IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 WA.No. 836 of 2009 ---------------------- AGAINST THE JUDGEMENT IN WPC.31296/2007 Dated 13/03/2009 .................... APPELLANT(S): PETITIONERS: -------------------------------- 1. MARIAMMA JOLLY, ELENGICAL HOUSE, KOTHAMANGALAM 686691. 2. M.J.ALEXANDER, NO.8 MERIDIAN GARDENS, CHEMBUMUKKU. 3. LIZA MATHEW, ELAMTHURUTHIL HOUSE, NEAR KSRTC BUS STAND, KOTHAMANGALAM 686691. 4. ANNAKUTTY PAUL, KAROTTAVEETIL, KOTHAMANGALAM 686691. BY ADV. SRI.DEVAN RAMACHANDRAN SRI.K.M.ANEESH RESPONDENT(S): RESPONDENTS: ------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, PWD DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, ERNAKULAM DISTRICT. 3. THE TAHSILDAR, KOTHAMANGALAM TALUK, KOTHAMANGALAM 686691. 4. THE ASSISTANT EXECUTIVE ENGINEER, NATIONAL HIGHWAY SUB DIVISION, KOTHAMANGALAM 686691. 5. THE ASSISTANT EXECUTIVE ENGINEER, PWD ROADS DIVISION, KOTHAMANGALAM 686691. SR. GOVERNMENT PLEADER SMT.K.MEERA. SRI.THOMAS ANTONY KALLAMPILLI THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26/08/2009, ALONG WITH WA NO. 868 OF 2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R. Bannurmath, C.J. & A. K. Basheer J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.Nos.836 & 868 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of August, 2009. Judgment Basheer, J: These two appeals are being disposed of by this common judgment since they are directed against a common judgment and also since the issues involved in them are common. 2. The primary prayer made by the petitioners in the writ petitions was to issue a writ of mandamus or such other appropriate writ, order or direction to the respondents not to acquire their respective properties under the Land Acquisition Act pursuant to Ext.P1 notification and also not to proceed with the construction of the proposed PWD bye-pass road from Thangalam to Kozhippilly through Kothamangalam village. In the alternative it was also prayed that the respondents may be directed to change the alignment of the proposed bye-pass road so as to avoid acquisition of their respective properties. 3. The learned single Judge found that all the contentions raised by the appellants were untenable and accordingly dismissed the writ petitions by a common judgment. 4. Appellants whose properties along with several others, were also included in Ext.P1 combined notification, issued under WAs.836 & 868/09 :2: Section 4(1) and Section 17(4) of the Land Acquisition Act, contended that the proposed P.W.D bye-pass from Thangalam to Kozhippilly in Kothamangalam village is totally unnecessary, since there is already a PWD bye-pass road in existence. Further, a new National Highway bye pass road from Kozhippilly to Mathirappally is also proposed to be constructed by the National Highway Department. Appellants alleged that the proposal for the new PWD bye pass road is only aimed at escalating the value of the land belonging to certain “influential and affluent people”. If the new bye-pass also comes into existence, the combined width of the PWD and National Highway bye-pass roads would be around 75 meters. 5. The appellant in WA.No.868/2009 raised a further contention that if the proposed alignment is implemented, more than 28 cents of paddy land in addition to the residential property would be destroyed. According to the appellant, the proposed alignment would virtually cut his residential property into three pieces. The centre line of the proposed alignment is hardly at a distance of 7.5 meters from his house. The well in the property which is the only source of drinking water for the family would also be destroyed. Therefore the appellant contended that the respondents have to be directed to change the alignment in such a WAs.836 & 868/09 : 3 : way that the bye-pass road passes through the eastern boundary of his residential property without touching the well. In the alternative, the appellant suggested that the alignment could be shifted to the western boundary of his property. 6. In the counter affidavit filed by respondent No.5, the Asst.Executive Engineer, PWD Roads Division, Kothamangalam it was pointed out that the proposed PWD bye-pass road from Thangalam to Kozhippilly is proposed along the southern side of Kothamangalam town with a view to avoid traffic congestion and also considering the future development of the town and the surrounding areas. It was also pointed out that the existing bye- pass road is lying along the northern side of Kothamangalam town which can be used for vehicles which proceed from Perumbavoor side to Munnar and Thattekkad and vice versa. The new bye-pass road consists of two reaches (1) from Thangalam to Kuroor and (2) from Kuroor to Kozhippilly. The first reach is intended to facilitate traffic from Perumbavoor to Moovattupuzha and vice versa and the second reach is to facilitate traffic from Kuroor to Munnar/Thattekkad and vice versa. It was asserted that the existing bye-pass cannot serve the above purpose, especially if the future increase in the vehicular traffic is kept in view. More importantly, by constructing this new bye-pass along the southern Was.836 & 868/09 : 4: side of Kothamangalam town, a ring road would be formed around Kothamangalam town to connect the existing bye pass along the northern side. Thus vehicles which do not want to enter Kothamangalam town would be greatly benefited by this new bye- pass road. Further, the proposal which has been pending since 1997 is to start the bye-pass from Kozhippilly and to end at Mathirappally which is about 3 km. away from Kothamangalam town. Even if the National Highway bye-pass road is constructed, it would benefit only those vehicles which intend to go from Moovattupuzha to Munnar and vice versa. In short, it was contended by the PWD authorities that the proposed bye-pass was absolutely essential for the free flow of traffic in that area. 7. Respondent No.5 gave details of the alignment with specific reference to the technical details as to how the alignment had been fixed. The allegation that the new bye-pass road was being constructed to hike the price of land of some influential people was vehemently denied. The alignment was finalised after conducting a detailed survey and study. If the proposal suggested by the appellants were to be accepted, the length of the road from Kuroor to Kozhippilly will increase considerably resulting in unnecessary waste of time and money for the public. 8. As regards the contention raised by the appellant in Was.836 & 868/09 : 5 : WA.No.868/09 for changing the alignment it was pointed out by the PWD authorities that if the alignment was to be shifted to the eastern side to save the well of the appellant, the bent or curve at that point will increase further. Resultantly, the property of other land owners would have to be acquired. A building in which a toddy shop is situated will also have to be acquired. Even if the well is saved by changing the alignment, the residential building of the appellant cannot be saved. Similarly if the alignment is shifted to the western boundary of the appellant's property many buildings belonging to several other people will have to be acquired. This will result in increase in the cost of acquisition. 9. In the course of the hearing we had directed the Engineers of the Department to appear before us with the relevant file in order to ascertain whether any slight shift in the alignment was possible and also to see whether the allegation raised by the appellants that this new bye-pass was totally unnecessary, was correct or not. 10. Having carefully perused the plans and other relevant materials produced by the Engineers, apart from those which are available on record, we have no hesitation to hold that the contentions raised by the appellants cannot be sustained at all. The learned Judge had adverted to all the relevant aspects of the case in detail and held against the appellants. Was.836 & 868/09 : 6 : 11. In this context it may also be noticed that though the proposal for construction of a bye-pass by the National Highway Authorities has been pending since 1997, the said project has not yet materialised. As informed by the Engineers who appeared before us, it may take many more years for the said highway to become a reality. Even if the said national highway bye-pass becomes a reality, the proposed PWD bye-pass is absolutely essential to avoid the traffic congestion in Kothamangalam and Paravur, as could be seen from the materials produced before us. 12. There is yet another aspect of the matter. Section 4 notification in this case was published in 2006. But the appellants filed the writ petitions only in 2008, more than 22 months after the publication of the notification. The learned Government Pleader submitted before us that all other land owners have already surrendered their lands and the work for construction of the bye- pass is in progress. Only the lands belonging to the appellants remain to be taken possession of. If any change is to be made in the alignment at this stage it will causes irreparable loss to the Government and the project will get delayed further. 13. Having carefully considered the contentions raised by the appellants and having perused the materials available on record, Was.836 & 868/09 : 7 : we are satisfied that no interference is warranted with the view taken by the learned single Judge. There is no merit in any of the contentions raised by the appellants. The appeals fail and they are accordingly dismissed. S.R.Bannurmath, Chief Justice A.K. Basheer Judge an.