V.R. Narayanan Embran vs Union Of India
2021 Latest Caselaw 19972 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
  FRIDAY, THE 24TH DAY OF SEPTEMBER 2021 / 2ND ASWINA,
                            1943
                   WP(C) NO. 13793 OF 2020
PETITIONER/S:

    1      (V.R. NARAYANAN EMBRAN), DECEASED
           AGED 1 YEARS
           PRAGEENA, THAMARASSERY ROAD, POONITHURA P.O.,
           PETTA, ERNAKULAM - 682 038. (DECEASED)

    2      DR.PRASEETHA NARAYANAN
           PRAGEENA, THAMARASSERY ROAD, POONITHURA P.O.,
           PETTA, ERNAKULAM - 682 038.

    3      ADDL.P3. MR.PRASANTH NARAYANAN,
           'PRAGEENA', THAMARASSERY ROAD,
           POONITHURA P.O., PETTA, ERNAKULAM - 682 038.

    4      ADDL.P4. MRS.GEETHA K.,
           W/O.LATE V.R.NARAYANAN EMBRAN, 'PRAGEENA',
           THAMARASSERY ROAD,
           POONITHURA P.O., PETTA, ERNAKULAM - 682 038.


           (ADDL. P3 AND P4 ARE IMPLEADED AS PER ORDER
           DATED 17.02.2021 IN I.A.1/2020 IN
           WP(C)13793/2020.)

           BY ADVS.
           K.SRIKUMAR (SR.)
           SRI.K.MANOJ CHANDRAN
           SRI.S.A.MANSOOR (PATTANAM)


RESPONDENT/S:

    1      UNION OF INDIA
           MINISTRY OF ROAD TRANSPORT AND HIGHWAYS,
           TRANSPORT BHAWAN, 1, PARLIAMENT STREET, NEW
           DELHI- 110 001 REPRESENTED BY ITS SECRETARY.

    2      NATIONAL HIGHWAYS AUTHORITY OF INDIA
           G 5 AND 6, SECTOR 10, DWARKA, NEW DELHI - 110
           075, REPRESENTED BY ITS CHAIRMAN.
 WP(C)s 13793/20& 17938/21
                                  2

    3          STATE OF KERALA
               PUBLIC WORKS (D) DEPARTMENT, PUBLIC OFFICE
               COMPLEX, MUSEUM P.O., THIRUVANANTHAPURAM,
               REPRESENTED BY ITS SECRETARY -695033.

    4          THE CHIEF ENGINEER
               NATIONAL HIGHWAY AUTHORITY OF INDIA, REGIONAL
               OFFICE, KERALA, TC 86/1036-1, AMBLY ARCADE,
               SNNRA-9, PETTAH P.O., THIRUVANANTHAPURAM - 695
               013.

    5          THE EXECUTIVE ENGINEER
               NH DIVISION, PMG, THIRUVANANTHAPURAM - 695003.

    6          THE ASSISTANT EXECUTIVE ENGINEER
               NH BYE PASS SUB DIVISION NO.1,
               THIRUVANANTHAPURAM - 695004.

    7          THE DISTRICT COLLECTOR
               THIRUVANANTHAPURAM - 695 035.

    8          THE TAHSILDAR, TALUK OFFICE
               THIRUVANANTHAPURAM -695004.

    9          KUMARANASAN NATIONAL INSTITUTE OF CULTURE
               THONNAKKAL, THIRUVANANTHAPURAM - 695 317
               REPRESENTED BY ITS SECRETARY.

               BY ADVS.
               SHRI.P.VIJAYAKUMAR, ASG OF INDIA
               GOVERNMENT PLEADER
               SRI.G.BIJU FOR R9
               SRI.V.A.VINOD


OTHER PRESENT:
         SRI. HANIL KUMAR - SPL. GP


        THIS    WRIT   PETITION   (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 24.09.2021, ALONG WITH WP(C).17938/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C)s 13793/20& 17938/21
                                3



          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 24TH DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943
                   WP(C) NO. 17938 OF 2021
PETITIONER/S:

           P.VIJAYAKUMAR
           AGED 65 YEARS
           S/O. PRABHAKARAN, KAMALALAYAM-2, MRA-112,
           PATTOOR-KUNNUKUZHI ROAD, VANCHIYOOR P.O.,
           THIRUVANANTHAPURAM-695 035

           BY ADVS.
           S.SREEKUMAR (SR.)
           P.PRIJITH
           THOMAS P.KURUVILLA
           R.GITHESH
           AJAY BEN JOSE
           MANJUNATH MENON
           SACHIN JACOB AMBAT
           ANNA LINDA V.J
           P.MARTIN JOSE


RESPONDENT/S:

    1      THE STATE OF KERALA
           REPRESENTED BY THE PRINCIPAL SECRETARY, REVENUE
           DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695
           001

    2      THE DISTRICT COLLECTOR,
           CIVIL STATION, KUDAPPANAKKUNNU,
           THIRUVANANTHAPURAM-695 043

    3      THE CHIEF ENGINEER (NH)
           OFFICE OF NATIONAL HIGHWAYS,
           THIRUVANANTHAPURAM-695 001
 WP(C)s 13793/20& 17938/21
                                  4

    4          THE EXECUTIVE ENGINEER,
               PWD-NH DIVISION, OPP LOURDE CHURCH,
               THIRUVANANTHAPURAM-695 004

    5          THE ASSISTANT ENGINEER,
               KERALA PUBLIC WORKS DEPARTMENT, OFFICE OF THE
               ASSISTANT ENGINEER PMG, THIRUVANANTHAPURAM-695
               121

    6          THE TAHSILDAR,
               LAND RECORDS, TALUK OFFICE, THIRUVANANTHAPURAM-
               695 023

    7          KUMARAN ASAN NATINAL INSTITUTE OF CULTURE,
               THONNAKKAL-695 317, REPRESENTED BY ITS
               SECRETARY

               SRI.HANIL KUMAR, SPL. GOVERNMENT PLEADER


        THIS    WRIT   PETITION   (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 24.09.2021, ALONG WITH WP(C).13793/2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C)s 13793/20& 17938/21
                                5



                DEVAN RAMACHANDRAN, J.
                         ------------------------
           WP(C) Nos.13793/2020 and 17938/2021
                    ----------------------------------
          Dated, this the 24th day of September, 2021

                        JUDGMENT

These two cases have been heard together and are

being disposed of jointly through this judgment, since the

factual circumstances pleaded therein are inter-layered;

while the reliefs sought for are similar, if not identical.

2. The petitioner in WP(C) No.17938/2021 -

Sri.P.Vijayakumar, is stated to be the grandson of the

iconic social reformer and poet Sri.Kumaran Asan; while,

the petitioners in WP(C) No.13793/2020 are stated to be

the assignees of certain property from Sri.Vijayakumar

and his brother, Sri.Pradeep Kumar.

3. The petitioners in these cases have a common

grievance, that the grant of user of a pathway to their

properties, which was originally ordered by the WP(C)s 13793/20& 17938/21

Government through GO(Rt) No.187/2005/PWD, dated

16.1.2005, (hereinafter referred to as the "First

Government Order"), has been now taken away through a

subsequent Government Order bearing GO(MS) No.

99/2021/Revenue, dated 27.4.2021, (hereinafter referred

to as the "Second Government Order"), but without

affording them an opportunity of being heard and without

assigning any reason.

4. The petitioners contend that the "Second

Government Order" is, therefore, illegal and unlawful and

pray that the same be set aside, since it takes away

vested rights in their favour, which were given to them

through the "First Government Order".

5. The afore submissions of Sri.S.Sreekumar,

learned Senior Counsel, instructed by Sri.Martin Jose for

the petitioner in WP(C) No.17938/2021 and that of Sri.K.

Sreekumar, learned Senior Counsel, instructed by WP(C)s 13793/20& 17938/21

Sri.K.Manoj Chandran for the petitioners in WP(C)

No.13793/2020, were opposed by the learned Special

Government Pleader - Sri.Hanil Kumar, saying that the

same are untenable because, in the "Second Government

Order" no rights, which were given to the petitioners in the

"First Government Order" have been taken away. He

pointed out that in the impugned "Second Government

Order", the right of way of the petitioners have been

protected; though he conceded, to a question from this

Court, that its width has been attenuated, being shown as

4 metres therein, rather than the earlier 6 metres granted

through the "First Government Order". He, however,

submitted that the petitioners would not be, in any

manner, prejudiced by this because their properties are

abutting a National Highway and consequently, that the

reduction of the width of the pathway would not cause

them any real detriment.

WP(C)s 13793/20& 17938/21

6. Even when I hear the learned Special

Government Pleader as afore, the fact remains that

through the "First Government Order", dated 16.1.2005, a

right of way was specifically reserved in favour of the

aforementioned Sri.Pradeep Kumar, as also to the

members of his family and members of public, with a

width of six metres and a length of 200 metres. It is on

this basis that, obviously, they have dealt with their

property, including by selling a portion thereof to the

petitioners in WP(C) No.17938/2021 and that the

assignees have purchased it, noticing such vested rights.

7. However, through the "Second Government

Order", dated 27.4.2021, the Government has attenuated

the width of the pathway to 4 metres, but without affording

any opportunity of being heard to any person, including

the petitioners herein.

8. I am, therefore, of the firm view that the "Second WP(C)s 13793/20& 17938/21

Government Order", to the afore mentioned extent,

cannot be allowed to operate and that the reduction of the

width of the pathway, if at all possible, can be done by the

Government only after evaluating the versions of the

petitioners herein and the members of the public and such

other interested parties.

9. In the aforesaid circumstances, I allow these

writ petitions and set aside the Government Order bearing

No.GO(MS)99/2021/Revenue, dated 27.4.2021, to the

extent to which the width of the pathway, earlier granted

through GO(RT) No.187/2005/PWD, dated 16.1.2005, has

been reduced to 4 metres. In all other respects, the

"Second Government Order" will be allowed to operate.

10. Needless to say, if the Government should

deem it necessary to reduce the width of the pathway in

future, they will be at liberty to do so, but only after

following due procedure and in terms of the applicable WP(C)s 13793/20& 17938/21

Rules and Regulations, after hearing the petitioners, as

also every other interested person.

11. At this time, Sri.S.Sreekumar and

Sri.K.Sreekumar, learned Senior Counsel, submitted that

the controversy in the case has erupted because the "First

Government Order", dated 16.1.2005, had not been

properly implemented and therefore, prayed that the

competent Authorities be directed to do so, by properly

demarcating it, within a time frame to be fixed by this

Court.

12. Since, I notice that the "First Government Order"

is admitted to have been not varied or modified at any

point of time, except through the "Second Government

Order", which has been dealt with as afore, I am of the

view that the competent Authorities must ensure that it is

implemented properly, subject to the changes, if any,

made through the "Second Government Order", to its WP(C)s 13793/20& 17938/21

terms, but reiteratingly clarifying that the width of the

pathway shall be maintained at 6 metres. It is so ordered

and action in this regard shall be completed as

expeditiously as is possible but not later than six months

from the date of receipt of a copy of this judgment.

These writ petitions are thus ordered.

Sd/-

DEVAN RAMACHANDRAN, JUDGE jg WP(C)s 13793/20& 17938/21

APPENDIX OF WP(C) 17938/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE GIFT DEED NO.3758 DTD 05.11.1958 OF KAZHAKKUTTAM SRO, EXECUTED BY LATE SRI.PRABHAKARAN, THE SON OF THE GREAT POET AND THE FATHER OF THE PETITIONER IN FAVOUR OF STATE OF KERALA

Exhibit P2 TRUE COPY OF GO(MS) NO.204/66/EDN DATED 30.04.1966 ISSUED BY THE EDUCATION DEPARTMENT OF THE 1ST RESPONDENT

Exhibit P3 TRUE COPY OF SKETCH SHOEING THE PRESENT NATURE AND LIE OF THE PROPERTY IN POSSESSION OF THE PETITIONER, AND OTHER LEGAL HEIRS AND ALSO THAT OF THE 7TH RESPONDENT

Exhibit P4 TRUE COPY OF MEMO NO.87557/CB5/61-2/PW DATED 25.07.1962 THE 1ST RESPONDENT GOVERNMENT

Exhibit P5 TRUE COPY OF GO (MS) 303/72/RD DATED 10.03.21972 ISSUED BY THE GOVERNMENT OF KERALA

Exhibit P6 TRUE COPY OF GO(MS) NO.13/99/CAD DATED 10.03.1999 ISSUED BY THE DEPARTMENT OF CULTURAL AFFAIRS OF THE 1ST RESPONDENT

Exhibit P7 TRUE COPY OF GO(RT) NO.3000/03/CAD DATED 05.08.2003 OF THE DEPARTMENT OF CULTURAL AFFAIRS OF THE 1ST RESPONDENT

Exhibit P8 TRUE COPY OF JUDGMENT DATED 05.08.2004 IN WPC NO.5385 OF 2004 OF THIS HON'BLE COURT, DIRECTING THE 4TH RESPONDENT HEREIN TO CONSIDER THE REPRESENTATION WP(C)s 13793/20& 17938/21

SUBMITTED BY THE PETITIONER HEREIN

Exhibit P9 TRUE COPY OF GO(RT) NO.187/2005/PWD DATED 16.01.2005

Exhibit P9A TYPES COPYTOF EXHIBIT P9

Exhibit P10 TRUE COPY OF JUDGMENT DATED 06.10.2005 IN 0S NO.143 OF 2004 OF MUNSIFF COURT, ATTINGAL

Exhibit P11 TRUE COPY OF JUDGMENT DATED 25.03.2009 I CC NO.814 OF 2005 OF THE JFCM-I, ATTINGAL

Exhibit P12 TRUE COPY OF GO (RT) N.557/2007/CAD DATED 29.10.2007 ISSUED BY THE 1ST RESPONDENT GOVERNMENT

Exhibit P13 TRUE COPY OF NOTIFICATION NO.K4/43813/2007 DATED 15.11.2007

Exhibit P14 TRUE COPY OF COMMON JUDGMENT DATED 02.09.2008 IN WPC NO.35419/2007 AND WPC NO.37333 OF 2007 OF THIS HON'BLE COURT

Exhibit P15 TRUE COPY OF NOTIFICATION NO L.R.C 2291/2008 DATED 16.12.2008

Exhibit P16 TRUE COPY OF COMMON JUDGMENT DATED 23.05.2011 IN WPC NO.25281 OF 2009 AND WPC NO.25282 OF 2009 ALONG WITH WA NO.1723 OF 2009 DIRECTING THE RECONSIDER WHETHER THERE IS ANY PUBIC PURPOSE FOR THE LAND ACQUISITION PROCEEDINGS

Exhibit P17 TRUE COPY OF COMMON JUDGMENT DATED 20.05.2015 IN WPC NS 4130,4130, 4144 AND 4494 OF 2012 OF THIS HON'BLE COURT, ALLOWING THE WRIT PETITIONS WP(C)s 13793/20& 17938/21

THEREBY QUASHING THE ACQUISITION PROCEEDINGS

Exhibit P18 TRUE COPY OF PHOTOGRAPHS

Exhibit P19 TRUE COPY OF REPRESENTATION DATED 27.03.2019 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT

Exhibit P20 TRUE COPY OF LETTER NO.NHKZM/GI/19 DATED 24.07.2019 ISSUED BY THE 5TH RESPONDENT, DIRECTING THE 6TH RESPONDENT TO TAKE URGENT MEASURES TO MEASURE AND DEMARCATE THE STRETCH OF OLD NH BEHIND THE KUMARASAN MEMORIAL AS THE SAME HAS BEEN ENCROACHED UPON

Exhibit P21 TRUE COPY OF LETTER NO.AE/NH/KZM/GL/2019 DATED 23.11.2019 ISSUED BY THE ASSISTANT ENGINEER, NH BYPASS SUB -DIVISION NO.1, THIRUVANANTHAPURAM

Exhibit P22 TRUE COPY OF LETTER NO.DB2/1461/2019 DATED 23.11.2019 OF THE ASSISTANT EXECUTIVE ENGINEER, NH BYPASS SUB- DIVISION NO.1., THIRUVANANTHAPURAM REPORTING TO THE 4TH RESPONDENT ABOUT THE FINDINGS IN EXHIBIT P21

Exhibit P23 TRUE COPY OF LETTER NO.D1-3321/2019 DATED 18.12.2019 ISSUED BY THE 4TH RESPONDENT, REQUESTING THE 2ND RESPONDENT TO DIRECT THE 6TH RESPONDENT TO MEASURE AND DEMARCATE THE PROPERTY AS REQUESTED IN EXHIBIT P20

Exhibit P24 TRUE COPY OF GO(K) NO.99/2021/RD DATED 27.04.2021 PASSED BY THE 1ST RESPONDENT WP(C)s 13793/20& 17938/21

APPENDIX OF WP(C) 13793/2020

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.725/2017 DATED 28/06/2017.

EXHIBIT P1(A) TRUE COPY OF THE SALE DEED NO.841/2017 DATED 28/07/2017.

EXHIBIT P2 TRUE COPY OF THE RELEVANT PORTION OF THE JUDGMENT DATED 05/08/2004 IN W.P. (C) NO.5385/2004.

EXHIBIT P3 TRUE COPY OF THE GO(RT) NO.187/2005/PWD DATED 16/01/2005.

EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 24/07/2019.

EXHIBIT P5 TRUE COPY OF THE LETTER DATED 24/07/2019 ISSUED BY THE 6TH RESPONDENT TO THE 8TH RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE LETTER DATED 25/07/2019.

EXHIBIT P7 TRUE COPY OF THE REPLY DATED 06/08/2019.

EXHIBIT P8 TRUE COPY OF THE LETTER DATED 23/11/2019.

EXHIBIT P9 TRUE COPY OF THE LETTER DATED 23/11/2019.

EXHIBIT P10 TRUE COPY OF THE LETTER DATED 18/12/2019 ISSUED BY THE 5TH RESPONDENT.

Exhibit P11 TRUE COPY OF THE SKETCH SHOWING LIE WP(C)s 13793/20& 17938/21

AND NATURE OF THE ENTIRE PROPERTIES OF THE PETITIONERS.

RESPONDENT EXHIBITS

EXHIBIT R6(a) TRUE COPY OF THE ORDER GO/MS 303/72/RD OF REV (A) DEPT. DATED 10.03.1972.

EXHIBIT R6(b) TRUE COPY OF THE ORDER NO.G.O (RT) 187/2005/PWD DATED 16.01.2005.

EXHIBIT R6(c) TRUE COPY OF THE LETTER DATED 24.07.2019 FROM ASST ENGR,PWD,NH BYEPASS,TVM.

EXHIBIT R6(d) TRUE COPY OF LETTER DATED 18.12.2019 FROM EXE.ENGR,NH DN,TVM.

EXHIBIT R9(a) TRUE COPY OF GOVERNMENT ORDER DATED 1.9.2019 GIVING ADMINISTRATIVE SANCTION SANCTIONING THE FUND EXHIBIT R9(b) TRUE COPY OF STOP MEMO ISSUED BY THE MANGALAPURAM GRAMA PANCHAYAT TO 1ST PETITIONER DATED 1.11.2017.

EXHIBIT R9(c) TRUE COPY OF ORDER OF THE SUB DIVISIONAL MAGISTRATE DATED 17.11.2017

EXHIBIT R9(d) TRUE COPY OF THE PLAINT IN OS NO.213/2018 ON THE FILE OF THE MUNSIFF'S COURT, ATTINGAL FILED BY THE PETITIONERS DATED 27.4.2018.

EXHIBIT R9(e) TRUE COPY OF WRITTEN STATEMENT FILED BY THIS RESPONDENT IN OS NO.213/2018 DATED 5.9.2018 ON THE FILE OF THE MUNSIFF'S COURT, ATTINGAL.

EXHIBIT R9(f) TRUE COPY OF JUDGMENT IN OS NO.213/2018 OF THE MUNSIFF'S COURT, ATTINGAL DATED 21.3.2019.

WP(C)s 13793/20& 17938/21

EXHIBIT R9(g) TRUE COPY OF GO(MS) NO.99/2021/REV DATED 27.4.2021 ASSIGNING 14.59 ARES OF PROPERTY 9TH RESPONDENT.

EXHIBIT R9(h) TRUE COPY OF MAHAZAR DATED 16.6.2021 PREPARED BY THE VILLAGE OFFICER, VEILOOR.

EXHIBIT R9(i) TRUE COPY OF REPORT DATED 13.7.2021 IN THIS REGARD FORWARDED BY THE TAHSILDAR, THIRUVANANTHAPURAM TO THE DISTRICT COLLECTOR.