K.S. Varghese & Others v. The Superintending Engineer Public Works Department, Roads and Bridges, Central Circle, Aluva and Others (W.A. No. 796 of 2020)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 17TH DAY OF JULY 2020 / 26TH ASHADHA, 1942** ## **WA.No.796 OF 2020** **AGAINST THE ORDER/JUDGMENT IN WP(C) 35616/2019(B) OF HIGH COURT OF KERALA** ## **APPELLANT/S:** |**1**|**K.S.VARGHESE**| |---|---| ||**AGED 77 YEARS**| ||**S/O. SCARIA, KOCHUTHOTTATHIL, THAMMANIMATTOM,**| ||**RAMAMANGALAM P.O., PIN-686 663.**| |**2**|**K.P.GEORGE**| ||**AGED 83 YEARS**| ||**S/O. PAILI, IRUMPAYIL, THAMMANIMATTOM, RAMAMANGALAM**| ||**P.O., PIN-686 663.**| |**3**|**C.K.GEORGE,**| ||**AGED 75 YEARS**| ||**S/O. KURIAKOSE, CHAVARPPANAL, THAMMANIMATTOM,**| ||**RAMAMANGALAM P.O., PIN-686 663.**| |**4**|**PRINCE T.J.**| ||**AGED 52 YEARS**| ||**S/O.JOHN, THAREPOTTEKKAL, THAMMANIMATTOM,**| ||**RAMAMANGALAM P.O., PIN-686 663.**| |**5**|**ULAHANNANKURIAKO**| ||**AGED 80 YEARS**| ||**S/O. ULAHANNAN, KADAVIL HOUSE, PUTHRIKKA P.O., PIN-**| ||**682 308.**| |**6**|**PRINCE ALIAS**| ||**AGED 55 YEARS**| ||**S/O. ALIAS A.K., THAREVALAYIL, THAMMANIMATTOM,**| ||**RAMAMANGALAM P.O., PIN-686 663.**| |**7**|**JOSE K.P.**| ||**AGED 55 YEARS**| ||**S/O. PAILY, KOCHUKUNNUMMEL, PALAKKAMATTOM,**| ||**KINGINIMATTAM P.O., PIN-682 311.**| W.A.796/2020 2 - **8 P.U.MANI AGED 72 YEARS** - **S/O. ULAHANNAN, RAMAMANGALAM P.O., RAMAMANGALAM, MUVATTUPUZHA.** - **9 BABY RAJU AGED 61 YEARS W/O. RAJU, KIZHAKKENCHERYPEEDIKAYIL HOUSE, PALAKKAMATTOM, RAMAMANGALAM P.O., PIN-686 663.** - **10 K.U.THOMAS AGED 65 YEARS** - **S/O. ULAHANNAN, C/O. JOMY K. THOMAS, KADAVIL HOUSE, THAMMANIMATTOM, RAMAMANGALAM P.O., MUVATTUPUZHA, PIN-686 663.** **BY ADVS. SRI.ANIL GEORGE SRI.JOBY JACOB PULICKEKUDY SRI.T.ANCY SMT.N.B.FATHIMA SULFATH SHRI.DAJISH JOHN BASIL PAUL** ## **RESPONDENT/S:** - **1 THE SUPERINTENDING ENGINEER PUBLIC WORKS DEPARTMENT, ROADS AND BRIDGES, CENTRAL CIRCLE, ALUVA-683 101.** - **2 EXECUTIVE ENGINEER OFFICE OF THE EXECUTIVE ENGINEER, PWD ROADS AND BRIDGES, MUVATTUPUZHA-686 661.** - **3 THE SECRETARY TO GOVERNMENT PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-690 001.** - **4 THE SUPERINTENDING ENGINEER NATIONAL HIGHWAYS, VYTTILA-682 019.** - **5 THE EXECUTIVE ENGINEER NATIONAL HIGHWAYS, MUVATTUPUZHA-686 661.** - **6 THE POOTHRIKKA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, POOTHRIKKA P.O., PUTHENCRUZ VIA, ERNAKULAM DISTRICT, PIN-682 308.** W.A.796/2020 3 ## **OTHER PRESENT:** **SR.GP SRI. SURIN GEORGE IPE FOR R1 TO R3, SMT.I.SHEELA DEVI, SC FOR R4 AND R5, SRI,SAJEEV KUMAR GOPAL FOR R6** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.796/2020 4 ## **JUDGMENT** Dated this the 17[th] day of July, 2020 ## **S.Manikumar, CJ.** ## Being aggrieved by the judgment dated 04.02.2020 in W.P.(C). No.35616 of 2019, instant writ appeal is filed. ## 2. Short facts leading to the appeal are as under: Appellants/writ petitioners are residing in the side of Aikkaranadu South Village in Kunnathunadu Taluk, Ernakulam District. Poothrikka Grama Panchayat (respondent No.6) had putforward a proposal for widening Ramamangalam-Kolanchery road and the appellants have informed their willingness to surrender the land for widening the road, free of cost, if their demolished compound walls are reconstructed after the required space is taken for widening. Since there is free surrender, there is no land acquisition proceedings initiated for construction of the road. The compound walls of the appellants are demolished for the widening the road. As per Ext.P10, the appellants are entitled to get their demolished walls reconstructed, which the respondents are not doing. Two representations filed by the appellants along with other persons are pending before the respondents without orders. Meanwhile, the respondents are executing the work, including demolition of the compound walls, without free surrender. Therefore, the appellants filed W.P.(C) No.35616 of 2019. Without considering the case on merits,writ court disposed of the case and passed a judgment, even without a counter affidavit from the respondents. The only direction sought for in the Writ W.A.796/2020 5 Petition was that the respondents to prepare an estimate and to reconstruct the compound walls, in the light of the circular issued by the Secretary to Government, Public Works Department. But, the writ court did not consider the prayer and dismissed the Writ Petition directing to file a civil suit. ## 3. After going through the pleadings and the materials on record, in particular, Ext.P10, writ court ordered thus: "2. The contention of the petitioners is they have surrendered lands to the National Highway Authority for widening of the road and in this process, the boundary wall of the petitioner's house were demolished. In this regard, petitioners have submitted Exts.P11 and P12 representations, but no action has been taken so far. 3. I am afraid, the aforementioned arguments would not stand scrutiny of this Court for the simple reason, there is no such material prima facie establishing the demolition of the compound walls. Be that as it may, if at all actually there is demolition of compound walls, in view of the fact that there was a donation of the land, petitioners have a remedy to claim damages in terms of money by filing a civil suit, but not in the manner and mode as has been chosen." ## 4. Writ appeal is assailed on the following grounds: "A) The direction in the judgment to file a civil suit is absolutely wrong. Writ court failed to take note of the circular produced along with the writ petition, in which, the Secretary to Government has stated that estimate for rebuilding the walls should include the expenses for building demolished walls. W.A.796/2020 6 C) The finding of the learned Single Judge that there is no prima facie material to establish demolition of the compound walls is not correct and there is no counter affidavit filed or any dispute raised regarding the demolition of walls. D) The documents produced would clearly show that the appellants have surrendered their property absolutely free and as per the circular issued by the respondents the petitioners are entitled to get their walls rebuild." ## 5. The Executive Engineer, N.H.(Roads) Division, Muvattupuzha, in the statement of facts, averred thus: "Respondents Nos.4 and 5 have no knowledge regarding the allegation of demolition of compound wall, free surrender of land or any oral agreement with the appellants/petitioners in connection with the above road work. PWD NH wing have no project to acquire any land in connection with the above CRF 2017-18-KolencheryRamamangalam road improvement work. The above road is under State PWD and temporarily taken over by the NH wing for implementing the above work under Central Road Fund Scheme. There is a guideline of Central Govt. for doing CRF works in State PWD roads: Clause 6 (5) (X) of notification published by ministry of road transport and highways in the Gazette of India No.381 dated 24.07.2014-clearly directs that a certificate regarding availability of the entire unencumbered land needed for the project. That means Respondents No:4 and 5 have no responsibility with respect to acquisition or compensation of a land in connection with the road work. The above notification No.381 dated 24.07.2014-published in Gazette of India is produced as document No.1. The project is ongoing at present. Final bituminous concreting and traffic safety arrangements are only left for W.A.796/2020 7 completion. 5.5 metres width is necessary for the road work and there was above 6 metres width for the road before demolition of the alleged compound walls. More over this respondents had completed GSB and WMM works in 5.5 meter width in July, 2019, which is prior to the alleged demolition. It is submitted that there was sufficient width to implement the work as per the estimate of the work. After completion of the work, the above road is to be handed over to the State PWD. This arrangement is made only to utilize the Central Govt. fund to the State PWD Roads. The relevant file of agreement No:12/SE/NH/CC/Kochi 2018-19 dated 28.05.2018 is produced as document No.2. It is also submitted that the contractor of the above work, who is not a party to the writ appeal filed a complaint to the S.H.O., Puthencruz Police Station alleging that some local people destroyed the above mentioned GSB and WMM work while demolishing the above compound walls and leveled nearby areas with earth soil by using excavator. Copy of the above complaint forwarded to Assistant Executive Engineer of NH Sub Division Ernakulam and the same is produced as document No.3, which would that the works were started there, before alleged demolition. The site handed over to the contractor by NH wing on 05.06.2018 and sufficient width was there for implementing the above work on that day. Moreover, in the particular areas near to the appellants' properties, the existing width was more than 6 metres before the alleged demolition of compound walls. Hence, the respondents had no intention or plan to widen the road to implement the above work. Exhibit-P10 order is not binding on the works of NH wing. That is binding on the works undertaken by Kerala State PWD. Moreover, in this work, there were no acquisition of land and have W.A.796/2020 8 not made any discussion or agreement with the appellants. Appellants themselves have admitted that they have discussed the matter with the concerned Panchayat. These respondents are not liable or bound to do any works other than the estimates work of documents No. 2. Hence, the respondents are not a necessary party to the above writ and appeal.” 6. On this day, when the instant writ appeal came up for consideration, Mr. Joby Jacob Pulickekudy, learned counsel for the appellants, reiterated the grounds raised and sought for reversal of the impugned judgment. However, on the basis of the statement of facts submitted by the Executive Engineer, NH (Roads) Division, Muvattupuzha, Mr. Surin George Ipe, learned Senior Government Pleader, submitted that Kolanchery - Ramamangalam road had 6 metres width. There was no requirement for acquisition of land by Government of Kerala. Contention of demolition by the Public Works Department is denied. Added further, inviting the attention of this Court to paragraph Nos. 29 and 30 of the decision of the Hon'ble Apex Court in **City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and others** [(2009) 1 SCC 168], learned Senior Government Pleader submitted that when facts are disputed, writ petition should not be entertained. Paragraph Nos.29 and 30 of the said decision are extracted hereunder: "29. In our opinion, the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is W.A.796/2020 9 duty – bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex parte writ of mandamus, order or direction in a public law remedy. Further, while considering the validity of impugned action or inaction the Court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction under Article 226 of the Constitution. 30. The Court while exercising its jurisdiction under Article 226 is duty – bound to consider whether: - (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; - (b) the petition reveals all material facts; - (c) the petitioner has any alternative or effective remedy for the resolution of the dispute; - (d) person invoking the jurisdiction is guilty of unexplained delay and laches; - (e) ex facie barred by any laws of limitation; - (f) grant of relief is against public policy or barred by any valid law; and host of other factors. The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the Court and particularly in cases where public revenue and public interest are involved. Such directions are always required to be complied with by the State. No relief could W.A.796/2020 10 be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter-affidavit opposing the writ petition. Further, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public law remedy to which he is not otherwise entitled to in law. " ## 7. On the aspect of disputed questions of fact and maintainability of a writ ## petition, we deem it fit to consider a few decisions. ## (i) In **Rourkela Shramik Sangh v. Steel Authority of India Ltd.** **and Ors.** [(2003) 4 SCC 317], the Hon’ble Apex Court observed thus: “24. Furthermore, even otherwise, a disputed question of fact normally would not be entertained in a writ proceeding. This aspect of the matter has also been considered by a Constitution Bench of this Court in Steel Authority of India Ltd. and Ors. v. National Union Waterfront Workers and Ors.” ## (ii) In **Himmat Singh v. State of Haryana and Ors.** [(2006) 9 SCC 256], the Hon’ble Supreme Court, while dealing with a finding of fact by the High Court, held thus: “13.......In the grounds of a writ petition only a question of law can be raised and not a statement of fact. No statement has been made in the body of the writ petition. The statement made in the said grounds was also not verified in accordance with the writ rules. Despite the same, as we have noticed herein before, the Fifth Respondent in his affidavit denied or disputed the contents thereof. Whether the statement of the Appellant or the Fifth Respondent was correct or not could not ordinarily be decided in a writ proceeding **. It is well known that in a writ petition ordinarily such a disputed question of fact should not be entertained** . The High Court arrived at a finding of fact on the basis of affidavit evidence.” (iii) In **Sanjay Sitaram Khemka v. State of Maharashtra and Others** [(2006) 5 SCC 255], the Hon'ble Supreme Court held thus: W.A.796/2020 11 “Having regard to the allegations and counter allegations made by the parties before us, we are of the opinion that no relief can be granted to the petitioner in this petition. The writ petition has rightly been held by the High Court to be involving disputed questions of fact. The petitioner has several causes of action wherefor he is required to pursue specific remedies provided therefor in law. 9. A writ petition, as has rightly been pointed out by the High Court, for grant of the said reliefs, was not the remedy. **A matter involving a great deal of disputed questions of fact cannot be dealt with by the High Court in exercise of its power of judicial review. As the High Court or this Court cannot, in view of the nature of the controversy as also the disputed questions of fact, go into the merit of the matter; evidently no relief can be granted to the petitioner at this stage.** We are, therefore, of the opinion that the impugned judgment of the High Court does not contain any factual or legal error warranting interference by this Court in exercise of its jurisdiction under Article 136 of the Constitution.” (iv) In **Greater Mohali Area Development Authority and Ors. v. Manju Jain and Ors.** [(2010) 9 SCC 157], the Hon’ble Supreme Court held thus : “25...... **It is settled legal proposition that pure question of law can be raised at any time of the proceedings but a question of fact which requires investigation and inquiry, and for which no factual foundation has been laid by a party before the Court or Tribunal below, cannot be allowed to be agitated in the Writ Petition.** If the Writ court for some compelling circumstances desires to entertain a new factual plea the court must give due opportunity to the opposite party to controvert the same and adduce the evidence to substantiate its pleadings. Thus, it is not permissible for the High Court to consider a new case on facts or mixed question of fact and law which was not the case of the parties before the Court or Tribunal below. (Vide **State of U.P. v. Dr. Anupam Gupta** : AIR 1992 SC 932; **Ram Kumar Agrawal and Anr. v. Thawar Das (D) through Lrs.** (1999) 7 SCC 303; **Vasantha Viswanathan and Ors. v. V.K. Elayalwar and Ors.** (2001) 8 SCC 133; **Anup Kumar Kundu v. Sudip Charan Chakraborty** (2006) 6 SC 666; Tirupati Jute Industries (P) Ltd. v. State of West Bengal (2009) 14 SCC 406 and Sanghvi Reconditioners (P) Ltd. v. Union of India and Ors. (2010) 2 SCC 733.” W.A.796/2020 12 (v) In **Popatrao Vyankatrao Patil v. The State of Maharashtra and Ors.** Civil Appeal No. 1600 of 2020 dated (14.02.2020), The Hon’ble Apex Court observed thus: “6. It could thus be seen, that even if there are disputed questions of fact which fall for consideration but if they do not require elaborate evidence to be adduced, the High Court is not precluded from entertaining a petition Under Article 226 of the Constitution. However, such a plenary power has to be exercised by the High Court in exceptional circumstances. The High Court would be justified in exercising such a power to the exclusion of other available remedies only when it finds that the action of the State or its instrumentality is arbitrary and unreasonable and, as such, violative of Article 14 of the Constitution of India.” 8. In the case on hand, demolition of the wall is disputed by the PWD. The decisions extracted above will apply to the case on hand. Hence, the appellants may work out their remedy before the competent Civil Court. Writ appeal dismissed. **Sd/-** **S.MANIKUMAR CHIEF JUSTICE** DG **Sd/SHAJI P.CHALY JUDGE**