SUDARSHANAN and P. SURENDRAN v UNION OF INDIA and OTHERS

W.A. No. 358/2022 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944 ## WA NO. 358 OF 2022 JUDGMENT DATED 25.01.2022 IN WP(C) 14331/2020 OF HIGH COURT OF KERALA ## APPELLANT/PETITIONERS: - 1 SUDARSHANAN, AGED 65 YEARS S/O. JANARDHANAN, GOOD MORNING HOUSE, ERAM CHERRY, KARAMCODE P.O., CHATHANOOR, KOLLAM-691 579 - 2 P.SURENDRAN, AGED 78 YEARS S/O. PADMANABHAN, AMBADIYIL, MEENAD VILLAGE, CHATHANOOR, KOLLAM-691 579 BY ADVS. ARUN BABU ARUN K.J. G.HARIPRASAD ## RESPONDENTS/RESPONDENTS: - 1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF ROAD, TRANSPORT AND HIGHWAYS, TRANSPORT BHAVAN-1, PARALIAMENT STREET, NEW DELHI-110 001. - 2 NATIONAL HIGHWAY AUTHORITY OF INDIA, REPRESENTED BY ITS CHAIRMAN, G-5 & 6, SECTOR 10, DWARAKA, NEW DELHI, 110 075. W.A. No. 358/2022 : 2 : - 3 SPECIAL DEPUTY COLLECTOR AND COMPETENT AUTHORITY (LA), FOR NATIONAL HIGHWAY -47 (NH-66) CIVIL STATION, COLLECTORATE, KOLLA-691 013. - 4 THE PROJECT DIRECTOR, THE NATIONAL HIGHWAY AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT (KERALA REGION), TC 36/414(5), KOYIKKAL VEEDU, KAVU LANE, PALKULANGARA,, THIRUVANANTHAPURAM-695 024 BY ADV MANU S., ASG OF INDIA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. No. 358/2022 : 3 : ## **Dated this the 23[rd] day of March, 2022.** ## **JUDGMENT** ## **SHAJI P. CHALY, J.** The appeal is preferred by the petitioners in W.P.(C) No. 14331 of 2020, challenging the judgment of a learned single Judge dated 25.01.2022, whereby the writ petition was dismissed holding that the action taken by the National Highway Authority of India to acquire the land of the appellants is in accordance with law, and further that the appellants have failed to challenge the declaration of the land made under Section 3D of the National Highways Act, 1956 ('Act, 1956' for short). 2. Brief material facts for the disposal of the appeal are as follows: The first appellant is in ownership and possession of 17 cents of property situated in survey No. 172/26, Block No. 30 of Meenadu Village, Kollam District, in which he has constructed a 4 storied building and conducting business therein. The second appellant is in joint ownership of 10 cents of property in Block No. 30, Re-survey No. 172/29, and 2.5 cents in Re-survey No. 172/14/1 of Meenadu Village, Kollam District. W.A. No. 358/2022 : 4 : 3. The case projected by the appellants is that Ext. P1 notification issued under Section 3A of the Act, 1956, to acquire an extent of 29.027 sq. mts. of property from the first appellant and 2.33 cents from the second appellant, lapsed, and thereupon, Ext. P3 fresh notification was issued, as per which an extent of 5.436 cents of property belonging to the first appellant, and 19 cents of property belonging to the second appellant was notified, to be acquired, which is illegal, since no fresh alignment was notified requiring acquisition of more property . 4. The further case of the appellants is that as per Ext. P3 notification, it is evident that there is gross violation of the alignment originally fixed and the properties situated on one side of the road was avoided and that avoided portion was sought to be acquired from the properties of the appellants. That apart, it is contended that the findings of the learned single Judge that acquisition of additional extent of land based on Section 3B survey of Act, 1956 is against the very statutory provision and also the guidelines issued for the purpose. 5. It is submitted that the statutory scheme of Act, 1956 very specifically states that as per Section 3A, the land proposed to be acquired, to be notified, followed by a survey under Section 3B of Act, W.A. No. 358/2022 : 5 : 1956, and therefore, the contention advanced by the appellants is that the survey conducted under Section 3B of Act, 1956 is not intended to identify the exact land noted, as the executive agency undertook a very detailed survey even before the issuance of notification under Section 3A of the Act, 1956. 6. It is further submitted that if there was a need to acquire excess land, acquisition of the said excess land has to be proceeded through the stages leading to Section 3A and in that circumstances, there would have been an additional Section 3A notification showing excess land to be acquired, apart from Ext. P3 notification. Other contentions are also raised as an attempt to establish that the judgment of the learned single Judge is not in accordance with law. 7. The stand adopted by the National Highway Authority and the Special Deputy Collector and Competent Authority (LA) for National Highway-47 (NH-66)— respondent Nos. 2 and 3 is that during the year 2009, the National Highway Authority had undertaken the development of the existing two-lane NH stretch from Cherthala to Kazhakootam for four-lane configuration for a proposed Right of Way of 45.00m under the National Highway Development Phase III Build Operate Transfer (BOT) project. Accordingly, NHA has appointed M/s. W.A. No. 358/2022 : 6 : SMEC Pvt. Ltd., New Delhi, as the new DPR, Consultant for the project as per a letter dated 27.06.2016. The alignment Option for the fourlaning of the project sketch has also been approved by the State Government. However, the four-laning of the National Highway could not be carried out, although the land acquisition proceedings were initiated twice, and consequent to which notification issued under Section 3A lapsed by efflux of time, basically due to the stiff resistance made by the local people. 8. Therefore, the declaration could not be made under Section 3D of the Act, 1956. It was in the above background that Ext. P3 fresh notification was issued by the Ministry of Road, Transport and Highways, New Delhi dated 25[th] June, 2019, whereby the brief description of the land to be acquired with or without structures falling within the alignment of the National Highways is shown. 9. That apart, it is pointed out that consequent to the issuance of Ext. P3 notification, fresh consequential action in contemplation of the provisions of Act, 1956 was undertaken, and the proceedings accordingly culminated in the declaration made under Section 3D of the Act, 1956. It is further submitted that the appellants have not challenged the proceedings consequent to Ext. P3 notification W.A. No. 358/2022 : 7 : culminated in the declaration of the acquisition, mandatorily contemplated under the Act, 1956. Therefore, NHAI seeks dismissal of the appeal. 10. We have heard learned counsel for the appellant Sri. Arun Babu, learned Standing Counsel for the National Highway Authority and the Deputy Collector Sri. B.G. Bidan Chandran, learned Senior Government Pleader Sri. K.P. Harish, and Sri. Manu S., the learned Assistant Solicitor General of India, and perused the pleadings and materials on record. 11. The discussion made above would make it clear that Ext. P3 is a fresh notification issued by the Ministry of Road Transport and Highways on 25[th] June, 2019 in contemplation of Section 3A of the Act, 1956. It is an admitted fact that Ext. P1 notification dated 9[th] February, 2018 issued by the Ministry had elapsed due to efflux of time and therefore, to proceed with the acquisition, a new notification under Section 3A of the Act, 1956 had to be issued as mandated under law. 12. The grievance highlighted by the appellants is that as per Ext. P1 notification, less extents of land of the appellants were sought to be acquired; however, as per Ext. P3 notification, more extents of land were sought to be acquired and therefore, without a fresh DPR W.A. No. 358/2022 : 8 : being prepared, the acquisition for more extents of lands cannot be made by the National Highways Authority. That apart, it is submitted that the requirement of more extents of land from the appellants would show that the alignment originally fixed has changed and it was under the said circumstances, more land is required, and therefore, without appraising the said situation by issuing appropriate notice to the land owners, the acquisition cannot be made by issuing notification under Section 3A of the Act, 1956. 13. On the other hand, the learned counsel appearing for the National Highways Authority of India submitted that when a fresh notification is issued under Section 3A, the National Highways Authority is entitled, as of right, to proceed to acquire the land in accordance with the procedure contained under the Act, 1956. 14. We have evaluated the rival submissions made across the Bar. On an appreciation of Section 3A (1), it is clear that if the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a National Highway or part thereof, it is entitled to issue notification in the Official Gazette and declare its intention to acquire such land. The said provision also makes it clear that the acquisition of the land can be W.A. No. 358/2022 : 9 : made for various purposes, including the fixing of alignment. Therefore, the contention advanced by the learned counsel for the appellants that more land is sought to be acquired due to change of alignment has no much force, and it could only be seen as a blunt allegation without any substance or basis. 15. The inevitable requirements as per Section 3A are that, every notification under sub-Section (1) shall give a brief description of the land, and the competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language. 16. There is no case for the appellants that the said mandatory requirements contained under Section 3A of Act, 1956 are not followed by the statutory authority. After the publication of Section 3A notification, the authorized authority is vested with powers to enter into the property and conduct survey. It is also clear from Section 3C that any person interested in the land is entitled to object to the use of the land for the purpose or purposes mentioned in the sub-Section within twenty-one days from the date of publication of the notification under Section 3A(1) of Act, 1956. Therefore, it is clear from Section 3C(1) of Act, 1956 that the objection that can be raised by a person W.A. No. 358/2022 : 10 : interested in the land is to the use of the land for the purpose or purposes mentioned in the notification and not for anything else. 17. Apparently, it is clearly specified in Ext. P3 notification that the land sought to be acquired is required for building (widening, fourlaning etc.), maintenance, management and operation of National Highway No.66 in the stretch of land from Km. 460.700 to Km. 517.000 (Ochira-Kadampattukonam) in the district of Kollam in the State of Kera. 18. Admittedly, the procedure contemplated under Section 3C dealing with 'hearing of objections' has been undertaken by the authorised authority and an order was passed and thereafter a declaration was made under Section 3D of Act, 1956. It is clear from Section 3D(2) that on the publication of the declaration under Section 3D(1) of the Act, 1956, the land shall absolutely vest in the Central Government free from all encumbrances. 19. Therefore, it was taking into account the procedure adopted by the Central Government as well as the authorised authority under the Act, 1956, the learned single Judge has concluded that the appellants have not made out any case of arbitrariness and illegality justifying interference of this Court in a proceeding under Article 226 W.A. No. 358/2022 : 11 : of the Constitution of India. 20. Moreover, we find from the contentions that the basic contention advanced by the appellants is regarding the change of alignment and the consequential actions. It is well settled in law that an alignment fixed by the National Highway Authority through its expert bodies cannot be changed by interfering with a proceeding under Article 226 of the Constitution of India. 21. The entire aspects in relation to the issuance of notification under Section 3A and the declaration made under Section 3D were considered by the Apex Court in _**Union of India v. Kushala Shetty and others**_ [(2011) 12 SCC 69] and held that the provision of law makes it clear that once the Central Government is satisfied that any land is required for the building, maintenance, management or operation of a National Highway or part thereof, then it shall declare its intention to acquire such land by issuing a notification in the Official Gazette giving brief description of the land. 22. It is also evident and clear that except the bald assertions made in the writ petition and the writ appeal in respect of the change of alignment and preparation of a new DPR, the appellants could not point out any specific provisions under the Act, 1956, thus requiring W.A. No. 358/2022 : 12 : the Central Government to prepare a fresh DPR due to the lapsing of time period fixed under the provisions of the Act, 1956, and consequential fresh notification. 23. After having appreciated the rival submissions and going through the judgment of the learned single Judge, we have no hesitation to hold that the appellants have failed to make out any case of jurisdictional error or other legal infirmities justifying our interference in an intra court appeal preferred under Section 5 of the Kerala High Court, 1958. Accordingly, this appeal is dismissed. sd/- **S. MANIKUMAR, CHIEF JUSTICE.** sd/- **SHAJI P. CHALY, JUDGE.** _Rv_