JOSEPH Vs. DIVISIONAL RAILWAY MANAGER AND OTHERS

JUDGEMENT

(1.) THIS is a public interest litigation. Petitioner herein is the Secretary of an unregistered association by name Ambikapuram Development and Cultural Association. The objects of the Association inter alia is to collectively voice the grievances of the residents of the area to the authorities concerned and seek redressal of the public grievances. The Association is constituted with the residents of Ambikapuram area wherein Padiyath Road popularly known as K. S. N. Menon Road, Vijayarama Menon Road and the streets and the lanes adjacent to it. Petitioner claims to be a resident of the said locality also. According to the petitioner, the residents of the locality were put to great havoc due to the flood in the area immediately after the heavy down pour. The water gets collected and over -flows the public drainages and roads and submerges with the resuk that life comes to a stand still. The K. S. N. Menon Road referred to above lies parallel to the railway line proceeding from Ernakulam Junction to Cochin Harbour Terminus. The road starts from the South Overbridge and goes southwards. So in the locality 2 cremation grounds for Hindus situate and a cemetery for Christians attached to the Ambikapuram Christian church. The Ambikapuram area lies on the eastern side of the railway line from Ernakulam Junction to Cochin Harbour Terminus railway line. The water that falls to the ground flows eastwards where there are small waterways to take the same to the Thevara Kanal. The natural drain is from west to east in Ernakulam due to the lie of the land. According to the petitioner, one factor that causes excessive flooding in the area is due to the impediments caused to the smooth flow of rain water on the eastern direction is the R.C.C. drain pipe put by the Railways at the level crossing situates in V. R Menon Road and Padiyath Road Junction. According to the petitioner, the other factors inter alia are the lack of oversight of planning to drain off rain water by the local authority viz., the 4th respondent, the Corporation of Cochin. The entire water collected on the M. G. Road enters the culvert situates on the V. R. Menon and culvert established at the K. S. N. Menon Road is unable to empty itself at the other end at Parambithara road due to the railway road and non -maintenance of connecting thodu on the eastern side. As a result, the entire area is flooded even when one rain and residents of the locality were put to innumerable difficulties. The blockade of water is aggravated by the non -cleaning of the culvert and the accumulation of all sorts of solidified refuses, carcasses, heaps of mud and earth and all other unhealthy and objectionable matter. The R.C.C. pipe established by the Railways blocks free flow of water. The obstruction caused by the railway pipe and accumulation of filth, earth and all other decayed and decomposed solid prevent the flow in the natural condition. Water collected and accumulated in the K.S.N. Menon Road, V. R. Menon Road and its allied roads enters the compounds of the housrs of the residents in the locality and thereby the residents were put to great hardship and the life in the area itself has become miserable.

(2.) IT is the case of the petitioner, that members of the Association and the Association approached the Railway authorities and made various representations requesting the Railways to alter the existing culvert R.C.C. Pipe drain into an open drain. They have also approached the 4th respondent Corporation of Cochin to provide canals on either side of the railway track and to divert the water to the nearby Thevara canal. But none of the representations made by the petitioner and the Association represented by him were fruitful. Ext. P1 is the copy of the petition sent by some of the members of the Association who are residents in the area to the railway authorities to alter the existing culvert R.C.C. Pipe into an open drain and maintain the same at the level -crossing. Copy of the same was forwarded to the 4th respondent, Corporation of Cochin and the 5th respondent, the District Collector, Ernakulam apart from respondents 1 to 3, the Railway Authorities. Ext. P1 is dated 2nd of August, 1987. On behalf of the Railways, the Station Superintendent, Ernakulam Junction had acknowledged the receipt of Ext. P1 as per his acknowledgement dated 7 -10 -1987 produced by the petitioner in this case. But it is the case of the petitioner that there was no response from the Railways Authorities or from the respondents 4 and 5. Therefore, petitioner and the Association were constrained to issue Ext. P2 lawyer notice wherein also it is specifically averred that due to the blockade for free flow of water at the railway crossing, the life of the people are in danger and therefore, requested immediate and urgent action by removing the R.C.C. Pipe covered drain and in its place, construct an open drain so as to enable to take the entire water collected at the drain and enable the authorities to make periodical cleaning of the said drain. On receipt of Ext. P2, Ext. P3 reply was sent by the Railways wherein it is stated that what is required is that the Cochin Corporation has to survey the area, prepare a proper drainage scheme and any additional water way or widening the water way across the railway track has to be done according to the 'Deposit Work' with the local authorities and the State Government coming forward to bear the cost of such proposal. Ext. P3 is dated 4 -5 -1990. Since the petitioner and members of the Association did not get any relief either from the Corporation of Cochin or from the rail ways, they were constrained, to approach this Court in this proceedings with a prayer to, issue a writ of mandamus or other appropriate writ, direction or order to the respondents to act in concert to take steps to drain off the dirty and filthy rain water stagnant in the K. S. N. Menon Road and at the level cross drainage at Bridge No. 223 at KM 107/11 -12 and see that the residents are allowed to reside safely without suffering the dirty and filthy rain water which finds its way to their houses and prevent the outbreak of gastro entrities and hepatitis and other virulent diseases. The petitioner also prayed for a direction to the Corporation of Cochin, the State Government and the Railways to discharge their statutory functions under the Kerala Municipal Corporation Act and the Railways Act and for consequential reliefs.

(3.) THEREAFTER , on behalf of respondents 1 to 3, the Senior Divisional Engineer, Southern Railways, Trivandrum had filed a counter affidavit dated 8th July 1990. In the said counter affidavit, it is admitted that the open culvert and the pipe culvert under the railway track were constructed by the railways and the bridge/pipe culvert under question was constructed while laying the railway line from Ernakulam to Mattancherry in the year 1940. He has also produced Ext. R3(a) rough sketch of the bridge/pipe culvert. It can be seen from the sketch that the open culvert existing in the area is having a width of 1.8 metres. The pipe culvert adjacent to it is having a width of 1.6 metres. But according to the Divisional Engineer, the approach drain put up on the eastern and western side by the Corporation of Cochin having only a width of 1.3 metres. He has further stated that since the approach drain on either side are very narrow having only a width of 4.3 metres, that may be one of the reasons for flooding in the adjacent arear. But according to the Divisional Engineer, no point of time water has come to the level of girder and no flooding has taken place at the track side and the pipe culvert withstood the fury of south -western monsoon for the last 5 decades.