Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL WEDNESDAY, THE 20TH DAY OF SEPTEMBER 2023 / 29TH BHADRA, 1945 WP(C) NO. 38162 OF 2015 PETITIONERS:
1 DR S HABEEB AGED 74 YEARS S/O SICKANDAR, MEDICAL PRACTITIONER, RESIDING AT T.C.5/2508, GOLF LINKS ROAD, KOWDIAR, THIRUVANANTHAPURAM, PIN:695003, THIRUVANANTHAPURAM TALUK. 2 K.K.MATHAI AGED 66 YEARS S/O KUNJU, NAINAN, BUSINESS, RESIDING AT ALUMMOOTTIL HOSUE, PIDAVOOR, PATHANAPURAM TALUK. 3 K.MAMACHAN AGED 62 YEARS S/O KUNJU NAINAN, BUSINESS, ALUMMOTTIL HOSUE, PIDAVOOR, PATHANAPURAM TALUK AND NOW AT ALUMMOOTTIL BANKERS, 2ND FLOOR, KARIMPINAL ARCADE, STATUE, THIRUVANANTHAPURAM. BY ADVS. SRI.V.AJAKUMAR, SRI.T.M.CHANDRAN, SRI.SIDHARTH A.MENON
RESPONDENTS:
1 THE NATIONAL HIGHWAYS AUTHORITY OF INDIA REPRESENTED BY ITS CHAIRMAN, G.5 & 6, SECTOR 10, DWARAKA, NEW DELHI-110 075. 2 THE DGM PROJECT DIRECTOR NATIONAL HIGHWAY AUTHORITY OF INDIA, KALAMASSERY, KOCHI-683104. 3 UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, NEW DELHI, PIN:11001. 4 MS. KOCHI AROOR TOLLWAYS P LTD. REPRESENTED BY ITS MANAGING DIRECTOR, HAVING ITS OFFICE AT TOLL PLAZA, N.B. BY-PASS KUMBALAM P.O., KUMBALAM, PIN:682506. BY ADVS. SMT.I.SHEELA DEVI, SMT.VANDANA P., CGC,SRI.K.S.HARIDAS SMT.VANDANA P. CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 38162 OF 2015
JUDGMENT
Petitioners are the absolute owners in possession of 97.40 ares (240.670 cents) comprised in Re-survey Nos.203/7, 204/1, 204/2 and having National Highway access on its western boundary to the length of about 42.1 meters as shown in the plan attached to the sale
deed No.3284 of 2005. On 28.11.2015, it is realized that the 4 th respondent, M/s Kochi Aroor Tollways (P) Ltd., has digged up certain pits on the western side of the property in between the above said property and the Aroor - Edappally N.H Byepass. Immediately on 30.11.2015 representation was submitted to the DGM and Project Director, National Highway and has issued reply on 3.12.2015 stating that the N.H Bye-pass in front of the said property was
entrusted to the OMT Concessionaire, the 4 th respondent. petitioners submitted request to stop the illegal construction as it allegedly blocked the Highway access to the property of the petitioners. It is in that background, the petitioners have approached this court with the following prayers:
a. To issue a writ of mandamus/prohibition or any other writ, order of direction directing the respondents from not effecting any constructions on the western side of the petitioners property of 97.40 ares (240.670 cents) comprised in Block No.15 in Re.Sy. Nos 204/1, 204/2, 204/6 and 203/7 of Kumbalam Village which situated on the eastern side of Aroor- Edappally NH Bye-pass (NH No.66) at Ch.Km 356.200 blocking the NH Bye-pass access to the above said property of the petitioners and without obtaining any valid development permit and building permit as per the provisions of the Kerala Panchayath Building Rules 2011 from the local authority Kumbalam Grama Panchayath.
2. On the other hand, respondents opposed the
aforementioned prayer on the ground that the agreement condition of the Concessionaire were bound to provide basic amenities like medical aid posts, traffic aid posts, drinking water facility and toilet blocks etc near the toll plaza at the available space in the Right of Way. The concessionaire started the work on 21.11.2015. The request of the petitioners was rejected after giving opportunity of hearing on 14.12.2015 on the ground that the construction is on public interest and the land is Central Government property. Petitioners have not come with the Court
with clean hands as the building line of National Highway construction is 5 m away from the existing gate and there was no blockage of free passage to the property due to the above construction. But later on, it was demolished as the gate was intentionally installed by the petitioners on the southern side of the compound with a malafide intention to show that there is blockage of access. Petitioners were never given any permission for access by the Highway Administration and prayed for dismissal of the writ petition.
3. I have heard the learned counsel for the parties and
appraised the paper book. In order to establish a prima facie case, in support of the prayer as extracted above, petitioners in the writ petition are required to place on record sketch plan, photograph or any information under the RTI Act to establish the case. None of the aforementioned conditions have been sufficed. An attempt was made to show that there was a blockage for the purpose of carving out the aforementioned posts, as referred to herein. The role of Panchayath does not come into being, owing to the vesting of the land as per the provisions of Section 4 of the Highway Authority Act, with the Central Government. Even otherwise, when the writ petition was filed, there was no such interim stay. The cause of action accrued in favour of the petitioners, no longer survives. Writ petition sans merit. Accordingly, dismissed. Sd/- sab AMIT RAWAL JUDGE APPENDIX OF WP(C) 38162/2015 PETITIONER EXHIBITS
EXHIBIT P1: TRUE COPY OF THE SALE DEED NO.3284/2005 OF S.R.O., MARADU DATED 20.6.2015. EXHIBIT P2: TRUE COPY OF THE LAND TAX RECEIPT DATED 11.8.15. EXHIBIT P3: TRUE COPY OF THE LETTER DATED 30.11.2015. EXHIBIT P4: TRUE COPY OF THE LETTER DATED 3.12.2015. EXHIBIT P5: TRUE COPY OF THE CLARIFICATION LETTER DATED 7.12.2015. EXHIBIT P6: TRUE COPY OF THE LETTER DATED 7.12.2015.