IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 WP(C).No. 23426 of 2006(L) -------------------------------------- PETITIONERS: --------------------- 1. P.M.JOHNY, PULLANTHANY, THOTTUMUKKAM POST, MALAPPURAM DISTRICT. 2. V.HANEEFA, S/O.MOIDEEN, PANOLY HOUSE, KERALA STATE P.O., MALAPPURAM DISTRICT. BY ADVS. SRI.V.C.JAMES, SRI.SERGI JOSEPH THOMAS, SRI.JOBBY JOSEPH. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, MALAPPURAM. R1 & R2 BY GOVERNMENT PLEADER SRI. ANTONY MUKKATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2011, ALONG WITH W.P.(C). NO. 28182 OF 2006 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.23426/2006-L: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NEWS ITEM APPEARED IN THE MALAYALA MANORAMA, DAILY DTD. 08/07/2005. EXT.P.2: COPY OF THE NEWS ITEM APPEARED IN THE MALAYALA MANORAMA DAILY DTD. 17/07/2005. EXT.P.3: COPY OF THE NEWS ITEM APPEARED IN THE MALAYALA MANORAMA DAILY DTD. 18/07/2005. EXT.P.4: COPY OF THE GOVERNMENT ORDER GO.(RT).1870 DTD. 01/03/2006. EXT.P.5: COPY OF THE JUDGMENT IN W.P.(C).NO.10960/2006 DTD. 07/04/2006. EXT.P.6: COPY OF THE G.O.(RT).NO.3077/2006/DMD DTD. 02/06/2006. EXT.P.7: COPY OF THE RESOLUTION NO. 5(3) DTD. 28/06/2006 OF THE KARUVARAKUNDU GRAMA PANCHAYAT ALONG WITH A COPY OF THE REQUEST TO FIRST RESPONDENT. EXT.P.8: COPY OF THE LETTER NO. G4/512/2006 DT.D 14/07/2006 ADDRESSED TO THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT. EXT.P.9(A), P.9(B), P.9(C),P.9(D), P.9(E), P.9 (F), P.9(G), P.9.(H), P.9(I): COPIES OF G.O.(RT). NO.4267/06 RD DTD. 30/10/2006, G.O.(RT).NO.4433/2006/RD DTD. 02/11/2006, G.O.(RT). NO.4445/2006/RD DT. 08/11/2006,G.O.(RT).NO.4446/2006/RD DT. 08/11/2006, G.O.(RT). NO.4447/2006/RD DT. 08/11/2006, G.O.(RT).NO.4449/2006/RD DT. 08/11/2006, G.O.(RT). NO.4534/2006/RD DT. 13/11/2006, G.O.(RT).NO.4574/2006/RD DT. 16/11/2006 AND G.O(RT). NO.93/2007/RD DT. 08/01/2007. EXT.P.10: COPY OF THE GOVERNMENT ORDER G.O.(MS).NO.272/2004/RD DTD. 01/09/2004. EXT.P.11: COPY OF THE ORDER G.O.(RT).NO.6466/05/DMD DT. 13/12/2005. EXT.P.12: COPY OF THE STATEMENT FILED IN W.P.(C).NO.32813/2006 ON BEHALF OF THE R.1. ON 04/09/2007. EXT.P.13 SERIES: COPY OF THE ORDERS OF THE GOVERNMENT ACCORDING TO ADMINISTRATIVE SANCTION FOR IMMEDIATE RESTORATION AND IMPROVEMENTS OF THE DAMAGED INFRASTRUCTURE IN BETWEEN 1/3/07 TO 20/02/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)Nos.23426, 23771, 24058, 28182 & 32813 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of August, 2011 J U D G M E N T In all these writ petitions, the petitioners challenge the orders passed by the Government cancelling the administrative sanction for the work of restoration of damaged infrastructure on account of natural calamities. The reasons stated by the Government in their counter affidavit for cancellation is that, out of the total amount of 472.44 crores made available under the Calamity Relief Fund during 2005-10 to the State of Kerala and only Rs.89.77 crores is earmarked for the expenditure for the year 2006-07 under various heads of expenditure and from the same, only a fraction could be utilised for restoration of damaged infrastructure. The petitioners have produced information obtained by them under Right to Information Act which would go to show that between 1.4.2006 and 31.3.2007 administrative sanction has been granted for W.P.(C)Nos.23426, 23771, 24058, 28182 & 32813 of 2006 -2- repair work of roads in 14 districts as shown in the annexure to the document produced along with the memo dated 1.8.2007. The petitioners would contend that this would go to show that the contentions of the Government in the counter affidavit is not correct. 2. I have considered the rival contentions in detail 3. These writ petitions were filed in 2006. Five years have already gone back. The petitioners would contend that the roads are still in the same condition or rather in worse condition. The Government Pleader is not able to tell me whether the roads have been repaired. I am of opinion that, it is the right of every citizen to have proper roads for transportation. It is the duty of the State to see that the roads are kept in good repair at all times. It is sad that the Government takes the stand that roads would be repaired only from Calamity Relief Fund. Even in the absence of calamities, State has a duty to keep the roads in the State in good repair and motorable condition always. We are in an unfortunate situation whereby during every W.P.(C)Nos.23426, 23771, 24058, 28182 & 32813 of 2006 -3- monsoon season we have to put up with very bad roads for at least 3 to 4 months. I am at a loss to understand why the Government cannot make roads which would stand the vagaries of nature and wear and tear at least for a period of one year. Immediately after the monsoon of 2010, the roads in Cochin Corporation were in fact repaired. There is a dichotomy among various authorities in the matter of maintenance of roads. The Kaloor – Kadavanthra Road is maintained by the Greater Cochin Development Authority. Other roads in the Corporation are maintained by the Corporation. After the last monsoon, the Kaloor – Kadavanthra Road as well as other roads were repaired. During this monsoon all the other roads crumbled whereas the Kaloor – Kadavanthra Road still holds good. It is also submitted before me that the Vypin – Munambam Road has also stood the vagaries of nature for more than a year. That would go to show that the fault lies in the manner of construction and repair of the roads and not to vagaries of nature alone. The only conclusion possible is that, the W.P.(C)Nos.23426, 23771, 24058, 28182 & 32813 of 2006 -4- amounts spent for the roads do not actually go into the making of the roads as such. In spite of several judgments by this Court, no authority has even tried to find a solution for this problem. I am at a loss to understand why the Government, local bodies and other authorities cannot insist on a minimum period of guarantee for the roads from the contractors who do the repair works. Now a tumultuous situation is in the whole country in view of the instances of corruption, which have come to light of late. All political parties vouch that they are committed to eradicate corruption. But now corruption is only on the increase in every governmental sphere. I am of opinion that, this is because of lack of political will for containing corruption or if that is not correct, that those who are duty bound to contain corruption, themselves are corrupt. This situation should not be allowed to continue. Taking into account all these matters, I dispose of these writ petitions with the following orders: In all these cases, the roads in question shall be W.P.(C)Nos.23426, 23771, 24058, 28182 & 32813 of 2006 -5- restored as good motorable roads within a period of four months from the date of receipt of a copy of this judgment. The respondents shall ensure that the roads are constructed or repaired as the case may be in such a way that it will hold good against the vagaries of nature for at least two years if not more. The respondents shall insist on performance guarantee or any other guarantee from the contractors who do the work making a condition of the contract that the roads shall remain in good motorable condition for a definite number of years, which shall not be less than two years. If the contractors refuse to accept that as a condition for the contract the Government shall get the work done through the Public Works Department. I make it clear that, the respondents and their officers would be personally liable if the roads are constructed in such a way that they do not hold good against the vagaries of nature at least for a period of two years whether the PWD does the work or the contractors do the work. If within two years after the restoration of these roads if they again W.P.(C)Nos.23426, 23771, 24058, 28182 & 32813 of 2006 -6- become non-transportable it would be open to the petitioners to bring it to the attention of this court so that this court can order the concerned officers to pay personally the damages caused to the people on account of the same. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/