Madras High CourtWP(MD)/18709/2016disposed of

P.Mahamuni v. The Government Of Tamil Nadu

2016-12-22Honourable Mr Justice M.V. Muralidaran,Honourable Mr Justice S. Nagamuthu10 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON : 29.11.2016 PRONOUNCED ON : 22.12.2016

CORAM:

THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN Writ Petition (MD) No.18709 of 2016 and W.M.P.(MD) No.13546 of 2016 P.Mahamuni .. Petitioner - Vs -

1. The Government of Tamil Nadu, Rep. by its Additional Chief Secretary cum Commissioner of Land Administration, Fort St. George, Chennai - 600 009.

2. The Government of Tamil Nadu, Rep. by its Principal Secretary, Revenue Department, Fort St. George, Chennai - 600 009.

3. The Chief Engineer, Project Division, Department of Highways, Ezhilagam, Chennai - 600 005.

4. The Divisional Engineer (Highways), Planning Division, Madurai.

5. The Superintending Engineer, Southern Railway, Madurai Division,

6. The Southern Railway, Rep. by its Divisional Manager, Madurai Division, Madurai.

7. The District Collector, Madurai District, Madurai.

8. The District Revenue Officer, Madurai South, Madurai District.

9. The Revenue Divisional Officer, Madurai South, Madurai District.

10. The Tahsildar, Thiurpparankundarm Taluk, Madurai South, Madurai District.

11. The Village Administrative Officer, Thirupparankundram, Madurai.

12. The Inspector of Police, Thirupparankundram Police Station, Madurai.

.. Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India seeking a Writ of Mandamus directing the respondents to lay the LUS (limited use subway) in Railway K.M.:67 between Madurai Junction and Thirupparankundram Station as per the decision mentioned in the communication dated 06.08.2015 by the 4th respondent.

For Petitioner : M/s.J.Anandhavalli For Respondents 1 to 4 & 7 to 12 : Mr.M.Govindan Special Government Pleader For Respondents 5 & 6: Mr.S.Manohar

O R D E R

S.NAGAMUTHU.J., This is a Public Interest Litigation. The petitioner is a resident of Thirupparakundram. Earlier, there was a level crossing of railway line at K.M.:500/6-7 between Madurai and Thiruparankundram railway stations. In lieu of the said level crossing, the Government of Tamil Nadu issued G.O.Ms.No.272, Highways & Minor Ports (HQ2) Department, dated 13.11.2007 sanctioning necessary funds for constructing a Road Over Bridge (hereinafter referred to as 'ROB'). Accordingly, the ROB was constructed and the said work was completed on 29.10.2013. The bridge was opened to traffic on 11.11.2013. Thus, the vehicles and

passerby from Madurai to Thirupparankundram and Thirupparankundram to Madurai have been using the said ROB from 11.11.2013 onwards.

2. While so, it was also planned to construct a Limited Use Subway (hereinafter referred to as 'LUS') for the above stated ROB. Technically, it is a sub-work to ease the traffic congestion in the ROB. A sum of Rupees 572.00 lakhs was sanctioned and the work was awarded to Mr.I.Vetrivel a contractor in Madurai. The work was commenced on 17.04.2015. It is seen from the records that after the construction was commenced, the local public agitated to stop the work alleging that this subway was constructed with the prime purpose of favouring the Thiyagarajar Engineering College and thus it would not serve the public at large. As per the plan approved, after crossing the railway line from Madurai through the subway, it will take a turn towards left to reach the main road leading to Thirupparnkundram.

The public demanded an additional arm on right hand side of LUS on Thirupparankundram side so as to enable the local public from southern side of the ROB to have access to this LUS. In this regard, several representations were made by the public including the Member of the Legislative Assembly, Thirupparankundram to the District Collector and other authorities.

3. The District Collector, Madurai by his proceedings in ROC.No.62336/2015/F2, dated 29.02.2016 recommended to the Divisional Engineer (H), Projects Division, Madurai to consider the plea of the M.L.A. and to make provision of an additional arm in the LUS at L.C.370 on the right side of the LUS for the convenience of the public. The Divisional Engineer, having considered the representations and the recommendation of the District Collector vide his letter No.370/2014/JDO 1, dated 21.07.2016 requested the Traffic Wing team of HRS, Chennai to conduct traffic study and offer suggestions for this additional arm proposal.

4. The Deputy Director / Traffic Lab, HRS and one Er.T.S.Sundar, AD(H), Traffic Lab, HRS carried out an inspection for assessing the suitability and the site conditions for traffic management to the work of "Construction of LUS for the work of Construction of ROB in lieu of existing LC No.370 of K.M.500/6-7 near Thirupparankundram in Madurai City of Madurai Projects SubDn.-II under the control of Madurai (H), Projects Division. The Committee after making a thorough study by citing number of reasons submitted a report that the above proposal to have a right arm is not feasible. The reasons stated are as follows: ➢ The existing LUS with a two-way undivided carriageway width of 7.0 m, has sharp left turning curve on Thiagarajar Engineering College side.

➢ The Curve is so sharp that, even enough intervisibility is lacking on this section.

➢ This would prompt the vehicles to jump lanes and use the opposite lane of the LUS, while climbing up and down the LUS.

➢ This in itself, may induce 'head-on'

situation, which needs to be carefully negotiated by the vehicles while traversing along the LUS.

➢ In such a complex situation, addition of another arm into the LUS adds to the complexity.

➢ The vehicles from the proposed additional arm of Tirumangalam side, would join the LUS on its left, to proceed towards Madurai side.

➢ This would create a conflicting situation of converging with existing traffic flow along the sloped approach of LUS (from Thiagarajar Engineering College side towards Madurai side).

➢ Since, the opening of the LUS portion for joining this additional arm is already in a curve portion (the ideal location of such a merger would be the centre of the curved portion - the apex), this would create a rearend collusion. ➢ This apart, the vehicles from Thirumangalam side, have to negotiate two superelevation (one on the left-hand side of its approach and the other on opposite side (LHS of the existing LUS)) ➢ While negotiating such a complex geometry, if the speed of the vehicle is above limit, then the most dangerous situation of 'head-on' with the vehicles from Madurai side to Thiagarajar Engineering College side would be encountered. ➢ In all possibilities, the additional arm is supposed to add to severity of accidentproneness, as well as complexity to the existing geometry of the LUS, which would cause discomfort to the road-user.

➢ Hence, it is contended that, this proposal is NOT appropriate or suitable from road safety perspective.

➢ This apart, any addition of an arm to the existing LUS/RUB/ROB, should be necessitated only by Traffic warrants.

➢ Such traffic proposals indicating the need/demand for such a provision, is not supplemented with the D.E.(H)'s letter cited. ➢ Hence, in the absence of such a demand, this proposal is not justified from the traffic flow or demand point of view, for inclusion."

5. Based on the said report, the request of the general public and the local M.L.A. for providing an additional arm on the right side of LUS was not undertaken. In those circumstances, the petitioner has come up with this writ petition seeking a direction to the respondents to lay the LUS in Railway K.M.:6-7 between Madurai Junction and Thirupparankundram Station as per the decision mentioned in the communication dated 06.08.2015 by the 4th respondent.

6. In the additional affidavit filed in support of the petition, inter alia, the petitioner has averred that if the proposed construction is completed without providing for an additional right arm, the same would cause severe hardship to the public as the road between Thirupparankundram and Avaniyapuram would become non-existant and the public will have to travel a long distance to reach Thirupparankundram. It is also contended that if the proposed construction is completed, the same would affect the water bodies in as much as water from Thenghal kanmaai would be diverted resulting in difficulties to irrigation facilities to 1000 acres of land.

7. It is also contended that no environmental clearance has been obtained as required under the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007. It is mainly contended that the construction, which is now under way, has been made at K.M.500/3-4 instead of the proposed K.M.500/6-7. Thus the construction is made against the approved proposal. With these allegations, the petitioner has come up with this writ petition.

8. It is submitted by the respondents that the construction of the LUS has been made only as per the approved plan and there was no deviation. It is further contended that the main traffic across the railway line will be shouldered by the ROB constructed at the cost of Rs.2200.00 lakhs. The construction of LUS is only a sub work and it was only to ease out the traffic congestion in ROB. The LUS has been constructed between K.M.500/6-7 as proposed. It is further stated by the respondents that the District Collector, Madurai had recommended for forming the additional arm towards the right as requested by the local M.L.A. The alignment for this additional arm was also approved by the Alignment Approval Committee on 07.04.2016.

The Divisional Engineer (H), Projects Division, Madurai has prepared a proposal for forming an additional arm on the right side of LUS on Thirupparankundram side and submitted the same to the Chief Engineer(H) Planning, Designs and Investigation, Chennai for getting the design and detailed estimate for the new additional arm. The Chief Engineer in turn, sought for certain clarifications and further the Divisional Engineer was instructed to get the approval from the Traffic Wing of HRS since 'T' junction would be formed due to the provision of this additional arm. It was only in accordance with the said direction, approval was sought for from the Traffic Wing of HRS.

As we have already pointed out, for a number of reasons, as we have already extracted, the Traffic Wing of HRS has negatived the said proposal. Therefore, according to the respondents, it is not feasible to construct an additional right arm towards Thirupparankundram from the LUS as it is prayed for in the writ petition.

9. We have heard the learned counsel on either side and also perused the records carefully.

10. First of all, the dispute involved in this writ petition raises a number of technical issues. At the outset, we should say that this Court is not an expert body having the competence to decide about these technical issues. These all are the matters which need to be considered by the expert body assigned with the said job and to resolve the same. In this case, as we have seen from the records, originally there was only a level crossing across the railway line between Madurai and Thirupparankundram for the vehicles and passerby to cross the railway line from the Madurai side to Thirupparankundram side and from Thirupparankundram side to Madurai side. It was therefore planned to have a ROB. The ROB, in lieu of the level crossing, was completed at Railway K.M.500/6-7 and the same was thrown open for the traffic from 11.11.2013. There is no dispute in respect of the construction of the ROB.

11. Now, in order to reduce the traffic congestion through the ROB, construction of Limited Use Subway (LUS) was proposed. A sum of Rs.572.00 lakhs was allotted and the work was awarded to a contractor. The work was also commenced from 17.04.2015. There is no controversy before us that the LUS has been constructed under the railway line. The approach road to the LUS from the northern side has also been completed. On the southern side of the LUS, the approach road takes a left turn and reaches the main road which leads to Thirupparankundram. According to the petitioner, one has to go a long distance through the left arm then take a 'U' turn to go towards west to reach Thirupparankundram. This, according to the petitioner will cause hardship to the general public and he has also explained the other possible inconveniences for the public.

It is true that the general public and even the local M.L.A. have made representations to the authorities to provide an additional arm taking a turn towards the right so that the people who want to go towards Thirupparankundram can use the same without going towards east and then take a 'U' turn. The grievance of the public was duly considered by the District Collector and he also recommended to the Highways Department to provide for such additional arm vide letter No.ROC.No.62336/2015/F2, dated 29.02.2016.

right arm by its proceedings dated 07.04.2016. It is also true that the Divisional Engineer has prepared a proposal for construction of the additional right arm towards Thirupparankundram and submitted the same to the Chief Engineer (Design Wing), Chennai for getting the design and detailed estimate for the new additional arm. Therefore, according to the Alignment Approval Committee and according to the Divisional Engineer (H), Project Division, Madurai it was agreeable that such additional right arm could be constructed for the benefit of the people to go towards Thirupparankundram from the LUS.

12. It is also on record that acting on the said proposal submitted, the Chief Engineer(H) Planning, Designs and Investigation, Chennai by letter dated 27.01.2015 instructed the Divisional Engineer to get the approval from the Traffic Wing of HRS since a 'T' junction would be formed due to the provision of this additional arm. Even the Chief Engineer has not rejected the said proposal outright.

13. It is seen from the records that the Traffic Wing of HRS consisting of its Deputy Director / Traffic Lab, HRS and Er.T.S.Sundar, AD(H), Traffic Lab, HRS inspected the spot on 17.08.2016 during the pendency of this writ petition. They submitted a report, wherein as we have already pointed out several reasons have been stated for negativing the said proposal informing that it is not feasible to provide a right arm towards Thirupparankundram side from the LUS. It is seen that because of these reasons only, the proposal to have a right arm have been dropped by the respondents.

14. There is no controversy that providing such right arm would be beneficial for the people and it would reduce the inconvenience to the public and that is the reason why the local M.L.A. joined with the general public made such a request to the District Collector and the District Collector after having visited the spot recommended to the Highways Department to provide such right arm. As we have already pointed out, even the Alignment Approval Committee has approved the said proposal to construct a right arm towards Thirupparankundram side by its proceedings dated 07.04.2016. Thus, the Alignment Approval Committee also has got no objection for the right arm being provided. The Chief Engineer also has got no objection for providing the right arm. According to the Chief Engineer, since a 'T' junction could be formed by virtue the right arm towards Thirupparankundram side, he wanted approval from the Traffic Wing of HRS. It is because of the report of the Traffic Wing of HRS, the proposal has been now dropped.

15. As we have seen, the said Traffic Wing of HRS consisted of only two experts who visited the site only for one day i.e. on 17.08.2016. Considering the fact that all the other officials

such as the District Collector, the Divisional Engineer, the Alignment Approval Committee have all favoured the construction of right arm, in our considered view, the dropping of the said proposal simply based on two experts who are experts from HRS, the proposal ought not have been dropped.

16. In our considered view, the matter requires further study by few more experts. In normal course, we would not have interfered with the decision of the respondents to drop the proposal to construct the right arm towards Thirupparankundram so as to interfere with the opinion of the expert body. But, in the instant case, since it has been highlighted that if there is no right arm towards Thirupparankundram, it would result in enormous inconvenience to the people and since the said proposal has been favoured by other experts and also the District Collector, we are of the view that the matter requires further study. Acting on the report of two experts, we cannot ignore the possible inconvenience to the public and we cannot ignore the view taken by the other experts as well as the District Collector.

Therefore, we are inclined to issue a direction to the Chief Engineer to form an expert body consisting of five experts including two experts from the Anna University and after getting the report from the expert body, the Chief Engineer shall take appropriate decision in this regard. Until then, in our considered view, the status quo as on date shall be maintained.

17. In the result, the writ petition is disposed of in the following terms:

(i) The Chief Engineer (H) Planning, Designs and Investigation, Chennai shall nominate a Committee of experts consisting of five experts including two experts drawn from Anna University, Chennai directing them to assess the feasibility of constructing a right arm towards Thirupparankundram from the LUS already constructed. (ii) The said Committee shall make a thorough study of the technical issues involved and the convenience of the general public and submit a report to the Chief Engineer within a period of two months from the date of constitution of the expert committee.

(iii) The Chief Engineer (H) Planning, Designs and Investigation, Chennai shall thereafter on considering the said report take a decision in respect of the recommendations made by the District Collector, Madurai vide his proceedings in R.O.C.No.62336/ 2015/F2, dated 29.02.2016.

(iv) It is further directed that until such final decision is taken by the Chief Engineer (H) Planning, Designs and Investigation, Chennai the status quo as on date shall be maintained. Consequently, the connected miscellaneous petition is closed.

Sd/- Assistant Registrar(co) /True copy/ Sub Assistant Registrar To

1. The Additional Chief Secretary cum Commissioner of Land Administration, Fort St. George, Chennai - 600 009.

2. The Principal Secretary to Government, Revenue Department, Fort St. George, Chennai - 600 009.

3. The Chief Engineer, Project Division, Department of Highways, Ezhilagam, Chennai - 600 005.

4. The Divisional Engineer (Highways), Planning Division, Madurai.

5. The Superintending Engineer, Southern Railway, Madurai Division, 6.The Divisional Manager, The Southern Railway, Madurai Division, Madurai.