Kerala High Court
Dr.Prakashan M.P vs The State Of Kerala Represented By The on 24 November, 2010
Author: C.K.Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
MONDAY, THE 12TH DAY OF MARCH 2012/22ND PHALGUNA 1933
WP(C).No. 33524 of 2011 (M)
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PETITIONER(S):
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1. DR.PRAKASHAN M.P.,2/747 A, DIVYA,
KARAPARAMBA, KATCHERI,KOZHIKODE DIST-673 010.
2. ERNAHIPALAM-KARAPARAMBA CANAL ROAD
RESIDENTS ASSOCIATION, V.C. VILLA, CANAL ROAD,
KARAPARAMBA,KOZHIKODE DIST. REP. BY ITS PRESIDENT
DR. PRAKASHAN.M.P., ERNAHIPALAM-KARAPARAMBA CANAL
ROAD RESIDENTS ASSOCIATION, KOZHIKODE DIST.
BY SRI.M.C.SEN (SR.)
ADV.SRI.B.V.JOY SANKER
SRI.BIJI MATHEW
SRI.JACOB CHACKO
RESPONDENT(S):
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1. THE STATE OF KERALA REPRESENTED BY THE
CHIEF SECRETARY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. PRINCIPAL SECRETARY, PUBLIC WORKS
DEPARTMENT, THIRUVANANTHAPURAM-695 001.
3. THE LAND REVENUE COMMISSIONER,
THIRUVANANTHAPURAM-695 001.
4. THE DISTRICT COLLECTOR, CIVIL STATION,
KOZHIKODE-673 020.
5. THE SPECIAL TAHASILDAR (LAND ACQUISITION)
FOR KOZHIKODE CITY IMPROVEMENT PROJECT, CIVIL
STATION, KOZHIKODE-673 020.
6. THE COORDINATOR, KOZHIKODE CITY
IMPROVEMENT PROJECT, CIVIL STATION,
KOZHIKODE-673 020.
sts 2/-
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WP(C)NO.33524/2011
7. KOZHIKODE CORPORATION REPRESENTED BY THE
SECRETARY, CORPORATION OFFICE, BEACH ROAD,
KOZHIKODE-673 032.
8. EXECUTIVE ENGINEER, PUBLIC WORKS
DEPARTMENT, KOZHIKODE-673 020.
R1 TO R5 & R8 BY SRI.P.VIJAYARAGHAVAN, STATE ATTORNEY
BY GOVERNMENT PLEADER SRI.SHYSON P.MANGUZHA
R6 BY ADV.SRI.K.JAJU BABU,SC
SRI.P.V.SURENDRANATH
R7 BY ADV.SRI.K.D.BABU,SC,KOZHIKODE CORPORATION
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12-03-2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
WP(C)NO.33524/2011
APPENDIX
PETITIONER'S EXHIBITS:
P1 COPY OF THE NOTIFICATION DATED 24/11/2010 PUBLISHED IN MATHRUBHUMI
DAILY.
P2 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER'S DATED
7/06/2011 BEFORE THE MINISTER FOR REVENUE
P3 COPY OF THE G.O.(RT)NO.762/2007/PWD DATED 11/06/2007
P4 COPY OF THE LETTER DATED 01/11/2011 SEEKING INFORMATION UNDER THE
RTI ACT.
P4(A) COPY OF THE REPLY DATED 21/11/2011
P5 COPY OF THE MINUTES OF THE MEETING HELD ON 11/06/2008 CONVENED BY
CHIEF SECRETARY.
P6 COPY OF THE LETTER TO THE 4TH RESPONDENT DATED 19/07/2010 BY 6TH
RESPONDENT.
P7 COPY OF THE LETTER ISSUED TO THE PETITIONERS BY THE 6TH RESPONDENT
DATED 3/11/2011.
P8 COPY OF THE NOTIFICATION PUBLISHED IN MATHRUBHUMI DAILY DATED
04/12/2011.
P9 COPY OF THE LETTER ISSUED TO THE 5TH RESPONDENT DATED 28/11/2011
P10 COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT DATED 15/12/2011
RECEIVED BY THE PETITIONER ON 24/12/2011.
P11 EXHIBITS NIL
P12 COPY OF THE ROUGH SKETCH SHOWING THE ALIGNMENT OF THE PROPOSED
ROAD.
RESPONDENT'S EXHIBITS:
R6(A) COPY OF THE MINUTES OF DISCUSSION HELD BY THE DISTRICT COLLECTOR
WITH THE PETITIONERS ON 26/08/2010
R5(A) COPY OF THE PROCEEDINGS NO.B4.12866/2009 DATED 30/10/2010
R5(B) COPY OF THE ENGLISH TRANSLATION OF THE PROCEEDINGS NO.B4.12866/2009
DATED 30/10/2010
/TRUE COPY/
sts P.S.TO.JUDGE
C.K.ABDUL REHIM,J.
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WP(C).NO. 33524 of 2011
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Dated this the 12th day of March, 2012
JUDGMENT
First petitioner is the President of the 2nd petitioner Association. The members of the said Association are residents on the side of the "Eranhipalam-Karaparamba Mini Bye pass Road" which forms part of "Kalluthankadavu - Karaparamba Mini Bye- Pass. There was a proposal for widening of Eranhipalam- Karaparamba road including the project along with six other important works on different roads under the 'Kozhikode City Improvement Scheme'. Considering the standards prescribed in the Indian Road Congress the respondents have decided to increase the width of the road to 18 Meters from the existing width of 11.5 to 12 meters. Ext.P1 is the copy of notification published under section 4(1) of the Land Acquisition Act 1894. Petitioners raised objections against the proposed acquisition and certain members of the 2nd respondent Association had approached this court in WP(C).No.12498/10. The said writ petition was disposed of on 28.5.2010 directing the competent WP(C). 33 524/2011 2 authority to consider their representations and objections and to take an appropriate decision. Another writ petition was also filed by some of the members of the association as WP(C). No.38324/10 objecting to the widening of the road upto a width of 18 meters. It is stated that the said writ petition was dismissed during February 2011. Now the respondents have published notification under section 6(1) of the Act as per Ext.P8, against which the petitioners further submitted Ext.P9. Since the respondents are proceeding with further steps of acquisition, this writ petition is filed challenging Exts.P1 and P8 and inter alia seeking direction to consider the request made by the petitioners.
2. The main contention raised by the petitioners is that the importance of the proposed road no more exists due to construction of NH 17 bye pass from Ramanattukara to Vengalam junction. Since the National Highway bye pass is situated only at a distance of about 1.25 kms from the proposed road, the main traffic will be deviated through the said road and hence there is no necessity to have the road in question widened at a width of 18 meters. Another contention raised by the petitioners is that WP(C). 33 524/2011 3 out of the 7 roads proposed under the Kozhikode City Improvement Scheme, the proposed width of 2 other roads are reduced on the basis of the request made by residents of the locality concerned. Hence in the matter of considering the request of the petitioners the authorities have shown clear discrimination. Petitioners are relying on Exts.P3, P4 and P5 documents in support of the above contentions. It is further contended that the only request raised by the petitioners is to reduce the proposed width by two meters and to fix the same at 16 Meters, so that acquisition of a lot of dwelling houses and other structures can be saved. According to the petitioners, by reducing the proposed width by 2 Meters, no traffic conjunction will be felt, in view of the construction of the NH 17 bye pass and opening of the same for traffic, which took place recently.
3. Learned counsel for the 6th respondent made available a copy of the judgment in WP(C).No.12498/10 for my perusal. The 1st petitioner herein is the petitioner No.8 in that writ petition. It is noted in the said judgment that the petitioners were moving before various authorities against the proposal to widen the road WP(C). 33 524/2011 4 to a width of 18 Meters, as many of the houses and shops will have to be demolished. The petitioners complained that, if the width is limited atleast to 16 Meters many of the shops and residential houses can be saved. It is stated that the existing width is 12 meters and further widening by 2 Meters is sufficient to meet the requirement for free flow of traffic.
4. It is evident that during pendency of the earlier writ petition, Ext.P1 notification was issued. However this court permitted the petitioners therein to file appropriate representation showing their objections before the competent authority. A direction was issued to consider all the aspects including objections raised through written representations and further to direct appropriate decision in accordance with law. Learned counsel appearing for the 6th respondent had pointed out that in view of the direction contained in the judgment in WP(C). No.12498/10 the District Collector had considered the matter and a detailed order was issued as per Ext.R6(a). It is evident from Ext.R6(a) that the 1st petitioner as well as the representatives of the 2nd petitioner Association were heard in the matter. The WP(C). 33 524/2011 5 contentions raised by the 1st petitioner is elaborately narrated in Ext.R6(a). It is evident that the 6th respondent was also heard in the matter. In the report submitted by the 6th respondent it is narrated that the proposed width of the road from Karaparamba junction to Eranhipalam junction is 18 Meters and the alignment is fixed in a manner reducing the curves and level differences (radiants) and the proposal is to construct the road complying to the Indian Road Congress standards. However, it is stated that the alignment is fixed by avoiding maximum number of residential houses and the width of the road is fixed considering the density of traffic within the city. In the report of the 6th respondent it is stated that, considering further reduction of the width of the road cannot be considered. It was also pointed out that the road in question is having 20 Meters width at almost 75% of the other areas . The District Collector after considering all the matters and after conducting personal inspection with respect to the complaints raised by the 1st petitioner regarding damage to his well and garden, observed that, the well can be protected by putting slabs and that with respect to those who are WP(C). 33 524/2011 6 losing property, adequate compensation will be paid. The District Collector observed in Ext.R6(a) that since the project is intended as a solution for the acute traffic conjunction within the city and since the road is proposed with a 4 way traffic, the request for reduction of the width cannot be considered.
5. While considering the rival contentions this court takes note of the fact that the petitioners have not taken care to challenge the decision taken by the District Collector in Ext.R6(a). Further it is evident that in this case the Government have accorded sanction to invoke emergency clause. The decision taken in this regard was also not seen challenged. Further more, another writ petition filed by an affected person, WP(C). No.38324/2010, was dismissed. Hence challenge now raised against the Notification under section 4(1) as well as declaration under section 6(1) cannot be entertained. Further, it is evident from Ext.R6 (a) that the authority concerned had taken note of all the factual contentions raised by the petitioners and a decision thereof was taken after considering all the facts and circumstances prevailing. No illegality or irregularity can be WP(C). 33 524/2011 7 pointed out with respect to the decision taken under Ext.R6(a). The petitioners have no case that there was any denial of opportunity in the matter. Mr.M.C.Sen, learned counsel appearing for the petitioners raised a contention that Ext.R6(a) was not served on the petitioners, nor such a decision was intimated to them in any manner. Even assuming that the petitioners have no information about the decision of the District Collector, a challenge against the declaration issued under section 6(1) cannot be entertained, since this court is of the view that the grievance voiced was already considered in an effective manner and a decision has already been taken by the competent authority. Since no circumstances warranting interference of such decision is put forth in any satisfactory manner, it cannot be justified on the part of this court to have a further interference in the matter. It seems from the factual aspects observed in Ext.R6
(a) that the grievance of the 1st petitioner has been considered. The contention raised in this writ petition to the effect that the 1st petitioner will be losing part of his residential building seems to be not correct, in view of the statement contained in Ext.R6(a). WP(C). 33 524/2011 8
6. Under the above mentioned circumstances there exists no valid reason warranting interference in this writ petition. The writ petition deserves no merit and the same is accordingly dismissed.
C.K.ABDUL REHIM,JUDGE
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WP(C). 33 524/2011 9