P.G. Purushothaman Pillai & Others v Union of India & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **THURSDAY ,THE 07TH DAY OF MARCH 2019 / 16TH PHALGUNA, 1940** ## **WP(C).No. 41586 of 2018** **PETITIONERS: 1 P.G.PURUSHOTHAMAN PILLAI AGED 56 YEARS S/O. GOPALA KURUP, ROHINI PATHIRAPPALLY P.O., ALAPPUZHA 688 521, AND PROPRIETOR, SONY ELECTRICAL S, PATHIRAPPALLY, ALAPPUZHA 688 521 2 V. M. MANOHARAN, AGED 61 YEARS S/O. V.K., MADHAVAN, VELIYIL HOUSE, WEST OF UDAYA NAGAR, PATHIRAPPALLY P.O., ALAPPUZHA 688 521, AND PROPRIETOR SHINE STAR CANE WORKS, PATHIRAPPALLY P.O., ALAPPUZHA 688 521 3 SUMA, W/O. V.M. MANOHARAN, VELIYIL HOUSE, WEST OF UDAYA NAGAR, PATHIRAPPALLY P.O., ALAPPUZHA 688 521 4 K. KARTHIKEYAN . AGED 59 YEARS S/O. KRISHNAN, VELIYIL PATHIRAPPALLY P.O., ALAPPUZHA 688 521, AND PROPRIETOR DAIVAM HOTEL, PATHIRAPPALLY P.O., ALAPPUZHA 688 521 5 THOMAS, AGED 65 YEARS S/O. VARGHESE, KAKKANATTU HOUSE, PATHIRAPPALLY P.O., ALAPPUZHA 688 521 6 GRACY, AGED 64 YEARS W/O. JOB, PUNNAYKKAL HOUSE, PATHIRAPPALLY P.O., ALAPPUZHA 688 521 7 SUNIL.R., AGED 47 YEARS S/O.K.A RAVI, SUNIL NIVAS, PERUMTHURUTHU, PONNADU P.O.,** **WP(C).No. 41586 of 2018** **2** **MANNANCHERRY, ALAPPUZHA 688 538, AND PROPRIETOR, AMMAY NARAYANA STORES, PATHIRAPPALLY P.O., ALAPPUZHA 688 521** - **8 ARUNKUMAR, AGED 44 YEARS S/O. SADANANDAN, ASWATHY BHAVANAM, PATHIRAPPALLY P.O., ALAPPUZHA 688 521** - **9 RAJAMMA, AGED 74 YEARS W/O. SADANANDAN, ASWATHY BHAVANAM, PATHIRAPPALLY P.O., ALAPPUZHA 688 521** **10 REJEENA ANUB, AGED 45 YEARS D/O. ABDUL REHAMN KUNJU, CHAMBACHIRAPUTHENVEEDU, MULAKUZHA, P.O., MULAKUZHA, ALAPPUZHA 689 05, AND PARTNER, GLOBAL MARBLES, PATHIRAPPALLY, ALAPPZUAH 688 521** **11 AYISHA ANUB, AGED 19 YEARS D/O. ANUB, CHAMANCHIRA PUTHEN VEEDU, MULAKUZHA, P.O., MULAKKUZHA, ALAPUZHA 689 505 AND PARTNER, GLOBAL MARBLES, PATHIRAPPALLY, ALAPPUZHA 688 521** **12 SREE NARAYANA DHARMA PARIPALANA YOGAM, (SNDP), BRANCH NO. 1115, CHETTIKADU, PATHIRAPPALLY P.O., ALAPPUZHA 688 521, AND PRESENTED BY SUDHAKARAN, S/O. KRISHNAN, AGED 62 YEARS, SECRETARY, S.N.D.P. BRANCH NO. 1115, PATHIRAPPALLY P.O., ALAPPUZHA 688 521** **BY ADVS. SRI.DIPU.R SMT. DEVI KRIPA R. SMT.DHANYA BABU SMT.K.P.SUSMITHA SRI.K.S.BAIJU SRI.SANAL P.RAJ** **WP(C).No. 41586 of 2018** **3** ## **RESPONDENTS:** - **1 UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF ROAD, TRANSPORT AND HIGHWAYS, TRANSPORT BHAVAN-1, PARLIAMENT STREET, NEW DELHI 110 001** - **2 NATIONAL HIGHWAY AUTHORITY OF INDIA (NHAI), REPRESENTED BY ITS CHAIRMAN, SECTION 10 DWARAKA, NEW DELHI 110 075** - **3 THE PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF INDIA (NHAI), KERALA REGION, KERALA REGIONAL OFFICE, TC 36/574-1, KRISHNA KRIPA, PALKULANGARA JUNCTION, PALKULANGARA, THIRUVANANTHAPURAM 695 008** - **4 STATE OF KERALA REPRESENTED BY ITS SECRETARY DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **5 THE DISTRICT COLLECTOR, ALAPPUZHA, COLLECT ORATE, BEACH ROAD, ALAPPUZHA 688 001** - **6 SPECIAL DEPUTY COLLECTOR AND COMPETENT AUTHORITY LAND ACQUISITION, NATIONAL HIGHWAY, COLLECTORATE, CIVIL STATION, ALAPPUZHA 688 001** - **7 THE VILLAGE OFFICER, PATHIRAPPALLY VILLAGE, PATHIRAPPALLY VILLAGE OFFICE, PATHIRAPPALLY P.O., ALAPPUZHA 688 521** **BY ADVS. M/S.M.V.KINI AND CO., SC, NHAI SMT.R.ASALATHA VARMA SRI.E.C.KURIAKOSE** **B.G. BIDAN CHANDRAN ,SC, NATIONAL HIGHWAY AUTHORITY OF INDIA,FOR R2 AND R3; G.P. SRI. SAIGI JACOB PALATTY FOR R4-R7, SRI. P. VIJAYAKUMAR,ASST SOLICITOR GEN. OF INDIA FOR R1.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.02.2019, THE COURT ON 07.03.2019, DELIVERED THE FOLLOWING:** **WP(C).No. 41586 of 2018** **4** ## **ALEXANDER THOMAS, J.** ## **===========================** ## **W.P(C)No.41586 of 2018** ## **===========================** Dated this the 07[th] day of March, 2019 ## **JUDGMENT** The prayers in the above Writ Petition (Civil) are as follows: - “i) Issue a writ of mandamus or any other writ, order or direction in the nature of mandamus directing the respondents not to further proceed with present land acquisition proceedings. - ii) Quash Ext.P10 notification by issuing a writ of certiorari or any other appropriate writ order of direction. - iii) Issue a writ of mandamus or any other writ, order or direction in the nature of mandamus directing the respondents to acquire properties equally from both sides of National Highway, ie. NH 66, for widening the stretch of NH 66 between Cherthala-Ochira in, ValiyakalavoorPathirappally area of Alappuzha District. - iv) Issue a writ of mandamus or any other writ, order or direction in the nature of mandamus directing the respondents to acquire the properties on the basis of 2013 acquisition plan. - v) This Hon’ble court may be further pleased to pass any other just and equitable order under the given facts and circumstances of the case as deemed fit in favour of the petitioners.” ## 2. Heard Sri.R.Dipu, learned counsel appearing for the petitioners, Sri.B.G.Bidan Chandran, learned Standing Counsel for **WP(C).No. 41586 of 2018** **5** the National Highway Authority of India, appearing for R-2 & R-3, Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondents 4 to 7 and Sri.P.Vijaya Kumar, learned Assistant Solicitor General of India appearing for R-1 (Union Government). 3. The properties of the petitioners in Pathirappally Village, Ambalappuzha Taluk, Alappuzha Revenue District has been included in Ext.P-10 notification dated 21.06.2018 (published in the newspapers on 24.07.2018), issued under the enabling provisions contained in Sec.3A(1) of the National Highways Act, 1956 for acquisition of the said properties, for the purpose of widening of the National Highway 66 between the stretch of Cherthala-Ochira in Alappuzha Revenue District. The petitioners would allege that the method adopted for acquiring the properties as per Ext.P-10 notification is highly illegal and improper since it provides for acquisition of properties only from one side of NH66, ie. in the right side of Ernakulam-Alappuzha direction of Valiya Kalavoor-Pathirappally area. That the petitioners had submitted Exts.P11, P-14 and similar objection before the 6[th] respondent-Special Deputy Collector & Competent Authority (Land Acquisition) (hereinafter referred in short as the competent authority) against the said **WP(C).No. 41586 of 2018** **6** acquisition proceedings that on the basis of Ext.P-11 and other objections, the 6[th] respondent-competent authority conducted hearing on 12.10.2018 and the said objection of the petitioners have been disallowed and whereby it has been decided to further go ahead with the impugned acquisition proceedings on the basis of Ext.P-10 Sec.3A(1) notification. The petitioners would also point out that the petitioners and other affected persons, who are part of the Highway Action Council, Pathirappally have submitted Exts.P-16, P-17 & P-18 representations before the said authorities. Being aggrieved and dissatisfied by the impugned method adopted by the respondents for the present land acquisition proceedings as per Ext.P-10, the petitioners have filed the instant Writ Petition (Civil) with the aforementioned prayers. 4. The 3[rd] respondent-Project Director, NHAI, Thiruvananthapuram has filed a counter statement dated 11.01.2019 through their learned Standing Counsel. While stating the background facts, it has been stated in paragraph 6 of the said statement that during the year 2009, the respondent-NHAI had taken up the development of the existing 2 lane NH stretch from Cherthala to Kazhakkuttam (KM 379/100-KM/551/900) Section of NH47, for 4 lane configuration for a Proposed Right of Way (ROW) of **WP(C).No. 41586 of 2018** **7** 45.00m under the National Highway Development Phase-III Build Operate Transfer (BOT) project, ie. package I-4 laning from Cherthala-Oachira (KM 379/100-KM 465/000) of NH47 & package-II 4 laning from OachiraKazhakkuttam (KM 465/000-KM 551/900) Section of NH47. The said proposed 4 laning of the National Highway could not be carried out, although the land acquisition proceedings were initiated twice and as such Sec.3A(1) notifications had lapsed by the efflux of time due to the stiff resistance from the local populace and the non-cooperation of the State authorities at that point of time. 5. The respondent-State Government has evinced great interest in the development and 4 laning of NH47 (NH66) and therefore, the respondent-NHAI has taken up the development and 4 laning of NH47 with a proposed ROW of 45m width. Pursuant to the same, decision has taken to appoint M/s.SMEC Pvt.Ltd., New Delhi as the consultant to modify/update the Detailed Project Report prepared by the erstwhile consultant M/s.ICT Pvt.Ltd., during 2010 for 4 laning Cherthala-Oachira (KM 379/100-KM 465/000) and Oachira-Kazhakkuttam (KM 465/000KM 551/900) as per the ground realities existing as on date. 6. The 6[th] respondent-Special Deputy Collector, LA-NH Alappuzha, Kollam & Trivandrum District has been appointed as the **WP(C).No. 41586 of 2018** **8** Competent Authority as per the provisions of the National Highways Act, 1956 for effecting land acquisition through Gazette Notification dated 04.12.2009. The alignment option fixed for 4 laning of NH47 has been approved by the State Government vide letter dated 01.02.2017 and Sec. 3A(1) notification of National Highways Act, 1956 was published in the Government of India Gazette S.O.No.602(E), S.O.671(E) & S.O.No.2368(E) and the said notification was also published in local newspapers. The present alignment is prepared based on the clauses laid down in the Indian Roads Congress (IRC) Code of Manual to maintain a design speed of 80100 km/hr and also considering the geometric parameters and radius of curvature in keeping with the IRC code of Manual. Currently, the existing 2 lane road at the stretches where it is being 4 laned has many geometric deficiencies which need to be corrected in compliance with the IRC Code of Manual in respect of gradient, the radius of curvature etc., so as to maintain a design speed of 80-100km/hr. 7. It is further stated that as per the statutory scheme of the National Highways Act, 1956, the Sec.3A(1) notification issued thereunder gives only a brief description of the property, which is sought to be acquired and is only a rough assessment of the extent and does not give precisely the exact land that is ultimately going to be acquired. The exact **WP(C).No. 41586 of 2018** **9** extent and the exact spot for acquisition can be assessed only after the completion of the survey as envisaged under Sec.3B of the NH Act. Further that no additional land beyond what is covered in Sec.3A(1) notification already published will be acquired and even if additional land is needed and to be acquired, then fresh Sec.3A(1) notification for such additional lands will be issued, after following the requisite procedures prescribed by the NH Act. 8. The existing stretch is from Cherthala-Oachira-Kazhakkuttam (KM 379/100-KM 465/000-KM 551/900). This stretch is presently a 2 lane highway which is to be converted to 4 lane configuration having a width of 45.00m. It is further stated that the petitioners’ property falls in CH.425/000 and is included in the present project for widening and the land is proposed to be acauired on both sides equally. The exact extent of land to be acquired from the petitioners’ property can be assessed only after the 3B survey is completed and that the extent of the land as per Sec. 3A(1) notification will be acquired first and any additional land over and above the land area covered by Sec.3A(1) notification, if required, will be acquired only after issuance of fresh 3A(1) notification, etc. 9. It is further averred in paragraph 20 of the said statement that currently the existing road is having geometrical deficiencies which has to **WP(C).No. 41586 of 2018** **10** be corrected as per the requirements in the IRC Code of Manual in respect of the Radius of Curvature and as per the present proposal it is proposed to acquire land on the RHS of the above project stretch for correction of geometrics as per the IRC Code of Manual. Further details in that regard are contained in paragraph 20 of the said counter statement, which reads as follows: “…………………………The acquisition at this stretch is proposed considering a sharp curve falling in this stretch which is an accident prone zone and the proposal is to ease out the curve as per the clauses laid down in the IRC code of Manual. The existing geometrics at this stretch has to be corrected as per the IRC code of manual so as to avoid the cure and the resultant accidents that may occur on account of the curve. It is submitted that the designated speed of the four-lane highway after construction is 80/100kmh. In order to maintain this speed, considering the various aspects, including the geometrics of the proposed highway, safety of traffic on road after construction of the four-lane highway at the designated speed of 80/100kmh, the sharp curve had to be rectified and hence the correction of the geometric profile was made on the Right Hand Side well ahead of the curve by peg marking the additional extent that will be required to be acquired after a fresh and further issuance of 3A(1) notification for acquisition of this additional land. It is also submitted that this shift is made in order to maintain a radius of curvature as 400m. Therefore the allegation that the additional property is being acquired to favour third parties or adjacent property owner is without any basis and is nothing but a figment of the Petitioners imagination made solely to buttress the Petitioner’s argument against the acquisition. In this context, it is also further submitted that there can be slight variations from the existing alignment to overcome difficulties existing in the terrain. This does not mean that there is an evident shift from the alignment by excluding the properties earmarked for acquisition. What is being done is to acquire additional property so as to overcome the existing curves confronted at the time of survey carried out as provided under Section 3B of the NH Act.” 10. It is averred in paragraph 21 of the counter statement of the 3[rd] respondent-NHAI that the allegations in paragraphs 15 to 20 are refuted and that as per the present proposal, is to acquire land on both sides and currently the road is having geometrical deficiencies which is to be rectified by acquisition of land on both sides in order to maintain the radius of **WP(C).No. 41586 of 2018** **11** curvature as per the clauses in IRC code of Manual. It is further stated in paragraph 23 thereof that the petitioners are entitled to fair and just compensation as is provided in the NH Act, 1956 and the Right to Fair Compensation and Transparency in Land Acquisition and Rehabilitation and Resettlement Act, 2013 (RFCTLARR) and compensation shall be given to them as provided in the notification making the provisions of the abovesaid new Act, 2013 (RFCTLARR), applicable to the NH Act. 11. The petitioners have filed a reply affidavit dated 08.02.2019 producing therewith Ext.P-21, which is the photograph and Ext.P-22, which is a rough location sketch and Exts.P-23 & P-24 are extracts of newspaper reports. It is pointed out in paragraph 6 of the said reply affidavit that the factual submission of the 3[rd] respondent-NHAI regarding the curves falling between the stretches is not correct and that there are no curves. The petitioners would place reliance on Ext.P-21, which is a photograph. Further the petitioners would contend by placing reliance on Ext.P-22, which appears to be a rough location sketch prepared by the petitioners, that if the present acquisition/alignment of the respondents are allowed to continue, the area will become more dangerous curve. On the basis of Exts.P-21 & P-22, the petitioners would contend that the impugned land acquisition adopted by the respondents on the basis of the impugned **WP(C).No. 41586 of 2018** **12** alignment, would lead to making the area a more dangerous curve bending toward the left side of NH66 at Pathirappally Junction, etc. and certain other factual averments are also made therein. The petitioners would further contend that the abovesaid aspects will make it clear that the impugned alignment is illegal and unscientific, etc. 12. After having heard all the parties concerned in extenso and after going through the pleadings and materials on record, this Court is of the view that the factual aspects raised by the 3[rd] respondent-NHAI in their written statement filed with the above W.P(C) have not been effectively rebutted or controverted by the petitioners, on the basis of any objective materials of unimpeachable credibility. It is well settled that this Court exercising powers of judicial review in public law proceedings, has got only limited role to gauge and assess the factual aspects, more particularly, to adjudge as to whether the impugned alignment adopted by the respondents after multilevel consultations and expert preparation and finalization, could be branded as faulty by this Court. The sum and substance of the case of the petitioners is that this Court should venture into the fact finding field to assess the pros and cons of the impugned alignment adopted and finalized by the respondents through their expertise and competence, with the alternate proposal and factual versions projected by the petitioners. **WP(C).No. 41586 of 2018** **13** 13. The Apex Court in 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 3013 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. 14. In the light of the above well settled legal position and in view of the indisputable facts and circumstances emerging in this case, this Court is of the view that it is not right and proper for this Court to invoke the **WP(C).No. 41586 of 2018** **14** extraordinary remedy of judicial review to interdict the impugned land acquisition proceedings in this case. Moreover the 2[nd] 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 petitioners 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. In the light of these aspects, it is only to be held that the Writ Petition fail and accordingly the same will stand dismissed. Sd/- **ALEXANDER THOMAS JUDGE** vgd **WP(C).No. 41586 of 2018** **15** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE LAND TAX RECEIPT WITH NO. KL04011001074/2018 DATED 28.4.2018 ISSUED BY THE 7TH RESPONDENT TO THE 1ST PETITIONER** - **EXHIBIT P2 TRUE COPY OF THE LAND TAX RECEIPT WITH NO. KL04011002764/2018 DATED 2.7.2018 ISSUED BY THE 7TH RESPONDENT TO THE 2ND AND 3RD PETITIONER** - **EXHIBIT P3 TRUE COPY OF THE LAND TAX RECEIPT WITH NO. KL04011005999/2018 DATED 12.12.2018 ISSUED BY THE 7TH RESPONDENT TO THE 4TH PETITIONER** - **EXHIBIT P4 TRUE COPY OF THE LAND TAX RECEIPT WITH NO. KL04011003726/2018 DATED 14.8.2018 ISSUED BY THE 7TH RESPONDENT TO THE 5TH PETITIONER** - **EXHIBIT P5 TRUE COPY OF THE LAND TAX RECEIPT WITH NO. 5547297 DATED 21.12.2017 ISSUED BY THE 7TH RESPONDENT TO THE 6TH PETITIONER** - **EXHIBIT P6 TRUE COPY OF THE LAND TAX RECEIPT WITH NO. 3146849 DATED 3.1.2017 ISSUED BY THE 7TH RESPONDENT TO THE 7TH PETITIONER** - **EXHIBIT P7 TRUE COPY OF THE LAND TAX PAYMENT RECEIPT WITH NO. KL04011005907/2018 DATED 7.12.2018 ISSUED BY THE 7TH RESPONDENT TO THE 7TH AND 9TH PETITIONERS** - **EXHIBIT P8 TRUE COPY OF THE TAX PAYMENT RECEIPT WITH NO. KLO4011004121/2018 DATED 13.9.2018 ISSUED BY THE 7TH RESPONDENT TO THE 10TH AND 11TH PETITIONERS** - **EXHIBIT P9 TRUE COPY OF THE TAX RECEIPT WITH NO. KL04011002198/2018 DATED 12.6.2018 ISSUED BY THE 7TH RESPONDENT TO THE PRESIDENT OF SNDP BRANCH NO. 1115** **EXHIBIT P10 TRUE COPY OF THE NOTIFICATION DATED 21.6.2018 PUBLISHED IN MALAYALA MANORAMA DAILY DATED 24.7.2018** **WP(C).No. 41586 of 2018** **16** **EXHIBIT P11** **TRUE COPY OF THE OBJECTION FILED BY THE 5TH PETITIONER ON 30.7.2018 BEFORE THE 6TH RESPONDENT** - **EXHIBIT P12 TRUE COPY OF THE NOTICE WITH NO. A2-37/2018 DATED 24.9.2018 ISSUED BY THE 6TH RESPONDENT TO THE 1ST PETITIONER** - **EXHIBIT P13 TRUE COPY OF THE THE NOTICE WITH NO. A217/2018 DATED 24.9.2018 ISSUED BY THE 6TH RESPONDENT TO THE 2ND PETITIONER** - **EXHIBIT P14 TRUE COPY OF THE APPLICATION DATED 12.10.2018 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 6TH RESPONDENT** - **EXHIBIT P15 TRUE COPY OF THE NOTICE DATED 23.11.2018 PUBLISHED BY THE HIGHWAY ACTION COUNCIL, PATHIRAPPALLY** - **EXHIBIT P16 TRUE COPY OF THE REPRESENTATION DATED 7.11.2018 SUBMITTED BEFORE THE HONBLE CHIEF MINISTER** - **EXHIBIT P17 TRUE COPY OF THE REPRESENTATION DATED 7.11.2018 SUBMITTED BEFORE THE 5TH RESPONDENT BY THE HIGHWAY ACTION COUNCIL, PATHIRAPPALLY** - **EXHIBIT P18 TRUE COPY OF THE REPRESENTATION DATED 7.1.2018 SUBMITTED BY THE HIGHWAY ACTION COUNCIL, PATHIRAPPALLY BEFORE THE 6TH RESPONDENT** - **EXHIBIT P19 TRUE COPY OF THE ACQUISITION DIAGRAM IN PATHIRAPPALLY JUNCTION** **EXHIBIT P20 TRUE COPY OF THE NEWS ITEM PUBLISHED IN MATHRUBHUMI DAILY DATED 25.11.2018**