Kerala High Court
C.P.Ajithkumar vs State Of Kerala on 31 August, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
Wednesday, the 31st day of August 2022 / 9th Bhadra, 1944
WP(C) NO. 32680 OF 2008(M)
PETITIONERS:
1. C.P.AJITHKUMAR, PROPRIETOR, SUBURBAN TRAVELS, MAMANGALAM,
COCHIN-24,(PRESIDENT, TRAVEL, OPERATORS ASSOCIATION OF KERALA).
2. KERALA MERCHANTS UNION (FORMERLY ERNAKULAM MERCHANTS UNION),
MERCHANTS UNION BUILDING, MERCHANTS UNION ROAD, COCHIN-11,
REPRESENTED BY ITS GENERAL SECRETARY.
BY ADVOCATE SRI.TOM K.THOMAS
RESPONDENTS:
1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, PUBLIC
WORKS DEPARTMENT, (ROADS), GOVT.SECRETARIAT, TRIVANDRUM.
2. THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVT.SECRETARIAT,
TRIVANDRUM.
3. THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT (ROADS), TRIVANDRUM.
4. CORPORATION OF COCHIN, REPRESENTED BY ITS SECRETARY, BOAT JETTY,
ERNAKULAM.
5. GREATER COCHIN DEVELOPMENT AUTHORITY, KADAVANTHARA, ERNAKULAM,
COCHIN-20, REPRESENTED BY ITS SECRETARY.
ADDITIONAL R6 AND R7 IMPLEADED
6. THE CHIEF ENGINEER, (NATIONAL HIGHWAYS), TRIVANDRUM-695033.
7. THE REGIONAL OFFICER, NATIONAL HIGHWAY AUTHORITY OF INDIA, OFFICE OF
THE CHIEF ENGINEER, (NATIONAL HIGHWAYS), TRIVANDRUM-695033. (ADDDL.
R6 AND R7 ARE IMPLEADED AS PER ORDER DATED 28.11.2088
INIA.15338/2008).
ADDITIONAL R8 AND R9 IMPLEADED
8. THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT COCHIN, NATIONAL
HIGHWAY AUTHORITY OF INDIA, MANGALYA VAIDHYA MADOM, VYTILA,
ERNAKULAM.
9. THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT PALAKKAD, NATIONAL
HIGHWAY AUTHORITY OF INDIA, ARMUGHAM COLONY, CHANDRA NAGAR,
PALAKKAD. (ADDL.R8 AND R9 ARE IMPLEADED AS PER ORDER DATED
17.12.2008 IN I.A.16206/2008 IN WP(C)32680/2008.)
ADDITIONAL R10 IMPLEADED
10. UNION OF INDIA, REP. BY SECRETARY TO GOVERNMENT, MINISTRY OF SURFACE
TRANSPORT, CENTRAL SECRETARIAT, NEW DELHI. (ADDL.R10 IS IMPLEADED AS
PER ORDER DATED 30.03.2009 IN I.A.4647/2009 IN WP(C) 32680/2008.)
ADDITIONAL R11 IMPLEADED
11. CENTRE FOR CONSUMER EDUCATION, MARKET ROAD, PALAI, REPRESENTED BY
ITS MANAGING TRUSTEE DEJO KAPPAN, AGED 54, S/O.LATE K.C.JOSEPH,
RESIDING AT 17 A, PRESIDENCY HOMES, KALOOR, ERNAKULAM. (ADDL.R11 IS
IMPLEADED AS PER ORDER DATED 12.10.2011 IN IA.15616/2011.)
ADDITIONAL R12 AND R13 IMPLEADED
12. KERALA GOVERNMENT CONTRACTORS ASSOCIATION, HEAD OFFICE SREEKUMAR
BUILDING, IRON BRIDGES.P.O., ALAPPUZHA, REPRESENTED BY ITS PRESIDENT
VARGHESE KANNAMPALLY-688001.
13. P.R.ASHOKUMAR, RAMAPRIYA, PARAYAKADU.P.O., CHERTHALA, ALAPPUZHA
DISTRICT-688001.
(ADDL.R12 AND R13 ARE IMPLEADED AS PER ORDER DATED
18.10.2011 IN I.A.15475/2011.)
ADDITIONAL R14 IMPLEADED
14. THE DISTRICT COLLECTOR, ERNAKULAM. (IS SUO MOTU IMPLEADED AS ADDL.
R14 AS PER ORDER DATED 11.10.2019 IN WPC.)
ADDITIONAL R15 SUO MOTU IMPLEADED
15. THE PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF INDIA, ERNAKULAM
IS SUO MOTU IMPLEADED AS ADDL. R15 AS PER ORDER DATED 17.12.2021 IN
WP(C) 32680/2008.
ADDITIONAL R16 IMPLEADED
16. THE COMMISSIONER OF POLICE, KOCHI. (IS SUO MOTU IMPLEADED AS
ADDL.R16 AS PER ORDER DATED 14-01-2022 IN WP(C) 32680/2008).
ADDITIONAL R17 SUO MOTU IMPLEADED
17. COCHIN SMART MISSION LIMITED, 4TH FLOOR, JLN STADIUM METRO STATION,
KALOOR, KOCHI- 682017 (IS SUO MOTU IMPLEADED AS ADDITIONAL R17 AS
PER ORDER DATED 01.08.2022 IN WP(C) 32680/2008.)
ADDITIONAL R18 SUO MOTU IMPLEADED
18. REGIONAL OFFICER, NHAI, THIRUVANANTHAPURAM IS SUO MOTU IMPLEADED AS
ADDITIONAL R18 AS PER ORDER DATED 08/08/2022 IN WP(C) 32680/2008.
BY SRI. K.V.MANOJ KUMAR, SENIOR GOVERNMENT PLEADER FOR R1 TO R3, R14
AND R16.
BY SRI. JANARDHANA SHENOY, STANDING COUNSEL FOR R4.
BY SRI. M.K.THANKAPPAN, ADVOCATE FOR R5.
BY SRI. SEBASTIAN THOMAS, ADVOCATE FOR R6 AND R7.
BY SRI. THOMAS ANTONY, ADVOCATE FOR R8 AND R9.
BY SRI. S. KRISHNAMOORTHY, CENTRAL GOVERNMENT COUNSEL FOR R10.
BY SRI. JOHNSON MANAYANI, ADVOCATE FOR R11.
BY SRI. JOMY GEORGE, ADVOCATE FOR R12 AND R13.
BY SMT. M.U.VIJAYALAKSHMI, STANDING COUNSEL FOR CSML, ADDL. R17.
BY SRI. BIDAN CHANDRAN, STANDING COUNSEL FOR ADDL. R18.
BY SRI. MATHEWS K. PHILIP, STANDING COUNSEL FOR NHAI
BY M/S. S. KRISHNA, P.DEEPAK AND VINOD BHAT, AMICUS CURIAE
BY SRI.C.S.MANU, ASSISTANT SOLICITOR GENERAL OF INDIA
This Writ Petition (Civil) having coming up for orders on
31.08.2022, and upon perusing this court's judgment dated 18.10.2019 and
order dated 19.08.2022 , the Court on the same day passed the following.
P.T.O
Devan Ramachandran, J.
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W.P(C)No.32680 of 2008
W.P(C)No.34310 of 2019
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Dated this the 31st day of August, 2022.
ORDER
On 19th August, 2022, this Court had issued certain
orders in continuation of the ones contained in the
orders dated 01/08/2022 and 08/08/2022.
2. Sri.Manoj Abraham IPS, Director of Vigilance
and Anti-Corruption Bureau was present online and he
explained the action taken by his Department with
respect to the various roads in Kerala. This Court
interacted with him on various aspects and it is
disclosed that over 7500 complaints were received, out
of which, 107 were taken up, based on Intelligence
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W.P.(C).No.34310 of 2019
inputs and surprise inspection conducted. The Director
informed me that the samples of "road cutting" have
been sent to the competent laboratory for examination
and that, on obtaining the technical report with respect to
the same, cases will be registered, if found necessary. He
added that two cases have already been registered and
that necessary action thereon is being taken forward. He
concluded saying that the technical reports with respect
to the roads are expected in about two or three weeks
from now and assured this Court that measures, as are
warranted, will be taken forward without any exemption.
3. The afore submissions of the Director of
Vigilance and Anti-Corruption Bureau certainly is very
welcome because I have no doubt when the said
Department keeps an eye for any wrong doing with
respect to the construction and maintenance of roads, the
situation certainly will improve. If action is taken by them
W.P.(C).No.32680 of 2008
W.P.(C).No.34310 of 2019
dispassionately and strongly, I am without doubt that
things will change over the time.
4. Thats said, certainly the Vigilance and Anti-
Corruption Bureau should continue to do their work and
make inspections - which the Director says will be done
in the future round also - so that most of the roads with
regard to which complaints are impelled, can be taken
note of a necessary action imitated thereon. This Court
certainly appreciates the action taken by the Vigilance
and Anti-Corruption Bureau and expects the Director to
keep an overall view and ensure that all culprits - be
however high they may - is brought to book and dealt
with under the most stringent provision of law.
5. Sri.K.V.Manoj Kumar - learned Senior
Government Pleader, appearing for the Public Works
Department (PWD), submitted that Running Contracts are
being considered for all the works; and that out of the
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W.P.(C).No.34310 of 2019
thirty roads, fourteen are already covered by the same.
He submitted that, as far as the other sixteen are
concerned, such contracts will be issued in due course.
With respect to certain specific roads, including
Perumbavoor - Kothamangalam and Kothamangalam -
Munnar, he submitted that works are underway and that
he will be able to report before this Court by the next
posting date.
6. As matters now stand, surely, there is some
progress from the way the roads were a few weeks ago.
The learned amici curiae also confirm that the roads in
the Corporation of Kochi have improved, though there are
some which require further works. They added that they
have handed over the list of such roads to Sri.Janardhana
Shenoy - learned Standing Counsel of Kochi.
7. Sri.Bidan Chandran, representing the National
Highway Authority of India (NHAI), submitted that his
W.P.(C).No.32680 of 2008
W.P.(C).No.34310 of 2019
client has taken notice of all the concerns projected by
this Court in the earlier orders; and that, consequently,
the Concessionaire of National Highway 554 has been
removed from its maintenance work and another
appointed, with an approved budget of Rs.58 and odd
crores. He added that necessary action has also be taken
against the first Concessionaire, including by initiation of
Arbitration proceedings.
8. This writ petition has been engaging the
attention of this Court for such a long period of time only
because the potholes and craters in the roads are costing
very valuable human lives. It is not merely that the loss
life that concerns this Court, but also injuries and such
other collateral damage.
9. That said, this Court has already empowered
the District Collectors to act under the ambit of the
Disaster Management Act; and Sri.K.V.Manoj Kumar says
W.P.(C).No.32680 of 2008
W.P.(C).No.34310 of 2019
that this has fostered considerable change in the way the
roads are presently in. He added that the District
Collectors are keeping a very close vigil on all the roads.
10. Needless to say, I must remind the District
Collectors that this Court will certainly seek explanation
from them, should there be any further accidents solely
on account of potholes and craters being left unattended;
and it will be certainly for them to ensure that such
aspects are dealt with under the Disaster Management
Act, through their subordinate officers or those under
their command.
11. Sri.S.Manu - learned Assistant Solicitor General
of India, submitted that questions regarding the Principles
of Constitutional Tort, with respect to accidents and
injuries on account of bad roads, specially in the National
Highway, is engaging the attention of the competent
Authority of Government at the appropriate level.
W.P.(C).No.32680 of 2008
W.P.(C).No.34310 of 2019
12. Obviously, this Court has to now wait for further
progress.
I, therefore, adjourn this matter to be called on
04.10.2022; within which time :
(a) K.Rajesh - learned Special Government Pleader,
will ensure that a report from the Vigilance and Anti
Corruption Bureau, with respect to the checks conducted
and with respect to those with the intent to do; along with
the gist of the Technical Reports and culpability of
persons found guilty, shall be placed on record.
(b) Sri.K.V.Manoj Kumar - learned Senior
Government Pleader, appearing for the PWD, will file a
status report with respect to all the roads under the said
department, disclosing the details of the Running
Contracts with respect to the ones on which it has already
been enforced. As regards the specific stretches of roads
that have engaged the attention of this Court particularly,
W.P.(C).No.32680 of 2008
W.P.(C).No.34310 of 2019
Perumbavoor Koothamangalam - Munnar Road and such
other, the report shall specify the action taken thereon
and when it will be completed.
(c) Since Sri.N.K.Thankappan - leaned Standing
Counsel for the GCDA, submitted that his client has
already entered into a contract with the Cochin Metro Rail
Ltd (CMRL), for the purpose restoring the foot path of the
Kallor-Kadavanthara road and since he assured this Court
that the surface of the said road will be maintained and
repaired by them without fail, he will file a report on the
same.
(d) The learned Assistant Solicitor General will
obtain specific instructions on the earlier queries of this
Court, particularly on the aspects of Constitutional Tort
principles with respect to the accident that has happened
on NH-544 and inform this Court by the next posting
date.
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W.P.(C).No.34310 of 2019
Over Hanging Cables
Sri.K.Ramkumar - learned Senior Counsel instructed
by Sri.Ramaprasad Unni, appearing for the BSNL,
complained that, in the guise of removing dangerous and
over hanging cables, the ones installed by his client
legally and correctly, are being cut and destroyed.
No doubt, the corporation must act strongly with
respect to dangerous and overhanging cables; but this
should be done with due care not to disturb cables put
up by entities, like the BSNL, which does not cause any
prejudice to the citizens. To paraphrase, unless the
cables put up by the BSNL is found to be dangerous or
overhanging, it need not be cut and removed; but if it is
found otherwise, then it be done, but only after intimating
the competent Authority of the BSNL appositely. It is so
clarified.
That said, however, the drive now undertaken by the
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Corporation, to remove dangerous and overhanging
cables, shall not be affected by the afore orders and it
shall continue; and I clarify that what is stated above
reflects only with respect to the BSNL.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Raj.
31.08.2022.
31-08-2022 /True Copy/ Assistant Registrar
