Gracious Kuriakose vs State Of Kerala
2021 Latest Caselaw 12299 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

      FRIDAY, THE 07TH DAY OF MAY 2021 / 17TH VAISAKHA, 1943

                      WP(C).No.10221 OF 2021(C)


PETITIONERS:

      1        GRACIOUS KURIAKOSE, AGED 62 YEARS
               SENIOR ADVOCATE, S/O. KURIAKOSE, RESIDING AT
               NAMBIAPARAMBIL HOUSE, SHENOY ROAD, KALOOR, ERNAKULAM-
               682017.

      2        SATHYAPALAN T.P., AGED 52 YEARS
               S/O. LATE PADMANABHAN, SKRA 36/65, VTH AVENUE,
               K.K.ROAD, KALOOR, ERNAKULAM-682017.

               SRI.K.K.CHANDRAN PILLAI (SR.)
               SRI.LAL GEORGE

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT
               SECRETARIAT, THIRUVANANTHAPURAM-695001.

      2        DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION,
               KAKKANAD, ERNAKULAM, PIN-682030.

      3        THE CHAIRPERSON,
               DISTRICT AUTHORITY UNDER DISASTER MANAGEMENT ACT,
               COLLECTORATE, KAKKANAD, ERNAKULAM, PIN-682030.

      4        CORPORATION OF KOCHI,
               REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE,
               PARK AVENUE ROAD, ERNAKULAM-682011.

      5        TAHSILDAR,
               KANAYANNUR TALUK, KOCHI, PARK AVENUE ROAD, ERNAKULAM-
               682011.

      6        FOUSIYA M.K.,
               HOUSE NO.36/2339, SHENOY CROSS ROAD, KALOOR,
               ERNAKULAM-682017.

      7        CHERIAN VARGHESE,
               65/1235, SHENOY ROAD, KALOOR, ERNAKULAM-682017.
 WP(C).No.10221 OF 2021(C)
                                   2

        8        K.J.MICHEAL,
                 65/1234, NARITHOOKIL HOUSE, SHENOY ROAD, KALOOR,
                 ERNAKULAM-682017.

        9        A.I.JOSEPH,
                 65/1233, SHENOY ROAD, KALOOR, ERNAKULAM-682017.

        10       PHILOMINA AUGUSTINE,
                 VELIPARAMBIL HOUSE, 65/1222, SRRA 117, SHENOY ROAD,
                 KALOOR, ERNAKULAM-682017.

        11       RAJENDRAN A.G.,
                 AMEPPADATH, 65/1223, SRRA 119, SHENOY ROAD, KALOOR,
                 ERNAKULAM-682017.

                 SRI.K.JANARDHANA SHENOY, SC, KOCHI MUNICIPAL
                 CORPORATION
                 SRI.S.KANNAN, GP.

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07.05.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.10221 OF 2021(C)
                                          3


                                    JUDGMENT

Dated this the 7th day of May 2021

The petitioners have approached this Court seeking

directions to the Corporation to widen the drain running on

the southern side of the Shenoy Cross Road towards

Kathrikadavu, particularly at the area where the residences of

respondents 6 to 11 are situating.

2. Sri.K.K.Chandran Pillai, learned senior counsel,

instructed by Sri.Lal George, appearing on behalf of the

petitioners, took me through Ext.P4 sketch and showed me

that, except at the stretch of the drain which runs through the

properties of respondents 6 to 11, it has sufficient width; and

consequently that there is a bottleneck caused, thus

restricting the flow of storm and drain water by 60 to 70%.

3. The learned senior counsel then submitted that when

there was a similar issue with respect to the another part of

the "Seena thodu", the petitioners, along with others, had

approached this Court to obtain Ext.P2 order and P3 judgment

respectively, as per which, the said "thodu" was directed to be

widened even through the properties of private persons,

making it clear that the said properties will remain with them WP(C).No.10221 OF 2021(C)

in ownership and possession and that a new drain will be

completely slabbed, so that there will be no interdiction for

them from using it in future.

4. Sri.Manu Roy, learned counsel appearing for

respondents 8 to 11; Sri.Sajeev P Prabhakaran, learned

counsel appearing for the 6th respondent and Sri.Jojy George

Jacob, appearing for the 7 th respondent, submitted that they

have absolutely no contest against the requirement for

widening the drain in question but prayed that it be done from

both sides, namely the western and the eastern side of the

existing one and not merely from the properties of their clients

alone.

5. Sri.K.Janardhana Shenoy, learned standing counsel for

the Corporation of Kochi, submitted that if this Court permits,

then his client will immediately begin work of widening the

stretch in question so that there will be no inundation there

when the monsoons begin, in about a month's time. He

submitted that the attenuation of the width of the drain/thodu

has happened on account of encroachments by various

persons, including the party respondents.

6. When I consider the afore dialectical contentions, it is

clear that it will not be possible for this Court to enter into the WP(C).No.10221 OF 2021(C)

questions of encroachments at this time, because of the

impending monsoons, which is likely to hit the shores of Kerala

by the end of May or the first week of June, 2021. What is

required by the petitioners is that the drain/thodu be widened

sufficiently, so that there will be no flooding. I do not think

that anyone can stand against this.

7. I am, therefore, of the firm view that the arrangement

this Court made with respect to the "Seena thodu" in its

another stretch, as is discernible from Ext.P2 order and Ext.P3

judgment, has to be applied to this case also.

8. In the afore circumstances and since respondents 6 to

11 do not oppose it, I direct the Corporation to widen the

drain/thodu through the properties owned by respondents 6 to

11, as far as practically possible to the same width as is

available with respect to the rest of the stretch within a period

of one month from today.

9. We, however, clarify that the land which is now used

for the purpose of widening of the drain/thodu will remain in

ownership/possession with respondents 5 and 7, until it is

recovered as per law by the Corporation, if they are so

desirous. In other words, merely because the drain is

widened, it will not be up to the Corporation to claim the land WP(C).No.10221 OF 2021(C)

to be their own, but will have only the right to conduct

periodical maintenance and cleaning, for which purpose

respondents 6 to 11 will give them full access. After the drain

is so widened to the requisite depth as is found necessary by

the Corporation, it will be covered by them with slabs so that

respondents 6 to 11 can then use it without any interdiction.

This writ petition is thus ordered.

Sd/- DEVAN RAMACHANDRAN

Stu JUDGE WP(C).No.10221 OF 2021(C)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE INTERIM ORDER DATED 2.12.2019 PASSED BY THIS HONOURABLE COURT IN WP(C) NO.29320 OF 2019 FOR REMOVING THE CROSS CALLS CONSTRUCTED ACROSS THE DRAIN PORTION.

EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE INTERIM ORDER DATED 27.7.2020 PASSED BY THIS HONOURABLE COURT IN WP(C) NO.29320 OF 2019.

EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 11.12.2020 PASSED BY THIS HONOURABLE COURT IN WP(C) NO.29320 OF 2019.

EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE ROUGH SKETCH OF THE THODU AT SHENOY CROSS ROAD AREA BEFORE THE CONSTRUCTION OF THE CROSS CULVERT.

EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE ONGOING CONSTRUCTION OF THE CROSS CULVERT.

EXHIBIT P6 PHOTO OF THE DRAIN WHICH PASS THROUGH THE PROPERTIES OF THE 6TH RESPONDENT.

EXHIBIT P7 PHOTO OF THE DRAIN WHICH PASS THROUGH THE PROPERTIES OF THE 7TH RESPONDENT.

EXHIBIT P8 TRUE PHOTOSTAT COPY OF THE REPRESENTATION DATED 15.4.2021.

WP(C).No.10221 OF 2021(C)