IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 WP(C).No. 30450 of 2008(Y) -------------------------- PETITIONER(S): --------------- 1. P.A.MOHAMMED, AGED 49 YEARS, S/O.P.K.ABDU, PADIYATH HOUSE, DOOR NO.EL 5/840, LOKAMALLESWARAM VILLAGE, KODUNGALLUR, THRISSUR DISTRICT. 2. K.K.VENUGOPAL, AGED 64 YEARS, S/O.KOLATHAPPIL THANKAMMA, DOOR NO.EL 5/838, LOKAMALLESWARAM VILLAGE, KODUNGALLUR, THRISSUR DISTRICT. 3. K.G.GEENA, W/O.P.V.TAZ, AGED 43 YEARS, PALAKAPARAMBIL HOUSE, DOOR NO.12/201A, LOKAMALLESWARAM VILLAGE, KODUNGALLUR, THRISSUR DISTRICT. BY ADV. SMT.M.A.VAHEEDA BABU SRI.JAGAN GEORGE SRI.K.A.NOUSHAD SRI.P.G.PRAMOD RESPONDENT(S): --------------- 1. NATIONAL HIGHWAY AUTHORITY,REPRESENTED BY PROJECT OFFICER, PROJECT IMPLEMENTATION UNIT, THUSHARA BINDU, CHANDRANAGAR, PALAKKAD. 2. THE DEPUTY COLLECTOR, THRISSUR AND COMPETENT AUTHORITY, FOR ACQUISITION OF LAND FOR KODUNGALLUR BYE PASS, THRISSUR. 3. EXECUTIVE ENGINEER,PWD (NATIONAL HIGHWAY KODUNGALLUR. 4. CHIEF ENGINEER, PWD (NATIONAL HIGHWAY), TRIVANDRUM. 5. UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, TRANSPORT BHAVAN, 1-SANSAD MARG, NEW DELHI. ADV. SRI.THOMAS ANTONY KALLEMPALLY FOR R1 GOVERNMENT PLEADER SRI.BENNY VARGHESE FOR R2-4 R5 BY ASST.S.G. SRI.P.PARAMESWARAN NAIR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 30450 of 2008 ----------------------------------------------- Dated this the 1st day of December, 2008 J U D G M E N T Petitioners 1 and 2 and husband of the third petitioner own lands and new residential buildings and their grievance is that for the construction of the Kodungallur bye-pass their newly constructed residential buildings are proposed to be acquired. Ext.P1 photographs is photograph of residential building constructed by the first petitioner on his plot having 10 cents of extent just three years back. Ext.P2 is photograph of residential building constructed by the second petitioner on her plot of 4.875 cents hardly four years ago. Ext.P3 is similar photograph of the residential building put up by the third petitioner's husband some three years back. According to the petitioners there has been a proposal for construction of Kodungallur bye-pass as part of Edappally – Kuttippuram NH-17 road between Kottappuram and Chandapura. As per the original proposal the bye-pass was to be formed in a straight line between chainage 401-700 and 401-900 near Kodungallur Town and it would have been necessary to demolish only two buildings and a twenty years old police quarters which were not suitable for occupation. It is submitted that considering the proposed acquisition as per the original proposal the buildings thereon including WP(C)N0.30450/08 -2- police headquarters were not not subjected to any manner of maintenance for the past more than 10 years. It is further submitted that anticipating the acquisition a three storied police quarters with six apartments were also constructed on the eastern side of the proposed original bye-pass near the police station. If the acquisition for the bye- pass was made as per the original proposal the properties of the petitioners would have been affected. Petitioners allege that without any valid reason or justification the alignment of the bye-pass between chainage 401-700 and 401-900 is now deviated towards east, causing a sharp curve in the proposed road whereby portions of the properties of petitioner Nos. 1 and 3 and the entire property of the second petitioner and their residential house will have to be acquired. Because of this deviation between chainage 401-700 and 401 – 900 the police station building, a portion of the new three storied police quarters and a large auditorium by name Mangala Auditorium apart from other properties including the residential buildings of the petitioners will have to be demolished. According to the petitioners, acquisition as per this new alignment will cause the Government additional financial burden of more than Rs.1 crore and the same is not technically viable also. Requesting for reconsideration of a new WP(C)N0.30450/08 -3- proposal and for acquisition through the original alignment itself the petitioners submitted Ext.P4 representation before the District Collector on 10-12-2007. Ext.P5 representation was submitted to the General Manager, National Highway Authority of India. But now Ext.P6 notification under section 3A(1) of the National Highways Act proposing to acquire properties as per the new alignment has been published. Ext.P7 is copy of a sketch showing the alignment of the bye-pass as proposed presently. Ext.P8 is copy of the sketch showing the original proposed alignment. To Ext.P6 notification the husband of the third petitioner submitted Ext.P9 objections and similar objections were submitted by the other petitioners also. When it was noticed that without considering these objections the respondents were proceedings with the acquisition petitioners approached this court by filing writ petition No. 26123 of 2008 and this court passed Ext.P10 judgment directing the second respondent to intimate the result of the hearing conducted by him pursuant to the objections filed by the petitioners. Under Ext.P10 petitioners were permitted to challenge the declaration which may be made bay the Government for acquisition of the property. Now the petitioners have been served with copies of the orders issued by second respondent. Exts.P11, P11(a) and P11(b) are WP(C)N0.30450/08 -4- copies of the orders. It is challenging Exts. P11, P11(a) and P11(b) that the present writ petition has been filed on various grounds. The petitioners pray for the following reliefs. 1. Call for the records leading to Exts.P11, P11(a) and P11(b) and quash the same. 2. To issue a writ of mandamus or other appropriate writ or order or direction commanding the respondents not to acquire the properties of the petitioners as per Ext.P6 notification or under any other notification for Kodungallur bye-pass. 3. To issue a writ of mandamus or other appropriate writ or order or direction commanding the respondents to acquire the property through the western side of the petitioners property, for Kodungallur bye-pass in between chainage 401- 700 and 401-900, causing less expense and lease inconvenience to all concerned and as originally proposed. 2. The second respondent competent authority has filed a counter affidavit. It is contended therein that on verification the objection raised by the petitioners that there is a sharp curve in the alignment of the bye-pass near to their house was found to be incorrect. The curve which was found on verification is not sudden or discriminative. According to the Executive Engineer, the slight curve in the sketch is essential for the smooth transition of vehicular traffic. The allegations of the petitioners that Ext.P11 series are illegal, improper and issued without any application of mind is contrary to WP(C)N0.30450/08 -5- facts. The competent authority claims that opportunity had been given to the petitioners for hearing. The statements of the petitioners were recorded, site was inspected, experts were consulted and decision to disallow the objections was taken after considering the matter seriously under subsection (2) of section 3C of the National Highways Act. It is further submitted that a detailed survey was conducted for identifying the lands which come under the alignment as per the sketch approved by the Chief Engineer, National Highways. The competent authority has submitted report to the Central Government as required under subsection (1) of section 3D of the National Highways Act regarding the land to be acquired in the first phase. In exercise of the powers conferred under subsection (1) of section 3D the Central Government has declared that the lands specified in the schedule should be acquired for the construction of a bye-pass on the stretch of land from km. 401.000 to km. 404.750 (Chandapura to Kottappuram) vide notification No. 2551 (E) published in the Government of India Gazette dated 30-10-2008. It is submitted that as per subsection (2) of section 3D upon publication of such a notification the land stands vested absolutely in the Central Government. WP(C)N0.30450/08 -6- 3. A very detailed counter affidavit has been filed by the third respondent Executive Engineer. It is submitted therein that the proposal to construct Kodungallur bye-pass was originated in 1978 and preliminary investigation of the reach was carried out and alignment approved by the Ministry of Surface Transport (MOST) and later the Ministry of Shipping, Road Transport and Highways (MOSRTH) vide letter dated 17-7-78. It is this alignment which is referred to by the petitioners as the original proposal. The Executive Engineer contends that as per the then prevailing conditions the width of the road was fixed as 30 metres for two lane traffic, considering the traffic intensity at that time. The boundaries were not fixed and LA proceedings were also not carried out. But the present situation is entirely different. The traffic intensity has grown beyond imagination. Various developments took place rapidly throughout the country necessitating wider roads. Government of India took a policy decision to widen all major National Highways with facilities for four lane traffic. As far as NH 17 is concerned, fast developments being introduced in and around Kochi viz., International Airport, ICTT Vallarpadom, Kochi Oil Earth, Construction of Goshree Bridges and the strategic importance of NH 17 as road connection to India's Financial Capital, Mumbai, the importance WP(C)N0.30450/08 -7- of NH has increased tremendously. The Government of India's general policy is to acquire land with a width of 60 metres for four lane. However, as a special case considering the thick population in the State of Kerala MKOSRTH has fixed the width of NH 17 Division Kodungallur and elsewhere in the State as 45 metre to facilitate four lane traffic. This policy decision has been taken by the Government of India taking into account various relevant factors such as ever growing traffic needs with a far sight of future growth and developments. The width of the proposed road is decided as per that policy and technical feasibility and national interest. It is further submitted that MOSRTH being the department who is to plan and take decision for the formation and construction of National Highways appointed M/s. Wilber Smith Associates, Mumbai as consultants. The present alignment was prepared by them as per their surveys and according to the guidelines issued by the Ministry. The Ministry approved the plan and sketch on 7-2-2007. It has become necessary to demolish the structures of the petitioners only because the structures happened to be in the alignment approved by the Ministry. There is no particular intention to demolish these structures by proposing a slight curve in the plan between chainage 401-700 and 401-900. The counter WP(C)N0.30450/08 -8- affidavit denies the contentions of the petitioner that the present alignment of road is not viable . It is pointed out that the MOSRTH has a pool of technical experts who are trained for the preparation of the plans and drawings and the plan was prepared by them after careful technical studies and investigation is approved by competent technical authorities whose ability and learning on the subject cannot be question. As far as the representations of the petitioners are concerned the authority which can take a final decision is MOSRTH and not the District Collector or the National Highway Authority. It is contended that though the petitioners worry about the viability of the project and loss which may be sustained to the Government their real intention is to save their property from acquisition by avoiding the slight curve between km. 401 – 700 and 401 – 900. It is submitted that the slight curve at this area is technically required for the smooth transition and as such need not be straightened. In other words, the contention raised is that the curve is a naturally required curve, which cannot be avoided. It is pointed out that when a large public project like this, which is beneficial to all the sections of the society, is undertaken, especially in a thickly populated State like Kerala, there will be some losses to few individuals are inevitable. If the curve is WP(C)N0.30450/08 -9- straightened and the petitioners properties are saved, properties of other persons will become affected and it is likely that they will approached this court raising similar grounds which will result in further delay in the accomplishment of the project. The counter affidavit denies the allegations levelled in the writ petition against Ext.P11 series. It is submitted that when the petitioners raised their complaint about the deviation in the road in front of their properties, naturally the competent authority who is a revenue official, sought the advice of the 3rd respondent. The third respondent claims that he is technically qualified having good experience and has acquired ample knowledge in the construction and maintenance of the roads and is competent to render technical advice to the second respondent. There was no infirmity in the third respondent having given technical advice to the second respondent. Lastly it is submitted that WP(C). No. 10321 of 2005 filed before this court earlier seeking issuance of a direction to the Union Government and State Government to expedite the works of Kodungallur bye-pass and to open it to the public. This court by judgment dated 15-6-2006 directed the respondents to make the by-pass available to the public within six months, i.e., before 15- 12-2006. Since even the preliminaries for land acquisition could not be WP(C)N0.30450/08 -10- completed before that date the same became an issue of contempt of court. C.C.C. Nos. 161 and 2351 of 2008 were accordingly considered by this court. On submission of facts this court granted time upto 27- 12-2008 for completing the land acquisition process and 31-10-2010 for completing the construction works of the bye-pass. Therefore, at any cost this land acquisition proceedings will have to be completed by 27-12-2008. 4. Petitioner has filed I.A. No. 15026 of 2008 for appointment of a commission seeking a report on the following matters on the basis of a local inspection. 1.Whether the curve, as proposed now, near the residence of the petitioners in between chainage 401-700 and 401-900 is necessary for Kodungallur Bye-pass? 2. Whether the curve, as proposed now, near the residence of the petitioners in between chainage 401-700 and 401-900 can be avoided by making suitable modifications to the alignment ? 3. Whether the shifting of the alignment slightly towards west, in between chainage 401-700 and 401-900 at the curving point, will not straighten the road and will it not be beneficial for smooth transition of vehicular traffic? 4. Whether it is necessary to demolish any other building to avoid the curve by straightening the proposed road in between chainage 401 – 700 and 401 -900? 5. What are the structures to be removed and what are the structures that can be saved by avoiding the curve by shifting the alignment towards west? Report whether such shifting WP(C)N0.30450/08 -11- would not be beneficial to the State taking into consideration the cost of the structures? 6. Whether by straightening the road the residential buildings of the petitioners can be saved without much injury to others? 7. What will be the damages and other injuries and inconveniences that will be caused to the newly constructed multi-storied police quarters if the alignments is not slightly shifted towards west and the curve is not avoided? 8. Such other matters as may be requested by the petitioners or their counsel at the time inspection. 5. I have heard submissions of Sri.Babu Karukapadath, learned counsel for the petitioner and those of Sri.Benny Varghese, learned senior Govt. Pleader in the writ petition as well as in the commission application. Mr.Babu Karukapadath submitted that a report on the basis of a local inspection with reference to the various aspects mentioned in the commission application will establish the correctness of the petitioners' case. Referring to the averments in the writ petition and the various documents produced by the petitioner he argued that an artificial curve has been created in the alignment which results in deprivation of newly constructed residential buildings of the petitioners. He highlighted that if the acquisition was to proceed through the alignment originally approved by the MOSRTH then the same would have been much more economical. Acquisition through the present WP(C)N0.30450/08 -12- alignment will cost the Government atleast Rs.1 crore extra. Sri.Benny Varghese, learned Govt. Pleader however, would resist the submissions of Mr.Babu Karukapadath on the basis of the contentions raised by the Executive Engineer in his counter affidavit. He submitted that the respondents are facing action for contempt before a Division Bench of this Court and that they are obliged to complete the acquisition proceedings by the 27th of this month. The proposal for constructing a bye-pass for Kodungallur Town in N.H. 17 was conceived 27 years ago and the project should be allowed to become a reality atleast now. The public purpose behind the acquisition is not under serious challenge. The petitioners' grievance is that they are being deprived of their newly constructed residential house. There is adequate provision in the National Highways Act itself to redress any grievance which the petitioners can have as regards the compensation determined by the competent authority in its award and there is provision for arbitration, so submitted the senior Govt. Pleader. (PIUS C.KURIAKOSE, JUDGE) WP(C)N0.30450/08 -13-