A.SUBAYER v. THE STATE OF KERALA

WP(C).No. 12195 of 2012 (S) APPENDIX PETITIONERS' EXHIBITS : EXT.P1 TRUE C0PY OF THE REPORT OF THE NEW INDIAN EXPRESS DATED 6THOCTOBER 2008EXT.P2 TRUE COPY OF THE REPORT OF THE METRO MANORAMA DATED 31.07.2008.EXT.P3 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA DATED 12.07.2010.EXT.P4 TRUE COPY OF THE ORDER PASSED BY THE PUBLIC WORKS DEPARTMENT, TVM, DATED 20.12.2010EXT.P5 TRUE COPY OF THE JUDGMENT DATED 27.10.2010 IN WP(C) NO. 32742/10.EXT.P6 TRUE COPY OF THE SUBMISSION DATED 24.08.2009 BEFORE THE MINISTER (PWD) BY THE PETITIONER. EXT.P7 TRUE COPY OF THE LETTER MARKED BY THE PROJECT ENGINEER,KERALA ROAD FUND BOARD, DATED 08.10.2009EXT.P8 TRUE COPY OF THE LETTER BY THE KERALA ROAD FUND BOARD,DATED 30.06.2010EXT.P9 TRUE COPY OF THE ROAD MAP EXT.P10 TRUE COPY OF THE ROAD MAP EXT-P11 TRUE COPY OF THE PHOTOGRAPHEXT-P12 TRUE COPY OF THE PHOTOGRAPH EXT-P13 TRUE COPY OF THE PHOTOGRAPH REPORT OF MATHRUBHOOMI DATED27.3.2012EXT.P14 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA DATED 10.03.2011EXT.P15 TRUE COPY OF THE PHOTOGRAPH (1) & (2)EXT.P16 TRUE COPY OF THE PHOTOGRAPHS (1) & (2)EXT.P17 TRUE COPY OF THE PHOTOGRAPHSEXT.P18 TRUE COPY OF THE PHOTOGRAPHS EXT.P19 TRUE COPY OF THE NEWSPAPER REPORT DATED 12.02.2009...4/- WP(C).No.

12195 of 2012 (S) EXT.P20 TRUE COPY OF THE PHOTOGRAPH EXT.P21 TRUE COPY OF THE PHOTOGRAPHEXT.P22 TRUE COPY OF THE PHOTOGRAPHEXT.P23 TRUE COPY OF THE PETITION DT. 19.8.2009.EXT.P24 TRUE COPY OF THE PHOTOGRAPHEXT.P25 TRUE COPY OF THE PHOTOGRAPHEXT.P26 TRUE COPY OF THE PHOTOGRAPHEXT.P27 TRUE COPY OF THE MATHRUBHOOMI REPORT DATED 24.09.2011EXT.P28TRUE PHOTOGRAPH OF THE FORT COMPLEX AND DETAILED SKETCH OFTHE CONCERNED PROJECT SHOWING THE ROAD MAP.EXT.P29TRUE PHOTOGRAPH OF THE DWELLING HOUSE.EXT.P30TRUE PHOTOGRAPH OF THE VIRAKUPURAKOTTA.EXT.P31TRUE PHOTOGRAPH OF THE KARINKALLUKOTTAWALL.EXT.P32TRUE PHOTOGRAPH OF THE PLACE IN WHICH 'VIRAKUPURAKOTTA' EXISTED.EXT.P33TRUE PHOTOGRAPH OF THE PLACE IN WHICH 'VIRAKUPURAKOTTA' EXISTED RESPONDENTS' EXHIBITS :ANNEXURE R7(a)COPY OF THE LETTER FROM THE DIRECTOR OF ARCHAEOLOGY SENT TO THE CHIEF ENGINEER, PWD, ROAD DIVISION, THIRUVANANTHAPURAM SEEKING NECESSARY DETAILS.ANNEXURE R7(b)REPLY OF THE LETTER FROM KERALA ROAD FUND BOARD. //TRUE COPY// P.A. TO JUDGEMn MANJULA CHELLUR, CJ & A.M.SHAFFIQUE, J. * * * * * * * * * * * * * W.P.C.No.12195 of 2012 ----------------------------------------Dated this the 3rd day of October 2012 J U D G M E N T SHAFFIQUE,J.This public interest litigation is filed by a person who claims to be a social activist.

He has produced Exts.P1 and P2reports to indicate his involvement in issues relating to public amenities especially in regard to the water logging in East Fortand Thampanoor area at Thiruvananthapuram. The relief sought for is to quash Ext.P4 order, (wrongly typed as Ext.P3) to issue directions to comply with Ext.P13 direction issued by this Courtand to complete the construction of Killippalam - Eanchakkalbypass road within the time limit fixed by this Court. He also seeks for a direction for a CBI or Vigilance enquiry in regard to the expenditure of public money in the name of several projects implemented by Thiruvananthapuram Development Committee. The petitioner also seeks a writ of prohibition to restrain respondents from taking further steps to constructThakaraparambu fly over construction. W.P.C.No.12195/201222.The facts that led to the above case disclose that petitioner challenged construction of fly over at Thakaraparambuat Thiruvananthapuram city and according to him, widening of Killippalam - Attakkulangara - Eanchakkal bypass is the remedy to solve the problem faced by the residents in the said locality.

He approached this Court by filing W.P.C.No.20060/2010 which resulted in Ext.P3 judgment. As per the judgment dated12/07/2010, a Division Bench of this Court directed the petitioner to approach the High Level Committee which had been constituted for the purpose of hearing such complaints and the petitioner was permitted to submit a representation and the matter was directed to be disposed after hearing the petitioner. It was further directed that if the work is in progress, the same need not be stalled on account of any pending representation. Ext.P4 is the order passed by the Committee. The Committeehad come to the following findings: “The flyover at Thakaraparambu junction was proposed after a scientific study of the network of city roads by expert consultants who had also conducted detailed traffic surveys. Theproposed flyover at Thakaraparambu forms part W.P.C.No.12195/20123of an intermediate ring road of the capital city and will cater not only to the traffic from the southern gate of Thiruvananthapuram CentralRailway Station but also to the traffic from the south of Thiruvananthapuram city to the opposite sides of M.G.Road.

This fly over will also enable the vehicles a speedy access to theNH bypass and to the International Airport, Thiruvananthapuram. Moreover the proposed flyover at Thakaraparambu and the underpass at Palayam are the only alternatives to streamline the heavy traffic, when the traffic through MGroad (NH 47) is interrupted due to processions or other reasons near Government Secretariat.” 3. Further the suggestions made by the petitioner was also considered especially in regard to construction of a six lane divided at grade intersection at Thakaraparambu which was found to be unscientific and inappropriate. The Committeefound that such a construction will clog the busy M.G Road and Power House Road creating huge traffic block. Anothersuggestion was also considered especially regarding construction of a fly over in Attakkulangara Junction instead of at Thakaraparambu. The Committee observed that it was not a W.P.C.No.12195/20124practical suggestion as one side of the intersection abuts the fort wall, which is an archaeologically protected monument and it will be difficult for construction of a flyover in that area.

TheCommittee also observed that all the land required for the construction of a flyover except a few shops at Thakaraparambuwere taken possession as per the approved alignment and the rehabilitation works for the affected shops are smoothly going on and the same will be completed soon. 4. Though in the writ petition the petitioner has stated that he is challenging Ext.P3, apparently it seems to be a mistake and what is challenged is Ext.P4 order. He filed another writ petition as W.P.C.No.32742/2010 challenging Ext.P4. Byjudgment dated 27/10/2010, this Court found, after taking into consideration the challenges made by the petitioner against Ext.P4, that since the petitioner has no case that the High LevelCommittee or any members are personally interested in the construction of the flyover, it has to be assumed that the purpose of such a construction is to reduce traffic congestion in the city for public benefit and therefore when an expert body familiar with the local conditions has already decided the matter, no W.P.C.No.12195/20125judicial interference is required.

The Division Bench also took note of the fact that the construction of flyover has reached an advanced stage and since most of the acquisitions are over, no interference was made in respect of Ext.P4 order and the same had been confirmed. 5. The petitioner submitted Ext.P6 to the Minister for Public Works Department requesting for construction of Killippalam - Attakkulangara - Eanchakkal bypass road for which land was already acquired. Ext.P7 is the reply by which ProjectEngineer has informed the petitioner that the road from Attakkulangara to Eanchakkal is proposed to be constructed onBOT basis on a contract of 15 years and once the said road is completed, the traffic problems will be settled. 6. Ext.P8 is the letter dated 30/06/2010 issued by the Public Information Officer, Kerala Road Fund Board indicating that the bridge at Thakaraparambu is being constructed in sucha manner that the vehicles coming from Neyyattinkara side which proceeds to the bypass, Kannammoola, Medical College, Petta, Sreekandeswaram could directly proceed to such destinations without entering M.G Road and for that necessary W.P.C.No.12195/20126funds are available.

7. It is the case of the petitioner that when he had suggested an alternate road like Killippalam - Attakkulangara -Eanchakkal bypass road for solving the traffic problem in the city without constructing Thakaraparambu flyover, it is for illegal gains that the proposal had been made to construct the Thakaraparambu flyover as well as the bypass road. Hecontends that though the required land had been acquired, the shop owners who had been evicted are not rehabilitated. Thepetitioner produces Exts.P9 and P10 road maps to indicate that the construction of Thakaraparambu flyover in Thiruvananthapuram city is absurd, irrational, unscientific and wastage of public money. It is further contended that no steps had been taken by the respondents to protect archaeologicallyimportant monuments and fort wall (cotta). According to him, two sides of the fort wall is being damaged by the vehicles. Herelies upon Ext.P11 series and Ext.P12 photographs and Ext.P13report.

8. The petitioner had filed a third writ petition asW.P.C.No.3799/2011 wherein the request was to complete the W.P.C.No.12195/20127construction of Killippalam - Attakkulangara - Eanchakkal bypass road for which the land was already acquired. Writ petition was disposed of directing to proceed with the construction of the flyover at Thakaraparambu and also completion of the road. Ext.P14 is the said judgment. 9. It is further stated that the petitioner had approachedLok Ayukta again complaining about the unscientific and unreasonable projects including Thakaraparambu flyover and alleging corruption against respondents 3 and 4 and wastage of public money. He has produced various photographs as Exts.P15 to P22 citing certain examples of wastage of public fund. In paragraph 7, he narrates the various wastagescommitted by the official respondents in separate projects and complains that public money is being spent for unreasonable and unscientific ideas.

10. In that view of the matter, alleging maladministrationand wastage of public money for the Thakaraparambu flyover project and requesting for staying of the construction of the flyover and for construction of Killippalam - Eanchakkal bypass road, this writ petition is filed. W.P.C.No.12195/2012811.Prima facie, it could be seen that petitioner had repeatedly filed several writ petitions not being satisfied by the directions issued by the Division Bench of this Court. On aperusal of Exts.P3, P5 and P14 judgments, it could be seen that the very same matter was being agitated by the petitioner in these writ petitions and his main intention is for stalling the construction of Thakaraparambu flyover and also for construction of the bypass road. The petitioner had also filedI.A.No.10895/2012 producing certain additional documents which are Exts.P28 to P30. 12.A statement has been filed on behalf of respondents 3and 4 and also by the 7th respondent.

5th respondent is the Kerala Road Fund Board. It is contended that the flyover at Thakaraparambu was proposed after a scientific study of the city roads by eminent experts and consultants and scrutinized byDr.N.S.Srinivasan, former Director of NATPAC, presently the Technical Adviser of the 6th respondent. According to them, the proposed flyover at Thakaraparambu forms part of an intermediate ring road of the capital city and will cater not only to the traffic from southern gate of Thiruvananthapuram Central W.P.C.No.12195/20129Railway Station but also to the traffic from the south of Thiruvananthapuram city to the opposite side of M.G.Road. Theflyover will enable vehicles to have speedy access to N.H. bypass and to the International Airport at Thiruvananthapuram. Theflyover at Thakaraparambu and underpass at Palayam are solely proposed as an alternate to streamline the heavy traffic when the traffic through M.G.Road gets interrupted due to road processions, strike etc.

It is also indicated that in so far as Ext.P5 judgment has become final and binding on the petitioner, there is no public interest involved in the matter in re-agitatingthe same issue. 13. In the statement filed by respondents 3 and 4 namelyThiruvananthapuram Development Authority, it is contended that the writ petition is not maintainable as it is the fifth round of writ petition being filed by the petitioner for the very same matter. They also stated the reasons for construction of the flyover after a scientific study as indicated by the 5th respondent also. They have highlighted the importance of the said flyover. It is reiterated that since several writ petitions filed by the petitioner were disposed of denying the reliefs prayed for by him W.P.C.No.12195/201210especially regarding the stoppage of construction of flyover at Thakaraparambu, the present writ petition is also liable to be dismissed with costs.

It is also indicated that after disposal ofW.P.C.No.3799/2011, the petitioner filed another writ petition asW.P.C.No.5145/2012 which was withdrawn at the admission stage itself. 14. In the statement filed on behalf of 7th respondent namely Director, Archaeological Department, it is indicated that East Fort, Vettimuricha Kotta, Pazhavangady Kotta, West Fortand Sreevaraham Kotta are declared as protected monuments asper Government order dated 04/02/1966 and the Fort walls around Sree Padmanabhaswamy Temple were protected as per notification dated 28/11/1985. Therefore the excavation and construction activities at the areas adjacent to the protected monuments are restricted and regulated by the provisions under the Kerala Ancient Monuments & Archaeological Sites and Remains Act of 1968 and the Rules framed thereunder. It is stated by the said department that the project now undertaken for construction of flyover from Power House Road to Thakaraparambu is not harmful to the forts and monuments as W.P.C.No.12195/201211alleged by the petitioner.

It is reiterated that the Department of Archeology had taken all necessary steps to protect the Fort and Fort walls. Many activities with regard to Department of Monuments in this area had already been done and the Department of Archeology has planned to do restoration work in respect of monuments from the current year's budget. Theytherefore denied the allegations and apprehensions expressed by the petitioner in the writ petition. 15. The petitioner had submitted an argument note reiterating his contentions. According to him, his proposals are meant for saving public money at a larger scale. According to him, a drainage had been constructed at the East Fort entrance and therefore the main entrance of Sree Padmanabhaswamytemple is in a dangerous condition. It is further submitted that no steps are being taken to protect the Fort wall, which is aprotected monument and demolition works for construction of flyover involves the fort wall as well.

He further submits that in1975, 'The only Sand Fort in the World' known as'Virakupurakotta' which was in the northern side of the SreePadmanabha Swami Temple was destroyed by the 7th W.P.C.No.12195/201212respondent. According to him, the place where the said monument existed is liable to be protected. He also refers to'Karinkallu Kotta Wall' which, according to him, is the continuation of 'Virakupurakotta' and construction of flyover will adversely affect this monument. West Fort, according to him, is the continuation of 'Karinkallu Kotta' which is also damaged by the moving vehicles. Therefore, according to the petitioner, there is total negligence and inaction on the part of the 7threspondent in protecting the archaeologically important monuments and also protection barriers around the SreePadmanabha Swami Temple. He also sought for grant of prayers as requested in I.A.No.11794/2012 which is filed for staying of construction of works in the archaeologically important areas in the city that is 'Virakupura Kotta' and to receive Exts.31, 32 and33.

16. It is argued by learned State Attorney on behalf of official respondents and learned counsel appearing for 5threspondent that the above writ petition is a mala fide attempt on the part of the party in person to agitate an issue which had already become final by virtue of Ext.P5 judgment of this Court. W.P.C.No.12195/201213Repeated writ petitions have been filed by the above petitioner which had resulted in unnecessary litigation and much time had been spent on the aforesaid litigations. There is no public interest in the matter and there is reason to believe that the petitioner is ventilating the grievance of certain private persons who are interested in stopping the said construction of flyover. It is also argued that construction of flyover had been undertaken after necessary studies conducted by expert agencies and allocation and expenditure of funds is being done in accordance with the procedure prescribed by the Governmentand the expert agencies.

They also denied the fact that there will be any damage to any of the ancient protected monuments which is revealed from the statement of 7th respondent. 17. The question therefore for consideration is whether there are any bona fides on the part of the petitioner in prosecuting the above writ petition and whether there is any justifiable reason to consider the above writ petition on merits. It is not in dispute that while considering a public interest litigation, courts will have to be very careful about the reason behind such litigations. Certain norms have been laid down by W.P.C.No.12195/201214the Supreme Court with reference to the manner in which public interest litigations are to be viewed as laid down in State of Uttaranchal v. Balwant Singh Chaufal, [(2010) 3 SCC 402]wherein the Supreme Court held as under: “179. The public interest litigation, which has been in existence in our country for more than four decades, has a glorious record.

This Courtand the High Courts by their judicial creativity and craftsmanship have passed a number of directions in the larger public interest inconsonance with the inherent spirits of the Constitution. The conditions of marginalised and vulnerable section of society have significantly improved on account of Courts' directions in PIL.180. In our considered view, now it has become imperative to streamline the PIL.181. We have carefully considered the facts of the present case. We have also examined the law declared by this Court and other courts in anumber of judgments. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions: (1) The Courts must encourage genuine andbona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations. W.P.C.No.12195/201215(2) Instead of every individual Judge devising hisown 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 Courtswho have not yet framed the rules, should frame the rules within three months. The RegistrarGeneral of each High Court is directed to ensure that a copy of the rules prepared by the HighCourt is sent to the Secretary General of this Court immediately thereafter. (3) The Courts should prima facie verify the credentials of the petitioner before entertaininga 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. W.P.C.No.12195/201216(7) The Courts before entertaining the PILshould ensure that the PIL is aimed at redressalof genuine public harm or public injury.

TheCourt 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 novel methods to curb frivolous petitions and the petitions filed for extraneous considerations. 18. Viewed in the light of the decision of the SupremeCourt, it could be seen that in the present case, the issue highlighted by the petitioner was challenging Ext.P4 though incorrectly stated as Ext.P3 in the writ petition, which has already been challenged in another writ petition and decided by this Court as per Ext.P5 judgment. Therefore, we do not find any reason for the petitioner to re-agitate the same issue again onother grounds. The entire pleadings of the earlier writ petitions have not been placed on record and assuming that certain grounds were not raised in the earlier proceedings, it is not open W.P.C.No.12195/201217for the petitioner to raise such grounds as the same were available even at that relevant point of time.

According to the petitioner, construction of flyover is a wastage of public money. We do not think so. The flyover is constructed to ease out the congestion on account of heavy traffic. It is not in dispute that the city of Thiruvananthapuram especially East Fort, Thampanoor, Pazhavangadi and Over Bridge area is congested with traffic where the train station, bus station, SreePadmanabha Swamy Temple and other commercial centres likeChalai market and a huge number of commercial institutions are situated. Therefore, it cannot be stated for a moment that construction of a flyover in that area is not in public interest which has already been upheld in Ext.P5 judgment. Making out such an issue again on other flimsy grounds which has no basis clearly amounts to mala fides and the whole intention is either to gain popularity or acting at the whims and fancies of some persons who are interested in seeing that the flyover is not constructed.

If the petitioner had any genuine intention, he would have stopped with Ext.P5 judgment. Whereas, even according to him, he did not stop there. He filed one petition W.P.C.No.12195/201218before the Lok Ayukta complaining about mal administration and two other writ petitions before this Court resulting in Ext.P14judgment and another writ petition was withdrawn and this is the fifth writ petition. Therefore, we are of the firm view that the petitioner has no bona fides in filing the above writ petition. 19. In regard to the allegation that ancient protected monuments will be affected if construction proceeds in this manner, it could be seen from the statement of the 7threspondent clarifies the position from the said apprehension is absolutely wrong. In that view of the matter, we do not think that there is any necessity to consider the other factual circumstances which are narrated in this writ petition.

20. This writ petition is filed only for the purpose of some personal gain and to harass the official respondents by initiating litigation after litigation and hence this writ petition deserves tobe dismissed with exemplary cost. 21. This writ petition is an example of misuse of the right given to citizens to initiate public interest litigations. The facts in this case would disclose that the petitioner intended to create an impediment to construction of a flyover despite an expert W.P.C.No.12195/201219committee going into the merits and demerits of the suggestion made by the petitioner. It is painful to observe that even afterExt.P5 judgment, the petitioner is bent upon to somehow stop the construction of the flyover or create impediments in the said process and even by making allegations of wastage of public fund without substantial material on record. This approach of the petitioner requires to be treated as a mala fide attempt to prevent the construction of the flyover and cannot be treated asa genuine public interest litigation.

22. In that view of the matter, while dismissing the writ petition, we direct the petitioner to pay a cost of Rs.50,000/-(Rupees fifty thousand only) to the Kerala State Legal ServicesAuthority. The said amount shall be deposited by the petitioner within a period of two months from the date of the judgment. (MANJULA CHELLUR, CHIEF JUSTICE)(A.M.SHAFFIQUE, JUDGE)jsr W.P.C.No.12195/201220 W.P.C.No.12195/201221 W.P.C.No.12195/201222