Dismissed

Shaji K v. National Highways Authority of India - NHAI

Kerala HC24 Mar 2022WP(C)/26513/2021

Case brief

AI extract

What is this about?

The Court dismissed a writ petition challenging NHAI's construction of a medical staff room near the petitioner's property. The Court held petitioners lacked locus standi as they had no access right to the highway and failed to prove prejudice despite NHAI's compliance with approved plans and manual specifications.

What did the court decide?

Writ petition dismissed; liberty granted to petitioners to invoke remedies under the Control of National Highways Act, 2002 for access.

Shaji K Vs National Highways Authority of… — Public Procurement and Tenders | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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THURSDAY, THE 24^TH DAY OF MARCH 2022 / 3RD CHAITHRA, 1944

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WP(C) NO. 26513 OF 2021

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PETITIONERS:

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1 SHAJI K., MULANTHANODE HOUSE, PARUVAASSERY, PALAKKAD-678686.

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

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

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RESPONDENTS:

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1 NATIONAL HIGHWAYS AUTHORITY OF INDIA - NHAI REPRESENTED BY IT'S PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF INDIA, PALAKKAD, 310-A CHANDRA NAGAR EXTENSION, CHANDRA NAGAR, PALAKKAD-678007. 2 THE PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF INDIA, PALAKKAD, 310-A CHANDRA NAGAR, EXTENSION CHANDRA NAGAR, PALAKKAD-678007. 3 THRISSUR EXPRESSWAY LTD, PROJECT OFFICE, BEHIND APOLLO TYRES, PERAMBRA, THRISSUR-680689, REPRESENTED BY ITS PROJECT DIRECTOR.

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

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 26513 OF 2021

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JUDGMENT

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The petitioners are stated to be owners of certain

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extents of property which is adjoining NH – 544 at Panniyankara area at Palakkad. They impugn the attempt of the National Highway Authority of India (NHAI) to construct a Medical Staff Room/Quarters in front of their property, next to the National Highway and they assert that this is being done in flagrant violation of the approved plan, namely Ext.P2. They thus pray that the official respondents be ordered not to make construction, as now proposed, in violation of Ext.P2 approved plan.

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Sri.M.P.Ashok Kumar - learned counsel for the petitioners, commenced his arguments asserting that any construction to be embarked upon by the NHAI should comply with the standards prescribed in the “Manual of Specifications and Standards for Six Laning of Highways” published by the Indian Roads Congress and that therefore, the impugned construction is impermissible, because it is done in total disregard to Ext.P2 approved plan. He contended that the proposed construction has not been

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WP(C) NO. 26513 OF 2021

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approved by any of the competent Authorities under the aforementioned Manual of Specifications and thus that his client is entitled to approach this Court and seek the reliefs sought for.

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In response, Dr.Satheesan, learned senior counsel - instructed by Sri.Sudhin Kumar, learned standing counsel for the NHAI, submitted that a counter affidavit, dated 04.12.2021; as also two memos dated 08.03.2022 and 16.03.2022, have been filed on record, explaining the true state of affairs involved in this case. The learned senior counsel submitted that the NHAI is proposing to construct the Medical Staff Room to facilitate the operation of a Medical Aid Unit on the opposite side of the road and that though it would have been ideal for both these constructions to be side by side, or next to each other, it has been rendered impossible on account of the topography of the area in question. He conceded that, as submitted by the petitioners, any construction on the National Highway property will have to confirm with the aforementioned “Manual of Specifications”, which expressly mandate the provision for a Rest Room to facilitate the First Aid Booth, which has already been

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WP(C) NO. 26513 OF 2021

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constructed. He then went on to tell me that, going by the global positioning system coordinates in the marked area, it is impossible to construct the Resting Area next to the Medical Room and that the only apposite and suitable area for it is as now identified on the other side of the Highway, which is not very far away and which can be easily accessed through the access points and “U turns” in the said Highway.

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Dr.Satheesan thereafter showed me that, along with a memo dated 08.03.2022, Annexure R1(a) has been placed on record, which is a proceeding issued to the petitioners asking them to produce necessary documents permitting them to access their property from the Highway, which is required as per Section 28 of the Control of National Highways (Land and Traffic) Act, 2002. He asserted that the petitioners did not produce any such and that, through a subsequent memo dated 16.03.2022, Annexure R1(b) has been produced, affirmatively stating why the proposed construction cannot be made anywhere else other than the specified point. The learned senior counsel, therefore, prayed that this writ petition be dismissed.

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In reply, Sri.M.P.Ashok Kumar submitted that his

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WP(C) NO. 26513 OF 2021

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clients are aggrieved because, if the construction is made in front of their property, they would lose their business and would be a fatal blow to them, because they were already dispossessed earlier when the National Highway was constructed. He argued that, notwithstanding the fact that his clients may not have obtained permission to access the National Highway as of now, they certainly can apply for the same in future and that the proposed construction would cause them impediment in obtaining such benefit.

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When I heard Sri.M.P.Ashok Kumar on the afore lines, I asked him as to how his clients can claim locus to maintain this writ petition, particularly because the construction proposed is admittedly in the land owned by the NHAI. This question was put to him because, Dr.Satheesan, learned senior counsel, brought to my notice that the petitioners cannot claim automatic access to the National Highway and that, going by the “Manual of Specifications”, every part of the said Highway will have to have barriers erected to prevent such unauthorised entry; and therefore, that even if the proposed construction is not made, it would not be possible for them to gain access to the Highway as a matter of

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WP(C) NO. 26513 OF 2021

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right.

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My query as afore was answered by Sri.M.P.Ashok Kumar saying that though his clients have a separate access, without touching the Highway, if the proposed construction is allowed, it would cut off the visibility of their property, thus rendering their business totally without steam.

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Apart from the question of locus, an adscititious issue that arises in this case is how the petitioners can maintain a writ petition of this nature challenging construction in public interest. However, pertinently, Sri.M.P.Ashok Kumar affirmed that his clients are not acting in public interest, but only in their own interests, since they fear the construction will hamper their business in future.

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The afore being so recorded, the crucial aspect that this Court should now consider is whether the impugned construction can be challenged by the petitioners on the ground that it violates the “Manual of Specification”, even if it does. Since the petitioners do not espouse any public interest, they must certainly show and establish prejudice caused to them on account of the said construction. However, interestingly, their case edificed on the allegation that the

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visibility of their property will be lost from the Highway and that business would suffer, however, without explaining how.

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That said, since the petitioners unequivocally agree that they have a separate and distinct access to their property, through which, they and their customers can reach the business, I cannot fathom how they can even claim that they would be put to prejudice on account of the construction, particularly because, as rightly stated by the learned senior counsel, they cannot seek an automatic entry into the National Highway, except after obtaining necessary permission from the competent Authority. Hence, the locus of the petitioners on the basis of any prejudice being caused, certainly cannot appeal to me.

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That being so said, the specific argument of the learned counsel for the petitioners is that the proposed construction is in violation of Ext.P2 plan approved by the competent Authority. Even if this be so, as long as the competent Authority has permitted the construction in a different area on account of various germane considerations, I cannot comprehend how the petitioners can assail it, particularly when they do not challenge the subsequent

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approvals granted for such construction. In the absence of any such challenge being mounted, I cannot find favour to the petitioners, especially because, as I have already seen above, their case of prejudice do not obtain legs to stand.

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This is more so because, as is expressly admitted, the impugned construction is proposed in an area exclusively owned by the NHAI, to which the petitioners have no access and cannot claim any interest on. Therefore, their argument that the sight to their property would be lost, will not by itself provide them the ground to impel a claim against the same, because it would be up to the NHAI to make any other construction, which is suitable under the “Manual of Specifications”, in future.

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For the afore reasons, I am certain that the contentions of the petitioners cannot be granted imprimatur by this Court and that consequently, this writ petition has to fail.

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Resultantly, this writ petition is dismissed; however, leaving liberty to the petitioners to invoke any remedy that may be available to them, including under the provisions of the aforementioned Control of National Highways (Land and

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WP(C) NO. 26513 OF 2021

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Traffic) Act, 2002; making it clear that if they seek an access to the National Highway from their property, it shall be acceded to in terms of law and subject to the parameters, through a suitable area, notwithstanding any of the observations in this judgment.

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Sd/- DEVAN RAMACHANDRAN

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JUDGE

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stu

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WP(C) NO. 26513 OF 2021

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APPENDIX OF WP(C) 26513/2021

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PETITIONER EXHIBITS

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Exhibit P1	THE PHOTOGRAPH SHOWING THE SSI UNIT OF THE 1ST PETITIONER AND THE HOTEL OF THE 2ND PETITIONER
Exhibit P2	TRUE COPY OF THE LAYOUT OF TOLL PLAZA ALONG WITH BUILDINGS APPROVED BY THE 1ST RESPONDENT
Exhibit P3	TRUE COPY OF THE COMMON JUDGMENT IN WP(C)12126 OF 2021 & WP(C) 12128 OF 2021 DT 12/08/2021.
Exhibit P4	THE PHOTOGRAPH SHOWING THE COMPLETED CONSTRUCTION OF THE MEDICAL UNIT, TRAFFIC AID POST ETC ON THE SIDE OF PALAKKAD TRICHUR.
Exhibit P5	TRUE COPY OF THE RELEVANT PAGE DEALING WITH EMERGENCY MEDICAL SERVICES IN MANUAL OF SPECIFICATIONS & STANDARDS FOR SIX LANING, CLAUSE 12.9
Exhibit P6	PHOTOGRAPH SHOWING THE AVAILABILITY OF LAND NEAR THE EXISTING MEDICAL STAFF ROOM.
Exhibit P7 A	PHOTOGRAPH SHOWING THE VACANT AREA NEAR PETITIONER'S SHOP
Exhibit P7B	PHOTOGRAPHS SHOWING THE VACANT AREA NEAR PETITIONER'S SHOP
Exhibit P8	THE PHOTOGRAPHS SHOWING THE AERIAL VIEW SHOWING THE EXISTING MEDICAL AID POST AND PETITIONER'S SHOP

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WP(C) NO. 26513 OF 2021

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RESPONDENT EXHIBITS:

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

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Annexure R1(A) TRUE COPY NO.12277/PIU-PKD/NH544/BOT/KL3/1227 DATED 23/07/2021 ISSUED BY THE 2ND RESPONDENT.

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

Shaji K v. National Highways Authority of India - NHAI

Case brief

What is this about?

What did the court decide?

Shaji K v. National Highways Authority of India - NHAI

Case brief

What is this about?

What did the court decide?

What the court decided

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