Bineesh.M.K vs Project Director
2021 Latest Caselaw 19810 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                 THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

         THURSDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943

                            WP(C) NO. 19446 OF 2021

PETITIONERS:

     1         BINEESH.M.K,
               AGED 40 YEARS
               S/O. KUNHIMUHAMMED,
               MUKKILAPEEDIKAYIL, AKALAD PO,
               CHAVAKKAD, THRISSUR DISTRICT.

     2         SHIHAB M.K.
               AGED 36 YEARS
               S/O. KUNHIMUHAMMED,
               MUKKILAPEEDIKAYIL, AKALAD PO,
               CHAVAKKAD, THRISSUR DISTRICT.

               BY ADVS.
               K.MOHANAKANNAN
               H.PRAVEEN (KOTTARAKARA)



RESPONDENTS:

     1         PROJECT DIRECTOR,
               NATIONAL HIGHWAY AUTHORITY OF INDIA LIMITED,
               PROJECT IMPLEMENTATION UNIT NO.310A,
               CHANDRANAGAR EXTENTION,
               PALAKKAD-678 002.

     2         WALAYAR VADAKKANCHERY EXPRESS WAYS PRIVATE LIMITED
               11/706, PAMPAMPALLAM,
               ATTAPPALLAM, WALAYAR,
               PALAKAKD DISTRICT,
               REPRESENTED BY ITS AUTHORISED OFFICER-678 624.

     3         THE AUTHORISED OFFICER
               WALAYAR VADAKKANCHERY EXPRESS WAYS PRIVATE LIMITED,
               11/706, PAMPAMPALLAM, ATTAPPALLAM,
               WALAYAR,
               PALAKKAD DISTRICT-678 621.

     4         SUJEENDRAN S.
               S/O. SELVARAJ,
               S.K.HOUSE, AALAMARATH,
               K.N.PUDOOR, KANCHIKKODE PO,
               PALAKKAD DISTRICT-678 621.


     5         SUDARSAN
               S/O. PONNUNNI,
               S.K. HOUSE, AALAMARATH, K.N.PUDOOR,
               KANCHIKKODE PO,
               PALAKKAD DISTRICT-678 621.
 W.P(C)No.19446 of 2021

                                     2



  OTHER PRESENT:

              SRI.MATHEWS.K.PHILIP - SC

  THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.09.2021,

  THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P(C)No.19446 of 2021

                                    3



                           JUDGMENT

Dated this the 23rd day of September, 2021

The petitioners, who are stated to be the tenants of

a certain property, on which their business premises are

located, have approached this Court impugning Ext.P11

order issued by the 1st respondent - Project Director of the

National Highways Authority of India Limited, (NHAI), on

various allegations and assertions, but primarily that, they

were not heard before it had been issued and that the

directions in Ext.P10 judgment, have been flagrantly

violated.

2. The petitioners say that, as is evident from Ext.P9

series of documents, the allegation of encroachment by them

into the Service Road or the National Highway is wholly

untenable and that, had they been given an opportunity of

being heard, they would have been able to convince the first

respondent of this. They, therefore, pray that this writ W.P(C)No.19446 of 2021

petition be allowed and the reliefs sought for by them be

granted.

3. I have heard Sri.K.Mohanakannan - learned

counsel for the petitioners; Sri.Mathews.K.Philip - learned

Standing Counsel for the 1st respondent.

4. Sri.K.Mohanakannan - learned counsel for the

petitioners, submitted that Ext.P11 - is also vitiated for the

reason that only his clients have been targeted therein,

though, as is clear from Ext.P9 - series of photographs,

there are several buildings on the same line, next to the

National Highway and the Service Road. He submitted that,

therefore, his clients legitimately suspect that the action of

the 1st respondent is malafide and thus reiteratingly prayed

that Ext.P11 be set aside.

5. In response, Sri.Mathews.K.Philip - learned

Standing Counsel for the 1st respondent, submitted that

Ext.P11 has been issued after verifying and evaluating the

relevant factual inputs and circumstances and that it has W.P(C)No.19446 of 2021

been found that certain constructions put up by the

petitioners certainly encroach into the area of the National

Highway. He prayed that, therefore, Ext P11 be not

interdicted.

6. Even when I hear the rival contentions as afore,

the fact remains that even Sri.Mathews.K.Philp admits that

Ext.P11 has been issued without hearing the petitioners,

though he contends that in Ext.P10 - judgment, there was

no such direction. Even if that be so, it is clear from Ext.P10

that the Project Director had been ordered to take a decision

on the representation of the petitioners, but, Ext.P11 is

conspicuously silent as regards this aspect also.

7. That apart, the question whether there has been an

encroachment into the National Highway or otherwise will

have to be assessed as a question of fact, which will certainly

require an evaluation of the documents as also the version of

the parties, against whom such allegations have been made.

Resultantly, I allow this writ petition and set aside

Ext.P11; with a consequential direction to the 1 st respondent W.P(C)No.19446 of 2021

to hear the petitioners and evaluate their documents, if any,

and then take a final decision under the applicable Rules and

Regulations.

In order to obtain an expeditious compliance of the

directions herein, I direct the petitioners to appear before

the 1st respondent - Project Director on 01.10.2021 at

11.00 AM; on which day, the said Authority will either hear

them or fix another convenient date for hearing and then

complete the proceedings as afore.

Needless to say, until such time as the afore

exercise is completed and the resultant order issued to the

petitioners, all further action with respect to demolition of

the alleged illegal structures shall remain deferred.

Sd/-

DEVAN RAMACHANDRAN JUDGE

NR/23/09/2021 W.P(C)No.19446 of 2021

APPENDIX

PETITIONERS' EXHIBITS Exhibit P1 TRUE COPY OF THE SANITARY FITNESS CERTIFICATE DATED 27.5.2019, BY THE HEALTH DEPARTMENT IN THE NAME OF THE 2ND PETITIONER.

Exhibit P2 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE EMPLOYEES BY THE LABOUR DEPARTMENT DATED 5.7.2019.

Exhibit P3 TRUE COPY OF THE PLAINT OS 263/2020 ON THE FILE OF THE MUNSIFF COURT, PALAKKAD AND APPLICATION FOR INJUNCTION.

Exhibit P4 TRUE COPY OF THE PROEEDINGS OF THE MUNSIFF COURT, PALAKKAD DATED 1.7.2020 IN OS 263/2020 (DAILY STATUS)

Exhibit P5 TRUE COPY OF THE AGREEMENT EXECUTED BY THE IST PETITIONER AND THE 4TH RESPONDENT DATED 10.3.2021.

Exhibit P6 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 14.7.2021.

Exhibit P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE IST PETITIONER BEFORE THE IST RESPONDENT DATED 23.7.2021.

Exhibit P8 TRUE COPY OF THE CONTROL OF NATIONAL HIGHWAYS (LAND AND TRAFFIC) ACT, 2002.

Exhibit P9 TRUE COPY OF THE PHOTOGRAPHS TO SHOW THE LOCATION AND NATURE OF THE CONSTRUCTIONS EFFECTED BY THE PETITIONER AND THE ADJACENT BUILDINGS.

Exhibit P10 TRUE COPY OF THE JUDGMENT IN 15167/2021 DATED 9.8.2021.

Exhibit P11 TRUE COPY OF THE PROCEEDINGS NO.12277/PIU-PKD/NH-

544/BOT/KL2-ENCR./1482 OF THE IST RESPONDENT DATED 28.8.2021.