Kerala HC: First Examine Whether the Course Adopted by the Corporation Is Correct and Then Implement Remedial Measures so Prescribed

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Kerala HC directes Central Government

The petitioner had prayed in the writ petition for a direction to the Corporation and its officials to ensure that the restoration work of the road was continued and completed only after having removed the existing bituminous road surface and to ensure that the level of the existing road was not increased by the restoration work.

Facts of the Case

The petitioner was a practicing lawyer residing in a house situated on a plot of land abutting Sivarama Menon road, within the limits of Kochi Corporation. The stretch of the road in front of the house of the petitioner was in a dilapidated condition. The Corporation decided to restore the road by adopting Bituminous Macadam and Bituminous Concrete methods. They awarded the work to a Contractor (4th respondent).

It was the case of the petitioner that the aforesaid part of the work was an integral part of the restoration work of the road without which the restored road would not last long. The court had passed an interim order directing the Corporation and its officials to ensure that the work of the road was carried out by the fourth respondent only following the terms of the contract.

The petitioner had filed an interlocutory application seeking leave to amend the writ petition to incorporate a few additional facts, grounds, and prayers. The additional prayers sought by the petitioner in the writ petition were: 

  1. To direct the Corporation and its officials to re-do the work of the road following the terms of the contract, after ensuring that the level of the road had not increased. 
  2. To issue direction to the Corporation and its officials to take steps forthwith to ensure smooth and free ingress and egress of men and vehicles to and from the plot of the petitioner.
  3. To appoint an expert engineer to ascertain and report a few facts. 

Under the said interim order, the expert appointed by the Court had conducted a local inspection and filed a report. The petitioner had filed a Contempt Case alleging that the work was executed during the pendency of the writ petition flouting the interim order passed.

Arguments by the Parties

The petitioner stated that the level of the road had raised by about 3 feet during the last 20 years as restoration works were earlier carried out on the road without scarifying the then-existing bituminous road surface. Further, on account of the said reason, there had been water-logging in the area.The existing drainage system had become ineffective because of the level difference between the surface of the road and the surface of the drainage.

The petitioner had alleged that though the agreement entered into by the Corporation with the 4th respondent made it obligatory for the 4th respondent to scarify and remove the existing bituminous surface of the road, he had attempted to complete the work without scarifying and removing the existing bituminous surface. The petitioner also alleged that if the work was carried out in the aforesaid fashion, the petitioner would not be able to take out his car to the road from his residential plot.

Court’s Observations

The court had observed that there was nothing on record to indicate as to whether the Corporation had prescribed any specification/standards/guidelines for construction and maintenance of city roads. The Corporation did not dispute the fact that the level of the road would be raised whenever the road was restored, maintained, or resurfaced. The said course would not be scientific and would adversely affect the interests of persons residing on either side of the road.

In the absence of any obligation for the Corporation in terms of any statute or guidelines to ensure that the level of the road was maintained when the restoration was carried on. The Court would be unjustified, in the exercise of the discretionary jurisdiction under Article 226 of the Constitution, in granting the relief sought for by the petitioner, especially when the writ petition was instituted much after the commencement of the work. 

Even if the work had been executed flouting the interim order passed by the Court, the petitioner was not entitled to the relief sought for in the amended writ petition merely on account of the said reason, since it was found that the petitioner was not entitled to the relief originally sought in the writ petition. If the work was not executed following the terms of the agreement and if it was demonstrated that damage had been caused on account of the same to the people residing on either side of the road, the petitioner was certainly entitled to appropriate relief in the matter. The case set out by the petitioner in the amended writ petition and pleadings of the petitioner stood uncontroverted. 

The case of the petitioner that the work had been executed by the Corporation otherwise than following the terms of the agreement, violating the specific interim order passed by this Court, was only to be accepted. Execution of a road work otherwise than following the terms of the agreement resulting in damage to the people residing on either side of the road could not be viewed lightly and so the order passed by the Court. Hence, the petitioner was entitled to an appropriate relief in this regard.

It was also observed that raising the level of the road while carrying out the restoration or maintenance or resurfacing work was not an advisable method to be adopted. The provision was made to this effect in the guidelines for construction and maintenance of city roads by the Bruhat Bengaluru Mahanagara Palike during the year 2009.

The report filed by the expert appointed in the matter also indicated that the work had not been executed as originally proposed. After the work, the petitioner couldn’t have vehicular access to and from his residential plot. 

It was seen that it was on account of this reason that a large number of buildings situated on either side of the roads in the Corporation, the level of which had been raised considerably on account of restoration or maintenance or resurfacing works were modified and altered in course of time. This was a sheer waste of resources, and for those who could not afford to modify or lift the building, it was a perennial hardship. This was certainly a matter to be considered by the Corporation.

Court’s Decision

The court had thus disposed of the writ petition by directing the Corporation to constitute a committee of experts, with the concurrence of the Directorate of Municipal Administration of the State Government within three months to lay down specifications and standards for construction and maintenance of city roads, in the form of guidelines. The said committee was required to address the issue discussed in paragraph 14 of the judgment and submit a report to the Corporation within three months thereafter. 

The committee was to primarily examine the question of whether the course adopted by the Corporation in completion of restoration work of the road referred to in the writ petition was correct and then suggest the remedial measures. Once the guidelines were prescribed by the committee as directed, the construction and maintenance of city roads should be carried out only following the said guidelines. Needless to say, the Corporation should also implement the remedial measures, if any, suggested by the committee concerning the road referred to in the writ petition expeditiously

CLICK HERE TO VIEW THE JUDGMENT


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