The Court dismissed a writ petition challenging the District Collector's order to demolish a bus waiting shed. Upholding the administrative order, the Court held that the structure was illegal as no statutory permission was secured for construction on government land.
The writ petition was dismissed; the order directing demolition was upheld.
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 SHAJI P.CHALY
FRIDAY, THE 9TH DAY OF DECEMBER 2016/18TH AGRAHAYANA, 1938
WP(C).No. 30433 of 2016 (D)
PETITIONER(S)/PETITIONERS:
1. VISWAMBHARAN C.K.
S/O.PARAMESWARAN NAIR, CHAKKAMKANDATHU KIZHAKKEKARA, P.O.PERINGANNUR, PATTAMBI TALUK,
PALAKKAD DISTRICT.
2. SIVADAS
S/O.SANKARAN, DUDRGA NIVAS, P.O.PERINGANNUR, PATTAMBI TALUK, PALAKKAD DISTRICT.
BY ADV. SRI.P.JAYARAM
RESPONDENT(S)/RESPONDENTS:
1. THE DISTRICT COLLECTOR PALAKAKD - 678 001.
2. THE SUB COLLECTOR OTTAPALAM - 679 101.
3. THIRUMITTAKODE GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, P.O.CHATHANNUR, PALAKKAD DISTRICT, PIN - 679 535.
4. THE SUB INSPECTOR OF POLICE CHALISSERY, PIN - 679 536.
5. ASSISTANT EXECUTIVE ENGINEER ROADS DIVISION, PUBLIC WORKS DEPARTMENT, SHORANUR, PIN - 679 121.
6. MUKUNDAN K.V. S/O.LATE GOVINDAN NAIR, KATTIRI HOUSE, PERINTHANNUR POST, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN - 679 535.
-2-
WP(C).No. 30433 of 2016 (D)
7. THE TAHSILDAR PATTAMBI - 679 303.
8. SUB REGIONAL TRANSPORT OFFICER PATTAMBI, PIN - 679 303.
9. STATE OF KERALA REPRESENTED BY THE SECRETARY, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
10. STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF TRANSPORTS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
R6 BY ADVS. SRI.SANTHEEP ANKARATH . SRI.ARUN MATHEW VADAKKAN R3 BY ADV. SRI.T.A.RAJAGOPALAN BY GOVERNMENT PLEADER S.KANNAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.11.2016, THE COURT ON 09-12-2016 DELIVERED THE FOLLOWING:
WP(C).No. 30433 of 2016 (D)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P8 PHOTOGRAPHS SHOWING THE LOCATION OF THE WAITING SHED.
RESPONDENT(S)' EXHIBITS: NIL
//TRUE COPY//
P.A. TO JUDGE
dlk
SHAJI P. CHALY, J.
W.P.(C) No.30433 of 2016
Dated this the 9th day of December, 2016
JUDGMENT
This writ petition is filed by the petitioner seeking to
quash Ext.P1 order issued by the first respondent dated 6.7.2016, whereby the first respondent has directed to demolish the illegal waiting shed constructed by the petitioners. The said order was passed on the basis of a direction issued by this Court in W.P.(C)No. 13417/2016 dated 5.4.2016, evident from Ext.P2.
Petitioners are residents of Peringannoor in Pattambi Taluk. They are the users of the bus waiting shed near Maha Ganapathy Temple at Peringannoor . The bus waiting shed is situated on the Kargaputhur-Ezhumangadu road, which is a PWD road. According to the petitioners, the bus waiting shed was built by the local public including the petitioner and others using their own funds. The shed was constructed in the
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year, 2013. The construction was done with the consent and concurrence of the local authority and also PWD. As there was no objection from the authorities, petitioners and others felt not necessary to obtain a written permission. All the residents and other locals had supported the cause. The shed was built publicly during the day hours taking a time of two to three weeks. The waiting shed is absolutely necessary for the users of the public road . It is also stated, waiting shed did not create any obstruction or nuisance to anyone around. But the same had only augmented the users of the public road. The structure was built on the road puramboke between the road and the private property. The property of the 6th respondent is near to the shed. The 6th respondent quite surprisingly, has put up a gate just behind the waiting shed, after the shed was inaugurated and became fully functional.
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another public road going from Peringannur-velladikunnu. However, the 6th respondent filed complaints before different authorities that, the waiting shed created obstruction to his access to public road. The authorities on enquiry found his complaint absolutely baseless as the shed caused no obstruction to his access. It was upon, failing to impress the authority to remove the structure, 6th respondent has approached this Court and secured Ext.P2 judgment. It is also contended that the petitioner or other affected persons were not heard before passing Ext.P2 order. On the basis of the direction issued, first respondent has issued necessary direction to the second respondent to demolish the shed as per Ext.P1 order and in compliance with the said direction, the waiting shed is already removed on 15.6.2016 on a war footing basis and that too without serving the order on anyone interested on the waiting shed. According to the petitioner, Ext.P1 order is illegal arbitrary and irrational, the same being constructed by the petitioner and public at large for the convenience of the public in the puramboke road in between the property of the 6th respondent and the public
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road.
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and mostly he and his family were away in other States, on account of the military service rendered by the 6th respondent. It is also stated that, demolished shed is just in front of the gate at the eastern side of the property of the 6th respondent. However, residents of the locality have submitted mass petition dated 8.7.2016 requesting that the demolished waiting shed may be restored, and the demolition was done by the first respondent pursuant to a direction issued by this Court to consider the complaint submitted by the 6th respondent. It is also stated, Panchayath has no objection whatsoever for constructing a waiting shed at a convenient and noncontroversial place. Petitioner has filed a reply to the counter affidavit filed by the third respondent reiterating the stand adopted in the writ petition. It is also contended therein that, even though the local authority and the PWD were approached by several members of public to construct the bus waiting shed, it was not done and it was at that juncture the public organized themselves to construct a shed with the consent and concurrence of the local authority and now, local authority cannot be allowed to feign ignorance
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on the construction of the said shed. That apart, it is stated, even though the waiting shed is situated by the side of the PWD road, the local authority had the right to maintain the road and the right to maintain includes the erection of bus shelter to promote the use of the road by the public.
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right under law to construct a waiting shed in a place at their choice, be that a puramboke belonging to the Government. The concerned department of the Government alone has the power and authority to put up any structure in the property owned by the department. The contention advanced by the petitioner is that such a course of action was adopted by the petitioner, when the petitioner failed to secure necessary orders from the statutory authorities to have a waiting shed for the benefit of the public at large. The sole document produced before this Court is a representation made by the public dated 8.7.2016 to the third respondent Panchayath. However, in the counter affidavit filed by the Panchayth it is stated that, Panchayath has no right or authority to grant permission to the petitioners to construct any waiting shed since the property by the side of the PWD road belongs to PWD. Therefore., on evaluation of the totality of the circumstances it is clear, there is no permission secured by the petitioners from any of the statutory authority to have a construction by the side of the PWD road. Mere submission of a representation before the Panchayath is not an authority
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enabling the petitioner or any others to put up construction in the land belonging to the Government.
were taken note of by the first respondent while passing Ext.P1 order. First respondent was satisfied that the waiting shed constructed is a illegal one and based on the same only the direction was issued by the second respondent to demolish the structure. The totality of the circumstances, discernible from the pleadings put forth by the respective parties and reckoning other circumstances from the documents produced, I am of the considered opinion that Ext.P1 order passed by the first respondent does not suffer from vice of arbitrariness, illegality or unfairness, warranting interference of this Court invoking power under Article 226 of the Constitution of India.
Necessarily, writ petition has to fail, and accordingly, it is dismissed.
Sd/- SHAJI P. CHALY,JUDGE
dlk/3/12/
2 issues framed by the court
Whether the order directing demolition of an illegal bus waiting shed on government property warrants judicial interference.
Whether the First Respondent's order was arbitrary, illegal, or unfair.
VISWAMBHARAN C.K.
SIVADAS
THE DISTRICT COLLECTOR PALAKKAD
THE SUB COLLECTOR OTTAPALAM
THIRUMITTAKODE GRAMA PANCHAYAT
THE SUB INSPECTOR OF POLICE CHALISSERY
SHAJI P. CHALY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
