High Court of KeralaSingle Judge2020-06-23Writ petitions disposed; compensation under Act...

Abdul Wahab v. State of Kerala and others

Case / Petition Number:WP(C).Nos.25824 & 28872 OF 2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Muhammed Mustaque
Judgment Date: 2020-06-23
Court Decision / Holding: Disposed of as follows: (i) the petitioner is entitled to compensation under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013; (ii) National Highways is restrained from taking over any land other than that notified under Section 3A of the National Highways Act, 1956; (iii) no interference with the alignment fixed by NHAI; (iv) the petitioners’ remedies under the 2013 Act remain available.
Final Disposition: Writ petitions disposed; compensation under Act 2013; no land beyond Sec 3A; no interference with alignment; NHAI to adhere to Section 3A notifications; rights to compensation preserved under Act 2013.

Parties to the Case

Appellants / Petitioners

Abdul Wahab

Respondents

State of Kerala
District Collector, Kollam
National Highways Authority of India (NHAI)
Special Deputy Collector (LA), NH 47(66) & Competent Authority, NHAI

Legal Representation & Advocates

Counsels for Petitioners

• A. A. Ziyad Rahman
• Joseph Kurian Vallamattam
• Lal K. Joseph
• V. S. Shiraz Bava

Counsels for Respondents

• Y. Jafar Khan
• Thomas Antony
• I. Sheela Devi

Case Synopsis & Summary

The petitioners challenge a notification issued under the National Highways Act, 1956, for land acquisition intended for widening a National Highway in Kollam. Abdul Wahab, the petitioner, contends that the alignment fixed for acquisition deviates from the original alignment and that the fixation is not scientific. He argues that the 2012 notification could not be completed in time and that the altered alignment adversely affects his property. The counter-affidavit asserts that objections were considered and that in certain places extra land beyond what was notified under Section 3A has been surveyed; it also states that fresh action under Section 3A would be initiated to utilize such land. The Hon’ble Supreme Court’s decision in Union of India v. Kushala Shetty (2011) is cited to emphasize that NHAI is a professionally managed expert body and that judicial review of alignment is generally limited; courts should not second-guess the viability of the project. The Kerala High Court reiterates that while the alignment cannot be interfered with, no extra land can be used without Section 3A notification. The court holds that the petitioner is entitled to compensation under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and restrains NHAI from taking land beyond the notified area, disposing of the petitions accordingly.

Provisions of Law Cited

National Highways Act, 1956Section 3A of the National Highways Act, 1956Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 30 of 2013)

Legal Doctrines & Maxims

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.
Scope of judicial review is very limited.
NHAI is a professionally managed statutory body having expertise in highway development and maintenance.
No extra land can be utilized for National Highways without notifying under Sec.3A of the Act.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners challenge the 2018 notification under the National Highways Act, 1956, seeking widening of the highway and argue that the alignment deviates from the original and was not scientifically fixed. They contend that extra land has been surveyed beyond the notified land under Section 3A and that no such land should be used without proper notification; they seek protection of their interests and compensation under the 2013 Act.

Contentions of Respondents

The respondents contend that NHAI is an expert, professionally managed statutory body responsible for highway development, and that alignment decisions follow public hearing and expert assessment. They submit that objections were considered and that fresh action under Section 3A will be initiated for any additional land. They emphasize that judicial review should be limited and that compensation under the 2013 Act is available to the petitioner without altering the alignment or the notified land.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Union of India v Kushala Shetty and Others	2011 (12) SCC 69	Positive	Cited to support limited judicial review and deference to the expert body (NHAI) in highway alignment decisions.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **TUESDAY, THE 23RD DAY OF JUNE 2020 / 2ND ASHADHA, 1942** ## **WP(C).No.25824 OF 2018(C)** ## **PETITIONER:** **ABDUL WAHAB, AGED 28 YEARS, S/O. IBRAHIMKUTTY, CHARUVILA PUTHENVEETIL HOUSE, “ALIA”, MYLAKKAD, KOLLAM, PIN - 691 571, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER AKBAR KHAN.** **BY ADVS.** **SRI. A. A. ZIYAD RAHMAN SRI. JOSEPH KURIAN VALLAMATTAM SRI. LAL K. JOSEPH SRI. V. S. SHIRAZ BAVA** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF PUBLIC WORKS, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2 THE DISTRICT COLLECTOR, KOLLAM, CIVIL STATION, KOLLAM - 691 570. 3 NATIONAL HIGHWAY AUTHORITY OF INDIA, REGIONAL OFFICE, T.C 29/153/1, RAJASREE KAIRALI LANE, PERUMTHANNI, VALLAKADAVU P. O, THIRUVANANTHAPURAM - 691 570, REPRESENTED BY ITS REGIONAL OFFICER.** - **4 THE SPECIAL DEPUTY COLLECTOR (LA), NH 47(66) & COMPETENT AUTHORITY, NATIONAL HIGHWAY AUTHORITY OF INDIA, CIVIL STATION, KOLLAM - 691 570.** **SRI. Y. JAFAR KHAN, GP R3 – SMT. I. SHEELA DEVI, SC, NHAI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.06.2020, ALONG WITH WP(C).28872/2018(H), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).Nos.25824 & 28872 OF 2018** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE TUESDAY, THE 23RD DAY OF JUNE 2020 / 2ND ASHADHA, 1942** **WP(C).No.28872 OF 2018(H)** ## **PETITIONER:** **ABDUL WAHAB, S/O. IBRAHIMKUTTY, CHARUVILA PUTHENVEETIL HOUSE, “ALIA”, MYLAKKAD, KOLLAM, PIN – 691 571, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, AKBARKHAN. Y, AGED 28 YEARS, S/O. YUNUS KUNJU, RESIDING AT SALEENA MANZIL PALLIMON KIZHAKKEKKARA CHERRY, PALLIMON VILLAGE, PALLIMON P. O., KOLLAM TALUK, KOLLAM DISTRICT, PIN - 691 576. BY ADVS. SRI. A. A. ZIYAD RAHMAN SRI. LAL K. JOSEPH** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**DEPARTMENT OF PUBLIC WORKS,**| ||**SECRETARIAT, THIRUVANANTHAPURAM – 695 001.**| |**2**|**THE DISTRICT COLLECTOR,**| ||**KOLLAM, CIVIL STATION, KOLLAM -691 571.**| |**3**|**NATIONAL HIGHWAY AUTHORITY OF INDIA,**| ||**REGIONAL OFFICE, T.C 29/153/1,**| ||**RAJASREE KAIRALI LANE, PERUMTHANNI,**| ||**VALLAKADAVU P. O., THIRUVANANTHAPURAM – 695 001.**| ||**REPRESENTED BY ITS REGIONAL OFFICER.**| **WP(C).Nos.25824 & 28872 OF 2018** **3** **4 THE SPECIAL DEPUTY COLLECTOR (LA), NH 47(66) AND COMPETENT AUTHORITY) NATIONAL HIGHWAY AUTHORITY OF INDIA, CIVIL STATION, KOLLAM -691 571.** **SRI. Y. JAFAR KHAN, GOVERNMENT PLEADER R3 – SRI. THOMAS ANTONY SMT. I. SHEELA DEVI, SC NHAI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.06.2020, ALONG WITH WP(C).25824/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).Nos.25824 & 28872 OF 2018** **4** ## **JUDGMENT** The petitioner's challenge is regarding a notification issued under the National Highways Act, 1956, acquiring the land for the purpose of widening of the National Highways. 2. The land in question was the subject matter of earlier notification issued in the year 2012. However, proceedings could not be completed in stipulated time. Petitioner's main contention, in this case, is that the alignment has been fixed deviating from the original alignment fixed. It is further contended that the fixation of the alignment is not scientific. 3. It is stated by the competent authority in the counter affidavit that the objections were considered and found that in some places extra area other than notified under Sec. 3A of the Act has been surveyed for National Highways. It is also stated that fresh action will be initiated under Sec.3A of the Act for utilizing such area. **WP(C).Nos.25824 & 28872 OF 2018** **5** 4. The Hon'ble Apex Court in _**Union of India v.**_ ## _**Kushala Shetty and others** [_ 2011 (12) SCC 69] in ## paragraph 28 held as follows: _“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 filed 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 sub serve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullity 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.”_ 5. The National Highways Authority followed the procedure of public hearing before fixation of the alignment. They are the expert body to fix the alignment **WP(C).Nos.25824 & 28872 OF 2018** **6** and it is for them to decide whether particular land is required for widening the road. This Court cannot, under Article 226 of the Constitution of India, interfere with their choice of alignment. However, no extra land can be utilized for National Highways without notifying under Sec.3A of the Act. There is no scope for interfering with the alignment fixed. However, nothing would prevent the petitioner from claiming compensation under The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 30 of 2013). Thus without interfering with the notification, it is ordered that the petitioner would be entitled to compensation under Act 30 of 2013. National Highways is also restrained from taking over any land other than notified under Sec.3A of the Act. These writ petitions are disposed of as above. ## **Sd/-** ## **A.MUHAMED MUSTAQUE JUDGE** SPR **WP(C).Nos.25824 & 28872 OF 2018** **7** ## **APPENDIX OF WP(C) 25824/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE SALE DEED DATED 19-10-1993 IN FAVOUR OF THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE NOTIFICATION DATED 09-02-2018 WHICH WAS PUBLISHED IN MALAYALA MANORAMA DAILY DATED 10-03-2018.** **EXHIBIT P3 TRUE COPY OF STATEMENT CONTAINING THE DETAILS OF THE ACQUISITION PROPOSED TO BE MADE IN FRONT OF THE PROPERTY OF THE PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE SKETCH SHOWING THE OLD PROPOSAL AND THE NEW PROPOSAL.** - **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION.** - **EXHIBIT P6 TRUE COPY OF THE MINUTES OF THE MINUTES OF THE MEETING OF COMMITTEE DATED 29-04-2017.** - **EXHIBIT P7 TRUE COPY OF THE OBJECTIONS DATED 21-03-2018.** - **EXHIBIT P8 TRUE COPY OF THE ADDITIONAL STATEMENT DATED 20-04-2018 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R4(a) THE ORDER NO.A2-139/18 (443) DATED 10.07.2018.** **EXHIBIT R4(b) THE ORDER NO.A2-139/18 (577) DATED 11.07.2018.** **WP(C).Nos.25824 & 28872 OF 2018** **8** ## **APPENDIX OF WP(C) 28872/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED DATED 19/10/1993 IN FAVOUR OF THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE NOTIFICATION DATED 09/02/2018 WHICH WAS PUBLISHED IN MALAYALA MANORAMA DAILY DATED 10/03/2018.** - **EXHIBIT P3 TRUE COPY OF THE STATEMENT CONTAINING THE DETAILS OF THE ACQUISITION PROPOSED TO BE MADE IN FRONT OF THE PROPERTY OF THE PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE SKETCH SHOWING THE OLD PROPOSAL AND THE NEW PROPOSAL.** - **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION ALONG WITH OBJECTION.** - **EXHIBIT P6 TRUE COPY OF THE MINUTES OF THE MEETING OF COMMITTEE DATED 29.04.2017.** - **EXHIBIT P7 TRUE COPY OF THE OBJECTION DATED 21.03.2018.** - **EXHIBIT P8 TRUE COPY OF THE ADDITIONAL STATEMENT DATED 20/04/2018 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE ORDER BEARING NO A2137/18(30) DATED 26.07.2018.** - **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R4(a) THE ORDER NO.A2-139/18 (443) DATED 10.07.2018.** **EXHIBIT R4(b) THE ORDER NO.A2-139/18 (577) DATED 11.07.2018. EXHIBIT R3(a) TRUE COPY OF THE LAND ACQUISITION PLAN.**