Siraj K.A.; Samiya A.; Prakash Philip v State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 6[TH] DAY OF OCTOBER 2022 / 14TH ASWINA, 1944 WP(C) NO. 20291 OF 2022** ## **PETITIONER/S:** SIRAJ K.A., AGED 46 YEARS S/O. K.M. ABOOBACKER, KONNULLIPARAMBIL HOUSE, CHEMBUMUKKU, THRIKKAKARA P.O., ERNAKULAM, PIN: 682 021. BY ADVS. K.R.VINOD M.S.LETHA K.S.SREEREKHA NABIL KHADER ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY ADDL. CHIEF SECRETARY, SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM, PIN: 695 001. 2 DEPUTY COLLECTOR & COMPETENT AUTHORITY, (KOCHI-SALEM PIPELINE PVT.LIMITED-KSPPL), SECOND FLOOR, KARUN ENCLAVE, SN JUNCTION, TRIPUNITHURA P.O., ERNAKULAM, PIN: 682 301. 3 KOCHI SALEM PIPELINE PRIVATE LIMITED, MALAYIL MAJESTY BUILDING, SECOND FLOOR, NEAR RAILWAY OVER BRIDGE, REFINERY ROAD, TRIPUNITHURA P.O,, ERNAKULAM, PIN: 682 301. 4 ANURAJ BALAN, ENGINEERING CONTRACTOR, SREEKRISHNA VILASAM, CHERUVATTOOR P.O., KOTHAMANGALAM, PIN: 686 691. BY ADVS. SHRI.SAJI VARGHESE MARIAM MATHAI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.09.2022, THE COURT ON 06.10.2022 ALONG WITH W.P.(C) Nos. 21769 & 21787 of 2022 DELIVERED THE FOLLOWING: -2- W.P.(C) Nos.20291, 21769 & 21787 of 2022 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 6[TH] DAY OF OCTOBER 2022 / 14TH ASWINA, 1944** ## **WP(C) NO. 21769 OF 2022** ## **PETITIONER/S:** SAMIYA A., AGED 30 YEARS W/O. HASEEB, KONNULLIPARAMBIL HOUSE, CHEMBUMUKKU, THRIKKAKARA P.O., ERNAKULAM, PIN: 682 021. BY ADVS. K.R.VINOD M.S.LETHA K.S.SREEREKHA NABIL KHADER ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY ADDL.CHIEF SECRETARY, SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM, PIN: 695 001. 2 DEPUTY COLLECTOR & COMPETENT AUTHORITY, (KOCHI-SÄLEM PIPELINE PVT.LIMITED-KSPPL), SECOND FLOOR, KARUN ENCLAVE, SN JUNCTION, TRIPUNITHURA P.O., ERNAKULAM, PIN: 682 301. 3 KOCHI SALEM PIPELINE PRIVATE LIMITED, MALAYIL MAJESTY BUILDING, SECOND FLOOR, NEAR RAILWAY OVER BRIDGE, REFINERY ROAD, TRIPUNITHURA P.O., ERNAKULAM, PIN: 682 301. BY ADVS. M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RAJA KANNAN W.P.(C) Nos.20291, 21769 & 21787 of 2022 -3- ## **OTHER PRESENT:** GP AMMINIKUTTY K THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.09.2022, THE COURT ON 06.10.2022 ALONG WITH W.P.(C) Nos. 20291 & 21787 of 2022 DELIVERED THE FOLLOWING: -4- W.P.(C) Nos.20291, 21769 & 21787 of 2022 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 6[TH] DAY OF OCTOBER 2022 / 14TH ASWINA, 1944** ## **WP(C) NO. 21787 OF 2022** ## **PETITIONER/S:** PRAKASH PHILIP AGED 34 YEARS S/O.A.K.PHILIP, ERANACKAL HOUSE, K.P.KURIAN ROAD, NEAR ST.MARY'S JACOBITE SYRIAN CHURCH, VAYANASALA JUNCTION, THENGOD P.O., KAKKANAD, KOCHI - 682 030. BY ADVS. K.R.VINOD M.S.LETHA K.S.SREEREKHA NABIL KHADER ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY ADDL.CHIEF SECRETARY, SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM, PIN - 695 001. 2 DEPUTY COLLECTOR & COMPETENT AUTHORITY (KOCHI-SALEM PIPELINE PVT.LIMITED-KSPPL), SECOND FLOOR, KARUN ENCLAVE, SN JUNCTION, TRIPUNITHURA P.O., ERNAKULAM, PIN -682 301. 3 KOCHI SALEM PIPELINE PRIVATE LIMITED REP. BY THE CHIEF EXECUTIVE OFFICER, MALAYIL MAJESTY BUILDING, SECOND FLOOR, NEAR RAILWAY OVER BRIDGE, REFINERY ROAD, TRIPUNITHURA P.O., ERNAKULAM, PIN - 682 301. BY ADVS. M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS W.P.(C) Nos.20291, 21769 & 21787 of 2022 -5- PAULOSE C. ABRAHAM RAJA KANNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.09.2022, THE COURT ON 06.10.2022 ALONG WITH W.P.(C) Nos. 21769 & 20291 of 2022 DELIVERED THE FOLLOWING: W.P.(C) Nos.20291, 21769 & 21787 of 2022 -6- ## **JUDGMENT** Dated this the 06[th] day of September, 2022 These writ petitions are filed by persons residing within the vicinity of the property in which the second respondent is constructing a Sectionalized Valve Station. The construction is being carried out in connection with the laying of the Kochi-Salem Pipeline for transporting LPG from BPCL Kochi Refinery and IOCL, Puthuvypeen to BPCL/IOCL LPG Plants at Udayamperoor, Palakkad, Coimbatore, Erode and Salem, under authorisation from the Petroleum and Natural Gas Regulatory Board. According to the petitioners, their residential buildings and compound walls have sustained substantial damages due to the negligent manner in which construction work is being carried out. The relief sought in these writ petitions are as under; “ _(i) To issue writ of mandamus directing the 3rd respondent to pay compensation of_ W.P.(C) Nos.20291, 21769 & 21787 of 2022 -7- _Rs.40,00,000/- as estimated by the qualified Engineer as seen in Ext.P7 to the petitioner in connection with the damages caused by them while digging huge pits near to the building of the petitioner without taking precaution to prevent soil erosion or in alternative direct the 3rd respondent to rectify the damages caused to the residential building by reconstructing the residential building of the petitioner to restore it into its original condition._ _(ii) Direct the respondents No.1 & 2 to take necessary steps to recover the amount of Rs.40,00,000/- from the 3rd respondent and to pay the same to the petitioner towards damages caused to her building by the construction activities carried out by the 3rd respondent upon the failure of the 3rd respondent to pay the same to the petitioner.(Rs.45,00,0000 in W.P.(C) No.20291 of 2022)”_ 2. Heard Adv.K.R.Vinod and Nabil Khader for the petitioners, Adv.Saji Varghese and Ramola W.P.(C) Nos.20291, 21769 & 21787 of 2022 -8- Nayanpally for the respondents. 3. Learned Counsel for the petitioners argued extensively on the duties and responsibilities of the owner or developer of the property to ensure that the construction is carried out without any damage to the adjoining properties. It is contended that the subject construction is being done without providing any protective measures and the negligence and latches of the workers has resulted in the petitioners’ building sustaining extensive damages. The damages were assessed and quantified with the aid of an approved Engineer. 4. Learned Counsel for the respondents raised a preliminary objection as to the maintainability of the writ petitions. It is submitted that a writ petition claiming compensation cannot be filed or entertained based on a unilateral assessment of damages and production of selfserving documents. In support of the argument, W.P.(C) Nos.20291, 21769 & 21787 of 2022 -9- reliance is placed on the decision in _**SDO, Grid Corporation of Orissa Ltd and others v. Timudu**_ ## _**Oram [(2005) 6 SCC 156]**_ . 5. I find substantial merit in the challenge against maintainability. The petitioners have unilaterally assessed the damages and quantified the compensation with the aid of an Engineer. The respondents are refuting the allegation that cracks had developed in the petitioners’ building due to the construction. According to the respondents, the cracks pointed out by the petitioners are due to fluctuation in temperature and moisture content. Such cracks normally occur in buildings in Kerala due to weather impact. To support this argument, respondents relied on the report of the Engineers India Ltd, a Government of India undertaking, which is the project management consultant and engineering designer for the Pipeline project. In _**Timudu Oram** (supra)_ , W.P.(C) Nos.20291, 21769 & 21787 of 2022 -10- compensation was claimed for the death by electrocution of the writ petitioner's father. The writ petitioner contended that the death was due to the negligence on the part of the respondents/licensee in leaving the GI wire uninsulated. On the other hand, the respondents alleged that the uninsulated GI wire was illegally drawn from the main supply line. The High Court directed the respondents to pay Rs.2,70,000/- as compensation to the writ petitioner. While setting aside the High Court’s judgment, the Supreme Court held as under; “ _6. In Chairman, Grid Corpn. of Orissa Ltd. (GRIDCO) [(1999) 7 SCC 298] with which case these appeals were listed for hearing but could not be heard for want of service, this Court took the view that the High Court committed an error in entertaining the writ petitions under Article 226 of the Constitution and were not fit cases for exercising the_ W.P.(C) Nos.20291, 21769 & 21787 of 2022 -11- _jurisdiction under Article 226 of the Constitution. It was held that actions in tort and negligence were required to be established initially by the claimants. The mere fact that the wire of electric transmission line belonging to the appellants had snapped and the deceased had come into contact with it and died by itself was not sufficient for awarding compensation. The Court was required to examine as to whether the wire had snapped as a result of any negligence on the part of the appellants, as a result of which the deceased had come in contact with the wire. In view of the defence raised and the denial by the appellants in each of the cases, the appellants deserved an opportunity to prove that proper care and precautions were taken in maintaining the transmission line and yet the wires had snapped because of the circumstances beyond their control or unauthorised intervention of third parties. Such disputed questions of fact could not be decided in exercise of jurisdiction under_ W.P.(C) Nos.20291, 21769 & 21787 of 2022 -12- _Article 226 of the Constitution. That the High Court could not come to the conclusion that the defence raised by the appellants had been raised only for the sake of it and there was no substance in it.”_ **==> picture [381 x 12] intentionally omitted <==** position, claim for compensation based on a unilateral assessment cannot be entertained, particularly when the claim is disputed by the respondents. Although various other contentions are raised, having found the writ petition not maintainable, the other contentions are left open to be agitated before the competent civil court, if and when warranted. **==> picture [381 x 12] intentionally omitted <==** dismissed. ## **Sd/-** ## **V.G.ARUN** ## **JUDGE** Scl/ W.P.(C) Nos.20291, 21769 & 21787 of 2022 -13- ## **APPENDIX OF WP(C) 20291/2022** ## PETITIONER EXHIBITS |Exhibit P1|THE COPY OF THE SALE DEED NO.3830/2018| |---|---| ||OF SRO THRIKKAKARA.| |Exhibit P2|THE COPY OF THE LAND TAX PAYMENT| ||RECEIPT OF THE LANDED PROPERTY COVERED| ||BY EXT.P1 DATED 13.04.2021.| |Exhibit P3|THE COPY OF THE OCCUPANCY CERTIFICATE| ||DATED 03.02.2020 ISSUED BY THRIKKAKARA| ||MUNICIPALITY.| |Exhibit P4|THE COPY OF THE PROPERTY TAX PAYMENT| ||RECEIPT DATED 30.03.2021 ISSUED BY| ||THRIKKAKARA MUNICIPALITY.| |Exhibit P5|THE COPY OF THE NOTIFICATION DATED| ||08.07.2020 ISSUED BY THE 2ND| ||RESPONDENT| |Exhibit P6|THE PHOTOGRAPH SHOWING ONE OF THE PITS| ||UNSCIENTIFICALLY EXCAVATED BY THE 3RD| ||AND 4TH RESPONDENT.| |Exhibit P7|: THE PHOTOGRAPH SHOWING THE CRACKS ON| ||THE BUILDING AS WELL AS WALLS OF THE| ||HOUSE OF THE PETITIONER (4 NOS.).| |Exhibit P8|THE PHOTOGRAPH OF THE HOUSE OF THE| ||PETITIONER AFTER COMPLETING ITS| ||CONSTRUCTION 2021.| |Exhibit P9|THE COPY OF THE REPORT OF THE EXPERT| ||ENGINEER.| W.P.(C) Nos.20291, 21769 & 21787 of 2022 -14- ## **APPENDIX OF WP(C) 21787/2022** ## PETITIONER EXHIBITS |Exhibit P1|THE COPY OF THE SALE DEED NO.1606/2021| |---|---| ||OF SRO THRIKKAKARA.| |Exhibit P2|THE COPY OF THE LAND TAX PAYMENT| ||RECEIPT OF THE LANDED PROPERTY COVERED| ||BY EXT.P1 DATED 13/06/2022.| |Exhibit P3|THE COPY OF THE BUILDING TX PAYMENT| ||RECEIPT DATED 13/06/2022.| |Exhibit P4|THE COPY OF THE NOTIFICATION DATED| ||08/07/2020 ISSUED BY THE 2ND| ||RESPONDENT.| |Exhibit P5|THE PHOTOGRAPH SHOWING ONE OF THE PITS| ||UNSCIENTIFICALLY EXCAVATED BY THE 3RD| ||RESPONDENT.| |Exhibit P6|THE PHOTOGRAPH SHOWING THE CRACKS ON| ||THE BUILDING AS WELL AS WALLS OF THE| ||HOUSE OF THE PETITIONER (4 NOS.).| |Exhibit P7|THE COPY OF THE REPORT OF THE EXPERT| ||ENGINEER.| |RESPONDENT EXHIBITS|| |Exhibit R3(a)|A TRUE COPY OF A LAYOUT SKETCH OF THE| ||SV STATION DATED NIL.| |Exhibit R3(b)|A COPY OF THE JUDGMENT DATED| ||18.02.2022 IN WPC NOS. 19715/2021 &| ||21861/2021.| |Exhibit R3(c)|A COPY OF THE JUDGMENT DATED| ||08.06.2022 IN W.A.NO.400 OF 2022| |Exhibit R3(d)|A TRUE COPY OF THE REPORT DATED| ||11.7.2022 OF ENGINEERS INDIA LTD,| ||AFTER MAKING SITE INSPECTION OF| ||09.07.2022.| W.P.(C) Nos.20291, 21769 & 21787 of 2022 -15- ## **APPENDIX OF WP(C) 21769/2022** ## PETITIONER EXHIBITS |Exhibit P1|THE COPY OF THE SALE DEED NO.881/2020| |---|---| ||OF SRO THRIKKAKARA.| |Exhibit P2|THE COPY OF THE LAND TAX PAYMENT| ||RECEIPT OF THE LANDED PROPERTY COVERED| ||BY EXT.P1 DATED 09.06.2022.| |Exhibit P3|THE COPY OF THE BUILDING TAX PAYMENT| ||RECEIPT IN JUNE 2022.| |Exhibit P4|THE COPY OF THE NOTIFICATION DATED| ||08.07.2020 ISSUED BY THE 2ND| ||RESPONDENT.| |Exhibit P5|THE PHOTOGRAPH SHOWING ONE OF THE PITS| ||UNSCIENTIFICALLY EXCAVATED BY THE 3RD| ||RESPONDENT.| |Exhibit P6|THE PHOTOGRAPH SHOWING THE CRACKS ON| ||THE BUILDING AS WELL AS WALLS OF THE| ||HOUSE OF THE PETITIONER (4 NOS.)| |Exhibit P7|THE COPY OF THE REPORT OF THE EXPERT| ||ENGINEER.| |RESPONDENT EXHIBITS|| |Exhibit R3A|A TRUE COPY OF THE LAYOUT SKETCH OF| ||THE SV STATION DATED NIL.| |Exhibit R3B|A TRUE COPY OF THE JUDGMENT DATED| ||18.2.2022 IN WPC NOS.19715/2021 &| ||21861/2021.| |Exhibit R3C|A TRUE COPY OF THE JUDGMENT DATED| ||8.6.2022 IN W.A. NO.400 OF 2022.| |Exhibit R3D|A TRUE COPY OF THE REPORT DATED| ||11.7.2022 OF ENGINEERS INDIA LTD,| ||AFTER MAKING SITE INSPECTION ON| ||9.7.2022.|