Khalid Mundapilly v Union of India and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 21[ST] DAY OF FEBRUARY 2023 / 2ND PHALGUNA, 1944 WP(C) NO. 4139 OF 2016`** ## **`PETITIONER:`** ``` KHALID MUNDAPILLY MUNDAPILLY HOUSE, ALUVA, ERNAKULAM DISTRICT, PIN 683 101. ``` ``` BY ADV SRI.T.R.RAJAN ``` ## **`RESPONDENTS:`** |`1`|`THE UNION OF INDIA`| |---|---| ||`REPRESENTED BY THE SECRETARY,`| ||`MINISTRY OF RAILWAYS, NEW DELHI - 110 001.`| |`2`|`THE RAILWAY BOARD`| ||`REPRESENTED BY ITS CHAIRMAN,`| ||`INDIAN RAILWAYS, RAIL BHAVAN,`| ||`NEW DELHI - 110 001.`| |`3`|`THE PRINCIPAL CHIEF ENGINEER`| ||`SOUTHERN RAILWAY, CHENNAI - 600 003.`| |`4`|`THE DIVISIONAL MANAGER`| ||`SOUTHERN RAILWAY, TRIVANDRUM DIISION,`| ||`TRIVANDRUM, PIN - 695 014.`| |`5`|`THE STATE OF KERALA`| ||`REPRESENTED BY THE SECRETARY,`| ||`PUBLIC WORKS DEPARTMENT, SECRETARIAT,`| ||`THIRUVANANTHAPURAM - 695 001.`| |`6`|`CHENGAMANAD PANCHAYATH`| ||`REPRESENTED BY ITS SECRETARY, CHENGAMANAD,`| ||`ERNAKULAM DISTRICT - 683 578.`| **2** ## **W.P.(C)No.4139 of 2016** ``` ADDL. R7ROADS AND BRIDGES DEVELOPMENT CORPORATION KERALA LIMITED, KOCHI, REPRESENTED BY ITS MANAGING DIRECTOR. ``` ``` IS IMPLEADED AS ADDITIONAL RESPONDENT NO.7 VIDE ORDER DATED 08/06/2020 IN WPC.NO.4139/2016. ``` ``` BY ADVS. SRI.JAISHANKAR V.NAIR, CGC SMT.RESMITHA.R.CHANDRAN, SC, ROADS AND BRIDGES DEVELOPMENT CORPORATION OF KERALA LTD. SRI.ANIL K. MUHAMED, SC SRI.A.DINESH RAO, SC, RAILWAYS SRI.K.V.MANOJ KUMAR, SR. GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C)No.4139 of 2016** **3** ## **JUDGMENT** Dated this the 21[st ] day of February, 2023 ## **S.Manikumar, C.J.** Instant public interest litigation is filed for a mandamus commanding the respondents to construct railway overbridge at Purayar Railway Gate No.64B of Purayar, Shoranur-Kochi Harbour Terminus Section of Trivandrum Division between Angamaly and Aluva Railway Stations in Ernakulam District within a time frame fixed by this court. 2. Short facts leading to the filing of the writ petition are as under: 2.1. The petitioner has approached this Court aggrieved by the delay on the part of the respondents in the matter of construction of overbridge at Purayar Railway gate No. 64B at Purayar, Shoranur-Kochi Harbour Terminus Section of Trivandrum Division between Angamali and Aluva Railway Stations in Ernakulam District. 2.2. It is submitted that total number of passenger trains passing through Purayar Railway gate per day is **4** ## **W.P.(C)No.4139 of 2016** approximately 154. It is also understood that at least 40-50 goods trains passed through Purayar Railway gate everyday. On an average, 200 trains passed through the Purayar Railway gate everyday. The Railway gate would be kept closed for at least 20 minutes for the passage of one train. From this itself it is crystal clear that during the major portion of the day, Purayar Railway gate remains closed causing serious prejudice and hardship to the residents of the locality. On account of the closure of the Purayar Railway gate during the major portion of the day, traffic blocks are an order of the day at Purayar Railway gate. 2.3. It is submitted that though Exhibits P2 to P9 representations have been submitted before various authorities, no overbridge has been constructed. Inaction on the part of the respondents persuaded the petitioner to approach this court by filing the writ petition. 3. Record of proceedings shows that on 24.05.2019, a Hon’ble Division Bench of this court has passed the following order: **5** ## **W.P.(C)No.4139 of 2016** “This Public Interest Litigation is filed for a direction on the respondents to construct a Railway Over Bridge at Purayar Railway Gate No.64B because of the heavy rail traffic between Angamali and Alwaye Railway Stations. The communication dated 16.12.2014 (Ext.P11) of the Southern Railway addressed to the petitioner indicates that the proposal for construction of Railway Over Bridge can be considered by the Railway only under Deposit Terms (subject to technical feasibility) and the entire cost of construction along with annual recurring maintenance charges, will have to be borne by the State Government. Proposal has not been received from the State Government, in this regard. Since the response of the State Government is yet to be filed in the matter, two weeks' time is granted for the counter affidavit of the 5[th] respondent, as requested by the learned Government Pleader Sri.Surin George Ipe.” ## 4. Taking note of the above, when the matter came up ## on 08.06.2020, this court ordered thus: “3. On this day when the matter came up for hearing, placing reliance on the decision of the Hon'ble Supreme Court in **Aleemuddin v. State of Uttar Pradesh and Ors.** [AIR 2019 SC 276), Mr.Surin George Ipe, learned Senior Government Pleader, submitted that, where a building should be constructed is not a matter for the High Court to determine in the exercise of its writ jurisdiction under Article 226 of the Constitution of India and that these are **W.P.(C)No.4139 of 2016** **6** essentially administrative matters and decision can be taken only by the executive. 4. However, inviting attention of this Court to the proceedings dated 17.2.2020 issued by the Roads & Bridges Development Corporation Kerala Limited to the Private Secretary of the Minister for Public Works Department, Government of Kerala, stating that on the basis of the representation submitted by the petitioner in the writ petition alignment is fixed and that the same is submitted for the technical sanction of KIIFB. It is also stated that the land acquisition for the alignment is in progress. Mr. Surin George Ipe, learned Senior Government Pleader, submitted that, so far the construction of the railway overbridge is concerned, Roads & Bridges Development Corporation Kerala Limited is the competent authority to answer the averments made in the writ petition. 5. The writ petition is filed in the year 2016. From the submission of the learned Senior Government Pleader it appears that, some steps have been taken, taking note of the representation of the writ petitioner. Having regard to the above submissions, Roads & Bridges Development Corporation Kerala Limited, Kochi would be a necessary and proper party for adjudication of the lis. Therefore, in exercise of the powers conferred under Article 226 of the Constitution of India, we deem it fit to implead Roads & Bridges Development Corporation Kerala Limited, Kochi, represented by Managing Director, as respondent No.7. Mr.T.R.Rajan, learned counsel for petitioner, is permitted to **W.P.(C)No.4139 of 2016** **7** serve the entire sets of papers relating to this writ petition to the learned counsel appearing for the Roads & Bridges Development Corporation, now impleaded as respondent No.7, within one week from today.” 5. Responding to the above, General Manager, Roads and Bridges Development Corporation of Kerala Ltd., respondent No.7, has filed a counter affidavit dated 07.02.2023. Relevant paragraphs of the counter affidavit are reproduced: “3. That, the prayer in the writ petition, in brief is for the construction of a railway over bridge in lieu of Level Cross No. 64 B at Purayar. It is most humbly submitted that vulnerability of a level crossing is measured in terms of Train Vehicle Unit (TVU) which is obtained by multiplying the number of trains passing with the number of road vehicles crossing the level crossing in 24 hours, where train, road vehicle, bullock carts and tongas are considered as one each units and cycle rickshaw/auto rickshaw as half unit. As per the railway norms, a bridge can be constructed if the traffic density at the level crossing exceeds one lakh TVU. The TVU at Level Cross No. 64 B at Purayar is 2,56,069. Hence, rightly understanding the public interest in constructing a railway over bridge in lieu of Level Cross No. 64 B at Purayar, the Government of Kerala by order dated 27.9.2016 granted Administrative **W.P.(C)No.4139 of 2016** **8** Sanction for the same by availing funds from Kerala Infrastructure Investment Fund Board (KIIFB). 4. That, the answering respondent herein was appointed as the special purpose vehicle for the project and M/s.KITCO as the consultant for the preparation of Detailed Project Report. A detailed project report was submitted to KIIFB on 22.11.2017. KIIFB by order no. APR2/136/2017/KIIFB dated 13.3.2018 accorded sanction for Rs.45.67 crores. 5. That, immediately thereafter, requisition for land acquisition was submitted to District Collector, Ernakulam on 27.06.2018. In connection with the land acquisition, total land to be acquired for this project is approximately an extent of 174.80 ares in various survey numbers of Chengamanad Village, Aluva Taluk. The District Collector Ernakulam appointed the Special Tahsildar (LA) NH No.2, Aluva as Land Acquisition Officer of this project. Administrative Sanction for the land acquisition was also obtained from Revenue Department vide Government Order No.(Rt) 2095/2019/RD dated 30.07.2019. 6. That, Social Impact Assessment study and Expert Committee evaluation report were completed, as per the provisions of the Right to Fair Compensation and Transparency in Land Acquisition and Resettlement Act, 2013. Section 11(1) notification published in the Kerala Gazette No.1057 dated 03.03.2021. Land Acquisition cost of Rs.9.02,72,706 (Nine Crore Two lakhs Seventy Two thousand Seven Hundred Six only) had already been **9** ## **W.P.(C)No.4139 of 2016** released to the Land Acquisition Officer on 31.01.2022 by way of Cheque No. 984431 dtd. 31.01.2021 of Indian Bank, MG road Ernakulam vide the office letter No. RBDCK/LA/1585/2018/206 dtd. 31.01.2022 of the answering respondent. Section 19(1) declaration had already been approved and published by District Collector, Ernakulam in Kerala Gazette Extra ordinary No.588 dtd. 22.02.2022. 7. That, after completing all the statutory provisions of the Right to Fair Compensation and Transparency in Land Acquisition and Resettlement Act, 2013, the land acquisition had progressed up to award stage. Out of total 57 land acquisition cases/holdings award has been passed in 18 cases. Taking possession and handing over of the land and improvements thereon to the answering respondent was posted to 07.02.2023 as per letter sent by Special Tahsildar (LA) NH No.2, Aluva vide No.A31064/2018 dt. 03.02.2023. Accordingly, possession of lands belonging to 18 persons were taken on 07.02.2023 itself. Balance 39 awards are progressing in the office of Special Tahsildar LA (NH No.3), Aluva. 8. That, the answering respondent had submitted the General Arrangement Drawing (GAD) to the Chief Engineer (Bridges), Southern Railway, Chennai vide letter No.RBDCK/T 153/Vol.II/3127 dtd. 14.12.2022 after making corrections as per the instructions given by the Railways. Consequent to the resubmission of General Arrangement Drawing (GAD), Railway authorities had returned it **W.P.(C)No.4139 of 2016** **10** instructing for making further modifications as per letter No SR-HQ0 ENGG(ROBU)151/2020 of Chief Bridge Engineer, Southern Railway, Chennai dtd. 11.01.2023. The modified General Arrangement Drawing as per the instructions given by the Railway authority is under preparation. The work can be tendered only after obtaining entire lands as well as approval in General Arrangement Drawing (GAD) from the Railway Department. The answering respondent is expeditiously working to fulfil the goal of an early implementation of the project. No stone remains unturned during the course of the present work. 9. That, it is also humbly submitted that, when the land acquisition has been progressing, one of the land owners included in the alignment of Purayar Railway Over Bridge, one Mr. Prasad G., had approached this Hon'ble Court by filing a writ petition numbered as WP(C) No.28548/2021 against the approved/present alignment of the Purayar Railway Over Bridge. His prayer before this Hon'ble Court is to construct the Railway Over Bridge through the alternative alignment proposed by the petitioner, which is not feasible. The above case is pending before the Hon'ble High Court. Another writ petition filed against this project implementation by Jeelani Trust, Jeelani Shareef, Desom, Desom P.O represented by its General Secretary, Hussainkutty @ Hussain Al-Qasmi, in WP(C) No.10436/2022 is also pending consideration of this Hon'ble Court. The said petition is challenging the acquisition of an extent of 10.04 ares of land, owned by **W.P.(C)No.4139 of 2016** **11** the petitioner Trust comprised in Resurvey No. 345/3-2 of Chengamanad village, Aluva Taluk. 10. That, all possible efforts are being taken by this respondent for the speedy completion of the project implementation. High level review meetings are held for the speedy completion of land acquisition proceedings and implementation of the project. All the representations submitted by the petitioner were promptly replied by the Government based on the report submitted by the answering respondent. A representation submitted by the petitioner on 06.02.2020 to the Honourable minister for Public Works Department were forwarded to this office for urgent report. It was received in the office of the answering respondent's office on 10.02.2020. The answering respondent had submitted report to government on this representation vide office letter No.RBDCK/T 153/Vol.I/499 dtd. 17.02.2020. The Government had issued reply to the petitioner's representation vide letter No.PWD-D2/100/2020/PWD dtd.23.03.2020. 11. That, the petitioner filed objections to the report dtd. 17.02.2020 of the answering respondent, in which government had called a further report vide endorsement order dtd 11.05.2022 of the Hon'ble Minister for Public Works. The answering respondent has given reply to this letter specifically clarifying the fact that there is no technical feasibility for the petitioner's requests. **W.P.(C)No.4139 of 2016** **12** 12. In view of the above submissions, it is most humbly submitted that there is no inaction or laches on the part of this respondent in constructing a Railway Over Bridge at Purayar. The work can be tendered only after obtaining entire lands and obtaining final approval from Railway Department Authorities in General Arrangement Drawing (GAD). Despite, the intervening Covid lockdown period which had stagnated the entire world, the subject project is progressing expeditiously. The answering respondent is taking all steps with a bonafide intention and in good faith for the construction of Railway over bridge at Purayar. Hence, this Hon'ble Court may kindly close the subject writ petition accepting the submissions made by the answering respondent in the paragraphs above.” 6. From the material on record, it could be deduced that steps are being taken, for construction of overbridge at Purayar Railway Gate No.64B of Purayar, Shoranur-Kochi Harbour Terminus Section of Trivandrum Division between Angamaly and Aluva Railway Stations and that the same has been explained with supporting documents. 7. Having regard to the above, we hereby direct the respondents to expedite the work, for obtaining the lands for **13** ## **W.P.(C)No.4139 of 2016** the purpose of construction of overbridge as stated supra. With the above direction, writ petition is disposed of. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Murali Purushothaman** **Judge** **vpv** **W.P.(C)No.4139 of 2016** **14** ## **`APPENDIX OF WP(C) 4139/2016`** ``` PETITIONER EXHIBITS ``` - `EXT.P1 TRUE COPY OF THE INFORMATION PROVIDED BY THE CENTRAL PUBLIC INFORMATION OFFICER OF THE RAILWAYS.` - `EXT.P2 TRUE COPY OF THE REPRESENTATION DATED 02.06.2014 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE PRIME MINISTER OF INDIA.` - `EXT.P3 TRUE COPY OF THE REPRESENTATION DATED 10.07.2014 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER FOR RAILWAYS.` - `EXT.P4 TRUE COPY OF THE REPRESENTATION DATED 10.07.2014 SUBMITTED BY THE WRIT PETITIONER BEFORE THE HONOURABLE PRIME MINISTER OF INDIA.` - `EXT.P5 TRUE COPY OF THE REPRESENTATION DATED 03.12.2014 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER FOR RAILWAYS.` - `EXT.P6 TRUE COPY OF THE REPRESENTATION DATED 06.12.2014 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE CHIEF MINISTER OF KERALA.` - `EXT.P7 TRUE COPY OF THE COMMUNICATION DATED 06.01.2015 OF THE SECRETARY, TRANSPORT DEPARTMENT, GOVERNMENT OF KERALA TO THE PETITIONER.` - `EXT.P8 TRUE COPY OF THE REPRESENTATION DATED 06.12.2014 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT.` - `EXT.P9 TRUE COPY OF THE REPRESENTATION DATED 06.12.2014 SUBMITTED BY THE WRIT` **W.P.(C)No.4139 of 2016** **15** ``` PETITIONER BEFORE THE FOURTH RESPONDENT. ``` - `EXT.P10 TRUE COPY OF THE COMMUNICATION DATED 08.12.2014 OF THE CENTRAL PUBLIC INFORMATION OFFICER, THE OFFICE OF THE HONOURABLE PRIME MINISTER OF INDIA TO THE PETITIONER.` - `EXT.P11 TRUE COPY OF THE COMMUNICATION DATED 16.12.2014 OF THE CHIEF BRIDGE ENGINEER, SOUTHERN RAILWAY, CHENNAI TO THE PETITIONER.` - `EXT.P12 TRUE COPY OF THE COMMUNICATION DATED 31.12.2014 OF THE DIRECTOR, CIVIL ENGINEERING RAILWAY BOARD, NEW DELHI TO THE WRIT PETITIONER.` - `EXT.P13 TRUE COPY OF THE COMMUNICATION DATED 15.01.2015 OF THE CHIEF ADMINISTRATIVE OFFICER (CONSTRUCTION) ERNAKULAM TO THE WRIT PETITIONER.` ## `RESPONDENT EXHIBITS` ``` EXHIBIT R7(A)TRUE COPY OF THE ORDER ISSUED BY GOVERNMENT VIDE G.0. (RT.)NO. 1324/2016/PWD DATED 27.9.2016. ``` - `EXHIBIT R7 (B) TRUE COPY OF THE ORDER NO. APR-2/136/2017/KIIFB DATED 13.3.2018.` ``` EXHIBIT R7 (C)TRUE COPY OF THE SECTION 11(1) NOTIFICATION PUBLISHED IN THE KERALA GAZETTE NO.1057 DATED 03.03.2021 ALONG WITH TRANSLATION COPY. ``` ``` EXHIBIT R7 (D)TRUE COPY OF THE LETTER NO. RBDCK/LA/1585/2018/206 DATED 31.01.2022 ALONG WITH TRANSLATION COPY. ``` ``` EXHIBIT R7 (E)TRUE COPY OF THE DECLARATION DTD. 22.02.2022 ALONG WITH TRANSLATION COPY. ``` **W.P.(C)No.4139 of 2016** **16** ``` EXHIBIT R7 (F)TRUE COPY OF THE LETTER NO.A3-1064/2018 DTD. 03.02.2023 ALONG WITH TRANSLATION COPY. EXHIBIT R7 (G)TRUE COPY OF THE LETTER NO.RBDCK/T 153/VOL.II/3127 DTD.14.12.2022. EXHIBIT R7 (H)TRUE COPY OF THE LETTER NO. SRHQOENGGROBU) 151/2020 OF CHIEF BRIDGE ENGINEER, SOUTHERN RAILWAY, CHENNAI DTD.11.01.2023. EXHIBIT R7(I)TRUE COPY OF REVIEW MEETING MINUTES CONDUCTED ON 04.11.2022 ALONG WITH TRANSLATION COPY. EXHIBIT R7 (j)TRUE COPY OF THE REPLY LETTER DATED 10.03.2020 ALONG WITH TRANSLATION COPY. EXHIBIT R7(K)TRUE COPY OF THE LETTER NO. PWD - D2/100/2020/PWD DATED 23.03.2020 ALONG WITH TRANSLATION COPY. ``` //TRUE COPY// P.A. TO JUDGE