Kerala High Court
V. Varghese vs The Union Of India on 9 April, 2021
Author: Murali Purushothaman
Bench: Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
WP(C).No.38437 OF 2018(D)
PETITIONER/S:
V. VARGHESE, S/O P.G. VARGHESE,
A.V. MARBLE PALACE, PALLIPPURAM,
THIRUVANANTHAPURAM 695 316
BY ADV. SRI.GEORGE MECHERIL
RESPONDENT/S:
1 THE UNION OF INDIA
REPRESENTED BY ITS SECRETARY,
MINISTRY OF ROAD TRANSPORT AND NATIONAL HIGHWAYS, NEW
DELHI 110 001
2 THE CHAIRMAN,
NATIONAL HIGHWAYS AUTHORITY OF INDIA,
NEW DELHI 110 001
3 THE SPECIAL DEPUTY COLLECTOR
AND COMPETENT AUTHORITY,
LAND ACQUISITION (NATIONAL HIGHWAYS), NH 17,
CIVIL STATION, THIRUVANANTHAPURAM 695001
4 THE PRINCIPAL SECRETARY TO
GOVERNMENT, PUBLIC WORKS DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM 695001
5 THE DISTRICT COLLECTOR,
THIRUVANANTHAPURAM 675 001
6 THE ASSISTANT EXECUTIVE ENGINEER,
NATIONAL HIGHWAY SUB DIVISION,
THIRUVANANTHAPURAM 675 001
*ADDL THE PROJECT DIRECTOR,
R7 NATIONAL HIGHWAYS, THIRUVANANTHAPURAM
(IS SUO MOTU IMPLEADED AS ADDL.R7 AS PER ORDER DATED
12.04.2019 IN WP(C))
R1-2 BY SRI.S.BIJU, CGC
R2 BY ADV. SMT.I.SHEELA DEVI
R BY GOVERNMENT PLEADER SMT. REKHA G. NAIR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
24-03-2021, ALONG WITH WP(C).17505/2020(K), WP(C).20142/2020(P),
THE COURT ON 09.04.2021 DELIVERED THE FOLLOWING:
WP(C).38437/2018, 17505/2020 AND 20142/2020
..2..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
WP(C).No.17505 OF 2020(K)
PETITIONER/S:
V.VARGHESE, S/O.P.G.VARGHESE,
A.V.MARBLE PALACE, PALLIPPURAM,
THIRUVANANTHAPURAM-695 316.
BY ADV. SRI.GEORGE MECHERIL
RESPONDENT/S:
1 THE UNION OF INDIA
REP BY ITS SECRETARY, MINISTRY OF ROAD TRANSPORT
AND HIGHWAYS, NEW DELHI-110 001.
2 THE STATE OF KERALA,
REP BY ITS PRINCIPAL SECRETARY TO GOVERNMENT,
PUBLIC WORKS DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
3 THE CHAIRMAN
NATIONAL HIGHWAYS AUTHORITY OF INDIA,
NEW DELHI-110 001.
4 THE SPECIAL DEPUTY COLLECTOR AND COMPETENT
AUTHORITY
LAND ACQUISITION (NATIONAL HIGHWAYS) NH17,
CIVIL STATION, THIRUVANANTHAPURAM-695 001.
5 THE GENERAL MANAGER(TECH)
REGIONAL OFFICER, NATIONAL HIGHWAY AUTHORITY OF
INDIA, REGIONAL OFFICE, KERALA,
PALKULANGARA JN.THIRUVANANTHAPURAM-695 008.
R1 BY ADV. MR.B.PRAMOD, CGC
R3, R5 BY ADV. DR.K.P.SATHEESAN (SR.)
R3, R5 BY ADV. SRI.P.MOHANDAS (ERNAKULAM)
R3, R5 BY ADV. SRI.K.SUDHINKUMAR
R3, R5 BY ADV. SRI.S.K.ADHITHYAN
R3, R5 BY ADV. SRI.SABU PULLAN
R3, R5 BY ADV. SRI.GOKUL D. SUDHAKARAN
R BY ADV.SMT. REKHA G.NAIR, GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
24-03-2021, ALONG WITH WP(C).38437/2018(D), WP(C).20142/2020(P),
THE COURT ON 09-04-2021 DELIVERED THE FOLLOWING:
WP(C).38437/2018, 17505/2020 AND 20142/2020
..3..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
WP(C).No.20142 OF 2020(P)
PETITIONER/S:
1 M.ABDUL GAFOOR
S/O LATE MOHAMMED YUSAF,
SANGEETH, MANGALAPURAM, THONNAKKAL P.O.
THIRUVANANTHAPURAM DISTRICT, PIN-695 317.
2 SALIM, S/O IBRAHIMKUNJU, SAJAM MANZIL,
MANGALAPURAM, THONNAKKAL P.O.THIRUVANANTHAPURAM
DISTRICT, PIN-695 317.
3 NAZEEMA BEEVI,NOOKS ARK,
NEAR KUZHIVILA THAIKKAVU,
KURAKKODU, THONNAKKAL P.O.
THIRUVANANTHAPURAM DISTRICT, PIN-695 317.
4 ABDUL VAHID, V.S.VILLA, PALLIPPURAM,
THIRUVANANTHAPURAM, PIN-695 316.
5 JUMAILA BEEVI A,
TRIBRO CABIN, PALLIPPURAM,
THIRUVANANTHAPURAM, PIN-695 316.
BY ADVS.
SRI.GEORGE MECHERIL
SRI.G.SHRIKUMAR (SR.)
RESPONDENT/S:
1 THE UNION OF INDIA
REPRESENTED BY ITS ITS SECRETARY,
MINISTRY OF ROAD,
TRANSPORT AND HIGHWAYS,NEW DELHI-110 001.
2 THE STATE OF KERALA,
REPRESENTED BY IT PRINCIPAL SECRETARY TO
GOVERNMENT, PUBLIC WORKS DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
WP(C).38437/2018, 17505/2020 AND 20142/2020
..4..
3 THE CHAIRMAN,
NATIONAL HIGHWAYS AUTHORITY OF INDIA,
NEW DELHI-110 001.
4 THE SPECIAL DEPUTY COLLECTOR AND COMPETENT
AUTHORITY,
LAND ACQUISITION (NATIONAL HIGHWAYS), NH17,
CIVIL STATION, THIRUVANANTHAPURAM-695 001.
5 THE GENERAL MANAGER (TECH),
REGIONAL OFFICER, NATIONAL HIGHWAY AUTHORITY OF
INDIA, REGIONAL OFFICE, KERALA, PALKULANGARA JN,
THIRUVANANTHAPURAM,PIN-695 008.
6 THE DISTRICT COLLECTOR,
COLLECTORATE, KUDAPPANAKKUNNU,
THIRUVANANTHAPURAM, PIN-695 035.
7 THE PROJECT DIRECTOR,
PIU, NATIONAL HIGHWAY AUTHORITY OF INDIA,
THIRUVANANTHAPURAM.
8 RAJAPPAN NAIR,
RETIRED DEPUTY TAHSILDAR, AYANIKKADU HOUSE,
OPPOSITE ALSAJ HOTEL, VADAKKUMBHAGAM,
KAZHAKKOOTTOM P.O.
THIRUVANANTHAPURAM DISTRICT,PIN-695 582.
R1 BY SRI.M.A.VINOD, CGC
R7 BY SRI.M.V.KINI SC, NHAI
R BY SMT.REKHA G.NAIR, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
24-03-2021, ALONG WITH WP(C).38437/2018(D), WP(C).17505/2020(K),
THE COURT ON 09-04-2021 DELIVERED THE FOLLOWING:
WP(C).38437/2018, 17505/2020 AND 20142/2020
..5..
JUDGMENT
Dated this the 24th day of March 2021 As these writ petitions raise common issues , they were heard together and are disposed of by this common judgment.
W.P. (C) No. 38437 of 2018
2. This writ petition is filed challenging Ext. P6 notification issued under Section 3A of the National Highways Act, 1956 (hereinafter referred to as 'N.H. Act'). Ext. P6 was issued on 08.06.2018. Since 3D declaration was not issued within a period of one year from the date of publication of the 3A notification, the said notification ceased to have effect and all proceedings pursuant to Ext. P6 notification have lapsed. Fresh notification issued under Section 3A has been challenged by the petitioner in W.P.(C) No.17505 WP(C).38437/2018, 17505/2020 AND 20142/2020 ..6..
of 2020 and therefore, this writ petition is closed. W.P. (C) No.20142/2020 and W.P. (C) No.17505/2020
3. The petitioners in W.P. (C) No.20142/2020 own small extent of land in different survey numbers in Veilur and Pallippuram villages in Thiruvananthapuram District mainly on the western side of NH-66 within kms.541/000 to 564/000 (Kadambattukonam - Thiruvananthapuram) reach. They have approached this Court aggrieved by the steps taken for acquisition of their land for widening of NH-66.
4. According to the petitioners, three notifications were issued for acquisition of lands for widening NH-66 from 2009 to 2018. After the issuance of Ext. P3 notification on 24.12.2009 under Section 3A(1), boundary stones were planted along the entire stretch of the National Highway. Going by WP(C).38437/2018, 17505/2020 AND 20142/2020 ..7..
Ext. P3 notification, only small extent of property of the petitioners were proposed to be acquired for the purpose of widening the road. However, Ext. P3 notification lapsed as Section 3A(1) notification was not followed by Section 3D declaration within the stipulated time. Ext. P4 notification issued under Section 3A(1) on 27.03.2012 also lapsed by efflux of time. Later, Ext. P7 notification was issued on 08.06.2018 under Section 3A(1) deviating from the earlier alignment plan and the same was challenged by some of the petitioners before this Court by filing W.P. (c) No. 2080/2019. The said notification also ceased to have effect as the same was not followed by Section 3D declaration within one year of publication of Section 3A(1) notification. As Ext. P7 notification lapsed, W.P. (c) No. 2080/2019 was disposed of by Ext. P9 judgment giving liberty to the petitioners to WP(C).38437/2018, 17505/2020 AND 20142/2020 ..8..
challenge the notification if a subsequent cause of action arises.
5. While so, Ext. P14, a fresh notification dated 24.01.2020 under Section 3A(1) of the NH Act was issued by the Ministry of Road Transport and Highways whereby large extent of property of the petitioners are notified to be acquired. This was followed by Ext. P19 declaration dated 20.08.2020 issued under Section 3D and Ext. P20 notice issued under Section 3G. According to the petitioners, with the issuance of Exts. P14, P19 and P20 notifications under Section 3A(1), 3D and 3G of the N.H Act respectively, there is change of alignment of road and the alignment is being shifted to save the property of certain influential and affluent persons, who have land on the other side of the road. Though at the time of issuance of the earlier notifications it was decided WP(C).38437/2018, 17505/2020 AND 20142/2020 ..9..
to acquire land equally from both side of the existing road by taking central line of the existing highway as the reference line, in the present notification this has been ignored and the alignment has been deviated and the Government land available on the eastern side of the property of the petitioners are excluded from acquisition. Though the petitioners submitted objection to Section 3A(1) notification, some of the objections were rejected and other objections are yet to be considered. The petitioners also call in question Ext.P10 letter of the Additional Chief Secretary to Government, State of Kerala to the Regional Officer, National Highway Authority of India (NHAI), which gives approval of the State Government to the alignment proposed to NH-66. According to the petitioners, Ext.P10 pertains to the approval to the alignment of NH-66 from Cherthala to WP(C).38437/2018, 17505/2020 AND 20142/2020 ..10..
Kazhakkkoottam and the property of the petitioners are not included in that stretch of land and therefore, Ext.P10 Government letter cannot be construed as approval of the State Government to the alignment plan for the stretch Kadambattukonam- Kazhakkoottam, wherein the property of the petitioners are situated. Therefore, in this writ petition, the petitioners pray for a direction to quash Exts.P10, P14, P19 and P20 to the extent it affects the petitioners and for directing respondents 1 to 7 to put back the boundary stone to the original position in accordance with the original alignment plan prior to Exts. P3 and P4 notifications.
6. The National Highways Authority of India (hereinafter referred to as 'NHAI'), through its Project Director, has filed a counter affidavit, contending inter alia that the earlier notifications issued for WP(C).38437/2018, 17505/2020 AND 20142/2020 ..11..
widening of NH-66 have lapsed by efflux of time and the present notification vide Ext.P14 is issued on 24.01.2020, under the provisions of the NH Act and any person interested in the land may within 21 days from the date of publication of the notification under Section 3A of the Act, can object to the use of lands for the purpose or purposes mentioned in Section 3A(1). All objections contemplated under Section 3C of the NH Act were heard and finally disposed of and Section 3D declaration was published thereafter and notices to erstwhile owners of property acquired were issued under Section 3G to attend hearing to determine the compensation payable and the writ petition filed at this stage is highly belated. According to the NHAI, the only objection that can be raised under Section 3C is regarding the user of the property. Other than the same, no objection WP(C).38437/2018, 17505/2020 AND 20142/2020 ..12..
whatsoever, can be raised. In short, the objection that could be raised under Section 3C of the NH Act is, whether the land sought to be acquired is used for any purpose other than for which same has been acquired. The objections raised against the alignment are not coming within the scope of the objections to the use of land provided under Section 3C. According to the NHAI, old alignment has no relevance at present and cannot be relied on to scuttle the new acquisition proceedings.
7. The petitioner in W.P. (C) No.17505/2020 and one P.V. Rajan are the title holders of 13.18 Ares of land comprised in Sy. No. 381/6 of Pallippuram village on the side of NH-66 within kms.542/000 to 543/000 (Ochira - Thiruvananthapuram) reach. Pursuant to the building permit issued by the Panchayat, the petitioner constructed a commercial WP(C).38437/2018, 17505/2020 AND 20142/2020 ..13..
building in the said property and later the Assistant Executive Engineer, N.H. sub- division issued permission for constructing an approach road from the National Highway to the building. However, with the Section 3A(1) notification issued on 08.06.2018, an extent of 6.83 cents of land was notified for acquisition which would cause complete destruction of the petitioner's property. It was at that juncture the petitioner approached this Court by filing W.P. (C) No.38437/2018. Since the said notification was not followed by Section 3D declaration, the notification lapsed and with the issuance of fresh 3A(1) notification on 24.01.2020 the petitioner has filed this writ petition. Accordingly, W.P.(C) No.38437/2018 is closed by this Court today by this common judgment. The Section 3A(1) notification dated 24.01.2020 is marked in this writ petition also as Ext. P14. The WP(C).38437/2018, 17505/2020 AND 20142/2020 ..14..
petitioner filed objection to Ext. P14 under Section 3C(1) mainly objecting to the feasibility of the new alignment compared to the old alignment and also pointing out the hardships caused by acquisition leading to demolition of his commercial building. Though Ext.P14 notification and consequent declaration under Section 3D and notice under Section 3G are not sought to be quashed, Ext.P10 Government letter of approval of the State Government to the alignment plan of NH-66 is under challenge in this writ petition also and other common contentions and prayers as in W.P. (C) No. 20142/2020 are made in this writ petition also.
8. A Statement is filed on behalf of the NHAI wherein they have stated that the property of the petitioner is in between chainage 542/700 and 542/300 and there is a curve at chainage 542/700 and WP(C).38437/2018, 17505/2020 AND 20142/2020 ..15..
to maintain the design speed of 80 to 100 kms per hour and radius of curvature, the acquisition of the petitioner's property is necessitated and other than straightening the National Highway at the point in question the respondents have no personal interest in the acquisition as alleged.
9. Heard the learned counsel on both sides.
10.Sri. G.Shrikumar, the learned Senior Counsel, instructed by Sri George Mecheril appearing for the petitioners in W.P. (C) No.20142/2020 contended that, the alignment plan approved by the NHAI and the Central Government prior to the issuance of Section 3A(1) notification on 24.12.2009 and pursuant to which boundary stones were planted, cannot be changed. The Senior Counsel contends that Ext. P10 letter of approval of the State Government to the alignment plan of NH 66 pertains to Alappuzha WP(C).38437/2018, 17505/2020 AND 20142/2020 ..16..
District Thuravoor (km.379.000) to Ochira (km.462.800) and the petitioners' properties are located at kms. 541/000 to 546/000 (Kadambattukonam-Kazhakkuttom) reach and as Ext. P10 is not related to the lands located in Thiruvananthapuram District, the approval of change of alignment based on Ext. P10 letter of State Government is not legally sustainable and that the petitioners ought to have been heard when there is change of alignment. The Senior Counsel also contended that the petitioners are persons interested in the land and can object to the acquisition when it is in breach of law and the 'use of land' in 3C (1) cannot be given a narrow interpretation. It is also contended that the period of 21 days referred to in section 3C (1) for submitting objection is not rigid. The Senior Counsel also relied on Ext.P6 Note of the District WP(C).38437/2018, 17505/2020 AND 20142/2020 ..17..
collector to contend that the alignment has been deviated to avoid acquisition of certain properties.
11. The learned Standing Counsel for the NHAI contended that Ext.P4 notification under Section 3A(1) was issued on 22.04.2020 and the petitioners in W.P. (c) No. 20142/2020 and the petitioner in W.P. (C) No. 17505/2020 submitted objections long after the stipulated period of 21 days as evident from Exts. P15 to P17 objections produced in W.P. (C) No. 20142/2020 and Ext. P15 objection produced in W.P. (C) No.17505/2020. Though the objection of the 5 th petitioner in W.P. (C) No.20142/2020 was rejected by Ext.P18, the same is not challenged in the writ petition. Further, the declaration under Section 3D was made on 20.08.2020 and at present, the procedure under Section 3G is going on and any interference at this stage would stall the entire WP(C).38437/2018, 17505/2020 AND 20142/2020 ..18..
process for widening of the National Highway. The counsel further contended that the only objection that can be raised under Section 3C is regarding the user of the property. The counsel also relied on the decision of the Apex Court in Union of India v Kushala Shetty and others (AIR 2011 SC 3210) to contend that the scope of judicial review in matters relating to acquisition proceedings is limited.
12. It is apposite to have reference to Sections 3A, 3C and 3D of the NH Act which read as under:-
"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.
WP(C).38437/2018, 17505/2020 AND 20142/2020 ..19..
(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.
3C. Hearing of objection,-
(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 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, if 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 WP(C).38437/2018, 17505/2020 AND 20142/2020 ..20..
Section 2 of the Advocates Act, 1961 (25 of 1961).
(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 sub-section (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- WP(C).38437/2018, 17505/2020 AND 20142/2020 ..21..
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 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."
(emphasis supplied) Section 3C (1) of the NH Act provides that any person interested in the land for which notification has been issued under Section 3A(1) can file objection within 21 days from the date of publication of the notification in the Official Gazette before the competent authority. The period for filing objection is WP(C).38437/2018, 17505/2020 AND 20142/2020 ..22..
statutorily fixed. If no objection is preferred within the said period the authorities under the NH Act cannot entertain objections received after the stipulated period and the Central Government has to issue declaration under Section 3D that the land shall be acquired for the purpose or purposes mentioned in sub-section (1) of Section 3A. On publication of declaration under Section 3D(1), the land vests absolutely with Central Government free from all encumbrances. Under the NH Act, the competent authority is not bound to entertain any objections received after 21 days from the date of publication of Section 3A(1) notification in the Official Gazette. Apparently, this period is fixed taking note of the strategic and national importance to build, maintain and operate the national highway with expediency. Going by the objections produced by the petitioners WP(C).38437/2018, 17505/2020 AND 20142/2020 ..23..
in the writ petitions, the objections are filed beyond the period stipulated under the NH Act and cannot be entertained.
13. With regard to the nature of objection that can be raised before the competent authority under the NH Act, Section 3C(1) provides that any person interested in the land may, object to the use of the land for the purpose or purposes mentioned in sub- section (1) of Section 3A. The public purpose mentioned in sub-section (1) of Section 3A of the NH Act are building, maintenance, management or operation of a national highway or part thereof. Therefore, the objection that can be raised and considered can only be with regard to the use of land for the purposes other than the construction, maintenance, management or operation of national highway or part thereof. The petitioners being WP(C).38437/2018, 17505/2020 AND 20142/2020 ..24..
persons interested in the land can object to the use of land if the same is not for the purpose or purposes mentioned in sub-section (1) of Section 3A. The petitioners have no case that the acquisition is not for the purpose mentioned in Ext P14 notification. The NH Act has given only a limited scope for entertaining an objection under Section 3C (1). The objections other than use of land for the purpose notified in sub-section (1) of Section 3A cannot be entertained by the competent authority. The Apex Court in Competent Authority v. Barangore Jute Factory (2005) 13 SCC 477 considered the scope of objection to the user of land under Section 3C (1) and held that unlike Section 5A of the Land Acquisition Act, 1894 which confers a general right to object to acquisition of land under S.4 of the said Act, Section 3C(1) of the National Highways Act gives a very WP(C).38437/2018, 17505/2020 AND 20142/2020 ..25..
limited right to object. The objection can be only to the use of the land under acquisition for purposes other than those under sub-section 3A(1). The Act confers no right to object to acquisition as such. The National Highways Act confers no such right. The Apex Court held that under the NH Act, there is no right to object to acquisition of land except on the question of its user.
14. The objections of the petitioners are mainly regarding the change of alignment and the hardships caused to them on account of the acquisition. Going by the provisions under Section 3C(1), the objection of the petitioners as to the alignment for acquisition cannot be entertained as it is not objection as to the user of the land as contemplated in Section 3C (1). The feasibility of the alignment cannot be gone into by this Court in writ jurisdiction. I see substance in WP(C).38437/2018, 17505/2020 AND 20142/2020 ..26..
the contention of the NHAI that the old alignment before the 2009 notification can have no relevance at this distance of time. The alignments are fixed by experts in the field considering various parameters. This Court has no competence to consider the objection regarding the alignment. Considering the issue regarding feasibility of alignment made by the NHAI, the Apex Court In Union of India v Kushala Shetty (supra), held that 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.
15. Regarding the hardships caused to the petitioners due to the acquisition, Counter Affidavit of the 7th respondent refers to the right of the WP(C).38437/2018, 17505/2020 AND 20142/2020 ..27..
petitioners to get just and fair compensation as provided by law. Further, in Ext.P18 letter issued by the Special Deputy Collector, LA, NH [competent authority under the Land Acquisition Act (CALA)] rejecting the objection of the 5th petitioner in W.P. (c) No. 20142/2020, it is specifically mentioned that they will be given compensation under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
16. The contention based on Ext. P10 letter of the State Government giving approval to alignment based on Ext.P11 letter referred to therein also cannot be sustained, as Ext.P10 alone cannot be relied upon to infer that the State Government has not granted their approval to the alignment option to the entire stretch. The NHAI, the Central Government and CALA, the revenue functionary of the State WP(C).38437/2018, 17505/2020 AND 20142/2020 ..28..
Government have acted upon it and have issued notifications under Section 3A (1), declaration under section 3D and notices under Section 3G. Further, no statutory provision has been brought to the notice of this Court which requires such an approval from the State Government.
17. The contention of the petitioners that the road alignment was shifted to save the property of certain influential and affluent persons who have land on the other side of the road also lacks merit, because except making some bald averments, the petitioners have not produced any materials to prove that the change of alignment as alleged by them is actuated by mala fides. Except the 8th respondent in W.P.(C) No.20142/2020 none of the persons whose lands are allegedly excluded from acquisition are made parties to the writ petition. Ext.P6 Note of the District WP(C).38437/2018, 17505/2020 AND 20142/2020 ..29..
Collector cannot be relied upon to conclude that the alignment has been shifted to favour some persons as it is not a conclusive report with technical assistance or made with reference to records and according to NHAI, they were not consulted before giving such report. Therefore, the allegation that the acquisition is vitiated by malafides, in the absence of proof, has to fail.
In the result, W.P.(C) Nos.17505 and 20142 of 2020 are dismissed.
Sd/-
MURALI PURUSHOTHAMAN, JUDGE SB WP(C).38437/2018, 17505/2020 AND 20142/2020 ..30..
WP(C) 38437/2018 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT DATED 27/9/2011 ISSUED BY THE ANDOORKONAM GRAMA PANCHAYAT SECRETARY ON 27/11/2011 EXHIBIT P2 TRUE COPY OF THE PERMISSION GRANTED BY THE ASSISTANT EXECUTIVE ENGINEER, NATIONAL HIGHWAY SUB DIVISION ON 24/2/2015 EXHIBIT P3 TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE SECRETARY ANDOORKONAM GRAMA PANCHAYAT EXHIBIT P4 TRUE COPY OF RELEVANT PORTION OF THE NOTIFICATION DATED 24/12/2009 EXHIBIT P5 TRUE COPY OF THE RELEVANT PORTION OF THE NOTIFICATION DATED 27/3/2012 EXHIBIT P6 TRUE COPY OF THE RELEVANT PORTION OF THE NOTIFICATION S.O. 2368 (E) DATED 8/6/2018 EXHIBIT P7 TRUE COPY OF DETAILED OBJECTION ON 18/7/2018 FILED BY THE PETITIONER EXHIBIT P8 TRUE COPY OF THE NOTICE FOR HEARING ON 19/7/2018 ISSUED BY THE 3RD RESPONDENT EXHIBIT P9 TRUE COPY OF THE OBJECTION FILED ON 19/8/2018 EXHIBIT P10TRUE COPY OF THE AFORESAID DETAILS FURNISHED BY THE PROJECT DIRECTOR NATIONAL HIGHWAYS AUTHORITY OF INDIA UNDER THE RIGHT TO INFORMATION ACT ON 19.10.2009.
EXHIBIT P11TRUE COPY OF THE EXPERT OPINION OF THE EXECUTIVE ENGINEER WHO RETIRED FROM NH DEPARTMENT.
EXHIBIT P12TRUE COPY OF COMPARATIVE STUDY REPORT OF THE EXPERT DATED 9-4-2019 EXHIBIT P13TRUE COPY OF LETTER DATED 1.4.2019 FORWARDED TO THE PETITIONER ON 24.7.2019 EXHIBIT P14TRUE COPY OF THE COVERING LETTER DATED 9-8-2019 WITH CHALAN RECEIPT FOR RS.144/DATED 8-8-2019 WP(C).38437/2018, 17505/2020 AND 20142/2020 ..31..
WP(C) 17505/2020 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE INFORMATION FURNISHED TO SAJEEM MOHAMMED BAHSEER, THE PROJECT DIRECTOR, NATIONAL HIGHWAYS AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, THIRUVANANTHAPURAM ON 19/10/2009.
EXHIBIT P2 TRUE COPY OF THE MINUTES OF THE MEETING DATED 17/11/2009 CONVENED BY THE DISTRICT COLLECTOR.
EXHIBIT P3 TRUE COPY OF THE RELEVANT PORTION OF THE NOTIFICATION UNDER SUB-SECTION (1) OF SECTION 3A OF THE ACT ON 24/12/2009 VIDE S.O 3292(E).
EXHIBIT P4 TRUE COPY OF THE BUILDING PERMIT ON 27/9/2011 ISSUED BY THE SECRETARY.
EXHIBIT P5 TRUE COPY OF THE RELEVANT PORTION OF THE 3A NOTIFICATION DATED 27/3/2012.
EXHIBIT P6 TRUE COPY OF THE PERMISSION GRANTED BY THE ASST.EXECUTIVE ENGINEER, N.H.SUB DIVISION, THIRUVANANTHAPURAM.
EXHIBIT P7 TRUE COPY OF THE RELEVANT PORTION OF THE NOTIFICATION DATED 7/6/2018 VIDE S.O NO.2368(E) EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 19/8/2018 SUBMITTED TO THE RESPONDENTS EXHIBIT P9 TRUE COPY OF THE APPLICATION DATED 15/11/2018 AND THE REPLY DATED 12/12/2018.
EXHIBIT P10 TRUE COPY OF THE GOVT.ORDER D3/27/2016/PWD DATED 1/2/2017.
EXHIBIT P11 TRUE COPY OF THE LETTER NO.NHAI/RO/KERALA/TVM/2013/2015/07 DATED 9/1/2017.
EXHIBIT P12 TRUE COPY OF THE ORDER DATED 29/9/2009 IN SLP(C) NO.8519/2006.
WP(C).38437/2018, 17505/2020 AND 20142/2020 ..32..
EXHIBIT P13 TRUE COPY OF THE COMPARATIVE STUDY REPORT OF THE EXPERT DATED 9/4/2019.
EXHIBIT P14 TRUE COPY OF THE RELEVANT PORTION OF THE NOTIFICATION DATED 24/1/20.
EXHIBIT P15 TRUE COPY OF THE OBJECTIONS DATED 22/4/2019 TO EXT P14 FILED BY THE PETITIONER.
EXHIBIT P16 TRUE COPY OF THE NOTICE L.A.C.No.436/2020 ISSUED ON 4.1.2021 EXHIBIT P17 TRUE RELEVANT PORTION OF MANUAL OF GUIDELINES ON LAND ACQUISITION FOR NATIONAL HIGHWAYS UNDER THE NATIONAL HIGHWAYS ACT, 1956 ISSUED BY THE GOVERNMENT OF INDIA, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS.
WP(C).38437/2018, 17505/2020 AND 20142/2020 ..33..
WP(C) 20142/2020 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE INFORMATION FURNISHED TO SAJEEM MOHAMMED BASHEER, BY THE PROJECT DIRECTOR, NATIONAL HIGHWAYS AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, THIRUVANANTHAPURAM ON 19.10.2009 EXHIBIT P2 TRUE COPY OF THE MINUTES OF THE MEETING DATED 17.11.2009 CONVENED BY THE DISTRICT COLLECTOR.
EXHIBIT P3 TRUE COPY OF THE RELEVANT PORTION OF THE NOTIFICATION ISSUED U/S 3A OF THE N.H. ACT ON 24.12.2009 VIDE SO 3292(E) EXHIBIT P4 TRUE COPY OF RELEVANT PORTION OF SO 616(E) DATED 27.3.2012 EXHIBIT P5 TRUE COPY OF THE REPORT DATED 8.7.2016 OF THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM EXHIBIT P6 TRUE COPY OF THE NOTE PREPARED AND FORWARDED BY THE DISTRICT COLLECTOR DATED 20.6.2016 SUBMITTED TO THE CHIEF SECRETARY AND ADDITIONAL CHIEF SECRETARY (PWD) EXHIBIT P7 TRUE COPY OF RELEVANT PORTION OF THE NOTIFICATION DATED 7.6.2018 VIDE SO 2368(E) EXHIBIT P8 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 7TH RESPONDENT IN WPC 2080/2019 EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 26.7.2019 IN WPC NO 2080/2019 EXHIBIT P10 TRUE COPY OF THE GOVT LETTER NO PWD-
D3/27/2016 PWD DATED 1.2.2017 EXHIBIT P11 TRUE COPY OF THE REQUEST SUBMITTED TO THE GOVERNMENT BY THE PROJECT DIRECTOR VIDE NO NHAI/RO/KERALA/TVM 24013/2015/07 DATED 9.1.2017 REFERRED TO IN EXT P10 ADDRESSED TO THE ADDITIONAL CHIEF SECRETARY EXHIBIT P12 TRUE COPY OF THE INFORMATION FURNISHED TO WP(C).38437/2018, 17505/2020 AND 20142/2020 ..34..
ONE V. VARGHESE ON 12.12.2018 BY THE 7TH RESPONDENT EXHIBIT P13 TRUE COPY OF THE COMPARATIVE STUDY REPORT OF THE EXPERT DATED 9.4.2019 EXHIBIT P14 TRUE COPY OF THE RELEAVANT PORTION OF THE NOTIFICATION DATED 24.1.2020 EXHIBIT P15 TRUE COPY OF THE DETAILED OBJECTION FILED BY THE 1ST PETITIONER TO THE 2ND RESPONDENT EXHIBIT P16 TRUE COPY OF THE DETAILED OBJECTION FILED BY THE 4TH PETITIONER TO THE 2ND RESPONDENT ON 19.6.2020 EXHIBIT P17 TRUE COPY OF THE DETAILED OBJECTION FILED BY THE 5TH PETITIONER TO THE 2ND RESPONDENT ON 4.6.2020 EXHIBIT P18 TRUE COPY OF THE ORDER NO B1-231/2020 PASSED BY THE SPECIAL DEPUTY COLLECTOR, LA. NH EXHIBIT P19 TRUE COPY OF THE RELEVANT PORTION OF THE NOTIFICATION SO 2841(E) DATED 20.8.2020 EXHIBIT P20 TRUE COPY OF THE NEWS ITEM APPEARED IN THE MATHRUBHOOMI DAILY DATED 16.9.2020 RESPONDENT'S/S EXHIBITS:
EXHIBIT R7 A LETTER TO M/S SMEC INTERNATIONAL PTY.LTD DATE 27.06.2016 EXHIBIT R7 B GAZETTE NOTIFICATION DATED 04.12.2009 EXHIBIT R7 C COPY OF THE PLAN //True copy // P.A To Judge