CHANDRIKA MENON Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the owner and is in possession of 16.5 cents of property comprised in Sy. No. 191 of Madathuvilakom Village in Thiruvananthapuram City. She is residing in a two storeyed building situated in that property. The plot is situated on the eastern side of Pattom-Ulloor-Kochulloor road. As a part of comprehensive planning and development of Thiruvananthapuram City, it was decided to widen the Pazhaya Road on the west of the property of the petitioner. The existing width of the road in front of the property of the petitioner is 13.12 meters. The proposal is to widen that road to have a width of 17.30 meters. This consists of four lane carriage way of 13 meters width, Central median of 30 centi meters and two meters side walk on either side of the road. Ext.Pl, a notification under Section 4(1) of the Land Acquisition Act, (for short the Act ), was issued on 11-11-2004. The proposal was to acquire 5.5 meters of land on the eastern side of Pazhaya road, whereas, on the opposite direction, only 0.5 meters of land was sought to be acquired.

(2.) Aggrieved by the notification, petitioner filed W.P.(C) No. 37763/2004 before this Court. In the counter affidavit filed in that writ petition, copy of which is marked as Ext.P2, the 4th respondent, Trivandrum Development Authority, has admitted that the width of the proposed road is 17.3 meters. It is admitted that the writ petition was dismissed. Petitioner filed W.A. No. 884/2005, which also ended in dismissal. She had filed S.L.P. No. 24569/2005, before the Honourable Supreme Court of India. That S.L.P. was also dismissed. It is averred that there is a solemn undertaking made by the TRIDA, which is the requisitioning authority, to the effect that the width of the road, in front of the petitioner s property is only 17.3 meters. But the 4th respondent, TRIDA, in flagrant violation of their stand taken in the affidavit, and contrary to the decision of the High Level committee, had ear marked the area for acquisition, by laying the stone, 2.17 meters in excess, inside the property of the petitioner. According to the petitioner, if the proposed plan is accepted, the width of the road on the west of the petitioner s property will be 19.45 meters, against the proposed width of 17.3 meters. It was contended that there is no justification in acquiring 2.17 meters in excess to the undertaking given by the respondents before this Court in the earlier writ petition. It is averred that though an area of 80 sq. meters of property was notified for acquisition from the petitioner, at the time of award enquiry, the area sought to be acquired was 1 Are 30 Sq. Meters. According to the petitioner, she filed a petition seeking rectification of the mistake, but there was no response to the written request. She again filed Ext.P6 representation before the fourth respondent on 23-3-2007, for which also no reply was given. It is specifically averred that if 17.3 meters of land is taken from the stone now fixed inside the property of the petitioner, that will not reach the stone now fixed on the western side of the road, and that will again lead to a situation wherein a considerable portion of the road being surrendered to the persons who are having land on the opposite side or facilitating for their encroachment into Government land. Hence the writ petition to quash Ext.P5 notice issued under Section 9(3) of the Act to the petitioner, and also for a direction to the respondents to widen the road lying in front of the petitioner s property to an extent of 17.3 meters from the existing 13.12 meters and not 19.45 meters and also for a direction to dispose of Ext.P6 representation.

(3.) On 28-3-2007, the Secretary of 4th respondent, TRIDA, had filed a counter affidavit, contending that 4th respondent has no intention to acquire and take any excess land from the property of the petitioner, other than what was stated in the decision taken by the High Level Committee meeting held on 21-10-2003. As per the decision of High Level Committee constituted by the Government of Kerala, it was decided to acquire land only a depth of 5.2 metres from the petitioner s property. This decision was again reconsidered and it was decided not to give any relief to the petitioner. It is admitted that the width of the existing road is only 43 feet (13.12 meters). The petitioner had stated the width of the road which lies on the west of her property alone, and she had not stated the width of the entire stretch of road. It is stated that the width of the proposed road is 17.3 meters, stretching from GG Hospital Junction to the Medical College Junction, which has been scientifically arrived at, considering the present and anticipated traffic along this road stretch. The proposed cross section consists of four line carriage way of 13 m width and 30 Cms. central median width with 2 m side walk on either side, totaling to a width of 17.3 m. The allegation is that respondents are attempting to acquire 2.17 meters in excess of the land from inside the property of the petitioner, in violation of the earlier stand is denied. It is contended that respondent has no intention to widen the road to a width of 19.45 m against the proposed width of 17.3 meters, and, therefore, no interference is called for in this writ petition. The averment that the fourth respondent had decided to acquire 2.17 meters of land in excess than what it had undertaken in the earlier writ petition before this Court is denied. It is further contended that survey stones before this Court is denied. It is further contended that survey stones are planted as per the approved alignment and only the required land as per the decision of the High Level Committee (i.e., as per the Original alignment) will be acquired for road widening. It is further contended that the area mentioned in the notification under Section 4(1) of the Act is only approximate and the extract area was arrived only after the revenue survey which was conducted after the above notification. It is further stated that demand for equal acquisition of property from both sides of the road is not practicable in this case. The above idea is only a developments on both sides is very limited or almost nil. A workable proposal is to adopt an alignment with minimum destruction and at the same time without compromising the road geometries and other technical aspects. It is further stated that the road in question branches off from NH 47, the major spine of the road net work of the region at Pattom and later joins NH 47 at Ulloor. It is an important urban arterial road, since it passes through the area which is the seat of many eminent institutions of national and international importance, viz., the Regional Cancer Centre, Medical College, etc. It is further stated that considering the present and anticipated traffic along this road stretch, the right of way (ROW) for various stretches of this road has been proposed. The proposed ROW for the road stretch of this road has been proposed. The proposed ROW for the road stretch between G.G. Hospital Junction and Medical College Junction by the side of which the petitioner s property is located is 17.30 meters. The averment that respondents are trying to acquire more land is denied. It is contended that the respondent will acquire only 5.2 m depth of land from the petitioner. Respondents have no intention to acquire more properly as alleged in the petition.