Kerala High Court
St.Sebastian Church vs Union Of India on 13 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 13TH DAY OF MARCH 2023 / 22ND PHALGUNA, 1944
WP(C) NO. 14047 OF 2020
PETITIONER/S:
ST.SEBASTIAN CHURCH, NEENDAKARA, KOLLAM,
REPRESENTED VICAR FR. EMMANEUL JAGADEESHAN, AGED 52
YEARS, S/O. COLOMBUS, ST.SEBASTIAN CHURCH, NEENDAKARA,
KOLLAM-691582.
BY ADVS.
P.A.MOHAMMED SHAH
SRI.C.R.SYAMKUMAR
SHRI.ASWIN KUMAR M J
SMT.HELEN P.A.
SRI.SHAHIR SHOWKATH ALI
RESPONDENT/S:
1 UNION OF INDIA, REPRESENTED BY SECRETARY,
MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, NEW DELHI-
110001.
2 STATE OF KERALA,REPRESENTED BY SECRETARY, PUBLIC WORKS
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, 695001.
3 NATIONAL HIGHWAY AUTHORITY OF INDIAG-586, SECTOR 10,
DWARAKA, NEW DELHI, 110075, REPRESENTED BY ITS
CHAIRMAN.
4 PROJECT DIRECTOR,NATIONAL HIGHWAY AUTHORITY OF INDIA,
TC-29/1539/1, RAJASREE KAIRALI, PERUMTHANNI,
VALLAKKADAVU P O, THIRUVANANTHPAURAM-695008.
5 SPECIAL DEPUTY COLLECTOR AND COMPETENT AUTHORITY,
LAND ACQUISITION, NATIONAL HIGHWAY AUTHORITY OF INDIA,
COLLECTORATE, KOLLAM-691013.
BY ADVS.
SHRI.P.VIJAYAKUMAR, ASG OF INDIA
SRI.E.C.KURIAKOSE
SRI.B.G.BIDAN CHANDRAN
MANU S., ASG OF INDIA
SRI. LIJO JOSEPH GEORGE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 14047 OF 2020 2
JUDGMENT
The petitioner has approached this Court, challenging the
proposal to acquire certain land belonging to the petitioner for
the widening and construction of the National Highway-66 [Old
National Highway-47(from Cherthala to Thiruvananthapuram
Section)]. It is the case of the petitioner that, the alignment,
which has been finalized, is arbitrary and if the alignment is
changed slightly, the graveyard of the church can be saved from
acquisition.
2. The primary contentions raised by the petitioner are
that the alignment originally proposed by the consultant was
changed without any reason, as a result of which, the property
in which the graveyard of the petitioner-church is situated is
now required to be acquired whereas in the original proposal,
the said land was not required. It is submitted that the
Neendakara bridge which starts from KM 484.700 is about 400
metres from the church. It is submitted that marking stones are
laid in the right hand side of the bridge, while travelling towards
south, and inside the graveyard of the church and after the
bridge, the marking stones are laid on the left hand side of the
road. It is contended that if the alignment is such that, after the
bridge, the property is required on the left hand side, then there
is no rhyme or reason to acquire property on the right hand side
of the bridge. It is submitted that the study report attempts to
save majority of religious structures and that there are eleven
temples, seven mosques and five churches, which are stated to
be affected and this does not include the St.Sebastian's church,
Neendakara. It is submitted that the property of the church was
completely excluded from the acquisition and thereafter the
property of the church is identified as land required for the
purposes of widening.
3. Learned Standing Counsel appearing for the National
Highways Authority of India would refer to the statements filed
in this Court on 14.10.2019 as well as the statement filed as
directed by this Court in its order dated 13.01.2022, to contend
that there is absolutely no merit in the contentions taken by the
petitioner. It is submitted that the stretch in question presently
has an ''S'' curve, which is accident prone zone, which needs to
be redesigned. It is submitted that the existing over-bridge is to
be dismantled and a new bridge has to be constructed in order
to ensure that the new bridge is able to carry the load of future
traffic. It is submitted that a service road, as proposed, cannot
be abandoned. It is pointed out that an award has already been
passed in respect of the property of the petitioner and
compensation amount has already been released. It is submitted
that the church building itself has been avoided and no part of
the acquisition will affect the church building. In the statement
dated 07.02.2022, it is pointed out that the avoidance of the
service road will result in traffic congestion.
4. After having heard the learned counsel appearing for
the petitioner and the learned Standing Counsel appearing for
the National Highways Authority of India, this Court wanted to
interact with the officials, who were involved in the preparation
of the detailed project report, in order to ascertain as to whether
there was any way in which the land on which church cemetery
is situated could be avoided. Sri. Gopakumar C.S., Assistant
General Manager (Technical), [Detail Project Report-DPR
Consultant appointed by the National Highways Authority of
India] had appeared in this Court along with sketches prepared
and had explained to this Court as to why the land in question
cannot be avoided. In particular, it was pointed out that, there
needs to be an 'underpass' just before the bridge so as to enable
traffic from one side of the National Highway to take a 'U' turn
and to enter National Highway again from the other side. It was
pointed out that such 'underpasses' are to be placed every 3.5-4
Kms and the avoidance of such underpasses will result in people
attempting to take a 'U' turn in the middle of the carriage way,
which again may not be possible on account of the fact that the
carriage way on both sides is separated by a median. It is
submitted that after having detailed study of all the aspects
involved, it was found that the land in question cannot be
avoided and has to be acquired for the purposes of development
of the National Highway.
5. Learned Standing Counsel appearing for the National
Highways Authority placed reliance of the judgments of the
Supreme Court in Union of India V. Kushala Shetty &
Others, (2011) 12 SCC 69, Project Director, Project
Implementation Unit V. P.V. Krishnamoorthy & Others,
(2021) 3 SCC 572 and G. Narsing Rao (died) through LRs V.
The National Highways Authority of India and Another
[Special Leave to Appeal (C.) No(s).9314-9315/2022], to contend
that the petitioner, cannot, in a writ petition under Article 226 of
the Constitution of India, seek for the modification of an
alignment, that has been fixed by the experts having regard to
the all factors and especially when there are no allegations of
mala fides. It is submitted that, in the light of the law laid down
in the aforesaid judgments, the writ petition is not maintainable
and is liable to the dismissed.
6. Having heard the learned counsel appearing for the
petitioner and the learned Standing Counsel appearing for the
National Highways Authority of India and the learned
Government Pleader appearing for the respondent Nos.2 and 5,
I am of the opinion that the petitioner has not made out any case
for interference. The statement filed by the National Highways
Authority of India in this case will show that the alignment is
proposed in such a way that the main church building of the
petitioner is not affected in any manner. The land on which the
cemetery is situated is required for construction of the service
road which appears to be imperative, as noticed above. It is
settled law that, this Court, cannot, in exercise of jurisdiction
under Article 226 of the Constitution of India, interfere with the
proposed alignment of a highway unless it were demonstrated
that the same is arbitrary or mala fide. There are no reasons,
which compels me to take a view that the decision taken by the
National Highways Authority in this case is not bona fide. The
decisions cited at the bar by the learned counsel for the National
Highways Authority indicate that this Court cannot force the
authority to accept an alignment in a manner contrary to the
advice of the experts.
The writ petition fails and it is accordingly dismissed.
sd/-
GOPINATH P.
JUDGE
ajt
APPENDIX OF WP(C) 14047/2020
PETITIONER EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE TAX RECEIPT DATED
25.02.2010
EXHIBIT P2 THE TRUE COPY OF THE TAX RECEIPT FOR SURVEY
NO.283/9 DATED 25.02.2010.
EXHIBIT P3 THE TRUE COPY OF FINAL FEASIBILITY REPORT
SUBMITTED BY SMEC DATED NIL
EXHIBIT P4 THE TRUE COPY OF THE NOTIFICATION PUBLISHED
IN MALAYALA MANORAMA DAILY DATED ON
10.03.2018(RELEVANT PORTION)
EXHIBIT P5 THE TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER TO THE 5TH RESPONDENT DATED
04.05.2018.
EXHIBIT P6 THE TRUE COPY OF THE REPLY GIVEN BY THE 5TH
RESPONDENT DATED 21.07.2018.
EXHIBIT P7 THE TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE PETITIONER BEFORE -6.08.2018.
EXHIBIT P8 THE TRUE COPY OF THE NOTIFICATION NUMBERED AS
SO 2559(E) DATED 22.08.2013 ISSUED BY THE
MINISTRY OF ENVIRONMENT AND FORESTS,
GOVERNMENT OF INDIA
EXHIBIT P9 THE TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
COURT IN WPC NO. 29203/2018 DATED 02.04.2019.
EXHIBIT P10 THE TRUE COPY OF THE NOTIFICATION ISSUED BY
TH 1ST RESPONDENT UNDER SECTION 3A OF THE
NATIONAL HIGHWAY ACT DATED 25.06.2019.
EXHIBIT P11 THE TRUE COPY OF THE OBJECTION SUBMITTED BY
THE PETITIONER DATED 01.08.2019.
EXHIBIT P12 THE TRUE COPY OF THE REPLY GIVEN BY THE 5TH
RESPONDENT DATED 13.08.2019
EXHIBIT P13 THE TRUE COPY OF THE ORDER DATED 19.02.2020
EXHIBIT P14 THE TRUE COPY OF THE LETTER ALONG WITH THE
COPY OF THE MINUTES
EXHIBIT P15 THE TRUE COPY OF THE RELEVANT PAGE OF THE
NOTIFICATION ISSUED UNDER SECTION 3D OF THE
NATIONAL HIGHWAY ACT, 1956 DATED 09.06.2020.
RESPONDENTS' EXHIBITS
EXHIBIT R4(a) TRUE COPY OF THE PLAN, PROFILE & DETAILS
REGARDING THE CONSTRUCTION OF NEW BRIDGE AT
NEENDAKARA
