Disposed

The Pudukkad Samagra Vikasana Samithy v. the Union of India

Kerala HC3 Nov 2021WP(C)/26572/2018

Case brief

AI extract

What is this about?

Incomplete highway works and encroachments prompted directions to the State and local authorities to remove obstructions and facilitate vacant possession of acquired land. NHAI was directed to expedite its study and decide on acquisition for six-laning and the Pudukkad underpass.

What did the court decide?

State and local authorities directed to remove encroachments and facilitate vacant possession; NHAI directed to expedite its study and acquisition decision for six-laning and the Pudukkad underpass.

The Pudukkad Samagra Vikasana Samithy Vs the… — Municipal and Town Planning | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR &

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 3^RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943

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WP(C) NO. 26572 OF 2018

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PETITIONERS:

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1 THE PUDUKKAD SAMAGRA VIKASANA SAMITHY REP. BY ITS PRESIDENT,JOBY.A.PULIKKAN, ADVOCATE, AGED 50 YEARS, S/O. ANTO, PULIKKAN HOUSE, PULIKKAN ROAD, PUDUKKAD, THRISSUR DISTRICT- 680 301

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2 JOBY.A.PULIKKAN, ADVOCATE, AGED 50 YEARS, S/O. ANTO, PULIKKAN HOUSE, PULIKKAN ROAD, PUDUKKAD, THRISSUR DISTRICT- 680 301

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BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.K.D.SREEVISAKH

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RESPONDENTS:

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1 THE UNION OF INDIA REP.BY SECRETARY TO THE GOVERNMENT, MINISTRY OF ROAD TRANSPORT & HIGHWAYS,TRANSPORT BHAVAN,1, PARLIAMENT STREET, NEW DELHI- 110 001

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2 THE NATIOANL HIGHWAYS AUTHORITY OF INDIA G 5&6, SECTOR-10,DWARAKA,NEW DELHI-110 075

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3 THE REGIONAL OFFICER, KERALA, NATIONAL HIGHWAY AUTHORITY OF INDIA, TC 36/574-1 KRISHNA KRIPA, ERA-42, PALKULANGARA JUNCTION,VALLAKKADAVU.P.O., THIRUVANANTHAPURAM- 695 008

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4 PROJECT DIRECTOR PIU PALAKKAD, NATIONAL HIGHWAY AUTHORITY OF INDIA, NO.8/1187,"ARUMUGHAN COLONY", CHANDRANAGAR,PALAKKAD DISTRICT- 678 007

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5 PROJECT DIRECTOR PIU ERNAKULAM,NATIONAL HIGHWAY AUTHORITY OF INDIA,"THE ARAKANS", 1ST FLOOR, NEAR ICICI BANK, NATIONAL HIGHWAY NO.544 (OLD NO.47), KALAMASSERY, ERNAKULAM- 683 104

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6 MS. GURUVAYOOR INFRASTRUCTURE PVT. LTD. HAVING ITS REGISTERED OFFICE AT DOOR NO.180/40/SP/58-65,SHILPA HOMES LAYOUT, GACHIBOWLI, HYDERABAD- 500 032,REP.BY ITS AUTHORISED OFFICER.

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7 SPECIAL DEPUTY COLLECTOR SPECIAL LAND ACQUISITION OFFICER AND COMPETENT AUTHORITY, NATIONAL HIGHWAY DEVELOPMENT PROJECTS, THRISSUR, 680020

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[IS IMPLEADED AS ADDL. R7 AS PER ORDER DATED 25.10.2021 IN IA 14664/18 IN WP(C)]

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8 S ECRETARY TO THE GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM

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9 THE SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM [R8 & R9 ARE SUO MOTU IMPLEADED VIDE JUDGMENT DATED 3.11.2021 IN THE WRIT PETIION.] BY ADVS. SRI. P. VIJAYAKUMAR, ASST. SOLICITOR GENERAL SRI.R.PRASANTH KUMAR, CGC FOR R1 MAULIK NANAVATI FOR R2 - 5 SANTHOSH MATHEW S.SREEKUMAR (SR.) FOR R6 GOVERNMENT PLEADER SRI. K.P.HARISH FOR R7, 8, 9 ARUN THOMAS ANIL SEBASTIAN PULICKEL VEENA RAVEENDRAN JENNIS STEPHEN P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA AJAY BEN JOSE MANJUNATH MENON R.GITHESH SACHIN JACOB AMBAT HARIKRISHNAN S. ANNA LINDA V.J NAVEEN A.VARKEY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J U D G M E N T

Dated this the 3^rd day of November, 2021

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S. Manikumar, CJ.

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Instant writ petition has been filed in the year 2018, by Pudukkad Samagra Vikasana Samithy, represented by its President, Advocate Mr. Joby A. Pulikkan and also in his personal capacity. Though petitioner No.1 is an unregistered association, we are inclined to consider the case on merits, as the second petitioner is an individual espousing the cause of the public. The reliefs sought for, are as under:

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i) Direct the 1^st respondent to take over the highway project covered by the Concession Agreement dated 27/03/2006 and further supplemented by Exhibit P4 agreement executed between 2nd and 6th respondent on National Highway No. 544 (Old No. 47) in Thrissur (Km 270) to Angamaly (Km 316.700) Section in the State of Kerala by invoking Section 32 of National Highway Authority of India Act, 1988, by issuing a writ of Mandamus, or any other appropriate writ, order or direction;

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ii) Or else, Direct the 2^nd respondent to take over the highway project covered by the Concession Agreement dated 27/03/2006 and further supplemented by Exhibit P4 agreement from the 6th respondent on National Highway No. 544 (Old No. 47) in Thrissur (Km 270) to Angamaly (Km 316.700) Section in the State of Kerala by invoking appropriate clauses in those agreements, and, to complete execution of the same within a stipulated time limit either by itself or through any

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other agency at the risk and cost of 6^th respondent, by issuing a writ of Mandamus, or any other appropriate writ, order or direction;

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iii) Direct the 1^st respondent to constitute an expert committee to conduct a thorough inspection of the state of the works completed and works in progress and to find out the deficiencies, if any, in respect of the execution of the works covered by the Concession Agreement dates 27/03/2006 and further supplemented by Exhibit P4 agreement from the 6th respondent on National Highway No. 544 (Old No. 47) in Thrissur (Km 270) to Angamaly (Km 316.700) Section in the State of Kerala, and to suggest remedial measures, after holding public consultation, by issuing a writ of Mandamus, or any other appropriate writ, order or direction;

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iv) Direct the 1^st respondent to take appropriate steps to exempt the local residents of Paliakkara, Amballoor, Pudukkad and Kodakara, people engaged in small businesses therein and light motor vehicles transporting goods to and from those places from payment of fee at Paliyekkara toll plaza."

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The contention advanced by the petitioners is that due to the pathetic state of construction, operation and maintenance of National Highway 544 (Old No.47), the public at large are put to various difficulties and the National Highways Authority and the State are not taking sufficient interest to ensure that the contractor, viz., the 6^th respondent is undertaking the work in accordance with the agreement, and in the tenor and terms of the National Highways Act, 1956, and other provisions of law.

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It is further pointed out that a supplementary agreement was

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executed. However, the facilities that are undertaken as per the supplementary agreement, like construction of service roads, adequate and functional drainage systems, proper Highway Traffic Maintenance system, sufficient and scientific bus bays and shelters, public utility services such as rest place, toilets, drinking water proper and efficient toll management, and similar aspects are not carried out by the 6^th respondent, and thereby interfering with the fundamental rights and human rights entitled to be enjoyed by the citizens.

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National Highways Authority Authority of India/respondent No.4 has filed a detailed counter affidavit on 25.10.2021. Relevant paragraphs of the same, enumerating the exact facts and figures, are extracted hereunder:

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"5. The entire petition is premised on a factual assumption that the concessionaire (contractor) appointed by the National Highways Authority of India for the work of expansion, improvement, operation and maintenance of a stretch of national highway has failed to perform or has deficiently performed its contractual obligations. The foundational supposition is erroneous and contrary to true and correct facts. The petition is based on conjectures and surmises. It proceeds on the hypothesis that a lot of civil work required to be done by the concessionaire has not been done at the site, or that the work done by the concessionaire is of poor and deficient quality. There is a serious contest as regards the correctness of the facts asserted by the petitioners in the petition, especially as regards quality of construction. As on date, more than 99% of the defined

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civil work has been completed at site by the concessionaire. Only about 0.5% of the total civil work remains to be completed. In terms of value, the amount of work which is yet to be completed constitutes about 1% of the total project cost. The assertion, which is actually in the nature of allegation, that the concessionaire has failed to perform its contractual obligations or has improperly performed its contractual obligations and further that the Authority has remained indolent and lethargic in ensuring strict compliance of the contractual obligations by the contractor is not supported by any material; on the contrary, the version of the Authority that the concessionaire has largely performed its contractual obligations and that the work completed by the contractor is not of deficient quality but matches the prescribed standards is based on cogent documentary material. The petition thus raises highly disputed questions of fact and for this reason also the same may not be entertained by this Hon’ble Court.

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The only relief claimed against the National Highways Authority of India in the present petition, as can be seen from a perusal of the prayer clause, is issuance of a direction to “take over the highway project covered by the Concession Agreement dated 27/03/2006 and further supplemented by Exhibit P4 agreement executed from the 6^th respondent on National Highway No. 544 (Old No. 47) in Thrissur (Km 270) to Angamaly (Km. 316.700) Section in the State of Kerala by invoking appropriate clauses in those agreements, and, to complete execution of the same within a stipulated time limit either by itself or through any other agency at the risk and cost of 6^th respondent”. There is no denial of the fact that a writ petition, more so in public interest, would lie against a statutory authority for enforcement of a public duty; nevertheless, there is a thin and subtle, but definite, line of demarcation between public duties which are usually statutory and duties arising merely from contract. The scope of judicial intervention in matters concerning execution or

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performance of contractual obligations by the contracting parties, even in case of statutory contracts or by statutory authorities as a contracting party to a contract, as also matters relating to breach of contractual terms, is very limited. The prayer, on a plain reading, does not seek issuance of a judicial direction to a contracting party to enforce general performance of obligations under the contract by the other contracting party; instead, it seeks a direction to one contracting party to act in a particular manner under the contract and take a specified action under the contract against the other contracting party. Such relief commanding a contracting party to act in a pin-pointed manner under the contract cannot be sought even in a public interest litigation, and the petition, to the extent it prays for grant of such relief, is misconceived and not tenable in law.

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HIGHWAY PROJECT

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The highway starting Salem in Tamil Nadu to Kochi in Kerala, popularly Salem – Kochi Highway, has been specified in Schedule 2 of the Act and is declared to be a national highway. National Highway 544 (Old National Highway 47) is a 340 kilometers long highway running through the States of Tamilnadu and Kerala, and is also a spur of National Highway 544 which forms the North South corridor of the national highway network of India.

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Section 11 of the National Highways Act, 1988 deals with the power of the Central Government to vest or entrust any national highway to the National Highways Authority of India. The said section reads as under:

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“11. Power of the Central Government to vest or entrust any national highway in the Authority.

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The Central Government may, from time to time, by notification in the Official Gazette, vest in, or entrust to, the Authority, such national highway or any stretch thereof as may be specified in such notification.”

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I say that a stretch of National Highway 544 from Salem to Kochi has been entrusted by the Central Government to the National Highways Authority of India.

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The Government of India decided to widen the stretch of National Highway 544 starting from Km. 270.000 (Thrissur) to Km. 316.70 (Angamali) from existing 2 lane to a 4 lane highway, and authorized National Highways Authority of India to execute the work of expansion of the highway. Additional work was also entrusted to the Authority of improving, operating and maintaining the stretch from Km. 316.70 (Angamali) to Km. 342.00 (Edappally). The Authority decided to perform these works through a concessionaire on Build, Operate and Transfer (BOT) Toll basis.

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The National Highways Authority of India invited proposals by notice dated 27.05.2005 from the bidders for ‘Design, Construction, Development, Finance, Operation and Maintenance’ of Km. 270.000 (Thrissur) to Km. 316.70 (Angamali) and ‘Improvement, Operation and Maintenance’ of Km. 316.70 (Angamali) to Km. 342.00 (Edapally). A consortium comprising M/s KMC Constructions Limited and SREI Infrastructure Finance Limited submitted its bid. The Authority, after evaluation, accepted the bid of the consortium and issued a Letter of Acceptance dated 30.09.2005. The consortium promoted and incorporated Guruvayoor Infrastructure Private Limited and requested the Authority to accept this new entity as the Concessionaire which shall undertake and perform the obligations and exercise the rights of the consortium under the Letter of Acceptance dated 27.05.2005. The Authority agreed to the request of the consortium and a Concession Agreement was entered into with M/s Guruvayoor Infrastructure Private Limited for execution of the project. The total project cost was estimated to be Rs. 312.54 crores.

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The Authority appointed M/S ICT Private Limited as Independent Consultant at the construction stage between the period from 2006 to 2014. The Authority appointed M/s MSV International Inc. as an Independent Engineer for the operation and maintenance stage with effect from 01.07.2015 and worked up to 31.01.2019. After that, the Authority has appointed M/s MSV International Inc. in association with MSV International Tech Private Limited as the Independent Engineer to oversee and supervise the project work with effect from 01.02.2019.

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The principal work of expansion of highway from 02 lane to 04 lane on the entire stretch from Km. 270.000 (Thrissur) to Km. 316.70 (Angamali) is complete, and the 04 lanes of the highway are open for use by the general public.

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The improvement works to be carried on the stretch from Km. 316.700 (Angamali) to Km. 342.000 (Edapally), being mainly junction improvement at airport, curve improvement before Marthandavarma bridge, a 6 lane flyover at Aluva junction and construction of approaches to over bridge have also been completed.

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The Concession Agreement permits and entitles the Concessionaire to levy and collect fee, as determined by the Central Government, from users of the highway duly approved and certified by the Independent Engineer. The concession is granted to the concessionaire for a period of 20 years. The commercial operations period, in the present case, has commenced for a stretch from Km. 270.000 (Thrissur) to Km. 316.70 (Angamali) and for the stretch from Km. 316.70 (Angamali) to Km. 342.00 (Edapally) with effect from 04.12.2011.

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ADDITIONAL WORKS

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During the performance of originally defined and specified scope of work, demands were received, either from general public or their elected representatives, for creation of additional facilities. These requests were considered by the Authority and the Independent Engineer appointed by

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the Authority. After carefully examining the realistic need and necessity for creating the additional facilities or assets together with engineering feasibility and financial implications, certain additional facilities were included in the awarded contract by effecting change in the scope of originally awarded work. Almost all the additional facilities have been completed, barring one major work at Puddukad junction.

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PRESENT STATUS OF PROJECT HIGHWAY

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The project work has been largely completed. All the principal works have been finished, and the ancillary works have also been substantially carried out by the concessionaire. Only minor works at some locations remain incomplete as on date. The portion or measure of such incomplete or yet to be completed work is negligible, and would account for less than 0.5% of the physical project work and less than 1% of the value of the project work.

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The main work of expanding the carriageways on either side has been completed along the entire stretch of the project highway. All major improvement works have been finished. A miniscule portion of some ancillary works as provided in the original agreement has remained incomplete. The main reasons for non-completion of such insignificantly small quantum of work in the context of the totality of the project work have been and are absence of availability of land required for performance of these works, resistance to the performance of defined work by the residents of the locality even within the acquired land, and other reasons not attributable to and beyond the control of either of the contracting parties. For some other works, the delay has occasioned because of lapses in timely performance of work by the concessionaire and other reasons wholly and solely attributable to the concessionaire. The concession agreement provides for levy of penalty for delay in completion of work. The Authority, on report of the Independent

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Engineer, has levied a penalty totaling to Rs. 198.20 crores up till 30.09.2021.

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Almost all the additional works, which were included by making changes in scope of work, have also been completed. Only one major additional work of constructing an underpass at Pudukkad junction has not yet been commenced till date.

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SPECIFIC INSTANCES HIGHLIGHTED IN PETITION

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The petitioners, in paragraph 11 of the petition, mention and describe several works as having not been commenced or having remained incomplete at the site. The petitioners also complain “non-following of prescribed standards on safety” and “deficiency” in standards of various amenities provided for the users.

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Schedule A to the Concession Agreement gives description of the project site. Schedule B to the Concession Agreement gives details of the scope of work. Schedule C to the Concession Agreement enumerates the project facilities. Schedule D to the Concession Agreement provides the specifications and standards for performance of the specified works. A copy of Schedule A, Schedule B, Schedule C and Schedule D of the Concession Agreement is produced herewith and marked as Exhibit R4-(1)(collectively) .

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In so far as the allegation of non-adherence to the prescribed standards, be it of safety or otherwise, is concerned, I submit that the said allegation is absolutely false and baseless. All works are performed by the concessionaire strictly as per the design and drawings prepared in accordance with the standards and specifications prescribed in the Indian Road Congress Code. The executed work has been examined by the Independent Engineer appointed by the Authority, who has verified the quality of work and certified that the performed work confirms to the specified specifications and standards. The petitioners are, therefore, not right in alleging that any work performed by the concessionaire, and

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approved by the Independent Engineer, is not in conformity with the stipulated specifications and standards or is otherwise deficient in quality.

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In so far as the works highlighted as incomplete, I shall deal with each of such work in seriatim:

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Bus Bays And Shelters

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19.1 The highway, before it was entrusted to the National Highways Authority of India, was being maintained by the Public Works Department of the State of Kerala. At the time when the stretch of highway was handed over to the National Highways Authority of India for its management, not a single bus bay or bus shelter was constructed on the entire stretch of the highway even though there were a number of bus stops along the project highway.

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The highway expansion and improvement project envisaged creation of about 29 designated bus shelters and bus bays at different locations along the entire stretch of the highway. These shelters were generally proposed at existing bus stops and at major road intersections. The tentative locations of these proposed bus bays and bus shelters have been mentioned in the Concession Agreement.

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The width of the highway land – land belonging to the Central Government and commonly called Right of Way (RoW), required for installation and erection of all facilities is 45 meters. During the execution of work, it was noticed that the width of land available on site is less than 45 meters. Consequently, there is no land for accommodating the proposed facilities on either side of the road. Construction, be it of a residence or a commercial building, exists not on the edge of the highway land, but within the highway land. Despite best efforts by the National Highways Authority of India and repeated requests to the local administration for assistance to remove the encroachment, it has not become possible to obtain clear possession of 45 meters width at

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several locations along the stretch of the highway.

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At 03 proposed locations, sufficient land was available and accordingly bus bays and shelter, as per prescribed specifications, have been constructed on the highway land. At 17 locations, temporary bus shelters have been erected by the side of the service road. The size of these bus shelters has been materially altered (reduced) so as to fit within the available land. At 9 locations, sufficient land is not available even for making a temporary small sized bus shelter.

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Considering the fact that width of 45 meters is not available at certain locations impeding the construction of bus bays and shelters, the Independent Engineer has recommended cancellation of construction of bus bays and bus shelters from scope of project work. However, no final decision has been taken by the Authority for making a negative change in scope of work.

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The Authority remains committed to have the bus bays and shelters constructed at the identified locations or modified locations if the encroached highway land is freed of the encroachment and made available for use by the local administration, or land is made available for acquisition beyond the highway land for construction of facilities.

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Pudukkad Junction Underpass

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19.2 An underpass or a flyover was not proposed to be constructed at the Pudukkad junction in the Detailed Project Report prepared by the Consultant, and accordingly did not find mention in the scope of work of the project.

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A lot of demands were made by members of general public as well as political parties for construction of a flyover or an underpass at the junction. There was conflict amongst the demanding grounds even on the location for construction of the overpass or the underpass. Public interest litigation, being Writ Petition (Civil) No. 10222 of 2009, was commenced before this Hon’ble Court demanding construction of

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flyover or an underpass at the junction. A technical committee was constituted pursuant to directions of the Hon’ble Court. The committee opined that the junction did not qualify for construction of a flyover, and recommended a Vehicular – Cum – Pedestrian Underpass at the junction. The National Highways Authority of India committed to implement the recommendation of the committee. Based on such assurance, the public interest litigation was closed by an order dated 28.08.2009.

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Additional land was required for construction of bell mouth structure on either side of the underpass, which would permit traffic to cut across the main carriageways of the highway. The State Government refused to permit acquisition of land, and in fact issued a letter dated 9.11.2010 to the district officials instructing them to keep all land acquisition proceedings for widening of the highway in abeyance. This fact has been duly recorded in the order dated 3.01.2011 passed in Contempt Case (Civil) No. 1416 of 2010. The restriction on acquisition of land continued till 2016. Thereafter, the ban was lifted and proceedings were initiated for acquisition of additional land for construction of the underpass. The requisite land was acquired after following due process of law, and its possession has been handed over to the Authority on 27.02.2020.

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Parallel to the proceedings for acquisition of additional land, the concessionaire submitted a Change of Scope proposal with an estimated amount of Rs. 22,10,46,705/- for construction of the underpass at the junction. The additional cost, with slight reduction, was approved by the competent authority. Concessionaire submitted design and drawings for the vehicular underpass. Certain observations and suggestions were made by the Independent Engineer on the submitted design and drawings. The revised drawings were submitted by the concessionaire in the year 2018.

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Before the additional land for construction of access lanes to the underpass could be acquired and the work of constructing the underpass

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could commence, the Government of India announced its intention of 06 laning the stretch of National Highway 544 from Mannuthi to Edapally under the Bharatmala Pariyojana, the new umbrella program of the Central Government for the highway sector that focuses on optimizing the efficiency of the movement of goods and people across the country. A technical consultant has been engaged for the preparation of a detailed project report for the stretch of highway. A comprehensive study concerning technical, engineering, environmental, logistical, commercial and financial aspects of the highway project is presently being conducted by the consultant. Engineering investigations, traffic sampling and analysis, traffic flow forecasts and other aspects relevant to assess and determine the technical, economical and financial viability of the project are being examined by the consultant. The consultant is likely to submit the detailed report in early 2022, whereafter the process for awarding the work of construction shall be initiated and a contract shall be awarded to a contractor for carrying out the project work.

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In view of this development, a decision has been taken by the National Highways Authority of India not to immediately start the work of constructing Vehicular Underpass at Pudukkad junction (Km. 280.550), and instead to take up the construction of underpass along with the upgradation and widening of the project highway under the Bharatmala Pariyojna. The Authority assures that the Vehicular Underpass shall be constructed at Pudukkad junction.

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Traffic Signals At Pudukkad Junction

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19.3 The Concession Agreement requires the concessionaire to provide traffic blinker signals at all grade intersections as per design standards specified in the agreement, which in turn are based on specifications prescribed in the Indian Road Congress. The concessionaire, in terms of the aforesaid contractual obligation, has installed traffic signals at all intersections and other locations as have been pointed out, based on the

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quantum of traffic and necessity to regulate the traffic, by the Independent Engineer.

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At Pudukkad junction, appropriate traffic signals have been provided by the concessionaire, and the same are in working condition. No complaint has been received from the local police department regarding non-installation or non-functioning of the traffic signals installed at the intersection.

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Drainage At Pudukkad

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19.4 The scope of work included provision for road side drains. Side ditches for area drainage on both sides of carriage way were proposed for rural area. Chute drains along with shoulder drains were proposed in high embankment areas and median drains at super elevated sections of the highway. Hume pipe culverts were to be provided at intersections to allow flow of drain water.

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Concessionaire has constructed the drain of specified type along almost the entire length of the project highway.

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Independent Engineer, after site inspection, identified locations which did not permit construction of a drain on the side of the carriageway or had existing adequate drainage facility. A recommendation has then been made by Independent Engineer that drain work cannot be performed or need not be performed on a total length of 3.87 kilometers of the entire stretch of the project highway.

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As on date, drain remains to be constructed at the following locations on Design Chainage:

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LHS

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CH: 280.070 – CH: 280.100 = 30m

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CH: 280.700 – CH: 281.000 = 300m CH: 281.070 – CH: 281.100 = 30m (Total LHS = 900 m)

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RHS

CH: 280.140 – CH: 280.155 = 15m CH: 280.220 – CH: 280.500 = 280m CH: 280.500 – CH: 280.620 = 120m CH: 280.640 – CH: 280.750 = 110m CH: 280.790 – CH: 280.845 = 55m CH: 280.890 – CH: 280.900 = 10m CH: 280.940 – CH: 280.960 = 20m CH: 280.990 – CH: 281.010 = 20m CH: 281.040 – CH: 281.100 = 60m (Total RHS = 690 m)

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This location is at Pudukkad junction. At this location, underpass was not originally proposed and is a change of scope item. Now the work of drain can be taken up only after construction of the Vehicular Under Pass at the location. The drain line can be identified only after Reinforced Earth Wall / Reinforced Cement Concrete Wall foundation for the underpass is completed. The Authority assures that the work of drain shall be carried out and completed along with construction of the underpass.

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Service Road

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19.5 The Concession Agreement requires the concessionaire to construct service road of 52.40 kilometers (inclusive of both sides). As on date, the concessionaire has constructed service road of 52.25 kilometers (26.05 kilometers on Left Hand Side of the project highway and 26.25 kilometers on the Right Hand Side of the project highway). The details of service road constructed on both side of the project highway is mentioned below for easy reference:

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LHS Service Road

Chainage		Length			Status as on
From	To	in Km	side	Name of the place	date
270.200	270.600	0.4	LHS	Nadathara	Completed
271.650	273.200	1.55	LHS	Kuttanellur flyover	Completed
274.850	275.850	1.0	LHS	Marathakkara to Kunjanampara	Completed
276.650	277.900	1.25	LHS	Thrissur flyover	Completed
278.850	280.250	1.4	LHS	Amballur to Pudukkad	completed
280.250	280.400	0.15	LHS	Pudukkad VUP location	Not completed
282.62	285.000	2.38	LHS	Nandikkara-Nellayi	completed
285.200	285.700	0.5	LHS	Kolathur	Completed
286.800	291.800	5.00	LHS	Kodakara–Permbra	Completed
292.650	297.45	4.8		Potta	Compleed
298.300	299.670	1.37	LHS	Muringoor VUP	Completed
300.900	301.500	0.6	LHS	Koratty	Completed
302.900	308.700	5.8	LHS	Chirangara - Karayamparambu	Completed
Total com	pleted in L	HS service	road		26.05 Kms

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RHS Service Road

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Chainage		Length				Status as
From	To	in Km	side	Name of the pla	ce	on date
270.200	270.600	0.4	RHS	Nadathara		Completed
271.650	273.200	1.55		Kuttanellur flyov	er	Completed
274.850	275.850	1.0		Marathakkara Kunjanampara	to	Completed
276.650	277.900	1.25	RHS	Thrissur flyover		Completed
278.850	280.400	1.55	RHS	Amballur Pudukkad	to	Completed
282.620	285.000	2.38	RHS	Nandikkara Nellayi	–	Completed
285.200	285.700	0.5	RHS	Kolathur		Completed
286.800	291.800	5.00	RHS	Kodakara Permbra	–	Completed
292.650	297.45	4.8	RHS	Potta		Compleed
298.300	299.670	1.37	RHS	Muringoor VUP		Completed
300.900	301.500	0.6	RHS	Koratty		Completed

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¶138

302.900	308.700	5.8	RHS	Chirangara – Karayamparambu	Completed
Total com	pleted in R	HS servic	e road		26.25

¶139

The contention of petitioners that the service road has not been completed on the entire stretch of the highway may have been true at the time of filing of the present petition in the year 2018; however, as on date, barring a small section of 150 meters at Pudukkad junction, the entire stretch of service road on both sides of the project highway has been constructed and has been laid open for use by the general public. The service road near Pudukkad junction shall be constructed after the completion of construction of the underpass at the site.

¶140

Road Markings

¶141

19.6 The Concession Agreement requires the concessionaire to do markings on the road as per standards and specifications prescribed in IRC 35. The concessionaire has done markings on the entire stretch of the project highway.

¶142

The road markings fade over time, because of constant movement of vehicular traffic as also weather conditions. Periodically, the markings are checked and necessary remedial action is being taken by the concessionaire.

¶143

Service Road And Drain Between Potta Flyover To Chalakudy

¶144

19.7 Petitioners have contended that service road and drainage work has not been completed on the stretch of project highway between Potta flyover to Chalakudy.

¶145

Initially, the work of constructing service road and outer drain could not be performed because of non-availability of land. Finally, the land was made available to the Authority and thereafter handed over to the concessionaire in the year 2015. Street light poles and electricity lines existing on the land were required to be shifted after obtaining requisite

¶146

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¶148

permissions. Shifting of utilities was completed in the year 2016. Thereafter, a service road has been constructed at the location, and is currently being used by the general public. Because of non-availability of sufficient land and resistance to acquisition of more land, on a small stretch the width of the service road is 3.5 meters.

¶149

The outermost drain has not been constructed at the location between 293+300 to 294+300. The said work was to be undertaken by the concessionaire post monsoon; however, because of continuous rains the work could not be taken up by the concessionaire.

¶150

The Authority assures that the work of constructing outer drain at the location shall be taken up on priority basis, and completed at the earliest.

¶151

Drain at Nadathara Center, Nadathara to Kodakara and Nadathara to Koratty

¶152

19.8 The drain work is complete at Nadathara Center, and also between Nadathara to Kodakara and Nadathara to Koratty.

¶153

The construction of drain at these locations is as per the design, drawings, standards and specifications prescribed in the Indian Road Congress for construction of drain. It has not been noticed by the Authority or the local civil authorities of the area that the water is not flowing properly through the drain constructed alongside the highway, and that the water falling on the highway land during monsoon is causing flooding of the adjoining civil areas.

¶154

Also, the drain is covered on its entire stretch. It is true that at times the outer covers are removed; such removal is mainly by local residents or by miscreants. Appropriate steps are taken by the Authority as and when it is noticed that the asset of the Authority is damaged, and instructions are given to the concessionaire for taking necessary remedial steps in accordance with the terms of agreement.

¶155

Box Culverts At Nadathara, Kodakara and Potta

¶156

19.9 The box culverts provided for cross drainage at various locations along

¶157

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¶159

the stretch of the project highway are properly maintained by the concessionaire. They are regularly cleaned by the concessionaire. Some of the Slab / Box / Pipe culverts inherited by the National Highways Authority of India from the Public Works Department, State of Kerala at the time of entrustment of the stretch of highway have been repaired by the Concessionaire as part of scope of work under the Concession Agreement. Some new culverts and cross drainage facilities have also been created on the project highway. None of the cross drainage works have become dysfunctional, as alleged in the petition. All the culverts and cross drainage facilities are working properly.

¶160

It has not been noticed by the Authority at any time that there has been water logging either on the highway or on the side of the highway because of a stoppage of smooth flow of water through the culverts. No official complaint has been received from any civic authority concerning non-functioning or blockage of culvert.

¶161

It may be that because of excess rain there would be general flooding in the area, and consequently the water may not flow quickly through the culvert. Such a situation is rare and arises for reasons beyond human control.

¶162

Highway Lighting

¶163

19.10 The Concessionaire has erected 1,069 light poles on the entire stretch of the project highway.

¶164

It has been felt that there is need for more lights on the highway, and appropriate steps are being taken for effecting change in scope of work so as to provide for an additional 577 light poles on the project highway. Sufficient lighting exists at grade separators and toll plaza.

¶165

Public Utilities

¶166

19.11 Public utilities like toilet blocks, water kiosks, etc. have been sufficiently provided at toll plaza administrative buildings and the designated rest areas on either side of the highway.

¶167

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¶169

The Authority has been and shall continue to monitor the maintenance of these facilities by the concessionaire.

¶170

Grievance Redressal Mechanism

¶171

19.12 National Highways Authority of India has introduced a toll free number – 1033, for lodging any complaint concerning the highway traffic as well as for voicing any grievance concerning highway administration, operation, maintenance and management. Complaints concerning toll collection or public convenience facilities or other utilities at the toll plaza or on the highway can also be lodged by calling on this toll free number by any user of the highway. This number, to be used even in case of emergency, has been prominently displayed at the toll plaza and at different locations along the length of the project highway.

¶172

Toll Collection Unscientific And No Exemption Granted to Locals

¶173

19.13 Section 7 of the National Highways Act, 1956 permits the Central Government to levy fees for services or benefits rendered in the use of ferries, permanent bridges, temporary bridges, tunnels and sections of national highways. Sub-section (2) provides that such fees shall be collected in accordance with the rules made under the Act. Section 9 empowers the Central Government to frame rules providing for the rates at which fees for services rendered in relation to the use of ferries, permanent bridges, temporary bridges, tunnels and use of sections of any national highway may be levied and the manner in which such fees shall be collected.

¶174

Presently, the manner and method for levy of user fee and the rate of fee are determined by the National Highways Fee (Determination of Rates and Collection) Rules 2008, framed by the Central Government. These Rules apply to both public funded project and private investment projects, and also to agreement and contracts executed and bids invited relating to public funded projects and the build, operate and transfer

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(annuity) projects prior to the publication of the rules.

¶178

Rule 3 states that “the Central Government may, by notification, levy fee for use of any section of national highway, permanent bridge, bypass or tunnel forming part of national highway, as the case may be, in accordance with the provisions of these rules”. Sub rule (3) provides that “in case of private investment project the collection of fee levied under sub-rule (1) shall be made in accordance with the terms of the agreement entered into by the concessionaire.”

¶179

Rule 4 of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 prescribes the base rate of fee for use of a section of national highway of four or more lanes by different types of vehicles – light motor vehicles, light commercial vehicles, two axle vehicles, three axle commercial vehicles, heavy construction machinery or multi axle vehicles and over-sized vehicles.

¶180

Rule 6 of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 prescribes the manner and method of collection of user fee for use of section of the national highway. Sub-rule (1) provides that “fee levied under these rules shall be collected by the Central Government or the executing authority or the concessionaire, as the case may be, at the toll plaza.” Sub-rule 2 mandates that “every driver, owner or person in charge of a mechanical vehicle shall for the use of the section of national highway, permanent bridge, bypass or tunnel, before crossing the toll plaza, pay the fee specified under these rules.”

¶181

Sub-rule (4) of Rule 8 of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 directs that no fee shall be collected from a driver, owner or person in charge of a mechanical vehicle “that uses part of the section of a national highway and does not cross a toll plaza.” The Government of India has largely decided to adopt an open system of tolling where the user has to pay the user fee at flat rate for the notified length at a predetermined location and not the fee for the actual

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length travelled. Only in case of access controlled highways, toll is charged on the basis of distance traveled by adopting the ‘closed system’ with toll plaza at every entry and exit of the tolled road. Rule 9 provides for permissible discounts on levy of user fee for use of section of the national highway. Rule 3-A, inserted by the National Highways Fee (Determination of Rates and Collection) Amendment Rules, 2011, provides that “a person, who owns a commercial vehicle (excluding vehicle plying under National Permit), registered with address on the Registration Certificate of a particular district and uses such vehicle for commuting on a section of the National Highway, permanent bridge, tunnel or bypass, as the case may be, which is located within that district, shall be levied user fee on all toll plazas which are located with that district, at the rate of fifty per cent of the prescribed rate of fee: Provided that no such concession shall be provided, if a service road or alternative road is available for use by such commercial vehicles.”

¶185

The law thus permits grant of concession only to the extent of fifty per cent of the prescribed rate of fee on commercial vehicles which are registered within the district and are operating or plying only within the district in which the toll plaza is located on the section of the national highway and do not possess national permit. The prevailing rules and the terms of agreement between the Authority and the concessionaire do not envisage classification of commercial vehicles in various categories for grant of discount nor do they provide for any concession in respect of local owners of commercial vehicles, except to the extent mentioned in the rules.

¶186

The Central Government has issued a notification prescribing the fee for use of the present section of national highway. The said notification dated 20.06.2011 Exhibit R4-(3) grants necessary exemption, as permissible under the Rules. Pertinently, there is no challenge to the said notification in the present petition.

¶187

There was strong protest against the toll collection by local people and

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W.P(C).26572/2018

¶189

¶190

some organizations. The protestors indulged in hooliganism and vandalized the toll plaza. They even manhandled employees of the concessionaire. The toll collection had to be stopped. The State Government intervened, and it was resolved that additional exemption and rebate on toll rates for local people shall be granted by the Concessionaire (over and above the exemption and rebate provided in the notification), and that the expenditure for such additional concession on toll rate shall be met by State Government. As per the Government Order dated 18.02.2012( Exhibit R4-(4)), the Government of Kerala has reimbursed an amount of Rs.3.59 crores to the concessionaire for the period from February 2012 to September 2014. However, the State Government has not made any reimbursement post September 2014. As on 30.06.2021, an amount of Rs. 135.40 crores remain due and payable by the State Government.

¶191

Encroachment On Highway Land

¶192

19.13 There is no denial that there exists encroachment over highway land on several locations along the entire stretch of the national highway. All possible efforts are being made by the National Highways Authority of India to evict the encroachers and remove the encroachment. However, the Authority has found little support from the local administration in removing the encroachment. Also, there is a lot of interference from different quarters in conducting a drive for removal of encroachment from highway land.

¶193

A lot of times, writ petitions are filed before this Hon’ble Court and suits before Civil Court by persons who are sought to be removed in accordance with law. They seek restraint orders, predominantly by stating false facts or by alleging illusory breach of their right to access their property from the highway.

¶194

Nevertheless, the Authority has been taking, as far as possible, strict action against those persons who are found to have entered upon and

¶195

W.P(C).26572/2018

¶196

¶197

illegally occupied highway land.

¶198

The contention of petitioners that substantial work has not been done by the concessionaire is therefore factually not correct. Similarly, the allegation of petitioners that sub-standard work has been performed by the concessionaire is also factually incorrect. As stated hereinabove, almost all the works have been completed and only a tiny portion of the total work remains to be completed. The Authority remains committed to ensuring completion of such work. The quality of work that has already been performed is as per prescribed standards. There exists no reason, as on date, for the National Highways Authority of India to terminate the contract and get the balance work executed through a third party. The Authority, however, assures the Hon’ble Court that in the event it is noticed that the delay in completing the balance work is being caused solely due to non-performance of the concessionaire or that the concessionaire is deliberately and intentionally avoiding completion of any particular work, the Authority shall take action against the concessionaire as per terms of contract, and if need be, get such portion of the work executed by a third party at the risk and cost of the concessionaire."

¶199

The Chief Operating Officer and Authorised Signatory of M/s. Guruvayoor Infrastructure Pvt. Ltd./respondent No.6, has filed a detailed counter affidavit dated 25.10.2021, setting out the steps taken. Relevant paragraphs of the same are extracted hereunder:

¶200

“8. One of the complaints alleged against this respondent is regarding the maintenance of NH 544(NH47 Old) stretch from Thrissur (Km 270) to Angamali (Km 316.700). It is submitted that this respondent has completed all the work

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W.P(C).26572/2018

¶202

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from Thrissur to Angamali as per the project design but due to the delay in land acquisition proceedings some delay has caused in completion of the work as per the Concession Agreement. It is submitted that as per the Concession Agreement the 6^th respondent is entitled to collect toll fee after completion of substantial works and from the date of obtaining Provisional Completion Certificate from the Independent Authorized Firm (Independent Engineer) appointed by NHAI. It is submitted that the Provisional Completion Certificate (PCC) was issued on 04-12-2011 and the 6^th respondent was entitled to collect the toll fees from that date. However, the 6^th respondent was entitled to collect the toll fees from that date. However, the 6^th respondent could not commence the collection of toll fee as per the Concession Agreement due to the public protest and other agitations at the instance of political parties and other associations.

¶204

It is submitted that the allegation regarding nonproviding of facilities and maintenance as provided in the project design and Concessionaire Agreement is false and hence denied. Such allegations are made without ascertaining the actual facts and circumstances. It is submitted that this respondent started collection of toll fees after completing substantial works and after obtaining PCC as provided in the Concessionaire Agreement. The PCC was issued on 4.12.0211 and this respondent was entitled to collect toll fee from 5.12.2011. But due to the protests the respondent herein could commence the toll fee collection only from 9.2.2012 onwards after several meetings and interventions from the Government. Though almost all works

¶205

W.P(C).26572/2018

¶206

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were complete as per the Concession Agreement at the time of commencement of toll collection certain punch list works (additional items/change of scope) were delayed due to obstruction from the public and non-availability of land to execute such works. Hence, at present all the works are complete as per the project design and the Independent Engineer appointed by the NHAI issued the final Completion Certificate on 18.4.2016.

¶208

xxxxx xxxxx Admittedly, there occurred obstructions in land acquisition and progress of works as a result of protests etc. which resulted in the execution of Exhibit P4 Supplementary Agreement for additional works and certain minor works which could not be completed due to no fault or delay on the part of the 6^th respondent. It is submitted that the 6^th respondent herein being the concessionaire of the NHAI can carryout the works only as directed by the NHAI. 16. xxxxx xxxxx It is submitted that all bus shelters could not be constructed due to non availability of land. Due to non-availability of requisite lands since the Government of Kerala restricted the width/land acquisition to 45 meters the bus stops/shelters could not adhere to the standard size. In view of this the NHAI advised the Respondent herein to construct bus bay/bus shelter in available land. Accordingly, the 6^th respondent constructed 29 Nos of Bus stops & 3 Nos of bus bays in the available land. Thereafter, the Independent Engineer vide letter No.MSV/PRJ/230/Kerala/IE-NHAI/2019/IC-832 dated 25.2.2021 recommended that the item as Negative Change of Scope and accordingly the 6^th respondent submitted cost estimate for Negative COS. Therefore the allegation that

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this respondent has not completed the work of bus bays/shelters is baseless and hence denied.

¶212

It is submitted that the Pudukkad VUP is a change of scope and accordingly it was stipulated in the supplementary agreement, to execute the Pudukkad VUP as change scope work. It is submitted that the development of the project highway is an evolving process and during the discussions held at NHAI PIU-Palakkad on 30.04.2021, the NHAI decided that the VUP at Pudukkad junction 280550 shall be taken up along with the up gradation and widening of the project highway to 6 laning under Bharatmala Pariyojana Scheme of the Central Government. The said decision was conveyed by the IE to the Concessionaire vide letter no. dated 22.05.2021. It is submitted that the DPR works of 6 laning of Mannuthy - Edappally under Bharatmala Pariyojana scheme are in final stage.

¶213

It is submitted that the 6th Respondent had to construct 52.4 Km service road for the entire project highway as per the Concession Agreement. The 6^th Respondent constructed 52.25 Km of service road and the 150m length of the service road is to be constructed at Pudukkad along with VUP construction. Since VUP construction has to be done along with 6 lane works, construction of the 150Mtr service road work and connected drains is to be carried out along with the said VUP construction. Since VUP Construction would be done along with 6 lane work, we (6th Respondent) will take up the work and connected drains at the earliest possible. However, as per good engineering practice, it would be appropriate to construct a 150 meter service road along with 6 lanening works.

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xxxxx xxxxx. It is submitted that the 6^th Respondent has installed an upgraded signal system at Pudukad, which is functioning 24x7 Basis. The signal system works without any defects and catering the required services. It is submitted that the Highway Traffic Management System (HTMS) is a highly technical hardware and software mechanism and the 6^th Respondent had originally awarded the same to a Canadian company- IRDSA. However, the said company later stopped its Indian operations. Accordingly, the 6^th Respondent appointed a new agency and the entire HTMS system was replaced at the 6^th Respondent's cost. The allegations are baseless without knowing the actual facts.

¶217

It is submitted that the construction of the drainage could not be completed due to non availability of land between Ch: 293+300 to 294+900-LHS. It is submitted that a hume pipe was provided at Nadathara location and the water logging issue was resolved long back. Thus the 6^th Respondent is not at fault.

¶218

xxxxx xxxxx The 6th Respondent is regularly maintaining the road markings. At present also road marking and maintenance is in progress at various parts of the highway as a part of regular maintenance work. Similarly, the box culverts for drainage are functional and the cleaning of the box culverts is a routine process as per the requirement and is an ongoing process.

¶219

xxxxx xxxxx The 6^th Respondent has installed lightings as per the standards in the Concession Agreement. It is submitted that the lighting fixtures are subject to corrosion due to natural reasons and may get damaged.

¶220

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¶221

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However, the 6^th Respondent routinely repairs and maintains and replaces the same, whenever necessary.

¶223

xxxxx xxxxx It is submitted that "Highway Mini Nest" is operating near Toll plaza on both sides. They are operated by an agency appointed by NHAI and water Kiosks and toilet facilities are available.

¶224

xxxxx xxxxx It is submitted that complaint registers are available at Toll plaza and the 6^th Respondent is addressing the complaints regularly. Moreover, NHAI has established a toll free number "1033" for grievance addressing mechanisms, which is also addressed regularly. 26. xxxxx xxxxx It is submitted that there is no breach of Concession Agreement by this respondent and hence allegations levied against this respondent with respect to the construction, maintenance etc. are false and hence denied Exhibit P6 Report is biased contents and does not reflect the true state of affairs. The alleged findings in Exhibit P6 are without any basis and exaggerated.”

¶225

A statement dated 23.10.2021 has been filed by the Special Deputy Collector/respondent No.7, stating that the land acquisition proceedings were initiated and land has been handed over to the National Highways Authority of India for widening of the highway in question into four lane for a stretch of land from Thrissur to Angamaly section. Special Deputy Collector (LA), National Highway Development Project, Thrissur was appointed as the Special Land Acquisition Officer and Competent Authority to perform such functions of the authority under

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Section 3A of National Highways Act, 1956. Accordingly, on the strength of requisition received from NHAI, land acquisition proceedings were initiated, land was acquired and after completion of the proceedings, it was handed over to National Highways Authority of India. Therefore, according to the State Government, in so far as the contentions contained in the writ petition are concerned, the State Government have no role to be played and further submitted that it is for the National Highways Authority of India to take appropriate action.

¶229

On the basis of averments made by National Highways Authority of India (NHAI) and the supporting documents, Mr. Maulik Nanavati, learned counsel appearing for the National Highway Authority of India submitted that for the purpose of fulfillment of the agreement of National Highway No.544 (Old No.47), possession of land in certain areas has already been handed over, but due to public objections as well as encroachments, works under the contract could not be carried out.

¶230

He further submitted that in so far as the construction of an underpass at the relevant place, where there is traffic congestion, earlier, NHAI decided to construct an underpass when the four-lane existed. As of now, a decision has been taken to widen the road of the said site to six-lane and for that purpose, land is required.

¶231

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Mr. Maulik Nanavati, learned counsel for NHAI, further submitted that Government of Kerala, in principle has decided to allot the land. Nevertheless, under the provisions of the National Highways Act, 1956, if any land has to be acquired for the purpose of widening, it is the said authority to issue appropriate notification for the purpose.

¶234

Giving due consideration to the averments made, pleading and material on record, we are of the view that once the notification issued by National Highway Authority of India, for the purpose of laying a road, has already reached its logical conclusion, unless and until physical possession is given to NHAI, certainly, balance works under the construction agreement cannot be commenced and completed.

¶235

In that view of the matter, it is the duty of the Government of Kerala as well as the Local Self Governments to take appropriate steps under the provisions of the relevant Statutes for removal of any obstruction, as pointed out by NHAI in their counter affidavit dated 25.10.2021.

¶236

That apart, it is trite law that no individual has any right to object the construction or alignment of National Highway as decided by the Hon'ble Supreme Court in Union of India v. Dr. Kushala Shetty and Others [2011 (12) SCC 69] and in Competent Authority v. Baranagore Jute Factory [(2005) 13 SCC 477] . In Kushala Shetty 's case (supra), at

¶237

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paragraph 28, the Hon'ble Apex Court held as under:

¶240

“28. Here, it will be apposite to mention 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 development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and 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 serve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in rarest of rare cases, the particular project, if it is found to be ex-facie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained.” (emphasis supplied)

¶241

In the decision extracted supra, the Hon'ble Apex Court has

¶242

made it clear that the National Highways Act, 1956, gives a very limited

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right to object. The objection can be only to the use of the land under acquisition for the purposes other than those under Section 3A(1). The Act confers no right to object to acquisition as such.

¶246

Bearing in mind the above aspects, Government of Kerala as well as the Local Self Government Institutions are directed to take appropriate steps and measures for removal of all the encroachments, so as to enable the National Highways Authority of India to proceed further.

¶247

In respect of requirement of additional land for widening of the road to six-lane, it is submitted by NHAI that a study is being made and that it is likely to be completed by March, 2022.

¶248

In the light of the above, we further direct the National Highways Authority of India, to expedite the study and accordingly take a decision for issuing a notification for the purpose of acquisition of land, to be used for widening of the existing four-lane road to that of a six-lane road and also to construct an underpass in Pudukkad.

¶249

Perusal of the cause title shows that neither the Secretary to the Government, Public Works Department, Government of Kerala, Thiruvananthapuram nor the Secretary to the Government, Local Self Government Department, Government of Kerala, Thiruvananthapuram are impleaded as party respondents in the writ petition. We are of the opinion that the abovesaid authorities are proper and necessary parties

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for the effective implementation of the directions of this Court. Hence, in exercise of the powers conferred under Article 226 of the Constitution of India, we suo motu implead them as additional respondents 8 and 9. Mr. K.P. Harish, learned Senior Government Pleader, takes notice for the additional respondents 8 and 9. The said respondents now impleaded are directed to examine the materials and accordingly, issue directions to the Secretaries of the Local Self Governments Institutions to take steps for removal of the encroachments, so as to enable handing over of vacant possession of lands acquired under the notification, issued for construction, operation and maintenance of the entire stretch of National Highway 544 (Old No.47). The said exercise shall be done as expeditiously as possible so that the public are benefited from the construction of the National Highway in all respects.

¶253

Pending interlocutory applications, if any, shall stand closed.

¶254

Sd/S. Manikumar, Chief Justice

¶255

Sd/Shaji P. Chaly, Judge

sou.

W.P(C).26572/2018

APPENDIX OF WP(C) 26572/2018

¶260

PETITIONERS' EXHIBITS

¶261

EXHIBIT P1 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO 10222/2009 DATED 28.8.2009 EXHIBIT P2 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN C.O(C) NO.1416/2010 DATED 3.1.2011 EXHIBIT P3 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO 8289/2010 DATED 28.11.2009 EXHIBIT P4 A TRUE COPY OF THE SUPPLEMENTARY AGREEMENT BETWEEN 2ND AND 6TH RESPONDENT DATED 3.12.2011 EXHIBIT P5 A TRUE COPY OF THE NOTIFICATION NO.S.O.3505(E) ISSUED BY MINISTRY OF ROAD TRANSPORT AND HIGHWAYS DATED 27.11.2013 EXHIBIT P6 A TRUE COPY OF THE REPORT OF ADVOCATE COMMISSIONER, MR.P.PRAMOD, DATED 22.5.2018 FILED BEFORE KERALA HUMAN RIGHTS COMMISSION IN HRMP NO 7805/2014

¶262

RESPONDE	NT EXH	IBITS
EXHIBIT	R4(1)	TRUE COPY	OF SCHEDULE A, SCHEDULE B,
		SCHEDULE C CONCESSIONS	AND SCHEDULE D TO THE AGREEMENT
EXHIBIT	R4(2)	PHOTOGRAPHS AT PUDUKKAD	OF TRAFFIC SIGNALS INSTALLED JUNCTION
EXHIBIT	R4(3)	TRUE COPY O 20.06.2021 INDIA BY CE	F USER FEE NOTIFICATION DATED PUBLISHED IN THE GAZETTE OF NTRAL GOVERNMENT.
EXHIBIT	R4(4)	TRUE COPY NO.GO(MS) N ISSUED BY G	OF GOVERNMENT ORDER VIDE O.23/2012/PWD DATED 18.02.2012 OVT. OF KERALA
EXHIBIT	R6(a)	TRUE COPY O WPC.NO.2636	F JUDGMENT DATED 19/01/2021 IN /2016 OF THIS HON'BLE COURT.

The Pudukkad Samagra Vikasana Samithy v. the Union of India

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The Pudukkad Samagra Vikasana Samithy v. the Union of India

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