AI Structured Summary
Not yet generated for this judgment
Judgment
P.B.Suresh Kumar, J
Petitioner is a practising lawyer. He is residing in a house situated on a plot of land abutting Sivarama Menon road, within the limits of Kochi
Corporation (the Corporation). The stretch of the road in front of the house of the petitioner was in a dilapidated condition and the Corporation,
therefore, decided to restore the road adopting Bituminous Macadam and Bituminous Concrete method and awarded the work of the same to a
Contractor, the fourth respondent. Ext.P1 is the estimate of the work and Ext.P2 is the schedule of the work appended to the agreement entered into
by the Corporation with the fourth respondent. It is stated by the petitioner 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. It is also stated by the petitioner
that on account of the said reason, there has been water logging in the area, for the existing drainage system became ineffective on account of the
level difference between the surface of the road and the surface of the drainage. In the agreement entered into by the Corporation with the fourth
respondent, there was however a provision to the effect that the existing bituminous road surface to a depth of 50 mm (5 cm) needs to be scarified
and removed by mechanical means. It is the case of the petitioner that the aforesaid part of the work is an integral part of the restoration work of the
road without which the restored road will not last long. It is alleged by the petitioner in the writ petition that though the agreement entered into by the
Corporation with the fourth respondent makes it obligatory for the fourth respondent to scarify and remove the existing bituminous surface of the road,
the fourth respondent is attempting to complete the work without scarifying and removing the existing bituminous surface. It is also alleged by the
petitioner in the writ petition that if the work is carried out in the aforesaid fashion, the petitioner may not be able to take out his car to the road from
his residential plot. The relief sought by the petitioner in the writ petition in the circumstances, was for a direction to the Corporation and its officials to
ensure that the restoration work of the road is proceeded and completed only after removing the existing bituminous road surface and to ensure that
the level of the existing road is not increased by the restoration work.
When the writ petition came up for admission on 23.10.2020, this court passed an interim order directing the Corporation and its officials to ensure
that the work of the road is carried out by the fourth respondent only in accordance with the terms of the contract.
A counter affidavit was filed on behalf of the Corporation and its officials stating, among others, that it was difficult to scarify the existing
bituminous surface of the road in terms of the agreement; that when the said part of the work was attempted, the bituminous surface of the road along
with metal in a compact form upto 10 cm depth detached from the ground surface of the road, resulting in dilapidation of the basement of the road and
that as it was apprehended that the entire road basement will be lost, if the said work is continued, 60% of the scarified material was rolled in the road
itself using road roller making a strong sub-base for a long lasting road. It is also stated by the Corporation in the counter affidavit that the scarification
process provided for in the agreement was not intended to reduce the height of the road and that it was only intended for the proper binding of the
material over the existing road surface. The fact that the level of the road would be raised once the work is completed is admitted by the Corporation
in the counter affidavit and it was suggested therein that if the petitioner is unable to take out his car from the premises of his house on account of the
said reason, he has to construct a ramp for the said purpose.
The petitioner has filed a reply to the counter affidavit filed by the Corporation stating, among others, that the deviation of the work carried out as
admitted by the Corporation in the counter affidavit is unscientific and unauthorised. It is also stated by the petitioner in the reply affidavit that 100% of
the material scarified from the surface of the road were rolled over the road using road roller and the averment to the contrary made in the counter
affidavit is incorrect.
On 19.01.2021, the petitioner filed I.A. No.3 of 2021 seeking leave to amend the writ petition to incorporate a few additional facts, grounds and
prayers. The said interlocutory application was allowed, and in terms of the order passed in the interlocutory application, the petitioner has filed an
amended writ petition. In the amended writ petition, it is alleged by the petitioner, among others, that the writ petition was partly heard through video
conferencing on 14.01.2021 and adjourned to 15.01.2021 due to connectivity issues and that the work which was stopped after the interim order was
resumed and completed by the fourth respondent as directed by the officials of the Corporation with police aid in between, during the night hours of
14.01.2021, violating the interim order passed by this Court. It is also alleged by the petitioner in the amended writ petition that on completion of the
work in the aforesaid manner, the level of the road now stands increased by 2 feet at the entrance of the house of the petitioner, making vehicular
entry to the plot of the petitioner and vehicular exit therefrom impossible. The additional prayers sought by the petitioner in the writ petition are for a
direction to the Corporation and its officials to re-do the work of the road in accordance with the terms of the contract, after ensuring that the level of
the road is not increased and for a 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.
Earlier, the petitioner filed I.A. No.2 of 2021 for appointing an expert engineer to ascertain and report a few facts. On 28.01.2021, this court
allowed the said application and directed the Superintending Engineer, Roads Central Circle, PWD, Aluva to ascertain and report the facts sought to
be ascertained in terms of the application, after conducting a local inspection.
Pursuant to the said interim order, the expert appointed by this Court conducted a local inspection on 05.02.2021 and filed a report stating the
following:
As per the approved initial level proposal 18cm thick wetmix macadam, 5cm thick Bituminous Mecadam & 3cm Bitumen concrete are proposed over the existing
road. So the total thickness of these layers as per the approved initial level proposal is 26cm. But in the final level, which is taking after completion of the work, the
thickness of these layers is seen reduced to 14cm. Also the item such as providing & laying of hot applied thermoplastic compound and reflective road studs were
not seen executed.
On verifying the final levels, the height of materials laid over the old surface is 14cm.
The height difference from the restored road surface and top of the drainage is varying from the place to place. At three Random points tape measurements were
taken in which the height difference is 19cm, 22cm, 16cm. In some points the top of the road surface is same as the top of the drainage cover slab.
The height at which the road surface now stands at the entrance of the petitioner's house from the top of the drainage slab in front of his gate is 37cm.
Safe access for men and vehicles to the petitioner's property is not possible from the restored road.
Water lagging will not be caused in the area due to the increase in the height of the road. The corporation has already prepared a revised estimate incorporating the
drainage work and there is out let for draining off the water flowing through drains.
No other matters requested by the petitioner.
On 5.2.2021, the petitioner filed Contempt Case No.314 of 2021 alleging that the work was executed during the pendency of the writ petition
flouting the interim order passed on 23.10.2020. The writ petition was heard thereafter on 22.3.2021 along with the Contempt Case. Thereupon, on
24.03.2021, the third respondent has filed a statement in the matter stating, among others, that the levels of the road were taken before and after the
work and it is revealed that the level of the road was raised only between 14.5 cms and 18 cms. It is also stated in the said statement that the level of
the road in front of the house of the petitioner before the work was 22 cms above the level of the plot and the same was increased only by 14.5 cms
after the work. It is also stated that the Corporation is following Delhi Schedule of Rates (the DSR) for execution of various works and in terms of the
DSR specification 16.11.2, “scarifying operation will also include consolidation with road roller the aggregate received from scarifying, although this
aggregate will be consolidated along with aggregate of new wearing course to be paid separatelyâ€.
Heard the learned counsel for the petitioner as also the learned Standing Counsel for the Corporation.
As noted, the writ petition is instituted seeking directions to the Corporation and its officials to ensure that the restoration work of the road is
proceeded and completed only after removing the existing bituminous road surface and to ensure that the level of the existing road is not increased by
the restoration work. The specific case pleaded by the petitioner in the writ petition is that the level of the road has raised by about 3 feet during the
last 20 years as the restoration works were earlier carried out on the road without scarifying the then existing bituminous road surface; that there has
been water logging in the area on account of the said reason, for the existing drainage system became ineffective on account of the level difference
between the surface of the road and the surface of the drainage; that it is provided in the agreement therefore, that the existing bituminous road
surface to a depth of 50 mm needs to be scarified and removed by mechanical means before making the fresh bituminous overlay; that the aforesaid
part of the work is an integral part of the restoration work of the road without which the restored road will not last long; that the fourth respondent is
attempting to complete the work without scarifying and removing the existing bituminous surface of the road and that if the work is carried out in the
aforesaid fashion, the petitioner may not be able to take out his car from his residential plot to the road. The essence of the grievance of the petitioner
in the circumstances is concerning the conduct of the Corporation in restoring the road in such a fashion as to raise its level.
There is nothing on record to indicate as to whether the Corporation has prescribed any specifications or standards or at least guidelines for
construction and maintenance of city roads. The Corporation does not dispute the fact that the level of the road would be raised every time when road
is restored, maintained or resurfaced. The said course may not be scientific and may affect the interests of persons residing on either side of the road
adversely. But, in the absence of any obligation for the Corporation in terms of any statute or guidelines to ensure that the level of road is maintained
when the restoration is carried on, this Court may not be justified, in exercise of the discretionary jurisdiction under Article 226 of the Constitution, in
granting the relief sought for by petitioner, especially when the writ petition was instituted much after the commencement of the work. The prayer of
the petitioner in the amended writ petition is for a direction to the Corporation re-do the work. As noted, the said relief is sought by the petitioner on
the basis of the allegation that the work has been executed flouting the interim order passed in the matter. Even if it is found that the work has been
executed flouting the interim order passed by this Court, the petitioner is not entitled to the relief sought for in the amended writ petition merely on
account of the said reason, since it is found that the petitioner is not entitled to the relief originally sought in the writ petition. Of course, if the work is
not executed in accordance with the terms of the agreement and if it is demonstrated that damage has been caused on account of the same to the
people residing on either side of the road, the petitioner is certainly entitled to appropriate relief in the matter.
I shall, therefore, consider the question as to whether the case of the petitioner that the work has been executed by the Corporation otherwise than
in accordance with the terms of the agreement, violating the specific interim order passed by this Court that the work shall be executed only in
accordance with the terms of the agreement. As noted, the agreement entered into by the Corporation with the fourth respondent provides for
scarifying the existing bituminous road surface to a depth of 50 mm. and disposal of the scarified material within all lifts and lead upto 1000 meters by
mechanical means. The aforesaid part of the work is included in the schedule accompanying the agreement under serial No.1.005. In the counter
affidavit filed by the Corporation on 18.11.2020, it is recited thus :
“It is most respectfully submitted that the above road was constructed by tarring lastly before 7 years. During that time considering heavy vehicular traffic the
bitumen surface was done properly and as result of the same, the bitumen surface was thoroughly became compact with the metal used for basement of the road. Due
to the strong construction of the road, it has difficult to remove the tar surface alone as per agreement scarifying of existing tar surface upto 5 cm. is only intended in
the estimate. Even though it was tried in many places, the tar along with metal in compact form upto 10 cm. depth detached from the ground earth of the road resulting
on dilapidation of basement of road. If such activity is continued through the entire road, the basement will be lost resulting the weakness of the existing road.
Therefore, about the 60% of scarified material was rolled using roller to make a strong sub base for a long lasting road.â€
The extracted averments in the counter affidavit would reveal that as it was found that the work cannot be executed as provided for in the agreement,
it was decided to execute the work otherwise than in accordance with the agreement. It is seen that while the Corporation was proceeding on that
basis, the petitioner approached this court and obtained the interim order dated 23.10.2020, directing the Corporation and its officials to ensure that the
work is carried out only in accordance with the terms of the agreement. The said interim order is one passed after hearing the Standing Counsel for
the Corporation. The materials on record indicate that the work was not continued after the interim order for some time. Although the Corporation has
filed a counter affidavit justifying their conduct in proceeding to execute the work otherwise than in accordance with the terms of the contract, this
Court did not permit the Corporation to do so by vacating or modifying the interim order dated 23.10.2020. As stated by the petitioner, the writ petition
was later taken up for final hearing on 14.1.2021 and directed to be listed on the succeeding day before the physical court. The case set out by the
petitioner in the amended writ petition is that the work which was stopped in the light of the interim order of this court was resumed at about 8 p.m. on
14.1.2021 and completed by about 7 a.m. on 15.1.2021. The relevant pleadings of the petitioner in the amended writ petition read thus :
“11. This writ petition was listed for hearing on 13.1.2021 but it could not be taken up on that day due to paucity of time. On 14.1.2021 this writ petition was listed
and the counsel for the petitioner was heard in part. However due to connectivity problems during the hearing through video conferencing, this Hon'ble Court posted
the writ petition to 15.1.2021 for physical hearing in the court.
At about 8 pm on 14.1.2021 the petitioner found that machinery for the road work had been brought to the site and that workers had arrived. Paver machine, tractor
with air compressor, road roller etc. had been brought to the site. Ms.Soumya, Assistant Engineer and Mr.Santhosh, Overseer of the 1st respondent arrived at the site
along with the newly elected Corporation Councilor Ms.Mini Vivera and the former Corporation Councilor Mr.Albert Ambalathingal. Some local political workers were
also with them. The petitioner went to them and enquired how the road work was proposed to be done by them. He was told that they are proceeding with the work
without removing the scarified materials and the metal laid over it. The petitioner told them that the road work should be proceeded only in accordance with the
interim order passed by this Hon'ble Court on 23.10.2020. Ms.Soumya, Assistant Engineer replied that she has been directed by her superiors to go ahead with the
work without removing the scarified material or the layer of metal put over it. When the petitioner showed the order, she said that she is aware of the interim order
passed by this Hon'ble Court but she is not concerned with that order, but she has to execute the direction given to her by her superiors.
The petitioner called Police Control Room (1090) from his mobile number 9847166783 and sought for their assistance to prevent violation of the interim order
passed in this writ petition. This was by about 8.30 pm. The Police Control Room informed the petitioner that the police party would arrive at the spot shortly. The
counsel for the petitioner phoned the Standing Counsel for the 1st respondent at about 8.40 pm and apprised him about the situation and requested him to inform the
Corporation officials that the writ petition is posted for hearing the next day and no work in violation of the interim order of this Hon'ble Court should be done in
haste. The Standing Counsel for the 1st respondent later informed the counsel for the petitioner that Corporation officials were not responding to his calls.
When the Police party arrived the petitioner apprised them of the situation and requested them to ensure that work in violation of the interim order of this court is
not proceeded with at least till the writ petition is heard by this Hon'ble Court the next day. The police party told the petitioner that they have been directed to
provide protection to the contractor's workmen and the Corporation officials and they have come to the site for that purpose. The police party told the petitioner that
they had been instructed to remove the obstructors and ensure that the road work is done that night itself. By this time a large number of residents of the locality had
gathered objecting to the proposed continuation of the work in an unscientific manner by which the height of the road would be considerably raised. However due to
adamant stand of the Corporation officials and the intimidating stand taken up by the police party the petitioner and the people of the locality had no option but to
helplessly watch the road work being proceeded with in stark violation of the interim order passed by the Hon'ble Court and the terms of the contract. By doing such
work that night, knowing fully well that this writ petition is to be heard the next day, the respondents have attempted to overreach the due process of law and to
render meaningless the proceedings in this writ petition. They have acted with malafides and have shown utter disregard to the rule of law.
The road work continued till about 7.00 am on 15.1.2021. When this writ petition was taken up on 15.1.2021 also the counsel for the petitioner apprised this Hon'ble
Court about what had transpired on the night of 14.1.2021. This Hon'ble Court posted the writ petition to 20.1.2021 so as to enable the petitioner to seek for
amendment of the writ petition incorporating the subsequent events. Shockingly, the road work continued on the hight of 15.1.2021 till about 7 am the next day. The
height of the road stands raised by over 2 feet at the entrance of the petitioner's house. The road surface appears like a cliff from the petitioner's property. The road
work done is in such a manner that no vehicular access from the petitioner's property to SRM Road is possible. The height of the road and the nature of its work is
such that the people cannot easily or safely step into the road from the petitioner's property. The road construction at the petitioner's entrance is purposefully done
in a manner preventing the petitioner and his men from having proper access and vehicular access to SRM Road. From the night of 14.1.2021 it is impossible for the
petitioner to take his vehicle out of his property due to the raised height of the road. The respondents have done the road work in such a manner preventing
vehicular access to the petitioner's property deliberately so as to harass him and wreak vengeance on him for protesting against the unscientific performance of the
road work deviating from the terms of the contract and for resorting to his legal remedy by filing this writ petition. The free movement of the petitioner and his family
members to SRM Road has been obstructed due to the road work done now. Such a situation is faced by most of the property owners by the side of SRM Road and
persons whose properties are situated on the bylanes starting from the SRM Road. True copies of the photographs showing the present condition of the road at the
entrance of the petitioner's property is produced herewith and marked as Exhibit P7. True copies of the photographs showing the SRM Road at different points where
bylanes from SRM Road begins are produced herewith and marked as Exhibit P8. It is submitted that respondents 2 to 4 have not come to the work site at any time
when the road work was done. Such neglect shown by them in spite interim order being passed by this Hon'ble Court on 23.10.2020 is unjustifiable.â€
The averments in the amended writ petition as extracted above stand un-controverted.
On a query from the court as to the justification of the Corporation for completing the work otherwise than in accordance with the interim order,
that too, when the matter was being argued, the explanation offered by the Standing Counsel was that the completion of the work cannot be said to be
otherwise than in accordance with the terms of the agreement since the Corporation has adopted the specifications in the Delhi Schedule of Rates for
execution of the work and in terms of the provisions therein, the deviation of the work undertaken by the Corporation is permissible. I am unable to
accept this explanation. Clause 16.11.2 of the DSR only clarifies that scarifying operation may include consolidation with the road roller the aggregate
received from scarifying with the aggregate of new wearing course to be paid separately also. In the case on hand, there is no such provision. On the
other hand, the specific provision in the agreement is that the existing bituminous surface of the road is to be scarified and removed and the rate
provided for in the agreement is for removing the scarified material for a distance upto 1 kilometre. Further, the DSR is only a document describing
the rates for executing various civil works prepared by the Central Public Works Department and the same does not contain any specification and
standard or guideline for construction and maintenance of roads. As such, even if the Corporation is following the DSR for effecting payments for the
works executed by it, the same does not confer any authority on the Corporation to execute the work otherwise than in accordance with the
agreement. In the aforesaid circumstances, the case of the petitioner that the work has been executed by the Corporation otherwise than in
accordance with the terms of the agreement, violating the specific interim order passed by this Court, is only to be accepted. Execution of a road work
otherwise than in accordance with the terms of the agreement resulting in damage to the people residing on either side of the road cannot be viewed
lightly. Similarly, violation of an order passed by the Court cannot also be viewed lightly. Needless to say, the petitioner is entitled to an appropriate
relief in this regard.
It is seen that raising the level of the road while carrying out the restoration or maintenance or re-surfacing work is not an advisable method to be
adopted. If a particular level is not maintained for every road or at least if it is not ensured that the level of the road is not raised considerably while
carrying out the restoration or maintenance or resurfacing work, the drains constructed on either side of the road would be rendered purposeless after
a few restoration, maintenance or resurfacing works and it would become necessary for the owners of the buildings on either side of the road either to
modify or alter the buildings for using the same for the purpose intended. It is common knowledge that elsewhere in the world, a level is prescribed for
every road and it is ensured that the said level is not raised in any manner when restoration or maintenance or re-surfacing work is carried out. The
provision made to this effect in the guidelines for construction and maintenance of city roads by the Bruhat Bengaluru Mahanagara Palike during the
year 2009 reads thus :
“On city roads frequent layers are added for renewal/strengthening periodically raising the road level every time, it is necessary to recycle the bituminous materials
of the existing road surface. With this, the road level does not go on increasing endlessly and also the old materials are reused with minimum additions. This method
is already being adopted in metropolitan cities-Delhi, Mumbai and Chennai.â€
Reverting to the facts, as far as the road in this case is concerned, it is pointed out in the counter affidavit that the road was earlier restored about
seven years back. The specific averment of the petitioner in the writ petition that the level of the road had raised by about 3 feet during the last 20
years is not disputed by the Corporation in the counter affidavit filed in the matter. The report filed by the expert appointed in the matter also indicates
that even the work which is the subject matter of the writ petition was designed in such a fashion as to raise the level of the road by 26 cms. The
report filed by the expert also indicates that the level difference between the road and the plot of the petitioner is 37 cms. at the time of inspection. As
noted, the work has not been executed as originally proposed. Had the work been executed as originally proposed, the level difference between the
road and the plot of the petitioner would have been 50 cms. The expert has stated categorically in his report that on account of the said level
difference, after the work, it is impossible for the petitioner to have vehicular access to and from his residential plot. It is common knowledge that the
situation is not different in the case of other roads within the Corporation. If the level of the city roads are raised in this fashion while undertaking the
restoration, maintenance or resurfacing works, I have no doubt that the drains constructed on either side of the roads would become purposeless and
there will be waterlogging in the properties on either side of the roads. It is seen that it is on account of this reason that large number of buildings
situated on either side of the roads in the Corporation, the level of which have been raised considerably on account of restoration or maintenance or
resurfacing works are modified and altered in course of time and substantial number of buildings are now being raised by engaging hydrolic jack lifting
technology. This is a sheer waste of resources, and for those who cannot afford either to modify the building or lift the building, it is a perennial
hardship. This is certainly a matter to be considered by the Corporation.
In the result, the writ petition is disposed of directing the Corporation to constitute a committee of experts, if necessary, 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 shall address the issue discussed in paragraph 14 of the judgment also and
submit a report to the Corporation within three months thereafter. The committee shall also examine in particular, the question whether the course
adopted by the Corporation in completing the restoration work of the road referred to in the writ petition is correct and shall suggest the remedial
measures. Once the guidelines are prescribed by the committee as directed, the construction and maintenance of city roads shall be carried out only in
accordance with the said guidelines. Needless to say, the Corporation shall also implement the remedial measures, if any, suggested by the committee
in relation to the road referred to in the writ petition expeditiously.