High Court of KeralaSingle Judge2018-10-26Writ petition dismissed; prayers refused; align...

Gopinathan and others v Union of India and Others

Case / Petition Number:W.P.(C).No.25652/18

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anu Sivaraman
Judgment Date: 2018-10-26
Court Decision / Holding: The writ petition is dismissed. The court holds that there is no violation of the National Highways Act, no demonstrated mala fides, and that objections were duly considered. It emphasizes the limited role of courts in second-guessing alignment chosen by a professional authority, and defers to the NHAI’s DPR and alignment rationale, upholding the proposed plan.
Final Disposition: Writ petition dismissed; prayers refused; alignment upheld; no mala fides found.

Parties to the Case

Appellants / Petitioners

Gopinathan
A.K Janardhanan Master
Mrithuenjayan
Jayprakashan
Sasi C.K
C.K Valsalan
C.K Gopinathan
C.K Krishnadas
JayaDev
Buneed M.A
Sudheesh
Fathima Moosa
Abdul Razak
C.K Raveendran
Premlal

Respondents

Union of India
Project Director, National Highways Authority of India, New Delhi
Special Deputy Collector (LA) & Competent Authority, Office of NH 17, Kodungallur PO, Thrissur District

Legal Representation & Advocates

Counsels for Petitioners

• Sri Rajit

Counsels for Respondents

• Sri M.A. Vinod
• Thomas Antony

Case Synopsis & Summary

This writ petition, filed by landowners near National Highway 66 (formerly NH 17) at Thalikulam, challenges proposed land acquisition for widening the highway. The petitioners allege mala fide in the alignment chosen, claiming land is being taken from one side only to preserve certain religious structures, particularly a mosque. They rely on a Supreme Court decision to argue that religious places cannot immunize against acquisition and that the proposed shift to the road's Right of Way (RoW) is unlawful. The respondents counter that the project has progressed through the National Highways Authority of India (NHAI) with a detailed project report, a 45-meter RoW, and an alignment prepared after consultations and public input. They maintain that land is acquired on both sides wherever feasible and only on one side to straighten curves where necessary, and that the acquisition complies with the National Highways Act, 1956 (Sections 3A(1) and 3C). The court reiterates that the NHAI is a professional body and that judicial review is narrowly confined to mala fides or contravention of law, citing Kushala Shetty and Shukla, and concludes that there is no evidence of violation or mala fides. The petition is dismissed, with the court declining to substitute its judgment for the highway authority’s. The decision underscores limited judicial scrutiny in highway acquisitions and adherence to due process.

Provisions of Law Cited

National Highways Act, 1956 – Section 3A(1) notificationNational Highways Act, 1956 – Section 3C

Legal Doctrines & Maxims

Mala fides (malafides) doctrine
Limited scope of judicial review in land acquisition cases (Kushala Shetty v. Union of India)
Ex facie contraria to the mandate of law (as cited in Kushala Shetty/related reasoning)
Judicial deference to expert agencies in infrastructure projects (NHAI expertise)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the proposed acquisition is skewed, aiming to protect certain religious structures. They urge acquisition on both sides of NH 66 and seek to ignore any religious dimension in determining the RoW. They rely on a Supreme Court decision to argue that religious places have no immunity from acquisition and suggest that the alignment is being altered solely to preserve a mosque. The petitioners contend that the process lacks transparency and that the alignment should be reassessed, including reconsideration of exactly where land is taken, to prevent mala fides.

Contentions of Respondents

Respondents maintain that the alignment has been prepared after a detailed project report, consultations, and public input; a 45m RoW was proposed and the final alignment seeks to straighten curves and optimize geometry. They assert acquisitions were carried out per the National Highways Act, Sections 3A(1) and 3C, with objections considered and the notification issued accordingly. They rely on Kushal Shetty to argue that courts should refrain from judging feasibility and that the highway authority’s technical expertise justifies deference; Shukla is cited to illustrate the limited scope of judicial review and process compliance.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Mohammed Aslam M. Ismail Faruqui Hargyan Singh Thakur Vijay Ragho Bhagwan Birajmanmandir Jamiat Ulama E Hind v. Union of India and others	LAW (SC) 1994 10 36	Positive	Cited to support the proposition that religious places or places of worship do not enjoy immunity from land acquisition proceedings, and that alignment changes to affect such sites may be challenged as illegal.
Union of India v. Kushala Shetty and others	2011 12 SCC 69	Positive	Cited to delineate the limited scope of judicial review in highway acquisitions and the deference due to expert agencies like NHAI, except in cases of mala fides or contravention of law.
Shukla V.S. And others v. National Highway Authority of India (Ministry of Road Transport and Highways) and others	2013 KHC 2619	Mentioned Only	Cited to show context on the objections process under Section 3A/3C and the principle that objections are examined, though the Kerala High Court acknowledges the narrow scope of intervention.

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Extracted Judgment Text

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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY ,THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940** ## **WP(C).No. 25652 of 2018** ## **PETITIONERS:** **1 GOPINATHAN AGED 59 YEARS, S/O BALACHANDRAN, NEDIYARATH HOUSE,THALIKULAM VILLAGE & DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT-680569.** - **2 A.K JANARDHANAN MASTER PENSIONER AGED 76 YEARS, S/O KUMARAN, ANDEZHATH HOUSE,THALIKULAM VILLAGE & DESOM, CHAVAKKAD TALUK,THRISSUR DISTRICT-680569.** - **3 MRITHUENJAYAN AGED 65 YEARS, S/O GOPALAKRISHNAN,** **ARAYANPARAMBIL,NEDIYARATH HOUSE, THALIKULAM VILLAGE & DESOM, CHAVAKKAD TALUK,THRISSUR DISTRICT-680569.** **4 JAYAPRAKASHAN AGED 68 YEARS, S/O NARAYANAN, ERANEZHATH VENGALI HOUSE, THALIKULAM VILLAGE & DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT-680569.** - **5 SASI C.K AGED 64 YEARS, S/O KANNAPPAN, CHEMBOLAPURATH HOUSE,THALIKULAM VILLAGE & DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT-680569.** - **6 C.K VALSALAN** **AGED 66 YEARS, S/O KUMARAN, CHULLIPARAMBIL HOUSE,THALIKULAM VILLAGE & DESOM, CHAVAKKAD TALUK,THRISSUR DISTRICT-680569.** W.P.(C).No.25652/18 2 - **7 C.K GOPINATHAN** **AGED 64 YEARS, S/O KUMARAN, CHULLIPARAMBIL HOUSE,THALIKULAM VILLAGE & DESOM, CHAVAKKAD TALUK,THRISSUR DISTRICT-680569.** - **8 C.K KRISHNADAS AGED 72 YEARS, S/O KUMARAN, CHULLIPARAMBIL HOUSE,THALIKULAM VILLAGE & DESOM, CHAVAKKAD TALUK,THRISSUR DISTRICT-680569.** - **9 JAYADEV AGED 60 YEARS, S/O LATE. K.K BALAKRISHNAN, KALATHIL HOUSE,THALIKULAM VILLAGE & DESOM, CHAVAKKAD TALUK,THRISSUR DISTRICT-680569.** - **10 BUNEED M.A AGED 48 YEARS, S/O A.V ABDULLA, ARAKKAVEETTIL HOUSE,THALIKULAM VILLAGE & DESOM, CHAVAKKAD TALUK,THRISSUR DISTRICT-680569.** - **11 SUDHEESH AGED 51 YEARS, S/O NARAYANAN, CHEMBOLAPURATH HOUSE, THALIKULAM VILLAGE & DESOM, CHAVAKKAD TALUK,THRISSUR DISTRICT-680569.** - **12 FATHIMA MOOSA AGED 56 YEARS, W/O MOOSA, PANATTUKAYIL VEEDU,THALIKULAM VILLAGE & DESOM, CHAVAKKAD TALUK,THRISSUR DISTRICT-680569.** - **13 ABDUL RAZAK** - **AGED 49 YEARS, S/O PAREED HAJI, PULIKKAVEETTIL HOUSE,THALIKULAM VILLAGE & DESOM, CHAVAKKAD TALUK,THRISSUR DISTRICT-680569.** **14 C.K RAVEENDRAN AGED 74 YEARS, S/O KUMARAN CHULLIPPARAMBIL HOUSE,THALIKULAM VILLAGE & DESOM, CHAVAKKAD TALUK,THRISSUR DISTRICT-680569.** W.P.(C).No.25652/18 3 **15 PREMLAL AGED 60 YEARS, S/O DAMODHARAN, PANAKKALPULIPARAMBIL HOUSE,THALIKULAM VILLAGE & DESOM, CHAVAKKAD TALUK,THRISSUR DISTRICT680569.** **BY ADV. SRI.RAJIT** ## **RESPONDENTS:** |**1**|**UNION OF INDIA**| |---|---| ||**REPRESENTED BY SECRETARY, MINISTRY OF ROAD**| ||**TRANSPORT & HIGHWAYS, GOVERNMENT OF INDIA, NEW**| ||**DELHI-110001.**| |**2**|**PROJECT DIRECTOR**| ||**NATIONAL HIGHWAY AUTHORITY OF INDIA, NEW DELHI.**| |**3**|**SPECIAL DEPUTY COLLECTOR**| ||**(LA) & COMPETENT AUTHORITY, OFFICE OF NH 17,**| ||**(KUTTIPURAM-EDAPPALLY), KODUNGALLUR PO,**| ||**THRISSUR DISTRICT.**| **BY ADVS. SRI.M.A.VINOD, CGC GOVERNMENT PLEADER THOMAS ANTONY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C).No.25652/18 4 ## **JUDGMENT** - 1.This writ petition is filed with the following prayers:- “a)Issue a writ of mandamus or any other appropriate writ order or direction commanding the respondent to acquire land on the eastern and western side of the existing National Highway No.66 (Previously National Highway 17) equally in the place where it passes through Thalikkulam. b)Issue a writ of Mandamus or any other appropriate writ order or direction commanding the respondent to ignore the religious dimension of any structure situated on either side of the existing National Highway No.66 (Previously National Highway 17) for the purpose of acquisition. c)Issue a Writ of Mandamus or any other appropriate writ order or direction commanding respondents 1 to 3 to take into consideration of the 4[th] respondent to limit the National Highway to 30 meters in places where it passes through important commercial areas.” - 2.Heard learned counsel for the petitioner, learned Central Government Standing Counsel, learned Government Pleader and the learned standing counsel appearing for the National Highway Authority of India. W.P.(C).No.25652/18 5 3.The petitioners, who are the owners of the property appurtenant to National Highway No.66 in Thalikkulam village in Chavakkad Taluk, challenge the proposal for acquisition of property on the ground that it is carried out without considering the allegation of _mala fide_ raised by the petitioners in their objections. The petitioners contend that it is only to save certain places of worship that the property is being acquired from only one side of the existing Highway. Relying on the decision of the Apex Court in **Mohammed Aslam M. Ismail Faruqui Hargyan Singh Thakur Vijay Ragho Bhagwan Birajmanmandir Jamiat Ulama E Hind v. Union of India and others** , [LAW (SC) 1994 10 36] it is contended that religious places or places of worship have no immunity from acquisition proceedings and that the attempt to acquire the petitioner's property only for avoiding the property of a mosque is completely illegal and unsustainable. - 4.A counter affidavit has been filed on behalf of the 2[nd] respondent contending that an earlier proceedings for widening of the highway had to be dropped due to the W.P.(C).No.25652/18 6 controversy regarding the width of the right of way as also public agitation against the acquisition. It is stated that the highway had been denotified by the Central Government and entrusted to the PWD. Thereafter, the State Government had requested the Central Government for the development of the highway into four lane highway and the National Highway Authority was again entrusted with the task and a fresh detailed project report with a right of way of width of 45ms had been prepared by the authority. It is stated that a draft alignment had been prepared and submitted and a meeting of the people's representatives and the district administration had been held in Thrissur. Considering the changes proposed in the meeting, final alignment had been submitted which was the basis for the Section 3A(1) notification. It is further submitted that the allegation that property is acquired only from one side of the highway is absolutely incorrect and acquisition had been carried out in accordance with the detailed project report with a view to straightening all curves wherever feasible. The details of the acquisition with reference to the approved alignment showing the land W.P.(C).No.25652/18 7 acquisition plan in respect of the property in question which is produced as Annexure R2(a) is also provided in paragraph 7 of the statement. It is submitted thereafter as follows:- “It is submitted that it is not for saving the Mosque that the alignment is shifted to the RHS of the existing highway but for the geometric improvement of the existing curve.” It is stated relying on Annexure R2(a) alignment that wherever possible land is acquired from both sides of the existing two lane highway and it is only where it is necessary to straighten out curves that acquisition is carried out on a single side. The learned counsel for the respondent also relies on a decision of the Apex Court in **Union of India v. Kushala Shetty and others** [2011 12 SCC 69] to contend that there is no power in this Court to consider the feasibility of the alignment in the absence of any substantiated case of mala fide exercise of power. - 5.A counter affidavit has been place on record by the competent authority also contending that the acquisition is perfectly in W.P.(C).No.25652/18 8 accordance with the National Highway Act, 1956 for short the Act) and the only objection entertainable under Section 3C of the Act is with regard to the non-suitability of the land for the purpose of the construction of the highway. It is stated that further steps will also be taken in accordance with law. 6.I have considered the contentions advanced. The scheme of the enactment would make it clear that it is for the National Highway Authority to get a plan prepared after due consultation for the acquisition of land for the purpose of widening or construction of National Highway. Once a detailed project report is approved, acquisition is to be notified in terms of Section 3A. Due procedure can then follow in terms of Section 3A. Objections are called for, which are considered and a declaration is to be published within the time prescribed. The question as to the objections which are entertainable in terms of Section 3C has been considered by the Apex Court in **Shukla V.S. And others v. National Highway Authority of India (Ministry of Road Transport and Highways) and others** [2013 KHC 2619]. It is the W.P.(C).No.25652/18 9 specific case of the respondents that all objections against the proposed alignment have been considered in detail and a decision has been taken to go ahead with the notification as proposed. The Apex Court in **Kushal Shetty's case (supra)** has specifically provided the parameters of the interference of this Court in matters of acquisition. At paragraph 28 of the judgment, the Apex Court held as follows:- “ _28. Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the filed 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 othe 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 filed 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 of 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 assignment would_ W.P.(C).No.25652/18 10 _subserve the larger pubic interest. In such matters, the scope of judicial review is very limited. The court can nullify the acquisition of land and, in the rarest of rate cases, the particular project, if it is found to be ex facie contrary to the mandate of law or tainted due to mala fides.....”_ 7.Having considered the contentions advanced on either side and the factual aspects as borne out by the pleadings of the parties, I am of the opinion that in the instant case also, there is no material to hold that any of the provisions of the Act have been violated or that there is any _mala fides_ in law or in fact in the action of the respondents in accepting the present alignment suggested by the notification. The objections raised by the petitioners have been considered and a factual finding as to viability of the proposed alignment has been entered into by the respondents. In the above view of the matter, I find no merit in the challenge to the notification. - 8.It is not open for this Court to consider whether the alignment proposed by the National Highway Authority is the most feasible alignment or whether a change in the alignment is W.P.(C).No.25652/18 11 called for in the absence of any substantial case of _mala fides_ or any apparent infraction of the law. In the above view of the matter, I am of the opinion that the prayers sought for in this writ petition cannot be granted. The writ petition fails and is accordingly dismissed. Sd/- **Anu Sivaraman, Judge** sj ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE DOCUMENT ALONG WITH A PROPERTY TAX RECEIPT.** **EXHIBIT P2 TRUE COPY OF THE DOCUMENT ALONG WITH A PROPERTY TAX RECEIPT.** **EXHIBIT P3 TRUE COPY OF THE DOCUMENT ALONG WITH A PROPERTY TAX RECEIPT.** - **EXHIBIT P4 TRUE COPY OF THE DOCUMENT ALONG WITH A PROPERTY TAX RECEIPT.** - **EXHIBIT P5 TRUE COPY OF THE DOCUMENT ALONG WITH A PROPERTY TAX RECEIPT.** - **EXHIBIT P6 TRUE COPY OF THE DOCUMENT ALONG WITH A PROPERTY TAX RECEIPT.** - **EXHIBIT P7 TRUE COPY OF THE DOCUMENT ALONG WITH A PROPERTY TAX RECEIPT.** - **EXHIBIT P8 TRUE COPY OF THE DOCUMENT ALONG WITH A PROPERTY TAX RECEIPT.** **EXHIBIT P9` TRUE COPY OF THE DOCUMENT ALONG WITH A PROPERTY TAX RECEIPT.** - **EXHIBIT P10 TRUE COPY OF THE DOCUMENT ALONG WITH A PROPERTY TAX RECEIPT.** - **EXHIBIT P11 TRUE COPY OF THE DOCUMENT ALONG WITH A PROPERTY TAX RECEIPT.** - **EXHIBIT P12 TRUE COPY OF THE DOCUMENT ALONG WITH A PROPERTY TAX RECEIPT.** **EXHIBIT P13 TRUE COPY OF THE DOCUMENT ALONG WITH A PROPERTY TAX RECEIPT.** W.P.(C).No.25652/18 13 - **EXHIBIT P14** **TRUE COPY OF THE DOCUMENT ALONG WITH A PROPERTY TAX RECEIPT.** - **EXHIBIT P15** - **TRUE COPY OF THE DOCUMENT ALONG WITH A PROPERTY TAX RECEIPT.** - **EXHIBIT P16 TRUE COPY OF THE NOTIFICATION DTD. 8.7.2018 BROUGHT OUT BY THE 1ST RESPONDENT IN THE NEWS PAPERS.** - **EXHIBIT P17 TRUE COPY OF THE SKETCH IN RESPECT OF THALIKULAM AREA.** - **EXHIBIT P18 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER.** - **EXHIBIT P19 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER.** - **EXHIBIT P21 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER.** - **EXHIBIT P22 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER.** - **EXHIBIT P23 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER.** - **EXHIBIT P24 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER.** - **EXHIBIT P25 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER.** - **EXHIBIT P26 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER.** - **EXHIBIT P27 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER.** - **EXHIBIT P28 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER.** W.P.(C).No.25652/18 14 **EXHIBIT P29 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER.** **EXHIBIT P30 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER.** **EXHIBIT P31 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER.** **EXHIBIT P32 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER.** |**RESPONDENTS' EXHIBITS**|**RESPONDENTS' EXHIBITS**| |---|---| ||| |**EXHIBIT R2(A)**|**TRUE COPY OF THE LAND ACQUISITION PLAN**| |**EXHIBIT R4(B)**|**ORDER NO.A2-139/18 (577) DATED**<br>**11.7.2018**| |**EXHIBIT R4(B)**|**ORDER NO.A2-139/18 (577) DATED**<br>**11.7.2018**| True copy PS to Judge