Kakkad Jumuhath Palli Mahallu Committee v. Union of India and Others

1 _**WP(C).17894/18**_ ## **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. 17894 of 2018** ## **PETITIONER/S:** ## **KAKKAD JUMUHATH PALLI MAHALLU COMMITTEE** **NO. A5-1733/RA UNDER THE KERALA WAKF BOARD, NO.236/87 UNDER THE SOCIETIES REGISTRATION ACT, KAKKAD P.O., TIRURANGADI, PIN - 676 306, MALAPPURAM DT., REPRESENTED BY ITS SECRETARY, K. MARAKKARUKUTTY, S/O. MOHAMMED MUSALIAR, AGED 62, KOORIYADANA HOUSE, KAKKAD P.O., PIN - 676 306.** ## **BY ADV. SRI.E.NARAYANAN** ## **RESPONDENT/S:** |**1**|**THE UNION OF INDIA**| |---|---| ||**REPRESENTED BY PRINCIPAL SECRETARY, THE SECRETARIAT**| ||**BUILDING, NEW DELHI, RASINA HILLS, PIN - 110001.**| |**2**|**THE GOVERNMENT OF INDIA**| ||**MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, NEW DELHI,**| ||**REPRESENTED BY ITS SECRETARY, TRANSPORT BHAWAN 1,**| ||**PARLIAMENT STREET, NEW DELHI, PIN - 110 001.**| |**3**|**THE NATIONAL HIGH WAY AUTHORITY OF INDIA**| ||**REPRESENTED BY ITS CHAIRMAN, VII511 B, NEITHELI**| ||**MAVELIPURAM ROAD, KAKKANAD, PIN - 682 030.**| |**4**|**THE DISTRICT COLLECTOR**| ||**CIVIL STATION ROAD, UP HILL, MALAPPURAM, PIN - 676**| ||**505.**| |**5**|**THE DEPUTY COLLECTOR LA NATIONAL HIGHWAY - 66**| 2 _**WP(C).17894/18**_ ## **KOTTAKKAL, MALAPPURAM, PIN - 676 501.** **BY ADVS. SRI.SUVIN R.MENON, CGC SRI.THOMAS ANTONY GOVERNMENT PLEADER SRI.SUVIN R.MENON CGC** ## **OTHER PRESENT:** ## **JAFFAR KHAN GP** **HIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 17894 of 2018 ----------------------------------------------Dated this the 26[th] day of October, 2018** ## **JUDGMENT** The petitioner, a Palli Mahallu Committee represented by its Secretary, challenges a notification issued under the National Highway Act, 1956 (for short, 'the Act') for acquisition of properties. It is stated that the _khabarsthan_ of the mosque would be acquired, if the notification is given effect to. Alleging that the proposed alignment is unscientific and illogical and that there is sufficient vacant space available on the opposite side of the road, the petitioner contends that the alternate proposal pointed out by the petitioner was liable to be considered. It is stated that along with the objections of the petitioner, a detailed alternate proposal had been submitted, by which the property of the petitioner would be exempted and the compensation payable would be lesser and existing curves could be straightened out. It is stated that without considering the viable alternate proposals submitted by the petitioner, the respondents are proceeding with acquisition as provided in Exhibit P1 notification. 4 _**WP(C).17894/18**_ 2. The learned Standing Counsel appearing for the National Highway Authority of India has placed a statement on record. It is stated therein that though an earlier proposal had been mooted in the year 2007 through a preliminary project report, the initial notification was withdrawn. It is submitted that pursuant to a meeting held with the Central Government on 10.4.2015, detailed studies were conducted and a new project report was prepared in 2017. All the aspects of the matter were examined and the plan and lay out was made available for inspection by all concerned. It is stated that the contention that there is vacant land available opposite the mosque is not correct and major portion of the land lying opposite the mosque with 12 commercial structures have also been acquired in terms of Exhibit P1 notification. It is stated that the objection of the petitioner had been considered in detail and it was found that the alignment proposed is the most technically feasible alignment affecting the least number of people and causing least inconvenience. 3. The learned Government Pleader has also placed a counter affidavit on record on behalf of the 5[th] respondent. It is stated that the objection filed by the petitioner against Exhibit P1 notification had been considered and the petitioner was given an opportunity of personal hearing. It is stated that the objection of the petitioner had been forwarded to the Project Director, National Highway Authority of India, 5 _**WP(C).17894/18**_ Calicut for specific remarks and such remarks had been meticulously considered before the orders were issued. The learned Government Pleader would rely on the decision of the Apex Court in _**Competent**_ _**Authority v. Barangore Jute Factory**_ [2006 KHC 156] to contend that the right to raise objections conferred by Section 3C(1) of the Act is extremely limited in character. It is further contended that it is not for this Court to decide on the alignment for acquisition, since such alignment is fixed after due scientific studies. The decisions of the Apex Court in _**State of Punjab & Another v. Gurdial Singh and Others**_ [1980(2) SCC 471] and _**Shukla V.S and Others v. National Highway Authority of India (Ministry of Road Transport and Highways) &**_ _**Others**_ [2013 KHC 2619] are also relied on to contend that this Court would not be justified in considering the feasibility of alternate alignments in the absence of any plea of mala fides. 4. The learned Standing Counsel for the National Highway Authority of India has relied on the decision of the Apex Court in _**Union of India v. Kushala Shetty and Others**_ [(2011)12 SCC 69] to contend that this Court cannot decide upon the viability and feasibility of a particular project unless it is ex facia found to contrary to law or tainted due to _mala fides_ . 5. I have considered the contentions advanced. The petitioner's specific case is that they have pointed out an alternate alignment which 6 _**WP(C).17894/18**_ would be less injurious and more viable. It is stated that the feasibility of such alignments has not been considered by the respondents. This contention is belied by the specific pleadings made by the respondent authority. The respondents submit that the alignments finalised after due scientific studies would be given a go by if the suggestion of an alternate arrangement mooted the petitioner which is bereft of any such consideration is accepted. It is stated that the alternate proposal mooted by the petitioner has been specifically considered and found to be less viable than the present proposal which is notified. It is stated that the objections of the petitioner along with the alternate proposal have been forwarded by the competent authority to the Project Director of the National High Authority of India and it had been considered on all its factual aspects and comments have been made available to the authorised officer for taking a decision in the matter. It is stated that since the contentions raised by the petitioner have been specifically examined and answered by the Project Director, the argument that the contentions have not been considered is completely unsustainable. 6. The Apex Court in _**Barangore Jute Factory's case (supra)**_ has clearly held that even in a case where the acquisition was not in accordance with the provisions of the statute, the larger public interest has to prevail and the land owners would only be entitled to claim compensation and not for return of their land. In _**Kushala Shetty's case**_ 7 _**WP(C).17894/18**_ _**(supra),**_ the Apex Court has clearly held that in the absence of any substantiated case of _mala fides_ , the settling of an alignment is not a matter which can be looked into by this Court by making a roving enquiry to fish out material to draw conclusions. At paragraph 28 of the said judgment, the Apex Court has 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 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 8 _**WP(C).17894/18**_ 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 Exhibit P1 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. The writ petition fails and the same is accordingly dismissed. Sd/- **ANU SIVARAMAN JUDGE** _vgs_ 9 _**WP(C).17894/18**_ ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE GAZETTE NOTIFICATION DATED 01.03.2018 BEARING NO. SO.934(E)** **EXHIBIT P2 TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE FIFTH RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE SATELLITE PICTURE MARKED WITH AN ALTERNATE ROUTE TO FORM THE ROAD.** **EXHIBIT P4 TRUE COPY OF THE NOTICE DT. 17.03.2018 ISSUED BY THE FIFTH RESPONDENT CALLING THE PETITIONER FOR HEARING.** **EXHIBIT P5 TRUE COPY OF THE MINUTES OF THE ALL PARTY MEETING HELD ON 11.04.18.** **EXHIBIT P6 TRUE COPY OF THE INTERIM ORDER DATED 11.05.18 IN W.P.(C)NO. 15620/18.**