WP/19887/2019 of Tammareddy Ramesh, Vs UNION OF INDIA on 31 December 2019

ORDER:

1. This writ petition under Article 226 of Constitution of India is filed, seeking of writ of mandamus, directing respondent Nos.2 to 5 to complete process of acquisition vide Section 3A (1) of notification dated 28.01.2019 of National Highways Act, 1956 published in Gazette of India (extraordinary) dated 29.01.2018 within a time bound programme, to form service road abutting Benz circle flyover on eastern side at a width of 10 meters, declaring their action as illegal, ultra vires to Articles 14 and 21 of Constitution of India.

2. The petitioners are residents of Vijayawada, near benz circle flyover, third respondent herein held review meeting with officials of respondent Nos.1 to 5 on 22.11.2019, after inspecting the site, submitted report vide Rc.CC No.11/2019 dated 23.11.2019 to second respondent herein, recommending for formation of service road at a width of 8 to 10 meters at the earliest.

3. On 28.01.2019 first respondent herein issued notification, published on 28.01.2019 under Seciton 3A (1) vide National Highways Act, 1956 (for short Act 30 of 1956) in Gazette of India (extraordinary), dated 29.01.2019 having satisfied that the lands shown in the schedule are required for public purpose i.e. for formation of service road at a width of 8.5 meters. The said notification was published in local newspapers Hindu and Andhra Jyothi on 15.02.2019 respectively.

2 MSM, J

4. Third respondent vide letter dated 27.03.2019 categorically stated that for construction of service roads and other facilities at Chennai side, approach portion of flyover, additional land of 0.08 hectares is required for completion of approaches, service roads and drain, the total costs of acquisition has been arrived at Rs.12.62 crores. Having sensed the lethargic attitude of concerned, petitioners addressed a representation dated 28.11.2019 to respondent Nos.1 and 2, requesting to solve the problem expeditiously, as opening of flyover is on wheels, but so far no action is taken. Questioning the inaction of respondents, the present writ petition is filed seeking direction as stated above. Petitioners also furnished required length of toe wall, carriage way, load bearing drain and utilities corridor etc,. in the affidavit itself, but due to inaction of respondents, petitioners were compelled to approach this Court, seeking relief of mandamus, as the officers of respondents failed to discharge their public duty.

5. Fifth respondent herein filed detailed counter, while admitting about their duty and formation of road on either side of approaches, but contended that road can be laid only in a width of 7 meters, but not in 10 meters as contended by petitioners, acquisition of land for service roads is in process. Therefore, petitioners agreed to form 7 meters road, as per agreement with contractor itself.

6. During hearing, the learned counsel for petitioners Sri V.S.R Anjaneyulu, while reiterating the contentions, drawn the attention of this Court to Manual of Specifications & Standards for Four Laning of Highways through Public Private Partnership, IRC:SP:84-2014, 3 MSM, J

guideline No.2.12.2.1 is relevant which deals with formation of service roads etc, on the basis of this guideline, requested to direct respondents.

7. Whereas learned Standing Counsel for National Highways Authority of India, requested to pass appropriate order, in accordance with law.

8. There is no dispute regarding construction of flyover, duty of respondents to form service roads for approach, but the dispute is only whether it is 7 meters service road as contended by respondents or 10 meters service road as per guideline No.2.12.2.1 as contended by petitioners.

9. No doubt according to contention of respondents, they entered in to contract with contractor for formation of 7 meters width service road as contended in the counter. But their contract with contractor is irrelevant for the purpose to decide the issue and the guidelines framed and published by Ministry of National Highways is relevant. Guideline No.2.12.2.1 reads as follows:

“In open country with isolated built up area, the service road shall have 7 meters wide carriage way and 1.5 meters wide earthen shoulder on either side. In built up area, the service road shall have 7.5 meters wide carriage way (including kerb shyness of 0.25 meters on either side) with raised footpath/separator on either side as given para 2.15 and as shown in Fig.2.6. Any deviations to the above provisions shall be specified in schedule ‘D’ of the Concession Agreement. Wherever required provision for Parking Bays of length of 20 meters and width of 3 meters may be made along the service road and the same shall be specified in Scheduel ‘B’ of Concession Agreement”.

10. Here in this case, there is no Concession Agreement, except an agreement for construction of flyover and formation of service road. In 4 MSM, J

the absence of any material to show that there is any Concession Agreement, authorities are bound to form service road of 7.5 meters wide carriage way (including kerb shyness of 0.25 meters on either side), since the flyover is not built up area. Therefore, respondents are bound to form service road for public use and any contravention may lead to serious consequences. Apart from that there is no Concession Agreement between the parties. In the absence of any Concession Agreement, respondents are bound to formulate service road of 7.5 meters wide carriage way (including kerb shyness of 0. 25 meters on either side).

11. Hence, I find that it is a fit case to issue direction to fifth respondent to form service road in terms of guideline No.2.12.2.1 of Manual of Specifications & Standards for Four Laning of Highways through Public Private Partnership, IRC:SP:84-2014, within three (3) months from the date of receipt of copy of this order.

12. With the above direction, the writ petition is disposed of. There shall be no order as to costs.

13. Consequently, miscellaneous petitions, pending if any, shall stand closed.

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JUSTICE M. SATYANARAYANA MURTHY

Dated 31.12.2019 Rvk