Joseph P.J. and others v Union of India and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** ## **`MONDAY, THE 23[RD] DAY OF MAY 2022 / 2ND JYAISHTA, 1944`** ## **`WP(C) NO. 24491 OF 2020`** ## **`PETITIONERS:`** - `1 JOSEPH. P.J AGED 59 YEARS S/O JOSEPH, PUNNEKKAPPARAMBIL HOUSE, THIRUMUPPAM, VARAPUZHA P.O., PIN-683 517.` - `2 BASIL P.J, AGED 58 YEARS S/O JOSEPH, PUNNEKKAPPARAMBIL HOUSE, THIRUMUPPAM, VARAPUZHA P.O., PIN-683 517.` - `3 FRANCIS P.L, AGED 70 YEARS S/O JOSEPH, PUNNEKKAPPARAMBIL HOUSE, THIRUMUPPAM, VARAPUZHA P.O., PIN-683 517.` - `4 SREEDEVI UNNI WARRASSIAR, AGED 56 YEARS W/O UNNI, KARTHIKA, THIRUMUPPATH WARRIAM, THIRUMUPPAM, VARAPUZHA P.O.PIN-683 517.` - `BY ADVS. P.SATHISAN SMT.KRISHNA.G.NATH SMT.DONA AUGUSTINE` ## **`RESPONDENTS:`** - `1 UNION OF INDIA REP. BY SECRETARY, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, GOVERNMENT OF INDIA, CENTRAL DELHI P.O., NEW DELHI-110 001.` - `2 PORJECT DIRECTOR, NATIONAL HIGHWAYS AUTHORITY OF INDIA (HEAD OFFICE), DWARAKA SECTOR 10, SOUTH WEST DELHI P.O., NEW DELHI-110 075.` - `3 DIRECTOR GENERAL (ROAD DEVELOPMENT) AND SPECIAL SECRETARY, ROOM NO 213, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, TRANSPORT BHAVAN, 1, PARLIAMENT STREET, CENTRAL DELHI P.O., NEW DELHI-110 001.` - `4 CHAIRMAN, NHAI, G-5 AND 6, SECTOR-10, DWARAKA, SOUTH WEST DELHI P.O., NEW DELHI-110075.` ## **`WP(C) NO. 24491 OF 2020 2`** - `5 SPECIAL DEPUTY COLLECTOR (LA) NH AND COMPETENT AUTHORITY, OFFICE OF NH 66, ERNAKULAM, ATTANY, NORTH PARAVOR P.O.PIN-683 513.` - `6 STATE OF KERALA, REP BY ITS SECRETARY, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM P.O., PIN-695 001.` - `7 PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT-COCHIN, NATIONAL HIGHWAYS AUTHORITY OF INDIA VII/511-B, NEYTHELIMAVELIPURAM ROAD, KAKKANAD P.O., ERNAKULAM-682 030.` ``` BY ADVS. SMT.MINI GOPINATH, CGC DR.K.P.SATHEESAN (SR.) SRI.P.MOHANDAS (ERNAKULAM) SRI.K.SUDHINKUMAR SRI.S.K.ADHITHYAN SRI.SABU PULLAN ``` ## **`OTHER PRESENT:`** ``` SRI JOBY JOSEPH-SR GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`WP(C) NO. 24491 OF 2020 3`** ## **JUDGMENT** The petitioners impel a singular grievance in this writ petition, that the lands acquired from them in the year 2008, for widening of N.H.66 (then called N.H.17), are being wasted and not included in the present alignment finalized for the afore purpose. 2. Sri.P.Sathisan – learned counsel for the petitioners, explains that his clients are residing between “Koonammavu” and “Thirumuppam” and that they had voluntarily given up their lands for the acquisition proceedings in the year 2008, when the National Highway was sought to be widened to 30 metres. He submitted that, subsequently, no action was taken and that the acquired lands are remaining idle till now, but that when the present proposal – to widen the said road to 45 metres was muted and taken forward, these acquired extents were left without being used, thus causing additional acquisition being burdened upon his clients. He contended that this is extremely hard and inequitable to his clients, because they are persons who had ## **`WP(C) NO. 24491 OF 2020 4`** suffered an acquisition earlier and had, thereafter, built up their lives, but who are again likely to be displaced solely on account of the unscientific alignment presently fixed. 3. After saying as afore, Sri.P.Sathisan argued that the present alignment – which he concedes has now culminated in a notification under Section 3D of the National Highways Act, 1956 (NH Act) – has been settled without taking into account the ground realities or the requirements of an efficient high speed highway and that approval of Government of Kerala for such acquisition has not been obtained yet. As a corollary, he argued that, therefore, Section 3D notification now issued is incompetent and illegal, particularly because this has been done _lis_ . pending this 4. Dr.K.P.Satheesan – learned Senior Counsel, instructed by Sri.Sudhin Kumar – learned Standing Counsel for the NHAI, answered the afore contentions of Sri.P.Sathisan relying upon the various statements and affidavits filed by his client. The learned Senior Counsel showed me that, as per the original proposal, the present N.H.66 was sought to be widened to 30 metres, so as to ``` WP(C) NO. 24491 OF 2020 5 ``` accommodate a driving speed of 30-50 Km/hr. He explained that the road could suffer some amount of curves and undulations to accommodate such speed, but that when it is sought to be widened to 45 metres for facilitating speed upto 100 Kmph, it has to be straightened to the extent possible, for which purpose, additional acquisition has been warranted. 5. The learned Senior Counsel then contended that the further submission of Shri.P.Sathisan, that approval of the Government of Kerala is necessary, is without basis and is beyond the Scheme of the NHAI. 6. I have examined and evaluated the various documents on record, from the touchstone of the afore submissions of the rival parties. 7. It is doubtless from the admitted pleadings and documents that an acquisition was effected in the year 2008, which took into account certain lands owned by the petitioners. They were, therefore, justified in believing that when the present alignment was fixed, said lands would also be taken into its fold, ## **`WP(C) NO. 24491 OF 2020 6`** so that they will be spared from any further expropriation of their remaining lands. However, the acquisition of the year 2008 is seen to have been made in contemplation of a 30 metre wide highway, to accommodate a driving speed of 30 - 50 k.m./hr only. Therefore, as rightly stated by the learned Senior Counsel, some amount of curves in the alignment could have been tolerated; but presently, the NHAI is in the process of upgrading the highway to a 45 metre one, for the purpose of achieving a minimum of 100 k.m./hr speed. 8. Going by the various pleadings on record, particularly the sketch that has been produced by the NHAI and marked as Ext.R7(b), when the present alignment was proposed, a central line was adopted keeping in mind the afore imperatives and therefore, only certain portions of the properties acquired in the year 2008 were included therein. Of course, the specific stand of the NHAI is that none of such lands will be put to waste because they will be used for other corollary purposes like creation of rest shelters , first aid centres, plantation of trees and connection of service roads. ## **`WP(C) NO. 24491 OF 2020 7`** 9. Be that as it may, what the petitioners essentially require from this Court is a re-examination of the alignment presently fixed. Before I go forward I must remind everyone that this Court has already declared the law affirmatively in **“** _**Salini V.S and others v. Union of India and others [2021 (6) KLT 446** ]”_ that once a notification under Section 3D of the “NH Act” is issued, no Authority - be that of the NHAI or the official Authorities, can review it, nor can the alignment be changed thereafter. 10. That said, as noticed above, the grievance of the petitioners is that they had already been burdened with an acquisition in the year 2008 and is being prejudiced with another merely 12 or 13 years later. Normally, it would be within the conspectus of a reasoning that the lands earlier acquired is put into full use for the purpose of the present alignment. 11. However, this does not mean that what is impossible must be still endured. 12. To paraphrase, had the acquired lands been within the ``` WP(C) NO. 24491 OF 2020 8 ``` perimetres of the present alignment, certainly they would have to be first used and only thereafter could further acquisition been initiated. However, as seen from the pleadings and materials on record, the acquisition of the year 2008 was based on an alignment proposed then, which had several curves (stated to be more than 6 to 8 in the stretch in question); and obviously, therefore, when the road is to be upgraded to a 45 metre one, to accommodate a driving speed of 100 k.m./hr, such a situation would become cataclysmic. 13. It is thus without requirement for expatiation that the stakeholders ,including the Government of India, thought it better to have a re-look at the alignment, which they have done by fixing a new central line and wherever the already acquired lands are involved, it has been taken into account - as is evident from Ext.R7(b) sketch - while the balance has been requisitioned for acquisition. 14. I cannot find this to be any way in conflict with the statutory scheme or to be against public interest; and on the ## **`WP(C) NO. 24491 OF 2020 9`** contrary, this is the way in which public projects need to be envisaged, particularly keeping an eye for the future. 15. Of course, when I say this, I am cognizant of the submissions of Shri.P.Sathisan that the alignment could have been fixed in such a manner that the entire earlier acquired lands were taken in its full; and that there would not be many curves to impede traffic as fast as 100 k.m./hr. Even if this submission is true, I am afraid that this Court cannot speak upon it affirmatively since it lacks the expertise in such matters and going by the well established position of law, it is obligated to leave it to the experts who are in the know-how of such matters to take a final decision. The Government of India has thus taken a decision to have an alignment in a particular manner, so as to obtain the afore requirements and I do not think, therefore, that this Court would be in any position to intervene and speak to the contrary. 16. Finally, as regards the contention of the petitioners, that approval of the Government of Kerala ought to have been obtained for the alignment is concerned, I notice that this ``` WP(C) NO. 24491 OF 2020 10 ``` submission has been made by Shri.P.Sathisan based on two documents produced by the NHAI themselves and produced as Exts.R7(e) and R7(f). 17. When one examines these documents, they are communications between the Government of Kerala and the NHAI, wherein, of course, some role seems to be conceded to the former before the alignment of the road was finalized. These communications are not based on any statutory requirement for obtaining the approval of the Government of Kerala, but appears to have been issued only to ensure that the social impact of such an acquisition is attenuated to the extent possible, because Government of Kerala is expected to be better aware of the ground realities. The assistance of the Government of Kerala seems to have been, therefore, requested for such purpose, but this cannot be extended to the argument that approval of the said Government is necessary before the alignment is fixed. 18. As rightly argued by Dr.K.P.Satheesan, learned Senior Counsel, the “NH Act” does not postulate any role for the ``` WP(C) NO. 24491 OF 2020 11 ``` Government of Kerala and therefore, this Court cannot concede to them such, even if Exts.R7(e) and R7(f) speak about some assistance having been called for from them. The contentions of Shri.P.Sathisan in such regard obviously require to be repelled and I do so. 19. In summation, I cannot find in favour of the petitioners in any manner whatsoever, though certainly, their heart burn in the entire process is justified since they are going to suffer two acquisitions in a span of less than 1 ½ decades. Unfortunately, this is an inevitable event which cannot be avoided and resultantly they have accepted the same, whether they like it or not. This writ petition is thus closed. Sd/- ``` DEVAN RAMACHANDRAN JUDGE ``` ``` MC/Raj ``` ``` WP(C) NO. 24491 OF 2020 12 ``` ## **`APPENDIX OF WP(C) 24491/2020`** |`PETITIONER EXHIBITS`|| |---|---| |`EXHIBIT P1`|`TRUE COPY OF THE RELEVANT EXTRACT OF THE`| ||`GAZETTE NOTIFICATION DATED 13.2.2020`| ||`PUBLISHED IN MALAYALA MANORAMA DAILY`| ||`DATED 19.3.2020`| |`EXHIBIT P2`|`TRUE COPY OF THE SKETCH OF HIGHWAY`| ||`ALREADY ACQUIRED`| |`EXHIBIT P3`|`TRUE COPY OF THE OBJECTION SUBMITTED BY`| ||`THE 1ST PETITIONER BEFORE THE 5TH`| ||`RESPONDENT DATED 30.7.2020`| |`EXHIBIT P4`|`TRUE COPY OF THE OBJECTION SUBMITTED BY`| ||`THE 4TH PETITIONER BEFORE THE 5TH`| ||`RESPONDENT DATED 24.4.2020`| |`EXHIBIT P5`|`TRUE COPY OF THE OBJECTION SUBMITTED BY`| ||`ONE OF THE RESIDENTS BEFORE THE 5TH`| ||`RESPONDENT`| |`EXHIBIT P6`|`TRUE COPY OF THE INTERIM ORDER IN WPC NO`| ||`33713/2020 DATED 9.7.2020`| |`EXHIBIT P7`|`TRUE COPY OF THE INTERIM ORDER IN WPC NO`| ||`10226/2020 DATED 10.7.2020`| |`EXHIBIT P8`|`TRUE COPY OF THE MINUTES OF MEETING DATED`| ||`30.12.2016`| |`EXHIBIT P9`|`TRUE COPY OF THE MINUTES OF MEETING DATED`| ||`25.6.2018`| |`EXHIBIT P10`|`TRUE COPY OF THE MINUTES OF MEETING DATED`| ||`29.12.2018`| |`Exhibit P12`|`TRUE COPY OF THE COMMUNICATION ISSUED BY`| ||`THE 5TH RESPONDENT TO THE DISTRICT`| ||`COLLECTOR, ERNAKULAM DATED 14/7/2021`| |`Exhibit P12(a)`|`TRUE COPY OF THE COMMUNICATION ISSUED BY`| ||`THE 5TH RESPONDENT TO THE 7TH RESPONDENT`| ||`DATED 26/7/2021`| |`Exhibit P12(b)`|`TRUE COPY OF THE COMMUNICATION ISSUED BY`| ||`THE SPECIAL TAHSILDAR UNIT-1 TO THE 5TH`| ||`RESPONDENT DATED 22/7/2021 ALONG WITH`| ||`SURVEY REPORT AND SKECTCH.`| |`Exhibit P 14(A)`|`TRUE COPY OF THE NEWSPAPER PUBLICATION`| ||`REPORTED IN THE MANORAMA NEWSPAPER DAILY`| ||`ON 08.09.2021.`| |`Exhibit P14(B)`|`TRUE COPY OF THE NEWSPAPER PUBLICATION`| ||`REPORTED IN THE MATHRUBHUMI DIALY ON`| ||`02.10.2021.`| |`Exhibit P14(C)`|`TRUE COPY OF THE NEWSPAPER PUBLICATION`| ||`REPORTED IN THE MANGALAM DAILY NEWSPAPER`| ## **`WP(C) NO. 24491 OF 2020 13`** ||`ON 28.10.2021.`| |---|---| |`Exhibit P14(D)`|`TRUE COPY OF THE NEWSPAPER PUBLICATION`| ||`REPORTED IN THE MANGALAM DAILY NEWS PAPER`| ||`ON 12.11.2021.`| |`Exhibit P14(E)`|`TRUE COPY OF THE NEWSPAPER PUBLICATION`| ||`REPORTED IN THE MORNING DAILY NEWS`| ||`NEWSPAPER ON 14.12.2021.`| |`RESPONDENT’ EXHIBITS`|| |`ANNEXURE R7(A)`|`TRUE COPY OF THE RELEVANT PAE OF THE`| ||`GAZETTE NOTIFICATION ISSUED UNDER SECTION`| ||`3D DATED 25.1.2021.`| |`ANNEXURE R7(B)`|`TRUE COPY OF THE SKETCH SHOWING THE`| ||`PRESENT NATURE OF THE NATIONAL HIGHWAY`| |`ANNEXURE R7(C)`|`TRUE COPY OF THE SKETCH SHOWING THE`| ||`EXISTENCE OF EIGHT CURVES`| |`ANNEXURE R7(D)`|`TRUE COPY OF THE SKETCH SHOWING THE`| ||`PRESENT ALIGNMENT WITH TWO CURVES OF 600`| ||`MTRS. AND 800MTRS.`| |`ANNEXURE R7(E)`|`TRUE COPY OF THE LETTER ISSUED BY THE`| ||`GOVERNMENT OF KERALA DATED 10.1.2018.`| |`ANNEXURE R7(F)`|`TRUE COPY OF THE LETTER ISSUED BY THE`| ||`REGIONAL OFFICE, NATIONAL HIGHWAY`| ||`AUTHORITY OF INDIA DATED 27.2.2018.`|