IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 2ND MARCH 2009 / 11TH PHALGUNA 1930 WA.No. 2796 of 2007(E) --------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.29400/2006 DATED 16/10/2007 .................... APPELLANTS/ PETITIONERS IN W.P.(C): --------------------------------------------------------- 1. P.J.MATHEW, PADINJARE KARA VEEDU, ASRAMAM ROAD, KALADY PO, ERNAKULAM-683 574. 2. P.V.REGHU, PATTALI HOUSE, THURAVOOR SOUTH, THURAVOOR P.O, ANGAMALY. BY ADV. MR.B.SURESH KUMAR. RESPONDENTS/ RESPONDENTS 1 TO 5 IN W.P.(C): ------------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO THE PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, THE KERALA STATE TRANSPORT PROJECT (PWD), MUTHOOT BUILDINGS, THAIKAD, THIRUVANANTHAPURAM. 3. THE EXECUTIVE ENGINEER, THE KERALA STATE TRANSPORT PROJECT DIVISION, PWD REST HOUSE COMPOUND, MUVATTUPUZHA-686 661. 4. THE SPECIAL TAHSILDAR, NATIONAL HIGHWAY II, ALUVA P.O., ERNAKULAM. 5. THE DISTRICT COLLECTOR, ERNAKULAM. R1 TO R5 BY GOVT. PLEADER MR. M.R. SABU. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02/03/2009, ALONG WITH W.A. NO. 2797/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B. Koshy,Ag.C.J. & M.C.Hari Rani, J. ---------------------------------------- W.A. Nos.2796 & 2797 of 2007 ---------------------------------------- Dated this the 2nd day of March, 2009 Judgment Koshy, Ag.C.J. Appellants/Petitioners in both these writ appeals are owners of shop rooms situated on the side of the Muvattupuzha - Angamaly road in Survey Nos. 399/91, 399/93 and 399/96 of Kalady village. For upgradation of the M.C. Road from Muvattupuzha - Angalaly the Kerala State Transport Project had initiated steps. Section 4 (1) notifications were published on 25.1.2003. Section 6 (1) declaration was also published. Subsequently, award was also passed and the same was deposited. As per the directions of this court, fresh award was passed in the case covered by W.A.No.2796 of 2007. Most of the petitioners filed W.P. © No.11792 of 2005 challenging the notification itself when they were attempted to be dispossessed and it was stated that dispossession should be only to the extent mentioned in the award. It is further directed that if it becomes necessary to demolish any portion of the buildings belonging to the petitioners, respondents shall make use of concrete cutting machines at the expenses of the petitioners. Challenge to W.A. Nos.2796 & 2797/2007 2 the acquisition was not accepted. All the averments of the petitioner were denied in the counter affidavit. 2. According to the petitioners, in order to help the owners of the building situated in the opposite side, a drain was constructed leaving a space of 1.10 metres in between the building and the drain. The Land Acquisition Officer filed a counter affidavit stating that portion of the property from the two persons just opposite to the petitioner's property was also acquired and part of their buildings were demolished. Even though petitioner referred to paragraph 14 of the Commissioner's report, the learned single Judge noticed that there is absolutely nothing in the report of the Commissioner to show that any property on the western side of the road had been omitted from the original alignment. Merely because some space is left between the drain and the eastern boundary of the acquired portion, it cannot be stated that there is any change in the alignment. The learned single Judge considered the averments of the petitioner and the respondents in the petition and counter affidavit and also going into the Commissioner's report and its objections, as finding of fact, found that there is no merit in the the writ petitions and the writ petitions were dismissed. W.A. Nos.2796 & 2797/2007 3 2. At the time of admission, a Division Bench of this Court considered the matter and observed as follows: “(2) Property comprised in Survey Nos. 399/91, 399/93 and 399/96 of Kalady village is acquired by the respondent authorities for widening of M.C.Road from Muvattupuzha - Angamaly. After such acquisition, the respondents have also passed the awards. Questioning the correctness or otherwise of the awards so passed, petitioners were before this Court. (3) The learned single Judge, after detail consideration of the issue raised by the petitioners, has come to the conclusion that the awards passed by the respondents are within the time prescribed under the Act. Thereafter, has proceeded to observe that he would not interfere with the acquisition of properties especially in view of the fact that there is absolutely nothing on record to show that any change was made by the respondents from the original alignment and from the properties already acquired. (4) Even before the respondent authorities, the appellants/petitioners had given consent letters dated 29.04.2005 and 11.5.2005 and had agreed to give possession of an extent of 0.12 Ares of land and a portion of a two- storeyed R.C.C. building therein, comprised in Survey No.399/93 situated in Kalady village in Aluva Taluk. Having given such a consent letter, at this stage, in our opinion, there cannot be any objection by the appellants for the widening of the road, which is in the public interest.” W.A. Nos.2796 & 2797/2007 4 3. When the case came up for hearing on 6.2.2009, it was contended that road widening is over and in front of the building of the appellants, there is more width than in other part of the road and there is no necessity to acquire the building. We have directed the Government Pleader to get instructions with regard to this specific contention and Executive Engineer of the Kerala State Transport Project, Public Works Department gave a report as follows: “Only by demolishing the part of the building owned by the petitioners, the drain work and the road work can be completed as per the approved design. In the entire Angamaly - Muvattupuzha project road, only this 29 m portion remains unfinished which is in front of petitioner's property. In the petitioner's case about 1.5 m land width is required for the formation of the road. Among this about 1m is in pucca building and only by demolishing the part of the building the drain work and road work can be completed. Hence, the petitioner's property is inevitable for the purpose of road widening.” It is true that acquisition of the building will cause inconvenience and difficulties to the petitioners. But, when there is a public interest, private interest has to yield and road widening process cannot be stopped to a small portion creating bottlenecks. Construction of drain is a must. Since road widening is being done W.A. Nos.2796 & 2797/2007 5 as per the original alignment for which notification and declaration had been published and award passed the learned Judge has, as a finding of fact, found that averments of the petitioners are not correct, we are of the view that no relief can be granted in the writ appeals and the writ appeals are dismissed. J.B.Koshy Acting Chief Justice M.C. Hari Rani Judge vaa