Kerala High Court

Sivan vs Union Of India on 21 November, 2024

                                                       2024:KER:88311
WP(C) NO. 1140 OF 2022

                                   1


                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

   THURSDAY, THE 21ST DAY OF NOVEMBER 2024 / 30TH KARTHIKA, 1946

                         WP(C) NO. 1140 OF 2022

PETITIONER:

            S. SIVAN, S/O.CHAPPANI MUTHU, AGED 54 YEARS,
            LAKSHMI NIVAS, NEAR CONTAINER RAIL OVER BRIDGE, AT KM
            3/200 -300 (IPL VPDM LINE), VADUTHALA, PIN - 682023.

            BY ADV. SRI. M.R.JAYAPRASAD


RESPONDENTS:

     1      UNION OF INDIA, REPRESENTED BY CHAIRMAN AND CEO,
            MINISTRY OF RAILWAYS, RAISINA ROAD, NEW DELHI, NEAR THE
            SANSAD BHAVAN, PARLIAMENT HOUSE, PIN - 110 001.

     2      STATE OF KERALA,
            REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF
            GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,
            THIRUVANANTHAPURAM - 695001.

     3      MUNICIPAL CORPORATION OF COCHIN,
            REPRESENTED BY ITS SECRETARY, CORPORATION BHAVAN, PARK
            AVENUE ROAD, ERNAKULAM, KOCHI - 682 011.

     4      KERALA WATER AUTHORITY,
            REPRESENTED BY CHAIRMAN JALA BHAVAN, VELLAYAMBALAM,
            THIRUVANANTHAPURAM - 695033.

 * ADDL.5 THE DIVISIONAL RAILWAY MANAGER(WORKS),
          SOUTHERN RAILWAY, THIRUVANANTHAPURAM, PIN 695 014.
                                                            2024:KER:88311
WP(C) NO. 1140 OF 2022

                                    2


 * ADDL.6 DEPUTY CHIEF ENGINEER/1/CONSTRUCTION/ERNAKULAM,
          SOUTHERN RAILWAY, OFFICE OF CHIEF ADMINISTRATIVE
          OFFICER, (CONSTRUCTION) ERNAKULAM- 682 016,

            * IMPLEADED AS ADDL. R5 AND R6 AS PER ORDER DATED
            19.07.2022 IN I.A. 3/2022 OF WP(C) 1140/2022 N.

** ADDL.7 THE CHIEF PROJECT MANAGER,
          RAIL VIKAS NIGAM LIMITED, MEZZANINE FOOR, THIRUMALA
          RAILWAY STATION, MYLAPORE, CHENNAI- 60004.

** ADDL.8 CHAIRMAN,
          INTERNATIONAL CONTAINER TRANSPORT TERMINAL, KOCHI,
          VALLARPADAM, KOCHI- 682031.

            ** ARE SUO MOTU IMPLEADED AS ADDL. R7 AND R8 AS PER
            ORDER DATED 11.10.2022 IN WPC 1140/2022 N.

            SRI.A.DINESH RAO, SC, RAILWAYS FOR R1
            SRI.C.DINESH, CGC FOR R5
            SRI.BENJAMIN PAUL, SC
            SRI.K.JANARDHANA SHENOY, SC
            SMT.DEVI SHRI R., GP
            ADVS. M/S. ASHA CHERIAN & M.A.THOMAS KUTTY FOR ADDL.R7
            ADVS. M/S.K.B.ARUNKUMAR & GEORGIE JOHNY FOR R4


     THIS   WRIT   PETITION   (CIVIL)   HAVING   BEEN   FINALLY   HEARD   ON
21.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                             2024:KER:88311
WP(C) NO. 1140 OF 2022

                                     3



                        MOHAMMED NIAS C. P. , J.
               ===========================================
                         W. P. (C) No. 1140 of 2022
               ===========================================
                 Dated this the 21st day of November, 2024
                              JUDGMENT

The petitioner has preferred this writ petition for quashing certain

conditions in Annexure 1 in Ext.P6 and also, to pass orders to hand over the

area of 105 meters x 1.5 meters to the Kochi Municipal Corporation

forthwith. There is also a prayer sought to direct the 3 rd respondent to

undertake/coordinate to draw a 63 mm water pipeline by the

4th respondent before concreting/laying tiles in the pathway without

insisting on any payment from the petitioner as demanded in Ext.P10.

2. The writ petitioner purchased the property along with an old

building and reconstructed the same after obtaining a building permit.

At the time of purchase, there was a pathway concreted and maintained by

the Corporation of Kochi on the northern side of the petitioner's property.

Due to the acquisition proceedings initiated by the Railways for the

construction of a container track, the pathway got separated from the

remaining portion of the original pathway which was starting from the

Chittoor Road Electric Post Number V.P.82/1. The ingress and egress to the 2024:KER:88311 WP(C) NO. 1140 OF 2022

property in question became difficult on account of the above development.

3. It was in such circumstances that the petitioner approached this

Court by filing WP(C).No.5861/2020 seeking a direction to the

3rd respondent Corporation to include the pathway in the asset register,

undertake the clearing, construct the pathway through under the electric

line from Chittoor road till the property in Sy. No.939/2-6 lying on the west

of the petitioner's property forthwith. There was also a prayer to direct the

consideration of Ext.P10 representation preferred by the petitioner after

affording an opportunity of hearing to the petitioner and all the

stakeholders within a time limit that may be fixed by this Court. This Court,

by judgment dated 27.2.2020 directed the 3 rd respondent Kochi Municipal

Corporation to consider Ext.P10 after ascertaining the views of the Southern

Railway.

4. Since the judgment was not complied with, the petitioner filed

Contempt of Court Case No. 1574/2020, which was disposed of by judgment

dated 24.11.2020, extending a period of one more month for complying with

the earlier judgment. Ext.P6 decision was taken consequent to the above

direction. The petitioner is aggrieved by the conditions imposed in

Annexure 1 attached to Ext.P6.

2024:KER:88311 WP(C) NO. 1140 OF 2022

5. The conditions imposed in Annexure 1 attached to Ext.P6 are as

follows:

"

1. The approval given is for a period of 2 years. After which Corporation of Cochin may find out an alternate pathway.

2. An undertaking may be submitted by the Kochi Corporation that it will not claim for the ownership of land (path way) now or in future.

3. They may seek permission from Railway whenever they need to carry out major works.

4. Kochi Corporation shall not permit any third party to lay any cables, Pipe line etc. in the pathway an shall not provide advertisement boards etc.

5. Railway will have the right to block the pathway temporarily if it is required for Railways to carry out maintenance or repair to Bridge no. VR5 at this location."

6. The learned counsel for the petitioner submits that approval is

granted only for two years after which the Corporation of Kochi was

directed to find out an alternate path. He submits that the same is an

impossibility. He also attacked Condition No.4 which directed the

Corporation not to permit any third party to lay any cable, pipeline etc in

the pathway. He submits that even drawing of a water/line by the Kerala

Water Authority or by the Kerala State Electricity Board or repairing them

by the above authorities will be prevented on account of Condition No.4.

7. After hearing the learned counsel on all sides, and noticing that the

petitioner does not have any other access than the one for which permission

is now granted, limiting the approval for two years and directing the

Corporation to find out an alternate pathway being a near impossibility, the 2024:KER:88311 WP(C) NO. 1140 OF 2022

said condition limiting the approval to two years is accordingly quashed.

8. As far as the 4th condition is concerned, the conditions in Ext.P6

dated 30.10.2020 which can potentially prevent even the Kerala Water

Authority or the Kerala State Electricity Board also will cause a lot of

inconvenience to the petitioner as they are all public utility services.

Condition No.4 has therefore to be understood as limiting third parties from

putting up cables or pipelines, etc. and not either by the Kerala Water

Authority or the Kerala State Electricity Board.

9. The learned Standing Counsel for Southern Railways submits that it

will be open to the petitioner to seek for permission from the Railways for a

'way leave facility'.

10. It will be open to the petitioner to apply for the same in case he

gets better conditions than what is granted under Ext.P6. It will be for the

petitioner to avail the above option suggested by the learned counsel for the

Railways in case he feels that the same would be more advantageous to him.

The Writ Petition is disposed of as above.

Sd/-

MOHAMMED NIAS C. P., JUDGE

MMG 2024:KER:88311 WP(C) NO. 1140 OF 2022

APPENDIX OF WP(C).NO.1140/2022

PETITIONER'S ANNEXURES:

ANNEXURE1 TRUE COPY LETTER FORWARDING THE COPY OF JUDGMENT TO THE FIRST RESPONDENT DATED 12-06-2020 SUBMITTED BY THE 3RD RESPONDENT AS ANNEXURE - P3 (1).

ANNEXURE2 TRUE COPY OF ROUGH SKETCH PRODUCED ALONG WITH THE REPLY NOW MODIFIED WITH PROVIDING FIGURES INSTEAD OF COLOR MARKING AS ANNEXURE- P4 (1).

ANNEXURE3 COPY OF LETTER NO. V/W 274/ COURT CASE DATED 30- 10- 2020 OF 1ST RESPONDENT WITH SKETCH.

EXHIBIT 1 TRUE COPY OF THE REQUEST GIVEN BEFORE THE 3RD RESPONDENT DATED 15- 02- 2020

EXHIBIT 2 TRUE COPY OF THE JUDGMENT DATED 27- 02- 2020

EXHIBIT 3 TRUE COPY OF THE AFFIDAVIT FILED ON BEHALF OF THE 3RD RESPONDENT IN CON. CASE CIVIL NO. 19-

                         20 1574/ 2020

EXHIBIT 4                TRUE COPY OF THE REPLY           FILED   BY    THE
                         PETITIONER DATED 09-11-2020.

EXHIBIT 5                COPY OF THE COUNTER AFFIDAVIT OF THE 1ST RES

EXHIBIT 6                COPY OF ADDITIONAL AFFIDAVIT OF THE 3RD RESP.

EXHIBIT 7                COPY OF THE JUDGMENT DATED 24-11-2020.

EXHIBIT 8                COPY OF THE INFORMATION FURNISHED DATED 25-