Kerala High Court
Fr. Koshy Mathew vs Union Of India on 8 December, 2022
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Thursday, the 8th day of December 2022 / 17th Agrahayana, 1944
W.P.(C)NO. 6572 OF 2020 (V)
PETITIONERS:
1. FR. KOSHY MATHEW, AGED 52 YEARS, S/O LATE P.G.KOCHUKOSHY, RESIDING
AT PULINTHANATHU THAKADIYIL HOUSE, THEKKEKKARA P.O.PIN-690 503, NOW
WORKING AS VICAR, ST. GEORGE ORTHODOX VALIYAPPALLY CHEPPAD, CHEPPAD
P.O. PIN-690 507, ALAPPUZHA DISTRICT.
2. OOMMEN P.VARGHESE, AGED 72 YEARS, S/O LATE P. GEEVARGHESE, RESIDING
AT MANGATTU HOUSE, KANJOOR, CHEPPAD P.O., PIN-690 507, NOW WORKING
AS TRUSTEE, ST. GEORGE ORTHODOX VALIYAPPALLY, CHEPPAD, CHEPPAD P.O.,
PIN-690 507, ALAPPUZHA DISTRICT.
3. CHANDY KOSHY, AGED 61 YEARS, S/O LATE A.C.KOSHY, RESIDING AT
PAIPPATTETHU HOUSE, CHEPPAD P.O. PIN-690 507, NOW WORKING AS
SECRETARY, ST. GEORGE ORTHODOX VALIYAPPALLY, CHEPPAD, CHEPPAD P.O.,
PIN-690 507, ALAPPUZHA DISTRICT.
RESPONDENTS:
1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF ROAD
TRANSPORT AND HIGHWAYS PARIVAHAN BHAVAN, 1, PARLIAMENT STREET, NEW
DELHI-110 001.
2. NATIONAL HIGHWAYS AUTHORITY OF INDIA, REPRESENTED BY ITS
CHAIRMAN/CHIEF EXECUTIVE, TRANSPORT BHAVAN, SANSAD MARG, NEW
DELHI-110 001.
3. PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT, NATIONAL HIGHWAYS
AUTHORITY OF INDIA 36/414 (5), KOICKKAL VEEDU, KAVU LANE,
PALKULANGARA, THIRUVANANTHAPURAM, PIN-695 024.
4. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT
OF PUBLIC WORKS, KERALA GOVERNMENT, SECRETARIAT,
THIRUVANANTHAPURAM-1.
5. THE SPECIAL DEPUTY COLLECTOR, LAND ACQUISITION/NATIONAL HIGHWAY (LA-
NH) CIVIL LINES, ALAPPUZHA,PIN-688 001.
6. ADDL.R6. REV. DR. JOSHUA MAR IGNATHIOS, AGED 70 YEARS, S/O LATE K.
O. VARGHESE, BISHOP OF MALANKARA CATHOLIC DIOCESE OF MAVELIKKARA,
RESIDING AT AMALAGIRI CATHOLIC BISHOPS HOUSE, HOUSE NO. XII/439E,
PUNNAMMOODU, MAVELIKKARA, ALAPPUZHA-690101. REPRESENTED BY HIS POWER
OF ATTORNEY HOLDER MR. M. THOMAS, AGED 70 YEARS, S/O OF LATE MR. G.
MATHAI, RESIDING AT CHARUVILA MELATHIL HOUSE, CHOWALLOOR, IDAKKADAM
P.O.. EZHUKONE, KOTTARAKKARA, KOLLAM. (ADDL. R6 IMPLEADED AS PER
ORDER DATED 30/11/2020 IN I. A. NO. 4/2020 IN WP(C)6572/2020.)
7. ADDL.R7. V.K.VARGHESE, AGED 67, S/O V. M. KOSHY, VANCHIYIL, CHEPPAD
P. O., ALAPPUZHA DISTRICT-690507.
8. ADDL. R8. V. K. MATHEW, AGED 71, S/O V. M. KOSHY, VANCHIYIL, CHEPPAD
P. O., ALAPPUZHA DISTRICT-690507.
9. ADDL. R9. DR. SYAMA. S, AGED 68 YEARS, W/O SUGATHAN P.P.,
SRIVILASAM, CHEPPAD, ALAPPUZHA-690507. (ADDL. R7 TO R9 IMPLEADED AS
PER ORDER DATED 30/11/2020 IN I. A. NO. 5/2020 IN WP(C) 6572/2020.)
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to stay further proceedings under Ext.P6 notification, during the
pendency of the writ petition.
This petition again coming on for orders upon perusing the
petition and the affidavit filed in support of WP(C) and this court's
order dated 15.12.2021 and upon hearing the arguments of
M/S.B.RENJITHKUMAR, T.PRADEEP KUMAR & JISHA P.C., Advocates for the
petitioners, SRI.MANU. S., DEPUTY SOLICITOR GENERAL OF INDIA for R1,
SRI.K.A.SALIL NARAYANAN, Advocate for R3, GOVERNMENT PLEADER for R4 & R5,
M/S.GEORGE VARGHESE (PERUMPALLIKUTTIYIL), A.R.DILEEP, P.J.JOE PAUL, MANU
SRINATH, RAJAN G. GEORGE, Advocates for Addl.R6, M/S. P.A.MOHAMMED SHAH,
C.R.SYAMKUMAR, MUHAMMED JANAISE V., ASWIN KUMAR M J, MOHAMED MUSTHAFA A.K.
& HELEN P.A., Advocates for Addl.R7 to Addl. R9, the court passed the
following:
[P.T.O.]
TRUE COPY OF THE RELEVANT PORTION OF THE SAID PAPER
EXHIBIT P7 PUBLICATION DATED 29.3.2013 IN THE HINDU DAILY IN ENGLISH
LANGUAGE CONTAINING A SMALL PORTION OF THE MURAL PAINTINGS
TRUE COPY OF THE MINUTES DATED 21/7/2020 CONDUCTED BY THE 2ND
EXHIBIT P15 RESPONDENT ( PRODUCED ON 25.08.2020 ALONG WITH IA NO. 2/2020 IN
WPC 6572/2020 FILED FOR ACCEPTING DOCUMENTS. )
TRUE COPY OF THE NOTIFICATION DATED 31/12/2020. ( PRODUCED ON
EXHIBIT P17 13.01.2021 ALONG WITH IA NO. 1/2021 IN WPC 6572/2020 FILED FOR
AMENDMENT OF WPC. )
S.MANIKUMAR, C.J. & SHAJI P. CHALY, J.
---------------------------------------
I.A.No.1 of 2022 in W.P.(C)No.2510 of 2019
& W.P.(C)No.6572 of 2020
---------------------------------------
Dated this the 8th day of December, 2022
ORDER
S.MANIKUMAR, C.J.
On this day, when the matter came up for hearing, Mr.K.A.Salil Narayanan, learned counsel appearing for the National Highway Authority of India, submitted that lands have been acquired for the purpose of widening National Highway-66 (erstwhile National Highway-47).
2. It is further submitted that NHAI is proposed to construct elevated National Highway instead of widening National Highway-66, and in such circumstance, the question of demolition of Church in question may not arise.
3. Above submission of the learned counsel for National Highway Authority of India is placed on record.
4. Pending disposal of WP(C)No.2510/2019, petitioner has filed I.A. No.1/22 seeking for a direction to the respondents 3 to 10 therein to identify the extent of property to be acquired as per the revised elevated alignment of the stretch adjoining the petitioners property I.A.No.1 of 2022 in W.P.(C)No.2510 of 2019 & W.P.(C)No.6572 of 2020 :: 2 ::
(Ch-448/400 to Ch-448/900) as directed in Ext.P15, before taking possession of the property and dismantling the Madbaha and portion of the Church and adjoining building.
5. In support of the above petition, petitioner has also filed Ext.P15 communication dated 18.5.2021 issued by NHAI. In the affidavit, filed along with the I.A.1/22, it is averred as under:
"5. It is humbly submitted that the writ petitions filed on behalf of the respective churches were considered along with writ petition filed by the Indian National Trust for Art and Cultural Heritage (INTACH). Counter affidavits were filed by the National Highway Authority and Archaeological Survey of India. Considering the materials on record, particularly the opinion of ASI, Thrissur Circle regarding St. George Orthodox Valiyapally, Cheppad, Alappuzha, this Honourable Court, by order dated 03.08.2021, directed the Project Director of National Highway/4th respondent in writ petition not to take possession of church until further orders. Accordingly, the land acquisition process as regards the said St. George Orthodox Valiyapally, Cheppad, Alappuzha is not being proceeded with.
6. It is relevant to state that in furtherance of the acceptance of proposal for concentric widening, the 2 nd respondent had issued 3A Notification and consequently 3D Notification, which are under challenge in W.P.(c) No. 6572/2020. As per Ext. P17, 3D Notification, a total of 36.129 cents of property of St. George Orthodox Valiyapally, Cheppad, Alappuzha is acquired whereas 43.1369 cents of property of the I.A.No.1 of 2022 in W.P.(C)No.2510 of 2019 & W.P.(C)No.6572 of 2020 :: 3 ::
petitioner was acquired for the purpose of widening of the said stretch. The property sought to be acquired under Ext.P17 takes in 17.324 cents wherein the sanctum sanctorium (Madbaha) and portion of church of Secret Heart Malankara Catholic Church is located. Intending to renovate the church within the remaining portion of the property, the petitioner submitted the title documents showing the right, title and interest of the church over the said property and the account details to the respondents 7 to 9 as sought for. It is now understood that amounts have been transferred to my account towards compensation for the above acquisition. I furnished the title documents and the details of my account on the bonafide belief that the 2 nd respondent would proceed in terms of 3D notification dated 31.12.2020 (Ext.P7 in W.P.(c) 6572/20).
7. In the meanwhile, the 2 nd respondent had addressed the 4th respondent vide Letter No. NHAI/Tech/Para-Kot/NH-47/2019-20 (E-20072) dated 18.05.2021 regarding their proposal for elevated structure in Cheppad stretch (Ch-448/400 to Ch-
448/900) to protect the St. George Orthodox Church, Malankara Catholic Church and Marthoma Church. It is stated therein that land acquisition be restricted and land be acquired as per the modified alignment. Revision of estimate, bid etc was also recommended. A true copy of Letter No. NHAI/Tech/Para -Kot/NH- 47/2019-20 (E-20072) dated 18.05.2021 along with the plan sent by 2nd respondent to 3rd respondent is produced herewith and marked as Exhibit P15.
8. Ext.P15 has already been produced by the petitioner in W.P.(c) 6572/20 before this Honourable Court while seeking issuance of directions.
9. It is humbly submitted that in view of Ext. P15 and consequent modification of alignment, it is not I.A.No.1 of 2022 in W.P.(C)No.2510 of 2019 & W.P.(C)No.6572 of 2020 :: 4 ::
necessary to acquire that much extent land as has been sought to be acquired as per Ext. P17 notification produced along with W.P.(c) 6572/20. In such circumstances, it is necessary that the respondents be directed to identify the extent of property to be acquired as per the revised elevated alignment of the stretch adjoining the petitioners property (Ch-448/400 to Ch-448/900) as directed in Ext. P15, before taking possession of the property and dismantling the Madbaha and portion of the church. If the respondents take physical possession of the property, without finalising the extent of property required to be acquired for the revised elevated alignment, the same would cause serious injury, irreparable hardship and loss to me and parishioners of Sacred Heart Malankara Catholic Church, Cheppad. I undertake to refund/re- transfer the above amount forthwith to the account of the relevant respondent upon due direction by this Honourable Court.
10. To secure the ends of justice, this Honourable Court be pleased to direct respondents 3 to 10 to identify the extent of property to be acquired as per the revised elevated alignment of the stretch adjoining the petitioners property (Ch-448/400 to Ch-448/900) as directed in Ext. P15, before taking possession of the property and dismantling the Madbaha and portion of the church and adjoining building."
6. Learned counsel appearing for the National Highway Authority of India requests for time to file a counter affidavit in I.A.1/2022.
I.A.No.1 of 2022 in W.P.(C)No.2510 of 2019 & W.P.(C)No.6572 of 2020 :: 5 ::
7. Mr.George Varghese Perumpallikuttiyil, learned counsel appearing for the petitioner in W.P. (C)No.2510/2019, prayed that since there is a proposal for the elevated highway, direction be issued to return the lands already acquired.
8. On the said aspect, Mr.K.A.Salil Narayanan, learned counsel appearing for the National Highway Authority of India, submitted that lands already acquired cannot be returned and the same can be utilised for other purposes incidental to the proposal for the elevated highway or for other matters as provided therefore under the National Highways Authority Act, 1956.
9. Mr.Renjith Kumar, learned counsel for the petitioners in W.P.(C)No.6572/2020, submitted that even though there is a proposal for an elevated Highway, there is a likelihood of demolition of a portion of the school attached to the Church. In such circumstance, it is submitted that the proposal for elevated Highway can be from a different place, to avoid demolition, subject to the feasibility.
I.A.No.1 of 2022 in W.P.(C)No.2510 of 2019 & W.P.(C)No.6572 of 2020 :: 6 ::
11. Learned counsel appearing for the National Highway Authority of India is directed to get instructions in the matter.
Post these cases after ten days.
sd/-
S.MANIKUMAR CHIEF JUSTICE sd/-
SHAJI P. CHALY JUDGE jesxxx 08-12-2022 /True Copy/ Assistant Registrar