Kerala High Court
Anilkumar C vs Union Of India on 14 November, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
W.P(C) No.40109/2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 14TH DAY OF NOVEMBER 2024/23RD KARTHIKA, 1946
WP(C) NO. 40109 OF 2022
PETITIONERS:
1 ANILKUMAR C,
AGED 62 YEARS
S/O SANKARAN NAIR, AS NIVAS, PALAM THALAKKAL
PARAMBU, MOKAVOOR, ERANHIKKAL (PO),
KOZHIKODE - 673303.
2 CHANDU P,
AGED 61 YEARS
S/O APPU, "SREELAKSHMI", VELLAMKUR, MOKAVOOR,
ERANHIKKAL (PO), KOZHIKODE - 673303.
3 RAHUL V.K,
AGED 31 YEARS
S/O BALARAMAN, VELLAMKUR HOUSE, MOKAVOOR,
ERANHIKKAL (PO), KOZHIKODE - 673303.
4 SANDEEP KRISHNAN K,
AGED 40 YEARS
S/O M.C. GANGADHARAN NAIR, ANJALI, MOKAVOOR
ERANHIKKAL (PO), KOZHIKODE - 673303.
BY ADVS.
V.V.SURENDRAN
P.A.HARISH
ASWATHI C.
W.P(C) No.40109/2022
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RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY SECRETARY, MINISTRY OF ROAD
TRANSPORT AND HIGHWAY, NEW DELHI - 110001.
2 NATIONAL HIGHWAY AUTHORITY OF INDIA
REPRESENTED BY PROJECT DIRECTOR, NO. 34/487 A,
LOTUS HOUSE, PROVIDENCE COLLEGE ROAD, MALAPARAMBA,
KOZHIKODE - 673009.
3 THE CHIEF ENGINEER (NH),
PUBIC WORKS DEPARTMENT, PUBLIC OFFICE COMPLEX,
MUESEUM P.O., THIRUVANANTHAPURAM-695033.
4 THE SUPERINTENDING ENGINEER,
OFFICE OF THE SUPERINTENDING ENGINEER, PWD, NH
NORTH CIRCLE, PWD COMPLEX, MANANCHIRA,
KOZHIKODE - 673001.
5 THE GOVERNMENT OF KERALA,
REPRESENTED BY SECRETARY (PUBLIC WORKS)
SECRETARIAT, THIRUVANANTHAPURAM - 695001.
6 THE DISTRICT COLLECTOR,
COLLECTORATE, CIVIL STATION P.O,
KOZHIKODE - 673020.
BY ADV VISHNU PRADEEP, CGC
OTHER PRESENT:
ADV. SMT.DEEPA V., GP
SMT.K.L.LAKSHMI RANI (ADVOCATE COMMISSIONER)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 22.10.2024, THE COURT ON 14.11.2024 DELIVERED THE
FOLLOWING:
W.P(C) No.40109/2022
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JUDGMENT
This writ petition has been filed to give a direction to the
respondents to provide a proper underpass across the National
Highway at Mokavoor in the bus route Kunduparamba -Eranhikkal
at Kozhikode. There is also a prayer to issue a writ of mandamus
directing the respondents to consider Ext.P3 representation
requesting to provide an underpass at Mokavoor as mentioned
above.
2. The petitioners are residents of Mokavoor at Kozhikode
Corporation. The 28 km long Vengalam-Ramanattukara Bypass
taken over by the National Highway Authority of India (NHAI) and
renamed as NH66 runs through the Mokavoor area dividing the
same into two, i.e., on either side of NH66. The petitioners are
residing on the northern side of the National Highway. The
widening of the highway to make it 6 lane traffic is steadily
progressing. It is alleged that the old existing city road is at a
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lower ground level and the Highway is envisaged at a high level
about 15 to 20 feet above the city road. It is further alleged that
more than 2000 old residents of Mokavoor area have from time
immemorial been using Kunduparamba - Mokkavoor - Eranhikkal
road for all their daily activities and several stage carriages are
plying from Mokavoor to Kunduparamba and to Kozhikode town
cutting across the National Highway. The residents of this area
are solely dependent on this route to come to and fro daily.
According to the petitioners, therefore, underpass as suggested
by them at Mokavoor is an absolute necessity. It is their further
grievance that instead of providing underpass at Mokavoor bus
stop, the authorities have provided very narrow underpasses in
the bypass at comparatively less important locations. It is in
these circumstances, they have approached this court with the
above mentioned prayers.
3. The respondents 1 and 2 filed counter affidavit
opposing the prayers. It is contended that the representation of
the petitioners for construction of the underpass at Mokavoor was
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considered by them and it was found that it was not at all feasible
as per the existing site conditions. According to them, if an
underpass is constructed at the place where the city road meets
the National Highway, it will not have the minimum vertical
clearance of 3.5 metres. It is further contended that as per Clause
2.13.4 of the Indian Roads Congress, 2019, an underpass
recommended at a distance of 2 kms is not practical in a densely
populated State like Kerala. It is also contended that there are
proposals for construction of underpass on either side of the
demanded location i.e., one underpass at Mokavoor (Kampuram
Bhagavathi temple) which is at a distance of 760 metre north and
another underpass at Malikadavu at a distance of 690 metres
south of the demanded location and that public can make use of
these cross road structures for travelling from one side to the
other side of the Highway.
4. I have heard Sri.P.A..Harish, the learned counsel for
the petitioners, Sri.Vishnu Pradeep, the learned Central
Government Counsel for the respondent Nos.1 and 2 and
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Smt.Deepa V., the learned Government Pleader.
5. An Advocate Commissioner was deputed at the
instance of the petitioners to inspect the site and the
Commissioner submitted a report and sketch.
6. The learned counsel for the petitioners reiterated the
averments contained in the writ petition. The learned counsel
further submitted that NHAI was required to consider the
hardship and suffering by the people of the locality including the
petitioners and to provide underpass at the site demanded. The
learned counsel also submitted that the proposal for construction
of two underpasses on the northern and southern side of the
demanded location would not serve any purpose. On the other
hand, the learned Central Government Counsel for the 2 nd
respondent submitted that the request of the petitioners for
construction of an underpass at Mokavoor was already examined
through an independent Engineer and it was not found feasible.
The learned Central Government Counsel further submitted that
one among the two underpasses proposed on the northern and
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southern side of the demanded location is completed and the
other one is about to complete. The petitioners can very well
utilize the underpasses which is situated just 730 metres away
from the demanded location for access to the other side. The
Counsel also submitted that convenience cannot be equated as
conferring the right and merely because the petitioners have
inconvenience in travelling to the other side of the National
Highway, it cannot be equated to denying access.
7. The records would show that the representation
submitted by the petitioners was already examined and
considered by the 2nd respondent. The feasibility and viability of
providing an underpass at Mokavoor was examined through an
independent Engineer and Ext.R2(a) report was obtained. In the
said report, it was stated that as per the approved Plan and
Profile of Main Carriageway and Service Road, sufficient vertical
clearance is not available at the demanded location for providing
an underpass. The report shows that the vertical clearance
available is only 1.096 metre and in order to provide an LVUP
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(Light Vehicle Underpass), a minimum vertical clearance of 3.50
metre including slab thickness is required. It is further reported
that for making a minimum vertical clearance of 3.50 metre for
providing an underpass, either the finished road level of the Main
Carriageway has to be raised or the finished road level of service
road has to be lowered to the level of natural ground level. But,
lowering of profile of service road is not possible as there are
chances of flooding during rainy season. It is also against Manual
Standards and Codal specifications. In Ext.R2(a), the Engineer
reported that the underpass at Mokavoor is not at all feasible. It
is also specifically stated that there were proposals for
construction of underpass on either side of the demanded
location i.e., one at a distance of 760 metre on the north and
another at a distance of 690 metre on the south. It is submitted
by the learned Central Government Counsel for the 2 nd
respondent that one among those two underpasses is completed
and the other one is about to complete. The petitioners and
public can make use of these underpasses for travelling from one
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side to the other side of the Highway. It is also relevant to note
that the service road on the either side of the main Highway are
by-directional. That apart, as per clause 2.13.4 of the Indian
Roads Congress, 2019, underpass is not recommended at a
distance of 2 kms. As stated already, there are nearby
underpasses at a distance of 760 metre towards Vengalam and
690 metres towards Ramanattukara side.
8. NHAI is a professionally managed statutory body
having expertise in the field of development and the
maintenance of the National Highways. The NHAI through the
experts considered the request of the petitioners to provide an
underpass at Mokavoor and the same has been found to be not
feasible. They chose to construct two underpasses at a distance
of 760 metre towards north and 690 metre towards south after
thorough study by experts in different fields. The petitioners
residing adjacent to the National Highway may claim access to
the other side. Their demand cannot be extended to vest a right
in favour of the residents for access from the points of their
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choice. The experts of NHAI explored the various possibilities of
providing underpass at various points and decided to construct
two underpasses mentioned above. The construction of those
underpasses is almost over also. Thus, any interference at this
stage will have serious implications. Merely because the
petitioners have inconvenience to travel to the other side of the
National Highway cannot be equated to denying access and form
the basis for directing the NHAI to provide an additional
underpass at the place as demanded by the petitioners. It is trite
that the scope of judicial review in the matter of this nature is
very limited. In Union of India v. Kushala Shetty and Others
[(2011) 12 SCC 69], the Supreme Court held 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 the development of infrastructure in the
country, are entrusted to experts in the field of
highways. It comprises of persons having vast
knowledge and expertise in the field of highway
development and maintenance. NHAI prepares and
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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 subserve the larger public interest.
In such matters, the scope of judicial review is very
limited."
For the reasons stated above, I find no reason to give a
direction to the respondents to consider the request of the
petitioners to provide an underpass at Mokavoor. The writ
petition fails and it is accordingly dismissed.
Sd/-
DR.KAUSER EDAPPAGATH, JUDGE
Rp
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APPENDIX OF WP(C) 40109/2022
PETITIONER'S EXHIBITS
Exhibit P1 A TRUE PHOTOCOPY COPY OF THE DRAWING
SHOWING THE LIE AND OTHER NECESSARY DATA
FOR THIS CASE, INCLUDING THE EXISTING
LOCAL ROAD NETWORK THROUGH WHICH THE
LOCAL CITY BUSES ARE PLYING
Exhibit P2 A TRUE COPY OF THE COMMUNICATION
RECEIVED FROM THE MANAGER NHAI DATED
09.09.2017 BY RESIDENT OF MOKAVOOR
Exhibit P3 A TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONERS TO THE 4TH
RESPONDENT DATED 27.11.2022.
RESPONDENT EXHIBITS
Exhhibit R2(a) TRUE COPY OF THE LETTER NO. 744 DATED
27/12/2022
PETITIONER EXHIBITS
Exhibit P4 A TRUE COPY OF THE FEASIBILITY STUDY
CONDUCTED BY M/S. THINK LAND NELLICODE,
KOZHIKODE FOR A LIGHT VEHICLE UNDERPASS
DATED 07.03.2023
Exhibit P5 A TRUE COPY OF THE FEASIBILITY STUDY
CONDUCTED BY M/S THINK LAND NELLICODE
DATED 07.03.2023
RESPONDENT ANNEXURES
Annexure 1 TRUE COPY OF THE WORK MEMO DATED
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02.07.2023 SUBMITTED BY THE PETITIONERS
Annexure 2 TRUE PHOTOGRAPH OF THE ROAD LEADING TO
NATIONAL HIGHWAY AT MOKAVOOR UNDERPASS
(KAMBURATH TEMPLE JUNCTION)
Annexure 3 TRUE PHOTOGRAPH OF THE UNDERPASS UNDER
CONSTRUCTION AT MOKAVOOR
Annexure 4 TRUE PHOTOGRAPH OF THE EXISTING ROAD
LEADING TO THE UNDERPASS AND THE
UNDERPASS UNDER CONSTRUCTION AT
AMBALAPPADI
Annexure 5 TRUE PHOTOGRAPH SHOWING THE PRESENT
STAGE OF N.H. WIDENING WORK AT
AMBALAPPADI
Annexure 6 TRUE PHOTOGRAPH OF ROAD LEADING TO
UNDERPASS, SERVICE ROAD AND THE
UNDERPASS AT POOLADIKUNNU
Annexure 7 TRUE PHOTOGRAPH OF THE EXISTING ROAD AND
THE UNDERPASS AT MAAKUZHI
Annexure 8 TRUE PHOTOGRAPH OF THE MAKKANCHERI
UNDERPASS AND THE ROAD LEADING TO IT
Annexure 9 TRUE PHOTOGRAPH OF THE UNDERPASS AT
PUTHUKATTIL KADAVU
Annexure 10 TRUE PHOTOGRAPH OF THE ROAD LEADING TO
PUTHUKATTIL KADAVU UNDERPASS
Annexure 11 TRUE PHOTOGRAPH OF KACHERI UNDERPASS
Annexure 12 TRUE PHOTOGRAPH OF THE PADANNAKALAM
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UNDERPASS AND EXISTING ROAD LEADING TO
IT
Annexure 13 TRUE PHOTOGRAPH OF PULIKALKADAVU
UNDERPASS AND THE EXISTING ROAD LEADING
TO IT
Annexure 14 TRUE PHOTOGRAPH OF THE NATIONAL HIGHWAY
AND ROAD LEADING TO IT AT THE PROPOSED
SITE OF MAVILIKKADAVU UNDERPASS
Annexure 15 TRUE PHOTOGRAPH OF THE MAVILIKKADAVU 2
UNDERPASS
Annexure 16 TRUE PHOTOGRAPH OF MAVILIKKADAVU (2) AND
(3) UNDERPASSES
Annexure 17 TRUE PHOTOGRAPH OF THADAMBATTUTHAZHAM
UNDERPASS
Annexure 18 TRUE PHOTOGRAPH OF VEDA VYASA UNDERPASS
Annexure 19 TRUE PHOTOGRAPH OF KUNIYIMMAL THAZHAM
JUNCTION SHOWING VEHICULAR TRAFFIC
ENTERING ERANHIKKAL-
MOKAVOOR–KUNDUPARAMBA ROAD FROM
THE N.H.
Annexure 20 TRUE PHOTOGRAPH OF KUNIYIMMAL THAZHAM
JUNCTION SHOWING VEHICULAR TRAFFIC
ENTERING ERANHIKKAL-
MOKAVOOR–KUNDUPARAMBA ROAD FROM
THE N.H.
Annexure 21 TRUE PHOTOGRAPH SHOWING ROAD
(ERANHIKKAL-MOKAVOOR-KUDUPARAMBA ROAD)
CONNECTING NATIONAL HIGHWAY AT
KUNIYIMMAL THAZHAM JUNCTION FROM
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KUNDUPARAMBA SIDE
Annexure 22 TRUE PHOTOGRAPH OF THE ROAD APPROACHING
FROM MOKAVOOR SIDE JOINING NATIONAL
HIGHWAY AT KUNIYIMMAL THAZHAM JUNCTION
Annexure 23 TRUE PHOTOGRAPH OF KUNIYIMMAL THAZHAM
BUS STOP
Annexure 24 TRUE PHOTOGRAPH THE NATIONAL HIGHWAY AND
SERVICE ROAD AT KUNIYIMMAL THAZHAM
JUNCTION
Annexure 25 TRUE PHOTOGRAPH OF KUNIYIMMAL THAZHAM
JUNCTION SHOWING ROAD TOWARDS
KUNDUPARAMBA
Annexure 26 TRUE PHOTOGRAPH OF THE PROPOSED BRIDGE
SITE AT CHITTADI KADAVU
Annexure 27 TRUE PHOTOGRAPH OF THE HEALTH CENTER BUS
STOP AT MOKAVOOR
Annexure 28 TRUE PHOTOGRAPH OF COMMERCIAL AREA OF
KUNDUPARAMBA
Annexure 29 SKETCH SHOWING THE DETAILS OF
UNDERPASSES AND THE NATIONAL HIGHWAY
INSPECTED BY COMMISSIONER DURING SITE
VISIT
Annexure 30 SKETCH SHOWING THE DETAILS OF
UNDERPASSES AND THE NATIONAL HIGHWAY
INSPECTED BY COMMISSIONER DURING SITE
VISIT
