K. Govinda Pillai and Others v. Corporation of Cochin and Others (W.P. Nos. 33962/2011-U, 2331/2012 and 7746/2012)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** ## **WEDNESDAY, THE 6TH DAY OF JUNE 2012/16TH JYAISHTA 1934** ## **WP(C).No. 33962 of 2011 (U)** **----------------------------------------** **PETITIONERS:** **---------------------** **1. K. GOVINDA PILLAI, S/O. LATE K. KRISHNA PILLAI, RESIDING AT G-165, PANAMPILLY NAGAR, KOCHI - 682 036.** **2. A.S.NARAYANA MURTHY, S/O.SRI. A.S.SESHADRI IYER, RESIDING AT G-163, PANAMPILLY NAGAR, KOCHI - 682 036** **3. A.A.RUBB, S/O.M.A.KARIM, RESIDING AT PLOT NO.50, K.V.COLONY, PANAMPILLY NAGAR, KOCHI - 682 036.** ## **4. DR.K.PRASANNA KUMAR,** **S/O.LATE K.N.KRISHNA KURUP, RESIDING AT THANKAM, G-155, PANAMPILLY NAGAR, KOCHI-682 036.** **5. MRS.NIRMALA THAMPI, W/O.V.V.THAMPI, RESIDING AT PLOT NO.49, K.V.COLONY, PANAMPILLY NAGAR, KOCHI- 682 036.** **BY ADVS.SRI.T.C.SURESH MENON, SRI.P.S.APPU, SRI.A.R.NIMOD.** **RESPONDENTS:** **------------------------** ## **1. CORPORATION OF COCHIN, REPRESENTED BY THE SECRETARY, CORPORATION OFFICE, KOCHI-682 016.** ## ***ADDL. RESPONDENTS 2 TO 8 IMPLEADED:** **2. K.A. RAJAN, AGED 66, S/O. LATE P.C.PAILY, RESIDING AT G 193, PANAMPALLY NAGAR, COCHIN - 36.** **3. JACOB MATHEW, RESIDING AT PLOT NO.160, PANAMPALLY NAGAR, COCHIN - 682 036.** **W.P.(C).NO.33962/2011-U:** ****4. V.SHEELA, RESIDING AT KV 54, PANAMPALLY NAGAR, COCHIN - 682 036.** **5. GEORGE PAUL KARIATH, RESIDING AT G 174, PANAMPALLY NAGAR, COCHIN - 682 036.** **6. MARY GEORGE, RESIDING AT KV 23, PANAMPALLY NAGAR, COCHIN - 682 036.** - ****7. DR.ABRAHAM PAUL, RESIDING AT KV 25, PANAMPALLY NAGAR, COCHIN - 682 036.** **8. M.K.KOSHY, RESIDING AT G 156, PANAMPALLY NAGAR, COCHIN - 682 036.** - ***IMPLEADED VIDE ORDER DATED 18.01.2012 IN IA.978/2012.** - ****(ADDL.R4 & R7 DELETED VIDE ORDER DATED 01.02.2012 IN IA.1452/2012)** ## ***** ADDL. RESPONDENTS 9 TO 23 IMPLEADED:** ## **9. S.J.R.KUMAR** **PARK VILLA, K.V. - 62, 9TH CROSS ROAD, PANAMPILLY NAGAR, KOCHI- 682 036.** **10. A.K.GANGADHARAN, KV-43, 9TH CROSS ROAD, PANAMPILLY NAGAR, KOCHI - 682 036.** **11. BOBBY JOSE,** **KV-18, 9TH CROSS ROAD, PANAMPILLY NAGAR, KOCHI - 682 036.** **12. MADHU PANICKER, KV- 44, 9TH CROSS ROAD, PANAMPILLY NAGAR, KOCHI - 682 036.** **13. R.GOPINATHAN, KV-59, 9TH CROSS ROAD, PANAMPILLY NAGAR, KOCHI - 682 036.** **14. DR.SACHIDANADHAN, KV-38, 9TH CROSS ROAD, PANAMPILLY NAGAR, KOCHI - 682 036.** **15. E.BALAKUMAR, KV-42, 9TH CROSS ROAD, PANAMPILLY NAGAR, KOCHI - 682 036. 16. K.RAVINDRANATH, G-248 A, 9TH CROSS ROAD, PANAMPILLY NAGAR, KOCHI - 682 036.** **W.P.(C).NO.33962/2011-U:** ## **17. LEENA JOSE,** - **G - 245, 9TH CROSS ROAD, PANAMPILLY NAGAR, KOCHI - 682 036.** ## **18. M.A.ALAXANDER, G- 246, 9TH CROSS ROAD, PANAMPILLY NAGAR, KOCHI - 682 036.** **19. C.K.THOMAS, KV-34, 7 TH CROSS ROAD, KRISHNA VIHAR COLONY, PANAMPILLY NAGAR, KOCHI - 682 036.** **20. K.A.CHERIAN, KV-27, 7TH CROSS ROAD, KRISHNA VIHAR COLONY, PANAMPILLY NAGAR, KOCHI - 682 036.** **21. C.KUMARASWAMY PILLAI, KV-10, 7TH CROSS ROAD, KRISHNA VIHAR COLONY, PANAMPILLY NAGAR, KOCHI - 682 036.** **22. V.C.BABY, KV-14, 7TH CROSS ROAD, KRISHNA VIHAR COLONY PANAMPILLY NAGAR, KOCHI - 682 036.** **23. P.SUSHEELAN, KV-36, 7TH CROSS ROAD, KRISHNA VIHAR COLONY, PANAMPILLY NAGAR, KOCHI - 682 036.** *****ADDL.R9 TO R23 ARE IMPLEADED AS PER ORDER DATED 01.02.12 IN IA.1429/2012.** ******ADDL. R.24 IMPLEADED:** **24. PANAMPILLY NAGAR M I G RESIDENTS ASSOCIATION, REPRESENTED BY THE SECRETARY, M.S. DEEPAK.** ******IMPLEADED VIDE ORDER DT. 08/02/2012 IN I.A. 1820/2012.** **R1 BY SRI. RAJU SEBASTIAN VADAKKEKARA, S.C, ADDL. R2 TO R8 BY ADVS. SRI.S.ANANTHAKRISHNAN, SRI.N.K.SUBRAMANIAN, ADDL. R9 TO R24 BY ADVS. SRI.T.SETHUMADHAVAN, SRI.PUSHPARAJAN KODOTH, SRI.K.JAYESH MOHANKUMAR, SMT.VANDANA MENON.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-06-2012, ALONG WITH W.P.(C).NOS. 2331/2012 AND 7746/2012 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C).NO.33962/2011-U:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **EXT.P.1: COPY OF THE SKETCH OF THE PROPOSED ROUTE OF THE CANAL DTD. NIL.** - **EXT.P.2: COPY OF THE AUTHENTIC SKETCH OF THE PANAMPILLY NAGAR COLONY WITH THE EXISTING CANAL DTD. NIL.** - **EXT.P.3: COPY OF THE FEW PHOTOGRAPHS DEPICTING THE SORRY STATE OF AFFAIRS DTD. NIL.** ## **RESPONDENTS' EXHIBIT:** **EXT.R1.A: COPY OF THE DRAWING IN SCALE PREPARED BY M/S. WAPCOS.** ## **ADVOCATE COMMISSIONER'S ANNEXURES:** **ANNEXURE A: REPORT OF THE EXPERT ENGINEERS.** **ANNEXURE B1: PHOTOGRAPHS OF THE CANAL AT RAVIPURAM RAILWAY CROSSING AND THE PERANDOOR SUB CANAL NEAR IOC BUILDING ON THE MAIN AVENUE IN PANAMPILLY NAGAR.** **ANNEXURE B2: PHOTOGRAPHS OF THE CANAL COMING FROM ATLANTIS RAILWAY CROSSING AT PANAMPILLY NAGAR.** **ANNEXURE B3: PHOTOGRAPHS OF THE CANAL IN FRONT OF AVENUE CENTRE HOTEL AND SECOND CANAL FLOWING THROUGH LIG HOUSING COLONY. ANNEXURE B4: PHOTOGRAPHS OF THE CANAL NEAR THE UNION BANK OF INDIA AND THE 4TH CANAL FLOWING THROUGH THE LIG HOUSING COLONY.** **ANNEXURE B5: PHOTOGRAPHS OF THE CANAL IN FRONT OF THE AVENUE CENTRE.** **ANNEXURE B6: PHOTOGRAPHS OF THE CANAL FLOWING THROUGH THE LIG HOUSING COLONY.** **ANNEXURE B7: PHOTOGRAPHS OF THE CANAL NEAR THE UNION BANK OF INDIA. ANNEXURE B8: PHOTOGRAPHS OF ONE OF THE OUTLETS JOINING THEVARA PERANDOOR CANAL.** **//TRUE COPY//** **Prv.** **P.A. TO JUDGE.** ## **ANTONY DOMINIC, J.** ## **-----------------------------------------------------------** **W.P.(C) Nos.33962/2011, 2331/2012 & 7746/2012** **-----------------------------------------------------------Dated this the 6[th] day of June, 2012** ## **J U D G M E N T** Issues raised in these writ petitions are connected and therefore these cases were heard together and are disposed of by this common judgment treating WP(C).No.2331/2012 as the leading case. 2. Petitioners in these writ petitions are residents of the 5[th] Cross Road, Krishna Vihar Colony, Panampilly Nagar, Kochi. In these writ petitions, prayer sought is mainly to quash the decision taken by the respondent Corporation to complete a project through the 5[th] Cross Road of Panampilly Nagar. The project in question is a new drainage from Ravipuram through the 5[th] Cross Road with a discharge point at the Thevara-Perandoor canal. It was argued that there are atleast six drainage canals between the Manorama Junction and Avenue Centre, Panampilly Nagar and that instead of constructing a new drainage as proposed, the existing ones should be properly maintained. It was contended that if the existing canals are properly maintained, they are sufficient to drain water from these **WPC.Nos.33962/2011 & ors.** **:2 :** areas into the Thevara Perandoor canal and there will be no water logging. Further, according to the petitioners, Thevara-Perandoor canal is situated at a higher level and hence during high tide, water flows from the canal to Panampilly Nagar area through the existing drainage and that if a new drainage is established, this problem will only aggravate. It was also contended that in Ext.P2 judgment, this court has already directed the Corporation to take appropriate action for the removal of the encroachments on the existing drainages and that nothing has been done in this behalf. 3. Further, according to the petitioners, on an application made by them, this court appointed an Expert Commissioner to explore the feasibility of other options and that accordingly a report has been submitted, suggesting that the best option is to connect the proposed drain to the existing drain near the Union Bank of India through the existing canal. It is stated that if the proposal of the expert is accepted, the length of the drain will be reduced to 197 meters and the cost of the construction will also be considerably reduced. The contention raised is that there is nothing to show that any of the other options, including that suggested by the experts appointed by this **WPC.Nos.33962/2011 & ors.** **:3 :** Court, has been considered by the Corporation or its consultants before finalizing the present alignment through the 5[th] Cross Road. 4. Various parties have got themselves impleaded in this writ petition and the other connected writ petitions and their respective counsel were also heard, in addition to the standing counsel for the Corporation. While some of the parties are supporting the proposed alignment, some were opposing the alignment now fixed. Some of the impleaded respondents are opposing the alternative suggestions made by the petitioners, which includes one for realigning the canal through the 7[th] Cross Road. 5. At the outset itself, this Court should bear in mind that fixation of alignment of a drainage or such other projects is a matter which is entirely within the domain of experts in the field and in the absence of proved arbitrariness or malafides, the choices made by such experts shall be free from interference from judicial review. In this context, it is also relevant to refer to the judgment in _**Assyst International Pvt. Ltd. v. State of Kerala**_ (2009(4) KLT 116), where this Court has held thus; **“In the absence of any criticism to the State action as being arbitrary or mala fide, the finalisation of the alignment** **WPC.Nos.33962/2011 & ors.** **:4 :** **of a railway line, particularly that of a metro project and the design, manner and location of the stations in that project, are not matters for judicial review. No criticism being levelled against the alignment and the design as may be attributable to mala fides, colourable exercise of power or other elements which tantamount to arbitrariness in State action, as are reckonable in judicial review, it needs to be remembered and recalled, without fail, that fixing alignments in relation to roads rail tracks, metro tracks , including their inseparable adjuncts are matters to be left to the wisdom of those who are designated and duly bound to carry out the designing of such projects. The State government have, essentially requested the involvement of the second respondent, the Delhi Metro Rail Corporation Limited only because of the experience that it has, to carry out a project involving huge investments,which is ultimately to be used by commuters. Any interference with such a project and its alignments would only impair the project. The safety of the installation is a matter to be left exclusively to those who carry out the project and it is not for judicial intervention on ground that the alignment could be adjusted a bit this way or that way, to accommodate private interests. Such tinkering will be adverse to public interest. “** 6. As far as the contention of the Counsel for the Petitioner regarding the adequacy of the existing drainages and the removal of encroachments pursuant to the direction issued by this Court in the judgment referred to above are concerned, the adequacy or inadequacy of the existing infrastructure now available to meet the requirement of draining out the water from the Panampilly Nagar and adjacent areas is concerned, this is a matter for the experts to **WPC.Nos.33962/2011 & ors.** **:5 :** decide. It is seen that under the Kerala Sustainable Urban Development Project, ADB Loan No.2226, the Local Self Government Department of the Government of Kerala appointed WAPCOS as its Design and Supervision Consultant and that the said consultant had conducted a detailed study into the various aspects of the project. It is based on the report thus submitted by the consultant that the project is decided to be implemented. When detailed study has been conducted and it has been decided to construct an additional canal for the purpose of draining out the water from the city, it will be unwise for this court to sit in judgment over such conclusion of the experts and to hold that such a project is unnecessary. This is all the more so in a case where there is total dearth of materials in this respect. As far as removal of encroachments is concerned, though it is the responsibility of the Corporation to ensure that encroachments are removed, there is absolutely no material available before this Court to conclude that it will be a solution to the problem. 7. Now what remains is the question whether before finalising the project and its alignment, the other options were considered by **WPC.Nos.33962/2011 & ors.** **:6 :** the technical consultant. It is true that this Court had appointed an expert commission and the expert commission suggested certain alternatives. If as contended by the Corporation the available options were considered by the experts and the project was finalised and its alignment was fixed after taking note of such alternatives also, this court will not be justified in interfering with the same. On the other hand, as already held by this Court, if the petitioners succeed in establishing a case of malafide or arbitrariness, this Court will also not shut its eyes to such illegalities. Therefore, on 4.6.2012, when the matter was taken up for hearing, this court directed the Standing Counsel for the Corporation to produce relevant report of the technical consultant. Accordingly the report was produced before this court. In so far as the options that were considered are concerned, paragraph 1.6 and table No.2 of the report is relevant and it reads as under; ## **1.6 Deviation in alignment of drains.** The ongoing project was finalized after due consultation with all stake-holders and approval of the highest Technical Authority. The drains were mostly following the natural topography. The drain along VRM road was proposed to be terminated at the existing Thondayil lane drain and thereafter enhancing the hydraulic capacity of the above drain it was proposed to reconstruct 5 number culverts and then lead the water through **WPC.Nos.33962/2011 & ors.** **:7 :** existing drain by the side of Union Bank to the TP canal. The main intension is to ease the flooding and inundation in the Panampilly Nagar, formerly paddy field reclaimed and developed to a township with perceptibly low ground slopes. During implementation phase another technically more viable option was raised by the concerned Counselor supported by Corporation of Cochin to realign into the drain through the Panampilly Nagar school and thereafter through 5[th] cross road to TP canal. This was discussed at the project preparation stage but deferred for want of concurrence of school authorities. The proposed deviation was considered to be a better option to minimize flooding which is evident through the following comparison: ## **Table No.2** ||**_MERITS & DEMERITS_**|**_Along 5th cross road_**<br>**_(Route No.1)_**|**_Along panampilly_**<br>**_Nagar main road_**<br>**_through existing_**<br>**_culvert near union_**<br>**_bank (Route NO.2)_**| |---|---|---|---| |1|Length of drain|341 m|523 m| |2|Cost|68.2 lacs|104.6lacs| |3|Flooding alleviation capacity|An additional outlet<br>through a relatively<br>short drain ensures<br>quicker disposal and<br>discharge of storm<br>water to TP canal|Less quick| |4|Affected residents during<br>construction|7 residents affected<br>for short period|Being a much wider<br>drain 10 families<br>affected relatively<br>for a longer period.| |5|Construction/reconstruction of<br>culverts|1 no. (major)|2 nos.(major)<br>2 nos.(minor)| |6|Tidal influence|Lesser with outfall<br>level at -0.29 m|Higher with outfall<br>level-0.44 m| |7|Utility shifting|Practically nil|Quite a few numbers| **WPC.Nos.33962/2011 & ors.** **:8 :** 8. A reading of the above shows that the project and its alignment were finalised after due consultation with all concerned and adverting to other options. Further the report also explains the comparative merits for choosing the alignment. These facts itself demonstrate that the finalisation of the alignment was with due application of mind. 9. Although the report of the experts appointed by this Court contain another option, still having regard to the reasons mentioned in the report of the consultant, which has been extracted above and also taking note of the fact that the project is already partially implemented, I do not think that, at this stage this Court will be justified in upsetting the alignment fixed. 10. As far as the contention regarding the tidal effect and suggestion to shift the alignments through 7[th] and 9[th] Cross Roads are concerned, these are answered by the Corporation in paras 9 and 10 of the counter affidavit in writ petition(C) No.33962/11, which are extracted below for reference. **“Moreover the allegation that the moment an opening is made to T.P. Canal at th end of the cross road, water will rush in to the newly constructed drain from the T.P. Canal is true to some extent. The top level of the water will enter up** **WPC.Nos.33962/2011 & ors.** **:9 :** **to the tidal level and this will not made any nuisance to the residence nearby due to fully closed design of the drain. This is unavoidable and wherever we construct a drain in Kochi this phenomenon will take place. The same flow of water will be there if a drain constructed through 7[th] or 9[th] cross road. Hence the allegation that the canal is constructed along 7[th] or 9[th] cross road is absolutely false and factually incorrect.** **The allegation contained in the para 4 of the writ petition is not correct and hence denied as stated earlier. The planning and execution of the project in question are based on scientific study conducted by M/s. WAPCOS which is a Govt. of India consultant.** **The actual lie of the 5[th] 7[th] and 9[th] cross road, its levels are described below.** |**_Chainage_**|**_0_**|**_25_**|**_50_**|**_75_**|**_100_**|**_125_**|**_150_**|**_175_**|**_200_**|**_225_**|**_250_**|**_275_**| |---|---|---|---|---|---|---|---|---|---|---|---|---| |GL<br>5th<br>cross|1.55|1.32|1.31|1.31|1.22|1.18|1.09|**0.97**|**0.84**|**0.86**|0.96|1.11| |GL 7th<br>cross|1.49|1.58|1.48|1.3|1.34|1.39|1.34|1.4|1.32|1.29|1.29|1.23| |GL<br>9th<br>cross|**1.42**|**1.31**|**1.28**|**0.99**|**1.01**|**1.09**|**1.06**|1.06|1.02|0.94|**0.95**|**1.03**| **The measurement taken in scale is by the consultants of reputed organisation and it is accurate and authentic. On the basis of said measurements the 7[th] cross road can never be used for the drainage canal since its lacks the minimum width of 2.7 meters. Therefore, there is no question of choosing that road as the suitable one. As regards the 9[th] road is concerned it also has nine low lying areas compared to 5[th] cross road. In other words if the arguments of the petitioners have to be accepted if 9[th] cross road is accepted as alternative route there will be inundation of water at nine places compared to 3** **WPC.Nos.33962/2011 & ors.** **:10 :** **places of the 5[th] cross road. The vehicle passages to the entry to houses in the 5[th] cross road is 7 Nos where as 12 passages in the case of 9[th] cross road. More over the hazardous job of transporting the transformer at the corner of the High School compound to a different place which is not only time consuming but also costly. In the above circumstances the suggestion of the petitioners that the 9[th] cross road is better equipped to carry the drainage falls to the ground. Therefore the only viable route is the 5[th] cross road and the petitioners cannot masquerade as engineers and experts in the planning and implementation of canals which are absolutely with in the domain of this respondents planner and engineers. The allegation to the contra is denied. “** Here again, there is no material whatsoever not to accept these factual assertions made by the respondent. Therefore I do not find any reason to interfere. Writ Petitions fail and are dismissed. **(ANTONY DOMINIC) JUDGE** vi/