IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 WP(C).No. 33522 of 2007(N) -------------------------- PETITIONER(S): --------------- 1. O.E. JOSEPH, S/O. ISSAC, RESIDING AT ONASSERRY THOTTATHIL, THENIDUKKU, PANNIANKARA P.O., PALAKKAD-678 683. 2. P.K. CHAMI, S/O. KANDAN, RESIDING AT AMBALAPARAMBIL, PANNIANKARA P.O., PALAKKAD-678 683. 3. K.T. THOMAS, S/O. THOMAS, RESIDING AT KOODATHINAL, THENIDUKKU, VADAKKENCHERRY P.O., PALAKKAD-678 683. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENT(S): --------------- 1. NATIONAL TRANSPORTATION PLANNING AND RESEARCH CENTRE (NATPAC), REPRESENTED BY ITS CHIEF PROJECT CO-ORDINATOR OFFICER, THIRUVANANTHAPURAM-695 004. 2. THE SPECIAL DEPUTY TAHSILDAR, S.L.A.O. COMPETENT AUTHORITY, N.H.47, PALAKKAD. 3. THE PROJECT DIRECTOR AND GENERAL MANAGER, N.H. AUTHORITY OF INDIA, TUSHARA BINDU, NO.337, CHANDRANAGAR EXTENSION, NARICODE, PALAKKAD DISTRICT. 4. THE MANAGER (TECH), NATIONAL HIGHWAY AUTHORITY OF INDIA,TUSHARA BINDU, NO.337, CHANDRANAGAR EXTENSION, NARICODE, PALAKKAD DISTRICT. ADV. SRI.THOMAS ANTONY FOR R3 & R4 GOVERNMENT PLEADER SRI.SHYSON P.MANGUZHA FOR R.2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX;- EXT.P1 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS AND OTHERS DT. 25-10-2005. EXT.P2 TRUE COPY of the REPRESENTATION SUBMITTED BY THE PETITIONERS AND OTHERS DATED 27-7-2006 EXT.P3 TRUE COPY OF THE LETTER ISSUED BY THE SECOND RESPONDENT TO THE 4TH RESPONDENT DT. 31-7-2006. EXT.P4 TRUE COPY OF THE JUDGMENT IN WP(C) NO. 15165/06 ON THE FILE OFTHIS COURT DATED 10-7-2006. //TRUE COPY// PS TO JUDGE. PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No.33522 OF 2007 ----------------------------------------------- Dated this the 22nd day of October, 2008 J U D G M E N T The petitioners who are owners of landed property at Thenidukku and Panniyankara in Vadakkencherry Village of Palakkad District are aggrieved by the proceedings initiated by the second respondent at the instance of the National Highway Authority of India to widen the National Highway from Walayar to Thrissur and also to establish a Toll Plaza. According to them, it is proposed to widen the existing National Highway at the place where their properties abut the same to 60 metres and there is a further proposal to acquire 20 metres width of land on either side additionally so that the proposed Toll Plaza can also be located. The petitioner's grievance is that they will have to surrender not only their residential buildings but the entirety of their lands if the toll plaza is located at the spot presently proposed. According to the petitioners, by shifting the proposed Toll Plaza to a point just 100 metres towards the Ernakulam side no change in the alignment of the National Highway will be necessitated. By allowing such a shift the petitioners will be able to salvage at least portions of their lands so that they can put up new houses in such remainder portions when their existing houses are taken over for the widening of WP(C)N0. 33522/07 -2- the National Highway. Ext.P1 representation dated 25-10-2005 was submitted by the petitioners to the District Collector with copy to the third respondent the Project Manager and General Manager, National Highway Authority of India requesting that the proposed Toll Plaza be shifted to another spot so that the situation of 20 families being adversely affected can be avoided. Subsequently a detailed representation Ext.P2 was submitted by the petitioners and members of other families who are being affected, directly before the third respondent. The third respondent made over the above representation to the 4th respondent who is Manager (Tech) of National Highway Authority of India. The petitioners claim that the 4th respondent was convinced regarding the genuineness of the petitioners' grievance and the 4th respondent accordingly made over Ext.P2 to the 2nd respondent the Special Land Acquisition Officer and competent authority to explore the possibility of saving residing buildings of the petitioners by shifting the alignment to the right side with 100 metres wide right of way for Toll Plaza. It is submitted that the second respondent was also convinced about the genuineness of the petitioners' grievance. But since the possibility of saving the residential buildings of the petitioners by shifting the alignment to the side with 100 metres wide right of way to Toll Plaza can be reported only after the present alignment on WP(C)N0. 33522/07 -3- the left side is revised, the second respondent directed the 4th respondent “to consider the feasibility of changing or shifting the present alignment of Toll Plaza to save the buildings or atleast to save their lands to construct another houses by the petitioners”. Ext.P3 is copy of the letter issued by the second respondent to the 4th respondent in the above regard. Petitioners submitted that a conjoint effort by respondents 2 and 4 in consultation with the first respondent NATPAC should solve the problem. It is pointed out that this court under Ext.P4 judgment in WP(C). No. 15165 of 2006 directed that it will be ideal to consult the first respondent in projects relating to National Highway Development since the first respondent can be treated as an authority in the matter of transportation planning. On the above facts the petitioners have raised grounds and filed the writ petition seeking the following reliefs: 1. Issue a writ in the nature of mandamus directing the second and fourth respondents to take Ext.P2 and P4 to its logical conclusion in consultation with the first respondent. 2. Issue a writ in the nature of mandamus directing the respondents to shift the Toll Plaza to a place 1 kilometre away without altering the alignment of the National Highway 47. 3. Issue a writ in the nature of mandamus directing the fourthrespondent to consider the recommendation of the second respondent in Ext.P4 in fixing the Toll Plaza. 2. The second respondent SLAO has filed a detailed counter WP(C)N0. 33522/07 -4- affidavit wherein it is contended that as per the requisition received from the NHAI, acquisitions have been initiated under the NH Act, 1956 and the initial notification under section 3A(1) has been issued and published in the Gazette on 21-10-2005. Pursuant to the objections put in by the petitioners and others in response to the above notification a joint inspection was conducted and the National Highway Authority of India has reported that the alignment has been already finalised and there is no possibility of changing the alignment for saving the buildings of the petitioners and others. It is submitted that survey work has been completed in the stretch and declaration under section 3D(1) of NH Act has been issued and published in the Gazette of India on 11-10-2006. It is pointed out that the SLAO has no jurisdiction to alter the land plan and point schedule furnished by the NHAI. The counter affidavit concedes that a petition submitted by the petitioners before the third respondent was forwarded to the Land Acquisition Authority for report as to whether there is possibility of saving the buildings by shifting alignment to right side with 100 metres ROW for Toll Plaza. It is pointed out that alignment of road and Toll Plaza is to be decided by the NHAI. Since the alignment of road has been finalised by the NHAI, the representation “could not be considered”. It is also contended that since L.A. proceedings have WP(C)N0. 33522/07 -5- been completed in this stretch any change in the present alignment will adversely affect the project in future also. It is pointed out that a joint inspection was conducted by the Project Director, NHAI and the Deputy Collector on the basis of Ext.P2 and the inspection reveal that the shifting requested for is not technically feasible. Alternate lands proposed by the petitioners are not suitable due to technical reasons. It is also submitted that change of alignment due to the shifting of Toll Plaza will necessitate the publication of additional notification which will cause further delay in the finalisation of the land acquisition proceedings. 3. A still more serious counter affidavit has been filed by the third respondent. It is pointed out that pursuant to the notification under section 3A(1) which was published on 21-10-05 the petitioners submitted objections within 21 days under section 3C and those objections were considered and rejected by the second respondent competent authority. It is contended that the fundamental rights of the petitioners are not at all infringed by the action of the National Highway Authority. The project of widening the existing two lane National Highway into a four/six lane National Highway is in the interest of the entire nation and for a public purpose. It is submitted that between Thrissur and Vadakkenchery the existing two lane WP(C)N0. 33522/07 -6- National Highway is being developed into a six lane National Highway and from Vadakkenchery to Valayar at present the National Highway is being developed into a four lane road and by 2014 the above stretch will also be developed to a six lane road. The area required for the conversion of the two lane highway into a six lane Highway is 60 metres and for the four lane Highway it is 45 metres. For construction of a six lane road 60 metres widh of land is necessary in the area of the petitioners. After a detailed study, the DPR consultant and the technical authority of NHAI have decided to construct the Toll Plaza at 243 kilometres at Thenidukku, Panniyamkara of Vadakkenchery I Village. For the construction of the Toll Plaza 100 metres wide area is required with a length of 150 metres on either side of the Toll Plaza. It is pointed out that the declaration under section 3D(1) with respect to the properties of the petitioners and others have been published in the Gazette of India on 11the October 2006. From that date, the land specified in the schedule of the notification stands vested in the Government of India. The Toll Plaza cannot be shifted to the area suggested by the petitioners. The Toll Plaza requires a straight road for 150 metres on either side of the Toll Plaza with width of 100 metres. This is for giving advance intimation to the oncoming traffic on either side regarding the plaza and also for creating space for the WP(C)N0. 33522/07 -7- vehicles to stop and pay the fees at the Toll gate without causing traffic block. It is then claimed in paragraph 7 of the counter affidavit that after getting P1 and P2 representations the third respondent together with the revenue officials inspected the area of the petitioners and verified whether there is any possibility of shifting the Toll Plaza. On inspection it was found that the alignment and the position of the Toll Plaza cannot be changed. The alignment of the road in that stretch has been finalised based on technical, topographical and operational considerations by the NHAI. The land acquisition proceedings have been completed in this stretch and any change in the present alignment will affect the already completed process and will delay the time bound infrastructure development project. 4. Sri.V. Chitambaresh, learned senior counsel addressed me at length on behalf of the petitioners and the learned senior counsel's submissions were resisted effectively by Sri.Thomas Antony Kallampilly, learned standing counsel for the National Highway Authority of India and also by Sri.Shyson P.Manguzha, learned Government Pleader. 5. Mr.Chitambaresh would submit at the very outset that the counter affidavits submitted by the third respondent and by the SLAO are contradictory when it comes to the question whether Exts.P2 and WP(C)N0. 33522/07 -8- P3 representations have been considered. According to him the second respondent has clearly stated that the above representation has not been considered while the third respondent claims to have considered the representation. This contradiction itself is a justification for directing the concerned to consider and take a final decision on the representations since the same has been strongly recommended by the second respondent through Ext.P3. Learned senior counsel reiterated that no change in the alignment of the National Highway is necessary if location of the Toll Plaza is shifted to just 100 metres towards the Ernakulam side. At that spot the existing National Highway is bounded on either sides by paddy fields and no prejudice will be caused to the owners of those paddy fields by the proposed acquisition. But in the case of the petitioners such a shifting will enable them to save atleast a portion of their lands so that they can construct new houses on their own property and won't have to migrate to some far away place. The situation demands that the minor shifting requested for be granted. 6. The learned Government Pleader Mr.Shyson P.Manguzha would submit that the second respondent does not have a role in the matter of shifting of the alignment. The alignment has been fixed by the National Highway Authority of India and the acquisition is WP(C)N0. 33522/07 -9- proceeding on the basis of their requisition. Sri.Thomas Antony Kallampilly, learned standing counsel would point out that in the scheme of the statute, objections are to be submitted by the aggrieved parties within 21 days of the notification under section 3A(1). In the instant case such objections were submitted and all those objections were considered under section 3C. After consideration the objections were rejected and the petitioners were informed. The petitioners have not so far challenged the order of the SLAO rejecting the objections submitted under section 3C. Legally it was unnecessary for the National Highway Authority or the third respondent to consider Exts.P2 and P3. Counsel submitted that notification under section 3D gives finality to the acquisition proceedings and from the date of the notification the property remains vested in the Central Government. The present writ petition is therefore not maintainable in law. Mr.Thomas Antony submitted that it was not all necessary for the respondents to entertain Exts.P2 and P3. Those representations were considered and a joint inspection was conducted. In the joint inspection also it became clear that any shifting in the alignment is not technically possible. In view of the finality attained by the land acquisition proceedings so far as they relate to the properties of the petitioners and also since the proposed shifting is not technically WP(C)N0. 33522/07 -10- feasible any interference by this court will not be justified. 7. I have anxiously considered the rival submissions addressed at the Bar in the light of the various statutory provisions and judicial precedents governing identical fact situations. It can never be in doubt that the purpose of the acquisition is an eminently public one. Project of widening the existing two lane National Highway into a six lane National Highway and also the establishment of the Toll Plaza is certainly in the interests of the nation. It cannot also be in doubt that no fundamental right of the petitioners under the Constitution have been violated. The only constitutional right which the petitioners can aspire for in the event of acquisition of their properties for public purpose is under Article 300A to have adequate compensation for the acquired properties. The National Highway Act also provides for recourse to arbitration proceedings under section 3G(5) if the compensation amount determined by the SLAO is not acceptable to the land owners. Section 3G(7) of the National Highways Act 1956 will show that most of the parametres which are adopted for determining the compensation under the land acquisition Act have been made applicable for acquisitions under the National Highways Act also. 8. Section 3D of the National Highways Act, 1956 is extracted below: WP(C)N0. 33522/07 -11- “3D. Declaration of acquisition:- (1) Where no objection under sub-section (1) of section 3C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub- section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in sub-section (1) of section 3A. (2) On the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances. (3) Where in respect of any land, a notification has been published under sub-section (1) of section 3A for its acquisition but no declaration under sub-section (1) has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect; Provided that in computing the said period of one year, the period or periods during which any action or proceedings to be taken in pursuance of the notification issued under sub-section (1) of section 3A is stayed by an order of a court shall be excluded. (4) A declaration made by the Central Government under sub-section (1) shall not be called in question in any court or by any other authority.” Subsection (2) of section 3D almost corresponds to section 16 of the Land Acquisition Act. Thus with the promulgation of the declaration under section 3D the petitioners lands have already become vested in the Central Government free from all encumbrances. Significantly, the declaration under section 3D is also not under challenge. 9. I am not much impressed by the submissions of the learned WP(C)N0. 33522/07 -12- senior counsel that there is conflict between the version taken before this court by the SLAO and the third respondent Project Director. SLAO's statement that the representation for changing the alignment cannot be considered and could not be considered only means that the representations could not be considered favourably to the petitioners. The said statement does not mean that the representations were never considered at all. In fact the common contention in both the counter affidavits is that the representations were entertained and joint inspections were conducted and that the joint inspections revealed that the change in the alignment is not technically feasible. It is trite that in land acquisition matters once the purpose of the acquisition is found to be a genuinely public one, identification of the land required and fixation of the alignment if the acquisition is for a road are all matters coming within the domain of the requisitioning authority and the State. The reasons highlighted by the third respondent in his counter affidavit to show as to why a change is not feasible in my opinion are convincing. This court is not expected in proceedings under Article 226 to examine the wisdom of the fixation of the alignment and the identification of the spot for locating the Toll Plaza in these proceedings. Most importantly the petitioners do not attribute any mala fides or oblique motives to any of the respondents WP(C)N0. 33522/07 -13- in the matter of the present fixation of the alignment. It is true that as in any other acquisition of residential properties this acquisition will result in heartburn for the petitioners. But that is inevitable in this case where the petitioners' properties have been found by the National Highway Authority of India on the basis of the advice of their technical experts to be suited for the purpose. Writ petition fails and the same will stand dismissed. No costs. (PIUS C.KURIAKOSE, JUDGE) ksv/-