Kerala High Court
Puthiyapurayil Govindhan vs Union Of India on 20 November, 2019
Equivalent citations: AIRONLINE 2019 KER 661
Author: S.Manikumar
Bench: S.Manikumar, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
WEDNESDAY, THE 20TH DAY OF NOVEMBER 2019 / 29TH KARTHIKA, 1941
WA.No.2244 OF 2019
AGAINST THE JUDGMENT IN WP(C) NO.38782/2018(W) DATED 29.03.2019
APPELLANTS/PETITIONERS:
1 PUTHIYAPURAYIL GOVINDHAN, AGED 86 YEARS
S/O. NARAYANAN, AGRICULTURIST, RESIDING AT SANTHINIKETHAN, NEAR
R.C CHURCH, PAPPINISSERI AMSOM, AROLI DESOM, KANNUR TALUK,
KANNUR DISTRICT PIN 670 561
2 PATTERI BALAN, AGED 82 YEARS
S/O. K.P CHANDHU, AGRICULTURIST, RESIDING AT PATTERI HOUSE,
NEAR PANCHAYATH, PAPPINISSERI AMSOM, AROLI DESOM, KANNUR TALUK,
KANNUR DISTRICT, PIN 670 561
3 KOVVAPPURATH ABDUL HAMEED, AGED 65 YEARS
S/O. P. ABDHU, RESIDING AT ATHAZAKUNNU, KALLUKETTICHIRA,
THURUTHY, CHIRAKKAL AMSOM, PUZHATHI DESOM P.O, KOTTALI,
KANNUR DISTRICT PIN 670 005
4 SIDDIQUE K.P, AGED 40 YEARS
S/O. T.V KALID, RESIDING AT PUTHIYAPURAYIL HOUSE, ATHAZAKUNNU,
KALLUKETTICHIRA, THURUTHY, CHIRAKKAL AMSOM, PUZHATHI DESOM P.O,
KOTTALI, KANNUR DISTRICT, PIN 670 005
5 LAKSHMI KALLAKUDIYAN, D/O. SREEDHARAN EDACHERIYAN,
KALLUKETTICHIRA, ATHAZHAKUNNU, THURUTHY, CHIRAKKAL AMSOM ,
PUZHATHI DESOM P.O, KOTTALI, KANNUR DISTRICT PIN 670 005
6 N. ABDUL GAFOOR, AGED 56 YEARS
S/O. (LATE) N.N MAHAMOOD, JBDO (RTD), RESIDING AT CHIRAKKAL AMSOM,
PUZHATHI DESOM P.O, KANNUR DISTRICT PIN 670 005
7 SUMATHI V.K, W/O. LATE JANARDHANAN, MEETILEVEEDU, KOTTAKUNNU,
CHIRAKKAL AMSOM, PUZHATHI DESOM, KATTAMPALLI P.O, KANNUR
DISTRICT, PIN 670 011
8 M.K ALI, AGED 62 YEARS
RESIDING AT AYSHAMANZIL, KOTTAKUNNU, CHIRAKKAL AMSOM,
PUZHATHI DESOM, KATTAMPALLY P.O, KANNUR DISTRICT PIN 670 011
9 VAHEEDHA M.A, AGED 46 YEARS
W/O. LATE MUNEER P, MUKKANNAN ERUMMAL, CHIRAKKAL AMSOM,
PUZHATHI DESOM, KATTAMPALLI P.O, KANNUR DISTRICT, PIN 670 011
10 LAKSHMI K, AGED 60 YEARS
W/O. LATE PAVITHRAN, RESIDING AT ARAMBAN HOUSE, ERUMMAL VAYAL,
CHIRAKKAL AMSOM, PUZHATHI DESOM, KATTAMPALLI P.O, KANNUR
DISTRICT PIN 670 011
BY ADVS.
SRI.P.MURALEEDHARAN
DR.ABRAHAM MECHINKARA
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA,
MINISTRY OF SURFACE TRANSPORT, NEW DELHI PIN 110075
2 NATIONAL HIGHWAY AUTHORITY OF INDIA,
MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, DWARAKA,
NEW DELHI 110 075.
3 NATIONAL HIGHWAYS AUTHORITY OF INDIA,
OFFICE OF THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT,
34/743 B, VAISHNAVAM, BEHIND POPULAR VEHICLE MARUTHI SHOWROOM,
CIVIL STATION P.O, KOZHIKODE 673 020.
4 NATIONAL HIGHWAY AUTHORITY OF INDIA,
MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, CORPORATE OFFICE
G-5 AND 6, SECTOR 10, DWARAKA, NEW DELHI 110 075
5 THE STATE OF KERALA,
REPRESENTED BY THE ADDITIONAL SECRETARY, (PUBLIC WORKS
DEPARTMENT) SECRETARIAT, THIRUVANANTHAPURAM 695 001.
6 THE SPECIAL DEPUTY COLLECTOR, LA (NHA1), 1ST FLOOR, CIVIL STATION,
THALIPARAMBA, KANNUR DISTRICT, PIN 670 141.
7 THE DISTRICT COLELCTOR, CIVIL STATION, KANNUR 670 002.
8 THE SPECIAL THAHASIDAR (LA)
NATIONAL HIGH WAY, KANNUR DISTRICT, PIN 670 141.
9 M/S. AECOM, ASIA COMPANY LIMITED, 9TH FLOOR, INFINITY TOWER,
C, DLF CYBER CITY, PHASE II, GURGAON HARYANA, INDIA 122 002.
R1 BY SMT.C.G.PREETHA, CGC
R2-R4 BY ADV. SMT.I.SHEELA DEVI
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12-11-2019, THE COURT ON 20-11-
2019 DELIVERED THE FOLLOWING:
W.A. 2244 OF 2019 2
"C.R"
JUDGMENT
Dated this the 20th day of November, 2019 S.Manikumar, CJ Instant appeal is filed against the judgment in W.P.(C) No.38782 of 2018 dated 29.03.2019 by which, the writ court declined to issue a writ of certiorari to quash Exhibit-P1, notification dated 8.11.2017 published in the daily newspaper Malayala Manorama dated 22.11.2017, Exhibit-P3 series, proceedings of the Special Deputy Collector & Competent Authority, Land Acquisition (NH), Kannur, issued by the Special Deputy Collector, LA (NHAI), Kannur at Taliparamba & Competent Authority, respondent No.6, Exhibit-P6, notification dated 25.07.2018, and Exhibit-P7, notification dated 9.8.2018 respectively, and further declined to issue a direction to approve Exhibit-P10, copy of DPR/Google Map-Sketch of proposed alignment and alternative proposal alignment and comparison particulars.
2. Facts germane for the disposal of this appeal are that, the petitioners are residents of Chirakkal Amsom, Puzhathi Desom in Kannur district. Earlier, National Highway Authorities proposed widening of a road through the existing National Highway. Later, the proposed alignment was changed, which passes through the properties of the petitioners. According to them, National Highway No.17 (present No.66) bypass alignment proposed for the stretch extending from Velapuram to Kallulkettichira violates the W.A. 2244 OF 2019 3 guidelines for quality systems for road construction. The new alignment proposed is less cost effective. Petitioners have further contended that no detailed investigation was conducted before alignment was revised.
According to the petitioners, factors such as manual for survey, investigation and preparation of road projects etc., were not considered. Petitioners have further contended that location of widening of National Highway ought to have resulted in minimum interference to agricultural industry. Location should, as far as possible, facilitate easy grades and curvature. Highway should, as far as possible, be located along edges of properties rather than through the middle of the properties to avoid needs of frequent crossing of highway by the local people.
3. Petitioners have further contended that due to the influence of important persons, re-alignment has been made without public notice, and this has been done for corruption and without following the principles of natural justice. Petitioners also contended that according to the respondents, the said properties are sought to be acquired for building (Widening/four-
laning, etc.), maintenance, management and operation of National Highway No.17, on the stretch of land from kms 148.000 to kms 171.200 (Kannur-
Vengalam Section) in Kannur District. The proceedings were initiated on the basis of a notification dated 8-11-2017 issued under Section 3A of the National Highways Act, 1956 (48 of 1956). The same has been published in W.A. 2244 OF 2019 4 Malayala Manorama daily news paper dated 22-11-2017. As per the above notification, persons interested in the said lands mentioned thereupon were called to file objection before the competent Authority, viz. "Special Thahasildar (LA) NH-1I, Kannur" within 21 days from, the date of Publication of the notification in the official Gazette Under section 3C, of the Act.
Accordingly, the petitioners filed their objections in time before the competent Authority on 29-11-2017. Thereafter, the 6 th respondent passed an order on 23-5-2018 which was received by the petitioners on 16-06-18 by post.
4. Petitioners have further contended that Exhibit-P1 was followed by Exhibit-P6 notification dated 25-7-2018 issued under Section 3D of the Act.
Thereafter, the respondents issued Exhibit-P7 notification under Section 3G on 9-8-2018 which has been published in Mathrubhumi and Malayala Manorama daily on 31-08-2018. Thereafter, the 8 th respondent issued notice to 36 persons on 5-1-2018 asking them to produce the documents, tax receipt, and to appear for hearing under Section 3C (2) on 24-1-2018. All these proceedings done by the respondents are pending on interim order of this Hon'ble Court. It is evident from Exhibits-P1 and P6 notifications that the same was for building (Widening/four-laning, etc.), maintenance, management and operation of National Highway No.17, in the stretch of land from kms 148.000 to kms 171.200 (Kannur - Vengalam Section), Kannur W.A. 2244 OF 2019 5 District, not for a new bypass. But Exhibit- P7 notification was issued for a new bypass.
5. The respondents initiated to proceed against the petitioners invoking Exhibits P1, P3, P6, P7 without resorting to the principles of natural justice and without proper application of mind. It is evident from the fact that the respondents have not at all considered or sought any assessment reports or the like from various departments concerned. No Environmental Impact Assessment report is also prepared which is mandatory as per rules and regulations.
6. It is submitted that the alignment with respect to the notifications in Exhibits- P1, P6, P7 have been changed for more than 4 times, ie. on 2009, 2011, 2013 and 2016, all under mysterious circumstances. The petitioners are in fact totally unaware as to whether the bye pass would pass through the locality itself. This is because of the fact that the alignment was preferred by two consultancies during the above mentioned periods viz. M/s.
FEEDBACK VENTURES and M/s. AECOM. Now, the National Highway Authority has approved one of the alignments ie. of M/s. AECOM and accordingly, issued Exhibits P1, P6, P7 notifications. The residents of locality and the action committee had submitted various representations before the authorities. But, none of the above representations were considered till date. Various news papers in various dates have repeatedly reported the foul play played by the W.A. 2244 OF 2019 6 National Highways Authority in changing the alignment.
7. Before the writ court, statement has been filed on behalf of the National Highways Authorities of India, Office of the Project director, Project Implementation Unit, Civil Station, Kozhikode, respondent No.3 and National Highway Authority of India, Ministry of Road Transport and Highways, Corporate Office, New Delhi, respondent No.4, the relevant portion of which is extracted hereunder:
"3. It is respectfully submitted that the NH-17 (New NH-66) is declared as a National Highway by the Government of India under Section 2 of the National Highways Act, 1956. The Government of India is developing the National Highways throughout the country under the National Highway Development Project (NHDP) in a phased manner. On behalf of the Government of India, the National Highway Authority of India was entrusted to do the feasibility studies and preparation of the Detailed Project Report (DPR) for the 4 laning of the Kerala Karnataka border (Thalapady) to Km.17.200 to Kuttipuram Km.318.00 section of the NH-17 (New NH-66) in State of Kerala under NHDP. The above stretch was coming under this Project Implementation Unit. As per Section 3A of the National Highways Act 1956, a notification Was published in the Government of India Gazette as per S.O.No.3552(E) dated 08.11.2017 and substance of this notification was published in 2 local dailies dated 22.11.2017. After completing all formalities as per the National Highways Act 1956, the Section 3D notification was published in the Government of India Gazette as per S.O.No.3643 (E) dated 25.07.2018, and the land were vested with Central Government free from all encumbrances. The W.A. 2244 OF 2019 7 petitioners' properties were included in the above notifications.
4. It is respectfully submitted that in this stretch DPR Consultant, that is Feed Back Ventures was not engaged for the preparation of DPR, and hence they have not submitted any DPR. The National Highways Authority of India was engaged by M/s.Intercontinental Consultants and Techno crafts Pvt. Ltd., New Delhi, as the consultancy for the preparation of the DPR after feasibility studies and they have submitted their report in 2007. Since the land required for the development of the NH-17 (New NH-66) was not made available by the concerned Competent Authority due to stiff resistance from the Public Action Councils. Hence, the Central Government by notification in the Government of India Gazette bearing S.O.2060 (E), S.O.2061 (E) and S.O.2062 (E) dated 14.08.2014, by withdrawing the stretch from the National Highways Authority of India and entrusted to the Government of Kerala for maintenance and development. Subsequently, in the meeting held on 10.04.2015 presided by the Hon'ble Minister for Roads and Highways, New Delhi with Government of Kerala. In the meeting Government of Kerala gave an assurance that all help will be provided for speedy acquisition of land required in 45 meters at the earliest. It is there that the National Highways Authority of India was requested by the Central Government to prepare DPR for the development of this stretch of NH-17 (New NH-
66) on the basis of the above development. The National Highways Authority of India was appointed a new Consultant AECOM ASIA Pvt.
Ltd., New Delhi for the preparation of a new DPR after detailed feasibility studies and submitted their reports. As per the above the Detailed Project submitted by the previous DPR Consultant was lapsed. The newly appointed DPR consultant was submitted their draft report to the National Highways Authority of India, and approved by the W.A. 2244 OF 2019 8 National Highways Authority of India.
5. It is respectfully submitted that as per the project report produced by the new DPR Consultant, PROW stones were planted on both sides with an interval of 50 meters throughout the approved alignment. Section 3A notifications published as per the National Highways Act, 1956 in the Government of India Gazette as per S.O.3552 (E) dated 08.11.2017 and substances of notification were published in 2 local dailies. The petitioners were submitted objection before the Competent Authority as per Section 3C of the National Highways Act, 1956 and heard on 24.01.2018 and disposed on 23.05.2018 by the Competent Authority as per Exhibits-P1, P3 and P8. After completing all formalities as per the National Highways Act, 1956, Section 3D notification was published in the Government of India Gazette as per S.0.3643 (E) dated 25.07.2018 and hence the lands including the petitioners were vested with Central Government free from all encumbrances. The land and structures coming in the alignment will be compensated as per the Right Land Acquisition, in Fair Compensation and Transparency to Rehabilitation and Resettlement Act, 2013, and (Amendment) Ordinance, 2015. Detailed Project Report submitted by the DPR Consultant, who was well experienced in this field, after considering technical aspects as per the norms of the IRC standards to attain a speed of 80/100 Kmph. On the above, the alignment cannot be changed on technical reasons. The present alignment was approved by Government of Kerala as per the consent letter No.PWD-D3/38 1/2017/PWD dated 27.09.2018. A true copy of the letter No.PWD- D3/38 1/2017/PWD dated 19.08.2017 issued by the Secretary, Government of Kerala to the Regional Officer, National Highways Authority of India, Thiruvananthapuram is produced herewith and marked as Annexure-R3 (a).
W.A. 2244 OF 2019 96. It is respectfully submitted that the present approved modified alignment was finalized by the DPR Consultant after inspection of site, and submitted detailed project report to National Highways Authority of India. The National Highways Authority of India was submitted a detailed report to District Collector, Kannur as per letter No. 18011/LA/NHAI/PIU/KOZ/2017/158 dated 08.03.2017, and it was approved by the Government of Kerala as per the report submitted by the District Collector, Kannur. The DPR Consultant was not submitted such a comparison statement provided by the petitioners. A true copy of the alignment plan submitted by the present DPR Consultant is produced herewith and marked as Annexure-R3 (b). The alignment was fixed as per the Technical wisdom of the DPR Consultant, who was well experienced in this field by considering the norms of IRC standards to attain a speed of 80/100 Kmph. The DPR Consultant submitted their report by considering all aspects stated in the petition. There was no conspiracy/malafide intention/corruption in finalizing the alignment. The land and structures coming in this alignment will be compensated as per the present Act and Rules.
7. It is respectfully submitted that as per Section 3A (1) of the National Highway Act, 1956 "where the Central Government is satisfied that for a purpose any land is required for the building maintenance, management or operation of a National Highway or part thereof, it may, by notification in the official gazette, declare its intention to acquire such a land. As per the above, Section 3A notification was published in the Government of India Gazette as per S.O.3582 (E) dated 08.11.2017 and substance of the notification was published in Government of India Gazette as per S.O.3643 (E) dated 05.07.2018, hence the land were vested with Central Government free from all encumbrances. The objection submitted by the petitioner were W.A. 2244 OF 2019 10 considered and disposed by the Competent Authority after considering all formalities as per the National Highways Act, 1956. DPR Consultant considered all aspects as per the National Highways Act 1956 before submitting their report to National Highway Authority of India. As per S.O.2559 (E) dated 22.08.2013, the Environmental Clearance of the State Level Environment Impact Assessment Authority is not necessary for this stretch. A true copy of the notification as per S.O.2559 (E) dated 22.08.2013 issued by the 1 st respondent is produced herewith and marked as Annexure-R3 (c).
8. It is humbly submitted that all representations forwarded by the residents of the locality and the action councils were considered by the District Administration and National Highway Authority of India, and finally it was decided to develop the National Highway through the approved alignment. The Government of Kerala was issued consent to the alignment approved by the National Highway Authority of India as per the report submitted by District Collector, Kannur. All aspects were considered before the approval of alignment in this stretch and finalized by considering the technical matter as per the norms of IRC standards to attain a speed of 80/100 kmph. Hence, they sought for dismissal of the writ petition."
8. Adverting to the above contentions and taking note of the provisions, writ court vide judgment dated 29.03.2019 dismissed the writ petition. Being aggrieved, instant writ appeal is filed on the grounds, inter alia, that:
A. The proceedings initiated pursuant to Exhibits-P1, P3, P6 and P7 are illegal, arbitrary and liable to be quashed by this Hon'ble Court.W.A. 2244 OF 2019 11
B. Learned Single Judge ought to have considered that the Exhibit-P1 3A notification and Exhibit-P6 3D notification were for building (Widening/four-lane, etc.), maintenance, management and operation of National Highway No.17, in the stretch of land from km 148.000 to kms. 171.200 (Kannur- Section), not for a new bypass. Ext P6 was issued for a new bypass. Exhibit-P7 3G notification for a new bypass.
C. The acquisition proceedings are done in such a challenging manner so as to prop up the vested interests of a few influential beneficiaries. Moreover, there is a total non application of judicious mind on the part of the 6th and 8th respondents in proceeding to initiate proceedings invoking under sections 3A, 3D, 3G.
D. Exhibit P-3 orders are passed with ulterior motive without proper consideration of the facts and circumstances of the case and thus, liable to be quashed. The procedure followed being mala fide and hence, the same is liable to be interfered with. Exhibit P3 order was issued by the 6th respondents arbitrarily and without application of judicious mind.
E. Learned Single Judge ought to have considered that Exhibit P3 order dated 23-5-2018 (posted on 16-06-2018) was issued under frustration, upon seeing the copies of the interim orders in WP(C).No.17881/2018 of this Hon'ble Court dated 31-05-2018, Exhibit P3 was passed on a prior date after seeing the interim order. Had the Exhibit P3 passed on 23-05-2018, any of the affected parties would have received by 31-05- 2018.
F. It is submitted that by virtue Sections 3A and 3C of the Act, the petitioners have a right to legitimate expectation. The petitioners were assured of being informed, considering their objection and making necessary alterations. Hence, there has been a violation of natural W.A. 2244 OF 2019 12 justice principles and thus Exhibit P-1, P-3 series, P6, P7 are liable to be interfered with this Hon'ble Court.
G. 400 year old Kottam, Sree Poothiyil Bhagavathy Kottam, the place of worship of the local people of Thuruthy, will be completely demolished by the proposed alignment. Considering the fact that the first two alignments were withdrawn, on the recommendations of vested interest, is a planned move to erase a community, their customs, rites and beliefs. The right to worship is taken away from the people. A community is built also through their various practices of everyday life which includes their rites and customs. An anthropological evacuation of an indigenous community from Indian society would be the result of such an alignment. Second temple which is affected by the proposed alignment is the Kpuzathipadi Muttappen Temple, Kottakunnu.
H. Learned Single Judge ought to have considered that no Environment Impact Assessment (EIA) has been conducted on the NH Project and there in no mention of EIA or Environment Clearance of the concerned Department/ Ministry.
I. Learned Single Judge ought to have considered that Notification Exhibits-P6, P7 and P8 were for different purposes and that in DPR, two alignment lane was approved by the 9 th respondent. But, NH Authorities approved the curve lane.
J. Learned Single ought to have considered the violation of Figure 4.1 of the IRC SP 19-2001, Manual for Survey, Investigation and Preparation of Road Projects mentioned in para 5 of the writ petition.
K. It is well settled law that power vested by the State in a public authority is to be exercised strictly adhering to the statutory provisions and facts situation of a case. A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under W.A. 2244 OF 2019 13 a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred, as observed in NOIDA Entrepreneurs Association vs. NOIDA and others reported in (2011) 6 SCC 508 at para 41."
9. On the above grounds, Mr.P.Muraleedharan, learned counsel for the appellants, made submissions. However, inviting the attention of this Court to Exhibit-P3 proceedings of Special Deputy Collector & Competent Authority, Land Acquisition (NH), Kannur dated 23.05.2018 rejecting the objections of petitioner No.1, Exhibit-P3(a) proceedings of the Special Deputy Collector & Competent Authority, Land Acquisition (NH), Kannur dated 23.05.2018 rejecting the objections of petitioner No.2, Exhibit-P6 notification dated 25.7.2018 issued under Section 3(D) of the National Highways Act, Exhibit-P7 notice issued under Section 3(G)(3) of the National Highways Act, 1956 by the Special Tahsildar, LA(NH), Unit No.2, Kannur and Competent Authority dated 9.8.2018, Exhibit-P8 notice dated 5.1.2018 issued by the Special Tahsildar, L.A.(NH) Unit-2, Collectorate, Kannur to the land owners under Section 3 of the National Highways Act and Exhibit-P9 notice issued under Section 3G(3) of the National Highways Act, 1956 by the Special Tahsildar, LA(NH), Unit No.2, Kannur and Competent Authority for National Highway-17, for production of documents to grant compensation, learned counsel submitted that though initial notification issued by the National Highway authorities under Section 3A(1) of National Highways Act, 1956, is W.A. 2244 OF 2019 14 for widening/four-laning, maintenance, management and operation of National Highway No.17 on the stretch of land from kms 148.000 to kms 171.200 , subsequently the NHAI has intended to use the land for a new bypass which is different from the purpose for which the said notification was issued and, therefore, the writ court ought to have set aside the notifications Exhibit-P1, P6 and P7, as sought for.
10. Learned counsel for the appellants further contended that had NHAI accepted the proposed alignment, instead of varying the alignment as proposed by M/s.AECOM, Asia Company Limited, Haryana, respondent No.9, there would have been less damage to the properties not only owned by the appellants, but also the alternative road as suggested in Exhibit-P10, would reduce the distance, curves and has less environmental impact, including spoiling of natural habitats, major bridges of worship, etc.
11. Learned counsel for the appellants further submitted that the writ court failed to address the above said issue in a proper perspective.
12. Heard learned counsel for the appellants and perused the material available on record.
13. Before adverting to the above grounds of appeal, we deem it fit to have a cursory look on the statutory provisions of the National Highways Act, 1956, which read thus:
W.A. 2244 OF 2019 15"3A. Power to acquire land, etc.--(1) Where the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land.
(2) Every notification under sub-section (1) shall give a brief description of the land.
(3) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language.
3B. Power to enter for survey, etc.--On the issue of a notification under sub-section (1) of section 3A, it shall be lawful for any person, authorised by the Central Government in this behalf, to--
(a) make any inspection, survey, measurement, valuation or enquiry;
(b) take levels;
(c) dig or bore into sub-soil;
(d) set out boundaries and intended lines of work;
(e) mark such levels, boundaries and lines placing marks and cutting trenches; or
(f) do such other acts or things as may be laid down by rules made in this behalf by that Government.
3C. Hearing of objections.--(1) Any person interested in the land may, within twenty-one days from the date of publication of the notification under sub-section (1) of section 3A, object to the use of the land for the purpose or purposes mentioned in that sub-section.
(2) Every objection under sub-section (1) shall be made to the competent authority in writing and shall set out the grounds thereof W.A. 2244 OF 2019 16 and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, it any, as the competent authority thinks necessary, by order, either allow or disallow the objections.
Explanation.--For the purposes of this sub-section, "legal practitioner" has the same meaning as in clause (i) of sub-section (1) of section 2 of the Advocates Act, 1961 (25 of 1.961).
(3) Any order made by the competent authority under sub-section (2) shall be final.
3D. Declaration of acquisition.--(1) Where no objection under sub- section (1) of section 3C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under subsection (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in sub-section (1) of section 3A.
(2) On the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances.
(3) Where in respect of any land, a notification has been published under sub-section (1) of section 3A for its acquisition but no declaration under sub-section (1) has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect:
Provided that in computing the said period of one year, the W.A. 2244 OF 2019 17 period or periods during which any action or proceedings to be taken in pursuance of the notification issued under sub-section (1) of section 3A is stayed by an order of a court shall be excluded.
(4) A declaration made by the Central Government under sub-
section (1) shall not be called in question in any court or by any other authority.
3E. Power to take possession.--(1) Where any land has vested in the Central Government under sub-section (2) of section 3D, and the amount determined by the competent authority under section 3G with respect to such land has been deposited under sub-section (1) of section 3H, with the competent authority by the Central Government, the competent authority may by notice in writing direct the owner as well as any other person who may be in possession of such land to surrender or deliver possession thereof to the competent authority or any person duly authorised by it in this behalf within sixty days of the service of the notice.
(2) If any person refuses or fails to comply with any direction made under sub-section (1), the competent authority shall apply--
(a) in the case of any land situated in any area falling within the metropolitan area, to the Commissioner of Police;
(b) in case of any land situated in any area other than the area referred to in clause (a), to the Collector of a District, and such Commissioner or Collector, as the case may be, shall enforce the surrender of the land, to the competent authority or to the person duly authorised by it.
3F. Right to enter into the land where land has vested in the Central Government.--Where the land has vested in the Central Government under section 3D, it shall be lawful for any person authorised by the Central Government in this behalf, to enter and do W.A. 2244 OF 2019 18 other act necessary upon the land for carrying out the building, maintenance, management or operation of a national highway or a part thereof, or any other work connected therewith.
3G. Determination of amount payable as compensation.--(1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority.
(2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent, of the amount determined under sub-section (1), for that land.
(3) Before proceeding to determine the amount under sub-section (1) or sub-section (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired.
(4) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in sub-section (2) of section 3C, before the competent authority, at a time and place and to state the nature of their respective interest in such land.
(5) If the amount determined by the competent authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be W.A. 2244 OF 2019 19 determined by the arbitrator to be appointed by the Central Government--
(6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act.
(7) The competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration--
(a) the market value of the land on the date of publication of the notification under section 3A;
(b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land;
(c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings;
(d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change."
14. Let us consider the notifications issued by the Competent Authority under Sections 3A(1) to 3G(3) of the National Highways Act, 1956. A perusal of the notifications make it clear that the purpose of issuing the notifications is to acquire land specified therein for building (widening/four-
laning, etc.), maintenance, management and operation of National Highway No.17, on the stretch of land from kms 148.000 to kms 171.200. Though, W.A. 2244 OF 2019 20 learned counsel for the appellants contended that instead of widening/four-
laning, maintenance, management and operation of National Highway, land is now sought to be used for a new bypass road and, therefore, the very purpose of the notifications sought to be varied.
15. On the above said submissions, this Court deems it fit to extract the notifications issued by the Competent Authority of NHAI and the orders passed rejecting the objections:
"NATIONAL HIGHWAYS AUTHORITY OF INDIA (MINISTRY OF ROAD TRANSPORT AND HIGHWAYS) Regional Office, Kerala NOTICE UNDER SUB SECTION (1) OF SECTION 3A OF THE NATIONAL HIGHWAYS ACT 1956 Issued by the Spl. Tahsildar, NH-II, Kannur & Competent Authority NEW DELHI, Dated 8th November, 2017 S.O.3552 (E) - In exercise of powers conferred by the Sub Section (1) of Section 3A of the National Highways Act, 1956 (48 of 56) (hereinafter referred to as the said Act), the Central Government after being satisfied that for the public purpose, the land the brief description of which is given in the Schedule below, is required for building (widening/four-laning), maintenance, management and operation of National Highway No.17 on the stretch of land from Km.148/000 to Km.171/200 (Kannur-Vengalam Section) in the District of Kannur, in the State of Kerala, hereby declares its intention to acquire such land.
Any person interested in the said lands may, within twenty one days from the date of publication of this notification in the Official Gazette, object to the use of such land for the aforesaid purpose under Sub Section (1) of Section 3C, of the said Act.
Every such objection shall be made to the Competent Authority, namely "Special Tahsildar (LA), NH-II, Kannur", in writing, and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or through a Legal Practitioner and may after hearing all such W.A. 2244 OF 2019 21 objections and after making such further enquiry, if any, as the Competent Authority thinks necessary, by order, either allow or disallow-the objections. Any order made by the Competent Authority under sub-section (2) of Section 3C of the said Act shall be final.
The land plans and other details of the land covered under the notification are available and can be Inspected by the interested persons at the aforesaid Office of the Competent Authority.
SCHEDULE: Brief description of the lands to be acquired with or without the structure falling within the stretch of land from km.148/000 to km.171/200 (Kannur-Vengalam Section) of the National Highway No.17 in the State of Kerala. (relevant portion) Taluk: Kannur Village:- Chirakkal Desom; Puzhathi Survey No. Type of Land Nature of Area(in Hectare) Land 4/2 Private Wet .7823 37/7A Private Garden .3165 45/2 Private Garden .1214 46/2 Private OD .1070 46/9 Private Garden .2299 Special Tahsildar (LA), NH-II, and Competent Authority, Kannur."
*** MINISTRY OF ROAD TRANSPORT AND HIGHWAYS NOTIFICATION New Delhi, the 25th July, 2018 S.O. 3643(E).- Whereas by the notification of the Govt. of India in the Ministry of Road Transport and Highways No.S.O.3552(E), dated the 8 th November, 2017, published in the Gazette of India, Extra ordinary Part II, Section 3, Sub-section
(ii) and issued under sub-section (1) of section 3A of the National Highways Act, 1956 (48 of 1956) hereinafter referred to as the said Act), the Central Government declared its intention to acquire the land specified in the schedule annexed to the said notification for building (widening/ four-laning, etc.), maintenance, management and operation of National Highway No.17 on the stretch of land from Km 148.000 to Km 171.200 (Kannur Section) in Kannur district in the State of Kerala;
W.A. 2244 OF 2019 22And whereas, the substance of the said notification has been published in "Mathrubhoomi" daily dated 22.11.2017 and "MalayalaManorama" daily dated 22.11.2017, under sub-section(3) of section 3(A) of the said Act;
And whereas, objections have been received and the same have been considered and disallowed by the competent authority;
And whereas, in pursuance of sub-section (I) of section 3D of the said act, the competent authority has submitted its report to the Central Government;
Now, therefore, upon receipt of the said report of the competent authority and in exercise of the powers conferred by sub- section (1) of section 3D of the said Act, the Central Government hereby declares that the land specified in the said Schedule should be acquired for the aforesaid purpose;
And further, in pursuance of sub-section (2) of section 3D of the said act, the Central Government; hereby declares that on publication of this notification in the Official Gazette, the land specified in the said Schedule shall vest absolutely in the Central Government, free from all encumbrances.
SCHEDULE (the relevant portion)
Sr. Survey Type of Land Nature of Land Area in Hectre Name of the Land
NO. Number Owner/Interested
person Part survey
No.
1 2 3 4 5 6
Taluk: Kannur
Xxx Xxx xxx Xxx Xxx
Village:Chirakkal
2 Xxx Xxx xxx Xxx xxx
3 4/2 Private(Private) Wet 0.6992 T P Sajira, t P
Jameela, Puzhathi
Dewaswom Ooralan
Raman Kaimal and
others, Lhs of Koyili
Paru (Late), Chathu
and others; Lhs of
Aramban Pavithran
(Late), Lakshmi
Kallen and others,
Sulaikha, Beepathu
Pallikakath and
others 4/11
Xxx Xxx xxx Xxx xxx Xxx
8 37/7A Private(Private) Garden 0.3147 P Ammad, Khadeeja
Moidu, Sumathi P K,
Abdulla Kunhi and
others 37/10.
W.A. 2244 OF 2019 23
Xxx Xxx Xxx Xxx Xxx
16 45/2 Private(Private) Garden 0.1214 Chirakkal Kovilakam
Valiya Raja and
others 45/9
17 46/2 Private (Private) OD 0.107 Chirakkal Kovilakam
Valiya Raja and
others 46/10
Xx Xxx Xxx Xxx Xxx Xxx
21 46/9 Private(Private) Garden 0.1972 Manjeerikandi
Kandambeth
Panchali and others
46/15
****
Notice Under Section 3 G (3) of the National Highway Act 1956 issued by the Special Thahsildar, LA(NH), Unit No.2 Kannur and Competent Authority for National highway-17.
Ref No.C-A/6/2012 Dated 06-04-2013 By Notification of the Government of India, published in the gazette S.O.2752 dated 08- 12-2011 and Advertised in the Mathrubhumi, Malayala Manorama daily news paper dated 02-01-2012 issued under section 3A Sub Section 1 of the National Highway Act 1956 (48 of 1956) (hereinafter referred to as the said Act) and under section 3D(1) of above Act, the land description of which is given in the schedule below, for the public purpose is required for land (widening) the National Highway-17 (including bypass) on the stretch of land from km 148.000 to 171:200 km (Kannur section) in Kannur district in the state of Kerala, acquired such land by Central Government as per gazette pubilicationNo.S.O.2854 (E), and S.O 28 56 (E) date 7-12-2012 and the land and dated 06-04-2013 other structures acquired fully vested and owned by Central Government under 3D Sub Section 2 of the National Highway Act.
For grinding the compensation for the acquired land, interested persons of the description of which is given in the schedule belaw 2 survey Nos., produce their entire document proving their title before the special Thasildar, LA (NH), unit No.2, Kannur and Competent Authority in person or an authorized person at the date and time mentioned below. The following documents should be produced at that time(hearing).
Documents to be produced
1. Original Deed of the Property. 2. Kraya certificate of Land Tribunal if no title in the property. 3. Prior deed, 4. land tax receipt of the financial year, 5. Possession certificate (Village Office), 6. No liability certificate of the land from village/ Thahsildar, 7. Encumbrance Certificate of 15 years (Sub Registry office), 8. Building Tax receipts and ownership certificate (Municipality), 9. Death certificate W.A. 2244 OF 2019 24 and legal heir certificate if person died (Taluk Thasildar), 10 Power of Attorney- if anybody appears on behalf of the owner., 11. Any other documents in connection with the property. 12. Indemnity Card/ Election ID card.
*** Notice Under Section 3 G (3) of the National Highway Act 1956 issued by the Special Thahsildar, LA(NH), Unit No.2 Kannur and Competent Authority.
Ref No.A3 435/2011 Dated 09-08-2018 By Notification of the Government of India in the Ministry of Road Transport and Highways Published in S.O 3552 (E) dated 8-11-2017 issued Under Section 3 A Sub Section 1 of the National Highway Act 1956 (48 &1956) (hereinafter referred to as the Said Act), the central government declared its intention to acquire the land specified in the schedule below for the public purpose require for building (Widening/four laning), maintenance , management and operation National Highway No.17 if need bypass on the stretch of land from km 148.000 to 171.200 km. This Notification is published in Mathrubhumi, Malayala manorama daily newspaper dated 22-11-2017.
In the above matter no objection was received by the Competent officer from any person in the meantime. Therefore report was submitted by the competent authority to the Central Government Under Section 3D Sub Section (1). Hence, as per the report of Competent Authority and powers under section 3D Sub Section (1) the Central Government declared the land description of which is given inthe schedule mentioned in S.O.3643 (E) dated 25-7-2018 are to the acquired for the above purposes.
Further the Central Government declaring that the land description of which is given in the schedule will come under the possession of Central Government on publishing it in the official gazette under section 3D Sub Section (2 The land described in the schedule will come under the control of the Central Government on publication of it in this official gazette notification. All persons connected with the above mentioned land property produce the documents before the Special Thahsildar LA unit No.2 Collectorate Kannur and Competent Authority in person for an authorized person at the date and time mentioned below. The following documents should be produced.
1. Original Deed of the Property. 2. Kraya certificate of Land Tribunal if no title in the property. 3. Prior deed, 4. Present land tax receipt, 5. Possession and enjoyment certificate of Village Office., 6.No liability certificate of the land from village/Thahsildar, 7. Encumbrance Certificate,8. Building Tax receipts and ownership certificate, 9. Death certificate and legal heir certificate, 10.Power of Attorney- if anybody appears on behalf of the owner., 11. Any other documents showing the ownership, 12. Indemnity Card, 13. Pan card."
*** W.A. 2244 OF 2019 25 MINISTRY OF ROAD TRANSPORT AND HIGHWAYS NEW DELHI, Dated the 14 th July 2016 Published in the gazette of India, Extra Ordinary Part II, Selection 3(ii) on 14.07.2016 NOTIFICATION S.O.2414(E) In exercise of powers conferred by sub-section(1) of Section 3A of the National Highways Act, 1956 (48 of 1956) (hereinafter referred to as the said Act) the Central Government, after being satisfied that for the public purpose, the land, the brief description of which is given in the schedule below, is required for building (widening/four-laning, etc.) maintenance, management and operation of National Highway-17, in the stretch of land from km. 148.0000 to km.171.200 (Kannur-Vengalam Section) in Kannur District in the State of Kerala, hereby declares its intention to acquire such land.
Any person interested in the said land may, within twenty-one days from the date of publication of this notification in the official gazette, object to the use of such land for the aforesaid purpose under sub-section (1) of Section 3C of the said Act.
Every such objection shall be made to the competent authority, namely the Special Tahsildar, LA(NH II), Kannur in writing and shall set out the grounds thereof and the competent authority shall given the objector an opportunity of being heard, either in person or by a legal practitioner and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections.
Any order made by the competent authority under sub-section (2) of Section 3C of the said Act shall be final The land plans and other details of the land covered under this notification are available and can be inspected by the interested person at the aforesaid office of the competent authority."
*** "PROCEEDINGS OF SPECIAL DEPUTY COLLECTOR & COMPETENT AUTHORITY, LAND ACQUISITION (NH), KANNUR (PRESENT: MAVILA NALINI) Date: 23-05-18 No.A.152/18 (30) Sub: National Highway 17- Kannur Taluk - Land acquisition for the four line, Pappnissery amsom - Objections submitted under Section 3C(1) of the N.H.Act, 1956 - final decision taken - order issued.
Read: 1. 3A notification No.S.O.50(E) published in India Gazette dated 4-1-2018.
2 Obiections filed against 3 A notification published on 4-1-2018
3.Letter No.11018/NHAI/PIU/Kozhikode/LA/2018/529 of the Project Director, National Highway Authority of India, Kozhikode dated 11-5-18.
W.A. 2244 OF 2019 26Objections have been submitted by the persons mentioned below against the publication of notification under Section 3(A) of the N.H.Act, 1956 for acquisition of land in Aroli Desom in Pappinissery amsom in Kannur Taluk videy reference (1) for the four lining of National Highway 17.
____________________________________________________________________ Name and address Survey No. ____________________________________________________________________ Puthiyapurayil Govindan, Santhiniketh, Near R.C.Church, Pappinissery 161/3 ____________________________________________________________________ In the objection it is requested that in the notification it is seen that there is proposal to acquire 1275 sq. meter of the objector in the above resurvey number; he has 11 ½ cents of land therein; there is a house where he is residing, well and more over there is a commercial building of which there are five shop rooms and a staircase room in the ground floor; small and big yielding coconut trees, in the earlier notification it was shown only 75 sq. meters for the proposed acquisition, present change is very doubtful, he has no other land or house ; the action committee has submitted a scheme before the Government for an alignment which is below than the expenditure for the present alignment and lower in number of the houses and shops; it was denied consequent on the objection caused in acquiring the agricultural land; it understand that at present there is obstruction for acquiring the agricultural land; and reconsider and change the present alignment for the bypass published now. Moreover, if it is decided that the present alignment is proper, the compensation as per reference ordered by the High Court of Kerala and compensation without considering the oldness of the building may be given and also requested for granting rehabilitation.
The Project Director, National Highway Authority of India, Kozhikode, the acquisition authority, to the objection has informed that in the letter received by him as per reference (3) it has been stated that the National Highway Authority of India decided to develop NH17 from Karnataka Border of Kerala till Kuttippuram(NH66) for the safe and effective traffic and that if the Central Government is satisfied that the land is necessary for the public purpose, Section 3A of the National Highway Act, 1956 empower them to acquire the above said land and that the alignment for the development of the National Highway has been fixed by the National Highway experts who are having technical expertise and considering particularly in Kerala latest type Geometrics of 45 meters width and that as per the IRC standard of MoRTH the alignment has been approved in a manner enabling 80/100 kilometers speed and that persons losing the land, houses, buildings including the buildings occupied and other improvements are entitled for compensation and rehabilitation as per RFCTLARR Act, 2013 and 2015.
Notice has been given to the objector under Section 3C(2) of the National Highways Act, 1956 and hearing was conducted on 24.4.2018. In the hearing the objector was present and repeated the facts stated in the objection and given a detailed statement in writing.
W.A. 2244 OF 2019 27Since the land included in reference (1) notification is essential for the development of NH17 as four line and that on the basis of Project Director, National Highway Authority of India, Kozhikode, the acquisition authority, has informed that if the Central Government is satisfied that the land is necessary for them the public purpose, Section 3A of the National Highway Act, 1956 empower to acquire the above said land the objection submitted by the objector vide reference (2) has been rejected under Section 3C(2) of the National Highways Act, 1956 and order issued accordingly.
Sd/-
Special Deputy Collector L.A.(NHAI) Kannur at Taliparambu & Competent Authority.
To Puthiyapurayil Govindan, Santhiniketh, Near R.C.Church, Pappinissery.
Copy to:
1. District Collector, Kannur (along with covering letter)
2. Project Director, National Highway Authority of India, Kozhikode. (along with covering letter)."
*** PROCEEDINGS OF SPECIAL DEPUTY COLLECTOR & COMPETENT AUTHORITY, LAND ACQUISITION (NH), KANNUR.
(PRESENT: MAVILA NALINI)
No.A.152/18 (31) Date: 23-05-2018
Sub: National High way 17- Kannur Taluk-Land acquisition for the four lines, Pappinissery Amsom-Objections submitted under Section 3C(1) of the N.H. Act. 1956-final decision taken-order issued.
Read:1. 3A Notification No.S.O.50(E) published in India Gazette dated 4-1-2018
2. Objections filed against 3A notification published on 04-01-2018
3. Letter No.11018/NHAI/PIU/Kozhikode/LA/2018/529 of the Project Director, National Highway Authority of India, Kozhikode dated 11-5-2018.
Objections have been submitted by the persons mentioned below against the publication of notification under Section 3(A) of the N.H.Act, 1956 for acquisition of land in Aroli Desom in Pappininssery Amsom in Kannur Taluk videy reference (1) for the four lining of National Highway 17.
____________________________________________________________________ Name and address Survey No. ____________________________________________________________________ Kavile Valappil Patteri Balan, Patteri House, Near Panchayath, Pappinissery P.O., 161/5, 161/4, 161/6 W.A. 2244 OF 2019 28 ____________________________________________________________________ In the objection it is requested that in the above resurvey number; the objector have land therein; inclusive of a house No.XIl/321 where he is residing, well, and bathroom, and informed that, if the road straighten the house will not be demolished.
The Project Director, National Highway Authority of India, Kozhikode, the acquisition authority, to the objection has informed that in the letter received by him as per reference (3) it has been stated that the National Highway Authority of India decided to develop NH17 from Karnataka Border of kerala till Kuttipuram (NH66) for the safe and effective traffic and that if the Central Government is satisfied that the land is necessary for the public purpose, Section 3A of the National Highway Act, 1956 empower them to acquire the above said land and that the alignment for the development of the National Highway has been fixed by the National Highway experts who are having technical expertise and considering particularly in Kerala latest type Geometrics of 45 meters width and that as per the IRC standard of MORTH the alignment has been approved in a manner enabling 80/100 kilometers speed and that persons losing the land, houses, buildings including the buildings occupied and other improvement are entitled for compensation and rehabilitation as per RFCTLARR Act, 2013 and 2015.
Notice has been given to the objector under section 3C (2) of the National Highway Act, 1956 and hearing was conducted on 24-4-2018. In the hearing the objector's brother Karunakaran was present on behalf of the and repeated the facts stated in the objection and stated that nothing more was added and requested for a favourable decision.
Since the land included in reference (1) notification is essential for the development of NH 17 as four line and that on the basis of project Director, National Highway Authority of India, Kozhikode, the acquisition authority, has informed that if the Central Government is satisfied that the land necessary for the public purpose, Section 3A of the National Highway Act,1956 empower them to acquire the above said land the objection submitted by the objector vide reference (2) has been rejected under Section 3C (2) of the National Highways Act, 1956 and order issued accordingly.
Special Deputy Collector, L.A (NHAI) Kannur at Taliparambu & Competent Authority.
To Kavile Valappil Patteri Balan, Patteri House, Near Panchayath, Pappinissery P.O., Copy to:
W.A. 2244 OF 2019 291. District Collector, Kannur (along with covering letter)
2. Project Director, National Highway Authority of India, Kozhikode.
(along with covering letter)"
***
16. In exercise of the powers conferred by Section 9 of the National Highways Act, 1956, the National Highways Fee (Determination of Rates and Collection) Rules, 2008 have been framed. As per Section 2(c) of the above said Rules, the word 'Bypass" means a section of National highway bypassing a town or city. As per Section 2(e) of the Control of National Highways (Land and Traffic) Act, 2002, the word "Highway" means a National Highway declared as such under Section 2 of the National Highways Act, 1956 (48 of 1956) and includes any Expressway or Express Highway vested in the Central Government, whether surfaced or unsurfaced, and also includes.-
(i) all lands appurtenant to the Highway, whether demarcated or not, acquired for the purpose of the Highway or transferred for such purpose by the State Government to the Central Government;
(ii) all bridges, culverts, tunnels, causeways, carriageways and other structures constructed on or across such Highway; and
(iii) all trees, railings, fences, posts, paths, signs, signals, kilometre stone and other Highway accessories and materials on such Highways;"
17. A reading of the above notifications makes it clear that the intention of the Government to acquire land is for building (widening/four-
laning, etc.), maintenance, management and operation of National Highway No.17, on the stretch of land from kms 148.000 to kms 171.200 (Kannur -
W.A. 2244 OF 2019 30Vengalam Section), Kannur District, in the State of Kerala. National Highway-
17 is uniformly mentioned in all notifications. As per Section 2 of the National Highways Act, 1956, each of the highways specified in the Schedule in the Act is declared to be a National Highway.
"2. Declaration of certain highways to be national highways.--(1) Each of the highways specified in the Schedule 2*** is hereby declared to be a national highway.
(2) The Central Government may, by notification in the Official Gazette, declare any other highway to be a national highway and on the publication of such notification such highway shall be deemed to be specified in the Schedule.
(3) The Central Government may, by like notification, omit any highway from the Schedule and on the publication of such notification, the highway so omitted shall cease to be a national highway."
18. As per Schedule, National Highway-17 (Panvel-Goa-Kochi) starts connecting Panvel on National Highway No. 4 Mahad, Panaji, Karwar, Mangalore, Cannanore, Calicut (Kozhikode), Feroke, Kuttipuram, Pudu Ponnani, Chowghat Cranganpur to junction with National Highway No. 47 near Edapally. As stated supra, merely because in one of the notifications, the word "bypass" is used, it cannot be said that the purpose is changed. As stated supra, bypass means a section of National Highway bypassing town or city. Having regard to the statutory provisions, extracted supra, contention of Mr.P.Muraleedharan, learned counsel for the appellants that there is a change in the notifications to acquire lands, cannot be accepted. Further contention W.A. 2244 OF 2019 31 of the learned counsel that had the National Highway Authority of India, respondent No.2, considered the proposed alignment earlier, instead of varying the alignment as proposed by M/s.AECOM, Asia Company Limited, Haryana, respondent No.9, there would have been less cost effective, less damage and other aspects stated supra, cannot be accepted and it would be against the decision of the Hon'ble Supreme Court in Union of India (UOI) v.
Dr.Kushala Shetty and Others reported in (2011) 12 Supreme Court Cases 69, wherein at paragraph (28), it was held as follows:
"28. Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of National Highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would sub serve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullity the acquisition of land and, in rarest of rare cases, the W.A. 2244 OF 2019 32 particular project, if it is found to be ex - facie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained."
In the light of the above discussion, decision and the reasons assigned by the writ court in judgment in W.P.(C) No.38782 of 2018 dated 29.03.2019, we find no merits in the instant appeal. Writ appeal is dismissed.
Sd/-
S.Manikumar, Chief Justice Sd/-
C.T.Ravikumar, Judge krj //TRUE COPY// P.A. TO JUDGE