M.K. Salim v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021 / 10TH AGRAHAYANA, 1943** ## **WP(C) NO. 27294 OF 2021** ## **PETITIONER:** **M.K. SALIM AGED 65 YEARS** **S/O LATE HAJI.M.K.AHAMMED KUNJU, RESIDING AT HAJI MANZIL, MAIN ROAD, KOLLAM-691001.** **BY SRI. M.K. SALIM(Party-In-Person)** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE EXECUTIVE ENGINEER INLAND NAVIGATION DEPARTMENT, LINK ROAD, KOLLAM-695001.** - **3 THE EXECUTIVE ENGINEER PWD,PUBLIC WORKS DEPARTMENT BEACH ROAD OFFICE, CHINNAKADA KOLLAM-691001.** - **4 THE SECRETARY, KOLLAM CORPORATION OFFICE, KOLLAM-691001.** - **5 THE EXECUTIVE ENGINEER WATER AUTHORITY OFFICE, NEAR MUNICIPAL TOWN HALL, KOLLAM-691001.** - **6 MANAGING DIRECTOR K WIL , 3RD FLOOR, 34/213, KOLARA ESTATE, EDAPPALLY, ERNAKULAM-682024.** - **SRI.K.P.HARISH, SENIOR GOVERNMENT PLEADER SRI.P.BENJAMIN PAUL STANDING COUNSEL SRI.M.K.CHANDRAMOHAN DAS, STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** ## **01.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.27294 of 2021 2 ## **JUDGMENT** Dated this the 1[st] day of December, 2021 ## **S. MANIKUMAR, CJ.** Instant public interest writ petition is filed by the petitioner, a party in person, claiming to be a senior citizen holding position as Executive Vice President of EPRC and and ex-Governing body member of District Tourism Promotion Council, Kollam, for the following reliefs: 1. Issue a writ of certiorari or other appropriate writ, order or direction to fix responsibility on the official respondents for the exhaustively delay in commissioning the demolished bridge. 2. Direct the 1[st] respondent to conduct a detailed enquiry and take appropriate action against the responsible officers for the delay in commissioning the demolished KALLUPALAM bridge. 3. Direct the First Respondent to take action on the official respondent of the Inland Navigation and the contractor in the construction of THADIPALAM bridge is constructed just a few years ago which has W.P.(C) No.27294 of 2021 3 been blocked for commuters as the bridge boundary wall collapsed and anytime the bridge will be collapsed and report back to the court in a time bound manner. 4. Grant any other reliefs which this Honourable Court deems fit to grant considering the facts and circumstances arising in this case. 5. Issue a direction of the 6[th] respondent (KWIL) to file an affidavit when the Jalapadha will be commissioned. ## 2. Grounds on the basis of which, the writ petition is filed are ## as hereunder: 1. Kollam city known to be a trade hub since past two centuries. Water navigation started in the State only in 1880's, when the Regent Rani Parvathi Bhai of Travancore took the invitation in the late 1880 's, there was no navigation. 2. The bridge known as KALLUPALAM BRIDGE was built during the reign off Travancore Regent Rani Parvathi bhai, during the British India period in 1880. The bridge was constructed over the Kollam Thodu running from Kollam to Kovalam a stretch of 74 km water stretch constructed by the same Regent Parvathy bhai Rani of Travancore over TS Canal known as Thiruvananthapuram - Shornur canal. 3. The construction is being undertaken by the INLAND NAVIGATION DEPARTMENT, Kollam division headed by the Executive Engineer. There are about hundreds of business shops whole sale and retailers on either W.P.(C) No.27294 of 2021 4 side of the both approach roads to the bridge starting from Lakshmida junction to Chamakkada junction the main trade hub. Some of the shop owners have closed down their shops as no commuters can come to this business hub. The business community is really facing hardship to make their both ends meet. 4. On top of it, another bridge adjacent to this demolished bridge known as THADIPALAM, constructed over the same TS canal built by Inland Navigation depart. a few years back is also been blocked by the authority as the boundary wall of the bridge has given way and anytime it will collapse. This bridge is the only bridge connecting the Coastal area of Kollam to the city. This was the bridge being used by commuters since Main Kallupalam bridge had been demolished since last four years. 5. The worst affected commuters is the school going children, now as this bridge is also closed for the public the children will have to walk around five kms to reach their school. 6. Its like adding fuel to the fire is the approach roads to the Kallupalam has been devastated by the Kerala Water authority department has dug up the whole area which is the business hub of Kollam city and after laying the water pipes and left it deserted as a muddy and clay road which has made it hazardous task to walk over the muddy road to even enter their own shops fearing slippery in this rainy season. On enquiry it has been learnt it's the PWD department who has to tar the road. Each department playing a blame game to the public and has become irresponsible to the public. 7. Since this WP is filed as PIL since official respondents nor the elected W.P.(C) No.27294 of 2021 5 representatives did not respond on the complaint from public protests.” 3. Except Exhibit P1 agreement dated 25.1.2018 and Exhibit P2 photograph, there are no materials supporting the issues raised by the writ petitioner in the writ petition. 4. Judicial notice can be taken that Mr.Salim – party-in-person, has filed earlier public interest writ petitions, but the present writ petition is not supported by any material document. 5. On the aspect of Public Interest Litigation, reference can be made to a few of the decisions, which are extracted hereunder: “In **Guruvayur Devaswom Managing Committee & Anr. v. C.K.Rajan & Others** [(2003) 7 SCC 546], the Hon'ble Apex Court has summarised the principles with respect to filing a Public Interest Litigation and they are reproduced: “(i) The Court in exercise of powers under Article 32 and Article 226 of the Constitution of India can entertain a petition filed by any interested person in the welfare of the people who is in a disadvantaged position and, thus, not in a position to knock the doors of the Court. The Court is constitutionally bound to protect the W.P.(C) No.27294 of 2021 6 fundamental rights of such disadvantaged people so as to direct the State to fulfill its constitutional promises. [See **S.P. Gupta v. Union of India, People's Union for Democratic Rights v. Union of India** (1982) 2 SCC 494 **, Bandhua Mukti Morcha v. Union of India and Others (1984) 3 SCC 161 and Janata Dal v. H.S.Chowdhary** (1992) 4 SCC 305)] (ii) Issues of public importance, enforcement of fundamental rights of a large number of the public vis-a-vis the constitutional duties and functions of the State, if raised, the Court treats a letter or a telegram as a public interest litigation upon relaxing procedural laws as also the law relating to pleadings. [See **Charles Sobraj v. Supdt., Central Jail, Tihar, New Delhi (1978) 4 SCC 104 and Hussainara Khatoon and Others v. Home Secretary, State of Bihar** (1980) 1 SCC 81)] (iii) Whenever injustice is meted out to a large number of people, the Court will not hesitate in stepping in. Articles 14 and 21 of the Constitution of India as well as the International Conventions on Human Rights provide for reasonable and fair trial. In **Mrs. Maneka Sanjay Gandhi v. Rani Jethmalani** (AIR 1979 SCC 468), it was held: "2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative W.P.(C) No.27294 of 2021 7 convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner’s grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.” (See also Dwarka Prasad Agarwal (D) By Lrs. and Anr. v. B.D. Agarwal and Ors. (2003) 5 SCALE 138) (iv) The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, the depraved (sic), the illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. [See Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India, AIR 1981 SC 344, S.P. Gupta (supra), People's Union for Democratic Rights (supra), Dr. D.C. Wadhwa (Dr) v. State of Bihar (1987) 1 SCC 378 and BALCO Employees' Union (Regd.) v. Union of India and Others [(2002) 2 SCC 333] (v) When the Court is prima facie satisfied about variation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the W.P.(C) No.27294 of 2021 8 Government from raising the question as to the maintainability of the petition. (vi) Although procedural laws apply to PIL cases but the question as to whether the principles of res judicata or principles analogous thereto would apply depends on the nature of the petition as also facts and circumstances of the case. [See **Rural Litigation and Entitlement Kendra v. State of U.P.** , 1989 Supp (1) SCC 504 and **Forward Construction Co. v. Prabhat Mandal (Regd.), Andheri and others** (1986) 1 SCC 100] (vii) The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a public interest litigation. (See **Ramsharan Autyanuprasi v. Union of India and Others** 1989 Supp (1) SCC 251) (viii) However, in an appropriate case, although the petitioner might have moved a court in his private interest and for redressal of personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. (See **Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and Others** (1987) 1 SCC 227). (ix) The Court in special situations may appoint a Commission, or other bodies for the purpose of investigating into the allegations and finding out facts. It may also direct W.P.(C) No.27294 of 2021 9 management of a public institution taken over by such Committee. (See **Bandhua Mukti Morchai, Rakesh Chandra Narayan v. State of Bihar** (1989) Suppl 1 SCC 644 and A.P. Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718). In **Sachidanand Panday and Another v. State of West Bengal and others** [(1987) 2 SCC 295], this Court held,- “61. It is only when courts are apprised of gross violation of fundamental rights by a group or a class action on when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and hear such petitions and extent its jurisdiction under all available provisions for remedying the hardships and miseries of the need, the underdog and the neglected. I will be second to none in extending help when such is required. But this does mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants." ## (2). This Court in the unreported judgment dated 30.06.2020 in **B. Radhakrishna Menon v. State of Kerala and Ors.** [W.P.(C) No.12109 of 2020], at paragraph 45, held thus: “45. Placing reliance on the above decisions, the learned Senior Government Pleader submitted that a public interest writ petition which lacks bona fides, lack of particulars satisfying the requirements of a PIL, deserves to be dismissed with costs. Having regard to decisions considered in **Mythri Residents Association** W.P.(C) No.27294 of 2021 10 ## **v. Secretary, Tripunithura Municipality and Others,** [2019 KHC 832], it has been summarised by the journal thus: “(1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations. (2) Instead of every individual Judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter. (3) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL. (4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL. (5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition. (6) The Courts should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions. (7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation. (8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar W.P.(C) No.27294 of 2021 11 novel methods to curb frivolous petitions and the petitions filed for extraneous considerations. (9) The misuse of public interest litigation is a serious matter of concern for the judicial process. (10) Both this Court and the High Courts are flooded with litigations and are burdened by arrears. (11) Frivolous or motivated petitions, ostensibly invoking the public interest detract from the time and attention which courts must devote to genuine causes. (12) This Court has a long list of pending cases where the personal liberty of citizens is involved. (13) Those who await trial or the resolution of appeals against orders of conviction have a legitimate expectation of early justice. (14) It is a travesty of justice for the resources of the legal system to be consumed by an avalanche of misdirected petitions purportedly filed in the public interest which, upon due scrutiny, are found to promote a personal, business or political agenda. (15) This has spawned an industry of vested interests in litigation. (16) There is a grave danger that if this state of affairs is allowed to continue, it would seriously denude the efficacy of the judicial system by detracting from the ability of the court to devote its time and resources to cases which legitimately require attention. (17) Worse still, such petitions pose a grave danger to the credibility of the judicial process. (18) This has the propensity of endangering the credibility of other institutions and undermining public faith in democracy and the rule of law. (19) This will happen when the agency of the court is utilised to settle extra-judicial scores. Business rivalries have to be resolved in a competitive market for goods and services. W.P.(C) No.27294 of 2021 12 (20) Political rivalries have to be resolved in the great hall of democracy when the electorate votes its representatives in and out of office. (21) Courts resolve disputes about legal rights and entitlements. (22) Courts protect the rule of law. (23) There is a danger that the judicial process will be reduced to a charade, if disputes beyond the ken of legal parameters occupy the judicial space.” 6. Going through the decisions cited supra, we are of the view that the present writ petition has not satisfied the requirements of a public interest litigation for issuance of a Mandamus, and more so, while seeking directions to fix the responsibility on the official respondents for the inordinate delay in commissioning the demolished bridge. Petitioner has not even made an attempt to find out the reason for delay. In the light of the above discussion, the writ petition is dismissed. Sd/- ## **S.MANIKUMAR** **CHIEF JUSTICE** Sd/- **SHAJI P.CHALY** smv **JUDGE** W.P.(C) No.27294 of 2021 13 ## **APPENDIX OF WP(C) 27294/2021** **PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE AGREEMENT NO.23/DIR/INDT/2017/18 DATED 25.01.2018 ALONG WITH TYPED COPY. Exhibit P2 TRUE PHOTO OF KALLUPALAM DEMOLISHED BRIDGE. Exhibit P3 TRUE PHOTO OF THADIPALAM BRIDGE.**