IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 WP(C).No. 27437 of 2007(N) -------------------------- PETITIONER: ------------ 1. ROSAMMA AUGUSTINE, W/O.AUGUSTINE, ALUMMOOTTIL HOUSE, PERUNNA P.O., CHANGANACHERRY, KOTTAYAM DISTRICT. 2. JOSEPH AUGUSTINE, S/O.AUGUSTINE, ALUMOOTTIL HOUSE, PERUNNA P.O., CHANGANACHERRY, KOTTAYAM DISTRICT. BY ADV. SRI.GEORGEKUTTY MATHEW RESPONDENTS: ------------- 1. THE CHIEF ENGINEER, (ROAD AND BRIDGES), P.W.D. THIRUVANANTHAPURAM. 2. THE EXECUTIVE ENGINEER, P.W.D. KOTTAYAM. 3. THE SPECIAL TAHSILDAR, LAND ACQUISITION (GENERAL), KOTTAYAM. 4. THE CHIEF TECHNICAL EXAMINER, FINANCIAL INSPECTION WING (PWD) SBTU BUILDING, PULIMOOD, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.BASANTH BALAJI FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.27437/2007 APPENDIX PETITIONERS EXHIBITS;; EXT.P1; COPY OF THE COUNTER AFFIDAVIT DATED 10.5.2007 IN W.P. C NO.30969/2006. EXT.P2; COPY OF THE JUDGMENT DATED 6.8.2007 IN WPC NO.309969/2006. EXT.P3; COPY OF THE PETITION DATED 16.8.2007 BEFORE THE 1ST RESPONDENT. /TRUE COPY/ P.A. TO JUDGE. PIUS C. KURIAKOSE, J. ---------------------------------- W.P.(C) NO. 27437 of 2007 ---------------------------------- Dated this the 8th day of July , 2008 JUDGMENT The petitioners are wife and husband whose properties are proposed to be acquired for construction of Changanassery bye- pass road. The first respondent is the Chief Engineer (Roads and Bridges), P.W.D. Thiruvananthapuaram. The second respondent is the Executive Engineer, P.W.D. Kottayam. The third respondent is the Land Acquisition Officer and the 4th respondent is the Chief Technical Examiner (P.W.D.). 2. The petitioners' grievance is that their lands have been earmarked for acquisition for the purpose of construction of the bye-pass road. They suspect that there are grave irregularities in the marking of the land for the formation of the bye-pas road. The third respondent had demarcated and placed stones on their lands also and the proposal is to demolish their residential houses completely. There is marked alignment for the proposed bye pass. The petitioners' property is falling within reach No.4 WPC No. 27437/2007 2 of the alignment and through the petitioners' property alone bye- pass is to have a width of 24 meters, whereas in the case of adjacent lands the width will be only 15 meters. If the width of the road is limited to 15 meters, some portion of the house of the petitioners can be saved. The petitioners refer to the case of one Mariamma Francis whose lands were proposed to be acquired for reach No.3 of the bye-pass road. Smt.Mariamma Francis approached this court challenging the excess width proposed to be acquired from her land. Pursuant to the directions issued by this court, the 4th respondent inspected the property of Mariamma Francis and thereafter a courter affidavit was filed. Ext.P1 is copy of that counter affidavit. Quoting from that counter affidavit, the petitioners point out that the Executive Engineer, P.W.D. Roads Division, has submitted that there can be be saving of one meter with one side vertical formation (by providing retaining structure) and that the width of the acquisition in the petitioners' land can be minimized by providing vertical side formation. The petitioner has produced Ext.P2 judgment in Mariamma Francis's case whereby the writ petition is disposed of with a direction to the P.W.D. Authorities WPC No. 27437/2007 3 to implement the suggestion made by the Chief Technical Examiner in the last paragraph of the counter affidavit in the matter of the proposed Acquisition. The petitioners submit that their land is flat land compared to the land of Mariamma Francis and others referred to in Ext.P3. Besides, there are no curves for the proposed bye-pass through the land of the petitioners. Hence, only minimum width is required to the road while passing through the land of the petitioners. It is evident that the bye-pass road has been formed with lesser width than the width marked in the land of the petitioners. The only abode of the petitioner s is the house situated in the land marked for the formation o the bye-pass road. If the width of the bye-pass road is reduced from 24 meters, some portions of the house of the petitioners can be saved and the petitioners will not have to be thrown into the street. Under the above circumstances, the petitioners submitted Ext.P3 representation before the first respondent – Chief Engineer. It is on the apprehension of the petitioners that Ext.P3 representation will not be considered by the first respondent that the petitioners have approached this court with the following prayers. WPC No. 27437/2007 4 i). Issue a writ of mandamus directing the respondents to follow the same width of 15 meters to the Changanassery bye-pass road, while passing through the lands of the petitioners also, as followed in other portions of the Changanassery bye pass road. ii). Issue a writ of mandamus directing the respondent No.4 to inspect the proposed line of the Changanassery bye-pass road in the lands of the petitioners and file report stating the minimum required width of the road while passing through the lands of the petitioners comparing with width followed in the completed portions of the road. 2. Separate counter affidavits have been filed on behalf of WPC No. 27437/2007 5 the Land Acquisition Officer as well as by the Executive Engineer. The Land Acquisition Officer's counter is to the effect that the land Acquisition proceedings have been completed in accordance with law and that award has been passed for an amount of Rs.8,98,357/-. It is stated that succeeding and preceding land holdings in the alignment have already been acquired and handed over to the requisitioning authority. The Land Acquisition Officer, therefore, is not empowered to change the alignment as requested by the petitioners. It is the P.W.D., which has fixed the alignment. Since preceding and succeeding holdings have already been handed over o the P.W.D. after completing all procedure, question of change of alignment at this stage will not arise. 3. In the Executive Engineers' counter affidavit, it is submitted that completion of the Changanacherry bye-pass road at the earliest is absolutely necessary for easing the traffic congestion which the Changanacherry town is experiencing. Now. The work is done more than half way through. For convenience, the construction of the road is being executed in four reaches. The work for the first and second reaches are WPC No. 27437/2007 6 already over and that the third reach is nearing completion. The petitioners' property comes within the 4th reach. The counter affidavit denies the allegation that there are grave irregularities in the marking of the land for formation of the bye-pass road. It is submitted that the alignment of the road has been fixed strictly in accordance with the judgment of this court in O.P. No.9084/03 . The alignment is fixed in such a way as to have a bare minimum width of 15 meters at plane surface and more than 15 meters in the curved portions and portions requiring cutting or filling according to necessity, so as to ensure a formation width of 12 meters. The counter affidavit denies the allegation that the width of the petitioners' property alone is fixed as 24 meters, while the width marked in the adjacent lands is only 15 meters. The said allegation is described to be a false one. The land width fixed at the portion of the petitioners' property is 19 meters. The road passing through the petitioners' property would require cutting for an average depth of 2 meters and hence extra land width is necessary to provide the required slop to the sides. Vertical formation is not practical and the same is dangerous. Moreover, the road portion in question is WPC No. 27437/2007 7 closer to the point where the road crosses the Changanacherry – Kavioor Major District Road. Sufficient formation width is required in this portion so as to provide for easy movement of vehicles coming from all the four sides. Hence, alignment of the road at this portion has been fixed at a width of 19 meters in average. The Executive Engineer has no intention to cause undue hardship and damages to the petitioners. The lands succeeding and preceding the portion owned by the petitioners' property have been taken over by the P.W.D. And the width of the road at that portion is 19 meters. The counter affidavit states that the alignment of the road is fixed in such a way as to provide a minimum formation width of 12 meters only for which acquisition of land varying from 15 to 20 meters according to site condition is proposed. It is pointed out that land width required for State Highways is 45 meters as per the Road Standards Specifications, 1974. As regards the judgment in Mariamma Francis' s case , it is stated in the counter affidavit that, that judgment is challenged in appeal since the suggestion made by the Chief technical Examiner for vertical formation by providing earth retaining structures on the sides of formation eliminate the WPC No. 27437/2007 8 side slopes otherwise, required so as to reduce the width of land to be acquired is not at all practical The same would result in avoidable additional expenditure considering the value of the land to be acquired and the expenditure for providing retaining structure. The counter affidavit concludes by contending that in order to provide an easy gradient, formation of road at the petitioner's portion would require cutting for an average depth of 2 meters which in turn would necessitate additional width of land for providing the side slopes. So much width is inevitable for the proper completion of the road considering the location of the property near to the crossing of the Major District Road. It is stated that all the land except the petitioners' property have been taken over by the PWD and the work for completion of the road is in good progress. 4. Heard Sri.Georgekutty Mathew the learned counsel for the petitioner and Sri.Basanth Balaji,the learned Government Pleader for the respondents. Sri.Georgekutty and the Government Pleader would address submissions on the basis of the pleadings of their respective parties. Sri.Georgekutty would submit that the petitioners, who are only small frys should be WPC No. 27437/2007 9 given the justice that was given to Smt.Mariamma Francis and the respondents should be directed to consider a vertical retaining wall so that the width of the road can be reduced to a certain extent and thereby portion of the petitioners building can be saved. The response of the learned Government was that the construction of the vertical wall will be very costly and that the petitioners will be able to afford the same. On hearing these submissions, I passed the following order on 9.6.2008. “Counsel for the petitioners is directed to seek instructions from the respective petitioners as to whether they are ready to have the cost for construction of the vertical retaining wall deducted from out of the land acquisition compensation which is due to them. Post on 11.6.2008” The Government Pleader would submit on 19.6.2008 on the basis of the instructions received that total amount of Rs.2,00,622/- will be required for constructing the retaining wall in question. Submitting so, when the correctness of the amount was disputed, I verbally directed the Government Pleader to file a statement showing the details of the total cost of construction of the retaining wall and accordingly on 27.6.2007 a statement was filed. According to that statement, the total cost for construction WPC No. 27437/2007 10 of retaining wall is 4,50,072.32. Sri.Georgekutty would take exception to the statement filed by the P.W.D. and the submitted that the petitioners should be permitted to construct the retaining wall at their cost. According to the petitioners, since it is for the safety of the petitioners remaining property including their building that this retaining wall is constructed, the petitioners will take every care to see that wall is strong and durable. 5. Having considered the rival submissions addressed at the bar and the circumstances attending on this case, I am not inclined to follow Ext.P2 judgment in this case for more reason than one. Ext.P2, I was told, is being appealed against. Moreover, the requisitioning authority, which has technical expertise, is of the opinion that having regard to the location of the petitioners' property situated in close proximity to the point where the bye-pass road crosses Changanassery – Kavioor major district road, minimum formation width of 19 meters is absolutely necessary. I have every reason to accept the stand of the requisitioning authority that the construction of the retaining wall expending Rs.4,50,072.32 will not be economical WPC No. 27437/2007 11 from the point of view of the State taking into account the market value of the land fixed as per the award now proposed to be passed. The writ petition will stand dismissed. However, it is made clear that this judgment will not stand in the way of the petitioners sorting out any other surviving issues or ancillary issues directly with the Executive Engineer. PIUS C. KURIAKOSE JUDGE dpk