Kerala High Court
V. Varghese vs The Union Of India on 9 April, 2021
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
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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
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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
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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
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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
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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.
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(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
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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-
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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
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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
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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
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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
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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
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..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
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..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
