Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH FRIDAY, THE 25TH DAY OF FEBRUARY 2022/6TH PHALGUNA, 1943 WP(C) NO. 27690 OF 2021 PETITIONER: AROOR CENTRAL SERVICE CO-OPERATIVE BANK LTD. NO. 617, AROOR P.O., CHERTHALA 688 534 REPRESENTED BY ITS SECRETARY BY ADVS. B.PRAMOD NAMITHA JYOTHISH RESPONDENT: THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT, NATIONAL HIGHWAYS AUTHORITY OF INDIA, VII/511-B, NEYTHELI-MAVELIPURAM ROAD, KAKKANAD, ERNAKULAM DISTRICT 682 030 BY ADVS. K.P.SATHEESAN (SR.) P.MOHANDAS (ERNAKULAM) K.SUDHINKUMAR S.K.ADHITHYAN SABU PULLAN GOKUL D. SUDHAKARAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.02.2022, ALONG WITH RP.72/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :2:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH FRIDAY, THE 25TH DAY OF FEBRUARY 2022/6TH PHALGUNA, 1943 RP NO. 72 OF 2022 AGAINST THE ORDER DATED 17.12.2021 IN WP(C) 27690/2021 OF HIGH COURT OF KERALA REVIEW PETITIONER/RESPONDENT: THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT, NATIONAL HIGHWAYS AUTHORITY OF INDIA, VII/511-B, NEYTHELI-MAVELIPURAM ROAD, KAKKANAD, ERNAKULAM-682 030. BY ADVS. K.P.SATHEESAN (SR.) P.MOHANDAS (ERNAKULAM) K.SUDHINKUMAR S.K.ADHITHYAN SABU PULLAN GOKUL D. SUDHAKARAN RESPONDENT/PETITIONER: AROOR CENTRAL SERVICE CO-OPERATIVE BANK LTD. NO. 617, AROOR P.O., CHERTHALA-688 534, REPRESENTED BY ITS SECRETARY BY ADVS. SRI. B.PRAMOD SMT. NAMITHA JYOTHISH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.02.2022, ALONG WITH WP(C).27690/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :3:
N. NAGARESH, J.
````````````````````````````````````````````````````````````` W.P.(C) No. 27690 of 2021 and R.P. No.72 of 2022 ````````````````````````````````````````````````````````````` Dated this the 25th day of February, 2022
JUDGMENT
The petitioner in W.P.(C) No.27690/2021 is a Service Co-operative Bank. The Bank has filed a writ petition seeking to command the respondent to forthwith remove the metal beam crash barrier constructed along the western boundary of the NH 66 abutting the petitioner's property covered by Ext.P1 tax receipt. RP No.72/2022 has been filed by the respondent-Project Director in W.P.(C) No.27690/2021 against the interim order passed by this Court on 17.12.2021.
2. In W.P.(C) No.27690/2021, the petitioner-Bank stated that they have 16 Ares and 19 m 2 of land in Aroor Village, which lies on the western side of NH 66 at Aroor :4: Temple Junction. The property is abutting NH 66. The Bank has constructed a row building consisting of five shop rooms
which faces NH 66. The head office of the Bank is functioning in another building behind the said shopping complex. The land between the shopping complex and the western boundary of the National Highway is meant to be used as parking space for customers coming to the shops and in the petitioner-Bank.
3. On 25.10.2021, some workers employed by the
respondent-Project Director under the National Highways Authority of India erected a metal beam crash barrier along the western side of the National Highway abutting the property owned by the petitioner. The metal beam crash barrier completely blocks the access to the shopping complex and to the petitioner-Bank. The barrier causes immense difficulty to the shop owners and the petitioner- Bank. The respondent has erected the metal beam crash barrier as a measure of preventing accidents since the locality is categorised as black spot. :5:
4. The petitioner states that the structure is not going
to help prevention of accidents in the area. It will only prevent the use of the parking space for the customers coming to the shopping complex. The petitioner is running a Neethi Store selling provision and groceries sourced from Consumerfed. People from lower strata of the society are the consumers of the Neethi Store. Due to the metal beam crash barrier, the Neethi Store is not able to make available merchandise from Consumerfed and its functioning has come to a standstill.
5. The learned counsel for the petitioner argued that
the putting up of the metal beam crash barrier in front of the petitioner's building is illegal and arbitrary. It deprives the petitioner of its rights to put to use the property and to have beneficial enjoyment thereof. The petitioner being owner of property abutting a public road, it has the right to enter the road from each and every point along its boundary. The structure will not in any way help the intended object of prevention of occurrence of accidents. The petitioner :6: therefore prays that the respondent be directed to remove the metal beam crash barrier.
6. When this writ petition came up for hearing on
17.12.2021, this Court passed an interim order directing the respondent to provide a 5 metre wide access to the property owned by the petitioner, by removing metal beam crash barrier provisionally. The respondent filed RP No.72/2022, aggrieved by the said interim order dated 17.12.2021.
7. Respondent in his counter affidavit stated that the National Highways Authority issued a communication to all the Regional Officers on 23.12.2019 showing the black spots
in the National Highway. The area from Aroor Bypass to Aroor Temple in Alappuzha District is one of the most accident prone area. 264 black spots have been identified in the State of Kerala and Aroor Bypass to Aroor Temple area is one among them. During the years 2016, 2017 and 2018, there occurred 164 accidents in this area.
8. After identifying the black spots, the National Highways Authority entrusted the Road Safety Consultant to :7: make a road safety audit, detailed survey, investigation, preparation of DPR, etc. The Consultant, after detailed study and meticulous evaluation, gave Ext.R1(c) report. The consultancy also suggested measures to be adopted with a specific diagram. The distance between Aroor Bypass to
Aroor Temple Junction is 500 metres. Ext.R1(d) diagram suggested to erect a metal beam crash barrier for a length of 60 metres, in order to protect the public from accidents.
9. It is based on the study report that a metal beam
crash barrier was erected there. The barrier is not exclusively on the front side of the petitioner's property. It extends to 60 metres as suggested in the study report. There is sufficient access for the petitioner to reach their buildings. The petitioner's building is facing an intersecting road. The intersecting road comes to the National Highway and take deviation towards right and left. This is the main cause for accident at that junction. The learned counsel for the respondent pointed out that under Section 28 of the Control of National Highways (Land and Traffic) Act, 2002, no person :8:
shall have a right of access to a highway either through any vehicle or on foot by a group of five or more persons except as permitted by the Highway Administration either generally or specifically in the manner specified under Section 29. In view of the above, it has to be held that the metal beam crash barrier at the junction is a safety measure taken in the larger public interest and based on the national policy of Government of India. The writ petition is therefore liable to be dismissed.
10. I have heard the learned counsel for the petitioner and the learned Senior Counsel assisted by the counsel for the respondent.
11. The National Highways Authority of India has
constructed a 60 metre long metal beam crash barrier on the side of NH 66 near Aroor Temple Junction. According to the respondent, pursuant to the memorandum issued by the Government of India, the National Highways Authority identified black spots in the national highways. The Aroor Bypass to Aroor Temple in Alappuzha District was found to
:9: be one of the most accident prone areas. The National Highways Authority entrusted a road safety consultant,
conducting of road safety audit. The Consultant has submitted Ext.R1(c) Report. In the area in question, the Consultant suggested measures to be adopted. It was
suggested to have a metal beam crash barrier of a length of 60 metres in front of the petitioner's building.
12. Ext.R1(b) is a report of analysis of black spots on
national highways 2015-2018 based on data received. Ext.R1(b) shows that the Aroor Bypass to Aroor Temple Junction area in Alappuzha District is Serial No.2 in the black spots. In the year 2016, there were 71 accidents in this area. In the year 2017, there were 34 accidents and in the year 2018, there were 59 accidents. Ext.R1(c) short-term measures report made by the Road Safety Auditor/Consultant engaged by the National Highways Authority found that there are major safety issues like no speed limit, sign board, no rumble strips on project road, no studs along the road marking side, no warning signboards, : 10 : no zebra crossing or pedestrian crossing, signal is not functioning and no medium storage lane in this area. The daily total vehicles were found as 90103 and total PCU is 83683. Peak hour traffic is 5878 PCUs. Ext.R1(d) diagram provided by the Consultant required installation of a metal beam crash barrier in the area.
13. Which are the accident prone areas on the
highway, what are the measures to be taken at black spots, etc. are matters to be considered and decided by technical experts having specialised knowledge in the subject. The National Highways Authority of India entrusted an audit in this regard engaging a Road Safety Consultant. It is based on the recommendation of the said Road Safety Consultant that the metal beam crash barrier of 60 metres length has been erected in front of the shop building of the petitioner. As the decision taken is by the respondent on the basis of the recommendation made by a competent Road Safety Consultant, this Court ordinarily should not interfere in the matter, unless of course the report and recommendations of
: 11 : the Consultant is found to be palpably wrong. This Court therefore do not find any thing wrong in the recommendations so made. The recommendations is made and decision to install a metal beam crash barrier was taken in the larger public interest.
14. This Court, however, finds from Ext.P9
photographs produced by the petitioner that along the 60 metre metal beam crash barrier erected at the instance of the respondent, two openings, one larger and second smaller, have been made. Neither of the openings are in the middle of the barrier. According to the petitioner, the larger opening is given in front of an office of a political party. On a pointed question, the learned Senior Counsel submitted that when the NHAI started construction of the metal beam crash barrier, a group of people came and obstructed the construction demanding an opening at that point and the NHAI had to yield to their demand.
15. This Court finds that the action of the respondent in allowing opening across the metal beam crash barrier : 12 : solely for the reason that a mob demanded the same, is
unacceptable. The petitioner is a Service Co-operative Society running a Neethi Store in the shop building. Large number of citizens, most of them from the lower strata of the Society, are frequenting the Store. If at all an opening across the metal beam crash barrier is necessary to reduce inconvenience to public, it should have been made in the middle of the barrier or at the point where there is a
pedestrian/Zebra crossing. Making an unplanned/ undesigned opening of the metal beam crash barrier along a National Highway which is found to be a black spot, at the whims and fancies of any group of people who tend to take law into their hands, cannot receive judicial approval.
16. In the facts and circumstances of the case, the writ petition is disposed of directing the respondent to strictly
implement the recommendation of the Road Safety Consultant as regards the metal beam crash barrier. If the respondent feels that any departure from the original plan of seamless erection of a 60 metre metal beam crash barrier is : 13 :
required and an opening across the barrier is required in public interest, such opening shall be at a point most convenient to all citizens using properties abutting the NH in this 60 metre location or at a place most suitable in traffic safety point of view. The respondent is directed to take a decision in this regard within a period of two months and implement the decision within a further period of one month.
In view of the afore final judgment in W.P.(C) No.27690/2021, the interim order dated17.12.2021 merges
with the judgment. RP No.72/2022 against the interim order
dated 17.12.2021 becomes infructuous and RP is therefore dismissed. Sd/- N. NAGARESH, JUDGE aks/23.02.2022 : 14 : APPENDIX OF WP(C) 27690/2021 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE BASIC TAX RECEIPT DATED 10-08-2021. Exhibit P2 TRUE COPY OF THE RECEIPTS DATED 29-09- 2021 SHOWING PAYMENT OF PROPERTY TAX Exhibit P3 TRUE COPY OF THE PHOTOGRAPHS OF THE METAL BEAM CRASH BARRIER PUT UP IN FRONT OF THE PETITIONER'S BUILDING
Exhibit P4 TRUE COPY OF THE REPORT PUBLISHED IN
MALAYALA MANORAM DAILY DATED 28-10Exhibit P5 TRUE COPY OF THE REPRESENTATION DATED
26-10-2021 SUBMITTED BY THEPETITIONER. EXHIBIT P6 A TRUE COPY OF THE GUIDELINES DATED 26.06.2020 ISSUED BY THE MINISTRY OF RAOD TRANSPORT AND HIGHWAYS EXHIBIT P7 PHOTOGRAPHS OF THE ACCESS PROVIDE TO THE OFFICE OF THE CPI(M) Exhibit P8 A TRUE COPY OF THE GUIDELINES DATED 01.01.2020 ISSUED BY THE MINISTRY OF ROAD TRANSPORT AND HIGHWAYS. Exhibit P9 PHOTOGRAPHS OF THE PHOTOGRAPH SHOWING THE AERIAL VIEW OF THE AROOR TEMPLE JUNCTION. Exhibit P10 PHOTOGRAPH OF THE VEHICULAR ACCESS PROVIDED AT ON THE NORTHERN APPROACH ROAD TO THE BRIDGE AT KUTHIATHODU. Exhibit P11 PHOTOGRAPH OF THE VEHICULAR ACCESS PROVIDED AT ON THE NORTHERN APPROACH ROAD TO THE BRIDGE AT KUTHIATHODU. RESPONDENT EXHIBITS Exhibit R1(a) TRUE COPY OF THE OFFICE MEMORANDUM ISSUED BY GOVERNMENT OF INDIA DATED 23-12-2019. Exhibit R1(b) TRUE COPY OF THE NOTIFICATION ISSUED BY THE NATIONAL HIGHWAYS AUTHORITY OF : 15 : INDIA TO ALL THE REGIONAL OFFICES DATED 23-12-2019. Exhibit R1(c) TRUE COPY OF THE REPORT GIVEN BY THE ROAD SAFETY CONSULTANT NAMELY SRI INFOTEC, HYDERABAD IN JANUARY 2021. Exhibit R1(d) TRUE COPY OF THE DIAGRAM GIVEN ALONG WITH EXT.R1(C). Exhibit R1(e) TRUE COPY OF THE PHOTOGRAPH SHOWING THE ERECTION OF METAL BEAM CRASH BARRIER' AT AROOR JUNCTION. Exhibit R1(f) TRUE COPY OF THE PHOTOGRAPH SHOWING THE PARKING OF VEHICLE IN BETWEEN THE PETITIONER'S BUILDING AND THE METAL BEAM CRASH BARRIER.