The court held that the petitioner is not entitled to construct without permission. It directed the Assistant Executive Engineer to inspect and decide on access provisions ensuring free water flow within two weeks.
Petitioner directed to file application for site inspection within two weeks; Exhibit P4 kept in abeyance.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
MONDAY, THE 28TH DAY OF NOVEMBER 2016/7TH AGRAHAYANA, 1938
WP(C).No. 29152 of 2013 (T)
PETITIONER:
THANKAMANIYAMMA, W/O P.D.RADHAKRISHNAN NAMBOOTHIRI, PATTAMANA ILLAM, CHAKKULATHKAVU, NEERETTUPURAM P.O., THIRUVALLA - 689 571.
BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR)
RESPONDENTS:
1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2. DISTRICT COLLECTOR, PATHANAMTHITTA 689 545.
3. REVENUE DIVISIONAL OFFICER, THIRUVALLA - 689 501.
4. THE ASSISTANT EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT (ROAD SECTION), THIRUVALLA - 689 501.
BY SR. GOVERNMENT PLEADER SRI.K.J.MANURAJ
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PJ
WP(C).No. 29152 of 2013 (T)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 : TRUE COPY OF THE SALE DEED NO. 445/2013 OF SRO THIRUVALLA EXHIBIT P2 : TRUE COPIES OF THE PHOTOGRAPHS SHOWING THE CONSTRUCTION OF ACCESS ROAD BY THE PROPERTY OWNERS EXHIBIT P3 : TRUE COPY OF THE APPLICATION DATED 09.07.2013 OF THE PETITIONER TO THE 4TH RESPONDENT EXHIBIT P4 : TRUE COPY OF THE NOTICE DATED 15.11.2013 ISSUED BY THE 4TH RESPONDENT ON 22.11.2013
RESPONDENT(S)' EXHIBITS
NIL.
/ TRUE COPY /
P.S. TO JUDGE
PJ
K. Vinod Chandran, J
W.P.(C) No.29152 of 2013-T
Dated this the 28th day of November, 2016
JUDGMENT
The petitioner is aggrieved with the notice issued against
the petitioner under Exhibit P4. The petitioner's contention is that the petitioner built an approach road over the drainage canal, which is existing on the side of the Kayamkulam - Thiruvalla Highway. The petitioner is said to have filed an application for construction of an
approach road as per Exhibit P3 and proceeded with the construction, as is indicated in the photographs at page 2 of Exhibit P2. The petitioner's contention is that even going by the photographs at page 1 of Exhibit P2, the other owners of properties on the side of the trench, which is lying adjacent to the Highway, have built such approach roads into their properties.
Thiruvalla has filed a counter affidavit, wherein it is specifically denied that the drainage was formed due to the elevation of the Highway in the recent years. It is also admitted that there are adjacent owners who have constructed road through the PWD land for using the same
WP(C) No.29152 of 2013
as access to their property. The respondent also admits that these were done without any permission and had been used for long and, hence, the Department has not proceeded against these persons for reason of there being no records available. As far as the petitioner, it is a recent construction made by filling with quarry waste. Though the petitioner relies on Exhibit P3 application, the Department specifically states that no such application has been filed. The counter affidavit goes on to say that the adjacent property also belongs to the petitioner's family and hence there is access to the property through the Kayamkulam - Thiruvalla State Highway.
WP(C) No.29152 of 2013
within two weeks from the date of receipt of a certified copy of this judgment. Exhibit P4 shall be kept in abeyance till orders are passed in the application. The Assistant Executive Engineer, on receipt of such application, shall conduct a site inspection and decide whether access can be provided to the petitioner's property and the manner in which the same has to be constructed. It is made clear that this will not necessarily declare a right on the petitioner to have such an access, which would be decided by the Assistant Executive Engineer. If such right is decided in favour of the petitioner, then necessarily the Assistant Executive Engineer could direct construction to be made in a manner without affecting the drainage and if not complied with, the Assistant Executive Engineer can proceed with Exhibit P4.
The writ petition is disposed of as above. No costs.
Sd/-
K.Vinod Chandran Judge.
Vku/-
[ true copy ]
2 issues framed by the court
Whether a petitioner is entitled to construct an approach road over PWD drainage canal without prior permission.
Whether the order directs a site inspection for providing legally sanctioned access to the petitioner's property.
Thankamaniyamma
State of Kerala
District Collector, Pathanamthitta
Revenue Divisional Officer, Thiruvalla
Assistant Executive Engineer, Public Works Department
K.Vinod Chandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
