The Kerala High Court has dismissed a Public Interest Litigation (PIL) over the Right of Way in the remaining stretch of NH 85 being affected following the work undertaken by the National Highways Authority of India (NHAI).
There is no dispute to the fact that the NHAI is undertaking the work of strengthening the existing road under the title “Widening/Development of existing NH-85 from Km 0.000 to Km 124.636 section of NH-85 to 2L/2L+PS section in the State of Kerala on EPC mode”.
The petitioner points out various photographs to show that a drainage is being constructed on the right of way and as a result, no pedestrian will be able to utilise the land available after the formation of the road or strengthening the road.
It is submitted that there already exists a drainage and overlooking the existence of drainage, a new construction has been undertaken in such a way to hamper the right of way of the pedestrians to utilise such a place available on the side of the road.
It is further pointed out that the Apex Court ordered removal of all encroachments on the side of the National Highway and overlooking such a direction of the Apex Court in W.P. (C) No..1272 of 2019, the NHAI itself have encroached upon the Right of Way.
A detailed counter affidavit has been filed in this matter by respondents Authorities which states that :
“IRC:SP:50-2013 – Guidelines on Urban Drainage” clearly explains the various options to be adopted for drains. Clause 5.2 c) specifies that “Covered drains can be located at the edge of right-of-way, below foot path or even below the carriageway, where the road is narrow, as in newly added areas / revenue packets and road land is encroached, RCC box drains designed to take vehicular load may be provided. The location and size required can be accommodated at a suitable position in the right-of-way so that inspection, silt removal and its disposal can be carried out without any hindrance. …..”
The Division Bench of Acting Chief Justice A. Muhamed Mustaque and Justice S. Manu noted from the counter affidavit itself, the construction of the covered drainages will no way affect the right of the pedestrian or even motor traffic.
The argument of the counsel for the petitioner that such construction of the drainage would affect the pedestrians, cannot be accepted for the simple reason that the covered drainages are used for multi purposes including, drawing water line, cables etc. It may be true that there exists a drainage on the extreme side of the road as is seen from the photographs. It is not for this Court to decide in what manner a construction should be undertaken and the Courts have no expertise in a matter like this. If the right of way is not affected, the Court should be reluctant to proceed with such matter. Therefore, according to us, the construction of the drainages by the NHAI is in accordance with their scheme or plan and design as approved by the competent authority, observed by the High Court.
“If there are any other encroachments on the right of way, we are sure that the National Highway Authority and other Authorities to whom the law cast responsibility, will act to remove such encroachments. If the petitioner is able to point out such encroachments, the official respondents herein shall take steps to remove such encroachments without any delay, at any rate, within a period of three months thereon,” the Court directed.