Siyad A. E vs State Of Kerala(Deleted)
2021 Latest Caselaw 16093 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                &
           THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
 TUESDAY, THE 3RD DAY OF AUGUST 2021 / 12TH SRAVANA, 1943
                    WP(C) NO. 12943 OF 2021
PETITIONER/S:

           SIYAD A. E.
           AGED 46 YEARS
           S/O. A. M. EBRAHIM, ARAYAPARAMBIL HOUSE,
           CHANDIROOR P. O., AROOR VILLAGE, CHERTHALA
           TALUK, ALAPPUZHA - 688 537.
           BY ADVS.
           K.A.JALEEL
           C.Y.VINOD KUMAR


RESPONDENT/S:

    1      STATE OF KERALA(DELETED)
           REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF
           KERALA, SECRETARIAT, TRIVANDRUM - 695 001.
    2      THE SECRETARY TO GOVERNMENT
           PUBLIC WORKS DEPARTMENT, GOVERNMENT OF KERALA,
           SECRETARIAT, TRIVANDRUM - 695 001.
    3      THE SECRETARY TO GOVERNMENT(DELETED)
           REVENUE DEPARTMENT, GOVERNMENT OF KERALA,
           SECRETARIAT, TRIVANDRUM - 695 001. ----
           RESPONDENT NOS 1 AND 3 ARE DELETED FROM PARTY
           ARRAY AS PER ORDER DATED 30-06-2021 IN WPC NO.
           12943/2021
    4      THE DISTRICT COLLECTOR
           CIVIL STATION, KAKKANAD, ERNAKULAM - 682 030.
    5      THE PROJECT DIRECTOR
           NATIONAL HIGHWAYS AUTHORITY OF INDIA, OFFICE OF
           THE PROJECT DIRECTOR, VII/511-B, NEYTHELI-
           MAVELIPURAM ROAD, KAKKANAD, ERNAKULAM - 682 030.
   W.P(C).12943/2021
                             2

    6      THE EXECUTIVE ENGINEER
           OFFICE OF THE EXECUTIVE ENGINEER, NATIONAL
           HIGHWAY (B) DIVISION, KODUNGALLUR, THRISSUR -
           680 664.
    7      KERALA INFRASTRUCTURE INVESTMENT FUND BOARD
           (KIIFB)
           FELICITY SQUARE, 2ND MAHATMA GANDHI ROAD,
           STATUE, TRIVANDRUM - 695 001.
           BY ADVS.
           GOVERNMENT PLEADER
           S.CHANDRASEKHARAN NAIR


OTHER PRESENT:

           SRI. TEK CHAND SR GP, SRI MATHEWS K PHILIP, SC
           NHAI


     THIS WRIT PETITION (CIVIL) HAVING COME UP             FOR
ADMISSION ON 03.08.2021, THE COURT ON THE SAME             DAY
DELIVERED THE FOLLOWING:
    W.P(C).12943/2021
                                       3

                                 JUDGMENT

Dated this the 3rd day of August, 2021

Shaji P. Chaly, J.

Instant public interest litigation is filed for the following reliefs:

"i) issue a writ of mandamus or any other appropriate writs, orders or directions commanding the respondents to acquire 1.50 cents of land at Kundannur Junction, projecting to Maradu-Tripunithura road on NH 49 (New NH85) and remove the small thatched shed, which is causing traffic jam and difficulties for free left moving to the travelling people and pedestrians coming from Vyttila area to Tripunithura.

ii) Issue a writ of mandamus or any other appropriate writs, orders or directions commanding the 2 nd respondent to take immediate decision on Exhibit P3 representation submitted by the petitioner.

2. On 8.7.2021, we passed the following order:

"On the averments and the prayers sought for, we directed the learned Government Pleader to get instructions. On this day, when the matter came up for further hearing, on instructions, Mr. Tekchand, learned Senior Government Pleader submitted that as regards acquisition of 1.50 cents of land at Kundannur Junction projecting to Maradu- Tripunithura road on NH 49 (New NH 85), a meeting was conducted by the Hon'ble PWD Minister on 17.6.2021 and directions have been issued to examine the same.

W.P(C).12943/2021

2. Pursuant to the same, on 30.6.2021, the Executive Engineer, national Highway (B) Division, Kodungallur, Thrissur, has submitted a proposal to the 7th respondent, Kerala Infrastructure Investment Fund Board, Thiruvananthapuram, represented by Chief Executive Officer, to examine on the aspect of funding and implementation of the said proposal.

3. Per contra, Sri. S. Chandrasekharan Nair, learned counsel appearing for the Kerala Infrastructure Investment Fund Board, Thiruvananthapuram, 7th respondent, submitted that on examination, the proposal has been found to be not feasible and cannot be funded by respondent No.7.

4. Learned Senior Government Pleader as well as the learned counsel appearing for the 7 th respondent is directed to file separate statement, along with the supporting documents.

Post the matter after ten days."

3. Responding to the above, The Executive Engineer, NH (B)

Division/respondent No.6 has filed a statement, which is reproduced:

"1. The above Writ Petition is filed inter-alia praying for issuance of writ of Mandamus or any other appropriate writ, order or direction commanding the respondents to acquire 1.50 cents of land at Kundannur junction, projecting to Maradu Tripunithura road on NH 49 (New NH 85) and remove the small thatched shed, which is causing traffic jam and difficulties for free left moving to the W.P(C).12943/2021

travelling people and pedestrians coming from Vyttila area to Thripunithura.

2. It is respectfully submitted that in the year 2008, National Highway Authority of India (NHAI,' for short) engaged M/s.SNC Lavlin Company for the study and preparation of detailed project report for construction of flyovers at 4 major junctions ie.. Edappally, Palarivattom, Vyttila and Kundanoor along Kochi Bypass. The above mentioned 4 junctions which traverse the Kochi Bypass are under jurisdiction of NHAI. The Ministry of Road and Highways did not sanction the proposal on account of high cost of construction ie., about 1200 Crores which included large land acquisition. While so, the traffic volume of the bypass increased many fold and to ease out the traffic congestion Government of Kerala decided to construct the flyovers at the above four junctions through SPEED KERALA PROGRAMME and entrusted the constructions of Edapplly flyover to DMRC, Palarivattom flyover to RBDCK and Vyttila and Kundanoor flyover to PWD(NH) wing.

3. It is submitted that the work of construction of flyover at Kundanoor junction on National Highway 66 started pursuant to the NOC obtained from NHAI on 16.12.2016. As stated earlier, even though the stretch in question belongs to NHAI, due to the delay in starting of the project of flyovers by NHAI, the State Government has decided to fund the project through KIIFB. The project was completed without acquiring any stretch of land. The project was commissioned and dedicated to the nation by the Chief Minister of Kerala on 09.01.2021.

4. The flyover constructed at Kundanoor junction is having 6 lane with a total width of 24.10m. The total length of flyover is 740.00m W.P(C).12943/2021

including the approaches at Aroor side and Vyttila side. The right to way at this portion is 45.00m. Consequent to the commissioning of the project, there is no severe traffic congestion except that no free left is possible at Kundanoor junction. It is submitted that the junction development caught the attention of the authorities much earlier to the construction of the flyover in the year 2018. The District Collector, Ernakulam visited the site and instructed to submit the proposal for land acquisition at this portion. Based on the instructions of the District Collector, Ernakulam, a proposal for land acquisition having an extent of 73 cents including the property of Sri. Sarvothaman made mention in the Writ Petition was prepared and submitted on 07.02.2019.

5. The acquisition of the property of Sarvothaman alone will not offer a complete solution to the disruption of free flow of traffic i.e., free left from Vyttila to Thripunithura. Thripunithura to Aroor, Aroor to Wellington Island and Wellington Island to Vyttila.

6. While so, a meeting was conducted by Minister for PWD on 17.06.2021. In the meeting it was instructed by the Minister to submit a fresh proposal for the junction development at Kundanoor junction. In tune with the direction, a fresh proposal was prepared and submitted to the Chief Project Examiner, KIIFB on 30.06.2021. A true copy of the proposal dated 30.06.2021 submitted is produced herewith and marked as Annexure R6(a). As per Annexure R6(a), a sketch showing the details of land acquisition proposal was appended and requested to offer technical assistance and support from the TRC Wing of KIIFB. Further action can be initiated on the basis of the reply provided by KIIFB. It is reiterated that the land acquisition proposal covers the property of Sarvothaman also. Under the circumstances, it is clear that the authorities have taken W.P(C).12943/2021

earnest efforts to development and to ease out traffic at the Kundanoor junction.

4. The counter affidavit filed by the KIIFB/7 th respondent reads thus:

"3. It is submitted that the letter dated 22.06.2021, which is said to have been sent to KIIFB by PWD has not yet received by KIIFB/7 th Respondent as inward or via mail, till date. However R6(a) a letter dated 30.06.2021 from the Office of the Executive Engineer, National Highway Division, Kodungallur, concerning the matter has been received at KIIFB/7th Respondent. In the letter, it is requested to avail technical support of Technical Resource Center (TRC) of KIIFB, in the Additional Land Acquisition at Kundanoor Junction on NH66.

4. It is submitted that the construction of Kundanoor Flyover was a KIIFB funded project which has been completed and inaugurated on January 2021. The SPV (Special Purpose Vehicle) designated for the implementation of the Kundanoor Flyover - Roads & Bridges Development Corporation of Kerala Ltd (RBDCK) has requested for technical assistance in Additional land acquisition for development of Kundanoor Junction. The drawings prepared by the SPV has been revised by the Technical team of KIIFB/7th Respondent and made suitable optimization by reducing the radius of junction arms to minimize the land acquisition. The revised land acquisition drawing in AUTOCAD format of about 43 cents were handed over to the SPV on 16.02.2021. The Reply letter dated 16.07.2021 furnished by 7th Respondent/KIIFB to the 6th Respondent is produced herewith and marked as Ext-R7 (a). The Revised Plan annexed along with the Ext- R7(a) is produced and the Ext-R7(b).

5. In the drawing submitted by Roads & Bridges Development Corporation of Kerala Ltd (RBDCK) and in the drawing prepared by KIIFB/ 7th Respondent, the shop mentioned in the petition is shown to be acquired. Kundanoor Junction improvement is not a KIIFB funded W.P(C).12943/2021

project and it is being done by the Public Works Department. As the SPV for a large number of KIIFB funded projects, KIIFB has provided only a technical assistance to RBDCK for acquiring this land as per their request. This is done as a part of enduring the relationship with RBDCK.

6. In the Ext-R7(a) letter and Ext-R7(b) plan it has been clarified that the initial land acquisition proposal were modified by TRC to optimize the land acquisition by reducing the curve radius of arms of the Junction. The revised drawings with all details are submitted to the SPV ie; RBDCK on 16.02.2021 through e-mail. The 6 th Respondent/Executive Engineer NH B Division was also asked to do the follows and co-ordinate with SPV to complete the Land Acquisition process. The 7th Respondent has acted promptly and has given directions in the best possible manner. It is seen that SPV ie; RBDCK is not a party to this Writ Petition.

7. The 7th Respondent have no role in the matter of acquiring land. The 7th Respondent has given technical assistance in the best possible manner without any waste of time. Since technical assistance as well as Ext-R7(a) and Ext-R7 (b) revised plans were given, further actions are to be initiated by the 6 th Respondent in coordination with other concerned department as well as SPV for completing the Land Acquisition process if any without any further delay. It is submitted that the 7 th Respondent has taken earnest effort and done everything for the public good so as to develop the Kundannoor Junction.

5. The sketch clearly indicates the manner in which the junction

in question is to be developed. We are inclined to reproduce the sketch

produced by the 7th respondent for brevity and convenience in future,

which is as follows:

W.P(C).12943/2021

6. When the matter was taken up today, learned Senior

Government Pleader has produced a letter written by Roads and

Bridges Development Corporation of Kerala Ltd., dated 23.7.2021 to

the Secretary to Government, Public Works Department, which is

relevant for the purpose of issuing appropriate directions. It reads thus:

"Roads and Bridges Development Corporation of Kerala Ltd.

(A Government of Kerala Undertaking) RDDCK/T219/vol.XI/1-267 23.7.2021

The Secretary to Government, Public Works Department, Government Secretariat,Thiruvananthapuram.

Sir, Sub: Kundannoor Junction Development-

Administrative Sanction reg:-

Ref: 1) Email dated 16.2.2021 from KIIFB

2)G.O.(Rt).No.1059/2017/PWD/ Thiruvananthapuram dated 23/10/2017

KIIFB had instructed RBDCK to process, Kundannoor Junction Development on NH 544 in Ernakulam District as per the drawing attached herewith under KIIFB funding.

W.P(C).12943/2021

Construction of Kundannoor flyover as per modified administrative sanction G.O. (Rt) No.1059/2017/PWD/Thiruvananthpauram dated 23.10.2017 has already been completed and flyover was opened to traffic on 9.1.2021. Therefore new administrative sanction may be issued for the Junction Development in two stages.

1) Land Acquisition for the Junction Development

2) Constructions Request for Administrative Sanction for Land Acquisition is submitted herewith for and amount of Rs.10.53 Cr. Rough cost estimate and area statement for the LA is attached herewith. Administrative sanction for construction may be issued after processing Land Acquisition.

In this regard, we request as follows:

1) Administrative sanction for Land acquisition may please be issued for the LA for an amount of Rs.10.53Cr.

2) Since the project is within the jurisdiction of the NHAI, Government may take up to obtain NOC from NHAI for taking up the work.

3) Since the works proposed under KIIFB funding, RBDCK (SPV for flyover) or KRFB (SPV for road projects by KIIFB) may be appointed as SPV.

Thanking you

Yours faithfully

Sd/-

General Manager"

W.P(C).12943/2021

7. On a reading of the said letter, it is evident that though the

construction of Kundannoor flyover has already been completed and fly

over was opened to traffic on 9.1.2021, steps are taken for securing

new administrative sanction for the junction development in two stages,

ie., (1) Land Acquisition for the Junction Development and

(2)Construction. Therefore administrative sanction for land acquisition

was submitted along with the letter for an amount of Rs.10.53 Crores.

The Corporation has also requested the Government to secure NOC

from the National Highway Authority of India in order to proceed with the

work and further requested to make KIIFB funding and make a special

purpose vehicle for the development of the junction.

8. We have heard learned counsel for the petitioner Mr. C.Y.

Vinod Kumar, learned Senior Government Pleader Sri. V. Tekchand and

Sri. S. Chandrasekharan Nair for the 7th respondent and perused the

pleadings and material on record.

9. The deliberation made above would make it clear that

substantial and adequate steps are taken by the PWD as well as the

concerned Corporation for developing the Kundannur Junction in order

to have free left turn access for the vehicles proceeding from either side

of the bye roads to the Highway. Submission made by learned counsel

for the petitioner was that the acquisition now proposed by the W.P(C).12943/2021

responsible agencies is for a larger extent of property and it may take

some time and therefore, the purpose would not be served to control

and regulate the traffic at Kundannur Junction immediately.

10. Having analysed the situation and facts and circumstances

we are of the clear opinion that it is for the State Government and its

agencies and departments to take appropriate action in order to regulate

the traffic in the junction in question and if the Government and the

agencies are of the opinion that large area of land is required to make

the junction more functional and feasible, then it is for the Government

and its agencies to take such steps and finalise the plan and the

scheme. Anyhow it is not for this court to decide the manner in which

the junction has to be developed. It is clear from the letter issued by the

Roads and Bridges Development Corporation of Kerala Ltd., that

adequate steps are taken to secure administrative sanction for

construction, acquisition and securing permission from the National

Highway Authority in order to develop the junction.

11. Therefore, we are satisfied with the steps taken by the

Government and its agencies. In that view of the matter, we dispose of

the writ petition directing the State Government to take adequate action

in terms of the correspondences referred to above, at the earliest and at

any rate within two months from the date of receipt of a copy of this W.P(C).12943/2021

judgment, and complete the construction activities in accordance with

law at the earliest possible time.

Writ petition is disposed of accordingly.

Sd/-

S. Manikumar, Chief Justice

Sd/-

Shaji P. Chaly, Judge sou.

W.P(C).12943/2021

APPENDIX OF WP(C) 12943/2021

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE REPRESENTATION DATED 26.06.18 SUBMITTED BY THE PETITIONER.

Exhibit P2 TRUE COPY OF THE LETTER DATED 28.05.20 ISSUED BY THE PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF INDIA.

Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED 07.09.20 SUBMITTED BY THE PETITIONER BEFORE THE CHIEF SECRETARY, GOVERNMENT OF KERALA.