Shaji K vs National Highways Authority Of ...
2022 Latest Caselaw 3592 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     THURSDAY, THE 24TH DAY OF MARCH 2022 / 3RD CHAITHRA, 1944
                      WP(C) NO. 26513 OF 2021
PETITIONERS:
     1     SHAJI K., MULANTHANODE HOUSE,
           PARUVAASSERY, PALAKKAD-678686.

    2     MOLY YOHANNAN, W/O.YOHANNAN, MAANAKKUZHIYIL HOUSE,
          MARAYIKKAL, KANNAARA.P.O, THRICHUR-680652.

          BY ADVS.
          M.P.ASHOK KUMAR
          BINDU SREEDHAR
          ASIF N


RESPONDENTS:
     1     NATIONAL HIGHWAYS AUTHORITY OF INDIA - NHAI
           REPRESENTED BY IT'S PROJECT DIRECTOR, NATIONAL HIGHWAY
           AUTHORITY OF INDIA, PALAKKAD, 310-A CHANDRA NAGAR
           EXTENSION, CHANDRA NAGAR, PALAKKAD-678007.

    2     THE PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF
          INDIA, PALAKKAD, 310-A CHANDRA NAGAR,
          EXTENSION CHANDRA NAGAR, PALAKKAD-678007.

    3     THRISSUR EXPRESSWAY LTD, PROJECT OFFICE, BEHIND APOLLO
          TYRES, PERAMBRA, THRISSUR-680689,
          REPRESENTED BY ITS PROJECT DIRECTOR.

          K.P.SATHEESAN (SR.)
          S.SREEKUMAR (SR.)
          P.MOHANDAS (ERNAKULAM)
          K.SUDHINKUMAR, SC.
          S.K.ADHITHYAN
          SABU PULLAN
          GOKUL D. SUDHAKARAN
          P.MARTIN JOSE
          P.PRIJITH
          THOMAS P.KURUVILLA
          R.GITHESH
          HARIKRISHNAN S.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 26513 OF 2021
                                2


                            JUDGMENT

The petitioners are stated to be owners of certain

extents of property which is adjoining NH - 544 at

Panniyankara area at Palakkad. They impugn the attempt of

the National Highway Authority of India (NHAI) to construct a

Medical Staff Room/Quarters in front of their property, next to

the National Highway and they assert that this is being done

in flagrant violation of the approved plan, namely Ext.P2.

They thus pray that the official respondents be ordered not to

make construction, as now proposed, in violation of Ext.P2

approved plan.

2. Sri.M.P.Ashok Kumar - learned counsel for the

petitioners, commenced his arguments asserting that any

construction to be embarked upon by the NHAI should comply

with the standards prescribed in the "Manual of

Specifications and Standards for Six Laning of Highways"

published by the Indian Roads Congress and that therefore,

the impugned construction is impermissible, because it is

done in total disregard to Ext.P2 approved plan. He

contended that the proposed construction has not been WP(C) NO. 26513 OF 2021

approved by any of the competent Authorities under the

aforementioned Manual of Specifications and thus that his

client is entitled to approach this Court and seek the reliefs

sought for.

3. In response, Dr.Satheesan, learned senior counsel -

instructed by Sri.Sudhin Kumar, learned standing counsel for

the NHAI, submitted that a counter affidavit, dated

04.12.2021; as also two memos dated 08.03.2022 and

16.03.2022, have been filed on record, explaining the true

state of affairs involved in this case. The learned senior

counsel submitted that the NHAI is proposing to construct the

Medical Staff Room to facilitate the operation of a Medical

Aid Unit on the opposite side of the road and that though it

would have been ideal for both these constructions to be side

by side, or next to each other, it has been rendered impossible

on account of the topography of the area in question. He

conceded that, as submitted by the petitioners, any

construction on the National Highway property will have to

confirm with the aforementioned "Manual of Specifications",

which expressly mandate the provision for a Rest Room to

facilitate the First Aid Booth, which has already been WP(C) NO. 26513 OF 2021

constructed. He then went on to tell me that, going by the

global positioning system coordinates in the marked area, it is

impossible to construct the Resting Area next to the Medical

Room and that the only apposite and suitable area for it is as

now identified on the other side of the Highway, which is not

very far away and which can be easily accessed through the

access points and "U turns" in the said Highway.

4. Dr.Satheesan thereafter showed me that, along with a

memo dated 08.03.2022, Annexure R1(a) has been placed on

record, which is a proceeding issued to the petitioners asking

them to produce necessary documents permitting them to

access their property from the Highway, which is required as

per Section 28 of the Control of National Highways (Land

and Traffic) Act, 2002. He asserted that the petitioners did

not produce any such and that, through a subsequent memo

dated 16.03.2022, Annexure R1(b) has been produced,

affirmatively stating why the proposed construction cannot be

made anywhere else other than the specified point. The

learned senior counsel, therefore, prayed that this writ

petition be dismissed.

5. In reply, Sri.M.P.Ashok Kumar submitted that his WP(C) NO. 26513 OF 2021

clients are aggrieved because, if the construction is made in

front of their property, they would lose their business and

would be a fatal blow to them, because they were already

dispossessed earlier when the National Highway was

constructed. He argued that, notwithstanding the fact that

his clients may not have obtained permission to access the

National Highway as of now, they certainly can apply for the

same in future and that the proposed construction would

cause them impediment in obtaining such benefit.

6. When I heard Sri.M.P.Ashok Kumar on the afore lines,

I asked him as to how his clients can claim locus to maintain

this writ petition, particularly because the construction

proposed is admittedly in the land owned by the NHAI. This

question was put to him because, Dr.Satheesan, learned

senior counsel, brought to my notice that the petitioners

cannot claim automatic access to the National Highway and

that, going by the "Manual of Specifications", every part of

the said Highway will have to have barriers erected to

prevent such unauthorised entry; and therefore, that even if

the proposed construction is not made, it would not be

possible for them to gain access to the Highway as a matter of WP(C) NO. 26513 OF 2021

right.

7. My query as afore was answered by Sri.M.P.Ashok

Kumar saying that though his clients have a separate access,

without touching the Highway, if the proposed construction is

allowed, it would cut off the visibility of their property, thus

rendering their business totally without steam.

8. Apart from the question of locus, an adscititious issue

that arises in this case is how the petitioners can maintain a

writ petition of this nature challenging construction in public

interest. However, pertinently, Sri.M.P.Ashok Kumar affirmed

that his clients are not acting in public interest, but only in

their own interests, since they fear the construction will

hamper their business in future.

9. The afore being so recorded, the crucial aspect that

this Court should now consider is whether the impugned

construction can be challenged by the petitioners on the

ground that it violates the "Manual of Specification", even if it

does. Since the petitioners do not espouse any public

interest, they must certainly show and establish prejudice

caused to them on account of the said construction. However,

interestingly, their case edificed on the allegation that the WP(C) NO. 26513 OF 2021

visibility of their property will be lost from the Highway and

that business would suffer, however, without explaining how.

10. That said, since the petitioners unequivocally agree

that they have a separate and distinct access to their

property, through which, they and their customers can reach

the business, I cannot fathom how they can even claim that

they would be put to prejudice on account of the construction,

particularly because, as rightly stated by the learned senior

counsel, they cannot seek an automatic entry into the

National Highway, except after obtaining necessary

permission from the competent Authority. Hence, the locus of

the petitioners on the basis of any prejudice being caused,

certainly cannot appeal to me.

11. That being so said, the specific argument of the

learned counsel for the petitioners is that the proposed

construction is in violation of Ext.P2 plan approved by the

competent Authority. Even if this be so, as long as the

competent Authority has permitted the construction in a

different area on account of various germane considerations, I

cannot comprehend how the petitioners can assail it,

particularly when they do not challenge the subsequent WP(C) NO. 26513 OF 2021

approvals granted for such construction. In the absence of

any such challenge being mounted, I cannot find favour to the

petitioners, especially because, as I have already seen above,

their case of prejudice do not obtain legs to stand.

12. This is more so because, as is expressly admitted,

the impugned construction is proposed in an area exclusively

owned by the NHAI, to which the petitioners have no access

and cannot claim any interest on. Therefore, their argument

that the sight to their property would be lost, will not by itself

provide them the ground to impel a claim against the same,

because it would be up to the NHAI to make any other

construction, which is suitable under the "Manual of

Specifications", in future.

13. For the afore reasons, I am certain that the

contentions of the petitioners cannot be granted imprimatur

by this Court and that consequently, this writ petition has to

fail.

Resultantly, this writ petition is dismissed; however,

leaving liberty to the petitioners to invoke any remedy that

may be available to them, including under the provisions of

the aforementioned Control of National Highways (Land and WP(C) NO. 26513 OF 2021

Traffic) Act, 2002; making it clear that if they seek an access

to the National Highway from their property, it shall be

acceded to in terms of law and subject to the parameters,

through a suitable area, notwithstanding any of the

observations in this judgment.

Sd/- DEVAN RAMACHANDRAN JUDGE stu WP(C) NO. 26513 OF 2021

APPENDIX OF WP(C) 26513/2021

PETITIONER EXHIBITS

Exhibit P1 THE PHOTOGRAPH SHOWING THE SSI UNIT OF THE 1ST PETITIONER AND THE HOTEL OF THE 2ND PETITIONER

Exhibit P2 TRUE COPY OF THE LAYOUT OF TOLL PLAZA ALONG WITH BUILDINGS APPROVED BY THE 1ST RESPONDENT

Exhibit P3 TRUE COPY OF THE COMMON JUDGMENT IN WP(C)12126 OF 2021 & WP(C) 12128 OF 2021 DT 12/08/2021.

Exhibit P4 THE PHOTOGRAPH SHOWING THE COMPLETED CONSTRUCTION OF THE MEDICAL UNIT, TRAFFIC AID POST ETC ON THE SIDE OF PALAKKAD TRICHUR.

Exhibit P5 TRUE COPY OF THE RELEVANT PAGE DEALING WITH EMERGENCY MEDICAL SERVICES IN MANUAL OF SPECIFICATIONS & STANDARDS FOR SIX LANING, CLAUSE 12.9

Exhibit P6 PHOTOGRAPH SHOWING THE AVAILABILITY OF LAND NEAR THE EXISTING MEDICAL STAFF ROOM.

Exhibit P7 A PHOTOGRAPH SHOWING THE VACANT AREA NEAR PETITIONER'S SHOP

Exhibit P7B PHOTOGRAPHS SHOWING THE VACANT AREA NEAR PETITIONER'S SHOP

Exhibit P8 THE PHOTOGRAPHS SHOWING THE AERIAL VIEW SHOWING THE EXISTING MEDICAL AID POST AND PETITIONER'S SHOP WP(C) NO. 26513 OF 2021

RESPONDENT EXHIBITS:

Exhibit R2(A) A SKETCH SHOWING THE LOCATION OF THE PROPOSED MEDICAL STAFF ROOM AND THE TOLL PLAZA.

Annexure R1(A) TRUE COPY NO.12277/PIU-PKD/NH-

544/BOT/KL3/1227 DATED 23/07/2021 ISSUED BY THE 2ND RESPONDENT.

Annexure R1(B) COMMUNICATION NO.ICT 600 TL KL-3 NHAI 4179 DATED 15/03/2022 ISSUED BY THE CONSULTANT.