Abdul Rahim v Union of India & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 16TH DAY OF NOVEMBER 2020 / 25TH KARTHIKA, 1942** # **WP(C).No.34168 OF 2018(U)** ## **PETITIONER:** **ABDUL RAHIM, AGED 59 YEARS S/O EBRAHIM KUTTY, ARAMAM, THOTTINUVADAKKU, CHAVARA P.O, PANMANA, KOLLAM DISTRICT-691583.** **BY ADVS. SRI.R.RAJESH(PULLIKADA) SRI.G.GANGADETHAN** ## **RESPONDENTS:** - **1 THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, TRANSPORT BHAVAN, PARLIAMENT STREET, NEW DELHI-110001.** - **2 THE NATIONAL HIGHWAYS AUTHORITY OF INDIA, REPRESENTED BY ITS CHAIRMAN, G5 AND G6 SECTOR 10, DWARAKA, NEW DELHI - 110875.** - **3 THE PROJECT DIRECTOR, NATIONAL HIGHWAYS AUTHORITY OF INDIA (MINISTRY OF ROAD TRANSPORT & HIGHWAYS), TC 36/414(5), KOYIKAL VEEDU, KAVU LANE, PALKULANGARA, THIRUVANANTHAPURAM-695024.** - **4 THE SPECIAL DEPUTY COLLECTOR & COMPETENT AUTHORITY, (LAND ACQUISITION), NATIONAL HIGHWAYS, COLLECTRATE, KOLLAM-691013.** **R1 BY SRI.K.R.RAJKUMAR, C.G.C. R2-R3 BY ADV. SMT.I.SHEELA DEVI, SC R4 BY SRI HANIL KUMAR, SPL GOVERNMENT PLEADER R1 BY SRI P.VIJAYKUMAR, ASGI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.34168 OF 2018(U)** 2 ## **JUDGMENT** The petitioner, who is stated to be the owner in possession of 06.10 Ares of property in Survey No.197/5 of Chavara Village, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus prohibiting the respondents from dispossessing the petitioner from any extent of his property in excess of the area notified for acquisition as per Ext.P1 notification bearing No.S.O.602(E) dated 09.02.2018 issued by the 1[st] respondent, under sub section (1) of Section 3A of the National Highways Act, 1956, in Survey No.197/5 of Chavara Village. The petitioner has also sought for a writ of mandamus prohibiting the respondents from issuing declaration under Section 3D of the Act for any extent of his property, in excess of the extent notified for acquisition as per Ext.P1 in Survey No.197/5 of Chavara Village. 2. As evident from Ext.P2, Ext.P1 notification was published in Malayala Manorama Daily dated 10.03.2018. The grievance of the petitioner, which is highlighted in this writ petition, is that after publication of Exts.P1 and P2, respondents 3 and 4 had measured his property and also other properties in the alignment proposed for acquisition along the National Highway, deviating from the **WP(C).No.34168 OF 2018(U)** 3 original alignment as per Ext.P1 notification. 3. On 22.10.2018, when this writ petition came up for admission, the learned Assistant Solicitor General of India took notice for the 1[st] respondent, the learned Standing Counsel for National Highway Authority of India (NHAI) took notice for respondents 2 and 3 and the learned Government Pleader took notice for the 4[th] respondent. This Court passed a interim order to the effect that there will be no dispossession of the petitioner from any property in excess of what is notified in Ext.P1. 4. A counter affidavit has been filed by respondents 2 and 3, opposing the reliefs sought for in this writ petition. 5. On 06.10.2020, when this writ petition came up for consideration along with connected matters, learned Standing Counsel for NHAI was directed to make available for the perusal of this Court the relevant plan showing the alignment and boundaries of the proposed four lane National Highway and also the report of the Project Director of the National Highway Authority of India on the objections raised in the hearing conducted under Section 3C of the National Highways Act, 1956. **WP(C).No.34168 OF 2018(U)** 4 6. Today, when this writ petition is taken up for consideration, an additional statement has been filed on behalf of respondents 2 and 3, paragraph 2 of which reads thus: “2. It is respectfully submitted that this Hon'ble Court directed me to produce Chainage 478/200 to 478/300 in respect to the Sy.Nos.197/5 of Chavara Village prepared by the National Highway Authority of India. The alignment plan for DPR for widening of Oachira to Kadambattukonam in Kollam District Km.460/700 to 517/200 was approved by the Government of Kerala on 01.02.2017. No change has been made in that alignment between Km 460/700 to 517/200 on the basis of the approval received from the Government of Kerala and therefore the National Highway Authority of India has published Section 3A notification of National Highway Act, 1956 in the Government of India gazette as per SO No.602(E) dated 08.02.2018. Due to technical reasons, the notification was Denova on 08.02.2019. After completing all technical formalities, the National Highway Authority of India has published Section 3A notifications again in the Government of India Gazette dated 25.06.2019 as per SO No.2113 (E) for an extent of 80.2273 hectares. But no alignment changes were made in the stretch and the approved alignment is in force. A true copy of the Chainage 478/200 to 478/300 in respect to the Sy.Nos.197/5 of Chavara Village prepared by the National Highway Authority of India is produced herewith and marked as Annexure-R3(a).” **WP(C).No.34168 OF 2018(U)** 5 7. Heard the learned counsel for the petitioner, learned Assistant Solicitor General of India for the 1[st] respondent, learned Standing Counsel for NHAI for respondents 2 and 3 and also the learned Special Government Pleader for the 4[th] respondent. 8. Section 3A of the NH Act deals with power to acquire land, etc. As per sub-section (1) of Section 3A, 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. As per sub-section (2), every notification under sub-section (1) shall give a brief description of the land. As per sub-section (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. 9. Section 3B of the NH Act deals with power to enter for survey, etc. As per Section 3B, on the issue of a notification under sub-section (1) of Section 3A, it shall be lawful for any person, authorised by the Central Government in this behalf, to make any **WP(C).No.34168 OF 2018(U)** 6 inspection, survey, measurement, valuation or enquiry; take levels; dig or bore into sub-soil; set out boundaries and intended lines of work; mark such levels, boundaries and lines placing marks and cutting trenches; or do such other acts or things as may be laid down by rules made in this behalf by that Government. 10. Section 3C of the NH Act deals with hearing of objections. As per sub-section (1) of Section 3C, 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. As per 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, it any, as the competent authority thinks necessary, by order, either allow or disallow the objections. As per sub-section (3), any order made by the competent authority under sub-section (2) shall be final. **WP(C).No.34168 OF 2018(U)** 7 11. Section 3D of the NH Act deals with declaration of acquisition. As per sub-section (1) of Section 3D, where no objection under sub-section (1) of Section 3C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under subsection (2) of that Section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in subsection (1) of Section 3A. As per sub-section (2), on the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances. As per sub-section (3), where in respect of any land, a notification has been published under sub-section (1) of Section 3A for its acquisition but no declaration under sub-section (1) has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect. As per the proviso to sub-section (3), in computing the said **WP(C).No.34168 OF 2018(U)** 8 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. As per sub-section (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. As per Section 3J, nothing in the Land Acquisition Act, 1894 shall apply to an acquisition under the NH Act. 12. In **Competent Authority v. Barangore Jute Factory [(2005) 13 SCC 477]** the Apex Court was dealing with a case in which the impugned notification under sub-section (1) of Section 3A of the NH Act was under challenge on the ground that it does not give a brief description of the land sought to be compulsorily acquired. The Apex Court noticed that, as per sub-section (1) of Section 3A, 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. Sub-section (2) of Section 3A provides that **WP(C).No.34168 OF 2018(U)** 9 every notification under sub-section (1) shall give a brief description of the land. Under sub-section (3), the competent authority is required to cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language. So far as the question whether the impugned Notification meets the requirement of sub-section (1) of Section 3A regarding giving brief description of land is concerned, the Apex Court noticed that, even though plot numbers of land in respect of each mouza are given, different pieces of land are acquired either as whole or in part. Wherever the acquisition is of a portion of a bigger piece of land, there is no description as to which portion was being acquired. Unless it is known as to which portion was to be acquired, the petitioners would be unable to understand the impact of acquisition or to raise any objection about user of the acquired land for the purposes specified under the Act or to make a claim for compensation. Where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning. The Apex Court held that, the impugned notification fails to meet **WP(C).No.34168 OF 2018(U)** 10 the statutory mandate of sub-section (2) of Section 3A. It is vague. The least that is required in such cases is that the acquisition notification should let the person whose land is sought to be acquired know what he is going to lose. The impugned notification under sub-section (1) of Section 3A is, therefore, not in accordance with the law. 13. In **Mohammed P.A. v. The Deputy Collector and Competent Authority and another [2009 (4) KLT SN 10]** a Division Bench of this Court held that Section 3D of the NH Act provides for the making of a declaration that the land in relation to which that notification is issued should be acquired for the public purpose. Such declaration is preceded by a notification under subsection (1) of Section 3A, following which the authority gets the power to enter for survey, etc., in terms of Section 3B. Once declaration is made in terms of Section 3D, the land vests absolutely in the Central Government free of all encumbrances by virtue of sub-section (2) of Section 3D. 14. In the instant case, as can be seen from the additional statement filed by respondents 2 and 3, the 1[st] respondent, after 11 ## **WP(C).No.34168 OF 2018(U)** completing the technical formalities, has published a fresh notification under sub-section (1) of Section 3A of the National Highways Act, vide S.O.No.2113 (E) in the Government of India gazette dated 25.06.2019, for an extent of 80.2273 hectares. As per the statement, no alignment changes were made in the stretch and the approved alignment is in force. A copy of Chainage 478/200 to 478/300 in respect of Survey No.197/5 of Chavara Village, prepared by NHAI, is placed on record as Annexure-R3(a). 15. The learned Standing Counsel for NHAI would submit that the acquisition proceedings will be undertaken, strictly in terms of the notification dated 25.06.2019 issued under subsection (1) Section 3A of the National Highways Act and that, there is no change in the alignment, as evident from Annexure-R3(a). 16. Learned counsel for the petitioner would submit that recording the aforesaid submission made on behalf of respondents 2 and 3, this writ petition may be disposed of; giving liberty to the petitioner to approach this Court again, in case of any deviation. 17. Having considered the submissions made by the learned counsel on both sides and taking note of the provisions under the **WP(C).No.34168 OF 2018(U)** 12 National Highways Act and also the law laid down in the decisions referred to supra, this Court finds that only the properties included in the notification issued under sub-section (1) Section 3A of the National Highways Act can be included in any declaration notified by the Central Government under Section 3D of the said Act. Now the submission made by the learned Standing Counsel for NHAI is that the acquisition proceedings will be undertaken strictly in terms of the notification dated 25.06.2019 issued under sub-section (1) Section 3A of the National Highways Act and there is no change in the alignment, as evident from Annexure-R3(a). Therefore, this writ petition is disposed of recording the aforesaid stand taken by respondents 2 and 3; however without prejudice to the legal right, if any, of the petitioner to approach this Court again in case of any deviation in the alignment in AnnexureR3(a). ## **Sd/-** ## **ANIL K.NARENDRAN** **JUDGE** JV **WP(C).No.34168 OF 2018(U)** 13 ## **APPENDIX OF WP(C) 34168/2018** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **THE TRUE COPY OF THE RELEVANT PAGES THE NOTIFICATION DATED 9.2.2018 BEARING NO.S.O.602(E).** **EXHIBIT P2 THE TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFICATION DATED 9.2.2018 PUBLISHED IN THE MALAYALAM MANORAMA DAILY DATED 10.3.2018.** **EXHIBIT P3 THE TRUE COPY OF THE SKETCH PLAN PREPARED BY 'ATLAS SURVEY ENGINEERING SYSTEM' KOLLAM.** **EXHIBIT P4 THE TRUE COPIES OF THE INTERIM ORDER DATED 7.8.2018 OF THIS HON'BLE COURT IN WPC.NO.26727/18.** ## **RESPONDENT'S EXHIBITS:** **ANNEXURE-R3(A) THE TRUE COPY OF THE CHAINAGE 478/200 TO 478/300 IN RESPECT TO THE SY.NOS.197/5 OF CHAVARA VILLAGE PREPARED BY NATIONAL HIGHWAY AUTHORITY OF INDIA**