IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 WP(C).No. 23947 of 2006(A) -------------------------- PETITIONERS: ------------ 1. KOCHU THREASIA, W/O.GEORGE, AGED 65 YEARS, VILAYATHIL VEEDU, ANJMOORTHY POST, ALATHUR TALUK, PALAKKAD DISTRICT. 2. ALEX, S/O.JOSE, AGED 45 YEARS, KANACHAYI VEEDU, VAINTHALA, PALAYAMPARAMBU POST, MUKUNDAPURAM TALUK. 3. JOSE, S/O.GEORGE, AGED 42 YEARS, VILAYATHIL VEEDU, ANJMOORTHY POST, ALATHUR TALUK, PALAKKAD DISTRICT. (PETITIONERS REPRESENTED BY POWER OF ATTORNEY HOLDER GEORGE,S/O.JOSEPH,69 YEARS, RESIDING AT VILAYATHIL HOUSE, VALLIYODE,ANJUMOORTHY POST,ALATHUR TALUK,PALAKKAD DIST. BY ADV. SRI.N.N.SUGUNAPALAN (SR.) SRI.N.J.ANTONY RESPONDENTS: ------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF SHIPPING AND SURFACE TRANSPORT, GOVT. OF INDIA, NEW DELHI. 2. ASST. PROJECT DIRECTOR & MANAGER (TECH.) NATIONAL HIGHWAY AUTHORITY OF INDIA, PALAKKAD. 3. SPECIAL DEPUTY COLLECTOR, S.L.A.O.& COMPETENT AUTHORITY, NH 47, PALAKKAD. BY ADV. SRI.THOMAS ANTONY FOR R2 & R3 SMT.MOLY.E.V., CGC FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 23947/06 - 2 - JUDGMENT NO REPRESENTATION FOR THE PETITIONERS. THE WRIT PETITION WILL STAND DISMISSED FOR DEFAULT. 3.9.2008 SD/- PIUS C.KURIAKOSE, JUDGE. SRD (TRUE COPY) P.A.TO JUDGE. PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 23947 OF 2006 ----------------------------------------------- Dated this the day of October, 2008 J U D G M E N T The petitioners lands forming part of a rubber-cum-teak plantation are proposed to be acquired for the purpose of widening of National Highway 47 from kilometres 182/200 to 248/875 pursuant to Ext.P1 notification issued under section 3A(1) of the National Highways Act by the third respondent SLAO and competent authority. Their main grievance is that the third respondent SLAO and competent authority who was bound to consider and hear the objections submitted by them under section 3C has not considered the objections and has passed Ext.P10 order refusing to consider their objections. The first respondent is the Union of India and the second respondent is the Assistant Project Director & Manager (Tech.) of the National Highway Authority of India. The petitioners contend in paragraph 3 of the writ petition that there is no need at all to acquire their lands for the purpose of widening the existing National Highway since there is “Purambokku” land having of 45 metres on the western side of the road. According to them, if the “Purambokku” land is utilised the existing road can be straightened and the curve which will be there if the present alignment is implemented can be avoided. They allege WP(C)N0. 23947/06 -2- that the respondents are acting under a mistaken notion that a Mosque situated on the western side will be affected if the “Purambokku” land is utilised. They also allege that the present alignment plan has been made at the behest of certain interested and influential persons with ulterior motives. Ext.P2 is copy of the objections filed by the petitioners under section 3C to Ext.P1. Ext.P3 is copy of a rough sketch which the petitioners filed along with Ext.P2 objections. Petitioners contend on the basis of Ext.P3 that if the “Purambokku” land on the western side is used the road can be made straight and huge revenue expenditures to the Union of India can be avoided. Petitioners allege further that even though the original proposal to widen the road to 60 metres was abandoned and the present proposal is limited to 45 metres road. In the case of the petitioners property the same extent is being acquired. This shows the mala fides of the respondents in the matter. Ext.P4 is copy of the title document of the second petitioner. It is contended that if the second petitioner's property is acquired as per the present alignment plan he will be left with a plot having an extent of 1.5 cents only which will be unfit for any use. Pursuant to Ext.P2 objections, Exts.P5 to P7 hearing notices were served on the petitioner calling them for a hearing on 6-4-2006. WP(C)N0. 23947/06 -3- The petitioners appeared before the third respondent with documents and objected to the acquisition. But nothing was heard from the third respondent regarding the result of the hearing. Since it was learned that the officer who heard them had been transferred Ext.P8 fresh representation was filed. It is alleged that no action was taken on Ext.P2 objections and Ext.P8 representation. But in the meanwhile on 23-5-2006 some officials of the respondents entered into the property of the petitioners and planted stones. It is alleged that if the acquisition is as per the stone planting now made, the loss which will be occasioned to the petitioners will be unesteemable. Hence the petitioners filed WP(C). 15377 of 2006 for a direction to the respondents to dispose of Ext.P2. This court passed Ext.P9 judgment by directing the respondents to supply the petitioners with copy of the order dated 10-6-2006 which was claimed to have passed on Ext.P2. Pursuant to Ext.P9 copy of the order dated 10-6-2006 was given and Ext.P10 is that copy of the order. The petitioners submit that Ext.P10 was passed not by the officer who heard them. There has been no meaningful disposal of Ext.P2 and it is alleged that Ext.P2 was disposed in a stereotyped manner. Assailing Ext.P10 the petitioners contend that the said order amounts to an abdication of the duties and WP(C)N0. 23947/06 -4- functions statutorily entrusted with the third respondent. The National Highway Authority of India has no power or authority to exercise the imperial power of eminent domain which has to be exercised by the Central Government taking into account the limitations contained in Article 300A. Much valuable right which is conferred on land owners under section 3C, that right has been made a mockery by the third respondent. Petitioners have produced Ext.P11 approved sketch which according to them shows the present proposal and alignment wherein the property of the petitioners caused to be acquired shown as green. It is submitted that the former road is shown as yellow colour and the existing tar road is shown inside the dark black lines. At the point marked C-1 the proposed acquisition is 9.8 metres whereas at the point marked C-2 it is only 7.5 metres which causes a sharp cut at this point and this reveals the mala fide manner in which acquisition proceedings have been taken. Petitioners again reiterate in paragraph 11 that the present proposal has been mooted to confer unmerited benefits on three persons who owned lands measuring 15 cents each inside the estate so that their lands will come to enjoy direct access to the National Highway. Petitioners challenge Ext.P10 on various grounds and they filed this writ petition seeking the following reliefs. WP(C)N0. 23947/06 -5- (a) To call for the records relating to Ext. P10 order and to issue a writ of certiorari or any other appropriate writ, order or direction quashing the original of Ext.P210 order. (b) Issue a writ of mandamus in the nature of declaration declaring that the petitioners property is not required for the purpose stated in Ext.P1 notification and that the road can be widened and the bypass can be built using the puramboku land situated on the western side of the road. 2. The second respondent filed an initial counter affidavit on 15th February 2007 through its Manager (Technical) and Assistant Project Director who is in charge of the project for widening and developing of the existing two lane NH 47 into four lane/six lane National Highway. It is contended that the present proceedings have been initiated by the National Highway Authority of India who have been entrusted with the section of the National Highway Stretch between Tamil Nadu – Kerala State Border to Kochi by the Central Government in exercise of the powers under section 11 of the National Highway Authority of India Act and therefore the present proceedings have statutorily sanctioned. The project of widening the National Highway being implemented after a detailed study by the project consultants M/s. SOWIL of Noida, U.P. and they have submitted a detailed land plan schedule for acquisition of the land required. It is clearly stated in the counter affidavit that the allegation that Ext.P2 objections were not considered is incorrect. WP(C)N0. 23947/06 -6- The objections were considered by the third respondent and rejected as evidenced by Ext.P10. It is further contended that the petitioners are not entitled to interfere with the decision making process of the National Highway Authority of India and cannot dictate the manner in which National Highways are to be constructed. The technical aspects of the construction of the road is decided by the National Highway Authority Corporate Office, New Delhi taking into consideration the feasibility study report and the detailed project preparation report. The decision to widen the existing two lane NH 47a into a four/six lane Highway was taken in accordance with the various studies. The purpose of the acquisition is pre-eminently a public one and therefore petitioners right can only be to seek compensation which right they will always enjoy. It is then contended that the fundamental rights of the petitioners are not at all infringed by the action of the first respondent Government or the National Highway Authority. It is pointed out in this connection that right to property is no longer a fundamental right under the Constitution. The beneficiaries of the project are general public and any delay in the matter would cause huge loss to the country and an early implementation of the Project as planned will not cause any waste of the national fund. The counter affidavit WP(C)N0. 23947/06 -7- emphatically denies the allegation of mala fides levelled against the respondents, particularly the allegation that the present alignment is made at the behest of certain interested and influential persons with ulterior motives. It is contended that the alignment of the road for the entire stretch from Walayar to Thrissur was fixed after various studies by the Technical Officers of the consultant which was thereafter scrutinised by the technical authorities of the NHAI. It was then alone the alignment for the entire stretch was finalised. The petitioners' property is situated between kms. 231/100 and 231/900 and the same was found to exist on the left hand side of the existing road from Palakkad to Thrissur. In that area the existing road is lying in a smooth curve and for widening the existing highway the property on both sides are being utilised. The suggestion of the petitioners made in the writ petition and also in Ext.P2 is that the existing road can be widened by using the vacant land and old road situated on the right hand side. If that suggestion is accepted the new road to be constructed within kms. 231/100 and kms. 231/900 will have a reverse curve within a short length of 90 metres and the same is against the technical feasibility. The road to be constructed should have only a smooth curve which will enable the vehicles, particularly WP(C)N0. 23947/06 -8- fully loaded lorries to travel at speed a speed of 100 kms. per hour. Therefore if the existing smooth curve is disturbed for the sake of the private interest of the petitioners the same will be against public interest. It is contended that the rough sketches produced by the petitioners as Exts.P3 and P11 are incorrect sketches and do not disclose the exact lie of the road. The plan of the area prepared to scale by the technical experts of the consultants of NHAI is produced as Ext.R2(a). R2(a) discloses that the proposed right of way shown as PROW that properties on either side of the existing National Highway is being used for the widening and development of the National Highway into a four/six lane one. R2(a) will further show that the road at that area cannot be straightened as the petitioners alleges in Ext.P2 and in the writ petition. In Ext.P2 the petitioners' request is that their property should be avoided and the property situated on the opposite side along should be used. The contention regarding injurious severance of the property of petitioner No.2 is a new contention raised in Ext.P2. The counter affidavit repudiates the allegations raised against Ext.P10 and supports Ext.P10 as a valid order. 3. The petitioner has filed additional documents Exts.P12(a) to P12(g). These are the latest 3 D satellite images of the existing road WP(C)N0. 23947/06 -9- and the proposed new road. According to the petitioners these exhibits clearly establish that the widening of the road could be more effectively done using the “Purambokku” land situated on the western side. A reply affidavit has been filed by the petitioners to the above counter affidavit reiterating their contentions. It is alleged that the second respondent has not chosen to take this court into confidence and to disclose the entire facts and circumstances before this court and in specific terms the width of the road has not been stated. It is pointed out that from Ext.R2(a) it can be seen that the proposed road has a width of 18 metres. Ext.P13 news item in Mathrubhumi daily dated 10th March 2007 is relied on to show that the width of the Highway from Walayar to Mangalam Bridge has been refixed as 45 metres. The petitioners property lies within the stretch between Walayar and Mangalam Bridge. Therefore it is not clear as to how the respondents can make acquisition for 45 metre Highway on the basis of a plan where the proposed width is 80 metres. In view of the above reply affidavit an additional counter affidavit has been filed by the second respondent on 29-6-2007. C.KURIAKOSE, JUDGE) WP(C)N0. 23947/06 -10-