DR. JAYAN JOSHUA v. STATE POLICE CHIEF

SRI. IMAM GREGOREOUS KARAT, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 34146 OF 2023 3 JUDGMENT The petitioner is a Doctor by profession. He runs a nursing home in the name and style of “Kamala Nursing Home” on a property having an extent of 27 cents at Chenkal village. He states that the aforesaid hospital has direct road frontage of PWD road on the northern and eastern sides of the property.

2. The petitioner states that the party respondents have put up a bus shelter on the northern side of the property by the side of the public road, and this was followed by the construction of another bus shelter on the eastern side. It is stated that the construction of the bus shelter was carried out in clear violation of all provisions of the law, and the same was done without securing permission from either the Local Authority or the PWD authorities. In the said circumstances, he is stated to have lodged Ext.P3 complaint before the 3rd respondent, who, in turn, directed the 4th respondent to look into the matter. It is stated that an inspection was conducted by the Assistant Engineer, and he concluded that the bus shelters that have been constructed are illegal. The 4th respondent has issued Exhibit P5 request to the Station House Officer seeking assistance to remove the unauthorised construction that was carried out. The 3rd respondent has also issued Exhibit P4 notice calling upon the persons WP(C) NO. 34146 OF 2023 4 responsible for the unauthorised construction to immediately remove the offending structures. The petitioners also refer to Exhibit P7 report submitted by the 3rd respondent, which unequivocally discloses that the construction is illegal. The grievance of the petitioner is that no action has been taken thereafter. It is in the aforesaid circumstances that this writ petition is filed seeking the issuance of directions.

3. The learned counsel appearing for the petitioner submits that necessary directions be issued to respondents 1 and 2 to afford protection to respondents 3 to 5 for removing the unauthorised bus shelters constructed in front of either side of the property of the petitioner in violation to the provisions of law.

4. A counter affidavit has been filed by respondents 6 to 8, countering the contentions advanced. It is stated that the bus shelters have been in existence for the past several years, what has now been carried out is a mere renovation of the existing bus shelters. It is further stated that instead of being an inconvenience to the local people, it is a blessing to the persons who use public transport. It is submitted that Exts.P4 to P7 have been issued by respondents 3 and 4 without conducting a proper inspection. It is further stated that respondents 6 to 8 are social workers, and they do not have any intention to take law into their own hands.

5. I have considered the submissions advanced and have gone WP(C) NO. 34146 OF 2023 5 through the records.

6. From Exhibit P4 to P7 it is evident that the official respondents have unanimously come to the conclusion that the construction of the bus shelter by the side of the PWD road is an illegal act carried out without getting consent either from the Revenue Authorities, the Local Authorities or the PWD authorities. The PWD authorities, in view of the objection raised by a particular section, requested assistance from the police to remove the obstruction, and this fact is evident from Exhibit P5. One of the contentions advanced by the party respondents is that a section of the people is benefited from the illegal construction. A Division Bench of this Court in Azeez K v. Executive Engineer, Public Works Department, Kalpetta and Others1 had occasion to hold that the PWD authorities cannot refrain from removing unauthorized shelters on the ground that the same is being used by a section of people. It was held that neither the PWD nor the local body ought to have permitted the putting up of any unauthorized construction contrary to the statutory provisions. In that view of the matter, there is no justification on the part of respondents not to remove the bus shelters put up illegally. Resultantly, this petition will stand allowed. In view of the facts and circumstances, there will be a direction to respondents 3 to 5 to ensure that 1 [2021 (6) KHC 118] WP(C) NO. 34146 OF 2023 6 the unauthorised bus shelters put up by respondents 6 to 8 be removed and mentioned in Exhibits P4 to P7. If any obstruction is caused, respondents 1 and 2 shall grant adequate assistance to respondents 3 to 5 to facilitate the removal of the illegal bus shelters. This writ petition is disposed of. Sd/- RAJA VIJAYARAGHAVAN V JUDGE SMA WP(C) NO. 34146 OF 2023 7 APPENDIX OF WP(C) 34146/2023 PETITIONER EXHIBITS :- Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 COPY TRUE RECEIPT NO.KLO1O40415617/2023 DATED 23.9.2023 WITH RESPECT PETITIONER ISSUED BY VILLAGE OFFICE, CHENKAL PROPERTY THE TAX OF OF TO TRUE COPY OF SKETCH OF THE PROPERTY OF PETITIONER TRUE COPY OF COMPLAINT DATED 10.8.2023 BY PETITIONER BEFORE 3RD RESPONDENT TRUE COPY OF NOTICE DATED 14.8.2023 BY 3RD RESPONDENT TO THE PERSONS RESPONSIBLE FOR THE BUS OF SHELTERS TO REMOVE IT WITHIN 3 DAYS FAILING WHICH THE DEPARTMENT WOULD REMOVE IT CONSTRUCTION UNAUTHORIZED TRUE COPY OF REQUEST DATED 11.8.2023 FROM 4TH RESPONDENT TO STATION HOUSE OFFICER, PARASSALA COPY TRUE - 50/2023 DATED 26.9.2023 FROM 4TH RESPONDENT TO TAHSILDAR, NEYYATTINKARA COMMUNICATION P.S NO. OF Exhibit P7 RUE COPY OF REPORT WHICH IS NIL DATED FROM 3RD RESPONDENT TO 4TH RESPONDENT RESPONDENT ANNEXURES :- Annexure R6(a) True copy of the photographs of the bus shelters Annexure R6(b) True copy of the sketch