IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 5038 of 2009(S)
1. BABY JOSEPH, AGED 44 YEARS,
... Petitioner
2. BABY JOHN, S/O. JOHN,
3. RAMACHANDRAN NAIR,
Vs
1. THE STATE OF ERKALA, REP. BY ITS
... Respondent
2. THE CHIEF ENGINEER,
3. THE EXECUTIVE ENGINEER,
4. THE SERVICE CO-OPERATIVE BANK LTD.
5. SRI. TOMY VALLAMATTOM,
6. V.V. KURIAN, VALLAMATTOM HOUSE,
7. THE ARAKKUZHA GRAMA PANCHAYATH,
For Petitioner :SRI.DINESH R.SHENOY
For Respondent :SRI.T.RAJESH
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :15/06/2010
O R D E R
J.Chelameswar, C.J. & P.N.Ravindran, J.
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W.P.(C) No.5038 of 2009
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Dated this the 15th day of June, 2010
JUDGMENT
J.Chelameswar, C.J.
The writ petition is filed with the prayers as follows:
a) A writ of certiorari or any other writ, order or
direction quashing Exhibit P8 issued by the 2nd respondent
and Exhibit P11 NOC granted by the 3rd respondent.
b) A writ of certiorari or any other writ, order or
direction quashing Exhibit P12 permit dated 23/1/2009
issued by the Arakuzha Grama Panchayat.
c) A writ of mandamus directing the respondents to
maintain the bus bay/taxi stand at the Arakuzha Junction,
proper abutting the Thottakkara – Marika (Arakuzha Church
Road) as per Exhibit P3 or retain the bus bay there and
shift the taxi stand to the road margin in from the offices of
respondents 4 and 7.”
2. The three petitioners who filed the instant writ
petition claim that the writ petition is filed in public interest.
3. The factual dispute is as follows: The first
respondent State and its officers took a decision to construct a
twenty metres wide road by widening the existing Muvattupuha –
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Pandappilly Road and for the said purpose they wanted to
acquire some pieces of land on either side of the proposed
road. Such a decision, it appears, was taken in the year 1999.
The alignment and design of the proposed road was also
prepared under Ext.P3. It appears from the materials before
this Court in the instant writ petition that as per the original
alignment prepared, the bus bay and taxi stand are required
to be located in a particular point as indicated in the said
design.
4. However, subsequent to the preparation of the
abovementioned design, the 4th respondent society purchased
a piece of property abutting the road where the bus bay and
taxi stand mentioned above were required to be located as per
the original plan of the road alignment. The 5th and 6th
respondents are the members of the governing body of the 4th
respondent society. Respondents 4 to 6 made a
representation to the State that the property referred to above
be exempted from acquisition for the purpose of widening of
the road. The State considered the representation and thought
it fit to exempt the acquisition of the property of the 4th
respondent and in view of such a decision the alignment of the
WP.(C) No.5038 of 2009
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road was slightly altered shifting the bus bay and taxi stand
from the original location indicated in Ext.P3.
5. The various factors which weighed with the State
for taking such a decision are stated in paragraph 7 of the
counter affidavit filed on behalf of the third respondent which
reads as follows:
“What the Arakuzha Grama Panchayat and the
PWD authorities had done is, to shift the bus bay and
taxi stand to a place which is much more convenient
for the general public. This has been done after
detailed scientific studies. Now the petitioner had
approached this Hon’ble Court saying that his proposal
is better than the study conducted by the qualified
Engineers of the department and that itself is sufficient
to discard the contentions of the petitioner. The
petitioner cannot seek any writ for substituting the
ideas in place of ideas formulated by the qualified
Engineers. There is a direction of this Hon’ble Court
not to make any alteration in the already approved
alignment and to maintain 20 mtrs. width throughout.
Therefore departmental authority is not in a position to
make any alteration in the alignment of the road.
What the maximum can be done for minimizing traffic
congestion and for making the use of road smooth is
to shift the bus bay and taxi stand, parking place, etc.
It is a common knowledge that if the taxi stand is on
one side and the bus bay on the other side that too in
a crowded junction will definitely defeat the purpose
for which the road is being formed.”
WP.(C) No.5038 of 2009
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6. Challenging the said decision the instant writ
petition is filed purporting to be one in public interest.
Admittedly, the petitioners do not lose any property pursuant
to the altered alignment of the road. The only submission
made by the learned counsel for the petitioners is that the
alignment of the road could not have been changed at the
instance of respondents 4 to 6.
7. We regret our inability to agree with the
submission made by the learned counsel for the petitioners.
The 4th respondent is a society and the property of the 4th
respondent is used for the benefit of the members of the
society as a class and not for the individual benefit of anyone
of the members of the society. In such a case, on the basis of
a representation made by the society and its members, if the
State comes to the conclusion that the property of the society
deserves to be exempted from the acquisition process, the
State was essentially weighing the competing claims of public
interest, one served by the activity of the 4th respondent
society, and the other, the requirement of acquiring that
particular piece of property for widening the road. In the
process, the State comes to the conclusion that both the public
WP.(C) No.5038 of 2009
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purposes can be subserved by exempting the property of the
4th respondent society from acquisition and shifting the
alignment of the road slightly, a decision, according to our
view, is totally within the jurisdiction of the State with which
we see no reason to interfere.
8. In the background of the abovementioned fact
we are of the opinion that the instant writ petition is a sheer
abuse of the process of public interest litigation and the writ
petition is therefore dismissed with costs quantified at Rupees
three thousand to be paid to the Kerala Legal Services
Authority within a period of two weeks from today failing which
the Secretary of the Kerala Legal Services Authority will be at
liberty to initiate appropriate proceedings for recovery of the
abovementioned amount.
J.Chelameswar,
Chief Justice
P.N.Ravindran,
Judge
vns