Jincy Vijayan v. Union of India and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY,THE 27TH DAY OF FEBRUARY 2019 / 8TH PHALGUNA, 1940** **WP(C).No. 33824 of 2018** ## **PETITIONER/S:** **JINCY VIJAYAN, AGED 35 YEARS W/O VIJAYAN, VATTEKKATT HOUSE, KUNDALIYOOR P.O, ENGANDIYOOR, THRISSUR DISTRICT - 680616.** **BY ADV. SRI.P.RAMACHANDRAN** ## **RESPONDENT/S:** **1 UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF TRANSPORT, NEW DELHI - 110001. 2 THE DISTRICT COLLECTOR, COLLECTORATE, THRISSUR- 680003. 3 THE SPECIAL DEPUTY COLLECTOR, COMPETENT AUTHORITY (LA), N.H-17 (NEW N.H.-66), KODUNGALLUR, THRISSUR DISTRICT- 680664. 4 THE SPECIAL DEPUTY TAHSILDAR (LA), N.H-17(NEW N.H.66), KODUNGALLUR, THRISSUR DISTRICT- 680664. 5 NATIONAL HIGHWAY AUTHORITY OF INDIA, REPRESENTED BY ITS CHAIRMAN, SECTOR-20, DWARAKA, NEW DELHI- 110 075. 6 THE PROJECT MANAGER, NATIONAL HIGHWAY AUTHORITY, 2B, RAK TOWER, EDAPALLY, ERNAKULAM- 682024. BY ADVS. SRI.RAJAGOPALAN.A., CGC SMT.I.SHEELA DEVI SHRI.PRADEEP BABU P.D.** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER FOR R2 TO R4, SMT.I.SHEELA DEVI ,SC FOR R5 AND R6** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.02.2019 AND THE COURT ON 27.2.2019 DELIVERED THE FOLLOWING:** ::2:: **WP(C).No. 33824 of 2018** ## **ALEXANDER THOMAS, J** . ----------------------------- W.P(C).No.33824 Of 2018 --------------------------------Dated this the 27[th] day of February, 2019. ## **J U D G M E N T** The prayers in the above Writ Petition (Civil) are as follows: - _(i) issue a writ of certiorari or any other appropriate writ order or direction quashing the original of Exhibit P3 notification so far it relates to the property of the petitioner and her husband._ - _(ii) issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents to widen the existing N.H-66 (old N.H-17) instead of constructing a new National Highway through the properties of the petitioner and her husband._ - _and_ - _(iii) pass such other writ, order or direction which this Honourable Court deems fit to grant to the facts and circumstances of the case._ 2. Heard Sri.P.Ramachandran, learned counsel for the petitioner, Sri.A.Rajagopalan, learned Central Government Counsel, appearing for R-1 Union of India, Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for official respondents 1, 2, 3 & 4 and Smt.I.Sheela Devi, learned Standing Counsel appearing for National Highway Authority of India, appearing for respondents 5 & 6. 3. According to the petitioner, she and her husband Vijayan, are in joint ownership and possession of an extent of land of 30.20 ares of land in R.S.No.357/2A along with other properties ::3:: **WP(C).No. 33824 of 2018** which are comprised in Vadanappilly Village, Thrissur Revenue District. The petitioner's complaint is against acquisition of substantial portion of their properties for the purpose of construction of new Highway deviating from the existing National Highway (NH 66). Petitioners would allege that present steps of the respondents is actuated by a mala fide intention and also due to influence of powerful and affluent people. The new proposed Kuttipuram-Edappilly National Highway after the place 'Pokkulangara' turns towards east from the existing NH-66 and after about 6 Kms again join the existing NH near 'Thalikulam Govt. High School'. This new National Highway goes through 7 acres land of a well known International Business Group. The deviation from the existing National Highway is only due to their influence and by loosing a small extent of land they are getting National Highway frontage for their property on three sides and also to avoid acquisition of property of some other influential people, it is alleged. That this portion of new National Highway is through the residential properties and agricultural lands of the poor and middle class people. That apart, while the new proposed National Highway is to be constructed several water channels, ::4:: ## **WP(C).No. 33824 of 2018** thodu, ponds, etc., will have to be filled up and this may cause severe environmental problems and ecological imbalance in the area, it is averred. That therefore it is contended by the petitioner that before proceedings with the acquisition, there should be an environment impact assessment study. It is alleged that the present proceedings is issued with a mala fide intention to acquire lands in the most unscientific manner and thereby deprive people like the petitioner, their right to hold the property under Art.300A of the Constitution of India. Further the petitioner would contend that there is no necessity to acquire the property of the petitioner for the construction of widening of the NH-66. It is also stated that as per Ext.P-3 notification published in the newspaper on 26.6.2018, the total properties sought to be acquired from the petitioner and her husband is 54.17 cents. But the National Highway authorities during the first week of September demarcated the proposed National Highway through the property of the petitioner and more than 70 cents of lands of the petitioner and her husband are annexed to it. Accordingly it is contended that the respondents are not entitled to acquire the lands in Ext.P-3 notification. Further it is also contended that the ::5:: **WP(C).No. 33824 of 2018** impugned land acquisition under the provisions of the National Highways Act, 1956 will be denied their valuable right if the petitioner's properties have been otherwise acquired under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30/2013), which came into force on 1.1.2014. 4. Respondents 5 & 6 - NHAI have filed a counter statement dated 21.11.2018 through their learned Standing Counsel. As regards, the allegations of the petitioner that what is now sought to be acquired is more extent of land of the petitioners than what has been notified for acquisition under Sec.3A notification issued under the National Highways Act, 1956, respondents 5 & 6 in para 5 of the counter statement has clearly stated that the extent shown in Ext.P-3 will not be the exact area but approximate. The exact area required can only be ascertained by detailed survey under Sec.3B of the National Highways Act. After Sec.3B survey, the exact extend that is required from each survey number and each person can be determined. That the extent required would be almost as shown in Ext P3 notification, but it can also be lesser or larger. Further it is clearly undertaken ::6:: ## **WP(C).No. 33824 of 2018** by the 5[th] respondent in para 5 of the statement that if more land is required than notified in Ext-P3 from the petitioner and her husband, then the same will be acquired only after the publication of a fresh Sec.3A(1) notification under the National Highways Act for acquiring the additional extent of land required other than what is already notified by Ext.P-3. Therefore the said apprehension of the petitioner appears to be misplaced. However, in the light of the abovesaid undertaking by respondents 5 & 6, it is ordered that if more land is to be acquired from the petitioner and her husband than what has been already notified as per Ext.P-3, then such additional land could be acquired from them only after issuance of fresh notification under Sec.3A(1) under the National Highways Act, 1956 for acquiring such additional extent of land and also after following requisite statutory procedure in that regard and accordingly, it is so ordered. 5. Now it may be apposite to deal with other grievance of the petitioner that there is hostile discrimination meted out by the petitioner and other similarly situated persons. As regards that aspect, it is clearly submitted by respondents 5 & 6 in para 8 of the affidavit that even though the land is being acquired as per the ::7:: **WP(C).No. 33824 of 2018** provisions of the National Highways Act, the petitioners and other similarly affected persons will be given compensation under the new Act, 2013 as amended. This submission is made by the respondents in view of the subsequent provisions in that regard made in 2013 Act as amended by the 2014 and 2015 ordinances. Hence it is pointed out by respondents 5 & 6 that there is no discrimination meted out to similarly situated persons, etc. In view of the said aspects, it is only to be ordered that the affected land owners like the petitioner will be entitled for compensation in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, in terms of the schedules I, II & III thereof in view of the abovesaid amended provisions contained in the new Act. 6. Now coming to the main grievance of the petitioner, the following aspects are relevant. It is stated in para 4 of the said counter statement that the DPR Consultant has prepared the DPR and submitted the draft alignment, which was presented before the Peoples Representatives in the presence of the 2[nd] respondentDistrict Collector, Thrissur, and that after obtaining the opinion of ::8:: **WP(C).No. 33824 of 2018** the Peoples Representatives some changes have been made in the draft alignment. After incorporating the changes proposed in the meeting of Peoples Representatives, final alignment was submitted by the DPR Consultant for approval after the District Collector had recommended the alignment. Again, after further studies, the alignment submitted was approved by the State Government by their letter No.PWD-D3/569/2017-PWD dated 21.2.2018. Notification under Sec.3A(1) of the National Highways Act, 1956, deals with powers to acquire land and notification under Sec.3A(1) was published in the Gazette of India for the stretch of National Highway inside Thrissur District as per Ext.P-3 notification which was published on 8.7.2018 including the properties of the petitioner which was also published in the newspaper on 26.6.2018. It is further averred in para 6 of the said statement that the allegation of the petitioner that the impugned acquisition has been made with the specific intention to avoid the acquisition of the properties of the certain influential businessman who has commercial establishments situated by the side of the National Highway is not true or correct. Further the allegation that the attempt of the respondents is with malafide intention and also due ::9:: ## **WP(C).No. 33824 of 2018** to the influence of some powerful and affluent people is also incorrect and untrue. It is stated that in the area where the land of the petitioner is affected by the Highway is being developed as a bypass known as Vadanappally Bypass having a length of 6.200 km, starting from Design Ch.360/900 to Ch.367/100. From Ch.360/900 the existing two lane highway deviates to the western side and proceeds towards southern side, while the new bypass proceeds further towards southern side parallel to the existing two lane highway on its east and joins the existing two lane highway at Ch.367/100. Before Ch.367/100 the existing two lane highway slowly shifts towards the east from the west and the new bypass joins the existing two lane highway. This is the general manner in which bypasses are developed to avoid towns. The bypass will start before the town by deviating from the exiting highway and then run parallel to the existing highway and joins it after the town that is avoided by the bypass. The new bypass is almost in a straight lime and not in a zig zag manner. The new bypass is designed to maintain the design speed of 80-100 kmp and also considering the geometric parameters and radius of curvature in touch with the IRC code. It is stated in para 7 of the ::10:: **WP(C).No. 33824 of 2018** counter statement that the properties of the petitioner are situated in Sy. Nos.357/2A and 357/1A1 of Vadanappally Village falls between Design Ch.361/900 and 362/000 of the approved alignment in the new bypass. The true copy of the approved alignment has been produced as Anx-R5(a) along with the said statement. It is pointed out that Ext-5(a) would reveal that the by pass is almost in a straight line and that the properties of the petitioner and her husband are required for the development of the four lane Highway. It is stated in para 6 of the counter statement that a new National Highway is proposed to be constructed far away from the existing highway for the purpose of serving the interest of economically powerful people and to please some religious factions for political purpose is denied as false and incorrect. More particularly it is averred in the said statement that the petitioners have pointed out vague allegations without stating as to which is the so called influential well known International Business Group or the Religious factions and in what manner the impugned action has been done to favour them and that the pleadings are very vague and cannot be acted upon by this Court that the petitioners have not even disclosed the identity of the so ::11:: **WP(C).No. 33824 of 2018** called persons and that the petitioner is liable to be put to strict proof to prove such allegations made and to implead such persons against whom such allegations are made. Allegations of malafides are thus denied as baseless, vague, false, etc. It is true that the Vadanappally bypass is to avoid the Vadanappally Town which is heavily built-up on either sides of the existing narrow two lane highway. The entire Vadanappally Town will have to be acquired on either side of the existing Highway, if the petitioner's plea is accepted. Widening of National Highway is a highly costly affair, etc, that it may forcibly shut down many business establishments causing job loss to large number of people working in those establishments. It is further stated that to the knowledge of those respondents, there is no international business group having land aside the Vadanappally bypass and which will get NH frontage for their property on three sides. Further that the allegation that the impugned action would involve construction of Vadanappally bypass, waterways, channels, thodu, etc., will have to be filled, is denied as not fully correct. Further that petitioners are not even remotely averred as to in what manner the present action of the respondents are unscientific and that the allegations have ::12:: ## **WP(C).No. 33824 of 2018** been made without any basis and that Vadanappally bypass is designed as an almost straight four line highway as per IRC Code of Manuel in order to maintain a design speed of 80-100 km/hr and for the abovesaid purpose, the properties of the petitioner and her husband are really required for the development of the existing two lane highway into a four lane National Highway, etc. 7. The petitioners have filed reply affidavit in the mater reiterating his earlier submissions and contentions. 8. After having heard both sides, it is only to be held by this Court that the allegations or malafides are vaguely and loosely made in the Writ Petition and there are no specific averments as to any of the manner the impugned action has sought to help any business group or economically powerful people and as to who are such beneficiaries of impugned action and as to whether the impugned action is rationale, etc. Therefore, the said allegations and malafides cannot be considered or cannot be acted upon by this Court in exercise of the limited jurisdiction of judicial review of the impugned action and the said allegations will stand overruled. ::13:: **WP(C).No. 33824 of 2018** 9. Respondents 5 & 6 in their counter statement has given the particular details and the constraints they had to proceed with the acquisition proceedings and it cannot be said that the alignment for the approved bypass could be termed as manifestly arbitrary and capricious. On the other hand, from a mere reading of the pleadings in the abovesaid calculation statement would disclose that the said action of those respondents appears to be reasonable and after following the requisite procedure in that regard and after consultation with expert advice for the construction of National Highway and bypass. The specific stand of the 5[th] respondent-NHAI that if the petitioner's alternate proposal is to be acted upon then it would be much more costly and impracticable and it has not in any manner been dispelled or rebutted by the petitioner. This Court in exercise of the powers of judicial review of the impugned process does not have the competence to get into the nitty grity of such details and it may not be right and proper for this Court to even evaluate on the related merits and demerits of the impugned approved alignment of the respondents and that of the alternate proposal of the petitioner. After all, this Court is bound to take judicial cognizance of the fact ::14:: **WP(C).No. 33824 of 2018** that respondents, more particularly, the 5[th] respondent-NHAI have the due expertise competence and also long experience in handling matters relating to construction of National Highways and its bypass and it will be very hazardous for this Court to adjudicate on the merits or otherwise of the impugned approved alignment. 10. After having heard all the parties concerned in extenso and after going through the pleadings and materials on record, this Court is of the considered view that the factual aspects stated by the 5[th] respondent-NHAI in the Writ Petition have not been factually rebutted or controverted by the petitioner. The allegations of malafides projected herein does not appear to be in tune with the actual factual realities. Moreover, the persons against whom allegations or malafides are raised are not even made as parties in this Writ Petition. In view of the facts and circumstances disclosed in this petition, more particularly, the pleadings and materials on record placed by the respondent-NHAI, this Court is of the considered view that the petitioner has not successfully made out cogent grounds for warranting the invocation of public law remedy of judicial review so as to interdict the land acquisition proceedings in this case. The Apex Court in ::15:: **WP(C).No. 33824 of 2018** the dictum laid down in the case in _**Competent Authority v. Barangore Jute Factory**_ , reported in (2005) 13 SCC 477 = 2006 KHC 156, has held that the right to raise objections conferred by Sec.3C(1) of the National Highways Act, 1956, is extremely limited in character and that it is not for the writ court to decide on the alignment for acquisition since such alignment is to be fixed after due scientific and technical studies. So also, it has been held by the Apex Court in a series of cases as in _**State of Punjab & anr. v. Gurdial Singh & ors**_ ., reported in (1980) 2 SCC 471 and _**Shukla V.S & ors., v. NHAI & ors**_ , reported in 2013 KHC 2619, that a writ court exercising public law remedy of Judicial review may not be justified in considering the feasibility of alternative elements in the absence of any established plea of manifest malafides etc. It has also been held in the judgment of Apex Court in _**UOI v. Kushala Shetty & Ors** .,_ reported in (2011) 12 SCC 69, that a writ court cannot decide upon the viability and feasibility of a particular project unless it is ex-facie found to be contrary to law or is tainted due to palpable malafide etc. 11. In the light of the above well settled legal position and in view of the indisputable facts and circumstances emerging in ::16:: **WP(C).No. 33824 of 2018** this case, this Court is of the view that it is not right and proper for this Court to invoke the extraordinary remedy of judicial review to interdict the impugned land acquisition proceedings in this case. Moreover the 5[th] respondent-NHAI has clearly stated in their pleadings that though the impugned land acquisition proceedings have been set in motion under the National Highways Act, 1956, the petitioners and other similar persons affected by the said acquisition proceedings will be given compensation under the new enactment of 2013, viz, The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as amended. So the petitioner cannot urge that any discrimination is shown to them who are subjected to the acquisition under the National Highway Act, 1956, vis-a-vis, acquisition under the 2013 Act, etc. 12. Accordingly it is held that the main prayer that the impugned land acquisition proceedings which affects the property cannot be granted and the same will stand rejected. In the light of the abovesaid discussion, the following directions and orders are passed: ::17:: **WP(C).No. 33824 of 2018** (1) The main prayers of the writ petitioner to set aside the impugned prayers 1 & 2 of the above Writ Petition and the consequential prayers that this Court should interdict with the impugned land acquisition proceedings which are in respect of the property including Ext.P-3 notification cannot be granted and the same will stand rejected. (2) Further it is ordered that in case the respondents will confine the actual acquisition of the properties of the petitioners which are covered by the present Sec.3A(1) notification as per Ext.P-3 and not other lands of the petitioners otherwise than notified under Sec.3A(1) shall be so acquired on the basis of Sec.3A(1) notification. It is further ordered that in case respondents 3, 5 & 6 intend to acquire or take over any lands of the petitioners other than what has already been notified under the present Ext.P-3/Sec.3A(1) notification, then they may do so only after issuance of fresh Sec.3A(1) for acquisition of such additional lands of the petitioners and after following the requisite procedure in that regard. (3) The petitioners and other similarly situated persons who are affected by the impugned land acquisition proceedings will ::18:: ## **WP(C).No. 33824 of 2018** be entitled for compensatory benefits in terms of the provisions of schedule 1, 2 & 3 of the Right to Fair and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 even though the present impugned land acquisition proceedings have been initiated under the National Highways Act, 1956. So the net result is that the prayers of the Writ Petitioners will stand rejected and the ancilliary grievance of the petitioners will stand redressed as per the above directions. With these observations and directions the above Writ Petition (Civil) will stand finally disposed of. **sd/ALEXANDER THOMAS, Judge.** bkn/- ::19:: **WP(C).No. 33824 of 2018** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE LAND TAX RECEIPT DATED 23.06.2017 ISSUED BY THE VILLAGE OFFICER VADANAPPILLY TO THE PETITIONER AND HER HUSBAND.** **EXHIBIT P2** **TRUE COPY OF THE BUILDING TAX RECEIPT DATED 21.05.2018 ISSUED BY THE VILLAGE OFFICER VADANAPPILLY TO THE PETITIONER AND HER HUSBAND.** **EXHIBIT P3** - **TRUE COPY OF THE RELEVANT PAGES OF THE PAPER PUBLICATION IN MALAYALA MANORAMA DATED 26.06.2018.** - **EXHIBIT P4 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT DATED 05.07.2018 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P5** **TRUE COPY OF THE PLAN ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT.** ## **RESPONDENTS' EXHIBITS:** **ANX-R5(A): COPY OF LAND ACQUISITION PLAN FROM CH.361/000 TO 362/000**