IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 30245 of 2006(A)
1. P.V. VARGHESE, S/O.VARKEY,
... Petitioner
Vs
1. THE SUPERINTENDING ENGINEER,
... Respondent
2. THE EXECUTIVE ENGINEER,
3. THE ASSISTANT EXECUTIVE ENGINEER,
4. SMT.C.P. PATHUMMA, ASSISTANT EXECUTIVE
5. THE ASSISTANT ENGINEER, NH (R),
For Petitioner :SRI.K.RAMAKUMAR
For Respondent :SMT.KOCHUMOL KODUVATH
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
Dated :06/12/2006
O R D E R
C.N.RAMACHANDRAN NAIR, J.
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W.P.(C)NO.30245 OF 2006
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Dated this the 6th day of December 2006
JUDGMENT
Writ petition is filed for a direction to respondents to
implement Exts.P12 and P15 orders issued by the second and
third respondent respectively to demolish a slab over the
drainage canal connecting national high way on the one side and
landed property on the other side. Petitioner’s case is that
petitioner is the owner of one side of the property and is entitled
to get the slab over the drainage canal connecting petitioner’s
property to high way demolished.
2. Government Pleader produced photograph and a sketch
showing slab over the drainage canal connecting the main land
to the national high way. According to the Government Pleader,
the slab is used by the public for going from the road to the
private bus stand.
3. The counsel appearing for the additional respondents
filed Ext.R6(B) order issued by the RDO under Section 133 of
Cr.P.C. upholding public right of way over the slab. The counsel
for additional respondents also relied on Ext.R6(d) judgment in
W.P.(C)NO.30245 OF 2006
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appeal issued by Additional District Court declaring right of way
and granting permanent injunction against demolition of slab.
The case of the additional respondent is that the petitioner
suppressed material facts and filed this writ petition to get the
slab over the drainage canal demolished with the assistance of
PWD. It is seen from Exts.P8, P7 and P12 issued by PWD
authorities that they were either not aware of the order of the
Sub Divisional Magistrate or of the Civil Court declaring public
right of way over the slab. Ext.R6(a) produced by additional
respondent shows that there is a panchayat road connecting the
high way through the very same slab. On the face of it, I am
convinced that the PWD authorities have initiated action without
verifying factual position and without knowing the order of Sub
Divisional Magistrate, Panchayat records and the decree passed
by Civil Court. Moreover, if the photograph and the sketch
produced by the Government Pleader represent true picture of
the area then the action proposed by the PWD authorities is
absolutely illegal, arbitrary and against public interest, more so
when there is no scheme for widening of the road. The orders
W.P.(C)NO.30245 OF 2006
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produced by petitioner only serves destruction of the slab over
drainage canal which is under use by public as is evident from
the documents produced by additional respondents.
4. In the circumstances, the orders of the PWD authorities
sought to be enforced by the petitioner under direction of this
court are unenforceable. It is for the petitioner to challenge
order of the Sub Divisional Magistrate and the order of the Civil
Court and get his exclusive right over the slab established and
then approach PWD authorities.
5. Writ petition is disposed of declaring that the PWD
authorities in this case have no right what so ever to remove the
slab except with the approval of the Sub Divisional Magistrate
and the Panchayat.
Writ petition is disposed of as above.
C.N.RAMACHANDRAN NAIR, JUDGE
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