Kerala High Court
Mary Sebastian vs State Of Kerala on 3 September, 2021
WP(C) NO. 10814 OF 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 3RD DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943
WP(C) NO. 10814 OF 2021
PETITIONER/S:
1 MARY SEBASTIAN
AGED 69 YEARS
W/O. C.J.SEBASTIAN, CHENNETT HOUSE, ETTUMANOOR P.O.,
KOTTAYAM-686631.
2 JIMMY SEBASTIAN,
AGED 44 YEARS
S/O. C.J.SEBASTIAN, CHENNETT HOUSE, ETTUMANOOR P.O.,
KOTTAYAM-686631.
BY ADV PEEYUS A.KOTTAM
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, LSGD, SECRETARIAT,
TRIVANDRUM-695001.
2 KOTTAYAM DISTRICT SUCHITWA MISSION,
KOTTAYAM, KANJIKUZHI, KOTTAYAM, KERALA-686004, REPRESENTED
BY ITS CO-ORDINATOR.
3 ETTUMANOOR MUNICIPALITY
SHOPPING COMPLEX, PRIVATE BUS STAND, 1ST FLOOR, PRIVATE
BUS STAND RD., ETTUMANOOR, KERALA-686631, REPRESENTED BY
ITS SECRETARY.
4 THE DISTRICT COLLECTOR,
KOTTAYAM - KUMILY RD., COLLECTORATE, KOTTAYAM, KERALA-
686002.
5 THE EXECUTIVE ENGINEER,
PWD, ROADS DIVISION OFFICE, KOTTAYAM-686001.
BY ADV SHRI.SIBY CHENAPPADY, SC, ETTUMANOOR MUNICIPALITY
BY SMT. DEEPA NARAYANAN, SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 10814 OF 2021 2
P.V.KUNHIKRISHNAN, J
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W.P.(C.) No.10814 of 2021
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Dated this the 3rd day of September, 2021
JUDGMENT
The above writ petition is filed with following prayers :
"i) Issue a writ of mandamus or any other appropriate
writ, order or direction thereby command the
respondents not to continue with the construction of
the toilet complex in front of the petitioners' property
at Kizhakumbhagam Kara in Ettumanoor Village under
the scheme 'take a break' without considering the
grievance focused by the petitioners before the
authorities.
ii) Issue a writ of mandamus or any other
appropriate writ, order or direction thereby command
the respondents 2 to 4 take a decision on Ext-P4 and
P5 representations submitted by the petitioners and
direct not to carry on the construction of the public
latrine in front of the petitioners property until the
petitioners' grievance is redressed by the authorities.
iii) Grant such other reliefs, which are just and
necessary in the interest of justice and deem fit, just
and proper."
2. The 2nd petitioner is the son of the 1st petitioner. The
1st petitioner is the owner in possession of 16 ares of property in
re-survey No.28/12 of Ettumanoor Village abutting Mannarkad-
Pattithanam by-pass. According to the petitioners, the 2nd
petitioner and his brother acquired 11 ares of property each
adjacent to the 1st petitioner's property in same survey No. 28/6
of Ettumanoor Village abutting Mannarkad-Pattithanam by-
pass. These properties are abutting the Mannarkad-Pattithanam
by-pass road and for the purpose of formation of this road, the
petitioners' properties were acquired. The petitioners are
residing in the two residential houses in the aforesaid
properties. The properties for formation of this by-pass road
were acquired in the year 2013. It is the case of the petitioners
that on 23.4.2021, the respondents started to excavate earth
immediately on the eastern boundary of the petitioners'
property and on enquiry, it is informed that a toilet complex is
going to be constructed on the side of the Mannarkad-
Pattithanam by-pass road, just in front of the petitioners'
residential house, that too, in such a way to block their right of
entry to the by-pass road. After 15 metres from the petitioners'
property, this by-pass road is going through the middle of a
padasekharam and there are adequate suitable spacious area
on the side of the by-pass for construction of the toilet complex,
the petitioners submit. The grievance of the petitioners is that,
without constructing the toilet complex in that vacant available
space, the construction is proposed in front of the petitioners'
property and that also blocking the access to the road from the
petitioners' house. The petitioners produced Ext.P6
photographs showing that excavation work is going on. The
petitioners submitted Exts.P4 and P5 before the District
Collector, Kottayam and Executive Engineer, PWD, Kottayam.
There is no response. In such circumstances, this writ petition
is filed.
3. Heard the learned counsel for the petitioners and the
learned Government Pleader. I also heard the learned Standing
Counsel for the 3rd respondent.
4. The learned counsel for the petitioners reiterated his
contentions. The counsel submitted that if the toilet complex is
constructed in front of the petitioners' property, there will be
great difficulties to them. The counsel submitted that the
petitioners pointed out another convenient and vacant place for
the toilet complex.
5. The Government Pleader submitted that the
petitioners filed this writ petition on 28.4.2021 and Exts.P4 and
P5 were submitted only on 23.4.2021.
6. When this writ petition came up for consideration,
this Court passed an interim order on 30.4.2021, which is
extracted hereunder :
"Admit. Learned Govt. Pleader takes notice on behalf of respondents
1, 2, 4 and 5. Adv.Sibly chemamppady takes notice on behalf of 3 rd
respondent.
Since the construction of the toilet complex in front of petitioners'
property will affect their right of access to every point of the road
where their property touches the road, there will be an interim stay
as prayed for, for a period of four weeks."
7. Today, the matter came up for final hearing. After
hearing both sides, according to me, this writ petition can be
disposed, directing the 4th respondent to consider Ext.P4 and till
then, the interim order already passed by this Court can be
allowed to continue. I do not want to make any observation
about the merit of the case. The 4th respondent is free to decide
the matter, in accordance to law. The petitioners are free to
agitate their contentions before the 4th respondent.
Therefore, this writ petition is disposed in the following
manner :
1) The fourth respondent is directed to consider Ext.P4
representation, as expeditously as possible, at any rate,
within 2 months from the date of receipt of a copy of this
judgment.
2) Before passing final orders in Ext.P4, the 4 th respondent
will give an opportunity of hearing to the petitioners.
3) Till final orders are passed by the 4 th respondent in Ext.P4
representation, the interim order dated 30.4.2021 will
continue.
SD/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
APPENDIX OF WP(C) 10814/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT SHOWING
PAYMENT OF PROPERTY TAX FOR THE 1ST
PETITIONER'S 16 ARES OF PROPERTY IN
SY.NO.28/12 OF ETTUMANOOR VILLAGE.
EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT SHOWING
PAYMENT OF PROPERTY TAX FOR THE 2ND
PETITIONER'S 11 ARES OF PROPERTY IN
SY.NO.28/6 OF ETTUMANOOR VILLAGE.
EXHIBIT P3 TRUE COPY OF THE TAX RECEIPT SHOWING
PAYMENT OF PROPERTY TAX FOR THE 2ND
PETITIONER'S BROTHER 16 ARES OF PROPERTY IN
SY.NO.28/6-1 OF ETTUMANOOR VILLAGE.
EXHIBIT P4 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE 2ND PETITIONER DATED 23.4.2021
BEFORE THE 4TH RESPONDENT DISTRICT
COLLECTOR.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE 2ND PETITIONER BEFORE THE 5TH
RESPONDENT EXECUTIVE ENGINEER, KOTTAYAM
DATED 23.4.2021.
EXHIBIT P6(4 NOS.) THE PHOTOGRAPHS SHOWING THE EXCAVATION DONE
IN FRONT OF THE PETITIONER'S PROPERTY FOR
THE PURPOSE OF CONSTRUCTING THE PUBLIC
LATRINE ON THE SIDE OF MANNARKAD-
PATTITHANAM BYPASS ROAD.
