Allowed

P N Unnikrishnan., v. State of Kerala

Kerala HC22 Mar 2022WP(C)/2708/2022

Case brief

AI extract

What is this about?

The High Court set aside an order rejecting a proposal to straighten a sharp road curve that endangered wild elephants. The court directed the primary respondent to reconsider the petitioner's offer to surrender land, consider specific earlier directions, and decide within one month after hearing all stakeholders.

What did the court decide?

Impugned order (Exhibit P9) set-aside. Respondent No. 1 directed to reconsider the proposal to straighten the road curve by hearing all stakeholders and deciding within one month.

P N Unnikrishnan., Vs State of Kerala — Writ and Judicial Review | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

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TUESDAY, THE 22^ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944

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WP(C) NO. 2708 OF 2022

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PETITIONER:

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P N UNNIKRISHNAN, AGED 69 YEARS S/O.K.P NEELAKANTAN, ARANYAKAM, VELAMPADIKA, PALOOR P.O., (VIA), MANNARKKAD, PALAKKAD DISTRICT 678 582. BY ADVS. DAISY A.PHILIPOSE JAI GEORGE

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF PUBLIC WORKS, SECRETARIAT, THIRUVANANTHAPURAM 695 001.

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2 THE DISTRICT COLLECTOR, CIVIL STATION, PALAKKAD 678 582.

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3 THE PROJECT DIRECTOR, KERALA STATE TRANSPORT PROJECT, TC 11/339, SREEBALA BUILDING, KESTON ROAD, NATHANCODE, KOWDIAR, (PO), THIRUVANANTHAPURAM 695 003.

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4 THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, KERALA STATE TRANSPORT PROJECTS (PWD) DIVISION, KUTTIPURAM, MALAPPURAM DISTRICT 679 571.

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5 THE DIVISIONAL FOREST OFFICER, MANNARKKAD DIVISION, MANNARKKAD (PO), PALAKKAD DISTRICT 678 582. SRI.S.KANNAN, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 2708 OF 2022

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JUDGMENT

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Dated this the 22^nd day of March, 2022

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This writ petition is filed with the following prayers:-

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“(i) Issue a writ of certiorari, calling for the records relating to Exhibit-P9 and quash the same.

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(ii) Issue a writ of mandamus, directing the respondents No.1 to 4 to straighten the sharp zigzag blind curves passing through the petitioner's property between 4.5 kms and 5.5 kms of the Thavalam-Mulli Road to avoid wild life accidents, as suggested in Exhibit-P2.

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(iii) Grant such other reliefs that may be deemed fit to this Honourable court in the interest of justice.”

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The grievance of the petitioner was considered by

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this Court in detail in Ext.P8 judgment. The petitioner is a permanent resident of Padavayal Panchayat in Palakkad District. He approached this Court seeking to direct respondents to straighten the sharp zigzag blind bends between 4.5 Km and 5.5 Km of Thavalam – Mulli road passing through the petitioner's property to avoid wildlife accidents as suggested in Ext.P2.

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The petitioner states that the petitioner owns 8 Acres

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WP(C) NO. 2708 OF 2022

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of property in Padavayal Village in Mannarkkad Taluk of Palakkad District. An elephant corridor is passing through the land. According to the petitioner, the sharp curve on the existing road bordering the petitioner's property is a threat to the wild animals, while they cross the road. The petitioner produced Ext.P10 Google map which would show the sharp curve. According to the petitioner, he kept apart about 2 Acres of his land for the transit of wild elephants. The petitioner also states that the petitioner is willing to surrender requisite land for straightening the curve of the road, so that wild animals are not made subjects of motor accidents.

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Considering the bonfides of the petitioner and also considering the facts and circumstances of the case, this Court passed the following order:-

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“5. I have heard the learned counsel for the petitioner and the learned Senior Government Pleader representing the respondents.

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6. The protection of wildlife is duty of the State. The policy and object of the wildlife laws have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological imbalances introduced by the depredations inflicted on

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WP(C) NO. 2708 OF 2022

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nature by man. The preservation of the fauna and flora, some species of which are getting extinct at an alarming rate, has been a great and urgent necessity for the survival of humanity. Here is a case where the sharp bend on the Thavalam - Mulli road is causing a serious threat to the wild elephants while they pass through the existing elephant corridor. The petitioner has come forward to surrender requisite property to avoid the threat to the wildlife.

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7. In the circumstances, it will be only proper that the respondents consider the proposal/offer made by the petitioner, in accordance with law. The petitioner has already approached the respondent by filing Ext.P4 representation. Therefore, this Court is of the considered opinion that the writ petition can be disposed of directing the 1st respondent to consider Ext.P4 representation in consultation with all the stakeholders to the issue.

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8. The learned Senior Government Pleader would submit that the Executive Engineer, Kerala State Transport project, PWD Division, Kuttippuram will be the competent officer who is in charge of upgradation of Thavalam - Mulli road and his involvement in the process would be helpful to arrive at a proper decision.

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In the circumstances, the writ petition is disposed of directing the 1^st respondent to consider Ext.P4 representation filed by the petitioner wherein the petitioner has offered to surrender his land for straightening the road in order to have a safe elephant corridor in the area. The 1^st respondent shall hear the petitioner and other stakeholders including the Executive Engineer, Kerala State Transport Project, PWD GH OF Division, Kuttippuram, and take a decision in the matter within a period of six weeks. The 1^st respondent will be at

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WP(C) NO. 2708 OF 2022

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liberty to adopt virtual mode for hearing, if it is so warranted.”

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5. After Ext.P8, the Government considered the matter

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as evident by Ext.P9. The relevant portion of Ext.P9 is as

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follows:-

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“As per the direction of the Hon'ble Court, the petitioner was heard by the Secretary, Public Works Dept. on 20.12.2021. During hearing, the Petitioner claimed that straightening of curve would increase the visibility and thereby reduce accident. Executive Engineer, KSTP informed that the Environmental Social Impact Assessment report and other guidelines for implementation of Rebuild Kerala Initiative projects insist on utilising existing Right of Way. In this case the Forest Department after joint inspections with Executive Engineer, KSTP have also endorsed the construction on present RoW. He also informed that there are many trees standing on private property which is 5-6 mtrs above the road level. Petitioner claimed that no-objection from Forest Department could be taken for his proposal If matter is taken up with them. As the project is an externally aided project with project guidelines and time bound period in which works have to be completed, there is no merit in contentions raised by the petitioner as it would only delay the implementation if fresh forest clearance is sought and any reduction in speed due to curve would be beneficial for elephant corridor contrary to the contention raised by petitioner that it would reduce the visibility range of the driver.

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Government have examined the matter in detail

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WP(C) NO. 2708 OF 2022

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and found that the contentions raised by the petitioner are devoid of merit in light of the explanations given by Executive Engineer, KSTP. Hence, the petition is rejected and the order dated in 16.11.2021 in WP(C)No.20596/2021 filed by Sri.P.N. Unnikrishnan is complied with accordingly.”

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According to me, the above order passed by the authority concerned is in total violation of the direction issued by this Court in Ext.P8 judgment. The Government Pleader submitted that as per the scheme, only the existing road improvement can be done. When a citizen comes forward to protect the wildlife and he also is even ready to surrender his land, the Government cannot take a stand mentioned in Ext.P9. According to me, Ext.P9 order is to be set-aside and the Government should follow the directions in Ext.P8. Therefore, Ext.P9 order can be set-aside and there can be a direction to the 1^st respondent to pass appropriate orders as directed by this Court in Ext.P8 judgment. Before passing orders, the Government will give an opportunity of hearing to the 5^th respondent and will also consider Exts.P2 and P3. If necessary,

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WP(C) NO. 2708 OF 2022

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the Government will get a report from the 2^nd respondent also before passing final order.

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Therefore, this writ petition is allowed with the following manner:-

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Ext.P9 is set-aside. The 1^st respondent is directed to reconsider the matter in the light of the specific direction in Ext.P8 judgment and also by following Exts.P2 and P3. Before passing final order, the 1^st respondent will give an opportunity of hearing to the 5^th respondent and also will get a report from the 2^nd respondent. The above exercise should be completed by the 1^st respondent as expeditiously as possible at any rate within one month from the date of receipt of a copy of this judgment.

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Sd/-

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P.V.KUNHIKRISHNAN JUDGE

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spk

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WP(C) NO. 2708 OF 2022

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APPENDIX OF WP(C) 2708/2022

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PETITIONER EXHIBITS

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Exhibit P1 A TRUE PHOTOGRAPH SHOWING THE HERD OF ELEPHANTS CROSSING PETITIONERS PROPERTY NEAR THVALAM MULLI ROAD TO THE BHAVANI RIVER. Exhibit P2 A TRUE COPY OF THE LETTER DATED 23/1/2021, ISSUED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT. Exhibit P3 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT THROUGH E- MAIL ON 2/9/2021. Exhibit P4 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT.

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Exhibit P5 A TRUE COPY OF THE RECOMMENDATIONS OF THE SUB- COMMITTEE CONSTITUTED BY THE MINISTRY OF ENVIRONMENT AND FORESTS VIDE O.M. NO. 6-6212013-WL DATED 26TH JUNE 2013, ON GUIDELINES FOR ROADS IN PROTECTED AREA.

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Exhibit P6 A TRUE COPY OF THE CIRCULAR 29/5/2019 ISSUED BY THE MINISTRY OF ROAD TRANSPORT AND HIGH WAYS.

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Exhibit P7 A TRUE COPY OF THE CIRCULAR 2/8/2019 THE MINISTRY OF ROAD TRANSPORT AND HIGHWAYS.

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Exhibit P8 A TRUE COPY OF THE JUDGMENT IN WPC NO. 20596 OF 2201 DATED 16/11/2021.

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WP(C) NO. 2708 OF 2022

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Exhibit P9 A TRUE COPY OF G.O. (RT) NO. 1163/2021/PWD DATED 29/12/2021, ISSUED BY THE IST RESPONDENT.

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Exhibit P10 TRUE COPY OF THE SATELLITE VIEW OF THE THAVALAM MULLI ROAD, PASSING THROUGH PETITIONERS PROPERTY DOWNLOADED FROM THE GOOGLE MAP.

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RESPONDENT'S/S EXHIBITS : NIL

P N Unnikrishnan., v. State of Kerala

Case brief

What is this about?

What did the court decide?

P N Unnikrishnan., v. State of Kerala

Case brief

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