IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 WP(C).No. 24450 of 2010(E) -------------------------- PETITIONER(S): --------------- 1. JOSEPH.O.E,S/O.LATE ISSAC, ONASSERITHOTTATHIL HOUSE,THENIDUKKU, PANNIYAMKARA POST, PALAKKAD DISTRICT. 2. K.T.THOMAS,S/O.K.M.THOMAS, KOODATHINALIL HOUSE,THENIDUKKU, VADAKKENCHERRY POST,PALAKKAD DISTRICT. 3. JOHN.K.THOMAS,S/O.K.M.THOMAS, KOODATHINALIL HOUSE,THENIDUKKU, VADAKKENCHERRY POST,PALAKKAD DISTRICT. 4. KRISHNANKUTTY.P,S/O.LATE C.NARAYANAN NAIR,POOTHAMKURISSI HOUSE,PANNIYAMKARA, PANNIYAMKARA POST,PALAKKAD DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S): --------------- 1. NATIONAL TRANSPORTATION PLANNING & RESEARCH CENTRE(NATPAC), REP. BY ITS CHIEF PROJECT CO-ORDINATOR OFFICER,THIRUVANANTHAPURAM 695 024. 2. THE SPECIAL DEPUTY TAHSILDAR, SLAO,COMPETENT AUTHORITY,NATIONAL HIGHWAY-47, PALAKKAD , PALAKKAD PO, 678 001. 3. THE PROJECT DIRECTOR & GENERAL MANAGER, NATIONAL HIGHWAY AUTHORITY OF INDIA, BPL JUNCTION, PALAKKAD, PALAKKAD 678 001. 4. THE MANAGER(TECH), NATIONAL HIGHWAY AUTHORITY OF INDIA, BPL JUNCTION, PALAKKAD PO,PALAKKAD 678 001. 5. THE PRINCIPLE SECRETARY TO GOVERNMENT, PUBLIC WORKS (D) DEPARTMENT,THIRUVANANTHAPURAM- 695 001. 6. THE CHIEF ENGINEER(NH), THIRUVANANTHAPURAM-695 001. BY ADV. SRI.THOMAS ANTONY FOR R3 BY GOVT. PLEADER SMT.K.R.DEEPA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No.24450 of 2010 ------------------------------- Dated this the 8th day of September, 2010 J U D G M E N T The petitioners, four in number, have filed this writ petition seeking a direction to the respondents to locate the Toll Plaza at Thenidukku-Panniyankara on National Highway-47 at 244 Kms., instead of the proposed 243 Kms. It is not in dispute that petitioners 1 and 2 had along with another person filed W.P. (C) No.33533 of 2007 in this Court raising the very same contentions. That writ petition was resisted inter alia on the ground that the Toll Plaza cannot be shifted to the location suggested by the petitioners, as the Toll Plaza requires a straight road for a length of 150 metres on either side with a width of 100 metres, for the purpose of giving advance intimation to drivers of vehicles coming from both directions and also for creating space for the vehicles to stop and pay the toll without blocking the smooth flow of traffic. A learned single Judge of this Court, after considering the rival submissions, held in Ext.P3 W.P.(C) No.24450 of 2010 2 judgment as follows:- “9. I am not much impressed by the submissions of the learned senior counsel that there is conflict between the version taken before this court by the SLAO and the third respondent Project Director. SLAO's statement that the representation for changing the alignment cannot be considered and could not be considered only means that the representations could not be considered favourably to the petitioners. The said statement does not mean that the representations were never considered at all. In fact the common contention in both the counter affidavits is that the representations were entertained and joint inspections were conducted and that the joint inspections revealed that the change in the alignment is not technically feasible. It is trite that in land acquisition matters once the purpose of the acquisition is found to be a genuinely public one, identification of the land required and fixation of the alignment if the acquisition is for a road are all matters coming within the domain of the requisitioning authority and the State. The reasons highlighted by the third respondent in his counter affidavit to show as to why a change is not feasible in my opinion are convincing. This court is not expected in proceedings under Article 226 to examine the wisdom of the fixation of the alignment and the identification of the spot for locating the Toll Plaza in these proceedings. Most importantly the petitioners do not attribute any mala fides or oblique motives to any of the respondents in the matter of the present fixation of the alignment. It is true that as in any other W.P.(C) No.24450 of 2010 3 acquisition of residential properties this acquisition will result in heartburn for the petitioners. But that is inevitable in this case where the petitioners' properties have been found by the National Highway Authority of India on the basis of the advice of their technical experts to be suited for the purpose.” (emphasis supplied) Ext.P3 judgment has become final. The learned single Judge has while repelling the demand made by petitioners 1 and 2 and another for shifting the location of the Toll Plaza held that this Court exercising jurisdiction under Article 226 of the Constitution of India cannot substitute its decision in the place of the decision of the National Highway Authority of India, which has fixed the location for the Toll Plaza. The learned single Judge also noticed that the petitioners have not attributed any mala fides or oblique motives to the respondents in the matter of fixation of the alignment or location of the Toll Plaza. 2. However, notwithstanding the finality attaching to Ext.P3 judgment, petitioners 1 and 2 have along with two others filed this writ petition raising the very same contentions relying on Ext.P6 letter sent by the Chief Engineer, National Highways, W.P.(C) No.24450 of 2010 4 PWD, Thiruvananthapuram, to the Secretary to Government, Public Works Department, Thiruvananthapuram, and Ext.P5 letter sent by the Principal Secretary to Government, Public Works Department, Thiruvananthapuram, to the Chief Engineer (NH), Thiruvananthapuram. In my opinion, with the dismissal of W.P.(C) No.33522 of 2007, as the issue has attained a finality, the petitioners cannot seek to re agitate the issue by filing another writ petition. Petitioners 1 and 2 herein, who are bound by Ext.P3 judgment of this Court cannot be heard to contend that this Court should have a re-look at the issue without Ext.P3 judgment being set aside in appropriate proceedings. In my considered opinion, this writ petition is nothing but an abuse of the process of court. 3. That apart, the third respondent has filed a counter affidavit wherein it is stated that the site suggested by the petitioners is not suitable for locating the Toll Plaza. It is also stated that out of 32 houses which have been acquired for the purpose of the Toll Plaza, all the land owners except the W.P.(C) No.24450 of 2010 5 first petitioner and three others have surrendered the land and that many have also received the compensation payable in respect of their lands/buildings. It is also stated that notices have been served on the said persons calling upon them to surrender possession of the land and to receive compensation and that notwithstanding service of notice, the first petitioner and three others who are not parties to this writ petition have declined to surrender their lands. In other words, from the counter affidavit, it is evident that petitioners 2 to 4 have surrendered their lands and that the first petitioner alone has declined to surrender the land. In such circumstances, having regard to the fact that possession of the lands belonging to various persons including petitioners 2 to 4 in this writ petition has already been taken over and first petitioner and three others alone are yet to surrender the lands, I am of the opinion that the reliefs prayed for by the petitioners cannot be granted. I accordingly hold that there is no merit in this writ petition. The writ petition fails and is accordingly dismissed with W.P.(C) No.24450 of 2010 6 costs of Rs.5000/- to be paid jointly by petitioners to the National Highway Authority of India. It is clarified that if costs as ordered is not paid, it will be open to the National Highway Authority of India to adjust the amount of costs from the compensation payable to the petitioners in equal proportion. P.N.RAVINDRAN, Judge. nj.