Travancore Devaswom Board v. National Highways Authority of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944** **W.P.(C)NO.9242 OF 2022** ## **PETITIONER:** **TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANDANCODE, THIRUVANANTHAPURAM - 695 003, REP. BY ITS SECRETARY.** **BY ADV G.SANTHOSH KUMAR (P).** ## **RESPONDENTS:** - **1 NATIONAL HIGHWAY AUTHORITY OF INDIA, REP. BY ITS SECRETARY, G5 AND 6, SECTOR -10, DWARAKA, NEW DELHI - 110 075.** - **2 PROJECT DIRECTOR, NATIONAL HIGHWAYS AUTHORITY OF INDIA, TC 36/574-1, KRISHNA KRIPA, PALKULANGARA JUNCTION, PALKULANGARA, THIRUVANANTHAPURAM, KERALA - 695 024.** **THE DESCRIPTION OF THE 2ND RESPONDENT IS CORRECTED AS PER ORDER DATED 22.03.2022 IN WPC NO.9242 OF 2022** - **3 STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.** - **4 THE SPECIAL DEPUTY COLLECTOR, NATIONAL HIGHWAY AUTHORITY (LAND ACQUISITION), N. H.-66, ALAPPUZHA, PIN - 688531.** - **5 THE SPECIAL TAHSILDAR, OFFICE OF THE SPECIAL TAHSILDAR, L. A. (N.H.),** W.P.(C)NO.9242 OF 2022 2 **N. H.-66, ALAPPUZHA, PIN - 688531.** **BY ADV. K.A.SALIL NARAYANAN** ## **OTHER PRESENT:** **SRI S. RAJMOHAN, SR. GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)NO.9242 OF 2022 3 ## **JUDGMENT** ## **Anil K. Narendran, J.** Thuravoor Mahakshethram of Narasimhamoorthy and Sudarsanamoorthy, situated on the side of NH-47 at Thuravoor in Alappuzha district, is under the management of the petitioner-Travancore Devaswom Board. The temple owns extensive properties in Survey Nos.171/3, 171/4A and 171/4B of Thuravoor South Village, as evidenced by Ext.P1 settlement register. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 notification dated 26.08.2021 issued by the 1[st] respondent National Highways Authority of India, under Section 3A(1) of the National Highways Act, 1956, for acquiring a portion of the land owned by the temple. The petitioner submitted representation before the competent authority with a request to change the alignment of the National Highway. Thereafter, the petitioner has moved this writ petition before this Court, seeking the aforesaid relief. The petitioner has also sought for a writ of certiorari to quash Ext.P10 communication dated 11.01.2022, whereby the request made by the petitioner W.P.(C)NO.9242 OF 2022 4 for change of alignment stands rejected. Therefore, the petitioner seeks a reconsideration of Ext.P9 representation, after conducting a detailed scientific study regarding the possibility of the alternate alignment suggested. 2. On 22.03.2022, when this writ petition came up for admission, the learned Standing Counsel for National Highways Authority of India sought time to get instructions. 3. On 08.04.2022, when this writ petition came up for consideration, the learned Standing Counsel for National Highways Authority of India submitted that as per the alignment now proposed, the temple pond is unaffected. The claim made by the petitioner that the property under acquisition is a Devaswom land will be dealt with appropriately by the competent authority, at appropriate stage, under Section 3G of National Highways Act, 1956. 4. The learned Standing Counsel for National Highways Authority of India has filed a statement dated 08.04.2022 on behalf of the 2[nd] respondent Deputy General Manager (T) Cum Project Director. Paragraphs 4 to 7 of that statement read thus; W.P.(C)NO.9242 OF 2022 5 “4. Be that as it may; on merits also the above writ petition is not maintainable. The decisions relied on by the petitioner is totally unconnected with the facts of this case. Decision relied on in ground D of the writ petition was in relation to a case in which the property was encroached upon by certain private people. It was in the said circumstances that the above decision happened to be rendered. In the instant case, the property is acquired by the Union of India by exercising its power of eminent domain. The Doctrine of Eminent Domain is a legal contention available to the NHAI. There is no encroachment or any illegality in the said acquisition. The said acquisition satisfies all the criteria that is to be looked into while exercising the powers of eminent domain. 5. The contention of the petitioner that a portion of the temple pond will be damaged is without any basis. The present alignment is prepared based on the clauses laid down by the IRC Code of Manual to maintain a design speed of 80-100 km/hr and also considering the geometric parameters and radius of curvature in keeping with the IRC code. Currently the existing 2 lane road at the stretches where it is being 4 laned has many geometric deficiencies which needs to be corrected in compliance to the IRC Code in respect of gradient, radius of curvature etc., so as to maintain a design speed of 80100km/hr. The alignment is designed in such a way that there is no damage to the main temple building or the W.P.(C)NO.9242 OF 2022 6 temple pond. It is submitted that only a small portion of the land at the south-east corner of the temple compound is affected due to the land acquisition. No damage will be caused to the temple pond and hence the allegations in the writ petition are without any merits and the same is only to be discarded. 6. Further, it is not for the petitioner to dictate as to how the alignment of the Highway is to be carried out as how the Hon'ble Supreme Court of India in the case of Union of India v. Kushala Shetty, held: Para-24; "Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new Highways and widening and development of existing highways, which are vital for development of infrastructure in the country, are entrusted to experts in the field of Highways. It comprises of persons having vast knowledge and expertise in the field 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 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 alignment would sub-serve the W.P.(C)NO.9242 OF 2022 7 larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and in rarest of rare cases, the particular project, if it is found to be ex-facie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained." 7. There is absolutely nothing wrong with Exts.P5 and P 10 and the same does not deserve to be judicially reviewed by this Hon'ble court by invoking its power under Article 226 of the Constitution of India. 5. Heard the learned counsel for the petitioner, the learned Standing Counsel for National Highways Authority of India representing respondents 1 and 2 and also the learned Senior Government Pleader for respondents 3 to 5. 6. As already noticed hereinbefore, on 08.04.2022, when this writ petition came up for consideration, we have recorded the specific stand taken by respondents 1 and 2 that, as per the alignment now proposed the temple pond is unaffected and that the claim made by the Travancore Devaswom Board that the property under acquisition is a W.P.(C)NO.9242 OF 2022 8 Devaswom land will be dealt with appropriately by the competent authority at appropriate stage, under Section 3G of the said Act. The said stand is reiterated in the statement filed on behalf of the 2[nd] respondent. 7. Regarding the change of alignment, respondents 1 and 2 have pointed out various technical aspects. According to the respondents, alignments are being finalised after a detailed study following the safety requirements under Indian Roads Congress (IRC) norms. 8. In **Union of India v. Kushala shetty [2011 (12) SCC 69]** , a decision relied on by the learned Standing Counsel for National Highway Authority of India (NHAI), the Apex Court held that NHAI is a professionally managed statutory body having expertise in the field 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 development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in W.P.(C)NO.9242 OF 2022 9 the field 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 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 alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in rarest of rare cases, the particular project, if it is found to be _ex-facie_ contrary to the mandate of law or tainted due to _mala fides_ . 9. The learned Standing Counsel for the Travancore Devaswom Board would submit that since the temple pond is unaffected by the acquisition, the main grievance of the petitioner Board now stands redressed. In such circumstances, this writ petition may be disposed of, recording the stand taken by the 2[nd] respondent that the claim made by the petitioner W.P.(C)NO.9242 OF 2022 10 Board that the property under acquisition is a Devaswom land will be dealt with appropriately by the competent authority at appropriate stage under Section 3G of the National Highways Act, 1956. In such circumstances, this writ petition is disposed of by recording the stand taken by the 2[nd] respondent that the claim made by the petitioner Board that the property under acquisition is a Devaswom land will be dealt with appropriately by the competent authority at appropriate stage under Section 3G of the National Highways Act, 1956 and that the temple pond is unaffected by the acquisition. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** MIN W.P.(C)NO.9242 OF 2022 11 ## **APPENDIX OF W.P.(C)NO.9242 OF 2022** ## **PETITIONER EXHIBITS:** **Exhibit P1 TRUE COPY OF THE SETTLEMENT REGISTER OF THURAVOOR SOUTH VILLAGE SHOWING THE PROPERTIES OF THURAVOOR TEMPLE.** - **Exhibit P2 TRUE COPY OF THE DECLARATION CERTIFICATE DATED 28.07.2012 ISSUED BY THE VILLAGE OFFICER, THURAVOOR SOUTH.** - **Exhibit P3 TRUE COPY OF THE LETTER DATED 16.12.2009 ISSUED BY D. SREEDHARAN NAMBOOTHIRI, THANTRI, PUTHUMANA ILLAM TO THE DEVASWOM COMMISSIONER.** - **Exhibit P4 TRUE COPY OF THE LETTER DATED 17.02.2010 ISSUED BY KANIPPAYYOOR KRISHNAN NAMBOOTHIRIPPAD TO THE DEVASWOM COMMISSIONER.** - **Exhibit P5 TRUE COPY OF THE NOTIFICATION AS PER SECTION 3(A) (1) OF THE NATIONAL HIGHWAY ACT, 1956 PUBLISHED IN MATHRUBHUMI DAILY DATED 26.08.2021.** - **Exhibit P6 TRUE COPY OF THE OBJECTION DATED 13.09.2021 PREFERRED BY THE DEVASWOM COMMISSIONER TO THE 4TH RESPONDENT.** - **Exhibit P7 TRUE COPY OF THE COMMUNICATION DATED 25.09.2021 ISSUED BY THE ASSISTANT DEVASWOM COMMISSIONER, VAIKOM TO THE 4TH RESPONDENT.** - **Exhibit P8 TRUE COPY OF THE LETTER DATED 29.09.2021 ISSUED BY THE ASSISTANT DEVASWOM COMMISSIONER, VAIKOM TO THE DEVASWOM COMMISSIONER.** - **Exhibit P9 TRUE COPY OF THE SKETCH ALONG WITH THE** W.P.(C)NO.9242 OF 2022 12 **FORWARDING LETTER DATED 28.12.2021 SHOWING THE PROPOSED ROUTE.** **Exhibit P10** **TRUE COPY OF THE LETTER DATED 11.01.2022 ISSUED BY THE 4TH RESPONDENT TO THE ASSISTANT DEVASWOM COMMISSIONER, VAIKOM.** ## **RESPONDENTS' EXHIBITS: NIL**