IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2279 of 2008()
1. ROSAMMA AUGUSTINE AND ANOTHER
... Petitioner
Vs
1. THE CHIEF ENGINEER (ROAD AND BRIDGES)
... Respondent
For Petitioner :SRI.GEORGEKUTTY MATHEW
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER
Dated :02/12/2008
O R D E R
H.L.Dattu, C.J. & A.K.Basheer, J.
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W.A.No.2279 of 2008
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Dated, this the 2nd December, 2008
JUDGMENT
Basheer,J.
A small plot of land with a residential building therein,
belonging to the appellants, was proposed to be acquired for construction of
Changanassery bye-pass road. Appellants contended that the width of the road
when it reaches their property was far in excess of other areas on the bye-pass
road. According to the appellants, the proposal was to have a width of 24
meters in respect of their property, whereas the width in the other areas is only
15 meters. It was in that circumstance, the appellants had filed the writ
petition, praying for the issue of a writ of mandamus directing the respondents
to follow the same width of 15 meters to the Changanassery bye-pass road
while passing through their lands as well.
(2) In the counter affidavit filed by the Executive Engineer,
Roads Division, PWD, Kottayam, it was asserted that there was no irregularity
or inconsistency in the line formation or specifications of the bye-pass road as
alleged by the appellants. Alignment had been fixed in such a way as to have a
minimum formation width of 15 meters at plane surface and more than 15
meters in the curved portions and in portions requiring cutting or filling
according to necessity, so as to ensure a formation width of at least 12 meter
for the road at such curves. It was further asserted that the width of the road
W.A.No.2279 of 2008
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contiguous to the petitioner’s property is 19 meters and not 24 meters as
alleged and that since the road passing through the petitioner’s property would
require cutting for an average depth of 2 meters, extra land width is necessary
to provide the required slope to both sides.
(3) The learned Single Judge, after an elaborate consideration
of the rival contentions of the parties, held that the contentions raised by the
appellants were not at all valid or sustainable. Accordingly, the writ petition
was dismissed.
(4) The learned counsel for the appellants has conceded before
us that there is no violation of the statutory formalities as far as issuance of
notification, enquiry, etc. are concerned. However, he still persisted with his
contention that the width of the road at the property of the appellants was in
excess as compared to other areas through which the road is proposed to be
constructed. However, having perused the counter affidavit filed by the 2nd
respondent, we are not inclined to agree with the above contention.
(5) As rightly noticed by the learned Single Judge, the Executive
Engineer had clearly stated that the property of the appellants was lying at a
depth of 2 meters and a retaining wall had to be constructed and, therefore,
the width had to be slightly increased in order to obtain a minimum road
width of 12 meters. It is the definite case of the Executive Engineer, which
has not been controverted by the appellants, that the road passing through the
appellants’ property would require cutting for an average depth of 2 meters
W.A.No.2279 of 2008
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and hence excess land width is necessary to provide the required slope to the
sites, since vertical formation is not practical. Therefore, we do not find any
material illegality or irregularity in the orders passed by the learned Single
Judge. More importantly, no malafides have been alleged against the
respondents.
(6) At this stage, the learned counsel for the appellants invites
our attention to Annexure A Circular, which is stated to have been issued by
the Chief Engineer in the year 2002. According to the learned counsel, if the
norms prescribed in the said Circular are followed, the cost of construction of
the retaining wall would be much less and, therefore, he contends that the
appellants would be entitled to get the benefits in the cost of acquisition. This
is a matter which the appellants have to necessarily raise before the authority
concerned, in which event, the said authority shall consider that request.
(7) With that liberty reserved in favour of the appellants, we
dismiss the Writ Appeal making it clear that we do not find any procedural or
other irregularity in the acquisition proceedings.
H.L.Dattu
Chief Justice
A.K.Basheer
vku/- Judge