Beach Road Action Council vs Union Of India
2022 Latest Caselaw 3593 Ker

               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 24TH DAY OF MARCH 2022 / 3RD CHAITHRA, 1944
                        WP(C) NO. 4808 OF 2022
PETITIONER:

          BEACH ROAD ACTION COUNCIL
          REPRESENTED BY ITS SECRETARY,
          A.SADIQUE KHAN, AGED 36 YEARS, SON OF CHERIYAKOYA,
          AYILATHARA HOUSE, ANDROTH ISLAND,
          UNION TERRITORY OF LAKSHADWEEP, PIN - 682 551.
          BY ADVS.
          P.P.BIJU
          DEEPAK RAJ
          C.P.ROOPA


RESPONDENTS:

    1     UNION OF INDIA
          REPRESENTED BY ITS SECRETARY, FINANCE DEPARTMENT,
          NORTH BLOCK, NEW DELHI,ERNAKULAM, PIN - 110 001.
    2     THE ADMINISTRATOR
          UNION TERRITORY OF LAKSHADWEEP,
          KAVARATTI ISLAND, PIN - 682 555.
    3     THE SUB DIVISIONAL OFFICER
          SUB DIVISIONAL OFFICE, ANDROTH ISLAND,
          UNION TERRITORY OF LAKSHADWEEP, PIN - 682 551.
    4     THE EXECUTIVE ENGINEER
          PUBLIC WORK DEPARTMENT, DIVISION OFFICE, KALPENI
          ISLAND, UNION TERRITORY OF LAKSHADWEEP,PIN - 682 557.
    5     THE ASSISTANT EXECUTIVE ENGINEER (CIVIL)
          LAKSHADWEEP PUBLIC WORKS DEPARTMENT,
          SUB DIVISIONAL OFFICE,ANDROTH ISLAND,
          UNION TERRITORY OF LAKSHADWEEP, PIN - 682 551.
          BY ADVS.
          Sajith Kumar V.
          MANU S., ASG OF INDIA


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.4808 of 2022
                                    2


                             JUDGMENT

Dated this the 24th day of March, 2022

S.Manikumar, C.J.

The petitioner has sought for the following reliefs:

"(i) to issue a writ of mandamus or any other appropriate writ, direction or order of this honourable court directing the respondents to take immediate steps to start the construction of Beach road from the breakwater to FCI godown at Androth Island as per Ext.P1 within one month.

(ii) Call for the records pursuant to Ext.P1."

2. Short facts leading to the filing of the writ petition

are as under:

2.1. The petitioner herein is aggrieved by the inaction on

the part of the respondents in delaying the construction of

Beach Road from the breakwater to FCI godown at Androth

Island, Union Territory of Lakshadweep. It is submitted that in

this Island the people are mainly depending on the existing

road which is laying East-West direction from the light house

to Food Corporation of India godown. That concrete road is

having 3 Meter width and all the government officers like the W.P.(C)No.4808 of 2022

Coast guard, Naval base, Food Corporation of India, Indian

Reserve Battalion Camp and Harbors office are situated in the

Western region of this road.

2.2. It is also submitted that the existing road is the only

access to transport food crops to the FCI depot. The majority

of school-going children and aged people are mainly

depending for their ingress and egress through this road and

no other alternative road is available for the people in the

Island. Due to the transportation of food crops and

construction materials, it is causing irreparable and health

hazards to the public and also endanger their life. Considering

all these facts, the Executive Engineer, Public Works

Department, Division Office, Kalpeni Island - 4th respondent

had decided to construct a new road namely Beach Road from

breakwater to FCI godown at Androth island.

2.3. It is submitted that the 4 th respondent has

submitted Exhibit P4, for the construction of the beach road

from the breakwater to FCI godown. But no further action has

been taken by the respondents to start the construction of W.P.(C)No.4808 of 2022

the beach road. As per Ext.P7 judgment of this Court, the

respondents assured that "Be that as it may, considering the

stand the project is still under consideration and based on the

undertaking that subject to availability of funds it would be

taken up, we dispose of this public interest litigation

recording the assurance that sooner or later depending upon

the availability of funds, this project would be revisited". This

Court also passed Ext.P8 judgment by closing the proceedings

with the expectation that as per the prioritisation and

comparative assessment of public interest the Administration

will ensure execution of all pending public projects without

unnecessary delay and without discrimination.

2.4. It is noted that a school going girl child aged 12

years namely Thanseehali was expired due to accident on

28.08.2021. The existing narrow road is the main reason

behind the aforementioned accident. The respondents have

started and completed many projects but the construction of

the aforementioned road is being neglected. W.P.(C)No.4808 of 2022

3. A statement has been filed by the standing counsel on

behalf of respondents 2 to 5, wherein it is contended thus:

"3. It is humbly submitted that the matter in issue was considered by this Hon'ble Court in Exhibit P7 and Exhibit P8. The W.P.(C) No. 17550/2017 was disposed of by this Hon'ble Court in Exhibit P7 recording the assurance of the Administration that sooner or later, depending upon the availability of funds, the project in question will be completed. In W.P.(C) No. 8320/2018, the Hon'ble Court felt it appropriate to close the Writ Petition with the expectation that with the comparative assessment of public interest, the administration will ensure execution of all pending public projects without unnecessary delay or discrimination as reflected in para 5 of Exhibit P8 judgment.

4. It is humbly submitted that the proposal for Beach Road from the breakwater to FCI Godown was initiated with a requisition for land acquisition as early as on 20.01.2011.

5. However, the acquisition proceedings could not progress at that point of time for various reasons. Subsequently, after the enactment of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the Revenue Department directed all other departments to send fresh requisitions in accordance with the new Act. It was also requested to forward a request in the proper format for conducting social impact assessment as well.

6. It is humbly submitted that on resubmitting the proposals in consequent to Annexure R2(b) above, the W.P.(C)No.4808 of 2022

requirement of getting clearance from Lakshadweep Coastal Zone Management Authority (LCZMA) arose and the request was placed before the LCZMA by letter dated 07.09.2020.

7. It is humbly submitted that the Road in question was included at Sl. No. 3 in the Annexure R2(c) above. The proposals of the LPWD were listed as an Agenda of the 36 th Meeting of the Lakshadweep Coastal Zone Management Authority and the same was communicated by the Member Secretary to the Superintending Engineer, LPWD by Letter dated 25.01.2022. Thereafter a request was made to the LCZMA to put on hold the proposals put forth in 2020 from the Agenda Point of the meeting since there is a policy decision to modify the existing road works with protection wall and survey of the same has already been commenced in some of the Islands for the road realignment work.

8. It is humbly submitted that the LCZMA therefore adjourned the item for submission of detailed project report. Consequently, an online tender was notified for selection of consultancy firm for providing Consultancy services for "Preparation of detailed project report for construction of various main roads, other link roads and village roads in the Union Territory of Lakshadweep."

9. It is humbly submitted that after the receipt of detailed project report, the properties to be acquired will be determined and will be brought to the notice of LCZMA for their approval. The project will be implemented subject to the approval of all competent authorities including LCZMA and the availability of funds."

W.P.(C)No.4808 of 2022

4. Annexures R2(a) to R2(e) produced along with the

statement are reproduced:

W.P.(C)No.4808 of 2022

W.P.(C)No.4808 of 2022

W.P.(C)No.4808 of 2022

W.P.(C)No.4808 of 2022

W.P.(C)No.4808 of 2022

W.P.(C)No.4808 of 2022

5. Going through the material on record and the

statement filed by respondents 2 to 5, we are of the view that

periodically steps are taken for construction of the road.

However, it has to be done in accordance with the rules and

procedure. That appears to be the cause for the delay.

Peculiar features of the Island is also a cause for the delay.

6. At this juncture, we also wish to state that earlier,

when some land owners of Agatti Island, Union Territory of

Lakshadweep, objected to the construction of the road,

addressing the issues raised, a Division Bench of this court in

W.A.No.497 of 2021 dated 29.3.2021, ordered thus:

"24. Therefore, assimilating the factual situations in the case at hand and the earlier Division Bench Judgment, it is categoric and explicit that the subject issue raised was in respect of the right of the riparian owners over accreted land, which was prosecuted by the petitioners therein bonafidely, and adjudicated by the honourable Division Bench on its merit and accordingly, the said earlier judgment forms as a clear res judicata under explanation IV to Section 11 of the Code of Civil Procedure to the instant writ petition.

25. Having heard learned counsel for the parties and having perused the materials available on record and the aforesaid legal position, we find no reason to interfere with W.P.(C)No.4808 of 2022

the findings arrived at by the learned Single Judge. We are also of the view that the construction of the road will aid in the overall development of the island. We find no illegality or irregularity in the view taken by the learned Single Judge."

7. Having gone through the steps taken and reiterating

our views made in W.A.No.497 of 2021, we direct the

respondents to take all efforts towards construction of the

road, as prayed for, as early as possible.

Writ petition is disposed of accordingly.

Pending interlocutory applications, if any, shall stand

closed.

Sd/-

S.Manikumar Chief Justice

Sd/-

Shaji P.Chaly Judge vpv W.P.(C)No.4808 of 2022

APPENDIX OF WP(C) 4808/2022

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE E-TENDER NOTICES NO:

F.NO.1/2/2009-AB-IV DATED 02.08.2012 ISSUED BY THE 4TH RESPONDENT.

Exhibit P2 A TRUE COPY OF THE ACKNOWLEDGEMENT TENDER SUBMISSION BY MR.MUHAMMED SALI DATED 8/9/12.

Exhibit P3 A TRUE COPY OF THE LETTER NO: F/1/9/2011-

2012-AB I/909 DATED 01.10.2012 ISSUED BY THE 4TH RESPONDENT.

Exhibit P4 A TRUE COPY OF THE REPORT DATED NIL SUBMITTED BY THE 4TH RESPONDENT.

Exhibit P5 A TRUE COPY OF THE REPRESENTATION DATED 20.10.2016 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

Exhibit P6 A TRUE COPY OF THE REMINDER DATED 17.02.2017 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

Exhibit P7 A TRUE COPY OF THE JUDGEMENT DATED 15.09.2017 IN WPC NO.17550/2017 PASSED BY THIS HONOURABLE COURT.

Exhibit P8 A TRUE COPY OF THE JUDGMENT DATED 30.05.2018 IN WPC NO: 8320/2018 PASSED BY THIS HONOURABLE COURT.

Exhibit P9 A TRUE COPY OF THE PHOTOGRAPHS OF THE EXISTING ROAD.

Exhibit P10 A TRUE COPY NOTIFICATION DATED 06.12.2021 ISSUED BY THE COLLECTOR (L.A), LAKSHADWEEP, A NOTIFICATION OF THE SOCIAL IMPACT ASSESSMENT UNDER SECTION 4(1) OF THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND SETTLEMENT ACT, 2013.

W.P.(C)No.4808 of 2022

Exhibit P11 A TRUE COPY OF THE E-TENDER NOTICE ISSUED BY THE RESPONDENTS FOR THE CONSTRUCTION OF THE JAIL COMPLEX, KAVARATTI ISLAND.

RESPONDENT EXHIBITS

Annexure R2 A A TRUE COPY OF THE LETTER F.NO.106/14/2010-

S/129 DATED 20.01.2011 ISSUED BY THE SUPERINTENDING ENGINEER, LPWD.

Annexure R2 B A TRUE COPY OF THE LETTER F.NO.34/8/2015-LR DATED 06.07.2016 ISSUED BY THE LAND ACQUISITION COLLECTOR.

Annexure R2 C A TRUE COPY OF THE LETTER F.NO.106/16/2017-

S3 (VOL-II)/1891 DATED 07.09.2020 ISSUED BY THE SUPERINTENDING ENGINEER, LPWD.

Annexure R2 D A TRUE COPY OF THE LETTER F.NO.106/13/2014-

S3/173 DATED 27.01.2022 ISSUED BY THE SUPERINTENDING ENGINEER, LPWD.

Annexure R2 E A TRUE COPY OF THE TENDER NOTICE ISSUED AS PER NOTIFICATION F.NO.38/RFP-ROADS/EEKVT/ 2021-P&D/230 DATED 02.03.2022 NOTIFIED BY THE EXECUTIVE ENGINEER, LPWD KAVARATTI ON BEHALF OF THE PRESIDENT OF INDIA.

//TRUE COPY//

P.A. TO JUDGE