed
out that an agreement was executed and the work was being continued by
the Contractor and it is at that point of time, the petitioners approached this
Court and secured an interim order.
7. Respondents 1 and 2 have also filed additional objections with
respect to the apprehensions voiced by the petitioners in regard to the
reduction of the width of the stream to the extent they have highlighted in
the judgment.
8. In the connected writ petitions, the party respondent namely one
Rahul George, has filed a counter affidavit. However, we are not going into
the details of the same, since no allegations of encroachments are made
against the said person by the petitioners in the writ petition.
9. We have heard Smt. Daisy A Philipose and Sri. Biju Balakrishnan
for the petitioners, Sri. Surin Goerge Ipe, learned Senior Government
Pleader, Sri. George Kuruvila for the 6th respondent in W.P.(C) No. 26293 of
2012 and Sri. T.R. Harikumar for the Kuravilangad Grama Panchayat, and
perused the pleadings and materials on record.
10. On going through the averments in the writ petition, we are of the
view that laying of the rubbles on the stream bed was misunderstood by the
petitioners and have apprehended that the width of the river is going to be
reduced by constructing a retaining wall from the said extreme point of the
layer of rubbles. However, in the counter affidavit filed by the Government,
it is clearly stated that rubbles are laid on the bed of the stream in order to
strengthen the retaining wall proposed to be constructed, failing which
during the rainy season, there is a likelihood of landslide and the whole
construction getting destroyed. It is also evident from the photographs
produced by the respondents that the stream is not having a consistent
width and it has varying width at various locations. It is also important to
note that the construction of a substantial portion of the link road is
complete and a portion having a length of 120 meters alone is to be
completed, which could not be completed due to the interim order of stay
granted by this Court.
11. Taking into accounts the documents produced and the statements
made in the counter affidavit filed by respondents 1 and 2, we are satisfied
that the attempt of the respondents by laying rubbles on the bed of the
stream is only to strengthen the retaining wall to the stream and they have
no intention to carry out the construction from the extreme point of the
rubble layer spread on the stream bed. We are also of the opinion that the
construction of the retaining wall is carried out to protect the interest of the
public during the rainy season and also to ensure the flow of water without
any interruption. We are also of the view that a retaining wall is constructed
along the side of the stream in order to protect the stream and not with an
intention of encroachments. To put it otherwise, it is only in public interest
such retention walls are constructed, which would also avoid encroachments
being made by other persons into the river bed. Moreover, the construction
of the link road was carried out to a large extent and only a portion of 120
meters alone is remaining to be completed, and there is no dispute even for
the petitioners that the town in question is congested due to heavy traffic
and a link road is the only solution .
12. Taking into account all the above aspects, we are of the view that
the writ petitions can be disposed of recording the above aspects.
Accordingly, the writ petitions are disposed of directing the respondents to
ensure that the retaining wall is constructed, taking into account the
requirements in the PWD Manual/ relevant statutes and other guiding
notifications/circulars/orders and without much encroachments into the
stream bed as is apprehended by the petitioners. There will be a direction to
the respondents to complete the balance construction at the earliest possible
time so as to alleviate the grievance of the public in regard to the traffic
congestion occurring in the M.C. Road. We make it clear that If the allotted
funds are not now sufficient or it has lapsed, necessary steps shall be taken
to provide sufficient funds to complete the construction in all respects at the
earliest.
All pending interlocutory applications would stand closed.
sd/-
S. MANIKUMAR,
CHIEF JUSTICE.
sd/-
SHAJI P. CHALY,
JUDGE.
Rv
APPENDIX OF W.P.(C) NO. 26523/2012
PETITIONER'S EXHIBITS:
EXHIBIT P1: TRUE COPY OF THE REPRESENTATION DATED 27.04.2002 SUBMITTED BY
TEH PETITIONER BEFORE THE 3RD RESPONDENT.
EXHIBIT P2: TRUE COPY OF THE RESOLUTION OF THE 3RD RESPONDENT DATED
17.12.2007.
EXHIBIT P3: TRUE COPY OF THE REPRESENTATION DATED 26.04.2007 SUBMITTED BY
THE PETITIONER BEFORE THE HON'BLE CHIEF MINISTER.
EXHIBIT P4: TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DATED
02.12.2007.
EXHIBIT P5: TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 38067/2007 DATED
02.01.2008.
EXHIBIT P6: TRUE COPY OF THE PHOTOGRAPH SHOWING THE RECLAMATION OF THE
RIVER.
EXHIBIT P7: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE WARD
MEMBER OF THE PANCHAYAT BEFORE THE REVENUE DIVISIONAL OFFICER.
ANNEXURE A1: TRUE COPY OF THE ORDER IN I.A. 2583/2012 IN OS 312/12 OF THE
HON'BLE SUB COURT, PALA.
RESPONDENTS' EXHIBITS:
EXT.R4(a): TRUE COPY OF THE ROUGH SKETCH SHOWING THE PROPOSED ROAD AND
THE THODU.
EXHIBIT R2(a) SERIES: TRUE COPY OF THE PHOTOGRAPHS TAKEN SHOWING THE
WIDTH OF THE THODU.
EXHIBIT R2(b) SERIES: TRUE COPY OF THE PHOTOGRAPHS TAKEN SHOWING THE
WIDTH AT THE DOWNSTREAM SIDE WHICH VARIES BETWEEN 3 TO 4 METERS.
EXHIBIT R2(c) SERIES: TRUE COPY OF THE PHOTOGRAPHS TAKEN SHOWING WIDTH
OF VALIYATHODU AT THE PROPOSED CONSTRUCTION SIDE WHICH VARIES BETWEEN
4.50 METERS TO 5 METERS.
EXHIBIT R2(d): TRUE COPY OF THE SKETCH PREPARED SHOWING THE COMPLETED
PORTION AND ALSO THE PORTION ABUTTING VALIYATHODU.
APPENDIX IN W.P.(C) NO. 26293/2012
PETITIONER'S EXHIBITS:
EXHIBIT P1: PHOTOSTAT COPY OF THE REPRESENTATION DATED 02.11.2012
SUBMITTED BY TEH PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P2: PHOTOSTAT COPY OF THE REPRESENTATION DATED 01.11.2012
SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.
EXHIBIT P3: PHOTOSTAT COPY OF NEWS ITEM WITH PHOTOGRAPH PUBLISHED IN THE
MALAYALA MANORAMA DAILY DATED 01.11.2012.
EXHIBIT P4: PHOTOSTAT COPY OF THE NEWS ITEM WITH PHOTOGRAPH PUBLISHED IN
THE MANGALAM DAILY DATED 02.11.2012.
EXHIBIT P5: PHOTOSTAT COPY OF THE JUDGMENT DATED 02.01.2008 IN W.P.(C) NO.
38067 OF 2007 OF THE DIVISION BENCH OF THIS HON'BLE COURT.
RESPONDENT'S EXHIBITS:
EXHIBIT R6(a): TRUE COPY OF THE INTERIM ORDER IN OS NO. 312/2012 OF THE
HON'BLE SUB COURT, PALA.
/True Copy/
PS To Judge.
rv
