'Inconvenience Suffered By Individuals For Common Good Cannot Be Termed As Violative Of Any Fundamental Rights': Kerala HC [Read Order]

"At times, some inconveniences may have to be suffered by the individuals for the common good and welfare of the public at large and that cannot be termed as violative of any fundamental rights guaranteed to the citizens", observed the Kerala High Court last week.

"So much so, the action taken to rectify a defect cannot be said to be mala fide, arbitrary or illegal", said the Chief Justice-led bench.

The division bench was hearing a PIL contending that the Public Works Department, without any tender or notification, has completely blocked the passage through a public road in order to construct a cross drain. It was pointed out that the said road is used by the public to have access to certain Super Speciality Hospitals, besides other areas. The grievance highlighted by the petitioner was that consequent to the cutting opening of the road, the road is completely blocked and there is no alternative passage for the public to reach these destinations. Besides, due to the cutting opening of the road, huge traffic block is created, and due to the traffic congestion, the public is put to heavy difficulties. "It is stated by the petitioner that the difficulties caused to the public is carried in a vernacular daily dated 12.5.2020. It is also submitted that there is drainage facility on both sides of the road for draining out the rain water and there is a water line connection connecting the drainage on both sides", noted the Court.

The bench observed that the PWD has cut open the road with the intention of protecting the larger interest of public to avoid inundation, and flooding during rainy season.

"There is no much dispute with respect to the fact that the work was done by the Public Works Department without awarding any contract. The contention put forth by the learned Senior Government Pleader is that since the work had to be carried out as an urgent work, no tender could be invited. We find force in the said contention because when the Public Works Department itself has carried out the work, taking into account the urgent nature, it cannot be said that there is any illegality or mala fides on the part of the Public Works Department. So also, PWD do not require any sanction from any other authorities, being a road belonging to the department itself", it decided.

Moreover, the bench said the sole contention advanced by the petitioner is that the work was not awarded by inviting a public tender, but that by itself will not constitute any illegality, corruption or other malpractices. It held that the petitioner has not substantiated any case to establish that there is any impropriety or illegality in the work carried out by the Public Works Department.

The Court observed that the main relief sought for by the petitioner was for a direction to complete the work as early as possible and solve the public nuisance occurred due to the cutting opening of the road in question, and that even though he has prayed to not to disburse any amount towards the illegal work done without any tender or work order, it is not supported by any material, documents or pleadings. According to the bench, such an allegation was made without making due enquiries as to the nature of work carried out by the Public Works Department and also as to whether the work was carried out due to the urgent nature of the same. The Court opined that anyhow, the petitioner has no contention that the work was awarded by the Public Works Department to any third persons.

"It is trite and settled law that a Public Interest Litigant approaching a constitutional court should aid the court with sufficient materials so as to substantiate the pleadings. But, in the instant case, petitioner has failed to produce any such materials other than producing certain photographs and paper publication in respect of the traffic block occurred due to the urgent work carried out by the Public Works Department. Thinking so, we do not think that the petitioner has made out any case to secure the relief as is sought for in the writ petition", declared the bench in disposing off the plea.

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