Kerala High Court

Rajagopalan Parakkal vs Kochi Metro Rail Limited on 18 January, 2023

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
              THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                     &
                  THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
        Wednesday, the 18th day of January 2023 / 28th Pousha, 1944
                             WA NO. 95 OF 2023

    AGAINST JUDGMENT DATED 07.12.2021 IN WP(C) 17815/2020 OF THIS COURT

APPELLANT/PETITIONER:

  1. RAJAGOPALAN PARAKKAL, S/O.NARAYANA MENON , LAKSHMI, ASHOKA ROAD,
     KALOOR P.O., KOCHI-682 017.
  2. RAJALAKSHMI RAJAGOPAL, W/O.RAJAGOPALAN PARAKKAL, LAKSHMI, ASHOKA
     ROAD, KALOOR P.O., KOCHI-682 017.

BY ADVS.M/S. C.DILIP & T.U.ZIYAD

RESPONDENTS/RESPONDENTS:

  1. KOCHI METRO RAIL LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, JLN
     METRO STATION, 4TH FLOOR, KALOOR, KOCHI-682 017.
  2. THE MANAGING DIRECTOR, KOCHI METRO RAIL LIMITED, JLN METRO STATION,
     4TH FLOOR, KALOOR, KOCHI-682 017.
  3. THE DISTRICT COLLECTOR, CIVIL STATION, ERNAKULAM-682 030.
  4. PUBLIC WORKS DEPARTMENT, ROADS DIVISION, REPRESENTED BY THE
     EXECUTIVE ENGINEER, SEAPORT-AIRPORT ROAD, THRIKKAKARA, KOCHI-682
     021.
  5. THRIKKAKARA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KAKKANAD,
     KOCHI-682 030.
  6. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT
     SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.

BY ADV.SRI.BRIJESH MOHAN FOR R1 & R2

SENIOR GOVERNMENT PLEADER SRI.V.TEKCHAND FOR R3,R4 & R6

STANDING COUNSEL SRI.S.JAMAL FOR R5

     Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to pass an order directing 1st Respondent to stop further construction at
Seaport-Airport Road, pending disposal of the above writ appeal.
     This Writ Appeal coming on for orders along with connected case on
18/01/2023 upon perusing the appeal memorandum, the court on the same day
passed the following:

                                                                      P.T.O.
 EXT.P1:THE TRUE COPY OF THE DOCUMENT NO.1578/91 DATED 4/11/1991

OF THRIKKAKARA SUB REGISTRY.

EXT.P5:THE TRUE COPY OF THE REPRESENTATION

DATED 20.08.2020 SUBMITTED BEFORE 2ND RESPONDENT.

                               ---
                        S. Manikumar, C.J.
                                &
                        Shaji P. Chaly, J.
                =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                   W.A.Nos.95 & 98 of 2023
                =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
            Dated this the 18th day of January, 2023

                                ORDER

S. Manikumar, C.J.

Mr.Rajagopalan Parakkal and another have filed W.P.

(C)No.17815 of 2020 for the following reliefs:

"(i) to issue a writ of mandamus or any other writ, order or direction directing Respondents 1 & 2 to stop all types of construction activities through the eastern side of the property covered by Exhibit P1 reducing the width of road access to the said property;

(ii) to issue a writ of mandamus or any other writ order or direction directing Respondents 1 & 2 not to carry out any type of construction activities affecting the enjoyment of petitioners over the property under Exhibit P1, without initiating proceedings under Land Acquisition Act;

(iii) to call for the records relating to the construction carried on by 1st respondent on the eastern side of the property covered by Exhibit P1 at seaport - airport road;

(iv) to issue a writ of mandamus or any other writ order or direction directing Respondent No.2 to consider Exhibit P5 representation and pass appropriate orders thereon, after affording an opportunity to the petitioners to submit their W.A.Nos.95 & 98 of 2023

grievance, within a time as may be specified by this Hon'ble court;

(v) to grant such other relief as this Hon'ble Court may deem fit in the circumstances of the case.

(vi) to issue a writ of mandamus or any other writ, order or direction commanding first respondent to remove the newly constructed wall on the western side of seaport- airport road restricting direct entry to the property of the petitioners covered by Ext. P1 from the seaport - airport road."

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

as under:

2.1. Petitioners are joint owners of 14 cents of land in

Kakkanad Village and Exhibit P1 is their title deed. The

property under Exhibit P1 abuts seaport-airport road on the

eastern side. As part of construction of Kochi Metro Rail

project, ground clearing works of a retaining wall is presently

progressing on the eastern side of the property of the

petitioners. If the ongoing construction is allowed to continue,

the width of the road access to their property will be W.A.Nos.95 & 98 of 2023

considerably reduced and it will affect the ingress and egress

to the property.

2.2. Any type of construction activities on behalf of

respondent No.1 affecting the rights and enjoyments of a land

owner requires proceedings under the Land Acquisition Act and

for the aforesaid construction, no such proceedings are

initiated.

2.3. Though the petitioners submitted Exhibit P5

representation before the Managing Director, Kochi Metro Rail

Limited, respondent No.2, the same remains as unattended for

no reasons.

3. On similar prayers, Mr.Libu George and another have

filed W.P.(C)No.17814 of 2020.

4. After evaluating the pleadings and the submissions,

writ court, vide common judgment in W.P.(C)Nos.17815 and

17814 of 2020 dated 07.12.2021, ordered thus:

"6. When I evaluate the afore submissions and go through the Joint Inspection Report placed before this W.A.Nos.95 & 98 of 2023

Court, it is without doubt that for the petitioners in these two writ petitions, the access to the main Highway is now possible through a Service Road. Of course, Sri.T.U.Ziyad - learned counsel for the petitioner in W.P.(C)No.17815 of 2020, complained that the width of the Service Road is only 3 meters and this is woefully insufficient. However, it must be borne in mind that it is the specific case of Sri.Jaju Babu - learned Senior Counsel, that there was no Service Road at all in the past and it is only because this Court intervened that a space for the same has been carved out, so that the petitioners need not have any further cause of worry.

7. That apart, if the present complaint of the petitioners is that the width of the Service Road is less, then the only other method would be to acquire their properties for its widening, because I cannot let the width of the proposed Highway be in any manner reduced, so as to accommodate the personal grievances of a few land owners. It is now well settled, without requirement for restatement, that when there is a clash between personal grievances and a public cause, it would be the latter that would prevail.

In the afore circumstances, recording the afore extracted conclusions in the report placed before me by the KMRL, I close this writ petition, directing them and the PWD to ensure that the suggestions in the said report are implemented effectively and implicitly, so that the petitioners would not obtain any further grievance in future. W.A.Nos.95 & 98 of 2023

As far as the petitioners in W.P.(C)No.17815 of 2020, are concerned, I leave them full liberty to approach the PWD with any other feasible suggestions, as regards the access they require to their property, which shall then be considered by its competent Authority, taking note of the technical and practicable attributes of the same and after verifying whether it would be possible to be implemented without, in any manner, disturbing the Project."

Being aggrieved, instant writ appeals are filed.

5. On this day, when the matter came up for hearing,

Mr.Brijesh Mohan, learned counsel appearing for Kochi Metro

Rail Limited (respondents 1 and 2) submitted that the

construction of the service road, as well as the retaining wall is

over and, therefore, the project of construction and

maintenance of service road is completed.

6. Mr.Brijesh Mohan, learned counsel appearing for Kochi

Metro Rail Limited (respondents 1 and 2) is directed to file a

statement as regards the above submissions and also the

present stage of construction along with a sketch.

W.A.Nos.95 & 98 of 2023