Disposed

Alukka Kunhipaulo Devassikutty v. State of Kerala

Kerala HC16 Dec 2022WP(C)/31708/2013

Case brief

AI extract

What is this about?

Respondents disposed of a writ petition challenging land acquisition for a proposed bypass and bridge at Kalady. The Court directed authorities to consider resolutions from MLAs and Block Panchayat and public proposals regarding road extension extensions if social impact assessment studies are conducted under the 2013 Act.

What did the court decide?

The Court disposed of the petition by directing that resolutions by MLAs and Block Panchayat be considered, and that public proposals be taken into account if a social impact assessment study is carri

Alukka Kunhipaulo Devassikutty Vs State of Kerala — Land Acquisition | 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 SHAJI P.CHALY

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FRIDAY, THE 16^TH DAY OF DECEMBER 2022/25TH AGRAHAYANA, 1944 WP(C) NO. 31708 OF 2013

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PETITIONERS:

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1 ALUKKA KUNHIPAULO DEVASSIKUTTY AGED 68 YEARS S/O.KUNHIPAULO, ALUKKA, CHENGAL, KALADY P.O., VADAKKUMBHAGOM VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT.

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2 ALUKKA KUNHIPAULO VARGHESE AGED 62 YEARS S/O.KUNHIPAULO, ALUKKA, CHENGAL, KALADY P.O., VADAKKUMBHAGOM VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT.

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BY ADV.SRI.V.V.NANDAGOPAL NAMBIAR

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2 THE CHIEF ENGINEER PUBLIC WORK DEPARTMENT (ROADS AND BRIDGES), THIRUVANANTHAPURAM - 695 001.

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3 THE EXECUTIVE ENGINEER PWD ROADS DIVISION, ERNAKULAM - 682 020.

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4 THE SUPERINTENDING ENGINEER PUBLIC WORK DEPARTMENT, ROADS AND BRIDGES,

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W.P.(C.) No. 31708/2013 2

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CENTRAL CIRCLE, ALUVA - 683 101.

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R1 BY SRI.JOBY JOSEPH, SENIOR GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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This writ petition is filed by the petitioners seeking the

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following reliefs:-

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“ i) To issue a writ of mandamus or other appropriate writ order or direction commanding the respondents to appoint a high level Technical Expert Committee consisting technical, traffic experts to examine and study the feasibility of the present proposal for the construction of By pass linked with new bridge across Periyar River parallel to the existing Sree Sankaracharya Bridge at Kalady and also to make a comparative study regarding the feasibility of alternate alignment by extending the by-pass road up to Mattoor Junction proposed by the petitioners and people's representatives.

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ii) To restrain respondents from taking over petitioners land comprised in Sy No. 391/3 of Kalady Village for the purpose of construction of new By pass before considering other proposals

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iii) To include the land which would lead to Mattoor Junction from newly proposed bridge in the proposed Survey under Section 6 of the Kerala Land Survey and Boundaries Act as proposed by the petitioners, Local MLAs District Development Committee, Angamaly Block Development Seminar, Kalady Grama panchayath and other organizations

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v) To restrain the respondents from finalizing the Survey Report under section 6 of the Kerala Land Survey and Boundaries Act without considering in the request of the petitioners and others including that of the local MLAs

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vi) To direct the respondents to take adequate measures to ensure free and smooth flow of traffic through the By pass road linked with new bridge across Periyar River parallel to the existing Sree Sankaracharya Bridge at Kalady. ”

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Petitioners are brothers and they are in joint possession of 5.40 Ares of land comprised in Sy. No. 391/3 of Kalady Village. According to the petitioners, they are aggrieved by the proposal to acquire their land for the purpose of construction of bye-pass road linking with the new bridge across Periyar river parallel to the existing Sree Sankaracharya bridge at Kalady. The case of the petitioners is that if bye-pass is constructed as per the present proposal, no purpose will be served. But on the other hand, if the bye-pass is extended upto Mattoor Junction from Thannipuzha, traffic congestion now suffered at MC road, Kalady can be mitigated. It is also the case of the petitioners that representatives of the people and local bodies at all levels made demands to extend the bye-pass road up to Mattoor. Exts. P6, P7 and P8 resolutions

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were submitted by Members of Legislative Assembly and the Block Panchayat with respect to the aforesaid demand raised by the petitioners. However, according to the petitioners, unmindful of the resolutions and the requests made by Members of Legislative Assembly and the Block Panchayat, the respondents were proceeding to acquire properties and construct the road and bridges in accordance with the said plan which would not serve the purpose of the public and in order to reduce the traffic at Kalady Town.

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Anyhow, this writ petition was pending before this Court from the year 2013.

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A detailed counter affidavit is filed before this Court by the respective respondents in which various aspects are dealt with taking into account the facts and circumstances pointed out by the petitioners. But fact remains, the proposed actions were under the Land Acquisition Act, 1894 (for short, the 'Act, 1894.') . The said Land Acquisition Act is now replaced by the Right to Fair

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Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 which has a totally different facets from the provisions of the Act, 1894. If the petitioners or any other persons have any objection with respect to the manner in which the acquisition is made, at the stage of social impact assessment study, all the people of the locality are entitled to raise objections when public notice is issued.

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The learned counsel for the petitioners, Sri. V.V. Nandagopal Nambiar submitted that a reference to the counter affidavit filed by the Executive Engineer, PWD, Roads Division dated 30.09.2014 would be worthwhile to substantiate that the demands raised by the petitioners and others with respect to the extension of the proposed road is justified. Paragraphs 6 and 7 of the said counter affidavit are extracted hereunder:-

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“6. On 24.06.2014 a meeting has been convened by the Hon'ble Chief Minister at Thiruvananthapuram, with the presence of Hon'ble Minister for Works, Hon'ble Minister for Fisheries & Excise, Hon'ble M.P of Chalakudy Sri. Innocent, Hon'ble MLA's Sri. Jose

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W.P.(C.) No. 31708/2013 7

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Thettayil, Sri. Anwar Sadath, Sri. Saju Paul and Sri.V.P. Sajeendran, Sri. P.P. Thankachan UDF Convenor, Kalady Panchayath President, Kanjoor Panchayath President, District Collector Ernakulam, Chief Engineer PWD(Roads & Bridges) etc. it has been decided to revise the approved alignment by extending the approach road/ bye pass road to Mattoor- Airport road. The survey works for revising the alignment by extending the bye pass road to Airport road has to be conducted. It is submitted that the relevant decision taken in the meeting held on 24.09.2014 convened by the Hon'ble Chief Minister of Kerala are:

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1. To submit a revised proposal after approval of the revised alignment in which bye pass road meeting at Mattoor-Airport road.

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After finalizing the alignment, to speed up the land acquisition procedures for getting sufficient land for starting the bridge work.

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7. It is respectfully submitted that the administrative sanction and special sanction was accorded for the construction of the bridge parallel to the existing Sree-Sankaracharya Bridge, Kalady at a cost of Rs. 4200 Lakhs vide G.O.(Rt)No 492/2012/PWD dated 27.03 2012. In this project, the bridge was proposed to be constructed adjacent to the existing bridge and to join with the existing road by constructing immediate approaches on either side. Due to protest from the public and peoples representatives, the same could not be materialized even though survey,

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investigation and design work had been completed. Hence the survey for finding out alternate route/ bye-pass was started. But due to the protest from local people and local political leaders the survey could not be completed even after several attempts and thus the land acquisition procedure was initiated under 6(1) Notification after publication in the gazette.”

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Therefore, I propose to dispose of the writ

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petition with the following directions:-

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If and when notification is issued or the land acquisition proceedings are proceeded on the basis of the Act, 1894, then the resolutions passed by the members of the Legislative Assembly and the Block Panchayat shall be taken into consideration. The proposal mooted by the public, if any, so as to have advantage of extension of the road to a particular junction and to reduce the traffic at Kalady may also be taken into consideration. Anyhow, all these aspects shall be considered by the authority, if and when a social impact assessments study is carried out in terms of the provisions of the Right to Fair Compensation

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and Transparency in Land Acquisition, Rehabilitation and

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Resettlement Act, 2013.

Sd/-

SHAJI P. CHALY

JUDGE

DCS/19.12.2022

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APPENDIX

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE WILL NO.36/1984 OF SREEMOOLANAGARAM SRO. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 08.06.2011. EXHIBIT P3 TRUE EXTRACT OF THE PRESS REPORT DATED 08.10.2011. EXHIBIT P4 TRUE COPY OF THE GO(RT)NO.492/2013/PWD DATED 27.03.2013. EXHIBIT P5 TRUE COPY OF THE PRESS REPORT PUBLISHED IN MATHRUBHUMI DAILY DATED 17.03.2013. EXHIBIT P6 TRUE COPY OF THE RESOLUTION ALONG WITH COVERING LETTER DATED 12.03.2013. EXHIBIT P7 TRUE COPY OF THE RESOLUTION DATED 04.03.2013. EXHIBIT P8 TRUE COPY OF THE RESOLUTION DATED 10.12.2013. EXHIBIT P8(A) TRUE COPY OF THE RESOLUTION DATED 25.02.2013. EXHIBIT P8(B) TRUE COPY OF THE PRESS REPORT PUBLISHED IN MALAYALA MANORAMA DAILY DATED 18.03.2013. EXHIBIT P9 TRUE COPY OF THE REQUEST MADE BY MLA ANGAMALY DATED 01.04.2013. EXHIBIT P10 TRUE COPY OF THE LETTER DATED 03.04.2013. EXHIBIT P11 TRUE COPY OF THE LETTER DATED 09.09.2013.

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EXHIBIT P12 TRUE COPY OF THE KERALA GAZETTE DATED 24.09.2013.

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EXHIBIT P13 TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER.

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EXHIBIT P12(IN TRUE COPY OF THE LETTER DATED I.A.NO 12942/2014) 30.07.2014 ADDRESSED TO THE CHIEF MINISTER, KERALA

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RESPONDENTS ANNEXURE

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ANNEXURE R3(A) TRUE COPY OF THE GOOGLE MAP SHOWING ALIGNMENT UNDER CONSIDERATION OF DEPARTMENT