Kerala High Court
Shyma.P.T vs The Co-Ordinator
Author: K.Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
TUESDAY, THE 10TH DAY OF DECEMBER 2013/19TH AGRAHAYANA, 1935
WP(C).No. 23732 of 2012 (N)
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PETITIONER:
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SHYMA.P.T.
W/O.T.MOHAN BALAKRISHNAN, RESIDING AT 117-D
METRO MAX TOWER, THODAYAD P.O
KOZHIKODE DISTRICT 673 016
REPRESENTED BY HER POWER OF ATTORNEY HOLDER MIHIR MOHAN T
S/O.T.MOHAN BALAKRISHNAN, RESIDING AT 117-D
METRO MAX TOWER, THODAYAD P.O
KOZHIKODE DISTRICT. 673 016.
BY ADVS.SRI.N.M.MADHU
SMT.C.DEVIKA RANI KAIMAL
SMT.C.S.RAJANI
RESPONDENTS:
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1. THE CO-ORDINATOR
KOZHIKODE CITY ROAD IMPROVEMENT PROJECT
CIVIL STATION, KOZHIKODE 673 001.
2. THE SPECIAL TAHSILDAR (LA)
KOZHIKODE CITY ROAD IMPROVEMENT PROJECT
CIVIL STATION, KOZHIKODE 673 001.
3. THE CHIEF ENGINEER
THE KERALA ROAD FUND BOARD, TC 41/1654, MAYOORAM
BELL HAVEN GARDEN, KOWDIAR P.O
THIRUVANATHAPURAM 695 003.
4. THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF KERALA,
PUBLIC WORKS DEPARTMENT, THIRUVANNTHAPURAM 695 001.
5. THE DISTRICT COLLECTOR
KOZHIKODE CIVIL STATION, KOZHIKODE 673 001.
R1 & 3 BY ADV. SRI.K.JAJU BABU,SC,KERALA ROAD FUND BOA
R-R BY ADV. GOVERNMENT PLEADER SHRI.G.GOPAKUMAR
RADVOCATE COMMISSIONER BY ADV. SRI.B.UNNIKRISHNA KAIMAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
26/9/2013 THE COURT ON 10/12/2013 DELIVERED THE FOLLOWING:
APPENDIX
PETITIONER(S) EXHIBITS
EXHIBIT P1. TRUE COPY OF THE NOTICE DATED 27.06.11 UNDER SECTION 7
(2) OF THE LAND ACQUISITION ACT.
EXHIBIT P2. TRUE COPY OF THE CERTIFIED COPY OF THE SAID WILL OF THE
PETITIONERS FATHER.
EXHIBIT P3. TRUE COPY OF THE POWER OF ATTORNEY DEED EXECUTED BY THE
PETITIONER.
EXHIBIT P4. PHOTOCOPY OF THE OBJECTIONS SUBMITTED BY THE PETITIONER'S
FATHER AGAINST THE PROPOSED ACQUISITION.
EXHIBIT P5. PHOTOCOPY OF THE SKETCH OBTAINED BY THE PETITIONERS
FATHER UNDER THE RIGHT TO INFORMATION ACT.
EXHIBIT P6. PHOTOCOPY OF THE REPLY TO EX.P5 GIVEN BY THE RESPONDENTS
TO THE PETITIONER'S FATHER.
EXHIBIT P7. PHOTOCOPY OF THE MODIFIED PLAN GIVEN WTH EXT. P6.
EXHIBIT P8. THE SECOND OBJECTION SUBMITTED BY THE PETITIONER'S FATHER
UPON RECEIPT OF P6.
EXHIBIT P9. PHOTOCOPY OF NOFICIATION UNDER SEC. 4 (1) OF THE LAND
ACQUISITION ACT DATED 22.01.2011.
EXT.P10: TRUE COPY OF THE DRAWING OF THE ROAD JUNCTION AT
KALANDITHAZHAM
RESPONDENTS' EXHIBITS NIL
JJ /TRUE COPY/
P.S.TO JUDGE
K. SURENDRA MOHAN,J
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W.P(C) NO:23732 OF 2012
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Dated this the 10th December, 2013.
JUDGMENT
The petitioner has filed this writ petition challenging the land acquisition proceedings initiated in respect of her property. The petitioner claims to be the absolute owner in possession of an extent of 7.71 ares of land in re-survey Nos:
32/41/ID4E and 32/43/3A3 of Chelavoor Village in Kozhikode Taluk. The property originally belonged to the petitioner's father late P.T.Madhavan. As per Ext.P2 Will, a copy of which has been produced as Ext.P2 in the writ petition, the property has been bequeathed to the petitioner.
Thus, the petitioner has become the absolute owner of the property. The petitioner is represented in these proceedings by her Power of Attorney.
2. As part of the Kozhikode Road Improvement WPC No: 23732/2012 2 Project, a proposal to develop the Panattuthazham - C.W.R.D.M. road has been proposed by the first respondent. The petitioner's property is situate very close to the Kalandithazham Junction. A bus bay is proposed to be constructed in the property. On coming to know of the said proposal, the petitioner's father who was alive at that time had submitted Ext.P4 objections. It was pointed out that as per the Indian Roads Congress ('IRC' for short) specifications, a bus bay can be located only beyond a junction and not before it. Contrary to the said specification, the bus bay is proposed to be located in the present case, at the junction itself. This is clear from Ext.P5 sketch obtained by the petitioner's father under the Right to Information Act, 2005. Pursuant to the objections submitted by the petitioner, a slight variation was made and along with the reply, Ext.P5 issued to the petitioner's father a modified plan was also furnished. Even the modified plan Ext.P7 is, according to the petitioner, in violation of the IRC norms. Therefore, the petitioner's father WPC No: 23732/2012 3 submitted Ext.P8, fresh objections to the fourth respondent. The fourth respondent had, considering the urgency of the matter, as per his endorsement visible thereon, called for an urgent report within ten days. However, though the petitioner had waited for some action in the matter, there was none. Instead Ext.P9 notification under Section 4(1) of the Land Acquisition Act, 1894, (the 'Act' for the short) was published on 22.1.2011 notifying the petitioner's land also for acquisition. Since the respondents were proceeding with the acquisition ignoring the objections, Ext.P8, the petitioner has challenged the said proceedings. Particular objection is raised against invocation of the urgency clause dispensing with the enquiry under Section 5A of the Act. It is contended that there is no justification for dispensing with the enquiry. It is alleged that the intention is to shut out all objections against the manner in which the acquisition is being proceeded with. Since the petitioner's father had expired in the meantime, the petitioner has filed the present writ petition WPC No: 23732/2012 4 on the strength of her title acquired as per Ext.P2 Will.
3. According to the petitioner, the proposed bus bay should have been located beyond the Kalandithazham Junction. The location thereof has been shifted to the petitioner's property only to favour another land owner. Therefore, it is alleged that there is no public purpose in the acquisition. The action of the respondents in proceeding with the acquisition without finalising the proceedings initiated on Ext.P8 by the fourth respondent is without any justification, it is contended. Therefore, the petitioner has sought for the issue of appropriate orders quashing Exts.P1 and P9. A direction to consider Ext.P8 objections has also been sought for.
4. A counter affidavit has been filed on behalf of respondents 1 and 3 in answer to the allegations in the writ petition. According to the counter affidavit, the Panathuthazham - CWRDM road is one of the seven roads in Kozhikode city that are proposed to be developed, widened WPC No: 23732/2012 5 and improved by the respondents. The project is intended to ease the traffic congestion in the city and to ensure the smooth movement of traffic, without any hindrance. It is for the purpose that the land acquisition proceedings have been initiated. A detailed project report had been prepared in consultation with Dr.N.S.Sreenivasan, a well known Transportation Engineer and Planner. The land acquistion proceedings are in progress. Pursuant to the objections raised by the petitioner's father, the earlier proposal was modified and the location of the bus bay was shifted by 7.5 meters to the east of the petitioner's property. It has been admitted that as per the IRC norms bus bays are to be located 75 meters. away from an intersection, preferably on the farther side thereof. As per the modified plan, the bus bay in the present case is located at a distance of 65 meters before the junction. It is further contended that, at present there is no traffic towards the west of Kalandithazham junction. Buses are plying from the eastern side of the junction to Moozhikkal WPC No: 23732/2012 6 which is to the north. Since the buses turn towards the right, a bus bay is essential on the left side before the bus turns to the right. If the bus bay is shifted any further to the east, it would deny road access to the property that is adjacent to that of the petitioner. Towards the western side of the junction, it is stated that the road is not even tarred. The tarring would be done only after the acquisition is completed. A further contention is raised that the Section 6 declaration was published on 24.8.2012 and therefore, the present challenge of the petitioner is highly belated.
5. A reply affidavit has been filed to the counter affidavit of respondents 1 and 3 by the petitioner. It is stated in the reply affidavit that, considering the traffic available on the road at present, the bus bay has to be located on the road proceeding towards Moozhikal. The fact that buses are to cross the junction and to turn right, is no justification for locating the bus bay before the junction. Ext. P10 sketch showing the location has also been produced. Though the WPC No: 23732/2012 7 petitioner's father had submitted his objections Ext.P8, the same has not been considered till date. The petitioner's father had become sick soon thereafter and had died of cancer on 1.9.2011. After his death, it was only as per Ext.P2 Will that the petitioner had succeeded to the property. The petitioner could file the present writ petition only after she got possession thereof. It is also stated that the petitioner being a non-resident Indian had to take necessary steps to authorise her agent to institute the same. Therefore, it is contended that there is no delay in filing this writ petition.
6. A separate counter affidavit has been filed on behalf of the fifth respondent adopting more or less similar contentions as respondents 1 and 3. The fifth respondent has also admitted that, as per IRC norms bus bays are to be located at a distance of 75 meters of an intersection preferably on the farther side. In the instant case, there is no traffic at present towards the western side of Kalandithazham. Buses plying on the road turn north at the junction towards WPC No: 23732/2012 8 Moozhikkal. Since the buses turn right, a bus bay is necessary on the left side, before the junction. It is reiterated that, the bus bay is provided before the junction considering the fact that the buses turn right at the junction.
7. In view of the factual disputes regarding the lie of the property, the petitioner had moved I.A. 3566/2013 for the appointment of an Advocate Commissioner to conduct a local inspection and to report to this Court all the relevant details. Accordingly, as per order dated 7.3.2013 an Advocate Commissioner was appointed. The Advocate Commissioner has conducted an inspection and has submitted a report dated 21.3.2013 accompanied by three rough sketches. The report of the Advocate Commissioner is marked as Ext.C1 and the sketches are marked as Exts.C1(a), C1(b) and C1(c) respectively. No objections have been filed to the report of the Advocate Commissioner or the sketches produced by him.
8. According to the report of the Advocate Commissioner, the distance from the Kalandithazham WPC No: 23732/2012 9 Junction to the petitioner's boundary is 34.80 meters. It has been reported that, on the western side of the Kalandithazham junction, there is sufficient space available for the construction of a bus bay without causing any inconvenience to the properties there. It has also been reported that there is sufficient vacant space available towards the eastern side of the petitioner's property to locate the bus bay beyond the stipulated distance of 75 meters from the Kalandithazham junction. The Advocate Commissioner has also reported that the respondents who were present at the time of inspection, had expressed their inability to make any change since the location of the bus bay had been fixed in the year 2007.
9. Heard Adv.Shri. N.M.Madhu who appears for the petitioner, Adv.K.Jaju Babu who appears for respondents 1 and 3, the Govt. Pleader Shri.G.Gopakumar as well as Adv.Shri.B.Unnikrishna Kaimal, the Advocate Commissioner.
10. It is clear from the averments in the writ petition as well as the documents that, the petitioner's father had been WPC No: 23732/2012 10 objecting to the location of the bus bay, right from the inception of the proposal. Ext.P4 is a copy of the initial objections alleged to have been submitted by him. Though Ext.P4 is undated, it is worth noticing that Ext.P6 was issued on 4.12.2009. As per Ext.P6, a modified plan has been approved, in view of the objections. However, the petitioner's father was not satisfied with the marginal modification effected, by a slight shift in the location of the bus bay. Therefore, he had submitted Ext.P8 objections to the fourth respondent. The fourth respondent had by his endorsement dated 3.3.2010 called for an urgent report from the third respondent. However, the proceedings do not appear to have progressed thereafter. It is the case of the petitioner that she had therefore waited, anticipating some action in the matter. She cannot be found fault with for the said conduct. It has also been stated by the petitioner that her father had, in the meantime expired, after becoming sick and bed ridden due to cancer. He is stated to have passed WPC No: 23732/2012 11 away on 1.9.2011. On the strength of his will Ext.P2, the petitioner succeeded to the property and has become the owner thereof. It is thereafter that the present writ petition was filed on 9.10.2010. The petitioner being a non-resident Indian, the formalities of succeeding to the property and authorising her agent to file the present writ petition, caused some delay in filing this writ petition. However, it is not substantial. Considering the peculiar circumstances of the case, I do not think that the petitioner is guilty of inordinate delay or laches. It is also worth noticing that though Ext.P9 notification under Section 4(1) was published on 22.1.2011, the proceedings have not progressed much. The declaration under Section 6 has been published only on 24.8.2012 and according to the counter affidavit filed, the work is in progress. The conduct of the respondents in view of the above facts do not justify the urgency on the basis of which the enquiry under Section 5A was dispensed with. Therefore, I am of the view that the circumstances do not justify a WPC No: 23732/2012 12 dismissal of this writ petition on the ground of delay.
11. The case of the petitioner is that as per the IRC norms a bus bay is to be located at a distance of 75 meters away from an intersection, preferably beyond the junction. Since bus bays are to be located beyond a junction in the normal circumstances, special reasons would have to be shown wherever bus bays are sought to be located before the junction. The stipulation in the IRC norms is admitted in both the counter affidavits filed in this case. Paragraph 4 of the counter affidavit filed on behalf of respondents 1 and 3 is reproduced hereunder:-
"Regarding the averments in paragraphs 5 and 6 of the writ petition it is submitted that as per the IRC Norms the bus bays are to be located 75 meters from the intersection on either side, preferably on the farther side of the intersection. As per the revised plan the bus bay starts at 65 mtr from the junction. At present there is no traffic towards west of Kalandithazham. Buses are plying from east WPC No: 23732/2012 13 side of the junction to Moozhikkal towards north side of the junction. Since the buses turns towards right, the bus bay is essential of the left side before the bus turns to the right side. It may also be noted that if the bus bay is shifted more than 7.5 mtr to the east, it will deny access to the property adjacent to the petitioner's property."
According to respondents 1 and 3, the reason for deviating from the IRC norms is that, the buses turn north towards the Moozhikkal road at the above junction. The above aspect has been reiterated in paragraph 5 of the same counter affidavit, the relevant portion of which reads as follows:-
"Bus bay is provided behind the junction considering the fact that the buses turns towards right. Towards west side of Kalandithazham, from Kalandithazham junction to Iringadampally junction, the alignment of the road is a new one. At present there is no tarred road and traffic to the west side of the Kalandithazham junction to Iringadampally junction. The bitumen tarred surface road will be formed only after the land WPC No: 23732/2012 14 acquisition."
The very same contentions are put forth in the counter affidavit of the fifth respondent also. The question therefore is, whether the said reason is acceptable or not.
12. It may no doubt be true that at present traffic on the proposed road is less. It is also clear from the passages extracted above that the medical College Panattuthazham - C.W.R.D.M road that cuts across the Panattuthazham - C.W.R.D.M road has not even been properly formed. It has been stated in the counter affidavit that tarring of the road would be effected only after the acquisition proceedings are completed. Therefore, to locate a bus bay on the basis of the traffic that is presently available on the road would be an absolutely short sighted approach. A road has to be conceived of, planned and laid out, keeping in mind the escalation in traffic that is likely to occur during the next 25 years. At any rate, development of a road without keeping in mind the traffic escalation that is expected, at least over a period of five WPC No: 23732/2012 15 years would be foolish. Though the road has not yet been formed, it is an admitted fact that even now there is bus service along the road. According to respondents it is only towards one side. It does not require any expertise or technical knowledge to anticipate that traffic on the road would increase the moment it is tarred and opened for traffic. The requirements of the travelling public would necessitate the plying of buses also along the road. The authorities seem to have given no attention to what should happen, when buses start plying towards both sides. The location of the bus bay before the intersection as proposed, in violation of the IRC norms, would only aggravate the traffic congestion at that time. It would also remain as a perpetual source of inconvenience and obstruction to the safe and proper use of the road as well as its future expansion and development. As per Ext.P10 sketch produced by the petitioner the present bus stop at Moozhikkal road is located beyond the intersection, which would have to be shifted to the property of the WPC No: 23732/2012 16 petitioner if the bus bay is constructed there. Such shifting would only add to the congestion on the Panattuthazham - C.W.R.D.M road which is admittedly a fully developed road. Therefore, the present proposal of shifting the bus stop from a road that is not yet formed and locating the same behind the junction on the fully developed road would only be counter productive. The wiser option would be to locate the bus bay on the Moozhikkal road which admittedly has only very little traffic at present. The above aspects do not appear to have engaged the attention of the authorities.
13. The Advocate Commissioner has reported that there is sufficient space available even for conveniently locating the bus bay before the junction, maintaining the distance of 75 meters stipulated by the IRC norms. Locating the bus bay on Moozhikkal road would also, according to the Advocate Commissioner, be of no inconvenience to anyone. The above being the factual scenario, the proposal of respondents to locate the bus bay in the petitioner's property is without any WPC No: 23732/2012 17 justification. The reason that is stated viz., that the buses now take a right turn at the junction to enter the Moozhikkal road is insuffcient to justify the violation of the IRC norms. It is such constructions expending public funds without proper application of mind to the ground reality that impedes both the safety and convenience of the pedestrian public as well as the vehicular traffic that use public roads.
14. As noticed earlier, despite invocation of the urgency clause under Section 17(4) of the Act, the proceedings have only dragged on during the last two years. Section 5A confers a very valuable right on the citizen who is deprived of his land, to ventilate his grievances. The said right is not to be denied to him in circumstances where no grounds of urgency exist. The parameters subject to which the urgency clause is to be invoked have been expatiated and laid down by the Hon'ble Supreme Court in Darshan Lal Nagpal v. Government of NCT of Delhi {(2012) 2 SCC 327} . After considering the precedents on the point, the Supreme Court has concluded the WPC No: 23732/2012 18 issue at page 680 in the following words:-
"In other words, the urgency provisions can be invoked only if even small delay of few weeks or months may frustrate the public purpose for which the land is sought to be acquired. Nobody can contest that the purpose for which the appellants' land and land belonging to others was sought to be acquired was a public purpose but it is one thing to say that the State and its instrumentality wants to execute a project of public importance without loss of time and it is an altogether different thing to say that for execution of such project, private individuals should be deprived of their property without even being heard."
The circumstances in the present case do not meet the stipulations made by the Apex Court in the above judgment. The conduct of the respondents in letting the project drag on also remains unexplained. Lack of attention and non- application of mind to the proposal and locating the bus bay in front of the petitioner's property is also without any WPC No: 23732/2012 19 justification. It has therefore to be held that the the bus bay has to be shifted to a convenient place beyond the Kalandithazham junction in accordance with the IRC norms.
15. The invocation of the urgency clause in the above proceedings is also found to be without any justification. Since the location of the bus bay has been found to be in contravention of the reality of the situation, the same would have to be relocated. Such relocation would necessitate a variation in the extent of the land that has to be acquired from the petitioner. Since the land acquisition has not progressed substantially, it is only appropriate that the petitioner is heard on the above aspects under Section 5A of the Act before further proceedings are continued. Therefore, in the case of the petitioner dispensing with the enquiry under Section 5A is found to be unsustainable.
For the above reasons, this writ petition is allowed as follows:
i) The respondents are directed to locate the proposed WPC No: 23732/2012 20 bus bay in compliance with the IRC norms at a distance of 75 meters beyond the Kalandithazham junction.
ii) The respondents are further directed to proceed with the land acquisition proceedings in respect of the petitioner's property only after completing the enquiry under Section 5A of the Land Acquisition Act.
There will be no order as to costs.
Sd/-
K. SURENDRA MOHAN
Judge
jj /True copy/
WPC No: 23732/2012 21