Writ Appeal No.1553 of 2019, Kerala High Court, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **TUESDAY, THE 09TH DAY OF JULY 2019/18TH ASHADHA, 1941** ## **W.A.No.1553 OF 2019** **AGAINST THE JUDGMENT DATED 7.3.2019 IN W.P(C).NO.41586/2018 OF HIGH COURT** **APPELLANTS/PETITIONERS 1 & 3 TO 12:** **1 P.G.PURUSHOTHAMAN PILLAI, AGED 56 YEARS S/O.GOPALA KURUP, ROHINI, PATHIRAPPALLY P.O., ALAPPUZHA- 688 521, AND PROPRIETOR, SONY ELECTRICALS, PATHIRAPPALLY, ALAPPUZHA - 688 521.** - **2 SUMA, W/O.V.M.MANOHARAN, VELIYIL HOUSE, WEST OF UDAYA NAGAR, PATHIRAPPALLY P.O., ALAPPUZHA - 688 521.** **3 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.** **4 THOMAS, AGED 65 YEARS S/O.VARGESE, KAKKANATTU HOUSE, PATHIRAPPALLY P.O., ALAPPUZHA- 688 521.** **5 GRACY, AGED 64 YEARS W/O.JOB, PUNNAYKKAL HOUSE, PATHIRAPPALLY P.O., ALAPPUZHA- 688 521.** **6 SUNIL.R., AGED 47 YEARS S/O.K.A.RAVI, SUNIL NIVAS, PERUMTHURUTHU, PONNADU P.O., MANNANCHERRY, ALAPPUZHA- 688 538, AND PROPRIETOR, AMMAY NARAYANA STORES, PATHIRAPPALLY P.O., ALAPPUZHA - 688 521.** **W.A.No.1553/2019 : 2 :** - **7 ARUNKUMAR, AGED 44 YEARS S/O.SADANANDAN, ASWATHY BHAVANAM, PATHIRAPPALLY P.O., ALAPPUZHA - 688 521.** - **8 RAJAMMA, AGED 74 YEARS W/O.SADANANDAN, ASWATHY BHAVANAM, PATHIRAPPALLY P.O., ALAPPUZHA - 688 521.** - **9 RAJEENA ANUB, AGED 45 YEARS D/O.ABDUL REHMAN KUNJU, CHAMBACHIRAPUTHENVEEDU, MULAKUZHA P.O., MULAKUZHA, ALAPPUZHA – 689 505, AND PARTNER, GLOBAL MARBLES, PATHIRAPPALLY, ALAPPUZHA – 688 521.** - **10 AYISHA ANUB, AGED 19 YEARS D/O.ANUB, CHAMANCHIRA PUTHEN VEEDU, MULAKUZHA P.O., MULAKKUZHA, ALAPUZHA- 689 505, AND PARTNER, GLOBAL MARBLES, PATHIRAPPALLY, ALAPPUZHA - 688521.** - **11 SREE NARAYAN DHARMA PARIPALANA YOGAM, (SNDP), BRANCH NO.1115, CHETTIKADU, PATHIRAPPALLY P.O., ALAPPUZHA-688 521, AND REPRESENTED 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 SRI.K.S.BAIJU SRI.SANAL P.RAJ** ## **RESPONDENTS/RESPONDDENTS:** - **1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF ROAD, TRANSPORT AND HIGHWAYS, TRANSPORT BHAVAN-1, PARLIAMENT STREET, NEW DELHI- 110001.** - **2 NATIONAL HIGHWAY AUTHORITY OF INDIA (NHAI), REPRESENTED BY ITS CHAIRMAN, SECTION 10, DWARAKA, NEW DELHI- 110075** **W.A.No.1553/2019 : 3 :** - **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- 695008.** - **4 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695001.** - **5 THE DISTRICT COLLECTOR, ALAPPUZHA, COLLECTORATE, BEACH ROAD, ALAPPUZHA- 688001.** - **6 SPECIAL DEPUTY COLLECTOR AND COMPETENT AUTHORITY (LAND ACQUISITION, NATIONAL HIGHWAY), COLLECTORATE, CIVIL STATION, ALAPPUZHA- 688001.** - **7 THE VILLAGE OFFICER, PATHIRAPPALLY VILLAGE, PATHIRAPPALLY VILLAGE OFFICE, PATHIRAPPALLY P.O., ALAPPUZHA-688521.** **R1 BY SRI.P.VIJAYA KUMAR, ASG R2 & R3 BY SMT.R.ASALATHA VARMA, SC, NHAI R4 TO R7 BY SRI.TEK CHAND, GOVT. PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.No.1553/2019 : 4 :** ## **J U D G M E N T** ## **Hrishikesh Roy, C.J.** Heard Sri.Dipu R., the learned counsel for the appellants. Also heard Smt.R.Asalatha Varma, the learned Standing Counsel for the National Highway Authority of India [respondent Nos.2 and 3], Sri.P.Vijayakumar, the learned Assistant Solicitor General of India represents the Union of India [respondent No.1]. Sri.Tek Chand, the learned Government Pleader appears for respondent Nos.4 - 7. 2. This appeal is filed by the writ petitioners to challenge the judgment dated 7.3.2019, whereby, the W.P.(C).No.41586/2018 was dismissed by the learned Judge. The said case was filed by the land owners, who were affected by acquisition of their property for widening of the National Highway 66 between Cherthala – Ochira in Valiya Kalavoor-Pathirappally area, in the Alappuzha District. On the basis of the Exts.P21 and P22, the petitioners contended that the acquisition/alignment for the National Highway would create a dangerous curve at the Pathirappally Junction, and therefore, the alignment of the proposed National Highway was unscientific and the Court should intervene. 3. The learned Judge however, referred to the applicable decisions of the Supreme Court and also considered the stand taken by the National Highway Authority of India to observe that a Court exercising powers of judicial review has **W.A.No.1553/2019 : 5 :** limited scope to adjudicate on whether the alignment adopted by the respondents, after multilevel consultations, could be described as faulty. The learned Judge was of the opinion that, in the absence of any plea of established mala fide, it would not be prudent to go into the issue of alternate alignment, as projected by the writ petitioners. 4. For ready reference, we may extract the relevant discussion of the issue in paragraph Nos.12, 13 and 14 of the impugned judgment:- “…........................................................ …................................................ 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 3rd 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. 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 **W.A.No.1553/2019 : 6 :** 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 2013 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 extraordinary remedy of judicial review to interdict the impugned land acquisition proceedings in this case. Moreover the 2nd 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. …........................................................ ….................................................” 5. We have applied our mind to the above reasoning which led to dismissal of the Writ Petition. No infirmity is however seen in the impugned judgment. Besides, the limited scope for objection under Section 3C of The National Highways Act, 1956 has to be noticed and also the well merited decision of the competent **W.A.No.1553/2019 : 7 :** authority on the objection raised by the land owners. 6. Following the above and bearing in mind the law covering the issue, the Writ Appeal is found devoid of merit and the same is accordingly dismissed. ## **Sd/HRISHIKESH ROY CHIEF JUSTICE** **Sd/A.K.JAYASANKARAN NAMBIAR JUDGE** prp/9/7/19 **W.A.No.1553/2019 : 8 :** ## **APPENDIX** ## **PETITIONERS 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. A2- 17/2018 DATED 24.9.2018 ISSUED BY THE 6TH RESPONDENT TO THE 2ND PETITIONER .** **W.A.No.1553/2019 : 9 :** **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.** **EXHIBIT P21: TRUE PHOTOGRAPH IN THE CURVE AREA.** **EXHIBIT P22: TRUE COPY OF THE LOCATION SKETCH.** **EXHIBIT P23: TRUE COPY OF THE NEWS ITEM PUBLISHED IN MATHRUBHUMI DAILY DATED 25.1.2019.** **EXHIBIT P24: TRUE COPY OF THE NEWS ITEM PUBLISHED IN 1.2.2019 BY MATHRUBHUMI.** ## **RESPONDENTS EXHIBITS:** **ANNEXURE R6(A): COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IS PRODUCED.** ## **//TRUE COPY//** ## **P.S. TO JUDGE**