Kerala High Court
The Pudukkad Samagra Vikasana ... vs The Union Of India on 3 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943
WP(C) NO. 26572 OF 2018
PETITIONERS:
1 THE PUDUKKAD SAMAGRA VIKASANA SAMITHY
REP. BY ITS PRESIDENT,JOBY.A.PULIKKAN,
ADVOCATE, AGED 50 YEARS, S/O. ANTO,
PULIKKAN HOUSE, PULIKKAN ROAD, PUDUKKAD,
THRISSUR DISTRICT- 680 301
2 JOBY.A.PULIKKAN, ADVOCATE, AGED 50 YEARS,
S/O. ANTO, PULIKKAN HOUSE, PULIKKAN ROAD,
PUDUKKAD, THRISSUR DISTRICT- 680 301
BY ADVS.
SRI.G.SREEKUMAR (CHELUR)
SRI.K.D.SREEVISAKH
RESPONDENTS:
1 THE UNION OF INDIA
REP.BY SECRETARY TO THE GOVERNMENT,
MINISTRY OF ROAD TRANSPORT & HIGHWAYS,TRANSPORT
BHAVAN,1, PARLIAMENT STREET, NEW DELHI- 110 001
2 THE NATIOANL HIGHWAYS AUTHORITY OF INDIA
G 5&6, SECTOR-10,DWARAKA,NEW DELHI-110 075
3 THE REGIONAL OFFICER, KERALA,
NATIONAL HIGHWAY AUTHORITY OF INDIA,
TC 36/574-1 KRISHNA KRIPA, ERA-42,
PALKULANGARA JUNCTION,VALLAKKADAVU.P.O.,
THIRUVANANTHAPURAM- 695 008
4 PROJECT DIRECTOR
PIU PALAKKAD, NATIONAL HIGHWAY AUTHORITY OF
INDIA, NO.8/1187,"ARUMUGHAN COLONY",
CHANDRANAGAR,PALAKKAD DISTRICT- 678 007
5 PROJECT DIRECTOR
PIU ERNAKULAM,NATIONAL HIGHWAY AUTHORITY OF
INDIA,"THE ARAKANS", 1ST FLOOR, NEAR ICICI
BANK, NATIONAL HIGHWAY NO.544 (OLD NO.47),
KALAMASSERY, ERNAKULAM- 683 104
6 MS. GURUVAYOOR INFRASTRUCTURE PVT. LTD.
HAVING ITS REGISTERED OFFICE AT DOOR NO.1-
80/40/SP/58-65,SHILPA HOMES LAYOUT, GACHIBOWLI,
HYDERABAD- 500 032,REP.BY ITS AUTHORISED
OFFICER.
W.P(C).26572/2018
2
7 SPECIAL DEPUTY COLLECTOR
SPECIAL LAND ACQUISITION OFFICER AND COMPETENT
AUTHORITY, NATIONAL HIGHWAY DEVELOPMENT
PROJECTS, THRISSUR, 680020
[IS IMPLEADED AS ADDL. R7 AS PER ORDER DATED
25.10.2021 IN IA 14664/18 IN WP(C)]
8 SECRETARY TO THE GOVERNMENT, PUBLIC WORKS
DEPARTMENT, GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM
9 THE SECRETARY TO THE GOVERNMENT,
LOCAL SELF GOVERNMENT DEPARTMENT,
GOVERNMENT OF KERALA, THIRUVANANTHAPURAM
[R8 & R9 ARE SUO MOTU IMPLEADED VIDE JUDGMENT
DATED 3.11.2021 IN THE WRIT PETIION.]
BY ADVS.
SRI. P. VIJAYAKUMAR, ASST. SOLICITOR GENERAL
SRI.R.PRASANTH KUMAR, CGC FOR R1
MAULIK NANAVATI FOR R2 - 5
SANTHOSH MATHEW
S.SREEKUMAR (SR.) FOR R6
GOVERNMENT PLEADER SRI. K.P.HARISH FOR R7, 8, 9
ARUN THOMAS
ANIL SEBASTIAN PULICKEL
VEENA RAVEENDRAN
JENNIS STEPHEN
P.MARTIN JOSE
P.PRIJITH
THOMAS P.KURUVILLA
AJAY BEN JOSE
MANJUNATH MENON
R.GITHESH
SACHIN JACOB AMBAT
HARIKRISHNAN S.
ANNA LINDA V.J
NAVEEN A.VARKEY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 03.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P(C).26572/2018
3
JUDGMENT
Dated this the 3rd day of November, 2021
S. Manikumar, CJ.
Instant writ petition has been filed in the year 2018, by
Pudukkad Samagra Vikasana Samithy, represented by its President,
Advocate Mr. Joby A. Pulikkan and also in his personal capacity. Though
petitioner No.1 is an unregistered association, we are inclined to consider
the case on merits, as the second petitioner is an individual espousing
the cause of the public. The reliefs sought for, are as under:
i) Direct the 1st respondent to take over the highway project covered
by the Concession Agreement dated 27/03/2006 and further
supplemented by Exhibit P4 agreement executed between 2nd and
6th respondent on National Highway No. 544 (Old No. 47) in Thrissur
(Km 270) to Angamaly (Km 316.700) Section in the State of Kerala by
invoking Section 32 of National Highway Authority of India Act, 1988,
by issuing a writ of Mandamus, or any other appropriate writ, order or
direction;
ii) Or else, Direct the 2 nd respondent to take over the highway project
covered by the Concession Agreement dated 27/03/2006 and further
supplemented by Exhibit P4 agreement from the 6th respondent on
National Highway No. 544 (Old No. 47) in Thrissur (Km 270) to
Angamaly (Km 316.700) Section in the State of Kerala by invoking
appropriate clauses in those agreements, and, to complete execution
of the same within a stipulated time limit either by itself or through any
W.P(C).26572/2018
other agency at the risk and cost of 6 th respondent, by issuing a writ of
Mandamus, or any other appropriate writ, order or direction;
iii) Direct the 1st respondent to constitute an expert committee to conduct
a thorough inspection of the state of the works completed and works in
progress and to find out the deficiencies, if any, in respect of the
execution of the works covered by the Concession Agreement dates
27/03/2006 and further supplemented by Exhibit P4 agreement from
the 6th respondent on National Highway No. 544 (Old No. 47) in
Thrissur (Km 270) to Angamaly (Km 316.700) Section in the State of
Kerala, and to suggest remedial measures, after holding public
consultation, by issuing a writ of Mandamus, or any other appropriate
writ, order or direction;
iv) Direct the 1st respondent to take appropriate steps to exempt the local
residents of Paliakkara, Amballoor, Pudukkad and Kodakara, people
engaged in small businesses therein and light motor vehicles
transporting goods to and from those places from payment of fee at
Paliyekkara toll plaza."
2. The contention advanced by the petitioners is that due to the
pathetic state of construction, operation and maintenance of National
Highway 544 (Old No.47), the public at large are put to various difficulties
and the National Highways Authority and the State are not taking
sufficient interest to ensure that the contractor, viz., the 6 th respondent is
undertaking the work in accordance with the agreement, and in the tenor
and terms of the National Highways Act, 1956, and other provisions of
law.
3. It is further pointed out that a supplementary agreement was
W.P(C).26572/2018
executed. However, the facilities that are undertaken as per the
supplementary agreement, like construction of service roads, adequate
and functional drainage systems, proper Highway Traffic Maintenance
system, sufficient and scientific bus bays and shelters, public utility
services such as rest place, toilets, drinking water proper and efficient toll
management, and similar aspects are not carried out by the 6 th
respondent, and thereby interfering with the fundamental rights and
human rights entitled to be enjoyed by the citizens.
4. National Highways Authority Authority of India/respondent No.4
has filed a detailed counter affidavit on 25.10.2021. Relevant paragraphs
of the same, enumerating the exact facts and figures, are extracted
hereunder:
"5. The entire petition is premised on a factual assumption that the
concessionaire (contractor) appointed by the National Highways
Authority of India for the work of expansion, improvement, operation
and maintenance of a stretch of national highway has failed to
perform or has deficiently performed its contractual obligations. The
foundational supposition is erroneous and contrary to true and
correct facts. The petition is based on conjectures and surmises. It
proceeds on the hypothesis that a lot of civil work required to be
done by the concessionaire has not been done at the site, or that the
work done by the concessionaire is of poor and deficient quality.
There is a serious contest as regards the correctness of the facts
asserted by the petitioners in the petition, especially as regards
quality of construction. As on date, more than 99% of the defined
W.P(C).26572/2018
civil work has been completed at site by the concessionaire. Only
about 0.5% of the total civil work remains to be completed. In terms
of value, the amount of work which is yet to be completed constitutes
about 1% of the total project cost. The assertion, which is actually in
the nature of allegation, that the concessionaire has failed to perform
its contractual obligations or has improperly performed its contractual
obligations and further that the Authority has remained indolent and
lethargic in ensuring strict compliance of the contractual obligations
by the contractor is not supported by any material; on the contrary,
the version of the Authority that the concessionaire has largely
performed its contractual obligations and that the work completed by
the contractor is not of deficient quality but matches the prescribed
standards is based on cogent documentary material. The petition
thus raises highly disputed questions of fact and for this reason also
the same may not be entertained by this Hon'ble Court.
6. The only relief claimed against the National Highways Authority of India
in the present petition, as can be seen from a perusal of the prayer
clause, is issuance of a direction to "take over the highway project
covered by the Concession Agreement dated 27/03/2006 and further
supplemented by Exhibit P4 agreement executed from the 6 th respondent
on National Highway No. 544 (Old No. 47) in Thrissur (Km 270) to
Angamaly (Km. 316.700) Section in the State of Kerala by invoking
appropriate clauses in those agreements, and, to complete execution of
the same within a stipulated time limit either by itself or through any other
agency at the risk and cost of 6th respondent". There is no denial of the
fact that a writ petition, more so in public interest, would lie against a
statutory authority for enforcement of a public duty; nevertheless, there is
a thin and subtle, but definite, line of demarcation between public duties
which are usually statutory and duties arising merely from contract. The
scope of judicial intervention in matters concerning execution or
W.P(C).26572/2018
performance of contractual obligations by the contracting parties, even in
case of statutory contracts or by statutory authorities as a contracting
party to a contract, as also matters relating to breach of contractual
terms, is very limited. The prayer, on a plain reading, does not seek
issuance of a judicial direction to a contracting party to enforce general
performance of obligations under the contract by the other contracting
party; instead, it seeks a direction to one contracting party to act in a
particular manner under the contract and take a specified action under
the contract against the other contracting party. Such relief commanding
a contracting party to act in a pin-pointed manner under the contract
cannot be sought even in a public interest litigation, and the petition, to
the extent it prays for grant of such relief, is misconceived and not
tenable in law.
HIGHWAY PROJECT
7. The highway starting Salem in Tamil Nadu to Kochi in Kerala, popularly
Salem - Kochi Highway, has been specified in Schedule 2 of the Act and
is declared to be a national highway. National Highway 544 (Old
National Highway 47) is a 340 kilometers long highway running through
the States of Tamilnadu and Kerala, and is also a spur of National
Highway 544 which forms the North South corridor of the national
highway network of India.
8. Section 11 of the National Highways Act, 1988 deals with the power of
the Central Government to vest or entrust any national highway to the
National Highways Authority of India. The said section reads as under:
"11. Power of the Central Government to vest or entrust
any national highway in the Authority.
The Central Government may, from time to time,
by notification in the Official Gazette, vest in, or
entrust to, the Authority, such national highway or
any stretch thereof as may be specified in such
notification."
W.P(C).26572/2018
I say that a stretch of National Highway 544 from Salem to Kochi has
been entrusted by the Central Government to the National Highways
Authority of India.
9. The Government of India decided to widen the stretch of National
Highway 544 starting from Km. 270.000 (Thrissur) to Km. 316.70
(Angamali) from existing 2 lane to a 4 lane highway, and authorized
National Highways Authority of India to execute the work of expansion of
the highway. Additional work was also entrusted to the Authority of
improving, operating and maintaining the stretch from Km. 316.70
(Angamali) to Km. 342.00 (Edappally). The Authority decided to perform
these works through a concessionaire on Build, Operate and Transfer
(BOT) Toll basis.
10. The National Highways Authority of India invited proposals by notice
dated 27.05.2005 from the bidders for 'Design, Construction,
Development, Finance, Operation and Maintenance' of Km. 270.000
(Thrissur) to Km. 316.70 (Angamali) and 'Improvement, Operation and
Maintenance' of Km. 316.70 (Angamali) to Km. 342.00 (Edapally). A
consortium comprising M/s KMC Constructions Limited and SREI
Infrastructure Finance Limited submitted its bid. The Authority, after
evaluation, accepted the bid of the consortium and issued a Letter of
Acceptance dated 30.09.2005. The consortium promoted and
incorporated Guruvayoor Infrastructure Private Limited and requested
the Authority to accept this new entity as the Concessionaire which shall
undertake and perform the obligations and exercise the rights of the
consortium under the Letter of Acceptance dated 27.05.2005. The
Authority agreed to the request of the consortium and a Concession
Agreement was entered into with M/s Guruvayoor Infrastructure Private
Limited for execution of the project. The total project cost was estimated
to be Rs. 312.54 crores.
W.P(C).26572/2018
11. The Authority appointed M/S ICT Private Limited as Independent
Consultant at the construction stage between the period from 2006 to
2014. The Authority appointed M/s MSV International Inc. as an
Independent Engineer for the operation and maintenance stage with
effect from 01.07.2015 and worked up to 31.01.2019. After that, the
Authority has appointed M/s MSV International Inc. in association with
MSV International Tech Private Limited as the Independent Engineer to
oversee and supervise the project work with effect from 01.02.2019.
12. The principal work of expansion of highway from 02 lane to 04 lane on
the entire stretch from Km. 270.000 (Thrissur) to Km. 316.70 (Angamali)
is complete, and the 04 lanes of the highway are open for use by the
general public.
13. The improvement works to be carried on the stretch from Km. 316.700
(Angamali) to Km. 342.000 (Edapally), being mainly junction
improvement at airport, curve improvement before Marthandavarma
bridge, a 6 lane flyover at Aluva junction and construction of approaches
to over bridge have also been completed.
14. The Concession Agreement permits and entitles the Concessionaire to
levy and collect fee, as determined by the Central Government, from
users of the highway duly approved and certified by the Independent
Engineer. The concession is granted to the concessionaire for a period
of 20 years. The commercial operations period, in the present case, has
commenced for a stretch from Km. 270.000 (Thrissur) to Km. 316.70
(Angamali) and for the stretch from Km. 316.70 (Angamali) to Km.
342.00 (Edapally) with effect from 04.12.2011.
ADDITIONAL WORKS
15. During the performance of originally defined and specified scope of work,
demands were received, either from general public or their elected
representatives, for creation of additional facilities. These requests were
considered by the Authority and the Independent Engineer appointed by
W.P(C).26572/2018
the Authority. After carefully examining the realistic need and necessity
for creating the additional facilities or assets together with engineering
feasibility and financial implications, certain additional facilities were
included in the awarded contract by effecting change in the scope of
originally awarded work. Almost all the additional facilities have been
completed, barring one major work at Puddukad junction.
PRESENT STATUS OF PROJECT HIGHWAY
16. The project work has been largely completed. All the principal works
have been finished, and the ancillary works have also been substantially
carried out by the concessionaire. Only minor works at some locations
remain incomplete as on date. The portion or measure of such
incomplete or yet to be completed work is negligible, and would account
for less than 0.5% of the physical project work and less than 1% of the
value of the project work.
17. The main work of expanding the carriageways on either side has been
completed along the entire stretch of the project highway. All major
improvement works have been finished. A miniscule portion of some
ancillary works as provided in the original agreement has remained
incomplete. The main reasons for non-completion of such insignificantly
small quantum of work in the context of the totality of the project work
have been and are absence of availability of land required for
performance of these works, resistance to the performance of defined
work by the residents of the locality even within the acquired land, and
other reasons not attributable to and beyond the control of either of the
contracting parties. For some other works, the delay has occasioned
because of lapses in timely performance of work by the concessionaire
and other reasons wholly and solely attributable to the concessionaire.
The concession agreement provides for levy of penalty for delay in
completion of work. The Authority, on report of the Independent
W.P(C).26572/2018
Engineer, has levied a penalty totaling to Rs. 198.20 crores up till
30.09.2021.
18. Almost all the additional works, which were included by making changes
in scope of work, have also been completed. Only one major additional
work of constructing an underpass at Pudukkad junction has not yet
been commenced till date.
SPECIFIC INSTANCES HIGHLIGHTED IN PETITION
19. The petitioners, in paragraph 11 of the petition, mention and describe
several works as having not been commenced or having remained
incomplete at the site. The petitioners also complain "non-following of
prescribed standards on safety" and "deficiency" in standards of various
amenities provided for the users.
Schedule A to the Concession Agreement gives description of the project
site. Schedule B to the Concession Agreement gives details of the
scope of work. Schedule C to the Concession Agreement
enumerates the project facilities. Schedule D to the Concession
Agreement provides the specifications and standards for performance of
the specified works. A copy of Schedule A, Schedule B, Schedule C and
Schedule D of the Concession Agreement is produced herewith and
marked as Exhibit R4-(1)(collectively).
In so far as the allegation of non-adherence to the prescribed standards,
be it of safety or otherwise, is concerned, I submit that the said allegation
is absolutely false and baseless. All works are performed by the
concessionaire strictly as per the design and drawings prepared in
accordance with the standards and specifications prescribed in the
Indian Road Congress Code. The executed work has been examined by
the Independent Engineer appointed by the Authority, who has verified
the quality of work and certified that the performed work confirms to the
specified specifications and standards. The petitioners are, therefore,
not right in alleging that any work performed by the concessionaire, and
W.P(C).26572/2018
approved by the Independent Engineer, is not in conformity with the
stipulated specifications and standards or is otherwise deficient in
quality.
In so far as the works highlighted as incomplete, I shall deal with each of
such work in seriatim:
Bus Bays And Shelters
19.1 The highway, before it was entrusted to the National Highways Authority
of India, was being maintained by the Public Works Department of the
State of Kerala. At the time when the stretch of highway was handed
over to the National Highways Authority of India for its management, not
a single bus bay or bus shelter was constructed on the entire stretch of
the highway even though there were a number of bus stops along the
project highway.
The highway expansion and improvement project envisaged creation of
about 29 designated bus shelters and bus bays at different locations
along the entire stretch of the highway. These shelters were generally
proposed at existing bus stops and at major road intersections. The
tentative locations of these proposed bus bays and bus shelters have
been mentioned in the Concession Agreement.
The width of the highway land - land belonging to the Central
Government and commonly called Right of Way (RoW), required for
installation and erection of all facilities is 45 meters. During the
execution of work, it was noticed that the width of land available on site is
less than 45 meters. Consequently, there is no land for accommodating
the proposed facilities on either side of the road. Construction, be it of a
residence or a commercial building, exists not on the edge of the
highway land, but within the highway land. Despite best efforts by the
National Highways Authority of India and repeated requests to the local
administration for assistance to remove the encroachment, it has not
become possible to obtain clear possession of 45 meters width at
W.P(C).26572/2018
several locations along the stretch of the highway.
At 03 proposed locations, sufficient land was available and accordingly
bus bays and shelter, as per prescribed specifications, have been
constructed on the highway land. At 17 locations, temporary bus
shelters have been erected by the side of the service road. The size of
these bus shelters has been materially altered (reduced) so as to fit
within the available land. At 9 locations, sufficient land is not available
even for making a temporary small sized bus shelter.
Considering the fact that width of 45 meters is not available at certain
locations impeding the construction of bus bays and shelters, the
Independent Engineer has recommended cancellation of construction of
bus bays and bus shelters from scope of project work. However, no final
decision has been taken by the Authority for making a negative change
in scope of work.
The Authority remains committed to have the bus bays and shelters
constructed at the identified locations or modified locations if the
encroached highway land is freed of the encroachment and made
available for use by the local administration, or land is made available for
acquisition beyond the highway land for construction of facilities.
Pudukkad Junction Underpass
19.2 An underpass or a flyover was not proposed to be constructed at the
Pudukkad junction in the Detailed Project Report prepared by the
Consultant, and accordingly did not find mention in the scope of work of
the project.
A lot of demands were made by members of general public as well as
political parties for construction of a flyover or an underpass at the
junction. There was conflict amongst the demanding grounds even on
the location for construction of the overpass or the underpass.
Public interest litigation, being Writ Petition (Civil) No. 10222 of 2009,
was commenced before this Hon'ble Court demanding construction of
W.P(C).26572/2018
flyover or an underpass at the junction. A technical committee was
constituted pursuant to directions of the Hon'ble Court. The committee
opined that the junction did not qualify for construction of a flyover, and
recommended a Vehicular - Cum - Pedestrian Underpass at the junction.
The National Highways Authority of India committed to implement the
recommendation of the committee. Based on such assurance, the public
interest litigation was closed by an order dated 28.08.2009.
Additional land was required for construction of bell mouth structure on
either side of the underpass, which would permit traffic to cut across the
main carriageways of the highway. The State Government refused to
permit acquisition of land, and in fact issued a letter dated 9.11.2010 to
the district officials instructing them to keep all land acquisition
proceedings for widening of the highway in abeyance. This fact has
been duly recorded in the order dated 3.01.2011 passed in Contempt
Case (Civil) No. 1416 of 2010. The restriction on acquisition of land
continued till 2016. Thereafter, the ban was lifted and proceedings were
initiated for acquisition of additional land for construction of the
underpass. The requisite land was acquired after following due process
of law, and its possession has been handed over to the Authority on
27.02.2020.
Parallel to the proceedings for acquisition of additional land, the
concessionaire submitted a Change of Scope proposal with an estimated
amount of Rs. 22,10,46,705/- for construction of the underpass at the
junction. The additional cost, with slight reduction, was approved by the
competent authority. Concessionaire submitted design and drawings for
the vehicular underpass. Certain observations and suggestions were
made by the Independent Engineer on the submitted design and
drawings. The revised drawings were submitted by the concessionaire
in the year 2018.
Before the additional land for construction of access lanes to the
underpass could be acquired and the work of constructing the underpass
W.P(C).26572/2018
could commence, the Government of India announced its intention of 06
laning the stretch of National Highway 544 from Mannuthi to Edapally
under the Bharatmala Pariyojana, the new umbrella program of the
Central Government for the highway sector that focuses on optimizing
the efficiency of the movement of goods and people across the country.
A technical consultant has been engaged for the preparation of a
detailed project report for the stretch of highway. A comprehensive study
concerning technical, engineering, environmental, logistical, commercial
and financial aspects of the highway project is presently being conducted
by the consultant. Engineering investigations, traffic sampling and
analysis, traffic flow forecasts and other aspects relevant to assess and
determine the technical, economical and financial viability of the project
are being examined by the consultant. The consultant is likely to submit
the detailed report in early 2022, whereafter the process for awarding the
work of construction shall be initiated and a contract shall be awarded to
a contractor for carrying out the project work.
In view of this development, a decision has been taken by the National
Highways Authority of India not to immediately start the work of
constructing Vehicular Underpass at Pudukkad junction (Km. 280.550),
and instead to take up the construction of underpass along with the
upgradation and widening of the project highway under the Bharatmala
Pariyojna. The Authority assures that the Vehicular Underpass shall be
constructed at Pudukkad junction.
Traffic Signals At Pudukkad Junction
19.3 The Concession Agreement requires the concessionaire to provide traffic
blinker signals at all grade intersections as per design standards
specified in the agreement, which in turn are based on specifications
prescribed in the Indian Road Congress. The concessionaire, in terms of
the aforesaid contractual obligation, has installed traffic signals at all
intersections and other locations as have been pointed out, based on the
W.P(C).26572/2018
quantum of traffic and necessity to regulate the traffic, by the
Independent Engineer.
At Pudukkad junction, appropriate traffic signals have been provided by
the concessionaire, and the same are in working condition. No
complaint has been received from the local police department regarding
non-installation or non-functioning of the traffic signals installed at the
intersection.
Drainage At Pudukkad
19.4 The scope of work included provision for road side drains. Side ditches
for area drainage on both sides of carriage way were proposed for rural
area. Chute drains along with shoulder drains were proposed in high
embankment areas and median drains at super elevated sections of the
highway. Hume pipe culverts were to be provided at intersections to
allow flow of drain water.
Concessionaire has constructed the drain of specified type along almost
the entire length of the project highway.
Independent Engineer, after site inspection, identified locations which did
not permit construction of a drain on the side of the carriageway or had
existing adequate drainage facility. A recommendation has then been
made by Independent Engineer that drain work cannot be performed or
need not be performed on a total length of 3.87 kilometers of the entire
stretch of the project highway.
As on date, drain remains to be constructed at the following locations on
Design Chainage:
LHS
CH: 280.070 - CH: 280.100 = 30m
CH: 280.700 - CH: 281.000 = 300m
CH: 281.070 - CH: 281.100 = 30m
(Total LHS = 900 m)
W.P(C).26572/2018
RHS
CH: 280.140 - CH: 280.155 = 15m
CH: 280.220 - CH: 280.500 = 280m
CH: 280.500 - CH: 280.620 = 120m
CH: 280.640 - CH: 280.750 = 110m
CH: 280.790 - CH: 280.845 = 55m
CH: 280.890 - CH: 280.900 = 10m
CH: 280.940 - CH: 280.960 = 20m
CH: 280.990 - CH: 281.010 = 20m
CH: 281.040 - CH: 281.100 = 60m
(Total RHS = 690 m)
This location is at Pudukkad junction. At this location, underpass was
not originally proposed and is a change of scope item. Now the work of
drain can be taken up only after construction of the Vehicular Under
Pass at the location. The drain line can be identified only after
Reinforced Earth Wall / Reinforced Cement Concrete Wall foundation for
the underpass is completed. The Authority assures that the work of drain
shall be carried out and completed along with construction of the
underpass.
Service Road
19.5 The Concession Agreement requires the concessionaire to construct
service road of 52.40 kilometers (inclusive of both sides). As on date,
the concessionaire has constructed service road of 52.25 kilometers
(26.05 kilometers on Left Hand Side of the project highway and 26.25
kilometers on the Right Hand Side of the project highway). The details of
service road constructed on both side of the project highway is
mentioned below for easy reference:
W.P(C).26572/2018
LHS Service Road
Chainage Length Status as on
From To side Name of the place
in Km date
270.200 270.600 0.4 LHS Nadathara Completed
271.650 273.200 1.55 LHS Kuttanellur flyover Completed
274.850 275.850 1.0 LHS Marathakkara to Completed
Kunjanampara
276.650 277.900 1.25 LHS Thrissur flyover Completed
278.850 280.250 1.4 LHS Amballur to completed
Pudukkad
280.250 280.400 0.15 LHS Pudukkad VUP Not completed
location
282.62 285.000 2.38 LHS Nandikkara - Nellayi completed
285.200 285.700 0.5 LHS Kolathur Completed
286.800 291.800 5.00 LHS Kodakara - Permbra Completed
292.650 297.45 4.8 Potta Compleed
298.300 299.670 1.37 LHS Muringoor VUP Completed
300.900 301.500 0.6 LHS Koratty Completed
302.900 308.700 5.8 LHS Chirangara - Completed
Karayamparambu
Total completed in LHS service road 26.05 Kms
RHS Service Road
Chainage Length Status as
From To side Name of the place
in Km on date
270.200 270.600 0.4 RHS Nadathara Completed
271.650 273.200 1.55 Kuttanellur flyover Completed
274.850 275.850 1.0 Marathakkara to Completed
Kunjanampara
276.650 277.900 1.25 RHS Thrissur flyover Completed
278.850 280.400 1.55 RHS Amballur to Completed
Pudukkad
282.620 285.000 2.38 RHS Nandikkara - Completed
Nellayi
285.200 285.700 0.5 RHS Kolathur Completed
286.800 291.800 5.00 RHS Kodakara - Completed
Permbra
292.650 297.45 4.8 RHS Potta Compleed
298.300 299.670 1.37 RHS Muringoor VUP Completed
300.900 301.500 0.6 RHS Koratty Completed
W.P(C).26572/2018
302.900 308.700 5.8 RHS Chirangara - Completed
Karayamparambu
Total completed in RHS service road 26.25
The contention of petitioners that the service road has not been
completed on the entire stretch of the highway may have been true at the
time of filing of the present petition in the year 2018; however, as on
date, barring a small section of 150 meters at Pudukkad junction, the
entire stretch of service road on both sides of the project highway has
been constructed and has been laid open for use by the general public.
The service road near Pudukkad junction shall be constructed after the
completion of construction of the underpass at the site.
Road Markings
19.6 The Concession Agreement requires the concessionaire to do markings
on the road as per standards and specifications prescribed in IRC 35.
The concessionaire has done markings on the entire stretch of the
project highway.
The road markings fade over time, because of constant movement of
vehicular traffic as also weather conditions. Periodically, the markings
are checked and necessary remedial action is being taken by the
concessionaire.
Service Road And Drain Between Potta Flyover To Chalakudy
19.7 Petitioners have contended that service road and drainage work has not
been completed on the stretch of project highway between Potta flyover
to Chalakudy.
Initially, the work of constructing service road and outer drain could not
be performed because of non-availability of land. Finally, the land was
made available to the Authority and thereafter handed over to the
concessionaire in the year 2015. Street light poles and electricity lines
existing on the land were required to be shifted after obtaining requisite
W.P(C).26572/2018
permissions. Shifting of utilities was completed in the year 2016.
Thereafter, a service road has been constructed at the location, and is
currently being used by the general public. Because of non-availability of
sufficient land and resistance to acquisition of more land, on a small
stretch the width of the service road is 3.5 meters.
The outermost drain has not been constructed at the location between
293+300 to 294+300. The said work was to be undertaken by the
concessionaire post monsoon; however, because of continuous rains the
work could not be taken up by the concessionaire.
The Authority assures that the work of constructing outer drain at the
location shall be taken up on priority basis, and completed at the earliest.
Drain at Nadathara Center, Nadathara to Kodakara and Nadathara to Koratty
19.8 The drain work is complete at Nadathara Center, and also between
Nadathara to Kodakara and Nadathara to Koratty.
The construction of drain at these locations is as per the design,
drawings, standards and specifications prescribed in the Indian Road
Congress for construction of drain. It has not been noticed by the
Authority or the local civil authorities of the area that the water is not
flowing properly through the drain constructed alongside the highway,
and that the water falling on the highway land during monsoon is causing
flooding of the adjoining civil areas.
Also, the drain is covered on its entire stretch. It is true that at times the
outer covers are removed; such removal is mainly by local residents or
by miscreants. Appropriate steps are taken by the Authority as and
when it is noticed that the asset of the Authority is damaged, and
instructions are given to the concessionaire for taking necessary
remedial steps in accordance with the terms of agreement.
Box Culverts At Nadathara, Kodakara and Potta
19.9 The box culverts provided for cross drainage at various locations along
W.P(C).26572/2018
the stretch of the project highway are properly maintained by the
concessionaire. They are regularly cleaned by the concessionaire.
Some of the Slab / Box / Pipe culverts inherited by the National
Highways Authority of India from the Public Works Department, State of
Kerala at the time of entrustment of the stretch of highway have been
repaired by the Concessionaire as part of scope of work under the
Concession Agreement. Some new culverts and cross drainage facilities
have also been created on the project highway. None of the cross
drainage works have become dysfunctional, as alleged in the petition.
All the culverts and cross drainage facilities are working properly.
It has not been noticed by the Authority at any time that there has been
water logging either on the highway or on the side of the highway
because of a stoppage of smooth flow of water through the culverts. No
official complaint has been received from any civic authority concerning
non-functioning or blockage of culvert.
It may be that because of excess rain there would be general flooding in
the area, and consequently the water may not flow quickly through the
culvert. Such a situation is rare and arises for reasons beyond human
control.
Highway Lighting
19.10 The Concessionaire has erected 1,069 light poles on the entire stretch of
the project highway.
It has been felt that there is need for more lights on the highway, and
appropriate steps are being taken for effecting change in scope of work
so as to provide for an additional 577 light poles on the project highway.
Sufficient lighting exists at grade separators and toll plaza.
Public Utilities
19.11 Public utilities like toilet blocks, water kiosks, etc. have been sufficiently
provided at toll plaza administrative buildings and the designated rest
areas on either side of the highway.
W.P(C).26572/2018
The Authority has been and shall continue to monitor the maintenance of
these facilities by the concessionaire.
Grievance Redressal Mechanism
19.12 National Highways Authority of India has introduced a toll free number -
1033, for lodging any complaint concerning the highway traffic as well as
for voicing any grievance concerning highway administration, operation,
maintenance and management. Complaints concerning toll collection or
public convenience facilities or other utilities at the toll plaza or on the
highway can also be lodged by calling on this toll free number by any
user of the highway. This number, to be used even in case of
emergency, has been prominently displayed at the toll plaza and at
different locations along the length of the project highway.
Toll Collection Unscientific And No Exemption Granted to Locals
19.13 Section 7 of the National Highways Act, 1956 permits the Central
Government to levy fees for services or benefits rendered in the use of
ferries, permanent bridges, temporary bridges, tunnels and sections of
national highways. Sub-section (2) provides that such fees shall be
collected in accordance with the rules made under the Act. Section 9
empowers the Central Government to frame rules providing for the rates
at which fees for services rendered in relation to the use of ferries,
permanent bridges, temporary bridges, tunnels and use of sections of
any national highway may be levied and the manner in which such fees
shall be collected.
Presently, the manner and method for levy of user fee and the rate of fee
are determined by the National Highways Fee (Determination of Rates
and Collection) Rules 2008, framed by the Central Government. These
Rules apply to both public funded project and private investment
projects, and also to agreement and contracts executed and bids invited
relating to public funded projects and the build, operate and transfer
W.P(C).26572/2018
(annuity) projects prior to the publication of the rules.
Rule 3 states that "the Central Government may, by notification, levy fee
for use of any section of national highway, permanent bridge, bypass or
tunnel forming part of national highway, as the case may be, in
accordance with the provisions of these rules". Sub rule (3) provides that
"in case of private investment project the collection of fee levied under
sub-rule (1) shall be made in accordance with the terms of the
agreement entered into by the concessionaire."
Rule 4 of the National Highways Fee (Determination of Rates and
Collection) Rules, 2008 prescribes the base rate of fee for use of a
section of national highway of four or more lanes by different types of
vehicles - light motor vehicles, light commercial vehicles, two axle
vehicles, three axle commercial vehicles, heavy construction machinery
or multi axle vehicles and over-sized vehicles.
Rule 6 of the National Highways Fee (Determination of Rates and
Collection) Rules, 2008 prescribes the manner and method of collection
of user fee for use of section of the national highway. Sub-rule (1)
provides that "fee levied under these rules shall be collected by the
Central Government or the executing authority or the concessionaire, as
the case may be, at the toll plaza." Sub-rule 2 mandates that "every
driver, owner or person in charge of a mechanical vehicle shall for the
use of the section of national highway, permanent bridge, bypass or
tunnel, before crossing the toll plaza, pay the fee specified under these
rules."
Sub-rule (4) of Rule 8 of the National Highways Fee (Determination of
Rates and Collection) Rules, 2008 directs that no fee shall be collected
from a driver, owner or person in charge of a mechanical vehicle "that
uses part of the section of a national highway and does not cross a toll
plaza." The Government of India has largely decided to adopt an open
system of tolling where the user has to pay the user fee at flat rate for the
notified length at a predetermined location and not the fee for the actual
W.P(C).26572/2018
length travelled. Only in case of access controlled highways, toll is
charged on the basis of distance traveled by adopting the 'closed
system' with toll plaza at every entry and exit of the tolled road.
Rule 9 provides for permissible discounts on levy of user fee for use of
section of the national highway. Rule 3-A, inserted by the National
Highways Fee (Determination of Rates and Collection) Amendment
Rules, 2011, provides that "a person, who owns a commercial vehicle
(excluding vehicle plying under National Permit), registered with address
on the Registration Certificate of a particular district and uses such
vehicle for commuting on a section of the National Highway, permanent
bridge, tunnel or bypass, as the case may be, which is located within that
district, shall be levied user fee on all toll plazas which are located with
that district, at the rate of fifty per cent of the prescribed rate of fee:
Provided that no such concession shall be provided, if a service road or
alternative road is available for use by such commercial vehicles."
The law thus permits grant of concession only to the extent of fifty per
cent of the prescribed rate of fee on commercial vehicles which are
registered within the district and are operating or plying only within the
district in which the toll plaza is located on the section of the national
highway and do not possess national permit. The prevailing rules and the
terms of agreement between the Authority and the concessionaire do not
envisage classification of commercial vehicles in various categories for
grant of discount nor do they provide for any concession in respect of
local owners of commercial vehicles, except to the extent mentioned in
the rules.
The Central Government has issued a notification prescribing the fee for
use of the present section of national highway. The said notification
dated 20.06.2011 Exhibit R4-(3) grants necessary exemption, as
permissible under the Rules. Pertinently, there is no challenge to the
said notification in the present petition.
There was strong protest against the toll collection by local people and
W.P(C).26572/2018
some organizations. The protestors indulged in hooliganism and
vandalized the toll plaza. They even manhandled employees of the
concessionaire. The toll collection had to be stopped. The State
Government intervened, and it was resolved that additional exemption
and rebate on toll rates for local people shall be granted by the
Concessionaire (over and above the exemption and rebate provided in
the notification), and that the expenditure for such additional concession
on toll rate shall be met by State Government. As per the Government
Order dated 18.02.2012( Exhibit R4-(4)), the Government of Kerala has
reimbursed an amount of Rs.3.59 crores to the concessionaire for the
period from February 2012 to September 2014. However, the State
Government has not made any reimbursement post September 2014.
As on 30.06.2021, an amount of Rs. 135.40 crores remain due and
payable by the State Government.
Encroachment On Highway Land
19.13 There is no denial that there exists encroachment over highway land on
several locations along the entire stretch of the national highway.
All possible efforts are being made by the National Highways Authority of
India to evict the encroachers and remove the encroachment. However,
the Authority has found little support from the local administration in
removing the encroachment. Also, there is a lot of interference from
different quarters in conducting a drive for removal of encroachment from
highway land.
A lot of times, writ petitions are filed before this Hon'ble Court and suits
before Civil Court by persons who are sought to be removed in
accordance with law. They seek restraint orders, predominantly by
stating false facts or by alleging illusory breach of their right to access
their property from the highway.
Nevertheless, the Authority has been taking, as far as possible, strict
action against those persons who are found to have entered upon and
W.P(C).26572/2018
illegally occupied highway land.
20. The contention of petitioners that substantial work has not been done by
the concessionaire is therefore factually not correct. Similarly, the
allegation of petitioners that sub-standard work has been performed by
the concessionaire is also factually incorrect. As stated hereinabove,
almost all the works have been completed and only a tiny portion of the
total work remains to be completed. The Authority remains committed to
ensuring completion of such work. The quality of work that has already
been performed is as per prescribed standards. There exists no reason,
as on date, for the National Highways Authority of India to terminate the
contract and get the balance work executed through a third party. The
Authority, however, assures the Hon'ble Court that in the event it is
noticed that the delay in completing the balance work is being caused
solely due to non-performance of the concessionaire or that the
concessionaire is deliberately and intentionally avoiding completion of
any particular work, the Authority shall take action against the
concessionaire as per terms of contract, and if need be, get such portion
of the work executed by a third party at the risk and cost of the
concessionaire."
5. The Chief Operating Officer and Authorised Signatory of M/s.
Guruvayoor Infrastructure Pvt. Ltd./respondent No.6, has filed a detailed
counter affidavit dated 25.10.2021, setting out the steps taken. Relevant
paragraphs of the same are extracted hereunder:
"8. One of the complaints alleged against this respondent is
regarding the maintenance of NH 544(NH47 Old) stretch
from Thrissur (Km 270) to Angamali (Km 316.700). It is
submitted that this respondent has completed all the work
W.P(C).26572/2018
from Thrissur to Angamali as per the project design but due
to the delay in land acquisition proceedings some delay has
caused in completion of the work as per the Concession
Agreement. It is submitted that as per the Concession
Agreement the 6th respondent is entitled to collect toll fee
after completion of substantial works and from the date of
obtaining Provisional Completion Certificate from the
Independent Authorized Firm (Independent Engineer)
appointed by NHAI. It is submitted that the Provisional
Completion Certificate (PCC) was issued on 04-12-2011 and
the 6th respondent was entitled to collect the toll fees from
that date. However, the 6th respondent was entitled to collect
the toll fees from that date. However, the 6 th respondent
could not commence the collection of toll fee as per the
Concession Agreement due to the public protest and other
agitations at the instance of political parties and other
associations.
9. It is submitted that the allegation regarding non-
providing of facilities and maintenance as provided in the
project design and Concessionaire Agreement is false and
hence denied. Such allegations are made without
ascertaining the actual facts and circumstances. It is
submitted that this respondent started collection of toll fees
after completing substantial works and after obtaining PCC
as provided in the Concessionaire Agreement. The PCC
was issued on 4.12.0211 and this respondent was entitled to
collect toll fee from 5.12.2011. But due to the protests the
respondent herein could commence the toll fee collection
only from 9.2.2012 onwards after several meetings and
interventions from the Government. Though almost all works
W.P(C).26572/2018
were complete as per the Concession Agreement at the time
of commencement of toll collection certain punch list works
(additional items/change of scope) were delayed due to
obstruction from the public and non-availability of land to
execute such works. Hence, at present all the works are
complete as per the project design and the Independent
Engineer appointed by the NHAI issued the final Completion
Certificate on 18.4.2016.
15. xxxxx xxxxx Admittedly, there occurred obstructions
in land acquisition and progress of works as a result of
protests etc. which resulted in the execution of Exhibit P4
Supplementary Agreement for additional works and certain
minor works which could not be completed due to no fault or
delay on the part of the 6 th respondent. It is submitted that
the 6th respondent herein being the concessionaire of the
NHAI can carryout the works only as directed by the NHAI.
16. xxxxx xxxxx It is submitted that all bus shelters
could not be constructed due to non availability of land. Due
to non-availability of requisite lands since the Government of
Kerala restricted the width/land acquisition to 45 meters the
bus stops/shelters could not adhere to the standard size. In
view of this the NHAI advised the Respondent herein to
construct bus bay/bus shelter in available land. Accordingly,
the 6th respondent constructed 29 Nos of Bus stops & 3 Nos
of bus bays in the available land. Thereafter, the
Independent Engineer vide letter
No.MSV/PRJ/230/Kerala/IE-NHAI/2019/IC-832 dated
25.2.2021 recommended that the item as Negative Change
of Scope and accordingly the 6th respondent submitted cost
estimate for Negative COS. Therefore the allegation that
W.P(C).26572/2018
this respondent has not completed the work of bus
bays/shelters is baseless and hence denied.
17. It is submitted that the Pudukkad VUP is a change of
scope and accordingly it was stipulated in the supplementary
agreement, to execute the Pudukkad VUP as change scope
work. It is submitted that the development of the project
highway is an evolving process and during the discussions
held at NHAI PIU-Palakkad on 30.04.2021, the NHAI
decided that the VUP at Pudukkad junction 280550 shall be
taken up along with the up gradation and widening of the
project highway to 6 laning under Bharatmala Pariyojana
Scheme of the Central Government. The said decision was
conveyed by the IE to the Concessionaire vide letter no.
dated 22.05.2021. It is submitted that the DPR works of 6
laning of Mannuthy - Edappally under Bharatmala Pariyojana
scheme are in final stage.
18. It is submitted that the 6th Respondent had to
construct 52.4 Km service road for the entire project highway
as per the Concession Agreement. The 6 th Respondent
constructed 52.25 Km of service road and the 150m length of
the service road is to be constructed at Pudukkad along with
VUP construction. Since VUP construction has to be done
along with 6 lane works, construction of the 150Mtr service
road work and connected drains is to be carried out along
with the said VUP construction. Since VUP Construction
would be done along with 6 lane work, we (6th Respondent)
will take up the work and connected drains at the earliest
possible. However, as per good engineering practice, it
would be appropriate to construct a 150 meter service road
along with 6 lanening works.
W.P(C).26572/2018
19. xxxxx xxxxx. It is submitted that the 6 th Respondent
has installed an upgraded signal system at Pudukad, which
is functioning 24x7 Basis. The signal system works without
any defects and catering the required services. It is
submitted that the Highway Traffic Management System
(HTMS) is a highly technical hardware and software
mechanism and the 6th Respondent had originally awarded
the same to a Canadian company- IRDSA. However, the
said company later stopped its Indian operations.
Accordingly, the 6 th
Respondent appointed a new agency
and the entire HTMS system was replaced at the 6th
Respondent's cost. The allegations are baseless without
knowing the actual facts.
20. It is submitted that the construction of the drainage
could not be completed due to non availability of land
between Ch: 293+300 to 294+900-LHS. It is submitted that a
hume pipe was provided at Nadathara location and the water
logging issue was resolved long back. Thus the 6 th
Respondent is not at fault.
21. xxxxx xxxxx The 6th Respondent is regularly
maintaining the road markings. At present also road marking
and maintenance is in progress at various parts of the
highway as a part of regular maintenance work. Similarly, the
box culverts for drainage are functional and the cleaning of
the box culverts is a routine process as per the requirement
and is an ongoing process.
22. xxxxx xxxxx The 6th Respondent has installed
lightings as per the standards in the Concession Agreement.
It is submitted that the lighting fixtures are subject to
corrosion due to natural reasons and may get damaged.
W.P(C).26572/2018
However, the 6th Respondent routinely repairs and maintains
and replaces the same, whenever necessary.
23. xxxxx xxxxx It is submitted that "Highway Mini
Nest" is operating near Toll plaza on both sides. They are
operated by an agency appointed by NHAI and water Kiosks
and toilet facilities are available.
24. xxxxx xxxxx It is submitted that complaint registers
are available at Toll plaza and the 6th Respondent is
addressing the complaints regularly. Moreover, NHAI has
established a toll free number "1033" for grievance
addressing mechanisms, which is also addressed regularly.
26. xxxxx xxxxx It is submitted that there is no breach of
Concession Agreement by this respondent and hence
allegations levied against this respondent with respect to the
construction, maintenance etc. are false and hence denied
Exhibit P6 Report is biased contents and does not reflect the
true state of affairs. The alleged findings in Exhibit P6 are
without any basis and exaggerated."
6. A statement dated 23.10.2021 has been filed by the Special
Deputy Collector/respondent No.7, stating that the land acquisition
proceedings were initiated and land has been handed over to the
National Highways Authority of India for widening of the highway in
question into four lane for a stretch of land from Thrissur to Angamaly
section. Special Deputy Collector (LA), National Highway Development
Project, Thrissur was appointed as the Special Land Acquisition Officer
and Competent Authority to perform such functions of the authority under
W.P(C).26572/2018
Section 3A of National Highways Act, 1956. Accordingly, on the strength
of requisition received from NHAI, land acquisition proceedings were
initiated, land was acquired and after completion of the proceedings, it
was handed over to National Highways Authority of India. Therefore,
according to the State Government, in so far as the contentions contained
in the writ petition are concerned, the State Government have no role to
be played and further submitted that it is for the National Highways
Authority of India to take appropriate action.
7. On the basis of averments made by National Highways
Authority of India (NHAI) and the supporting documents, Mr. Maulik
Nanavati, learned counsel appearing for the National Highway Authority
of India submitted that for the purpose of fulfillment of the agreement of
National Highway No.544 (Old No.47), possession of land in certain
areas has already been handed over, but due to public objections as well
as encroachments, works under the contract could not be carried out.
8. He further submitted that in so far as the construction of an
underpass at the relevant place, where there is traffic congestion, earlier,
NHAI decided to construct an underpass when the four-lane existed. As
of now, a decision has been taken to widen the road of the said site to
six-lane and for that purpose, land is required.
W.P(C).26572/2018
9. Mr. Maulik Nanavati, learned counsel for NHAI, further
submitted that Government of Kerala, in principle has decided to allot the
land. Nevertheless, under the provisions of the National Highways Act,
1956, if any land has to be acquired for the purpose of widening, it is the
said authority to issue appropriate notification for the purpose.
10. Giving due consideration to the averments made, pleading and
material on record, we are of the view that once the notification issued by
National Highway Authority of India, for the purpose of laying a road, has
already reached its logical conclusion, unless and until physical
possession is given to NHAI, certainly, balance works under the
construction agreement cannot be commenced and completed.
11. In that view of the matter, it is the duty of the Government of
Kerala as well as the Local Self Governments to take appropriate steps
under the provisions of the relevant Statutes for removal of any
obstruction, as pointed out by NHAI in their counter affidavit dated
25.10.2021.
12. That apart, it is trite law that no individual has any right to
object the construction or alignment of National Highway as decided by
the Hon'ble Supreme Court in Union of India v. Dr. Kushala Shetty and
Others [2011 (12) SCC 69] and in Competent Authority v. Baranagore
Jute Factory [(2005) 13 SCC 477]. In Kushala Shetty 's case (supra), at
W.P(C).26572/2018
paragraph 28, the Hon'ble Apex Court held as under:
"28. Here, it will be apposite to mention that NHAI is a
professionally managed statutory body having expertise in
the field of development and maintenance of National
Highways. The projects involving construction of new
highways and widening and development of the existing
highways, which are vital for development of infrastructure in
the country, are entrusted to experts in the field of highways.
It comprises persons having vast knowledge and expertise in
the field of highway development and maintenance. NHAI
prepares and implements projects relating to development
and maintenance of National Highways after thorough study
by experts in different fields. Detailed project reports are
prepared keeping in view the relative factors including
intensity of heavy vehicular traffic and larger public interest.
The Courts are not at all equipped to decide upon the viability
and feasibility of the particular project and whether the
particular alignment would serve the larger public interest. In
such matters, the scope of judicial review is very limited. The
Court can nullify the acquisition of land and, in rarest of rare
cases, the particular project, if it is found to be ex-facie
contrary to the mandate of law or tainted due to mala fides. In
the case in hand, neither any violation of mandate of the
1956 Act has been established nor the charge of malice in
fact has been proved. Therefore, the order under challenge
cannot be sustained." (emphasis supplied)
13. In the decision extracted supra, the Hon'ble Apex Court has
made it clear that the National Highways Act, 1956, gives a very limited
W.P(C).26572/2018
right to object. The objection can be only to the use of the land under
acquisition for the purposes other than those under Section 3A(1). The
Act confers no right to object to acquisition as such.
14. Bearing in mind the above aspects, Government of Kerala as
well as the Local Self Government Institutions are directed to take
appropriate steps and measures for removal of all the encroachments, so
as to enable the National Highways Authority of India to proceed further.
15. In respect of requirement of additional land for widening of the
road to six-lane, it is submitted by NHAI that a study is being made and
that it is likely to be completed by March, 2022.
16. In the light of the above, we further direct the National
Highways Authority of India, to expedite the study and accordingly take a
decision for issuing a notification for the purpose of acquisition of land, to
be used for widening of the existing four-lane road to that of a six-lane
road and also to construct an underpass in Pudukkad.
17. Perusal of the cause title shows that neither the Secretary to
the Government, Public Works Department, Government of Kerala,
Thiruvananthapuram nor the Secretary to the Government, Local Self
Government Department, Government of Kerala, Thiruvananthapuram
are impleaded as party respondents in the writ petition. We are of the
opinion that the abovesaid authorities are proper and necessary parties
W.P(C).26572/2018
for the effective implementation of the directions of this Court. Hence, in
exercise of the powers conferred under Article 226 of the Constitution of
India, we suo motu implead them as additional respondents 8 and 9. Mr.
K.P. Harish, learned Senior Government Pleader, takes notice for the
additional respondents 8 and 9. The said respondents now impleaded
are directed to examine the materials and accordingly, issue directions to
the Secretaries of the Local Self Governments Institutions to take steps
for removal of the encroachments, so as to enable handing over of vacant
possession of lands acquired under the notification, issued for
construction, operation and maintenance of the entire stretch of National
Highway 544 (Old No.47). The said exercise shall be done as
expeditiously as possible so that the public are benefited from the
construction of the National Highway in all respects.
Pending interlocutory applications, if any, shall stand closed.
Sd/-
S. Manikumar,
Chief Justice
Sd/-
Shaji P. Chaly,
Judge
sou.
W.P(C).26572/2018
APPENDIX OF WP(C) 26572/2018
PETITIONERS' EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE JUDGMENT OF THIS
HON'BLE COURT IN WPC NO 10222/2009 DATED
28.8.2009
EXHIBIT P2 A TRUE COPY OF THE JUDGMENT OF THIS
HON'BLE COURT IN C.O(C) NO.1416/2010
DATED 3.1.2011
EXHIBIT P3 A TRUE COPY OF THE JUDGMENT OF THIS
HON'BLE COURT IN WPC NO 8289/2010 DATED
28.11.2009
EXHIBIT P4 A TRUE COPY OF THE SUPPLEMENTARY
AGREEMENT BETWEEN 2ND AND 6TH RESPONDENT
DATED 3.12.2011
EXHIBIT P5 A TRUE COPY OF THE NOTIFICATION
NO.S.O.3505(E) ISSUED BY MINISTRY OF ROAD
TRANSPORT AND HIGHWAYS DATED 27.11.2013
EXHIBIT P6 A TRUE COPY OF THE REPORT OF ADVOCATE
COMMISSIONER, MR.P.PRAMOD, DATED
22.5.2018 FILED BEFORE KERALA HUMAN
RIGHTS COMMISSION IN HRMP NO 7805/2014
RESPONDENT EXHIBITS
EXHIBIT R4(1) TRUE COPY OF SCHEDULE A, SCHEDULE B,
SCHEDULE C AND SCHEDULE D TO THE
CONCESSIONS AGREEMENT
EXHIBIT R4(2) PHOTOGRAPHS OF TRAFFIC SIGNALS INSTALLED
AT PUDUKKAD JUNCTION
EXHIBIT R4(3) TRUE COPY OF USER FEE NOTIFICATION DATED
20.06.2021 PUBLISHED IN THE GAZETTE OF
INDIA BY CENTRAL GOVERNMENT.
EXHIBIT R4(4) TRUE COPY OF GOVERNMENT ORDER VIDE
NO.GO(MS) NO.23/2012/PWD DATED 18.02.2012
ISSUED BY GOVT. OF KERALA
EXHIBIT R6(a) TRUE COPY OF JUDGMENT DATED 19/01/2021 IN
WPC.NO.2636/2016 OF THIS HON'BLE COURT.
