IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933 RP.No. 884 of 2011() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.29100/2011 Dated 02/11/2011 .................... REVIEW PETITIONER(S): / THIRD PARTY PETITIONERS ---------------------- 1. C.R.NEELAKANDAN, THANAL, KIZHAKKEKARA RO AD, THRIKKAKARA.P.O., ERNAKULAM, KOCHI -21. 2. T.G.JAYAPRAKASAN, THAMBIPARAMBIL HOUSE, KAITHARAM.P.O., NORTH PARAVUR, ERNAKULAM - 683 519. 3. SATHEESAN V, NEELAVITTUVELI, PADAKKAL, ALAPPUZHA - 3. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): / PETITIONER & RESPONDENTS 1 TO 3 --------------- 1. SUNNY MATHEW PALAKATTUKUNNEL, ADVOCATE THODUPUZHA, IDUKKI - 685 584. 2. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 3. THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF ROAD TRANSPORT, SHIPPING AND HIGHWAYS, NEW DELHI - 110 001. 4. THE NATIONAL HIGHWAYS AUTHORITY OF INDIA, REPRESENTED BY ITS CHIEF GENERAL MANAGER (T) REGIONAL OFFICE, NATIONAL HIGHWAYS AUTHORITY OF INDIA, CHENNAI - 1. MR.K.A.JALEEL, ADDL. ADVOCATE GENERAL MR.GEORGE MECHERIL, SR. GOVERNMENT PLEADER MR.J.S.AJITH KUMAR THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 06/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.P.NO.884/2011 APPENDIX REVIEW PETITIONER'S EXHIBITS ANNEXURE-I : COPY OF REPRESENTATION DATED 05/05/2010 BEFORE THE PRIME MINISTER OF INDIA. ANNEXURE-II : COPY OF ELECTION I.D.CARD OF THE PETITIONER NO.2. ANNEXURE-III : COPY OF TAX RECEIPT DATED 11/05/2005. ANNEXURE-IV : COPY OF GO(MS) NO.1545/2011 DATED 10/11/2011. ANNEXURE-V : COPY OF RELEVANT PAGES OF THE REPORT OF THE COMMITTEE ON ESTIMATES (ELEVENTH REPORT OF NATIONAL HIGHWAYS DEVELOPMENT PROJECT). ANNEXURE-VI : COPY OF RELEVANT PART OF DETAILED PROJECT REPORT PREPARED BY INTERNATIONAL CONSULTANT AND TECHNOCRAFTS PVT. LTD. ANNEXURE-VII : COPY OF RELEVANT PART OF THE PROFITABILITY STATEMENT PREPARED BY WILBUR SMITH ASSOCIATES. ANNEXURE-VIII : COPY OF RELEVANT PART OF DETAILED PROJECT REPORT. ANNEXURE-IX : COPY OF RELEVANT PART OF THE DPR. ANNEXURE-X : COPY OF NEWS REPORT WHICH APPEARED IN MATHRUBHUMI DAILY DATED 19/11/2011. ANNEXURE-XI : COPY OF REPRESENTATION. //TRUE COPY// PA TO JUDGE. jg C.R. C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. .................................................................... R.P.No.884 of 2011 in WP(C) No.29100 of 2011 .................................................................... Dated this the 6th day of December, 2011. O R D E R Ramachandran Nair, J. This Review Petition is filed by three persons, who are not parties to the WP(C), for reviewing our judgment in WP(C) No.29100/2011 dated 02/11/2011, whereunder we directed the National Highway Authority to immediately take steps for widening of both the National Highways, namely NH-17 & NH- 47, in the State under the Schemes already proposed by the Authorities. 2. We have heard learned counsel appearing for the Review Petitioners and learned counsel appearing for the petitioner in the WP(C) and learned Addl. Advocate General appearing for the State. 3. The WP(C) was filed as a Public Interest Litigation challenging Ext.P2 issued by the State Government keeping in abeyance Ext.P1 decision taken by the Government to proceed R.P.No.884/2011 in WP(C) 29100/2011 2 with the development of both the National Highways passing through Kerala, NH-17 & NH-47, up to a width of 45 metres. The case of the petitioner in the WP(C) was that the Government after elaborate discussions with the National Highway Authority and all the District Collectors and the Project Directors, took a decision to widen both the National Highways up to the width of 45 metres under the BOT Scheme though National Highways in other States are constructed with a width of 60 metres. In fact, specific direction was issued in Ext.P1 for acquisition of land, and to prevent obstructions all Superintendents of Police were also given direction to give adequate security for the acquisition and taking over of the property for widening the National Highways. Obviously under pressure from those living and doing business in buildings on road sides the Government on 09/11/2010 issued orders keeping in abeyance Ext.P1 decision to proceed with development of the Highways. The petitioner filed WP(C) in public interest stating that the first decision taken by the Government should be implemented without any delay as the R.P.No.884/2011 in WP(C) 29100/2011 3 widening of National Highways is an absolute requirement for the public in the State. He therefore prayed for vacating the subsequent stay order of the Government produced as Ext.P2 and for a direction to proceed with the development of the National Highways. However, when the WP(C) came up for admission on 02/11/2011 the learned Addl. Advocate General submitted that the Government has already recalled Ext.P2 order which means that Ext.P1 has to be implemented, and so much so, the Government will proceed with the acquisition of land and proceed to widen the National Highways. It is in this context, this Court disposed of the WP(C) with a direction to the Government to proceed with acquisition of land for widening of both the National Highways, which is only a direction to implement the decision taken wide Ext.P1 proceedings. It is against this judgment, this Review Petition is filed stating that several people will be affected on account of widening of the National Highways, which is obviously through displacement of residents and persons engaged in the business on road side. R.P.No.884/2011 in WP(C) 29100/2011 4 4. The review petitioners have relied on Anneaxure IV issued by the PWD on 10/11/2011 constituting a committee basically for monitoring the developmental work and for giving suggestions for the project and also for taking steps for rehabilitation of the people. 5. During hearing learned counsel for the review petitioners submitted that the new committee constituted is free to review Ext.P1 order. Learned counsel for the petitioner in the WP(C) as well as the learned Addl. Advocate General opposed the contention by stating that the Committee constituted is free to help to settle the matters referred to therein. It is also pointed out that one of the Review Petitioners is a member of the Committee so constituted. We are unable to accept the contention of the review petitioners that Annexure IV dated 10/11/2011 is a deviation from Ext.P1. In our view, Ext.P1 is a decision, which remains unaltered by Annexure IV dated 10/11/2011. On the other hand, the new committee constituted under Anneaxure IV is only for the purpose of smooth implementation of Ext.P1 i.e. R.P.No.884/2011 in WP(C) 29100/2011 5 for acquisition of land, rehabilitation of affected people and for widening of the National Highways at the earliest. 6. We, therefore, do not find any merit in the Review Petition filed challenging Ext.P1. No one can dispute that widening of the two National Highways in the State, which are very narrow and congested on account of heavy traffic, is not in public interest. Considering the traffic block, frequent accidents and the congestion on the Highways, in our view, the National Highway Authority should invoke emergency provision in the Land Acquisition Act for taking over possession of the land at the earliest and take immediate steps for widening of the National Highways. 7. Learned counsel for the review petitioners has questioned the rationality of the BOT scheme under which the National Highway development is proposed. We do not find any material for us to enter into this controversy in the Review Petition because in the judgment under review, we have not considered the viability or rationality of the BOT scheme. We have also not considered in the judgment whether the BOT R.P.No.884/2011 in WP(C) 29100/2011 6 scheme adversely affects the public or the State revenue. However, irrespective of whether there is BOT scheme or not it is the duty of the State and National Highway Authority to widen both the National Highways in the State, which as of now cannot be called Highways by any standards. 45 metres width probably may be the minimum to provide space for smooth traffic. We, therefore do not go into the contention raised by the Review Petitioners in the Review Petition challenging the BOT scheme. However, we make it clear that every arrangement for private participation should be done by adopting transparent methods by advertisements and accepting tenders on competitive basis. 8. In fact in other States, National Highways have minimum width of 60 metres. Reduction of 15 metres for Highways in the State is a conscious decision to limit hardship to those living and doing business on road sides. However, in our view there is no scope for further reduction of width of Highways from 45 metres, which is probably the minimum to keep the roads functional. R.P.No.884/2011 in WP(C) 29100/2011 7 This Review Petition is therefore dismissed with the above observations and simultaneously directing the National Highway Authority and the State and the Central Governments to implement the judgment without any delay. (C.N.RAMACHANDRAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) jg