Kerala High Court
V. Varghese vs The Union Of India on 30 July, 2021
W.A. Nos. 792 & 794 of 2021 -1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
WA NO. 792 OF 2021
AGAINST THE JUDGMENT IN WP(C) 38437/2018 OF HIGH COURT OF
KERALA, ERNAKULAM
APPELLANT/S:
V. VARGHESE
AGED 42 YEARS
S/O P.G.VARGHESE, A.V.MARBLE PALACE, PALLIPPURAM,
THIRUVANANTHAPURAM-695 316.
BY ADVS.
S.SREEKUMAR (SR.)
MATHEW GEORGE
ELIZEBATH GEORGE
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), NH17, CIVIL
STATION, THIRUVANANTHAPURAM-695 001.
4 THE PRINCIPAL SECRETARY TO GOVERNMENT
PUBLIC WORKS DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
5 THE DISTRICT COLLECTOR,THIRUVANANTHAPURAM-695 001.
6 THE ASSISTANT EXECUTIVE ENGINEER,
NATIONAL HIGHWAY SUB DIVISION, THIRUVANANTHAPURAM-695
001.
7 THE PROJECT DIRECTOR,
NATIONAL HIGHWAYS, THIRUVANANTHAPURAM-695 001.
BY ADV SRI.S.BIJU, CGC
SMT.I.SHEELA DEVI SC FOR R2,
ARAVINDA KUMAR BABU, SR. GP FOR R3 TO R6
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
30.07.2021, ALONG WITH WA.794/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.A. Nos. 792 & 794 of 2021 -2-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
WA NO. 794 OF 2021
AGAINST THE JUDGMENT IN WP(C) 17505/2020 OF HIGH COURT OF
KERALA, ERNAKULAM
APPELLANT/S:
V. VARGHESE
AGED 45 YEARS
S/O. P. G. VARGHESE, A. V. MARBLE PALACE,
PALLIPPURAM, THIRUVANANTHAPURAM - 695 316.
BY ADVS.
S.SREEKUMAR (SR.)
MATHEW GEORGE
ELIZEBATH GEORGE
RESPONDENT/S:
1 THE UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF ROAD
TRANSPORT AND HIGHWAYS, NEW DELHI - 110 001.
2 THE STATE OF KERALA
REPRESENTED 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), NH 17, 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.
BY ADVS. B. PRAMOD, CGC FOR R1
ARAVINDA KUMAR BABU, SR. GP FOR R2 AND R4
K.P.SATHEESAN (SR.)FOR R3 AND R5
K.SUDHINKUMAR FOR R3 AND R5
S.K.ADHITHYAN
SABU PULLAN
GOKUL D. SUDHAKARAN
P.MOHANDAS (ERNAKULAM)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
30.07.2021, ALONG WITH WA.792/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.A. Nos. 792 & 794 of 2021 -3-
JUDGMENT
Shaji P. Chaly J.
The captioned writ appeals are filed by the petitioner in the writ
petition against the common judgment rendered by the learned Single
Judge in W. P. (C) Nos. 38437 of 2018 and 17505 of 2020
respectively, dated 09.04.2021. The subject issue relates to acquisition
of land initiated by the National Highways Authority of India (NHAI)
under Section 3-A of the National Highways Act, 1956.
2. W. P. (C) No. 38437 of 2018 was filed seeking to quash Ext.
P6 notification issued by the Government of India, Ministry of Road
Transport and National Highways dated 08.06.2018, issued in
accordance with the powers vested under Section 3-A of the National
Highways Act, 1956, to acquire various properties for widening of
National Highway 66 and construction of four lane road in which
property of the petitioner was included. Objections were called for
from the property owners, to be submitted before the Deputy Collector
(Land Acquisition), Thiruvananthapuram. At the outset it is clarified
that earlier two notifications were issued which were lapsed
consequent to the failure of the authority to make declaration under
section 3D of the act 1956 within one year. Appellant had also sought
direction to the respondents to proceed with the acquisition, in
accordance with the alignment plan prepared by M/s. Inter Continental
Consultants (P) Ltd., as of 2009, and approved by the NHAI and the
Central Government, evident from Exts. P4 and P5 notifications dated
24.12.2009 and 27.03.2012, respectively.
3. W. P. (C) No. 17505 of 2020 was filed seeking to quash Ext.
P10 communication issued by the Public Works Department,
Government of Kerala dated 01.02.2017 to the Regional Officer,
National Highways Authority of India, Thiruvananthapuram informing
that the State Government have examined the alignment option
received along with the letter dated 09.01.2017 issued by NHAI
bearing No. NHAI/RO-Kerala/TVM/24013/2015/07 and conveying
that the alignment option is found to be acceptable in general.
However it was pointed out that authority could not follow the
concentric widening with respect to the central line of existing
alignment for a considerable length due to the proximity of religious
structures. It was also stated that the details of structures affected due
to the alignment are not shown in the drawing, however the
Government approved the alignment option in general. Other
consequential directions were also sought for by the petitioner.
4. The learned Single Judge after taking into account the
contentions put forth by the petitioner and basically relying upon the
judgment of the Hon'ble Apex Court in Union of India v. Dr.
Kushala Shetty and others [ (2011) 12 SC 69] and assimilating the
legal situations contained under Sections 3-A, 3-C and 3-D of the
National Highways Act, 1956 held that the change in alignment
departing from the alignment of the year 2009, and the alleged
hardships caused to the petitioner on account of the acquisition is not
legally sustainable in view of the provisions contained under Section
3-C(1), and that such a contention cannot be entertained as it is not an
objection to the user of the land as contemplated in the said provision.
Learned Single Judge has also found that the feasibility of the
alignment cannot be gone into by a writ court, exercising the powers
under the writ jurisdiction.
5. That apart it was held that there is substance in the contention
of the NHAI that the old alignment before the 2009 notification can
have no relevance at this distance of time. It was also found the
alignment is fixed by experts in the field, considering various
parameters and the writ court has no competence to consider the
objections regarding the alignment.
6. Having found so, the writ court absolutely relied on the
judgment of the Hon'ble Apex Court in Dr. Kushala Shetty (supra)
wherein it was held that the Courts are not at all equipped to decide
upon the viability and feasibility of a particular project, and whether a
particular alignment would sub serve the larger public interest, and
held that the scope of judicial review in such matters are very limited.
It is thus challenging the legality and correctness of the said judgment
these appeals are preferred.
7. We have heard, Sri. S. Sreekumar, learned Senior Counsel
appearing for the petitioner and Sri. K. Sudhin Kumar for the National
Highways Authority of India, New Delhi and perused the pleadings
and materials on record.
8. Brief material facts for the disposal of the writ appeals are as
follows:-
9. Appellant and one P. V. Rajan are stated to be the absolute
owners of 13.18 ares of property in survey No. 381/6 of Pallippuram
Village, Thiruvananthapuram Taluk, Thiruvananthapuram District.
The said property is situated on the western side of NH 66 between
KM 542/000 to KM 543/000. The NHAI decided to acquire lands for
the purpose of widening NH 47 (now NH 66) on the stretch KM
522/000 to KM 545/750, Cherthala - Thiruvananthapuram Section,
under the provisions of National Highways Act, 1956. Accordingly
their consultant M/s. Inter Continental (P) Ltd. was appointed for
preparing the Detailed Project Report (DPR). The consultant prepared
the project report and submitted it to the NHAI. NHAI approved it and
in turn forwarded it to the Central Government for its approval, as
required by law. The Central Government also approved the project
and alignment sketch, and accordingly Ext. P3 notification under
Section 3-A was issued on 24.12.2009.
10. The case of the petitioner is that as per Ext. P3 notification,
an extent of 3.98 cents (159.49 m2) was alone sought to be acquired
for the widening, from the appellant. According to the appellant,
appellant did not object to the acquisition and pursuant to the
notification, a detailed survey was again conducted and boundary
stones were planted and demarcated the land required for road
widening, however declaration as is contemplated under Section 3-D
was not made within a period of one year, consequent to which the
said notification elapsed.
11. Subsequently, appellant filed an application before the
Secretary of Andoorkonam Grama Panchayat for construction of a
commercial building and Ext. P4 building permit dated 27.09.2011
was issued on condition that prior sanction should be obtained from
NHAI before constructing the approach road from National Highway
to the building. According to the petitioner, construction was carried
out in terms of Ext. P4 permit after obtaining permission from the
NHAI for constructing the approach road as per Ext. P6 dated
24.02.2015. Thereafter, the Secretary of the Panchayat numbered the
building and issued an ownership certificate on 03.12.2015. It is also
stated that the appellant had started business in the said building.
12. In the meanwhile, the competent authority again issued Ext.
P5 notification under Section 3-A of Act 1956 dated 27.03.2012,
which was also elapsed for want of declaration under Section 3-D
within one year. It was thereafter that the present notification namely
Ext. P7 in W. P. (C) No. 17505 of 2020 dated 08.06.2018 was issued,
wherein the extent of land sought to be acquired from the appellant in
regard to the proposal to acquire land from KM 517/200 to KM
551/900 in Ochira - Thiruvananthapuram section was 0.0275 hectors
(6.83 cents), instead of 3.98 cents demarcated for acquisition in the
earlier notifications. It was basically challenging the Ext. P7
notification that the connected writ petition W. P (C) No. 38437 of
2018 was filed.
13. Anyhow, the learned Single Judge after taking into account
the objection filed by the NHAI in regard to the various aspects put
forth by the petitioner in the writ petition and taking note of the fact
that appellant had not raised any objection within twenty one days in
contemplation of section 3C (1) of Act 1956, appreciated the relevant
provisions of law, and had arrived at the conclusion that the appellant
has not made out a case for interference exercising the power of
discretion under Article 226 of the Constitution of India.
14. The paramount contention advanced by learned Senior
Counsel for the petitioner was that the State Government did not have
any power to issue Ext. P10 order described above and therefore the
same is without jurisdiction and hence the proposal for acquisition is
invalid. It was also submitted that the said legal issue was not disputed
by the NHAI, and even though the said aspect was addressed in detail
before the learned Single Judge, it was not considered by the learned
Single Judge. It was also submitted that M/s. Inter Continental
Consultants (P) Ltd. has prepared a Detailed Project Report, taking
into account the alignment in the year 2009, which was approved by
the Central Government and in the later notification issued in the year
2012 also, the said alignment was proposed in order to widen the
National Highway in question.
15. Therefore the sum and substance of the contention put forth
by the learned Senior Counsel was that no change of alignment can be
effected without the sanction of the Central Government and further
that the deviation of alignment option was made based on Ext. P10
letter issued by the State Government and therefore the entire exercise
done by the NHAI is illegal and arbitrary which ought to have been
interfered with by the learned Single Judge. It was also submitted that
even though in Section 3-C of Act 1956, limited nature of objections
can be entertained, that would not stand in the way of a writ court
considering other Constitutional issues raised by the appellant. It was
further submitted that the appellant had constructed the building after
the first notification elapsed and therefore the attempt of the NHAI to
acquire the land with the building can never be sustained. That apart it
was also submitted that the appellant has no objection in acquiring the
extent of land up to the building and further that fairness and interest
of justice requires the building to be exempted. Appellant had also
made a vague allegation of malafides as if to appear that the change in
alignment was made to protect the interest of yet another person,
however admittedly no details were furnished.
16. We have evaluated the rival submissions made across the
Bar.
17. The subject issue as we have pointed out above is guided by
the National Highways Act, 1956. Section 3-A deals with power to
acquire land and sub section (1) thereto enables the Central
Government to acquire any land, if it is satisfied that the land is
required for a public purpose for the construction of building,
maintenance, management or operation of a National Highway or part
thereof, by issuing a notification in the official gazette, declaring its
intention to acquire such land. The requirement to be contained in the
notification under sub section (1) shall be a brief description of the
land, and 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 in contemplation of sub sections (2)
and (3).
18. On issue of the notification under sub section (1) of Section
3-A, as per section 3-B it shall be lawful for any person authorized by
the Central Government in that behalf to make any inspection, survey,
measurement, valuation or enquiry; take levels; dig or bore into
subsoil; set out boundaries and intended lines of work; mark such
levels, boundaries and lines by placing marks and cutting trenches; or
do such other acts or things as may be laid down by rules made in that
behalf by the Central Government .
19. Section 3-C deals with hearing of objections and sub section
(1) thereto specifies that 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 3-A object to the use of the land for the
purpose or purposes mentioned in that sub section. Other provisions
are contained under Section 3-C enabling the objector for a hearing
and sub section (3) makes it clear that any order made by the
competent authority under sub section (2) after hearing the objector
shall be final.
20. Section 3-D deals with declaration of acquisition wherein it
is clearly specified that where no objection under sub section (1) of
Section 3-C has been made to the competent authority within the
period specified therein, or 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 such notification in the official gazette
that the land should be acquired for the purposes mentioned in sub
section (1) of Section 3-A. On publication of the declaration under
subsection (1), the land shall vest absolutely in the Central
Government free of all encumbrances by virtue of sub section (2)
thereto.
21. On vesting of the land under sub section (2), the amounts on
account of compensation shall be determined by an order of the
competent authority as per Section 3-G and deposit the compensation
amount as provided under section 3-H (1) of Act 1956. Thereafter the
competent authority has the power to take possession in accordance
with the procedure prescribed under section 3-D. These are the
important and relevant provisions so far as the acquisition of land is
concerned under Act 1956.
22. It is significant to note that no objections were made by the
petitioner to the use of the land for the purpose or purposes for which
the notification was issued under section 3 (1) of Act 1956. It is also
equally relevant to note that the appellant has not raised allegations of
any specific malafides on the part of the respondents in the matter of
acquisition of the land.
23. Even though the appellant has a contention that after the first
notification issued in the year 2009 appellant carried out construction
of a commercial building, that will not disable the NHAI under the
Act 1956 to proceed to acquire the land with the building on the basis
of a new Detailed Project Report prepared by the consultant and a new
alignment prepared accordingly.
24. Though, petitioner had a case that the sanction of the Central
Government was not secured in respect to the new alignment and
therefore the notification issued in the year 2018 for acquisition of a
larger extent of land of the appellant cannot be sustained under law,
learned Senior Counsel could not point out any provision under the
Act 1956 to substantiate the said contention. This we say because, the
notification itself was issued by the Central Government as per the
powers vested in it under section 3-A of the act since it was satisfied
that the land was required for the purposes enumerated there under.
25. As we have pointed out above, the NHAI is guided clearly
by the provisions of the Act 1956. There is no case for the appellant
that the NHAI has not taken the steps for acquisition, in accordance
with the provisions of Act 1956. It is rather significant to note that
appellant had not even filed any objection within the time prescribed
under section 3 (1), setting out the grounds under which the objections
are raised, thus disabling the competent authority to consider the
same.
26. It is equally important to note that the appellant has not
made out any case of arbitrariness, illegality or malafides on the part
of the NHAI to have entertained the writ petition by the learned Single
Judge. Any how it was after elaborately considering the provisions of
Act 1956 discussed above and taking into account the principles of
law evolved in the various judgments of the Hon'ble Apex Court, the
learned Single Judge dismissed the writ petition. The question with
respect to the power of the NHAI and the circumstances and the
manner in which an acquisition can be challenged by an aggrieved
person was considered by the Hon'ble Apex Court in Dr. Kushala
Shetty (supra) and has found as follows:-
"20. The scheme of acquisition enshrined in the above
reproduced provisions makes it clear that once the Central
Government is satisfied that any land is required for the building,
maintenance, management or operation of a national highway or
part thereof, then, it shall declare its intention to acquire such
land by issuing a notification in the official Gazette giving brief
description of the land. The substance of the notification is also
required to be published in two local newspapers of which one
has to be in a vernacular language. Any person interested in the
land can file objection within 21 days from the date of
publication of the notification in the official Gazette. Such
objection is required to be made to the Competent Authority in
writing. Thereafter, the Competent Authority is required to give
the objector an opportunity of hearing either in person or through
a legal practitioner. This exercise is to be followed by an order of
the Competent Authority either allowing or rejecting the
objections.
21. Where no objection is made to the Competent
Authority in terms of Section 3C(1) or where the objections
made by the interested persons have been disallowed, the
Competent Authority is required to submit a report to the Central
Government, which shall then issue a notification in the official
Gazette that the land should be acquired for the purpose or
purposes mentioned in Section 3A(1). On publication of
declaration under Section 3D(1), the land vests absolutely in the
Central Government free from all encumbrances. Sub-section (3)
of Section 3D provides that where no declaration under sub-
section (1) is published within a period of one year from the date
of publication of notification under Section 3A(1), the said
notification shall cease to have any effect. By virtue of proviso to
Section 3D(3), the period during which any action or proceeding
taken in pursuance of notification issued under Section 3A(1)
remains stayed by a Court shall be excluded while computing the
period of one year specified in Section 3D(3).
22. In this case, notification dated 10.8.2005, which was
published in the official Gazette of the same date and of which
substance was published in two local newspapers, contained full
description of the land proposed to be acquired for widening
three National Highways. The names of the villages in which the
land proposed to be acquired was situated, the survey numbers
including sub-survey numbers, the nature, type and area of the
land were also given in the schedule appended to the notification.
Not only this, it was clearly mentioned that land plans and other
details of the land are available in the office of the Competent
Authority. This is the reason why none of the land owners
(including the respondents) made any grievance that the
notification issued under Section 3A(1) of the 1956 Act was
vague or that due to lack of particulars/details, they were
prevented from effectively exercising their right to file objections
in terms of Section 3C(1). Of course, a grievance of this score
was made in the objections dated 16.10.2006 filed by some of the
land owners of Padavu Village, but that was clearly an
afterthought and, in any case, the same did not require
consideration because of nonadherence to the time schedule
specified in Section 3C(1) of the 1956 Act.
23. The only reason assigned by the Division Bench of
the High Court for upsetting the well considered order passed by
the learned Single Judge negating the respondents' challenge to
the acquisition was that declaration under Section 3D(1) was
published even before communication of the decision taken by
the Competent Authority in terms of Section 3C(2). The process
of reasoning adopted by the Division Bench for recording its
conclusion appears to have been influenced by an assumption
that the objections filed by the land owners had not been decided
till the issue of declaration under Section 3D(1). However, the
fact of the matter is that the Competent Authority had, after
giving opportunity of personal hearing to the objectors, passed
order dated 11.10.2005 and rejected the objections. Though, that
order was not crafted like a judicial order which is passed by a
legally trained mind, the rejection of the representations made by
the respondents cannot be faulted only on that ground.
24. The Competent Authority did advert to the substance
of objections, the details of which have been incorporated in
Annexure P-3 filed before this Court. The concerned officer
rejected the same by observing that the land proposed for
acquisition is necessary for widening the existing National
Highways into four lanes. If the consideration made by the
Competent Authority is judged in the backdrop of the fact that a
Special Purpose Vehicle was incorporated with the name New
Mangalore Port Road Company Limited for implementation of
the project known as New Mangalore Port Road Connectivity
Project from Surathkal to Nantoor and B.C.Road to Padil along
with bypass from Nantoor to Padil, it is not possible to castigate
the proved reasons recorded by the Competent Authority for
rejecting the objections.
25. The plea of the respondents that alignment of the
proposed widening of National Highways was manipulated to
suit the vested interests sounds attractive but lacks substance and
merits rejection because except making a bald assertion, the
respondents have neither given particulars of the persons sought
to be favoured nor placed any material to prima facie prove that
the execution of the project of widening the National Highways
is actuated by mala fides and, in the absence of proper pleadings
and material, neither the High Court could nor this Court can
make a roving enquiry to fish out some material and draw a
dubious conclusion that the decision and actions of the appellants
are tainted by mala fides.
26. A somewhat similar question was considered in Girias
Investment Private Ltd. v. State of Karnataka (supra). In that
case, the acquisition of the land under the Karnataka Industrial
Areas Development Act, 1966 was challenged on various
grounds including the one that the acquisition was vitiated due to
mala fides. While rejecting the plea of mala fides, the Court
referred to S.R. Venkataraman v. Union of India (1979) 2 SCC
491, State of Punjab v. Gurdial Singh (1980) 2 SCC 471 and
Collector (D.M.) v. Raja Ram Jaiswal (1985) 3 SCC 1 and
observed:
"14. It is obvious from a reading of the pleadings
quoted above that only vague allegations of mala fides
have been levelled and that too without any basis.
There can be two ways by which a case of mala fides
can be made out; one that the action which is
impugned has been taken with the specific object of
damaging the interest of the party and, secondly, such
action is aimed at helping some party which results in
damage to the party alleging mala fides. It would be
seen that there is no allegation whatsoever in the
pleadings that the case falls within the first category
but an inference of mala fides has been sought to be
drawn in the course of a vague pleading that the change
had been made to help certain important persons who
would have lost their land under the original
acquisition. These allegations have been replied to in
the paragraph quoted above and reveal that the land
which had been denotified belonged to those who had
absolutely no position or power. In this view of the
matter, the judgments cited by Mr Dave have
absolutely no bearing on the facts of the case."
27. We may also refer to the Constitution Bench
judgment in E.P. Royappa v. State of Tamil Nadu and another
(1974) 4 SCC 3. In that case, the petitioner, who was transferred
from the post of Chief Secretary and posted as Officer on Special
Duty, challenged the action of government on various grounds
including the one that the decision of the government was
vitiated due to mala fides of the Chief Minister. This Court
rejected the plea of mala fides by making the following
observations:
"90. ..... The petitioner set out in the petition
various incidents in the course of administration where
he crossed the path of the second respondent and
incurred his wrath by inconvenient and
uncompromising acts and notings and contended that
the second respondent, therefore, nursed hostility and
malus animus against the petitioner and it was for this
reason and not on account of exigencies of
administration that the petitioner was transferred from
the post of Chief Secretary. The incidents referred to
by the petitioner, if true, constituted gross acts of
maladministration and the charge levelled against the
second respondent was that because the petitioner in
the course of his duties obstructed and thwarted the
second respondent in these acts of maladministration,
that the second respondent was annoyed with him and
it was with a view to putting him out of the way and at
the same time deflating him that the second respondent
transferred him from the post of Chief Secretary. The
transfer of the petitioner was, therefore, in mala fide
exercise of power and accordingly invalid.
91. Now, when we examine this contention
we must bear in mind two important considerations. In
the first place, we must make it clear, despite a very
strenuous argument to the contrary, that we are not
called upon to investigate into acts of
maladministration by the political Government headed
by the second respondent. It is not within our province
to embark on a far-flung inquiry into acts of
commission and omission charged against the second
respondent in the administration of the affairs of Tamil
Nadu. That is not the scope of the inquiry before us
and we must decline to enter upon any such inquiry. It
is one thing to say that the second respondent was
guilty of misrule and another to say that he had malus
animus against the petitioner which was the operative
cause of the displacement of the petitioner from the
post of Chief Secretary. We are concerned only with
the latter limited issue, not with the former popular
issue. We cannot permit the petitioner to side track the
issue and escape the burden of establishing hostility
and malus animus on the part of the second respondent
by diverting our attention to incidents of suspicious
exercise of executive power. That would be nothing
short of drawing a red herring across the trail. The
only question before us is whether the action taken by
the respondents includes any component of mala fides;
whether hostility and malus animus against the
petitioner were the operational cause of the transfer of
the petitioner from the post of Chief Secretary.
92. Secondly, we must not also overlook that
the burden of establishing mala fides is very heavy on
the person who alleges it. The allegations of mala fides
are often more easily made than proved, and the very
seriousness of such allegations demands proof of a
high order of credibility. Here the petitioner, who was
himself once the Chief Secretary, has flung a series of
charges of oblique conduct against the Chief Minister.
That is in itself a rather extraordinary and unusual
occurrence and if these charges are true, they are
bound to shake the confidence of the people in the
political custodians of power in the State, and
therefore, the anxiety of the Court should be all the
greater to insist on a high degree of proof. In this
context it may be noted that top administrators are
often required to do acts which affect others adversely
but which are necessary in the execution of their
duties. These acts may lend themselves to
misconstruction and suspicion as to the bona fides of
their author when the full facts and surrounding
circumstances are not known. The Court would,
therefore, be slow to draw dubious inferences from
incomplete facts placed before it by a party,
particularly when the imputations are grave and they
are made against the holder of an office which has a
high responsibility in the administration. Such is the
judicial perspective in evaluating charge of unworthy
conduct against ministers and other high authorities,
not because of any special status which they are
supposed to enjoy, nor because they are highly placed
in social life or administrative set up --these
considerations are wholly irrelevant in judicial
approach--but because otherwise, functioning
effectively would become difficult in a democracy. It
is from this standpoint that we must assess the merits
of the allegations of mala fides made by the petitioner
against the second respondent."
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 subserve the larger public
interest. In such matters, the scope of judicial review is very
limited. The Court can nullify the acquisition of land and, in
rarest of rare cases, the 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."
27. Moreover, the question with respect to the powers of a writ
court to interfere with the acquisition proceedings was considered
elaborately by a Hon'ble Division Bench of this Court to which one of
us was a party (Hon'ble Chief Justice) in W. A. No. 2125 of 2019 and
has rendered a judgment dated 15.10.2019 holding that the writ court
was right in relying upon the judgment of the Hon'ble Apex Court in
Dr. Kushala Shetty (supra) and further that the scope of judicial
review is very limited.
28. Likewise, in W. A. No. 2317 of 2019, a Hon'ble Division
Bench of this Court, to which also the Hon'ble Chief Justice was a
party, has again considered the issue with respect to the notifications
issued by the NHAI, DPR prepared and the alignment fixed, and held
that the acquisition is a subject matter undertaken by experts in the
field and a writ court would not be in a position to interfere with the
alignment fixed thereunder.
29. Yet again, in W. A. No. 1456 of 2020, this Division Bench
itself had occasion to consider the scope of interference with the
notification issued under Section 3-A of Act 1996 and held that
interference in the acquisition by the courts would be slow, and it is
the responsibility of the Central Government to develop, maintain and
properly repair all National Highways.
30. In the writ petition leading to W. A. No. 792 of 2021,
appellant has sought to quash Ext. P10 communication issued by the
State Government which was discussed above.
31. In our considered opinion the acquisition of land for the
purpose of National Highway is the absolute domain of the Central
Government and the State Government has no manner of power or
authority to interfere with the acquisition of the land. Even though
strenuous arguments were made on the basis of Ext. P10
communication of the State Government by the learned Senior
Counsel, on a query raised by this Court as to whether the State
Government has any power to interfere with the acquisition made by
the NHAI and the Central Government, learned Senior Counsel could
not point out any provisions under the Act 1956. To top up the legal
aspects discussed above, we are of the sure and considered opinion
that the alignment of a highway cannot be altered at the whims and
fancies of the individuals, and if the courts start interfering in such
matters unnecessarily, no development would be possible, and it
would materially affect the growth of the nation, apart from interfering
with avowed objects and policies of the Government.
32. At the most Ext. P10 could be treated as a communication
issued by the State Government since that stretch of the National
Highway was managed by the State Government on the basis of
permission granted by the NHAI, however when any acquisition is
need for the expansion and widening of the National Highway there is
no requirement for the Central Government or the NHAI to make any
request under law to the State Government seeking permission. The
State Government is also not vested with any powers to make any
suggestion in the matter of maintenance of the National Highway
since it is within the absolute domain and power of the Central
Government, and consequently the NHAI.
33. The writ court was called upon only to address the issue as
to whether the competent authority had misdirected itself in the matter
of acquisition thus making the process arbitrary and illegal. Taking
into consideration the above legal and factual circumstances, we are of
the undoubted opinion that the learned Single Judge was right in
dismissing the writ petitions, and therefore we do not find any
jurisdictional error or other legal infirmities in exercising the
discretionary power by the learned Single Judge, justifying this Court
to interfere in the judgment,invoking the powers conferred under
section 5 of the Kerala High Court Act 1956.
Needless to say, writ appeals fail. Accordingly they are
dismissed.
Sd/-
S. MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P. CHALY
JUDGE
Eb
///TRUE COPY///
P. A. TO JUDGE
