KUNJUMUHAMMED S/O MUHAMMED v STATE OF KERALA & ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY ,THE 13TH DAY OF NOVEMBER 2018 / 22ND KARTHIKA, 1940** ## **WP(C).No. 21017 of 2018** ## **PETITIONER:** **KUNJUMUHAMMED S/O MUHAMMED,AGED 66 YEARS, RESIDING AT VALIYAMPARAMBATH HOUSE,POST VENNIYUR, MALAPPURAM DISTRICT.** **BY ADV. SMT.N.S.HASNA MOL** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 DISTRICT COLLECTOR MALAPPURAM-676505.** - **3 DEPUTY COLLECTOR & COMPETENT AUTHORITY LA-NH(17), MALAPPURAM, KOTTACKAL P.O.-676 503.** - **4 SECRETARY THENNALA GRAMA PANCHAYAT, THENNALA P.O., MALAPPURAM DISTRICT-676 511.** - **5 SECRETARY PERUMANNA GRAMA PANCHAYT,EDARIKODE P.O., MALAPPURAM DISTRICT-676501.** - **6 SECRETARY TIRURANGADI MUNICIPALITY, TIRURANGADY P.O., MALAPPURAM DISTRICT-676 306.** - **7 TAHILDAR TIRUR TALUK, MALAPPURAM DISTRICT-676505** - **8 TAHSILDAR TIRURANGADI TALUK, MALAPPURAM DISTRICT-676 505** - **9 PROJECT DIRECTOR NATIONAL HIGHWAY AUTHORITY,KOZHIKODE-670 511.** **WP(C).No. 21017 of 2018** **2** **10 NATIONAL HIGHWAY AUTHORITY REPRESENTED BY EXECUTIVE ENGINEER,NH 66(17), KOTTACKAL P.O., MALAPPURAM DISTRICT-676 503.** **SRI.C.P.PRADEEP,GOVT.PLEADER R-1 TO R-3, R-7 & R-8 SRI.THOMAS ANTONY, STANDING COUNSEL FOR R-9** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 21017 of 2018** **3** ## **ALEXANDER THOMAS, J.** **=============================** ## **W.P(C)No.21017 of 2018** **============================= Dated this the 13[th] day of November, 2018** ## **JUDGMENT** The prayers in the aforecaptioned Writ Petition (Civil) are as follows: - _“(i) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to consider Ext.P1 representation after affording an opportunity of being heard to the petitioenr within a time frame fixed by this Hon'ble Court;_ - _(ii) Grant such other relief the Hon'ble Court may deem fit and proper to grant in the nature of the petition.”_ 2. Heard Smt.N.S.Hasna Mol, learned counsel appearing for the petitioner, Sri.C.P.Pradeep, learned Government Pleader appearing for respondents 1 to 3, 7 & 8 and Sri.Thomas Antony, learned Standing Counsel for the NHAI appearing for respondent No.9 etc. 3. According to the petitioner, his property **WP(C).No. 21017 of 2018** **4** is sought to be acquired in land acquisition proceedings initiated by the competent authorities under the National Highway Act, 1956, for development and widening of National Highway 66 (old NH 17). The petitioner would essentially submit that there has been violations of the provisions contained in the Act in the matter of following the due procedure and that therefore there is clear infringement of the constitutional guarantee of right to property as per Art.300A of the Constitution of India. Several factual contentions are also made by the petitioner that the proposed alignment is illogical and that if a rational approach is taken to change the alignment, the number of parties affected by the acquisition proceedings will be much less and that the petitioner’s property would thus be extended from the proposed acquisition proceedings etc. 4. Sri.Thomas Antony, learned Standing Counsel for the respondent NHAI authority would **WP(C).No. 21017 of 2018** **5** submit that the petitioner has not given any factual material particulars as to the survey number and other details of the property and also whether he has submitted any statutory objections within 21 days, after the publication of Sec.3A(1) notification dated 01.03.2018 and that therefore, the respondent NHAI authority is disabled from rebutting the factual pleas of the petitioner, as they are not in a position to factually ascertain from the pleadings as to whether the petitioner’s property is covered by the impugned Sec.3A(1) notification etc. and further that in case, the petitioner has not filed the statutory objections as aforestated within the time limit stipulated in the statute, then the petitioner cannot raise the present contentions and that in the absence of any such statutory objections within the time limit, it is only to be inferred that the party has no objections to the impugned acquisition proceedings under the NH Act. Further it is pointed out that **WP(C).No. 21017 of 2018** **6** Ext.P-1 is the representation dated 31.05.2018 submitted before the 2[nd] respondent-District Collector, Malappuram and the said representation is filed not with the competent authority concerned, which is the 3[rd] respondent and the same has been filed on 31.05.2018, which is much beyond the time limit of 21 days stipulated for submission of the abovesaid statutory objections etc. 5. The 3[rd] respondent has filed a counter affidavit dated 14.09.2018 through the learned Government Pleader concerned. In para.3 of the abovesaid counter affidavit of R-3, it is stated that in pursuance of Sec.3A(1) notification dated 01.03.2018, the petitioner had filed objections dated 02.04.2018 and that the petitioner has stated in his objections that his residential buildings as well as other commercial establishments come under the purview of the NH widening area passing through Venniyur in Thennala **WP(C).No. 21017 of 2018** **7** Village and the petitioner has requested the authority to avoid the acquisition as per the notification and prayed to change the alignment etc. Moreover, the petitioner has also claimed for fair compensation in the event of acquisition, etc. It is stated in para.4 of the counter affidavit of R-3 that the aforesaid objection was verified by the competent authority and notice has been issued to the party concerned under Sec.3C of the NH Act, for personal hearing and accordingly on 20.04.2018, the competent authority (R-3) had heard the petitioner. Before the authority, the petitioner had urged that the land covered in Survey No.217/1B in Thennala Village comes under the area of widening where large number of building and other residential buildings are situated and he has also alternatively requested for compensation etc. The claim and objections of the petitioner had been verified through the National Highway Authority of India, Kozhikode and **WP(C).No. 21017 of 2018** **8** their remarks were also sought. Further that the NHAI vide the letter dated 27.04.2018 had informed that Sec.3A(1)notification of NH Act, 1956 has empowered the acquisition of land, which was required for public purpose and the alignment for development of NH-17 has been fixed, as per the technical opinion of the Highway experts of the National Highway Authority of India and the same was approved by considering the improved Geometric and acquisition of land with 45 meters width, as per IRC Standard of the Union Ministry of Road & Transport and Highway to attain designs speed for safe and efficient movement of traffic etc. Further, the National Highway Authority of India had also informed the competent authority that the land including the residential, religious structures situated in the alignment will be compensated as per the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013. It is **WP(C).No. 21017 of 2018** **9** further stated in the said pleadings of R-3 that after taking due note of the provisions of the statute, the objection of the petitioner and other relevant aspects, the competent authority has rejected the objections of the petitioner, as the proceedings No.B-500/ 2017 dated 28.06.2018. It is thereafter, the petitioner has submitted representation before the District Collector, Malappuram seeking modified alignment. That deliberations were later made the MLAs, local representatives, affected parties by the District Collector and the NHAI had also submitted a report, in which it is stated that modification in the approved alignment as suggested by the petitioner cannot be accepted in view of technical reasons. That the objections was considered by the competent authority, strictly in accordance with the provisions of the statute and after taking note of all the issues and objections of the petitioner, the 3[rd] respondent (competent **WP(C).No. 21017 of 2018** **10** authority) has passed orders rejecting and disallowing the said objections of the petitioner. Further, Ext.P-1 representation dated 31.05.2018 submitted by the petitioner before the 2[nd] respondent-District Collector was also studied and examined at the National Highway Authority level. In that regard, it is stated that alignment has approved at various levels and Sec.3A notification was issued and boundary pillar erection also has been completed and the implementation of the project is in advance stage and hence the stage of alignment is not feasible considering the technical and economic aspects. The aforesaid aspects has also been highlighted by the National Highway Authority vide the letter dated 26.05.2018 etc. 6. Taking note of the abovesaid factual submission read on the counter affidavit of the 3[rd] respondent competent authority, this Court is of the considered view that the petitioner has not **WP(C).No. 21017 of 2018** **11** made out sufficient grounds to seek the public law remedy of judicial review of the impugned land acquisition proceedings, in the facts of this case. It is to be borne in mind that the Apex Court in various decisions as in _**Competent**_ ## _**Authority v. Barangore Jute Factory**_ **[2006 KHC 156]** **= [2005 (13) SCC 477]** has held that the scope of objections under Sec.3C(1) of NH Act, 1956 is distinct from the provisions contained in Sec.5A of the Land Acquisition Act, 1894 which confers a general right to object to acquisition of land under Sec.4 of the said repealed Act and that Sec.3C(1) of the NH Act, 1956 is a very limited right to object etc. and that the objection can be only to the use of the land under acquisition for purposes other than those under Sec.3A(1) etc. Further in decisions as in _**Subashgir Khushalgir**_ _**Gosabi & Others v. Special Land Acquisition**_ _**Officer & Others**_ **[AIR 1996 SC 3169],** the Apex Court has held that if it is not for a Writ Court **WP(C).No. 21017 of 2018** **12** to decide as to which place is more convenient for the public purpose and it is for the expert authorities entrusted in that regard, so as to take a technical decision in the matter. In the celebrated case in _**State of Punjab & Another v. Gurdial Singh and others**_ **[1980 (2) SCC 471],** the Apex Court has pointed out that the Court cannot interfere with the choice of land to be acquired for a stated public purpose, unless it is shown to be palpably mala-fide or otherwise void. In **S** _**hukla**_ _**V.S and others v. National Highway Authority of India**_ **[2013 KHC 2619],** it has been held that after considering the objection of the land owners with respect to the alternative land, the road could be realigned by using the lands on the eastern side, cannot be the ground for interference in the land acquisition proceedings and that the only relevant objection entertainable under Sec.3C of the NH Act is the non-suitability of the land for the purpose of road etc. **WP(C).No. 21017 of 2018** **13** 7. In the light of this well-settled legal position, this Court is constrained to hold that no sufficient grounds have been made out to invoke the public law remedy of judicial review, so as to interfere with and interdict the impugned land acquisition proceedings in this case. It is made clear that nothing in this judgment will in any manner preclude the petitioner from seeking compensation benefits, as envisaged in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013, as assured in paragraph.6 of the counter affidavit of the 3[rd] respondent. 8. In the light of these aspects, it is ordered that the above Writ Petition (Civil) will stand dismissed. ## **Sd/-** ## **ALEXANDER THOMAS, JUDGE** **vgd/17.11.18** **WP(C).No. 21017 of 2018** **14** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE DISTRICT COLLECTOR, MALAPPURAM.**